UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN HARRIS,

Plaintiff,

CASE NO. 14-CV-13453

v. HONORABLE GEORGE CARAM STEEH

PORT HURON CHARTER TOWNSHIP,

Defendant.

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OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL

SUMMARY JUDGMENT (DOC. #20) AND GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT (DOC. #15) AND DISMISSING CASE

Plaintiff John Harris is disabled and requires the use of a motorized scooter to

ambulate. On September 25, 2013, plaintiff visited Bakersfield Park, a park owned and

operated by the defendant Port Huron Charter Township, with his family. He alleges that

while using his scooter to exit a boat ramp connected to a floating canoe and kayak launch,

his scooter rolled off of an unmarked and unguarded portion of the ramp causing him to fall

several inches to the ground and suffer serious injuries. The complaint is in two counts:

Count I- Violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101; and

Count II- Violation of Michigan’s Persons With Disabilities Civil Rights Act (PWDCRA),

Mich. Comp. Laws § 37.1302. Both claims are based on plaintiff’s argument that the ramp

was not in compliance with Department of Justice (DOJ) regulations. Plaintiff seeks money

damages.

Defendant contends that plaintiff did not fall from a boat “ramp.” Defendant argues

that plaintiff was using his motorized scooter on the “accessible route” serving a floating

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boarding pier, and, therefore, the DOJ regulations that apply to ramps do not apply to this

case. Moreover, defendant argues that plaintiff has not offered any evidence of intentional

discrimination that would entitle him to compensatory damages.

Now before the court are cross motions for summary judgment. Plaintiff filed a

partial motion for summary judgment as to Count I, only. (Doc. #20). Defendant seeks

summary judgment on all claims. (Doc. #15). The court held oral argument on August 31,

2015. For the reasons that follow, plaintiff’s motion will be denied and defendant’s motion

will be granted.

I. BACKGROUND

Plaintiff is a 49-year-old male suffering from multiple disabilities that require him to

use a motorized scooter. He was using his scooter when he visited Bakersfield Park with

his family on September 25, 2013. John Emig, Jr., an engineer and the project manager

for the Bakersfield Park project, explained that defendant’s intent in developing the park

“was to provide a barrier free facility while preserving the property on the Black River for

public recreational use.” (Emig Aff. ¶ 15).

In accordance with defendant’s intent for a barrier free facility, Bakersfield Park is

equipped with a floating canoe and kayak launch meant to be accessible to people of all

abilities. A sign is displayed at the park explaining the launch. The sign states, in relevant

part,

Use of this Canoe and Kayak Launch is Free.

This floating Canoe & Kayak Launch was developed by the St. Clair County

Parks and Recreation Commission under an Access to Recreation grant

funded by the Kellogg Foundation through the St. Clair County Community

Foundation.

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The goal of the grant was to design, develop and build universally accessible

recreation facilities for residents and guests of all abilities. In the case of this

launch system, our goal is to have a facility that makes launching and

retrieving canoes and kayaks easy for paddlers of all abilities.

This launch was purchased with St. Clair County Parks and Recreation

Milage funds. Additional launches will be installed at sites throughout St.

Clair County in the coming years. All sites will have to provide an accessible,

paved route from the parking area to the launch.

(Doc. #20-4 at 2).

Plaintiff and his wife accessed the canoe and kayak launch through the paved route

from the parking lot area around 7:00 p.m. as it was starting to get dark. (Pl’s. Dep. Tr.

23:21-24:23; 25:13-24). After spending approximately five minutes on the floating canoe

and kayak launch, plaintiff and his wife returned on the paved route the same way they

originally had accessed the floating launch. (Pl’s. Dep. Tr. 24:25; 26:8-11). As plaintiff

approached an area on the paved route that did not have rails, he turned to his right and

“fell off” the route, which was elevated between 16 and 17 inches from the ground, falling

off of his scooter. (Pl’s. Dep. Tr. 27:8-22). The scooter landed on his right leg. (Pl’s. Dep.

Tr. 28:15-16). Plaintiff was taken by EMS to Port Huron Hospital and underwent surgery

for a broken hip. 

As can be seen in the pictures of the canoe and kayak launch accompanying the

parties’ papers, the elevated concrete abutment is connected to a gangway secured by rails

on both sides, which connects to the boarding pier. On both sides of the concrete

abutment are boat launch ramps. The “gangway and floating pier were selected rather

than a fixed structure to facilitate ease of access into canoes and kayaks by disabled

individuals when the water level fluctuates. The gangway and floating boarding pier are

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removed seasonally.” (Emig Aff. ¶ 22). Plaintiff had made his way back up the gangway

and fell from the side of the concrete abutment onto the boat launch ramp.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) empowers the court to render summary

judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law." See

Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed

the court's use of summary judgment as an integral part of the fair and efficient

administration of justice. The procedure is not a disfavored procedural shortcut. Celotex

Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox v. Kentucky Dep’t of Transp., 53

F.3d 146, 149 (6th Cir. 1995).

