Molski v. M.J. Cable, Inc. ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAREK MOLSKI; DISABILITY RIGHTS 
ENFORCEMENT, EDUCATION SERVICES:
HELPING YOU HELP OTHERS
(“DREES”), No. 05-55347
Plaintiffs-Appellants,
v.  D.C. No.
CV-03-04809-DT
M.J. CABLE, INC., a California OPINION
corporation, d/b/a CABLE’S
RESTAURANT,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Dickran M. Tevrizian, District Judge, Presiding
Argued and Submitted
February 5, 2007—Pasadena, California
Filed March 23, 2007
Before: Warren J. Ferguson, Eugene E. Siler, Jr.,* and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Ferguson
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
3413
MOLSKI v. M.J. CABLE, INC. 3417
COUNSEL
Thomas E. Frankovich and Jessica A. Dayton, Thomas E.
Frankovich, A Professional Law Corporation, San Francisco,
California, for the plaintiffs-appellants.
Craig N. Beardsley, Jones & Beardsley, Bakersfield, Califor-
nia, for the defendant-appellee.
OPINION
FERGUSON, Circuit Judge:
Jarek Molski (“Molski”) appeals the District Court’s denial
of his motion for a new trial following a jury verdict in favor
of M.J. Cable Inc., owner of Cable’s Restaurant (“Cable’s”).
Molski, who is paraplegic, sued Cable’s for violations of the
Americans with Disabilities Act (“ADA”) and California’s
Unruh Civil Rights Act (“Unruh Act”), alleging that Cable’s
failed to accommodate the disabled. Although Molski pro-
vided uncontradicted evidence that Cable’s did not identify
and remove architectural barriers, the jury returned a verdict
for the restaurant. The District Court denied Molski’s motion
for a new trial, speculating that the jury could have reasonably
concluded that because of Molski’s record of litigiousness, he
was a “business” and not an “individual” entitled to the
ADA’s protections. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Molski is a paraplegic who has been confined to a wheel-
chair since a motorcycle accident paralyzed him at the age of
18. Considered by some to be a controversial figure, Molski
has brought hundreds of lawsuits against inaccessible public
accommodations throughout California. Molski considers
himself a civil rights activist who uses litigation to force com-
3418 MOLSKI v. M.J. CABLE, INC.
pliance with the ADA; California businesses and a federal
district court consider him a vexatious litigant who exploits
the ADA and its state law counterpart for pecuniary gain.1
On January 26, 2003, Molski took his grandmother to
church, then to lunch at Cable’s Restaurant in Woodland
Hills, California, where he spent thirty-five dollars on their
meal. After eating lunch, Molski excused himself to use the
restaurant’s public restroom.
Upon entering the restroom, Molski noticed numerous
architectural barriers to his accessing the facilities. The door
pressure on the bathroom door was too heavy, and the door
lacked a handicap accessible sign. Inside, the stall doors could
not close with Molski’s wheelchair in the stall. The stall
lacked grab bars on both the rear wall and side wall, which
prevented Molski from maneuvering from his wheelchair to
the toilet. The toilet seat cover dispenser was unreachable.
The pipes underneath the sink were not insulated, and there-
fore, according to Molski, posed a special risk to those with-
out feeling in their legs, as hot pipes could burn them without
their realization. The sink also lacked levered hardware, a
type of fixture that is easily moveable without strong grip
strength. Molski was unable to reach at least one of the paper
towel dispensers. Molski testified that the hygienic violations
were especially important in his case because, due to his
chest-down paralysis, he uses a catheter and a urine bag that
must be emptied frequently. He explained that failure to
1
Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (C.D. Cal.
2004) (declaring Molski a vexatious litigant and requiring court approval
prior to his filing future lawsuits); see also Samuel R. Bagenstos, The Per-
versity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Lit-
igation, 54 UCLA L. Rev. 1, 7, 34 (2006) (defending serial ADA litigation
as “essential” but identifying prior allegations of ethical violations by
Molski’s attorney); Carri Becker, Private Enforcement of the Americans
with Disabilities Act via Serial Litigation: Abusive or Commendable?, 17
Hastings Women’s L.J. 93 (2006) (using Molski as case study of serial lit-
igation under Title III of the ADA).
