United States Court of Appeals
For the First Circuit
No. 99-1456
DONALD PARKER, MARIA JESUSA VAZQUEZ PARKER,
AND THEIR CONJUGAL PARTNERSHIP, MARIA A. PARKER VAZQUEZ,
MINOR,
and JOHANNA PARKER VAZQUEZ, MINOR,
Plaintiffs, Appellants,
v.
UNIVERSIDAD DE PUERTO RICO, GENERAL ACCIDENT INSURANCE CO.,
and JOHN DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jesús A. Castellanos, U.S. Magistrate Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jane Becker Whitaker, with whom Troncoso & Becker was on
brief, for appellants.
Vanessa-Viera Rabelo, with whom Jeannette López-de Victoria
and Pinto-Lugo & Rivera were on brief, for appellees.
August 28, 2000
LIPEZ, Circuit Judge. Beneath the surface of this
seemingly simple case, there are issues of considerable
complexity and import. Strikingly, they were largely missed by
the parties.
I.
The plaintiffs, Donald Parker, his wife, their conjugal
partnership, and their two daughters (collectively, the
"Parkers"), brought suit in the United States District Court for
the District of Puerto Rico, seeking compensatory damages under
the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.
§ 12101 et seq., and Article 1802 of the Puerto Rico Civil Code,
31 L.P.R.A. § 5141, for injuries suffered by Parker when his
wheelchair overturned during a visit to the University of Puerto
Rico's Botanical Gardens. After the Parkers concluded their
case-in-chief during a jury trial, the magistrate judge granted
judgment as a matter of law in favor of the University and the
other named defendants, concluding that the Parkers had failed
to present sufficient evidence to establish that Parker had been
discriminated against by reason of his disability.
Our review of the district court's ruling requires us
to examine in some detail the requirements imposed by the ADA on
-2-
public entities. Finding the evidence sufficient to make out a
prima facie case under the ADA, we vacate the judgment against
the Parkers and remand to the district court for further
proceedings. To avoid any misunderstandings about the
significance of our decision, we also note briefly at the
conclusion of the decision two legal issues never addressed by
the parties: (1) whether Title II of the ADA permits plaintiffs
to recover compensatory damages for a personal injury that
results from a structural defect in a public facility which
prevented the access of a disabled person to the services,
programs, or activities of a public entity; and (2) the
possibility of an Eleventh Amendment sovereign immunity defense
for the University.
II.
We present the evidence in the light most favorable to
the Parkers, the party opposing judgment as a matter of law.
See Lynch v. City of Boston, 180 F.3d 1, 9 (1st Cir. 1999).
The Botanical Gardens of the University of Puerto Rico comprise
300 acres of flora that serve as a laboratory for study,
research, and conservation, and are also open to the general
public for recreational use. The Girl Scouts of America hosted
an awards ceremony at the Monet Garden, a site within the
Botanical Gardens that recreates the original Monet Garden in
-3-
Giverny, France. Parker and his wife, María Jesusa Vázquez,
decided to attend the ceremony because they and their two
daughters were active in the Girl Scouts. A prior stroke having
left Parker without the use of his legs, he planned to move
about the park using his motorized wheelchair.
Upon arrival at the park's front gate, park officials
told Parker and Vázquez that there was handicap parking
available. The park officials instructed those planning to
attend the Girl Scout ceremony to proceed to the Monet Garden.
Parker and Vázquez then drove to the parking lot adjacent to the
park's entrance. Finding that lot full, they proceeded to
another parking area closer to their final destination in the
park. Vázquez asked park security guards to help unload her
husband's wheelchair from the van, and the guards obliged.
Realizing that Parker and Vázquez were headed to the Monet
Garden, one of the guards indicated that there was a pathway
"over there."
