BERNICE DONALD, District Judge
Before the Court is Plaintiffs' motion for summary judgment against Defendant SMG as to their Title II claim under the Americans with Disabilities Act ("ADA"). Plaintiffs assert that summary judgment must be granted in this case because it is undisputed that 1) Lesley Obert qualifies as a disabled individual; 2) Lesley Obert was denied access to the disabled drop-off zones and parking at the Pyramid by SMG; and, 3) SMG is a public entity.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Mark Christopher Obert and Lesley Obert, husband and wife, attended a George Strait concert on March 8, 2002, at the Pyramid Arena ("Pyramid") located in Memphis, Tennessee. Second Am. Comp. ¶ 19. Mrs. Obert suffers from spina bifida and has been confined to a wheelchair since birth. Id. at ¶ 20. On the date of the concert, Plaintiffs arrived downtown at least one hour before the beginning of the concert. Id. at ¶ 19. Plaintiffs have attended other functions at the Pyramid and were familiar with the facility's available parking and seating options for handicapped individuals. Id.
In accordance with the ingress and egress lane dedicated to handicap access, Plaintiffs assert that they approached the Pyramid from Riverside Drive to park in the handicapped spaces located on the south side of the facility. Id. at ¶ 22. However, when they arrived they allegedly found that the dedicated handicapped lane was not being used for handicapped access. Id. Plaintiffs assert that agents or employees of SMG, apparently Memphis Police Officers, told Plaintiff that the South side of the Pyramid had neither handicapped access nor handicapped parking spaces, despite Plaintiff's requests for handicapped access and parking. Id. Plaintiffs maintain that Mark Obert then attempted to leave Lesley Obert on the north side of the Pyramid, however, he was denied access. Id. at ¶ 23. Thereafter, Mark Obert allegedly sought to leave Lesley Obert at the designated handicap drop-off zone located in front of the Pyramid, but again Memphis Police Officers denied him entry, telling him that there was no handicapped access available in front of the Pyramid and the area was closed to all except those in limousines and church buses. Id.
After being denied access and parking at the Pyramid, Plaintiffs assert that they obtained parking behind Café Francisco Restaurant, which is located several blocks south of the Pyramid. Id. at ¶ 25. After parking, Plaintiffs proceeded toward the Pyramid. Id. at ¶ 26. To reach the Pyramid, Plaintiffs had to cross North Main Street where it intersected with North Parkway. Id. A trolley track ran through the center of North Main Street. Id. As Lesley Obert crossed the street, the tire of her wheelchair lodged in the trolley tracks, causing her to flip over the front of the wheelchair and land on the street.Id. at ¶ 27. The fall broke Lesley Obert's leg completely through in two places. Id. at ¶ 28. Lesley Obert maintains that she had a long and painful recuperation. Id.
On March 7, 2003, Plaintiffs initiated the instant action against Defendants. On the same day, Plaintiffs filed an action in state court against entities associated with the Memphis Area Transit Authority ("MATA") for the injuries Plaintiffs suffered as a result of Lesley Obert's wheelchair becoming lodged in the trolley tracks.
II. MOTION FOR SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In other words, summary judgment is appropriately granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The party moving for summary judgment may satisfy its initial burden of proving the absence of a genuine issue of material fact by showing that there is a lack of evidence to support the nonmoving party's case. Id. at 325. This in turn may be accomplished by submitting affirmative evidence negating an essential element of the nonmoving party's claim, or by attacking the opponent's evidence to show why it does not support a judgment for the nonmoving party. 10a Charles A. Wright et al.,Federal Practice and Procedure § 2727, at 35 (2d ed. Supp. 1996).
Facts must be presented to the court for evaluation. Kalamazoo River Study Group v. Rockwell Int'l, 171 F.3d 1065, 1068 (6th Cir. 1998). The court may consider any material that would be admissible at trial. 10a Charles A. Wright et al., Federal Practice and Procedure § 2721, at 40 (2d ed. 1983). Although hearsay evidence may not be considered on a motion for summary judgment, Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999), evidentiary materials presented to avoid summary judgment otherwise need not be in a form that would be admissible at trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553;Thaddeus-X v. Blatter, 175 F.3d 378, 400 (6th Cir. 1999).
