Courts almost universally agree that the ADA does not require that a plaintiff give notice before filing suit. I have argued that while notice is not a procedural requirement, it should be implied as a substantive requirement for any claim based on a failure to remove barriers because one cannot fail to do something that one has not been asked to do. For a defendant in a barrier removal case there are other arguments to make as well. More
Accessibility Litigation Trends
The liberal standing rules in the Ninth Circuit seems to benefit advocates for those with disabilities by allowing them to file suits that go far beyond any actual discrimination experienced by the plaintiff. However, this comes at a real cost because this kind of lawsuit encourages the courts and business owners to view “the disabled” as stereotypes rather than individuals. When the law treats everyone with a disability as an abstraction, it isn’t surprising if ordinary business people view the disabled in the same way.
The Ninth Circuit and some other circuits say that when a person with a mobility disability encounters a ramp that does not comply with the ADAAG standards he has suffered the discrimination that the ADA forbids, regardless of whether the steepness of the ramp actually interferes with his ability to use and enjoy the premises. Once he has encountered the non-compliant ramp it is presumed that any other failure to comply with the ADAAG in the same facility would also interfere with his use and enjoyment, at least if they violate guidelines related to mobility disabilities. The plaintiff is not treated as a person: He is treated as a “person with a mobility disability” whose relationship to architectural barriers is completely abstract. Is he proud of his strength and fitness, which makes a ramp that is slightly too steep irrelevant? It doesn’t matter. For purposes of the ADA the court will treat him as if he were weak. Has he developed strategies for overcoming things that might be barriers to others? It doesn’t matter. For purposes of the ADA the court will treat him as if he were completely helpless. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Professional services, Public Facilities, Residential Development, Restaurants Tags: ada litigation, ADA pleading, ADA standing, private lawsuits, private litigants
What does it mean when a plaintiff has standing to sue on a claim but cannot give fair notice in his complaint because he isn’t even sure it exists? It means, of course, that you are in the topsy turvey world of ADA standing in the 9th Circuit.
Let’s start with the basics. In Chapman v. Pier 1 Imports, 631 F.3d 939 (9th Cir. en banc 2011) the Court reaffirmed its earlier holding in Doran v. 7-Eleven. Doran held that if a plaintiff had knowledge of at least one architectural barrier and is deterred from visiting a place of public accommodation as a result then he may, in a single suit, challenge all barriers in that public accommodation that are related to his or her specific disability and that he is likely to encounter on future visits. He is not, however, required to have any knowledge of such barriers or even any reason to think such barriers exist beyond his suspicion that where there is one barrier there may be more. More
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, Restaurants, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ADA standing, ada violation, private lawsuits, private litigants
In the Ninth Circuit and in courts that follow its holdings ADA standing can be based on nothing more than a paranoid fantasy by the plaintiff or a presumption of guilt by the court. This conclusion follows logically from two decisions that themselves rest on neither logic nor the law.
The first case is Pickern v. Holiday Quality Food, Inc., 293 F.3d 1133 (9th Circ. 2002). In Pickern the Court held that a plaintiff who is “deterred from patronizing a public accomodation” by ADA violates has suffered an actual injury. The Court substituted deterrence for an actual encounter with an architectural barrier. According to Pickern simply by stating that he was “deterred” from trying to go into the store the plaintiff had “stated sufficient facts to show concrete, particularized injury.” Id. at 1137-1138. More
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Restaurants, Retail Tags: ada litigation, ada violation, private lawsuits, private litigants, restaurants, retail
While reading the latest ADA case reports this arresting statement caught my eye:
“The [ADA] does not ordinarily require the owner of a facility to take affirmative measures to make the facility accessible to and usable by persons with disabilities.”
Davis v. John S. Ciborowski Family Trust, 2013 WL 1410007 (D.N.H. 2013). The statement notes that “in certain circumstances” barrier removal is required, but still seems to stand the common understanding of barrier removal on its head. I think I can fairly say that most of the ADA bar, whether representing plaintiffs or defendants, assumes that barrier removal is required in all circumstances, and is the rule rather than the exception. However, when a federal district judge says something, it is usually worth thinking about, so I went back to the statute to see whether spending too much time on the specifics of what constitute barriers and what is reasonable in their removal might be tempered by looking back at the big picture. More