Hulihan v. Reg'l Transp. Comm'n of S. Nev.

833 F.Supp.2d 1226

Sharon HULIHAN, Plaintiff,

v.The REGIONAL TRANSPORTATION COMMISSION OF SOUTHERN NEVADA, a Public Entity under State and Federal Statutes and Laidlaw Transit Services, Inc., a Foreign Corporation; and First Transit, Inc., a Foreign Corporation; and Does 1–100, inclusive, Defendants.

No. 2:09–cv–01096–ECR.

United States District Court, D. Nevada.

June 21, 2011.

Sharon Hulihan, Las Vegas, NV, pro se.

Ingrid M. Patin, Baker Law Office, Leann Sanders, Alverson, Taylor, Mortensen & Sanders, Las Vegas, NV, for Defendants.

Order

EDWARD C. REED, District Judge.

This case arises out of injuries suffered by Plaintiff both after being denied access to and while a passenger on Defendants' Paratransit bus system. Plaintiff alleges three causes of action against Defendants: (i) a claim for violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 (the “ADA”); (ii) a claim for violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (“Section 504”); and (iii) a state law claim for negligent failure to train, supervise and manage employees as to Defendants First Transit, Inc. and Laidlaw Transit Services, Inc. only.

I. Factual Background

Plaintiff is an individual residing in Clark County, Nevada with a “disability,” as such term is defined in Title II of the ADA, Section 504, and all other relevant state and federal statutes. (Compl. ¶ 1(# 3).) Plaintiff requires the use of a wheelchair for mobility. Id. Defendant Regional Transportation Commission of Southern Nevada (“RTCSN”) is a public entity organized under the laws of the State of Nevada that has its principal place of business in Las Vegas, Clark County, Nevada and is authorized to transact business as a common carrier in Nevada. ( Id. ¶ 2.) Defendants Laidlaw Transit Services, Inc. (“Laidlaw”) and First Transit, Inc. (“First Transit”) are Delaware corporations doing business in Nevada as common carriers and at all places and times relevant to this case were operating under contract to RTCSN to provide paratransit transit services to disabled individuals. ( Id. ¶ 3.)

Plaintiff alleges that Defendants discriminate against Plaintiff and others similarly situated by:

(i) operating buses that they know or should know lack functional mechanical lifts and tie—down straps needed by wheelchair users and other mobility-impaired riders to board, ride and exit the bus; (ii) failing to provide employees with the training and materials necessary to inspect, maintain, repair and operate such mechanical lifts and tie-down straps;

(iii) neglecting to ensure proper inspection, maintenance and repair of bus wheelchair lifts and tie-down straps and directing or allowing drivers to operate buses with malfunctioning or nonfunctioning wheelchair lifts on fixed route bus lines; and

(iv) neglecting to ensure that pick-up times and places are coordinated based on the RTCSN Paratransit pick-up and drop-off schedule and directing or allowing drivers to “abandon disabled riders at the place appointed for pickups.” ( Id. ¶ 9(a)-(d).)

Plaintiff alleges that the buses operated by Defendants are one of the only available and affordable transit options for Plaintiff and other individuals with disabilities in Clark County. ( Id. ¶ 10.) Defendants operate both buses on fixed routes with fixed schedules and a Paratransit system by which riders may schedule their own pick-ups. ( Id. ¶¶ 9(e), 10–11.)

On or about July 5, 2007, Plaintiff scheduled a pick-up using Defendants' Paratransit system to travel from the Las Vegas Cancer Clinic to her home. ( Id. ¶ 11.) The Paratransit bus did not arrive at 4:50 P.M., the scheduled pick-up time. Plaintiff waited until 5:30 P.M. for the Paratransit bus, and when it did not arrive, began traveling up Alta Drive in her wheelchair. ( Id. ¶¶ 12–13.) Plaintiff asserts that as she was moving along Alta Drive, a Paratransit bus passed her, and the driver of the Paratransit bus refused to stop and pick up Plaintiff or to call for another Paratransit bus. ( Id. ¶ 14.) Plaintiff continued to travel along Alta Drive and stopped at a local business where she fell from her wheelchair while on a non-ADA compliant ramp and was injured, resulting in a “lengthy stay in a medical facility.” ( Id. ¶¶ 14–17.)