The standard for determining whether summary judgment is appropriate is "'whether

the evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.'" Amway Distrib. Benefits

Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all reasonable inferences

must be construed in the light most favorable to the non-moving party. Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532

(6th Cir. 2001). "[T]he mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-

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48 (emphasis in original); see also Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900,

907 (6th Cir. 2001).

If the movant establishes by use of the material specified in Rule 56(c) that there is

no genuine issue of material fact and that it is entitled to judgment as a matter of law, the

opposing party must come forward with "specific facts showing that there is a genuine issue

for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean

v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in

the non-movant's pleadings will not meet this burden, nor will a mere scintilla of evidence

supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be

evidence from which a jury could reasonably find for the non-movant. McLean, 224 F.3d

at 800 (citing Anderson, 477 U.S. at 252).

III. ANALYSIS

A. The ADA Claim

Count I of plaintiff’s complaint alleges a violation of the ADA, 42 U.S.C. § 12101. 

Plaintiff contends “[t]hat the ramp from which [he] fell failed to provide proper access/egress

for persons with disabilities as required under the [ADA] to wit; the ramp failed to contain

proper warnings or guards to protect persons using wheelchairs and with disabilities who

were using the ramp.” (Compl. ¶ 10). Plaintiff cites section 4 of the 1991 Americans with

Disabilities Act Accessibility Guidelines (“ADAAG”), which states, in part:

4.8.5 Handrails. If a ramp run has a rise greater than 6 in (150 mm) or a

horizontal projection greater than 72 in (1830 mm), then it shall have

handrails on both sides.

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4.8.7 Edge Protection. Ramps and landings with drop-offs shall have curbs,

walls, railings, or projecting surfaces that prevent people from slipping off the

ramp. Curbs shall be a minimum of 2 in (50mm) high. . . .

Because plaintiff characterizes the concrete abutment where he fell as a “ramp,” he argues

that he is entitled to summary judgment on the ADA claim because the ramp does not

comply with section 4 of the 1991 ADAAG.

Defendant opposes plaintiff’s request for summary judgment and seeks summary

judgment on both the ADA and PWDCRA claims in its favor. Defendant argues that it does

not matter whether the 1991 ADAAG were followed because those guidelines only apply

to ramps; however, defendant contends that boat launches are not ramps and that boat

launches are exempt from the 1991 ramp guidelines per subsequent regulations. In any

event, defendant argues that it is entitled to summary judgment because plaintiff has failed

to proffer any evidence of intentional discrimination.

The court does not resolve the parties’ differing arguments as it relates to whether

the canoe and kayak launch contains a “ramp,” and, if so, whether it is in compliance with

DOJ regulations. Plaintiff conceded at oral argument that, if the law requires proof of

intentional discrimination, his ADA claim cannot succeed because he has not shown

intentional discrimination. As explained below, the ADA requires a showing of intentional

discrimination. 

The ADA was enacted “with the noble purpose of ‘provid[ing] a clear and

comprehensive national mandate for the elimination of discrimination against individuals

with disabilities.’” Tucker v. Tenn., 539 F.3d 526, 531 (6th Cir. 2008) (citation omitted). Title

II of the ADA “forbids discrimination against disabled individuals in . . . public services

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. . . .” PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (citing 42 U.S.C. §§

12131–12165). Specifically, Title II provides 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. “The Act grants the Attorney

General authority to promulgate regulations to implement its provisions.” Ability Ctr. of

Greater Toledo v. City of Sandusky, 385 F.3d 901, 904 (6th Cir. 2004) (citations omitted). 

Pursuant to this authority, the Attorney General adopted 28 C.F.R. § 35.151, providing that

facilities constructed after January 26, 1992 by or on behalf of a public entity “shall be

designed and constructed in such manner that the facility or part of the facility is readily

accessible to and usable by individuals with disabilities[.]” 28 C.F.R. § 35.151(1).

To establish a prima facie case of discrimination under Title II of the ADA, the

plaintiff must prove: “‘(1) [he] has a disability; (2) [he] is otherwise qualified; and (3) [he] is

being excluded from participation in, being denied the benefits of, or being subjected to

discrimination . . . because of [his] disability.’” Tucker, 539 F.3d at 532 (quoting Dillery v.

City of Sandusky, 398 F.3d 562, 567 (6th Cir. 2005)). Moreover, the plaintiff must show the

discrimination was “intentionally directed toward him . . . in particular.” Id. (citing Dillery,

398 F.3d at 568) (emphasis in original). If the plaintiff meets his burden in establishing a

prima facie case, the burden shifts to the defendant “to show that the accommodation

provided was . . . effective. . . .” Id. (citation omitted).

Assuming that the route to the canoe and kayak launch discriminates against

disabled persons, plaintiff has not offered any evidence that defendant intentionally

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discriminated against him specifically. Nor does he seek injunctive relief for ADA noncompliance. Therefore, summary judgment is appropriate.

To establish discrimination “because of” disability, a plaintiff is required to establish

that, but-for the disability, the discrimination would not have occurred. Lewis v. Humboldt

Acquisition Corp., Inc., 681 F.3d 312, 321 (6th Cir. 2012) (en banc). However, to prevail

on his claim, the plaintiff must demonstrate that defendant intentionally discriminated

against him specifically, not all disabled persons generally. Dillery, 398 F.3d at 568. 

