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September 29, 1997

BAY AREA RAPID TRANSIT; SHERWOOD WAKEMAN, in his official capacity as General Manager of Bay Area Rapid Transit, Defendants.

The opinion of the court was delivered by: WILKEN


 Plaintiffs Ann Cupolo, et al., move for a preliminary injunction. Defendants Bay Area Rapid Transit and its General Manager, Sherwood Wakeman, (collectively "BART") oppose the motion. The matter was heard on September 12, 1997. Having considered all of the papers filed by the parties and oral argument on the motion, the Court GRANTS the motion.


 I. Procedural Posture and Requested Relief

 In this action, Plaintiffs allege that BART has systematically failed to provide individuals with mobility disabilities equal access to its mass transportation services. Plaintiffs contend that this failure violates the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. ; the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. ; and a number of California statutes, including the California Disabled Persons Act, Cal. Civ. Code § 54 et seq. ; and the common carrier negligence statute, Cal. Civ. Code § 2100 et seq. In Orders dated June 2, 1997, the Court granted Plaintiffs' motions for class certification and bifurcation of trial and granted summary adjudication in Plaintiffs' favor with regard to BART ticket vending and fare collection equipment. Trial of BART's liability on other issues related to accessibility is scheduled to begin on January 26, 1998.

 Plaintiffs now move for a preliminary injunction concerning maintenance and repair of BART elevators. Their proposed injunction provides:

Defendant BART is ordered to immediately improve its maintenance and repair program for BART elevators as follows:
(i) Ensure that the original manufacturer's specifications for elevator maintenance are followed throughout the BART system for all public use elevators; and
(ii) Ensure that prompt repairs are made whenever an elevator feature that affects rider safety is malfunctioning or an elevator is out of service. This standard will require, at a minimum, that BART will dispatch a repair person or crew to the site of an elevator with a malfunctioning feature that affects rider safety or an out-of-service elevator within one hour after such elevator condition is discovered.
If BART cannot meet these standards using its in-house maintenance staff within 30 days of the date of this Order, then BART shall engage the services of a professional elevator repair company to supplement its in-house staff to the extent necessary to meet these standards.

 In the alternative, Plaintiffs request that the Court appoint a special master to investigate and make recommendations on how to ensure adequate maintenance and repair of BART's elevators.

 II. Problems with BART Elevators

 Plaintiffs have submitted the declarations of many class members who have encountered problems with BART's elevators. *fn1" Many class members have repeatedly been unable to use the elevators at BART Key Stations. See, e.g., Coln Decl., Fang Decl., Ferreyra Decl., Gagliardi Decl., Hendrix Decl., Moss Decl., Nissen Decl. BART's own report indicates that more than 1400 "elevator incidents" occurred between January 1, 1996, and March 5, 1997, including 76 separate incidents in which passengers were trapped inside elevators. Kasnitz Decl. Ex. C. *fn2" Despite this large number of incidents, BART elevators have had an availability rate of over 97% since July, 1995. Dunn Decl. P 7. BART admits, however, that individual elevators, especially at the Civic Center station, have been significantly less reliable because of repeated vandalism. Dunn Decl. P 3.

 Class members who have been trapped inside of, or unable to use, elevators have suffered substantial indignity and inconvenience. Their injuries range from the annoyance of taking additional time and effort to find a station with a functioning elevator, see, e.g., Barnes Decl., Berne Decl., Coln Decl., Nissen Decl., to missed medical appointments and business opportunities, see, e.g., Hendrix Decl., Moss Decl., Nandi Decl., Schumann Decl., to enduring frightening and potentially dangerous situations when trapped inside elevators, see, e.g., Barrett Decl., Ferreyra Decl., Regina Decl.

 Plaintiffs also point to problems with BART's elevators that pose a threat of catastrophic failure, in particular the pooling of hydraulic oil at the bottom of elevator shafts. BART, however, has hired an independent contractor to clean the elevator shafts. All pooled oil has now been removed, and the piston packings from which the hydraulic oil can leak have all been replaced. Clark Decl. P 13(a).

 Finally, BART's elevator inspection reports of 53 elevators indicate widespread problems. According to the reports, every elevator inspected had at least one feature that was in poor condition or inoperative. Eighteen percent of the systems and performance measures were classified as poor or inoperative. See Manning Decl. Exs. A, B.

 III. Elevator Maintenance and Repair

 Plaintiffs contend that the problems class members encounter with BART elevators are the result of BART's failure to maintain and repair its elevators properly. BART concedes that, in the past, it was not able to perform as much preventive maintenance on its elevators as it would have liked. Clark Decl. P 4(c). By 1996, the number of mechanics qualified to work on elevators and escalators had dwindled to 14, despite authorization for twenty positions. The authorized number of elevator and escalator mechanics was increased to 24 in the fall of 1996 and to 28 in 1997. Clark Decl. P 4(c), Dunn Decl. P 8. BART, however, has not been successful in hiring new mechanics, largely, the parties agree, because of the difference between BART's hourly rates for elevator mechanics and private sector hourly rates. BART mechanics are paid approximately $ 24 per hour whereas private sector elevator mechanics receive $ 39 per hour. Clark Decl. P 5. The wages BART pays are governed by collective bargaining agreements. Id.

 Although the parties differ as to precisely how much preventive maintenance BART mechanics have been able to perform, it is clear that much of the maintenance work has been fairly cursory. For example, most of the route cards that were filled out after the performance of routine maintenance contain only the notation "NOP." See Manning Reply Decl. Ex. A. The individual in charge of BART's elevator maintenance section testified that "NOP" means "normal operating procedure." Mechanics would indicate "NOP" when they did not have time to perform a thorough inspection of elevator operation. "NOP" was a way of indicating that there were no serious problems with the elevator while shielding the identity of the mechanic in case a problem developed with the elevator. Kasnitz Reply Decl. Ex. C, Garth Depo. at 33:12-18. *fn3"

 Finally, BART has had difficulty obtaining replacement parts in a timely manner. Kasnitz Decl. Ex. A, Vaughn Depo. at 10:18-19. This has exacerbated problems with repairing elevators speedily.

 BART has therefore faced persistent problems in performing adequate maintenance on its elevators. Its inability to perform thorough preventive maintenance, in combination with problems resulting from vandalism, has probably been a ...

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