Parker took that path and descended toward the Monet
Garden, Vázquez walking several steps in front to guide him, as
was her custom. Parker noticed that the path had loose gravel
on it and was not designed to be a handicapped ramp. As Parker
neared the bottom of the path, his wheelchair flipped and he
landed on his right side. Although Parker could not say what
-4-
caused his fall, and the Parkers presented no eyewitness account
of the fall, Vázquez testified that she immediately turned
around and noticed that there was a two-inch dropoff to the
ground at the end of the paved path at the place where her
husband had fallen and that, in her opinion, this two-inch
dropoff caused the fall. After getting back into his
wheelchair, Parker stayed to attend the awards ceremony, and
then left the Monet Garden by a different path.
Parker subsequently went to the hospital where it was
determined that he had broken his clavicle as a result of the
accident. Prior to the accident, Parker had labored for two
years in physical therapy to regain the use of his right arm
after his debilitating stroke. Through his effort, he had
recovered to the point where he was able to dress himself and to
use the bathroom without his wife's assistance. The accident at
the Monet Garden destroyed all the progress Parker had made
since his stroke, rendering his right arm once again useless.
The Parkers filed suit against the University and the
other named defendants primarily seeking compensatory damages
for injuries suffered as a result of Parker's fall. In
particular, the complaint asserted that the University's
"failure to remedy its violations of the ADA, inter alia, the
lack of signage, the failure to make all ramps flush to the
-5-
ground, and the [park guard's] instructions to use the
noncompliant ramp, provide the Parkers with a cause of action
for all remedies available in law and equity." At trial, five
witnesses testified for the Parkers: Donald Parker, María
Vázquez, their two daughters, and Julie Escudero, a friend of
the Parkers who attended the Girl Scout event with her disabled
son. Of these witnesses, only Parker, Vázquez, and Escudero
were present at the park on the day of the accident. Escudero
testified that she and her son, who was disabled and used a
wheelchair, had reached the Monet Garden using a different route
than the one traveled by Mr. Parker. After the Parkers
concluded their case-in-chief, the district court granted
judgment as a matter of law in favor of the defendants. This
appeal followed.
III.
A. Title II of the ADA
Congress enacted the ADA "to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities." 42
U.S.C. § 12101(b)(1). Title I of the ADA prohibits
discrimination in employment. See id. § 12112. Title III
prohibits discrimination in access to public accommodations like
hotels, restaurants, and theaters. See id. §§ 12182, 12184.
-6-
Title II, the provision at issue here, prohibits discrimination
against persons with disabilities by "public entities,"1 and is
modeled on § 504 of the Rehabilitation Act, Pub. L. No. 93-112,
87 Stat. 355 (1973) (codified as amended in scattered sections
of 29 U.S.C.). 2 In applying Title II, therefore, we rely
interchangeably on decisional law applying § 504. See Theriault
v. Flynn, 162 F.3d 46, 48 n.3 (1st Cir. 1998); Gorman v. Bartch,
152 F.3d 907, 912 (8th Cir. 1998).
Title II incorporates by reference the enforcement
scheme found in § 505 of the Rehabilitation Act. See 42 U.S.C.
§ 12133. Section 505, in turn, authorizes "any person aggrieved
by any act or failure to act" to obtain the "remedies,
procedures, and rights set forth in title VI of the Civil Rights
Act of 1964 [42 U.S.C. § 2000d et seq. (prohibiting
discrimination on the basis of race, color, or national origin
in any program receiving Federal financial assistance)]" 29
1 A "public entity" includes "any department, agency,
special purpose district, or other instrumentality of a State or
States or local government." 42 U.S.C. § 12131(1)(B). The
University of Puerto Rico does not contest that it is a "public
entity."
2 Title II essentially extends the reach of § 504 to
state and local governmental entities that do not receive
federal financial assistance. See 29 U.S.C. § 794(a) (limiting
scope of the Rehabilitation Act to entities receiving Federal
funds).
-7-
U.S.C. § 794a(a)(2).3 Although Title VI does not expressly
authorize a private cause of action, the Supreme Court has found
an implied private cause of action under that statute. See
generally Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582
(1983).
