Personal injury damages for ADA violations – it can happen.

November 25, 2013 By in ADA, ADA FHA General, ADA FHA Litigation General, Damages, personal injury Tags: , , ,

court-collection-on-judgmentIt is universally agreed that the ADA does not create a private cause of action for damages, but that doesn’t mean an ADA violation won’t result in a judgment for damages. I was reminded of this by the November 4, 2013 decision in Christian v. United States, 2013 WL 5913845 (N.D.W. Va. 2013). In Christian the plaintiff was injured when she stepped into a storm drain which, she claimed, constituted a violation of the ADA accessibility requirements. She argued that this violation was prima facie evidence of negligence under West Virginia law. The District Court disagreed. It found that using ADA violations as prima facie evidence of negligence would in effect create a implied cause of action for damages that contradicted the ADA’s own provisions.

This is not by any means a universal conclusion with respect to state court negligence claims. A quick survey of ADA based negligence decisions revealed the following positions:

  • ADA violations are some evidence of negligence in Ohio (Klostermeier v. In & Out Mart, 2001 WL 305827 (Ohio Ct. App. 2001).
  • An ADA violation is prima facie evidence of negligence in Georgia, but may or may not create a private cause of action under Georgia law (compare, Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 295 (6th Cir. 1999) and Jenkins v. Wholesale Alley, Inc., 2006 WL 2716091 (N.D. Ga. 2006).
  • An ADA violation amounts to per se negligence in Maine (Swiridowsky v. Kennebec Mental Health Ass’n, 2000 WL 33675676 (Me. Super. Sept. 5, 2000)) and in Delaware, at least for federal tort claims (Emerson v. United States, 1998 WL 231023 (D. Del. Apr. 29, 1998, considering the Uniform Federal Accessibility Standards)
  • The ADA standards are evidence of the standard of care in the District of Columbia (Theatre Mgmt. Grp., Inc. v. Dalgliesh, 765 A.2d 986, 991 (D.C. 2001)) and New York (Lugo v. St. Nicholas Associates, 2 Misc. 3d 212, 216, 772 N.Y.S.2d 449, 453 (Sup. Ct. 2003) aff’d, 18 A.D.3d 341, 795 N.Y.S.2d 227 (2005)) but not in Florida (White v. NCL Am., Inc., 2006 WL 1042548 (S.D. Fla. 2006). It is an open question in Illinois (Beyers v. Vill. of Hawthorn Woods, 2012 WL 5342419 (N.D. Ill. Oct. 29, 2012))
  • ADA violations are irrelevant to negligence claims in Pennsylvania (Levin v. Dollar Tree Stores, Inc., CIV.A.06-00605, 2006 WL 3538964 (E.D. Pa. Dec. 6, 2006)), California (Urhausen v. Longs Drug Stores California, Inc., 155 Cal. App. 4th 254, 270, 65 Cal. Rptr. 3d 838, 850 (2007)) and South Carolina (Olson v. Faculty House of Carolina, Inc., 344 S.C. 194, 207, 544 S.E.2d 38, 45 (Ct. App. 2001) aff’d, 354 S.C. 161, 580 S.E.2d 440 (2003), considering South Carolina’s accessibility law.)
  • Compliance with the Texas equivalent of the ADA (the Texas Accessibility Standards) is evidence that a condition is not dangerous, (Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex. 2007) but a violation may not or may not be evidence that a condition is dangerous (see, Craig v. Beeville Family Practice, L.L.P., 2012 WL 1656492 (Tex. App. May 10, 2012) and Pena v. H.E. Butt Grocery Co., 2005 WL 2277500 (S.D. Tex. Aug. 22, 2005))

It would be foolish to predict how other states will treat ADA violations vis a vis state law negligence claims, and many of the available decisions are unpublished and from lower courts, but a narrow majority seems to be leaning toward treating the ADA standards as some evidence of a personal injury standard of care. The different outcomes usually turn on whether the court views the ADA narrowly as an anti-discrimination statute, or more broadly as a statute that generally protects those with disabilities and therefore has a safety component. How these considerations will play out as these case reach higher courts may be uncertain,  but there is no doubt that the the use of the ADA standards as evidence adds an entirely new dimension to the risk a business takes when it fails to comply with the ADA or similar state and federal standards. It is one thing to face the risk of an injunction and judgment for attorneys fees and quite another to face a claim for personal injury damages and perhaps punitive damages as well.

Two final notes. There seems to be almost universal agreement that ADA and similar standards are only intended to protect those with disabilities, and therefore cannot be used by those without a disability. At the same time, those with disabilities may be less able to avoid injury from a loss of balance or other result from an accessibility problem, so the risk of injury is greater. Readers may also be interested in Willam Goren’s May 2013 blog, which looks in more detail at a few of these cases. It can be found at http://www.williamgoren.com/blog/?s=negligence.

FHA liability for subsequent purchasers – what’s next?