MOLSKI v. M.J. CABLE, INC. 3419
empty the urine bag can cause autonomic dysreflexia, a condi-
tion that can result in whole body spasms and even cardiac
arrest. Handling the bag with unwashed hands can also lead
to bladder infections.
On March 7, 2003, Rick Sarantschin (“Sarantschin”), the
principal of Access Investigation Monitoring, conducted an
inspection of Cable’s and confirmed Molski’s observations
using the ADA Accessibility Guidelines for Buildings and
Facilities (“ADAAG”). See 28 C.F.R. § 36 App. A. Four
months later, Molski brought a lawsuit against Cable’s in the
Central District of California, alleging violations of the ADA
and state laws. The District Court held a three-day trial.
At trial, Molski, Sarantschin, and construction expert
Michael Beall (“Beall”) testified on behalf of Molski, and
Cable’s vice president Anthony Dalkas (“Dalkas”) testified as
an adverse witness. Molski testified primarily about his expe-
rience at Cable’s, his prior lawsuits, and his views on disabil-
ity access discrimination. Sarantschin testified about his
investigation of Cable’s and the ADA violations he observed.
Beall testified about the construction costs of making
Cable’s compliant with the ADA. He estimated that the
approximate total cost to remodel both the men’s and
women’s bathrooms would be $8,600, or $6,000 for just the
men’s bathroom. Beall noted that incremental steps were even
cheaper: lowering the toilet seat cover dispenser would cost
$20 and take about 15 minutes; insulating the pipes would
cost under $20 and take “about a minute and a half to do.”
Other repairs were as inexpensive as $30.
In his testimony, Dalkas acknowledged that the company
had not attempted to identify barriers to the disabled. He
admitted that Cable’s had not made the renovations because
“[w]e weren’t compelled to do it.” Dalkas testified that
Cable’s could afford each of the repairs but stated, “once you
start down that path[,] you’re opening a can of worms that
3420 MOLSKI v. M.J. CABLE, INC.
will cost a lot of money.” Dalkas described issues with
Cable’s landlord, as well as the economic costs of remodel-
ing, such as the need to close the restaurant during renova-
tions. Dalkas said he had received estimates of $40,000 to
“bring the two bathrooms up to the current [c]ode,” although
Cable’s had not disclosed any such remodeling bids during
discovery.
The defendant did not call any witnesses, but relied primar-
ily on its cross-examination of Molski and Dalkas. In essence,
the defendant’s strategy was to discredit Molski by exposing
an ulterior motive for bringing suit: Molski and his lawyer
Thomas Frankovich (“Frankovich”) were purportedly in the
business of tracking down public accommodations with ADA
violations and extorting settlements out of them. On cross
examination, Molski acknowledged that: he did not complain
to any of Cable’s employees about his access problems; he
had filed 374 similar ADA lawsuits as of October 8, 2004;
Frankovich had filed 232 of the 374 lawsuits; even more law-
suits had been filed since that date; Molski and Frankovich
averaged $4,000 for each case that settled; Molski did not pay
any fees to Frankovich; Molski maintained no employment
besides prosecuting ADA cases, despite his possession of a
law degree; Molski’s projected annual income from settle-
ments was $800,000;2 Molski executed blank verification
forms for Frankovich to submit with responses to interrogato-
ries; they had also filed lawsuits against two other restaurants
owned by Cable’s; they had filed a lawsuit against a nearby
restaurant; and Sarantschin obtained up to 95% of his income
from Frankovich’s firm for performing investigations for
ADA lawsuits.3
2
The method used to calculate this number was questionable. It assumed
that Molski had no litigation expenses, that he obtained a $4,000 settle-
ment from each case filed (rather than each case settled), that Molski
would settle two hundred cases every year, and that all proceeds went to
Molski.
3
It is unclear why this evidence was admitted by the trial court under
Fed. R. Evid. 401. The narrow issue in the case was whether Cable’s
MOLSKI v. M.J. CABLE, INC. 3421
During closing arguments, Molski focused primarily on the
ADA violations, and Cable’s focused primarily on Molski.
The Court instructed the jury on, inter alia, the elements of
an ADA claim, and gave it a Special Verdict Form. The jury
returned a verdict for Cable’s, responding “No” to the thresh-
old question: “Do you find that the defendant failed to iden-
tify and remove architectural barriers at Cable’s restaurant?”