B. Requisites of a Title II Claim
Our task in construing Title II's applicability in the
case at hand is a difficult one. Although Title II of the ADA
took effect on January 26, 1992,4 there is sparse caselaw
interpreting its scope and limits. See Accessibility Under the
Americans With Disabilities Act and Other Laws 118 (Earl B.
Slavitt & Donna J. Pugh eds., ABA 2000) (noting that few cases
have been decided to date under either Title II or Title III of
the ADA). Neither party directs us to any case in which Title
II has supported a claim for damages resulting from a personal
injury to a disabled person that occurred at a location operated
by a public entity. Our research likewise has produced no case
directly on point.
3 Another part of § 505 applies in cases of employment
discrimination and adopts by reference Title VII of the Civil
Rights Act of 1964. See 29 U.S.C. § 794a(a)(1).
4 With certain exceptions, Titles I and II took effect
on January 26, 1992, and Title III took effect on July 26, 1990.
See 5 Cook & Sobieski, Civil Rights Actions ¶ 22A.02, at 22A-26,
22A-28 (2000); First Bank Nat. Assoc. v. FDIC, 79 F.3d 362, 371
n.9 (3d Cir. 1996).
-8-
We begin our analysis with the language of the statute.
Title II provides, inter alia, that
no qualified individual with a disability
shall, by reason of such disability, be
excluded from participation in or be denied
the benefits of the services, programs, or
activities of a public entity, or be
subjected to discrimination by any such
entity.
42 U.S.C. § 12132. Pursuant to the plain language of Title II,
a plaintiff must establish: (1) that he is a qualified
individual with a disability; (2) that he was either excluded
from participation in or denied the benefits of some public
entity's services, programs, or activities or was otherwise
discriminated against; and (3) that such exclusion, denial of
benefits, or discrimination was by reason of the plaintiff's
disability. The University does not dispute that Parker is a
"qualified individual with a disability." See id. § 12131(2)
(defining "qualified individual with a disability" as an
"individual with a disability who, with or without reasonable
modifications . . . meets the essential eligibility requirements
for the receipt of services or the participation in programs or
activities provided by a public entity"). To the extent that
the alleged defect in the path prevented Parker from using his
wheelchair to access the Monet Garden safely, it is self-
evident that it did so "by reason of" his disability.
-9-
That leaves us to decide whether the Parkers
established a prima facie case that Parker was denied access to
the University's "services, programs, or activities" within the
meaning of Title II. Having examined the duties imposed by Title
II on public entities and the evidence presented by the Parkers,
we conclude that they did so.
C. A Public Entity's Duties Under The ADA
The language of Title II does not elaborate on the
obligation of a public entity to an individual with a disability
in the provision of "services, programs, or activities." We must
rely for specifics on the regulations promulgated under Title
II.5 The core "accessibility" standard set forth in Title II's
regulations provides:
[N]o qualified individual with a disability
shall, because a public entity's facilities
are inaccessible to or unusable by
individuals with disabilities, be excluded
from participation in, or be denied the
benefits of the services, programs, or
activities of a public entity, or be
subjected to discrimination by any public
entity.
5 Because Congress explicitly authorized the Attorney
General to promulgate regulations under the ADA, see 42 U.S.C.
§ 12134(a), the regulations "must [be given] legislative and
hence controlling weight unless they are arbitrary, capricious,
or plainly contrary to the statute," United States v. Morton,
467 U.S. 822, 834 (1984).
-10-
28 C.F.R. § 35.149. A public entity must make its service,
program, or activity "when viewed in its entirety," "readily
accessible to and usable by individuals with disabilities," id.
§ 35.150(a), except where compliance would result in a
"fundamental alteration" or an "undue burden," id. §
35.150(a)(3) (stating that the public entity has the burden of
proving that compliance would require a "fundamental alteration"
or "undue burden"). A public entity must "give priority to
those methods that offer services, programs, and activities . .
. in the most integrated setting appropriate." Id. §
34.150(b)(1). The public entity must also provide notice to
individuals with disabilities of the "protections against
discrimination assured them," id. § 35.106, and "disseminate
sufficient information" to those individuals "to inform them of
the rights and protections afforded by the ADA," 56 Fed. Reg.