November 21, 2013 By in Accessibility Litigation Trends, ADA FHA General, ADA FHA Legislation, ADA FHA Litigation General, Apartments, Condominiums, FHA, Multi-Family, Residential Development Tags: , , ,

img_questionSignUntil 2011 it was clear that a person who purchased an existing multi-family development or apartment complex and was not affiliated with the original owner did not have the kind of liability that would require making every unit accessible. “Design/build” liability of that kind was reserved to the original owner of the project based on 42 U.S.C. § 3604(f)(3), HUD’s informal guidance and cases like Silver State Fair Housing Council, Inc. v. ERGS, Inc., 362 F.Supp.2d 1218 (D.Nev.2005). Then, in April of 2011 the District Court in the Middle District of Florida denied a Motion to Dismiss filed by a subsequent owner, finding that it might be possible to prove that merely owning an apartment complex that did not meet FHA standards would constitute discrimination under 42 U.S.C. §3605(f)(1) or (2). Harding v. Orlando Apartments, LLC, 2011 WL 1457164 (M.D. Fla. 2011). Continue reading →

Are you saying these guys couldn’t deal with a 1:15 slope? Just what is an “architectural barrier” under the ADA

November 6, 2013 By in ADA FHA General, ADA FHA Litigation General, DOJ, Hospitality, Hotels, Retail, Shopping Centers Tags: , , , , , ,

Wheelchair_BasketballJust a few weeks ago I wrote about what seems to be a pervasive though obvious problem with the analysis of standing for ADA accessibility plaintiffs. (“Oops! – Can a plaintiff suffer an ADA injury if he gets exactly what he wants?” Oct. 4, 2013). The 11th Circuit apparently overlooked my critique when it decided Houston v. Marod Supermarkets, Inc., 2013 WL 5859575 (11th Cir. 2013) on November 1. Nonetheless, the case is worth examining as an example of the kind of slippery reasoning that usually covers up a logical fallacy.

The majority’s analysis of the “injury” suffered by an ADA plaintiff perfectly illustrates the way important problems are simply ignored. First, the Court writes: “The invasion of Houston’s statutory right in §12182(a) [to the full and equal enjoyment of the . . . facilities] occurs when he encounters architectural barriers that discriminate against him on the basis of his disability.” Packed into this statement are two enormous assumptions, neither of which was supported by the pleadings or by the logic of the statute. First, the opinion assumes that every architectural feature that does not comply with ADA Standards is an architectural barrier. Continue reading →

Missing the forest for the trees – Are the ADA Standards just a bunch of numbers?

October 18, 2013 By in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Retail, Shopping Centers Tags: , , , , ,

Nature_Forest_Beautiful_wood_016485_On September 30 the District Court for the Eastern District of California denied in part and granted in part a defense motion for summary judgment concerning ADA compliance in the mens restroom at a Bed Bath & Beyond. Feezor v. Excel Stockton LLC, 2013 WL 5486831 (E.D.Cal. 2013). In a 5300 word opinion the Court mentions only once the general rule that a facility should be accessible to and usable by those with disabilities. The rest of the opinion discusses a purely technical interpretation of the Guidelines and Standards that never asks the question: “does this really matter to a person with a disability.”

The longest part of the discussion concerns the portions of the Guidelines and Standards describing the required clear floor area on the pull side of a swinging door. As presented to the Court, it appears the dispute centered on the significance of a “thick solid black line” in the drawings illustrating the clear floor space requirement. Id. at  *4. The plaintiff contended that the line represented a wall, and that the inclusion of the wall in the drawing meant that a wall with a minimum length was required. The defendant disagreed. The Court dug into the language of the Guidelines and Standards, prior case law, and the alleged colloquial meaning of the word “strikeside” before concluding that the “thick solid black line” was not intended to indicate that a wall was required. Continue reading →

Oops! – Can a plaintiff suffer an ADA injury if he gets exactly what he wants?

October 4, 2013 By in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Hospitality, Hotels Tags: , , ,

images-4Suppose a wheelchair bound individual interested in accessibility issues becomes a Registered Accessibility Specialist (“RAS”) in Texas or a Certified Accessibility Specialist (“CASp”) in California. She sets up a consulting business, and her first client hires her to do an accessibility survey of a hotel. She finds numerous barriers to access, prepares her report, and then sues her client, claiming that she suffered discrimination under the ADA when she encountered the barriers to access she was hired to find. There is clearly something wrong with this picture, but you wouldn’t know it from reading some decisions on ADA standing. Looking at what is wrong helps clarify how courts have gone wrong in analyzing ADA standing.

Continue reading →

Curb cuts, accessible parking and avoiding ADA litigation

September 24, 2013 By in ADA, ADA FHA Litigation General, Restaurants, Retail, Shopping Centers Tags: , , , ,

ramp195% of the ADA lawsuits filed in Texas and elsewhere seem to start with barriers to access in the parking lot. It isn’t hard to understand why. Before the effective date and for many years afterwards business owners believed that a ramp up to the existing curb next to a marked parking spot was all the law required. The picture at left shows the typical ramp that resulted. I recently visited a client site and between the highway exit ramp and the his location I noticed more than a dozen strip shopping centers and small businesses with precisely this “solution” to the problem of accessible parking.

Continue reading →

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