Pursuant to Rule 59(a) of the Federal Rules of Civil Proce-
dure, Molski moved for a new trial on the grounds that the
verdict was against the weight of the evidence. The District
Court denied the motion. Molski timely appealed.
DISCUSSION
A. Standard of Review
We review a district court’s denial of a motion for a new
trial under Federal Rule of Civil Procedure 59(a) for an abuse
of discretion. Dorn v. Burlington N. Santa Fe R.R. Co., 397
F.3d 1183, 1189 (9th Cir. 2005); see also Gilbrook v. City of
Westminster, 177 F.3d 839, 856 (9th Cir. 1999) (applying
abuse of discretion standard where the motion for a new trial
was “grounded on the assertion that the jury’s verdict was
against the clear weight of evidence”).
“The district court’s denial of the motion for a new trial is
reversible only if the record contains no evidence in support
of the verdict.” Farley Transp. Co. v. Santa Fe Trail Transp.
Co., 786 F.2d 1342, 1347 (9th Cir. 1985). We may reverse the
denial of the motion where the District Court has “made a
mistake of law.” 12 James Wm. Moore et al., Moore’s Fed-
eral Practice § 59.54 (3d ed. 2006).
failed to identify and remove architectural barriers. Although some of the
above facts may be admissible witness impeachment evidence, most
appear to be irrelevant or at least far more prejudicial than probative. See
Fed. R. Evid. 403. However, because these evidentiary questions are not
before us on appeal, we do not address them here.
3422 MOLSKI v. M.J. CABLE, INC.
B. Rule 59(a)
[1] Rule 59(a) states, “A new trial may be granted . . . in
an action in which there has been a trial by jury, for any of
the reasons for which new trials have heretofore been granted
in actions at law in the courts of the United States.” Fed. R.
Civ. P. 59(a)(1).4 As this circuit has noted, “Rule 59 does not
specify the grounds on which a motion for a new trial may be
granted.” Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020,
1035 (9th Cir. 2003). Rather, the court is “bound by those
grounds that have been historically recognized.” Id. Histori-
cally recognized grounds include, but are not limited to,
claims “that the verdict is against the weight of the evidence,
that the damages are excessive, or that, for other reasons, the
trial was not fair to the party moving.” Montgomery Ward &
Co. v. Duncan, 311 U.S. 243, 251 (1940). We have held that
“[t]he trial court may grant a new trial only if the verdict is
contrary to the clear weight of the evidence, is based upon
false or perjurious evidence, or to prevent a miscarriage of
justice.” Passantino v. Johnson & Johnson Consumer Prods.,
212 F.3d 493, 510 n.15 (9th Cir. 2000).
Upon the Rule 59 motion of the party against whom a ver-
dict has been returned, the district court has “the duty . . . to
weigh the evidence as [the court] saw it, and to set aside the
verdict of the jury, even though supported by substantial evi-
dence, where, in [the court’s] conscientious opinion, the ver-
dict is contrary to the clear weight of the evidence.” Murphy
v. City of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990)
4
Rule 59(a) establishes a different standard for bench trials than for jury
trials. “[I]n an action tried without a jury, [a new trial may be granted] for
any of the reasons for which rehearings have heretofore been granted in
suits in equity in the courts of the United States.” Fed. R. Civ. P. 59(a)(2).
The District Court applied the standard from Brown v. Wright, 588 F.2d
708, 710 (9th Cir. 1978), a bench trial case establishing the standard under
Fed. R. Civ. P. 59(a)(2), despite the fact that Molski’s case was tried to
a jury. This error does not affect our analysis.
MOLSKI v. M.J. CABLE, INC. 3423
(quoting Moist Cold Refrigerator Co. v. Lou Johnson Co.,
249 F.2d 246, 256 (9th Cir. 1957)).
[2] Because determining “the clear weight of the evidence”
is a fact-specific endeavor, appeals courts are reluctant to
second-guess district courts’ conclusions. An appellate court
generally will not reverse the denial of a new trial motion if
there was some “reasonable basis” for the jury’s verdict.
