Parker v. Universidad De Puerto Rico

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

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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

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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

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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

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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.

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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).

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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).

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 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.

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 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).

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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

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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.

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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.

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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

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 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

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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.

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 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

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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.

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 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.

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 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

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"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.

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