42 A.3d 212
N.J. Super. Ct. App. Div.2012Background
- Paraplegic plaintiff Lasky sued Moorestown Township for ADA Title II and LAD discrimination based on park inaccessibility; park lacked accessible parking, pathways, and signage observed 2007–2008.
- Plaintiff sought injunctive relief and damages; he did not notify township officials before filing suit.
- Expert Cody testified about feasible improvements and cost (~$9,580) but noted pre-1992 park construction may not require ADA-compliant redesign.
- Township ADA coordinator Schultz explained no pre-lawsuit complaints and planned future improvements funded; interim access depended on plaintiff requesting accommodation.
- Trial court denied directed verdict and judgment notwithstanding; jury found no discrimination; plaintiff appeals asserting legal standards and jury instructions errors.
- Court affirms, applying a fact-intensive, jury-determined standard for reasonable accommodation and deeming discrimination not proven as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the park’s inaccessibility entitled plaintiff to judgment as a matter of law | Lasky asserts disability + inaccessibility automatically proves discrimination | Township provided reasonable access and/or could accommodate; not per se discriminatory | No; issue for the jury to decide based on reasonableness and potential accommodations |
| Whether burden-shifting applies when plaintiff proposes accommodations | Once proposed, defendant must prove proposed methods are not readily achievable | Burden does not shift; under defense of undue burden, alternative means may suffice | Burden did not shift; jury instructed on reasonable accommodations without shifting to defendant |
| Whether the jury instructions properly reflected ADA/LAD standards | Instructions should mandate that proposed accommodations create a positive duty to act | Instructions properly framed to assess reasonableness and availability of alternatives | Proper; trial court properly allowed consideration of alternatives and avoided per se liability |
| Admission of expert testimony on other parks and summation remarks | Experts on other parks and prosecutorial remarks were improperly excluded/curtailed | Exclusion/curative instructions were appropriate and not prejudicial | Admissibility and remarks were properly handled; no reversible error |
Key Cases Cited
- Verdicchio v. Ricca, 179 N.J. 1 (N.J. 2004) (governing standard for Rule 4:40-1/4:40-2 motions; reasonable minds could differ)
- Estate of Nicolas v. Ocean Plaza Condo. Assoc., 388 N.J.Super. 571 (App.Div. 2006) (reasonable parking accommodation issue; jury must decide reasonableness)
- Franek v. Tomahawk Lake Resort, 333 N.J.Super. 206 (App.Div. 2000) (public accommodation discrimination; reasonableness of accommodation; evidence viewed by jury)
- Hall v. St. Joseph's Hosp., 343 N.J.Super. 88 (App.Div. 2001) (affirmative defense vs. burden-shifting in reasonable accommodation)
- Weinreich v. L.A. County Metro. Transp. Auth., 114 F.3d 976 (9th Cir. 1997) (elements of Title II discrimination standard)
- Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998) (Title II reasonable accommodations; burden considerations)
- Pierce v. County of Orange, 526 F.3d 1190 (9th Cir.) (public entity may rebut prima facie case by showing undue burden or fundamental alteration)
- Brown v. County of Nassau, 736 F.Supp.2d 602 (E.D.N.Y. 2010) (court's approach to accessibility of facilities; jury issues)