Mitchell v. Boelcke, 440 F.3d 300, 305 (6th Cir. 2006); Col-
lado v. UPS, 419 F.3d 1143, 1155 (11th Cir. 2005); Kapelan-
ski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004); Bryant v.
Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir.
2003); Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203, 212
(1st Cir. 1996); Nissim v. McNeil Consumer Prods. Co., 957
F. Supp. 600, 602-04 (E.D. Pa. 1997), aff’d without opinion,
135 F.3d 765 (3d Cir. 1997). If there is no reasonable basis,
however, “the absolute absence of evidence to support the
jury’s verdict makes [refusal to grant a new trial] an error in
law.” Urti v. Transp. Commercial Corp., 479 F.2d 766, 769
(5th Cir. 1973) (quoting Indamer Corp. v. Crandon, 217 F.2d
391, 393 (5th Cir. 1954)); see also Hiltgen v. Sumrall, 47 F.3d
695, 703 (5th Cir. 1995) (applying “absolute absence of evi-
dence” standard); Jones v. City of St. Clair, 804 F.2d 478, 480
(8th Cir. 1986) (same); Grandison v. Smith, 779 F.2d 637,
640 (11th Cir. 1986) (same).
C. Americans with Disabilities Act
[3] Congress passed the ADA, 42 U.S.C. § 12101 et seq.,
in 1990 “to provide clear, strong, consistent, enforceable stan-
dards addressing discrimination against individuals with dis-
abilities.” § 12101(b)(2). Title III of the ADA prohibits
discrimination by public accommodations. § 12181 et seq.
Title III provides, “No individual shall be discriminated
against on the basis of disability in the full and equal enjoy-
ment of the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a place
3424 MOLSKI v. M.J. CABLE, INC.
of public accommodation.” § 12182(a). Discrimination
includes “a failure to remove architectural barriers . . . in
existing facilities . . . where such removal is readily achiev-
able.” § 12182(b)(2)(A)(iv). Readily achievable means “easily
accomplishable and able to be carried out without much diffi-
culty or expense.” § 12181(9).
Federal regulations clarify which barrier removals are
likely to be readily achievable and provide examples in 28
C.F.R. § 36.304. They include installing grab bars in toilet
stalls, rearranging toilet partitions to increase maneuvering
space, insulating lavatory pipes under sinks to prevent burns,
installing raised toilet seats, installing full-length bathroom
mirrors, and repositioning paper towel dispensers. 28 C.F.R.
§ 36.304(b)(12)-(17). The Department of Justice has referred
to these examples as “the types of modest measures that may
be taken to remove barriers and that are likely to be readily
achievable.” Appendix B to Part 36 — Preamble to Regula-
tion on Nondiscrimination on the Basis of Disability by Pub-
lic Accommodations and in Commercial Facilities, 56 Fed.
Reg. 35,546 (July 26, 1991); see also 28 C.F.R. § 36 App. A.
[4] To prevail on a Title III discrimination claim, the plain-
tiff must show that (1) she is disabled within the meaning of
the ADA; (2) the defendant is a private entity that owns,
leases, or operates a place of public accommodation; and (3)
the plaintiff was denied public accommodations by the defen-
dant because of her disability. 42 U.S.C. §§ 12182(a)-(b); see
Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065,
1085 (D. Haw. 2000); Dunlap v. Ass’n of Bay Area Gov’ts,
996 F. Supp. 962, 965 (N.D. Cal. 1998); see also Mershon v.
St. Louis Univ., 442 F.3d 1069, 1077 (8th Cir. 2006) (apply-
ing similar test in higher education context).
Aggrieved individuals or the Attorney General may enforce
the ADA. 42 U.S.C. § 12188. Private parties may utilize the
remedies and procedures made available by the Civil Rights
Act of 1964. § 12188(a)(1) (citing § 2000a-3(a)). In particu-
MOLSKI v. M.J. CABLE, INC. 3425
lar, they may obtain injunctive relief against public accommo-
dations with architectural barriers, including “an order to alter
facilities to make such facilities readily accessible to and
usable by individuals with disabilities.” § 12188(a)(2). In suits
brought by the Attorney General, courts may grant both equi-
table relief and monetary damages. § 12188(b)(2). Monetary
damages are not available in private suits under Title III of the
ADA, Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002), but
the ADA gives courts the discretion to award attorney’s fees
to prevailing parties. 42 U.S.C. § 12205.
