The opinion of the court was delivered by: James Robertson United States District Judge
The facts of this Americans with Disabilities Act (ADA) case are set forth below:
1. In the fall of 2002, Jeri Wasco visited Timberlake's Restaurant, hoping to dine there with some friends. Ms. Wasco was born with cerebral palsy and uses a motorized scooter. When her friends discovered that Timberlake's was not accessible by wheelchair or scooter, they decided to dine elsewhere.
2. Six months later, James Watson was retained by the law firm of Schwartz Zweben and Associates, LLP., which had been retained by Ms. Wasco, to verify that there were architectural barriers to entry at Timberlake's. Mr. Watson confirmed that the front door was not accessible.
3. Six months after that, in December 2003, Ms. Wasco filed a complaint against William Timberlake, alleging violations of the ADA. In addition to complaining about the front door, Ms. Wasco's complaint averred that "there are other current violations of the ADA at the RESTAURANT . . . which are not specifically identified herein."
4. Timberlake's is housed in an old building and was established well before the ADA was enacted. It is therefore required to accommodate patrons with disabilities only by making modifications that are "readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv)-(v). To enter the restaurant, a patron must step down 7 inches to a landing, then turn 90 degrees to the right and step down another 7 inches to the floor. This entrance poses a barrier to access for patrons who use wheelchairs and scooters, but its design makes it difficult to build a ramp.
5. Defendant filed immediately for summary judgment. In addition to noting that the restaurant was owned by "T Corporation" and not by him, Mr. Timberlake noted that installation of a handicap ramp would decimate his business by eliminating a large number of seats. An architect substantiated this claim with an affidavit.
6. Plaintiff opposed summary judgment by arguing that discovery was necessary before a response could be given on the ready achievability of various (still unnamed) modifications.
7. Nine months after filing her complaint, plaintiff filed an expert report which did not rely in any way on defendant's initial disclosures or other discovery materials.
This report noted numerous ways in which Timberlake's did not meet the ADA Accessibility Guidelines (ADAAG). (The ADAAG guidelines were promulgated to govern new construction and new compliance efforts.) Plaintiff at no point identified which of the various asserted instances of non-compliance with the ADAAG stood as barriers to her accessing the goods and services at Timberlake's within the meaning of the ADA, other than the entrance. The report proffered five ways of making the entrance accessible. Defendant replied with a detailed affidavit of the former Chief Building Inspector for the District of Columbia, rebutting the ready achievability of each of the five options.
8. Mr. Timberlake's motion for summary judgment was denied. He again averred that T Corporation was the proper owner of Timberlake's. Leave was granted to amend. Ms. Wasco's amended complaint named the correct defendant, but it still failed to identify which of the instances of non-compliance with the ADAAG stood as barriers to her own access to the goods and services at Timberlake's.
9. The parties went to mediation but failed to reach agreement. A joint expert was then appointed under Rule 706(b). The expert reported that none of the plaintiff's five proffered means of making the entrance accessible was readily achievable, and that many were unsafe. T Corporation moved for summary judgment.
10. Plaintiff cross-moved for summary judgment, still failing to identify which of the ADAAG violations noted in her expert report stood as barriers to her enjoyment of Timberlake's within the meaning of the ADA. Plaintiff's position is that summary judgment should be entered on her behalf for some of the small violations named in the expert report, and that, as to the entrance, she still cannot respond to the motion for summary judgment without further discovery into Timberlake's financial resources.
After reviewing the submissions of the parties I have determined that the defendant's motion for summary judgment is well taken. There is no genuine issue of material fact as to whether any barrier to this ...