35694, 35702 (1991). All together, "the program access
requirement of title II should enable individuals with
disabilities to participate in and benefit from the services,
programs, or activities of public entities in all but the most
unusual cases." Id. at 35708.
Addressing specifically access to an "existing
facility," the regulations give a high priority to mobility for
persons in wheelchairs. If "structural changes" are necessary
-11-
to achieve compliance, the regulations provide that "such
changes shall be made within three years of January 26, 1992,"
28 C.F.R. § 35.150(c), and an entity employing more than 50
persons must detail its planned structural changes in a
"transition plan," id. § 35.150(d)(1). "If a public entity has
responsibility or authority over streets, roads, or walkways,
its transition plan shall include a schedule for providing curb
ramps or other sloped areas where pedestrian walks cross curbs
. . . ." Id. § 35.150(d)(2).6 Congress emphasized in enacting
the ADA that "[t]he employment, transportation, and public
accommodations sections of [the ADA] would be meaningless if
people who use wheelchairs were not afforded the opportunity to
travel on and between the streets." H. Rep. No. 101-485
(1990), pt. 2, at 84.
Unlike Title III, however, which requires removal of
architectural barriers whenever to do so would be "readily
achievable," 28 C.F.R. § 36.304, a public entity "is not
required to make structural changes in existing facilities where
other methods are effective in achieving compliance," id. §
6 Title III's regulations similarly emphasize "installing
ramps," and "making curb cuts in sidewalks and entrances." 28
C.F.R. § 36.304.
-12-
35.150(b)(1).7 If one facility is inaccessible, for example, a
pubic entity can achieve compliance with the ADA by moving its
services, programs, or activities to another facility that is
accessible. See United States Dep't of Justice, The Americans
with Disabilities Act: Title II Technical Assistance Manual 10,
19 (1992). Title II's emphasis on "program accessibility"
rather than "facilities accessibility" was intended to ensure
broad access to public services, while, at the same time,
providing public entities with the flexibility to choose how
best to make access available. See Accessibility Under the ADA,
at 53-54; 28 C.F.R. Part 35, App. A § 35.150 (stating that
7 By contrast, Title II's regulations governing "new
construction and alterations" provide that "[n]ewly constructed
or altered street level pedestrian walkways must contain curb
ramps or other sloped areas at intersections to streets, roads,
or highways." 28 C.F.R. § 35.151(e)(2). In completing new
construction or alterations, public entities may comply with one
of two sets of technical accessibility standards: (1) the
Uniform Federal Accessibility Standards (UFAS), promulgated
under § 504 of the Rehabilitation Act, or (2) the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities (ADAAG), accompanying Title III. See Accessibility
Under the ADA, supra, at 87-88. The ADAAG provides, for
example, that any part of an access route with a slope greater
than 1:20 "shall be considered a ramp," and such ramps "shall
have level landings at the bottom and top." See 28 C.F.R. pt.
36, App. A , at 4.8. They further state that "Curb ramps" should
be provided where access routes cross curbs, and "transitions
from ramps to walks, gutters, or streets shall be flush and free
from abrupt changes." Id. at 4.7. We focus in this case on the
regulations governing existing structures because the Parkers
presented no evidence that the path at issue was newly
constructed or altered.
-13-
under Title II, "the concept of program access will continue to
apply with respect to facilities now in existence, because the
cost of retrofitting existing facilities is often prohibitive").
Pursuant to these requirements, the University was
obligated to ensure that each service, program, or activity at
the Botanical Gardens "when viewed in its entirety," was
accessible to individuals with disabilities. One purpose of the
Botanical Gardens is to serve as a venue for group events. The
University holds open the Monet Garden as a place for group
convocations, like the Girl Scouts awards ceremony that Parker
attended. The University, therefore, has a duty to make the
Monet Garden "readily accessible" to and "usable" by individuals
with disabilities. Such access must be provided in the "most
integrated setting appropriate," meaning that the University has
an obligation to ensure that individuals with disabilities--such
as persons using wheelchairs--can travel to and from the Monet
Garden using safe walkways, ramps, and curb cuts. Although the
University is not required to make every passageway in and out
of the Monet Garden accessible, it must provide at least one
route that a person in a wheelchair can use to reach the Monet
Garden safely, absent a defense that excuses such performance.