D. California’s Unruh Civil Rights Act
[5] In the disability context, California’s Unruh Civil
Rights Act operates virtually identically to the ADA. It states,
All persons within the jurisdiction of this state are
free and equal, and no matter what their sex, race,
color, religion, ancestry, national origin, disability,
medical condition, marital status, or sexual orienta-
tion are entitled to the full and equal accommoda-
tions, advantages, facilities, privileges, or services in
all business establishments of every kind whatso-
ever.
Cal. Civ. Code § 51(b). Any violation of the ADA necessarily
constitutes a violation of the Unruh Act. § 51(f).
The Unruh Act, however, does allow for monetary dam-
ages. Victims of discrimination may obtain actual damages, as
well as “any amount that may be determined by a jury . . . up
to a maximum of three times the amount of actual damage but
in no case less than four thousand dollars.” § 52(a). The liti-
gant need not prove she suffered actual damages to recover
the independent statutory damages of $4,000. Botosan v. Paul
McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000). The
Unruh Act also allows for attorney’s fees. Cal. Civ. Code
§ 52(a).
3426 MOLSKI v. M.J. CABLE, INC.
Because the Unruh Act is coextensive with the ADA and
allows for monetary damages, litigants in federal court in Cal-
ifornia often pair state Unruh Act claims with federal ADA
claims. Molski v. Mandarin Touch Restaurant, 347 F. Supp.
2d at 862-63.
E. Analysis
The issue in this case is whether the District Court abused
its discretion when it denied Molski’s motion for a new trial.
The first question is whether there was an absence of evidence
to support the jury’s conclusion that “defendant[s did not]
fail[ ] to identify and remove architectural barriers at Cable’s
Restaurant.” The second question is whether the District
Court’s explanation of the verdict, that Molski was a business
and not an individual, somehow justifies the jury’s conclu-
sion.
1. There is no evidence to support the jury’s conclusion
that Cable’s did not fail to identify and remove architectural
barriers.
The District Court structured the Special Verdict Form to
track the elements of a Title III claim. First, as a threshold
question, it asked, “Do you find that the defendant failed to
identify and remove architectural barriers at Cable’s Restau-
rant?” The form then instructed the jury, if it answered “yes,”
to answer three questions for each of the purported violations:
“(1) Did this barrier exist at the Cable’s Restaurant on January
26, 2003? (2) If ‘yes,’ did defendant M.J. Cable fail to iden-
tify and remove the barrier? (3) If ‘yes,’ was it readily achiev-
able to remove?” After these questions, the form asked,
“Should plaintiff be awarded statutory damages in the sum of
$4,000?” The jury answered “no” to the first question and
therefore did not go on to answer any of the subsequent ques-
tions.
MOLSKI v. M.J. CABLE, INC. 3427
[6] Reviewing the trial transcript, “the record contains no
evidence in support of the verdict.” Farley Transp. Co., 786
F.2d at 1347. The testimony of Molski and Sarantschin estab-
lished a laundry list of architectural barriers, including: the
absence of accessibility signage, excessive door pressure,
stalls that were neither wide enough nor long enough, the
absence of side and rear grab bars, the absence of looped han-
dles for opening or closing the stall door, no sliding lock, no
automatic door opener, a toilet seat cover dispenser that was
too high, a paper towel dispenser that was too high, a height-
compliant paper towel dispenser that was blocked by a sink,
sinks without levered hardware, no insulation on the pipes,
urinals that were too close and too high, stall doors that were
too narrow, and toilets that were too short.5
[7] Dalkas, the vice president of Cable’s, acknowledged the
continued existence of these violations and flatly admitted
that neither he nor anyone else at Cable’s had attempted to
identify or remove architectural barriers.
[8] The only issue about which there was any disagreement
was whether or not the removal of the barriers was “readily
achievable.”6 42 U.S.C. § 12182(b)(2)(A)(iv). This issue is
separate from whether Cable’s identified and removed the
barriers. The Special Verdict Form specifically distinguished
those questions, allowing the jury to find initially that Cable’s
5
“The issues involved [in ADA accessibility cases] are, to be frank,
mind-numbingly boring; the ADA Accessibility Guidelines regulate
design elements down to the minutest detail. . . . [But, a]lthough the
ADA’s requirements are highly technical, they are essential to serve a core
function of all civil rights laws: ensuring that the arenas of civic life are
open to everyone.” Bagenstos, supra, at 23-24.
