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
ADA FHA Litigation General
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
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 richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, FHA, Residential Development, Statute of Limitatinos Tags: Department of Justice, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, FHA Litigation
I often remind my clients that when it comes to the Fair Housing Act and Americans with Disabilities Act the adage “ignorance is bliss” does not apply. Last week’s decision from the Southern District of Mississippi, U.S. v. Dawn Properties, Inc. et al 2014 WL 5775324 (S.D. Miss. Nov. 6, 2014) is a reminder that ignorance may turn corporate liability into personal liability for managers or owners, and that time may not be enough to insure safety.
The underlying business deals were common in the real estate development business. An LLC, Ridgeland Construction One LLC, was created to develop an apartment complex. Construction was finished in 2000 and the LLC was merged into a Delaware LLC of the same name. It was then sold to a new group of investors. In 2006 the property was sold and, two years later, the LLC was dissolved. No one involved suspected that there might be FHA accessibility violations although it appears no survey was ever conducted to make sure. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Landlord-tenant, Multi-Family, Reasonable accommodation Tags: FHA Litigation, private lawsuits, private litigants, service animals, support animals, therapy animals
When a Court refers to the case before it as a “sad commentary on the litigious nature of our society” you can be fairly sure that one party or the other is going to do badly. In Sabal Palm Condominiums of Pine Island Ridge Ass’n, Inc. v. Fischer, 2014 WL 988767 (S.D.Fla. 2014) it was the owner of a condominium development who decided to rely on superficially clever lawyering instead of common sense. The disabled individual who sought a service dog didn’t fare well either, but was, in the end, the winner. The case should be helpful to property owners and managers as they sort through what they can and cannot ask about when confronted with a reasonable accommodation request. More