GhostsThis week’s cases have a number of scary points to remember, starting with the point that under the ADA nothing is too trivial to justify a lawsuit. Kelley v. Cafe Rio, Inc., 2:17-CV-00489, 2017 WL 4792229, at *1 (D. Utah Oct. 23, 2017) is a standard serial filer case based on bad parking and a toilet whose flush handle was on the wrong side. The toilet is your first scary item. The ADA requires that the flush handle be located on the “open” side of the toilet so a person in a wheelchair doesn’t have to reach over the toilet to flush. This is the kind of detail current ADA jurisprudence turns into thousands of dollars of wasted attorneys fees or, in the alternative, at least hundreds of dollars in consultants’ fees because you can’t even put a toilet in a public restroom without hiring an ADA specialist. The second scary feature of this case is that the tenant, who apparently did not control the parking, ended up losing on summary judgment because it could not confirm the parking problems were fixed. For a defendant legal technicalities are just as important as physical technicalities.

Haynes v. Interbond Corporation of America, 17-CIV-61074, 2017 WL 4863085, at *1 (S.D. Fla. Oct. 16, 2017) gives us another district court decision outlining website accessibility requirements in the Eleventh Circuit. Following other authorities in the same circuit the Court follows a “middle path” requiring that a claim under the ADA based on website accessibility allege that the inaccessibility of the website impeded access to physical stores. Given the volume of ADA website cases individual decisions like this one hardly matter, but there is something spooky to be noted. The defendant pleaded mootness based on the confidential settlement in another case that required remediation of its website. The Court rejected this defense because there was no guarantee the remediation would be completed. In other words, the earlier settlement didn’t buy peace For more about the dangers of private confidential settlements see our earlier blog Beware the ADA settlement that buys a big bag of nothing.

McGann v. Cinemark USA, Inc., 873 F.3d 218 (3d Cir. 2017) is a case so frightening that it prompted a blog in Forbes* and an article in the National Review** as well as perhaps a dozen mentions in other blogs and the pay to be an expert “news” sites. The case is interesting, but, like your neighbor’s six-year old in a pirate costume, not really that scary. The plaintiff is both blind and deaf. He communicates through American Sign Language. Because he cannot see the signs he receive communications through “tactile interpretation;” that is, feeling the hand signals. The gist of the Third Circuit’s decision is that the defendant movie theatre may be obligated to provide him with a tactile interpreter so he can enjoy the movies they show. The legal basis for the ruling is the ADA’s requirement that businesses provide auxiliary aids when it is not otherwise possible to make goods and services available to the disabled.

The uproar comes from the unusual character of this particular auxiliary aid; that is, a person who communicates by touch. Although the opinion is lengthy, it isn’t hard to see this as a logical extension of a doctrine that requires ordinary ASL interpreters in some circumstances and requires waiters in a restaurant to read the menu to blind patrons if no braille menu is available. More important, for procedural reasons the Court never considered the question of whether providing a tactile interpreter was unduly burdensome. If tactile interpreters are hard to find or expensive the movie theater may be able to argue that the auxiliary aid is not required because it is too expensive and difficult. If, on the other hand, tactile interpreters are reasonably easy to find and not too expensive it is hard to understand why this is an especially important decision. According to the internet, that always reliable source of information, the total deaf blind population of the U.S. is between 45,000 and 50,000, including children.*** This case applies only to those who can understand tactile interpretation, a presumably smaller number. That is something less than a drop in the bucket compared to about 229 million movie goers in the U.S., so this decision seems unlikely to even require an increase in ticket prices. As is often the case, the scariest thing about ADA litigation is not the cost of accessibility, but the cost of the lawyers.

*Forbes article “The Americans with Disabilities Act Strikes Again”

**National Review article: “A Contender for Silliest Decision of the Year Award”

*** See,