D. The Parkers' Evidence
-14-
Although Parker could not say what caused his fall, and
the Parkers presented no eyewitness account, Vázquez and
Escudero testified that the fall occurred at the spot on the
path where it dropped two inches abruptly to the ground below.
A jury could infer that this dropoff caused Mr. Parker's
wheelchair to overturn, or forced Parker to alter his course
down the path in such a way that caused his fall. Wheelchairs
do not typically overturn without some intervening cause.
A jury could also conclude that Parker was using the
path intended for wheelchair use. A park guard directed Parker
to use the path at issue, after seeing that Parker would be
traveling by wheelchair. Although there were at least two other
routes to the Monet Garden, there were no signs or other notices
indicating that wheelchair users should take these other paths.
Under these circumstances, a jury could conclude that the two-
inch dropoff at the end of the paved path denied Parker safe
access to the Monet Garden and caused his fall and injury.
In considering the defenses that the University could
offer in response to this prima facie case, we first note that
the claim under Title II is similar in many respects to a tort
claim. See Pandazides v. Virginia Bd. of Educ., 13 F.3d 823,
829 (4th Cir. 1994) (stating that a private cause of action
under § 504, "is essentially a form of statutory tort"); Wolsky
-15-
v. Medical College of Hampton Roads, 1 F.3d 222, 224 (4th Cir.
1993) ("Rehabilitation Act claims are injuries to individuals
and analogous to personal injury claims."); Smith v. Barton, 914
F.2d 1330, 1337 (9th Cir. 1990) (noting that although there were
no discrimination actions at common law, a discrimination action
under the Rehabilitation Act "is most closely analogous to an
18th-century tort action or an action brought to enforce an
express or implied employment contract"). In most instances,
the injury alleged pursuant to Title II of the ADA is exclusion
from participation in, or the denial of the benefits of the
services, programs, or activities of a public entity, because of
discrimination against a person by reason of disability. See,
e.g., Easley v. Snider, 36 F.3d 297 (3d Cir. 1994) (seeking to
enjoin state to include persons with certain types of mental
disabilities in state home care program); Kinney v. Yerusalim,
9 F.3d 1067 (3d Cir. 1993) (seeking to enjoin municipality to
install curb cuts as part of street resurfacing plan); Concerned
Parents to Save Dreher Park Ctr. v. City of West Palm Beach, 846
F. Supp. 986 (S.D. Fla. 1994) (seeking to enjoin municipality
from eliminating certain recreational programs for disabled
persons). Here, however, the injury alleged includes physical
injury as well as the denial of access to a public facility.
-16-
Nevertheless, the inclusion of a physical injury in the
Title II claim does not convert the claim into a traditional
negligence action premised on the violation of a duty owed by a
landowner such as the University to members of the public
generally who are invited on to the premises. The primary
injury alleged and proven under Title II in a case such as this
remains the alleged violation by the University of its statutory
duty to disabled persons to prevent the discriminatory denial of
access to a service, program, or activity. The physical injury
is an additional consequence of the violation of that statutory
duty, which is of a different character than a duty owed to the
general population. That is, the University does not satisfy
the duties imposed by Title II merely by exercising reasonable
care to protect persons with disabilities, along with other
members of the public, from dangerous conditions on the
premises. Rather, the University must act affirmatively to
eliminate barriers on the premises that would otherwise serve to
deny persons with disabilities access to services, programs, or
activities of the University--here, access to the Monet Garden.
