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.

There are two lines of cases that limit the universe of defendants in ADA and FHA cases. One line of cases begins with Paralyzed Veterans v. Ellerbe Becket Architects, a 1997 case that held an architect could not have design/build liability under the ADA if its only role was design of the offending structure.  A number of later district court decisions disagree, but the 9th Circuit, in Lonberg v Sanborn Theatres agreed with Paralyzed Veterans, and subsequent cases have largely followed that authority. In most courts the designer is largely exempt from design/build liability.

The second line of cases dates back to at least 2003 with the U.S. v. Quality Built Construction decision. In that case the court held that there was no right of contribution or indemnity under the FHA. The case involved an indemnity claim against an architect, but subsequent decisions almost unanimously agree that the same principle applies to contractors and other third parties regardless of their actual fault. A few cases even hold that contractual and other state law obligations are preempted by the ADA and FHA. Once the plaintiff chooses a defendant – usually the owner – that defendant cannot bring in other responsible parties regardless of actual fault.

The rationale for these decisions is decidedly peculiar. The various opinions argue that the purpose of the ADA and FHA is to promote the construction of accessible buildings, and that allowing the owner of a building or other facility to shift the blame for design or construction failures would undermine that purpose. Somehow the no-fault aspect of design/build liability is turned into a system in which the courts are required not only to impose liability regardless of fault, but to refuse to find fault even when it would be possible to do so.

There are two problems with this rationale. If applied consistently it would exclude insurance coverage for ADA and FHA claims, something that no court has done. Indeed, the best advice to building owners and others who may be liable is to buy insurance for the risk since ordinary means of spreading the risk among parties at fault will probably fail.

The more fundamental problem is that the courts have a mistaken view of how buildings are built and the motives of those who construct them. These cases assume that the only way to induce owners to require ADA compliant plans and construction is the threat of liability without any recourse to the designers and builders. “If you don’t police every detail of the plans and construction,” the courts seem to say, “you’ll be the only person that pays for it.”

This assumes, of course, that developers and owners have the expertise to police the professionals they hire. If a developer had staff with the skill to design an ADA compliant structure it wouldn’t have to hire architects, and if it had the staff with the skill to hire the necessary contractors and build the building it would need to hire a general contractor.  A developer or owner can hire an ADA specialist to review the design and construction, but the courts have said that specialist is also immune from suit if he or she fails. The reason so many different people are involved in building an apartment complex, office building or shopping mall is that this is the only practical way to assemble all the required expertise. The threat of liability can’t improve the behavior of owners and developers because there is nothing they can do about it anyway.

A second false assumption is that owners, architects, contractors and others don’t care about ADA/FHA compliance and that they must somehow be forced to care. When the ADA was first passed the legislative history shows that Congress believed compliance would add very little to the cost of new construction. This has proven true in practice. For owners there is really no economic reason not to comply with the ADA guidelines given the modest cost of compliance and the threat of very large expenses in the case of non-compliance.

These cases also have an unintended harmful effect because by relieving architects and sometimes builders from liability they reduce the incentive for these parties to focus on ADA and FHA compliance. Almost all ADA and FHA lawsuits name the owner as defendant, and many do not name any other party.  Knowing this architects nor contractors can reasonably conclude that ADA/FHA compliance is not really their problem.

The courts need to understand what plaintiff’s lawyers in other areas learned long ago. The best way to insure compliance with the ADA and FHA is to spread liability among all responsible parties, and the best way to do that is to let owners and developers bring third party actions for contribution and indemnity against design professionals and contractors who share the blame for ADA and FHA failures.