The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This civil action is before the Court on defendant's Motion for Summary Judgment [Doc. 24; see also Doc. 25]. Plaintiffs responded in opposition [Doc. 34; see also Docs. 35; 36]; defendant filed a reply [Doc. 37]; and plaintiffs filed a sur-reply [Doc. 49; see also Docs. 72; 72-2; 78; 115]. Thus, this matter is now ripe for determination. The Court has carefully considered the pending motion, along with the parties' briefs, affidavits, expert reports, and other relevant filings. For the reasons set forth herein, defendant's motion for summary judgment [Doc. 24] will be granted in part and denied in part.
As the Court is required to do in reviewing a motion for summary judgment, all facts will be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Plaintiff Megan Allen has severe cerebral palsy and uses a power wheelchair for mobility. Plaintiffs Walter Allen and Linda Allen are Megan Allen's parents. Defendant Village Partners, L.P. is the owner and/or operator of The Village, a shopping center located at 634 Parkway, Gatlinburg, Tennessee 37738. Plaintiffs have visited The Village on several occasions, including during a trip to Gatlinburg, Tennessee from February 18-20, 2005, and desire to visit it again in the future. Plaintiffs claim that defendant discriminated and continues to discriminate against plaintiff Megan Allen in violation of the Americans with Disabilities Act ("ADA") by failing to provide full and equal access to its facilities, programs, goods, and services. Plaintiffs also claim that defendant engaged in an unfair act or practice in violation of Tennessee Consumer Protection Act ("TCPA"). Plaintiffs seek declaratory and injunctive relief, an award of a reasonable amount of damages and attorney fees, court costs, and litigation expenses.
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id. To defeat a motion for summary judgment, the opposing party "may not rely merely on allegations or denials in its own pleading; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e).
The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson, 477 U.S. at 249. Thus, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.
Defendant moves for summary judgment on the ground that plaintiffs' claims are barred by the applicable statutes of limitations, plaintiffs' claims under the ADA fail because plaintiffs cannot show that improvements required to make The Village wheelchair assessable are readily achievable, and plaintiffs cannot sustain a claim under the TCPA.
A. Statute of Limitations
Claims under both the ADA and the TCPA have one year statutes of limitations. See Tenn. Code Ann. §§ 28-3-104 (ADA); 47-18-110 (TCPA). Plaintiffs' amended complaint states that Walter, Linda, and Megan Allen all visited The Village during a February 18-20, 2005 trip to Gatlinburg, Tennessee. This statement is supported by Walter Allen's and Megan Allen's affidavits. [Docs. 35-2; 49-2.] Plaintiffs filed this action on February 13, 2006. Accordingly, taking the facts ...