6
Federal regulations provide examples of removals of barriers that are
readily achievable. 28 C.F.R. § 36.304(b)(12)-(17). We express no opinion
as to whether, given these regulations, the “readily achievable” dispute
raises a genuine issue of material fact on remand. See Fed. R. Civ. P.
56(c).
3428 MOLSKI v. M.J. CABLE, INC.
had failed to identify or remove the barriers, but then that
removal was not readily achievable. It did not do so.
[9] The jury’s determination, in response to the threshold
question, that Cable’s had not failed to identify and remove
barriers was against the clear weight of the evidence, given
the undisputed testimony from both Molski and Dalkas.
Accordingly, the District Court abused its discretion in deny-
ing Molski’s motion for a new trial.
2. The District Court’s explanation of the verdict does not
justify the jury’s conclusion.
In denying Molski’s motion, the District Court accepted the
defendant’s “reasonable explanation for the jury’s verdict: the
jury determined that Molski was not an ‘individual’ under the
ADA, and therefore could not recover against Defendants.”
This conclusion is unreasonable and legally flawed.
First, the District Court’s explanation is inconsistent with
the plain language, structure, and spirit of the ADA. Neither
the District Court nor the defendant provide any support for
concluding that a person may be considered a business and
not an individual because of a history of litigiousness.
[10] Title III of the ADA protects “individuals” who are
disabled. 42 U.S.C. § 12182(a). It is clear that Molski, who is
paraplegic, falls within that term. “Statutory interpretation
begins with the plain meaning of the statute’s language.
Where the statutory language is clear and consistent with the
statutory scheme at issue, the plain language of the statute is
conclusive and the judicial inquiry is at an end.” Botosan, 216
F.3d at 831 (citations omitted); see also BP Am. Prod. Co. v.
Burton, 127 S. Ct. 638, 643 (2006) (“Unless otherwise
defined, statutory terms are generally interpreted in accor-
dance with their ordinary meaning.”).
The defendant, citing 42 U.S.C. § 12182(b)(1)(A)(iv), con-
tends that the ADA defines individuals as referring only “to
MOLSKI v. M.J. CABLE, INC. 3429
the clients and customers of the covered public accommoda-
tion.” This argument is unavailing for two reasons: first, it
misinterprets the relevant provision of the ADA; second, even
if its interpretation of the statute were correct, as a factual
matter, it does not exclude Molski.
[11] First, § 12182(b)(1)(A)(iv), which defines “individu-
als” as “clients or customers,” applies only “[f]or purposes of
clauses (i) through (iii) of . . . subparagraph [(b)(1)(A)].”
§ 12182(b)(1)(A)(iv); see also PGA Tour v. Martin, 532 U.S.
661, 678-79 (2001). Sections (i) through (iii) of subparagraph
(b)(1)(A) generally prohibit public accommodations from
denying participation to the disabled, providing disabled par-
ticipants an unequal benefit, or providing disabled participants
a separate benefit. § 12182(b)(1)(A)(i)-(iii). However, it is
subsection (a), not subsection (b), that provides the general
prohibition against discrimination on the basis of disability.
§ 12182(a). As the Supreme Court has pointed out, “clause
(iv) [of subparagraph (b)(1)(A)] is not literally applicable to
Title III’s general rule [in subsection (a)] prohibiting discrimi-
nation against disabled individuals. Title III’s broad general
rule contains no express ‘clients or customers’ limitation
. . . .” Martin, 532 U.S. at 679. Aside from being inapplicable
to subsection (a)’s general prohibition, the limited definition
of “individual” in § 12182(b)(1)(A)(iv) is also inapplicable to
§ 12182(b)(2)(A)(iv), which defines discrimination to include
the failure to remove architectural barriers.
[12] This interpretation is in accord with at least one other
circuit. In Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d
113, 122 (3d Cir. 1998), the Third Circuit held that Title III
applied to a medical doctor working as an independent con-
tractor at a hospital, despite the fact that he was neither a cli-
ent nor a customer, nor even a member of the general public.
