Franek v. Tomahawk Lake Resort

754 A.2d 1237, 333 N.J. Super. 206
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 20, 2000
StatusPublished
Cited by27 cases

This text of 754 A.2d 1237 (Franek v. Tomahawk Lake Resort) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franek v. Tomahawk Lake Resort, 754 A.2d 1237, 333 N.J. Super. 206 (N.J. Ct. App. 2000).

Opinion

754 A.2d 1237 (2000)
333 N.J. Super. 206

Lorraine FRANEK, as Administrator of the Estate of Millie Della Volpe, Plaintiff-Appellant,
v.
TOMAHAWK LAKE RESORT, Chester J. Wallace, Tomahawk Lake, Inc., and Fun Valley, Inc., Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued May 18, 2000 (by telephone).
Decided July 20, 2000.

*1239 Edward Kopelson, Morristown, for plaintiff-appellant (Kopelson & Westreich, attorneys; Mr. Kopelson and Robert Westreich, on the brief).

Deirdre Rafferty Thompson, for defendants-respondents.

Before Judges STERN, KESTIN and STEINBERG.

*1238 The opinion the court was delivered by KESTIN, J.A.D.

Plaintiff appeals from a Law Division order dismissing the complaint (with jury demand) which, in a single count, alleged unlawful discrimination in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42(LAD). We reverse and remand.

The dismissal eventuated from a grant of defendants' motion for summary judgment. Accordingly, we view the facts in the light most favorable to plaintiff, the respondent on the motion, to determine whether a genuine issue of material fact exists in respect of which plaintiff is entitled to plenary consideration by a finder of fact. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540, 666 A.2d 146 (1995).

On July 10, 1994, Millie Della Volpe, then eighty-three years old and since deceased, visited Tomahawk Lake Resort to participate in a family picnic. The resort, a privately-owned recreational facility available to the public for such activities and subject to the public accommodations provisions of the LAD, is operated by defendant Tomahawk Lake, Inc.

*1240 Both of Della Volpe's legs had been amputated and she was confined to a wheelchair. According to the deposition testimony of plaintiff's witnesses in this matter and in an earlier, related federal court matter, Della Volpe had been driven to the picnic by her daughter, Lorraine Franek. The complaint alleges that another daughter, Delores Otero, had telephoned Tomahawk Lake Resort in advance and had "inquired about wheelchair accessibility for ... Volpe, and was informed that there were facilities for persons with physical disabilities[.]" When Della Volpe and Franek arrived, however, they found that there were no facilities on the premises for the handicapped and no handicapped-parking spaces. Otero, who had been waiting for them, asked a parking attendant if the car might drive beyond the parking field to the entrance to the grounds, or even closer to the picnic area, to allow her mother and the wheelchair to be dropped off.

The parking attendant radioed defendant Chester Wallace for permission. Wallace, who was supervising parking at the time, is the majority shareholder and sole officer of defendant Fun Valley, Inc., which owns the property on which the recreational facility is located. Both the property and the facility are owned and operated as a Wallace family business by corporate entities belonging to Chester Wallace, his wife and his son.

Wallace denied the radioed request. Otero testified that she then walked down the hill to speak with him directly concerning her mother's disability and the need for special consideration. She alleged that Wallace responded: "I don't want those kind of people here." [*] Otero testified further that "they let my mother off [some distance away], my brother-in-law took out the chair, put her in the chair and we went down, we walked it there, and then we proceeded to walk up the hill to where the tables were."

Millie Della Volpe also testified in depositions on January 31, 1996, when she was eighty-six years old. She said that she had witnessed an argument but, because she was seated in the vehicle, she could not hear what was being said. About a halfhour later, she learned of the details and was "very hurt when I heard about the argument was on account of me, and I said, see, I shouldn't have come. Had I not been here, this argument wouldn't have started." She also testified that after learning the details, she was unhappy to be at the facility and wished to leave early. "[Y]ou go to a place to have a good time and it starts out with an argument for no good reason at all." She concluded her testimony by noting that she hadn't been back to Tomahawk Lake since.

Franek testified that although her mother could not hear the conversation between Otero and Wallace, she knew what it was about, and indicated, while still in the car, that she was upset with the difficulty engendered by her physical limitations.

The complaint also alleges that during the course of her stay at the picnic, Della Volpe attempted to use the bathroom facilities, but they "were not accessible by wheelchair users ... and she had to be carried into the bathroom." The complaint goes on to characterize the facility as not amenable to use by "mobility-impaired persons", and to allege that defendants acted in disregard of Della Volpe's rights and caused her mental anguish and humiliation.

The trial court's reasons for granting defendant's motion for summary judgment and dismissing the complaint were expressed in a written opinion. The conclusion was stated at the outset: "[T]he court is not satisfied that the defendant's conduct, when viewed in the light most favorable to the plaintiff, would permit a rational factfinder to resolve this matter in favor of plaintiff." (Citing Brill, supra, 142 N.J. at 540, 666 A.2d 146.) After stating the *1241 facts, the motion judge described the positions of the parties as follows:

[P]laintiff argues that "There is no doubt that saying to a disabled person (or a racial or religious minority) `we don't want your kind here' constitutes an act of discrimination." The defendants argue that Millie Della Volpe had full and equal access to the Tomahawk Lake facilities and that there was no violation of the LAD.

The opinion went on to note that an earlier claim under § 12181 of the Americans with Disabilities Act, 42 U.S.C.A. §§ 12101 to 12213, had been dismissed by the United States District Court for the District of New Jersey. With that dismissal, the federal court had declined to exercise jurisdiction over claims based on state law, i.e., the LAD and the Handicapped Access Law, N.J.S.A. 52:32-4 to -16(HAL), originally asserted by way of pendent (supplemental) jurisdiction. See 28 U.S.C.A. § 1367. That dismissal led to the filing of the instant complaint shortly thereafter, on August 25,1997.

The Law Division judge observed that this complaint "does not seek any specific equitable relief and it does not seek to compel the defendants to comply with the HAL" nor, according to the judge, could it. The opinion noted:

Even though the plaintiff cannot seek redress for HAL violations in the Superior Court, the plaintiff apparently seeks to utilize the alleged HAL violations in support of her LAD claim. The plaintiff alleges that the defendant's failure to provide handicapped designated parking spaces and bathroom facilities accessible to wheelchair users are part and parcel of a pattern of discriminatory conduct directed at handicapped individuals. Thus, ... a contributing factor to an abusive, hostile and discriminatory environment that confronted Millie Della Volpe....

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Bluebook (online)
754 A.2d 1237, 333 N.J. Super. 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franek-v-tomahawk-lake-resort-njsuperctappdiv-2000.