Weisen v. Northern Tier Retail LLC

Background

Jeffrey Weisen alleged that Northern Tier Retail LLC doing business as Speedway and Agree Bloomington MN, LLC violated Title III of the Americans with Disabilities Act at the Bloomington Speedway, a convenience store and gas station. The opinion states that Weisen uses a wheelchair and that the parties did not dispute that the store was a place of public accommodation or that Weisen was disabled.

Weisen alleged ten architectural barriers, including excessive slopes or obstructions in accessible parking areas, a deteriorated parking-lot surface, a narrow exterior access route, inaccessible seating and self-service features, and bathroom fixtures positioned too high or too far away. He also alleged that the defendants’ policies, practices, and procedures were not adequate to ensure ongoing compliance with the Act.

Weisen said he and his wife stopped at the Bloomington Speedway on Labor Day in 2019. He intended to enter but said exterior barriers deterred him, so he did not leave the car. He and his wife also testified that they returned on November 21, 2019, entered the store, and spoke with a clerk. Speedway’s surveillance video did not show Weisen, his wife, their red Dodge Charger, or the events they described.

The defendants later made exterior and interior changes at the store. Their expert, Julee Quarve-Peterson, opined that the store was then compliant with the Act.

Evidentiary motions

Weisen moved to strike the November 21 surveillance video, require disclosure of the clerk’s identity, and obtain permission to depose the clerk. He argued that the video was disclosed late, that the clerk had not been identified, and that the video was not authenticated.

The court rejected those arguments. It concluded that the video was offered to contradict Weisen’s and his wife’s testimony about being at the store on November 21, making it impeachment evidence. The court also held that any late disclosure was harmless because Weisen knew whether he had been at the store and did not seek a continuance or schedule change to depose the clerk. The court found that the general counsel’s declaration sufficiently supported authentication of the video. It also concluded that Weisen had not shown good cause for changing the discovery schedule to identify and depose the clerk. The motion to strike and obtain the clerk’s identity was denied.

Speedway moved to exclude the testimony of Weisen’s expert, Craig Seifert. Under Federal Rule of Evidence 702, expert testimony must be useful, supported by sufficient facts or data, based on reliable principles and methods, and reliably applied.

The court found that Weisen had not shown that Seifert’s methods were reliable. The record indicated that Seifert followed directions from Weisen’s attorneys about what and where to measure, how many measurements to take, and whether to take photographs. The court also relied on Quarve-Peterson’s observations that Seifert may have used a slope-measuring device improperly, failed to calibrate it at the store, measured locations outside the relevant areas, and failed to document some measurements.

The court also found Seifert unqualified to offer expert opinions about ADA compliance or ADA-compliance measurements. Although he had investigated more than 150 ADA cases, those investigations were conducted as part of litigation and for Weisen’s attorneys. The court found that his remaining experience did not establish sufficient training or experience outside those litigation-related investigations. Speedway’s motion to exclude expert testimony was granted.

Summary judgment

Weisen sought partial summary judgment concerning the slope of an accessible parking space or access aisle and the height of a self-service drinking station. Speedway sought summary judgment based on standing, mootness, and alleged destruction or loss of evidence.

Standing is the requirement that a plaintiff show an actual or imminent injury caused by the challenged conduct that a favorable decision could remedy. For a Title III ADA claim seeking an injunction, a plaintiff must show that an architectural barrier caused an actual injury and that the plaintiff intends to return to the facility in the imminent future.

The court found a genuine dispute about whether Weisen intended to enter the store on Labor Day 2019 and was deterred by exterior barriers. It also found a genuine dispute about whether he intended to return, despite evidence that he lived seventy-six miles away, because he said he routinely passed the store while traveling to visit friends and had submitted evidence of past visits. The court therefore denied Speedway’s standing arguments concerning exterior barriers and denied Weisen’s motion for partial summary judgment because he would still have to establish standing at trial.

The court reached a different conclusion for the interior barriers. It held that Weisen did not enter the store on Labor Day 2019 and that the surveillance video established that he was not at the store on November 21, 2019. Because he had not entered the store, he lacked standing to challenge the alleged interior barriers. The court therefore granted summary judgment on claims concerning those barriers.

The court separately held that claims involving the exterior barriers were moot because Speedway had remedied the alleged violations. The court found that the store was compliant regarding the slope of the accessible parking space and access aisle, the connection and obstruction of the parking-stall access aisle, the parking-lot surface, and the width of the exterior access route. It also held that Weisen’s allegations about Speedway’s policies, practices, and procedures were moot because they relied on architectural barriers that had been remedied.

On evidence spoliation, Speedway argued that Weisen caused the loss of surveillance footage by refusing to provide the date and time of his first visit. The court rejected this argument because Speedway did not claim that Weisen intentionally destroyed evidence, Weisen did not control the footage, and Speedway provided no authority supporting a spoliation sanction for losing an opportunity to preserve evidence within Speedway’s own control.

Attorney fees and final disposition

The court denied Speedway’s request for attorney fees and costs. It explained that a prevailing defendant in an ADA case may recover fees only in narrow circumstances, such as when a claim was frivolous, unreasonable, or groundless, and Speedway had not argued that those circumstances existed.

Judge Joan N. Ericksen ordered that Weisen’s claims be remanded to the Fourth Judicial District of the State of Minnesota, Hennepin County. The order specifically denied Weisen’s motion to strike and obtain the clerk’s identity, granted Speedway’s motion to exclude expert testimony, denied Weisen’s motion for partial summary judgment, and granted Speedway’s motion for summary judgment, with Weisen’s claims remanded to state court.