A recent case from Maryland, Bray v. Marriott Int’l, 2016 WL 319873, at *1 (D. Md. Jan. 27, 2016) serves as a reminder that violations of ADA accessibility standards may also serve as evidence of negligence in a personal injury case. When I last wrote about this subject in 2013 (click the following link to read my post Personal injury damages for ADA violations – it can happen.) the case law covered the spectrum from ADA violations being prima facie proof of negligence to ADA violations being no evidence at all of negligence. At the same time, it appears likely that compliance with the relevant ADA standard for physical accessibility cannot be considered negligence because the ADA preempts differing state law standards (click the following link to read my post Pool lifts and preemption of state tort claims.) Bray adds another jurisdiction to the list of those in which an ADA violation is evidence of negligence. More
For the last several years I have tracked the rate of ADA litigation filing in the United States. California consistently leads the nation in ADA lawsuits. It also has the nation’s most punative accessibility statute, the Unruh Act. Florida is consistently second in the number of filings despite the fact that it has no provisions that punish ADA defendants. Between them these two states account for half or more of all ADA filings nationwide.
If it weren’t for Florida, one might conclude that a punative accessibility statute will drive an increase in lawsuits, and this criticism of the California statute lead to reform efforts that were intended to reduce the payoff for plaintiffs of unnecessary accessibility lawsuits. There is no evidence, however, that these reforms have had a real impact on the number of lawsuits filed. Is there any conclusion to be drawn from the similar rates of lawsuits in states with very different regulatory environments?
Yes. It is clear that a punative accessibility statute has no effect at all on rates of compliance with acceessibility laws. The intention of the punative damage provisions in the Unruh Act was to give businesses an additional economic incentive to bring their facilities into compliance with the federal and state accessibility standards, but with two decades of regulation in place there has been no reduction in the number of lawsuits filed. The punative damage incentive has been a complete failure from a regulatory standpoint, enriching lawyers and professional plaintiffs without effecting any change at all in the way businesses deal with accessibility.
It is equally clear that using private litigation as a means of compelling accessibility has been a complete failure nationally. Plaintiffs in Florida don’t seem to have any trouble finding non-accessible businesses to sue, and the number of ADA lawsuits has only increased over the last 20 years. Private litigation in general has proven to be a complete failure as a regulatory tool.
The reason for this is not hard to discern. Businesses do not believe that the revenue lost because of accessibility problems justifies the cost of remediation, and the risk of litigation is still too low to provide a sufficient incentive for compliance with the law. In part this is just a failure of perception. The customer that never comes in the door is invisible, so a business may not understand it is suffering any loss of revenue at all. The willingness and ability of many individuals with disabilities to adjust their behavior contributes to this perception. Most of those with disabilities are good at finding ways to work around accessibility problems and reluctant to complain because complaints are just another way in which their lives become defined by their disability.
The failure of the Unruh Act to change the behavior of business should be a lesson to those who promote private litigation and punative damages as a regulatory tool in accessibility law. While a private lawsuit may change how one defendant behaves, litigation has been a complete failure as a tool for changing how businesses behave in general. Those disability advocates who are truly concerned with accessibility rather than litigation profits should be looking new regulatory solutions, and businesses that complain about the cost of litigation should be looking for ways to become compliant in ways that make economic sense.
 For example, in November of 2013 there were 256 accessibility lawsuits filed nationwide with 96 in California and 76 in Florida. 170 of the 256 lawsuits were filed by serial plaintiffs; that is, plaintiffs who file multiple lawsuits.
It 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. More