Abel v. Oceanic Arcata, LP

          ORDER DENYING DEFENDANT OCEANIC ARCATA'S MOTION FOR SUMMARY JUDGMENT RE: DKT. NO. 63

          SUSAN ILLSTON UNITED STATES DISTRICT JUDGE.

         Defendant Oceanic Arcata's motion for summary judgment was heard on November 8, 2019. Having considered the papers submitted and the arguments made, the court hereby DENIES the motion for summary judgment in its entirety.

         BACKGROUND^[1]

         Plaintiff Sherie Abel is a quadriplegic who requires the assistance of a caretaker. Dkt. No. 49 at 2^[2]. In early September 2015, Ms. Abel and her husband, Steven Keck, visited the Red Roof Inn in Arcata, California on their honeymoon. Dkt. No. 63-1 at 12 (Motion for Summary Judgment); Dkt. No. 63-2 at 16-17 (Ex. A - Abel Depo.). They stayed in a handicapped accessible room. Dkt. No. 63-1 at 14 (Motion for Summary Judgment). Ms. Huskelhus, an experienced caretaker, accompanied Ms. Abel and Mr. Keck on the trip. Dkt. No. 49 at 2. In September 2015, defendant Oceanic Arcata owned the Inn. Dkt. No. 49 at 3.

         During the late morning^[3], while at the Red Roof Inn, Ms. Huskelhus went to bathe Ms. Abel. Dkt. No. 63-1 at 14. Ms. Huskelhus placed Ms. Abel in the shower using a Hoyer lift. Dkt. No. 63-2 at 24-26 (Ex. A - Abel Depo.). Ms. Abel remained in her Hoyer lift for the entirety of her bathing session. Id; see also Dkt. No. 63-2 at 53-54 (Ex. B - Huskelhus Depo.).

         Once Ms. Abel was situated in the shower, Ms. Huskelhus began adjusting the water temperature. Dkt. No. 63-2 at 26-29 (Ex. A - Abel Depo.). Ms. Huskelhus tested the water and told Ms. Abel she would have to take a cold shower because the water was tepid. Id. Soon after, Ms. Huskelhus, letting water continue to run on Ms. Abel, retrieved the shampoo.^[4] Id. at 32; see also Dkt. No. 63-2 at 54-57 (Ex. B - Huskelhus Depo.). When Ms. Huskelhus looked again at Ms. Abel's back, she noticed Ms. Abel's skin was getting red and appeared burned. Id.

         Mr. Keck used a thermometer he purchased from a local hardware store to measure the water temperature from the sink and determined the water temperature was 140 degrees Fahrenheit.^[5] See Dkt No. 45-3 at 2-3 (Abel Declaration ¶13).

         In February 2019, plaintiff brought a motion for partial summary judgment. Dkt. No. 45. This Court granted partial summary judgment (Dkt. No. 57) with respect to the following five points:

(1) plaintiff is disabled;

(2) the Red Roof Inn is a public accommodation;

(3) defendant Oceanic Arcata failed to comply with ADAAG 607.6;

(4) as such, the defendant Oceanic Arcata violated the ADA which, in turn, is a violation of the Unruh Act and;

(5) plaintiff encountered water emitted from a water heater with temperature settings in violation of ADAAG 607.6, and in turn the ADA and Unruh Act.

         The Court noted in its order granting partial summary judgment that “the issue of whether plaintiff encountered water over 120 degrees Fahrenheit is still in play to be ...