On or about October 16, 2007, Defendants' Paratransit bus arrived at Plaintiff's home to transport Plaintiff to her mother's home. ( Id. ¶ 18–19.) Plaintiff alleges that the Paratransit bus driver failed to secure Plaintiff into her wheelchair for the ride, causing her to be ejected from the wheelchair when the Paratransit driver applied the brakes. ( Id. ¶ 20–21.) Plaintiff asserts that paramedics were called to the scene and that two firefighters were required to extricate Plaintiff from underneath the Paratransit bus seats. ( Id. ¶ 22.) Plaintiff was treated for injuries to her leg at Summerlin Hospital and asserts that she continues to suffer from injuries received as a result of this incident. ( Id. ¶ 23.)

Plaintiff alleges that her injuries from Defendants' conduct include, but are not limited to, emotional distress, time lost from education, income from lost work, expenses for alternative transportation and pain and suffering. ( Id. ¶ 45.)

II. Procedural Background

Plaintiff filed her complaint (# 3) on July 3, 2009. Summons was issued as to Defendants (# 5) on the same date. Defendants filed their answer (# 10) to Plaintiff's complaint (# 3) on November 30, 2009. Defendants filed a motion (# 40) for summary judgment on June 28, 2010. Plaintiff opposed (# 45) and Defendants replied (# 46). On August 5, 2010, we issued a minute order (# 47) denying Defendants' motion (# 40) for summary judgment without prejudice and staying the case for sixty days for the purpose of the parties conducting discovery. We further ordered that Defendants may re-file or file another motion for summary judgment within thirty days after the sixty day discovery period ends. (# 47) Defendants renewedtheir motion (# 67) for summary judgment on October 12, 2010. Plaintiff opposed (# 75) and Defendants replied (# 76). The motion is ripe, and we now rule on it.

III. Summary Judgment Standard

Summary judgment allows courts to avoid unnecessary trials where no material factual dispute exists. N.W. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir.1994). The court must view the evidence and the inferences arising therefrom in the light most favorable to the nonmoving party, Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996), and should award summary judgment where no genuine issues of material fact remain in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Judgment as a matter of law is appropriate where there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party. Fed. R. Civ. P. 50(a). Where reasonable minds could differ on the material facts at issue, however, summary judgment should not be granted. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied,516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996).

The moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the party opposing the motion may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing that there exists a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the parties may submit evidence in an inadmissible form—namely, depositions, admissions, interrogatory answers, and affidavits—only evidence which might be admissible at trial may be considered by a trial court in ruling on a motion for summary judgment. Fed.R.Civ.P. 56(c); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988).

In deciding whether to grant summary judgment, a court must take three necessary steps: (1) it must determine whether a fact is material; (2) it must determine whether there exists a genuine issue for the trier of fact, as determined by the documents submitted to the court; and (3) it must consider that evidence in light of the appropriate standard of proof. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Summary judgment is not proper if material factual issues exist for trial. B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir.1999). “As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Disputes over irrelevant or unnecessary facts should not be considered. Id. Where there is a complete failure of proof on an essential element of the nonmoving party's case, all other facts become immaterial, and the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Summary judgment is not a disfavored procedural shortcut, but rather an integral part of the federal rules as a whole. Id.

IV. Defendants' Motion (# 67) for Summary Judgment

A. Plaintiff's First and Second Causes of Action for Violation of the ADA and Section 504

Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or 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. Because Title II of the ADA was modeled after Section 504, “[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act.” Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045, n. 11 (9th Cir.1999); see Coons v....