In evaluating a motion for summary judgment, all the evidence and facts must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);Walbourn v. Erie County Care Facility, 150 F.3d 584, 588 (6th Cir. 1998). Justifiable inferences based on facts are also to be drawn in favor of the non-movant. Kalamazoo River, 171 F.3d at 1068.
Once a properly supported motion for summary judgment has been made, the "adverse party may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue for trial exists if the evidence would permit a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To avoid summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts."Matsushita, 475 U.S. at 586.
III. ANALYSIS
In order to establish a violation of Title II of the ADA, a plaintiff must show that 1) she qualifies as a disabled individual; 2) she was excluded from participation in or was denied the benefits of some service, program, or activity by reason of her disability; and, 3) the entity providing the service, program or activity is a public entity. CERPAC v. Health Hospitals Corp., 920 F.Supp. 488 (S.D.N.Y. 1996).
Plaintiffs first argue that Defendant does not deny that Lesley Obert qualifies as a disabled individual. It does not appear from Defendant's response that they oppose Lesley Obert's qualification as disabled. Therefore, the Court holds Lesley Obert is disabled for purposes of Plaintiffs' Title II claim.
Plaintiffs next assert that it is undisputed that SMG denied Lesley Obert access to the disabled drop-off zones and parking at the Pyramid. Defendant argues that an officer from the Memphis Police Department, not an SMG employee, denied Lesley Obert access to the handicapped drop-off. Further, Defendant contends that SMG has no authority over the Memphis Police Department or over public streets. It is unclear from the evidence whether Defendant trained and monitored the Memphis Police Officers concerning the required ingress and egress lanes. Thus, the Court holds that there exists a genuine issue of material fact as to the amount of control SMG maintained over the Memphis Police Officers aiding in parking on March 8, 2002.
Finally, Plaintiffs contend that SMG is a public entity under Title II. Plaintiffs reason that because Defendant is a lessee and/or operator of a public accommodation, it is liable for noncompliance with Title II. Defendant argues that it is not a public entity within the meaning of 42 U.S.C. § 12132, and therefore, Plaintiffs cannot establish their Title II claim. The Court finds that Plaintiffs confuse Title II and Title III of the ADA. Title II states:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. A defendant may only be held liable under Title II of the ADA, if it is a public entity, not if defendant leases or operates a public accommodation.
42 U.S.C. § 12132. Under Title III, defendants leasing or operating a public accommodation may be liable for noncompliance with the ADA.
42 U.S.C. § 12182. Title III states:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment 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 of public accommodation.
42 U.S.C. § 12182. When an entity appears to have both public and private features, the court should examine the relationship between the entity and the governmental unit to determine if the entity is in fact public or private. Title II Technical Assistance Manual, § 1.3000. The relevant factors in this determination include whether: 1) the entity is operated with public funds; 2) the entity's employees are considered government employees; 3) the entity receives significant assistance from the government by provision of the property or equipment; and, 4) the entity is governed by an independent board elected by members of a private organization or a board elected by the voters or appointed by elected officials.
Id.
Plaintiffs confuse the issue by incorrectly alleging that the Pyramid is the entity to analyze. Consequently, the Plaintiffs reason that because the government owns the Pyramid, operates the Pyramid with public funds, and provides the Pyramid with government assistance, including traffic and parking assistance, SMG is a public entity. The correct inquiry, however, is whether SMG itself operates with public funds, maintains government employees, receives significant government assistance, and is governed by a board elected by the voters or appointed by elected officials. SMG receives compensation from the government for its management services of the Pyramid and the government supplies Memphis Police Officers for events to aid in parking direction. SMG's employees, however, are not considered government employees and SMG is not governed by a board elected by the voters or appointed by elected officials. Thus, the Court finds the evidence insufficient to hold that SMG is a public entity for purposes of Plaintiffs' Title II claim under the ADA. Accordingly, the Court denies Plaintiffs' motion for summary judgment as to their Title II claim against SMG.
The Court further notes that Title III of the ADA applies to "public accommodations and services operated by private entities." 42 U.S.C. § 12181. Section 12181 defines "private entity" as "any entity other than a public entity . . .".
IV. CONCLUSION
For the reasons stated herein, Plaintiffs' motion for summary judgment as to their Title II claim against SMG is DENIED.
IT IS SO ORDERED.