Given that the liability issue under Title II is a
discriminatory denial of access, not negligence, the University
could rebut the prima facie case of the Parkers by showing that
-17-
disabled persons using wheelchairs were not denied access to the
Monet Garden. For example, the University could have produced
evidence that, irrespective of the accident on this occasion,
the path at issue was actually safe for wheelchair use, thereby
suggesting that the fall resulted from Mr. Parker's own
negligence rather than a denial of access to disabled persons.
The University might have established that there was another
path to the Monet Garden that was safe for wheelchair use,
properly noted with signs, but Parker and Vázquez missed the
signs and misconstrued the signal of the park guard. Finally,
the University could have argued that providing wheelchair
access to the Monet Garden would require a "fundamental
alteration" or "undue burden."
These defenses were never offered because the trial
court never required the defendants to defend. That ruling was
erroneous and it requires us to vacate and remand.
IV.
As we noted earlier, there were two important legal
issues relevant to this lawsuit that were never raised by the
parties below or on appeal. We raise them here to avoid any
suggestion that our decision implies a resolution of these
issues. We express no opinion on the merits.
-18-
Although Title II does not expressly authorize a
private cause of action, it adopts the remedial scheme of Title
VI of the Civil Rights Act of 1964, under which there is an
implied private cause of action. See Guardians, 463 U.S. at
594-95. However, "the question of what remedies are available
under a statute that provides a private right of action is
'analytically distinct' from the issue of whether such a right
exists in the first place." Franklin v. Gwinnett County Public
Schools, 503 U.S. 60, 65066 (1992). Neither the Supreme Court
nor this circuit has decided whether compensatory damages (other
than backpay) are available under § 504 of the Rehabilitation
Act or Title II. See Consolidated Rail Corp. v. Darrone, 465
U.S. 624, 630-31, 631 n.9, 637 (1984).8 The defendants, however,
have failed to contest the availability of compensatory damages
under Title II, either before the district court or on appeal.
They have waived the right to raise that issue as a defense
during the retrial. cf. United States v. Barnett, 989 F.2d 546,
554 (1st Cir. 1993) ("[A] litigant has an obligation to spell
out his arguments squarely and distinctly, or else forever hold
his peace.").
8 A plaintiff may sue under § 504, and hence also under
Title II, for discriminatory treatment in employment, and, in
that context, might seek backpay. See Consolidated Rail, 465
U.S. at 630.
-19-
We also note that the University may have an Eleventh
Amendment sovereign immunity defense. See University of Alabama
at Birmingham Bd. of Trustees v. Garrett, 120 S. Ct. 1669 (April
17, 2000) (granting certiorari to address whether states have
Eleventh Amendment immunity from claims brought under the ADA);
Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000) (holding
that Congress lacks power to abrogate state sovereign immunity
under the Age Discrimination in Employment Act). However, the
University did not raise the defense in the trial court, has not
argued it on appeal, and we decline to address it sua sponte.
See Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 388
(1998) ("Unless the State raises [sovereign immunity], a court
can ignore it.").
We leave to the district court the question of whether
sovereign immunity can be raised in subsequent proceedings. If
the University asserts this defense, the district court would
then have to determine several questions, including whether the
assertion was timely, cf. Edelman v. Jordan, 414 U.S. 651 (1974)
(noting that sovereign immunity can be raised for the first time
in the Court of Appeals), and whether the state effectively
waived the defense through the University's appearance in the
first trial, cf. Sosna v. Iowa, 419 U.S. 393, 396 n.2 (1975)
(noting that question of whether state waives sovereign immunity
-20-
"by entering a voluntary appearance and defending a suit on the
merits" is one of state law); Justino v. Zayas, 875 F.2d 986,
993 (1st Cir. 1989) (noting that waiver by appearance is not
readily assumed). Finally, the court would have to consider
whether the University of Puerto Rico is an arm of the
Commonwealth for purposes of Eleventh Amendment immunity. See
13 Wright & Miller, Federal Practice and Procedure § 3524, at
145, 160-62 (1984) (noting that most state universities are
"considered arms of the state and therefore immune").
Vacated and remanded to the district court for further
proceedings consistent with this decision.
-21-