95% of the ADA lawsuits filed in Texas and elsewhere seem to start with barriers to access in the parking lot. It isn’t hard to understand why. Before the effective date and for many years afterwards business owners believed that a ramp up to the existing curb next to a marked parking spot was all the law required. The picture at left shows the typical ramp that resulted. I recently visited a client site and between the highway exit ramp and the his location I noticed more than a dozen strip shopping centers and small businesses with precisely this “solution” to the problem of accessible parking.
There are three problems with this kind of ramp. First, it is a barrier to access, not a solution that provides access. A disabled driver or passenger who pulls into this parking space cannot place his wheel chair next to the driver’s door because the sloped ramp is in the way. Second, it is technical violation of the ADA because neither the original ADAAG nor the 2010 Standards allows this kind of ramp. Third, and most important in terms of ADA defense, it is a highly visible ADA violation that will certainly attract the attention of so-called drive by plaintiffs. You don’t need a tape measure or a level to see that this is wrong, and if your goal is the mass production of lawsuits, easy to spot violations of the ADA are like honey to a bee.
In many cases there are no easy construction solutions to this kind of accessible parking problem. In this picture, for example, it is clear that the front sidewalk is not deep enough for an ADA compliant ramp. Nonetheless, finding a solution (which might require some creativity) is critical to avoiding ADA lawsuits. As tort reform has constricted the ability of traditional plaintiff’s firms to make money on personal injury cases many have begun taking on ADA plaintiff’s work, often on a national scale. In Texas most of the ADA cases filed in the last year were filed by out-of-state law firms who used a single plaintiff to file multiple lawsuits. For many years Texas and other states whose local ADA equivalents did not provide for substantial damages were more or less immune from mass filings of this kind, but that is no longer true. The odds of getting sued for ADA violations are going up, and the best way to reduce the odds of getting sued for any business is to make its parking ADA compliant. It doesn’t eliminate the requirement that the entire premises meet ADA standards, but it does hold off those plaintiffs who literally won’t get out of the car to find an ADA violation, and really don’t have to.
