This week two district courts, one in Oregon and one in Florida, confronted defendants determined to make sure that no one would be allowed to know whether they had violated the FHA or ADA. One seems to involve only a pointless squabble that increased legal expenses for no good purpose. The other shows how a battle over discovery can provide a real victory for the property owner. More
Accessibility Litigation Trends
No one person can usually make all the mistakes needed for design/build liability under the ADA and FHA. At a minimum the architect, builder and owner probably made mistakes, and in many cases there are subcontractors involved as well. In traditional litigation this would be a plaintiff’s dream. The more defendants, the bigger the pot of money for settlement and attorney’s fees. Despite this common wisdom courts looking at indemnity and contribution issues under the ADA and FHA have generally limited the ability to bring in additional defendants in ways tend to defeat the purpose of these laws and do so primarily at the expense of property owners and developers. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, ADA indemnity contribution, municipal government, Public Facilities, Title II Tags: cities, contribution, government contracts, indemnity, muncipalities
Concepts like “privatization” and “resource sharing” and “public/private partnerships” sound great in concept, but when it comes to ADA and FHA liability these may result in municipalities and government agencies taking on risks they cannot control. A handful of cases serve to sketch out the problem.
In Colorado a woman with a hearing impairment sued the community association for her senior living facility because it did not provide the kind of assistance she wanted at community board meetings and events. The community association was private, but used facilities from a housing district. The district court found that the municipal housing district could be held liable for the failure of the community association to provide assistance. More
Sometimes even surrender doesn’t work as a way to cut off the expense of litigation. A good Rule 68 offer of judgment will moot the claims and require dismissal under the holding in Deposit Guaranty National Bank v Roper, but making such an offer in an ADA lawsuit can be very difficult. A recent case from the Middle District of Florida, Duldulao v. La Creperia Café, illustrates the problem. The plaintiff’s complaint was, according to the court, “an obvious cut and paste job” that failed to give fair notice of the claim. The defendant’s offer of judgment was, of necessity, equally vague. The court concluded that because it could not meaningfully compare the offer of judgment to whatever relief might finally be granted the offer of judgment process was “unavailable.” It refused to dismiss based on the Rule 68 offer. More
On July 17 of this year the District Court for the Southern District of California awarded attorney’s fees of $550,000 against Chipotle Mexican Grill in a lawsuit that had been pending since 2005. A month later, on August 28, the same Court refused to certify a class in a lawsuit brought by the same plaintiff alleging the same violations of the ADA. What happened in the two lawsuits is a perfect illustration of my own slogan for ADA defense, “Fix First Then Fight.” The story of these lawsuits also demonstrates the dangers associated with attacking the plaintiff instead of attacking the problem. More