fig813 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.

The bar’s downfall was its failure to remember that even if barrier removal is not readily achievable  42 U.S.C. section 12182(b)(2)(A)(v) requires that a business provide access through alternative methods. The Court had no trouble finding that a portable ramp was reasonable as a matter of law and granted summary judgment for the plaintiff on his ADA claims. Despite the technical legal issues the principle is easy to understand: how would you treat your mother? Would the owner of this business refuse to buy a portable ramp if his mother or a close relative needed it? Probably not. Even when compliance with the ADA Standards or Guidelines is difficult or impossible, a business must do its best to accommodate the needs of disabled customers.

In Fowler v. Kanawha Valley Fine Jewelry and Loan, LLC, 2015 WL 164096 (S.D.W.Va. 2015) the business owner made the classic mistake of looking for a DIY remedy in an area dominated by technical requirements. It is clear the owner’s heart was in the right place. When the plaintiff first came to the store and found there was no ramp from the parking lot store employees created a makeshift ramp and helped her get into the store. They didn’t do as well when she left, with the result that her motorized wheelchair tipped over and she suffered minor injuries. They did, however, pay for her cab ride to the hospital.

After the accident it appears the owner tried to remediate by constructing an asphalt ramp. The opinion doesn’t discuss many details about the ramp, but the plaintiff’s expert found that it did not meet the requirements of the ADA Standards. This isn’t surprising. For many years before the promulgation of the original ADA Guidelines simple asphalt ramps were regarded as an adequate means for those in wheelchairs to get past a curb. Such ramps, which can still be found in older strip shopping centers everywhere, were often too narrow and projected out so far from the curb that they actually blocked access from a car parked next to them. There are a thousand wrong ways to create a wheelchair ramp, and only a few right ones. Building a curb ramp is not a DIY project.

In the end the owner’s good faith and sincerity were not enough to avoid ADA liability, and a defense summary judgment was denied. The Court did exclude any possibility of punitive damages on the plaintiff’s personal injury claim under state law, but that was probably cold comfort given the certainty of injunctive relief and the entry judgment requiring payment of the plaintiff’s legal fees, not to mention the added cost of tearing out the ramp that wasn’t good enough and replacing it with one meeting the ADA Standards.

The lesson from these cases is clear. When faced with ADA compliance issues a business owner must make a good faith effort to provide accessibility, even if permanent barrier removal is not achievable. At the same time, good faith is not enough when it comes to remediation. Billy Joel advised everyone to “get it right the first time,” and following that advice in ADA matters is the best way to save money in the long run.