Weisen v. Northern Tier Retail LLC

Background

Jeffrey Weisen sued Northern Tier Retail LLC, doing business as Speedway, under Title III of the Americans with Disabilities Act. The claims concerned the Cottage Grove Speedway, a convenience store and gas station. The opinion states that the facility is a place of public accommodation and that Weisen is disabled and dependent on a wheelchair.

Weisen alleged eleven architectural barriers: slopes involving the accessible parking space, access aisle, and curb ramp; the curb-ramp landing’s size; curb-ramp flares; the height of gas-pump controls; the height of a self-service shelf; restroom maneuvering clearance; the location of a toilet-paper dispenser; and the height of a bathroom mirror. He also alleged that Speedway’s policies, procedures, and practices did not ensure ongoing compliance with the ADA.

Weisen and his wife visited the facility in July or August 2019. Weisen intended to enter but remained in the car after they observed exterior barriers. His wife entered the store and later told him about possible interior barriers. Speedway later renovated the facility, and its expert stated that it was then ADA-compliant.

Expert-testimony rulings

The court ruled that Speedway could not rely on information about the curb-ramp landing’s measurements that its expert disclosed after the expert-disclosure deadline. Federal Rule of Civil Procedure 26 required disclosure of the facts and data considered by the expert, and Speedway did not argue that the late disclosure was substantially justified or harmless.

The court granted Speedway’s motion to exclude Craig Seifert’s expert testimony under Federal Rule of Evidence 702. The court found that Weisen had not shown that Seifert’s measurement methods were reliable. Seifert testified that he followed the attorneys’ instructions about where and how to measure, how many measurements to take, and what to include in his report. The court also relied on evidence that Seifert used a slope-measuring device improperly, took readings in questionable locations, did not take photographs of certain measurements, and failed to measure some relevant features.

The court further found that Seifert was not qualified to give expert opinions about ADA compliance or ADA compliance measurements. Although he had investigated more than 150 ADA cases, each investigation was connected to litigation and was performed for Weisen’s attorneys. The opinion also states that Seifert had attended one seminar concerning ADA accessibility laws and had founded two disability-advocacy organizations, but Weisen presented no evidence that Seifert’s work for those organizations extended beyond litigation-related investigations.

Summary-judgment rulings

The court denied Speedway’s standing arguments concerning the exterior barriers. It found a genuine dispute of material fact about whether Weisen intended to enter the facility and was deterred by the exterior barriers. The court also found a genuine dispute about whether Weisen intended to return. Although his distance from the facility weighed against him, his claimed repeated travel past the facility and prior visits could support an intent to return.

The court granted summary judgment on Weisen’s claims concerning the interior barriers because Weisen did not enter the store and therefore lacked standing to challenge barriers he did not encounter. These interior claims involved the self-service shelf, toilet-compartment maneuvering clearance, toilet-paper dispenser, and bathroom mirror.

The court held that several exterior claims were moot because Speedway’s renovations or current conditions provided the requested injunctive relief. Those claims involved the accessible parking space and access aisle, the running slope and cross slope of the curb ramp, the slope of the curb-ramp landing, the curb-ramp flares, and the gas-pump controls. Weisen did not dispute some of the expert’s findings, and he did not contest that the gas-pump claim was moot.

The court did not find the claim about the curb-ramp landing’s width and length moot. Because the late measurement information could not be used on summary judgment and the timely photographs raised questions about the landing’s dimensions, a genuine dispute of material fact remained. The court also found a related factual dispute about whether Speedway’s policies, procedures, and practices complied with the ADA.

The court granted summary judgment on the claim concerning the adjacent surface where the city-owned curb ramp meets the street. Weisen did not dispute Speedway’s evidence that the City of Cottage Grove owned and operated that surface, while the ADA provision at issue applies to entities that own, lease, or operate places of public accommodation.

Spoliation and fees

The court rejected Speedway’s request for summary judgment as a sanction for evidence spoliation. Speedway argued that Weisen failed to provide the date and time of his visit, causing Speedway to lose the opportunity to preserve surveillance footage. The court explained that spoliation required intentional destruction and that Speedway did not claim Weisen intentionally destroyed the footage or control it. The court also declined to consider a possible adverse-inference instruction at that stage.

The court denied Speedway’s request for attorney fees and costs without prejudice. The court reasoned that Speedway was not entitled to prevailing-party fees at that point because the claims concerning the curb-ramp landing and Speedway’s policies, procedures, and practices remained unresolved.

Disposition

Speedway’s Motion for Summary Judgment was GRANTED IN PART and DENIED IN PART. Summary judgment was granted on the claims concerning the adjacent surface at the curb-ramp-to-street transition, and those claims were DISMISSED WITH PREJUDICE. Summary judgment was granted on the claims concerning the accessible parking space and access aisle, the running slope and cross slope of the curb ramp, the slope of the curb-ramp landing, the curb-ramp flares, the gas-pump controls, and the specified interior barriers; those claims were REMANDED to the Tenth Judicial District of Minnesota, Washington County. Summary judgment was denied on the claims concerning the curb-ramp landing’s size and Speedway’s policies, procedures, and practices.

Weisen’s Motion for Partial Summary Judgment was DENIED. Speedway’s Motion to Exclude Expert Testimony was GRANTED. Speedway’s request for attorney fees and costs was denied without prejudice. Judge Joan N. Ericksen signed the order on June 29, 2021.