situated high above the spectacle to be observed (i.e., where the sight lines almost always exceed five percent). To the extent safety is implicated at all in the reason for the exception, it is because access to these seats is almost always afforded by steps, not ramps. Thus, wheelchair seating can only be provided at the top or bottom of those areas. This narrow exception is inapplicable, according to the government, to a typical single-level movie theater, where steep lines of sight are not generally found.
As the author of the regulation, the Department of Justice is also the principal arbiter as to its meaning. See Thomas Jefferson Univ. v. Shalala, supra, n.4. The Court concludes that the exception to ADAAG Section 4.33.3 affords AMC no warrant to consign its wheelchair patrons to the back of the Avenue Grand Theater.
AMC's most persuasive argument in support of a right to retain its wheelchair seating in the back of the Avenue Grand despite the ADA is that the presence of a wheelchair and its occupant in the midst of able-bodied patrons in fear for their own safety could impede a mass exodus of the theater in the case of an emergency. It would thus constitute a "direct threat to the health or safety of others," in which case compliance with the ADA is no longer obligatory. See 42 U.S.C. § 12182(b)(3); 28 C.F.R. § 36.208(a). A "direct threat" is defined as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services." 42 U.S.C. § 12182(b)(3); 28 C.F.R. § 36.208(b). "In determining whether an individual poses a direct threat to the health or safety of others," thus justifying disparate treatment of the disabled in the interest of public health or safety, "a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk." 28 C.F.R. § 36.208(c).
Fiedler cites to several cases recently decided under the ADA that have held that the right to treat a disabled person disparately, and less favorably, on the ground that to do otherwise would endanger others must be preceded by an individualized assessment of the nature and extent of danger in relation to the specific disability of the person to be disfavored. See, e.g., Bombrys v. Toledo, 849 F. Supp. 1210 (N.D. Ohio 1993) (enjoining defendant from implementing blanket exclusion for persons with insulin-dependent diabetes from employment as police officers); Anderson v. Little League Baseball, Inc., 794 F. Supp. 342 (D. Ariz. 1992) (enjoining defendant from implementing a policy banning coaches in wheelchairs from the coaches' boxes along the baselines, where an individualized assessment revealed that plaintiff had successfully served as either a first base or third base coach for three years without incident); see also Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C. 1992) (enjoining defendant from disqualifying HIV positive firefighter because of purported "direct threat" under Rehabilitation Act).
Making his own individualized assessment in his case, Fiedler dismisses the threat to safety he poses as de minimis. He has, he says, ample upper body strength to move his own wheelchair rapidly up the aisles at the Avenue Grand. He also never attends a performance in a theater with a steeply sloped aisle unless he is accompanied by a companion who is willing and able to assist him in the event of an emergency. Moreover, he states, he customarily waits for the other patrons to exit before he leaves a movie theater. He observes that the likelihood of a theater fire is so remote--none having occurred in the United States, he says, in more than fifty years--and of a magnitude sufficient to force a general evacuation of the audience, given modern fire safety precautions, is such as to render the risk to others virtually non-existent.
AMC is not so sanguine. By scattering wheelchair seating throughout the audience, unless all of a theater's emergency exits are equipped with ramps (as those at the Avenue Grand are not), a wheelchair-bound patron can exit only at the rear, which he can reach only by negotiating his way up the aisle from a seat toward the screen. In event of an emergency evacuation, he would be proceeding against substantial crowd traffic heading for nearer exits in the opposite direction. Even those patrons moving in the same direction but behind the wheelchair will be able to proceed only at a pace determined by the ability of the occupant of the wheelchair to propel his or her chair upgrade.
A theater fire, moreover, while representing the classic crisis situation, is not the only event that could precipitate the flight of the audience: a bomb threat, a deranged patron with a gun, or a riot could have a similar effect.
Finally, the cases cited by plaintiff are only marginally apposite. Fiedler's prayer for relief is not concerned with AMC's policies, practices, or procedures, but with its structural amenities. Thus, unlike policies, practices, and procedures--which are more readily adaptable and can be discretely applied in individual cases--structural changes, such as wheelchair seating dispersed throughout a movie theater, once built, would be available not only to Fiedler, but also to other handicapped individuals who may pose a far greater "direct threat" to other patrons than Fiedler.
Therefore, the "individualized assessment" called for in this case will require the taking of evidence to determine not only whether Mr. Fiedler's presence the in the fourth or fifth row of the Avenue Grand Theater-in his wheelchair poses a significant risk to his fellow theater-goers, but also whether others similarly limited by disability, but less agile or prudent than he, might also do so, and whether AMC can readily achieve an accommodation that might ameliorate the dangers so posed.
For the foregoing reasons, therefore, it is this 16th day of December, 1994,
ORDERED, that the defendant's motion for summary judgment is denied; and it is
FURTHER ORDERED, that the parties will appear before the Court on January 4, 1995 at 9:30 a.m. for a status conference.
Thomas Penfield Jackson
U.S. District Judge