Plaintiff has failed to proffer any evidence on this point to survive summary judgment.

The Sixth Circuit’s decision in Dillery is instructive. In that case, the plaintiff used

a wheelchair or motorized scooter to get around because of a disability. 398 F.3d at 564. 

The plaintiff brought suit against the City of Sandusky alleging that the city violated the ADA

“by failing to install proper curb cuts, such that [she] was forced to ride her wheelchair in

the street instead of the sidewalk.” Id. at 565. The plaintiff argued that the city intentionally

discriminated against her in violation of the ADA because “(1) the City failed to install

proper curb cuts and sidewalks; (2) the City failed to listen to her complaints about the

inaccessibility of the streets and curbs and the City’s police officers stopped her because

she rode her wheelchair in the street; and (3) the City failed to train its officers about the

ADA.” Id. at 567–68.

The Sixth Circuit in Dillery affirmed the district court’s grant of summary judgment

to the defendant on the basis that the plaintiff did not demonstrate that the city intentionally

discriminated against her. The court explained: 

The failure of Sandusky to install handicapped-accessible sidewalks and to

train its employees about the ADA affects all disabled persons, not just

Dillery. Thus, Dillery cannot demonstrate that Sandusky discriminated

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against her specifically by failing to undertake these actions. “[A]cts and

omissions which have a disparate impact on disabled persons in general

[are] not specific acts of intentional discrimination against [the plaintiff] in

particular.” Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997).

Id. at 568.

This case is no different than Dillery. Plaintiff seeks damages for an alleged ADA

violation that disparately impacts disabled persons generally. See Tucker, 539 F.3d at 532

(citing Tyler for the proposition that “[a]cts and omissions which have a disparate impact

on disabled persons in general [are] not specific acts of intentional discrimination against

[the plaintiff] in particular.”) (internal quotation marks omitted). Plaintiff has not proffered

any evidence to show that defendant intentionally discriminated against him personally in

designing and constructing the canoe and kayak launch. Plaintiff’s failure to point to

specific acts of intentional discrimination by defendant defeats his ADA claim. Summary

judgment will be granted in favor of defendant.

Although plaintiff is correct that Sixth Circuit case law had held that compensatory

damages are available for violations of Title II of the ADA, see Johnson v. City of Saline,

151 F.3d 564, 573 (6th Cir. 1998), such damages are only available for intentional

violations of the ADA. See Tucker v. Tennessee, 443 F.Supp.2d 971, 973 (W.D. Tenn.

2006) (collecting cases). Barring compensatory damages absent a showing of intentional

discrimination is in line with Dillery’s rationale that a plaintiff may not maintain a Title II ADA

claim based on disparate treatment affecting disabled persons generally. Defendant is

entitled to summary judgment on the ADA claim.

B. The PWDCRA Claim

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Defendant also seeks summary judgment on the PWDCRA claim. Defendant

argues that plaintiff’s PWDCRA claim is based solely on an alleged violation of the 1991

ADAAG, and, thus, does not establish a freestanding PWDCRA claim. Plaintiff’s response

brief does not address defendant’s argument. Plaintiff addresses only the claim under the

ADA. Despite plaintiff’s failure to respond to defendant’s argument, the court addresses

the PWDCRA claim and concludes that summary judgment is appropriate.

The Sixth Circuit has explained that “[t]he PWDCRA ‘substantially mirrors the ADA,

and resolution of a plaintiff’s ADA claim will generally, though not always, resolve the

plaintiff’s PWDCRA claim.’” Donald v. Sybra, Inc., 667 F.3d 757, 764 (6th Cir. 2012)

(citation omitted); see also Curry v. Cyprian Ctr., 17 F. App’x 339, 341 (6th Cir. 2001)

(“Because ‘[c]laims of handicap discrimination under Michigan law essentially track those

under federal law[,] . . . resolution of [Plaintiff’s] claim under the federal statute also

dispenses with [her] claim under the [PWDCRA].’”) (citing Monette v. Elec. Data Sys. Corp.,

90 F.3d 1173, 1178 n.3 (6th Cir. 1996)). In Donald, the court reasoned that the plaintiff did

not provide argument as to why the ADA and PWDCRA claims should be treated

separately, nor did the court’s review of the record indicate that the claims should be

separately treated. So too is the case here. Plaintiff has not indicated that the ADA and

PWDCRA claims should be treated differently, and the court sees no reason why the claims

deserve different treatment. In fact, plaintiff’s failure to address the PWDCRA claim

supports the position that the claim mirrors the ADA claim. Essentially, plaintiff has failed

to establish a genuine issue of material fact that defendant intentionally discriminated

against him. Therefore, summary judgment will be granted to defendant. 

IV. CONCLUSION

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For the reasons stated above, plaintiff’s motion for partial summary judgment is

DENIED and defendant’s motion for summary judgment is GRANTED. This case is

DISMISSED. 

IT IS SO ORDERED.

Dated: September 15, 2015

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

September 15, 2015, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

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