This inspiring picture of a para-athlete should remind us all of what those with “disabilities” as defined by the law can achieve. It should also make the courts consider whether they have mis-construed the law concerning injury under the ADA. I’ve written many times before about the troubling tendency of some courts to ignore the actual injury requirement for lawsuits under the ADA. (See my posts on December 23, 2013, October 3, 2013, May, 2013 and especially Nov. 6, 2013). A recent decision from North Carolina shows how one court, at least, has adopted the common sense view that a plaintiff who has not been injured cannot maintain an action under the ADA. Blue v. Boddie-Noell Enterprises, Inc., 2015 WL 509831 (E.D.N.C. Feb. 6, 2015). More
About Richard Hunt
Posts by Richard Hunt:
Curtis v. Home Depot USA, Inc., 2015 WL 351437 (E.D. Cal. 2015) is not an unusual case, but that makes it a good reminder that an ADA policy doesn’t do any good if it isn’t implemented. The fact that there are so many cases like Curtis proves that many businesses don’t understand that just because it’s written doesn’t make it true.
In Curtis one of the plaintiff’s many complaints about his local Home Depot was that the accessible route from the accessible parking to the store’s front door was frequently blocked by merchandise displays. Before filing suit he complained to the store manager, but without effect. Home Depot’s defense was that the issue was moot because it had a policy against blocking the access aisle and, after the lawsuit was filed, the manager testified that the access aisles were not being blocked. More
There was a flurry of comment recently among the community of disability lawyers when a legal blogger posted a story about a pig allowed on an airplane with disastrous results. The story was interesting, but what caught the attention of those who practice in the field of disability law was his error in the law that applied. He said it was a story about ADA service animals, when in fact, as experts know, the issue was one under the Air Carrier Access Act.
I can’t blame him, or anyone else, for being confused. Even putting aside the dozens of state disability rights laws and the hundreds or thousands of municipal ordinances there are still a confusing array of federal laws and standards that might apply to any given business, and the rules about animals are particularly likely to cause confusion. Here is the briefest of explanations about where you and your business stand. More
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Policies and Procedures FHA ADA, Restaurants, Retail, Shopping Centers Tags: ada litigation, private lawsuits, real-estate, restaurants, retail
Two realities dominate the world of ADA compliance and defense. First, the ADA is a no-fault statute: good intentions don’t matter and innocence is no defense. Second, even when barrier removal is impossible, a business still has an obligation to try to become accessible. Two recent cases show how the failure to remember this can lead to failure in the defense of a lawsuit.
Snyder v. Lady Slings the Booze, LLC, 2014 WL 7366665 (W.D. Ky 2014) presented a fairly common problem. The step up to the defendant bar (whose name along makes the case worth citing) was higher than permitted by the ADA, but could not be ramped because a ramp would protrude into a city sidewalk. The defendant did the right thing at the beginning and tried to apply for a permit, but when the permit was denied apparently decided the case was over. Barrier removal was not readily achievable, and so, the defendant thought, it was off the hook for ADA compliance. More
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Legislation, Convention Centers, Stadiums Tags: ada litigation, ada violation, convention centers, private lawsuits, private litigants
When public or quasi-public entities contract with private businesses to use their facilities it can be difficult to pin down just who may have violated the ADA. It doesn’t have to be, but allocating ADA responsibility requires that the parties at least think about it. When they don’t the resulting litigation is likely to be complex and lengthy.
In Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861 (9th Cir. 2004) the Ninth Circuit established that a private entity could not avoid ADA liability by renting a publicly owned facility. It found, in essence, that the facility became a public accommodation when it was being used by the private entity, and the private entity could be the operator of that public accommodation. The now decade old message for businesses was clear: Your ADA liability will depend on your contract with the facility, and in particular on whether you control some aspect of accessibility. More