The court concluded that “both the language of Title III and
its legislative history clearly demonstrate [that] the phrase
‘clients or customers,’ which only appears in 42 U.S.C.
§ 12182(b)(1)(A)(iv), is not a general circumscription of Title
3430 MOLSKI v. M.J. CABLE, INC.
III and cannot serve to limit the broad rule announced in 42
U.S.C. § 12182(a).” Id. at 121. Rather, the court noted, “[t]he
operative rule announced in Title III speaks not in terms of
‘guests,’ ‘patrons,’ ‘clients,’ ‘customers,’ or ‘members of the
public,’ but instead broadly uses the word ‘individuals.’ ” Id.
[13] Accordingly, Molski did not need to have been a client
or customer of Cable’s to be an “individual” entitled to the
protections of Title III. One need not be a client or customer
of a public accommodation to feel the sting of its discrimination.7
[14] But even if the defendant’s reading of the ADA were
proper, it would not exclude Molski. Molski was plainly a
“customer” of Cable’s Restaurant. He brought a guest to the
restaurant, ordered food, ate it, paid thirty-five dollars for it,
tried to use the restroom, and left. He even returned the day
before the trial for some ice cream.8 In Martin, the Supreme
Court held that a one-time payment is sufficient to make a
disabled person a client or customer of a public accommoda-
tion. 532 U.S. at 679-80 (holding that professional golfer was
a client or customer of a golf tour because he paid a one-time
qualifying fee).
[15] Even assuming it would have been a viable legal the-
ory for Molski to have been a business and not an individual,
the jury instructions provide no basis for making such a find-
7
See, e.g., Bagenstos, supra, at 26-27 (“The [ADA] guarantees people
with disabilities the right to choose stores and restaurants from the same
array of options as people without disabilities, and one business’s viola-
tion deprives a person with a disability of that opportunity to choose, even
if at the end of the day she would not have decided to patronize that
store.”)
8
The defendant’s analogy that “[Molski] was no more a customer at
[Cable’s] on that day than he would be had he been sitting at the counter
waiting for the restaurant’s cashier to turn his or her back so [Molski]
could steal the money from the cash register” is simply wrong, not to men-
tion puzzlingly insensitive in its imagery, given that Molski is confined to
a wheelchair.
MOLSKI v. M.J. CABLE, INC. 3431
ing. Cable’s did not put forth any evidence that Molski was
incorporated, paid salaries, advertised, held himself out as a
business, or conducted any activities that could make him a
business as a matter of law. In fact, the Joint Pre-Trial Confer-
ence Order identifies the plaintiff as “JAREK MOLSKI, an
individual” and states as an “admitted fact” that “Plaintiff
Jarek Molski is a person with disabilities as defined by the
ADA.” The jury could not have then come to the opposite
conclusion.
The jury instructions do not give any support to the District
Court’s explanation of the verdict, either. The jury was never
instructed on the Molski-as-business theory. Although the
District Court gave the jury definitions for “disability,”
“major life activities,” “public accommodation,” “denial of
access,” “architectural barrier,” and “readily achievable,” it
never discussed the possibility that Molski was not an “indi-
vidual” under the ADA, nor did it provide any definition of
that term.
[16] Finally, the test provided in the jury instructions stated
only the following requirements for finding an ADA viola-
tion: (1) that Molski be disabled, (2) that Cable’s be a public
accommodation, and (3) that “Plaintiff was denied access to
elements of the Defendants’ public accommodation due to
Defendants’ failure to remove architectural barriers.” The par-
ties stipulated to the first two elements, and Molski unequivo-
cally proved the third. The jury instructions therefore provide
no support for the District Court’s speculation that the jury
concluded that Molski was not an individual.
CONCLUSION
[17] We conclude that the record provides no evidence
whatsoever for the jury’s verdict. The District Court abused
its discretion in denying Molski’s motion for a new trial.
Accordingly, we reverse the District Court’s denial of the
motion, vacate the judgment against Molski, including that for
3432 MOLSKI v. M.J. CABLE, INC.
incurred costs, and remand for a new trial. Costs on appeal are
awarded to appellant.
REVERSED; VACATED and REMANDED.