The rule is simple, but crazy. A contractual indemnity provision that shifts liability for FHA or ADA violations is unenforceable. Equal Rights Center v. Niles Bolton Ass., 602 F.3d 597 (4th Cir. 2010). Owners, operators, contractors and others who may have independent liability for ADA or FHA violations cannot contract among themselves to determine who will ultimately be responsible. More
My friend and fellow ADA blogger William Goren wrote about Grider v. City of Aurora, 2013 WL 6633404 (D.Colo. 2013) within a week after the December 16, 2013 order denying the prevailing defendants their attorneys fees. [http://www.williamgoren.com/blog/2013/12/22/breed-restrictions-service-dogs-violation-ada/] He correctly pointed out that fights over breed restriction ordinances were likely to prove expensive for cities who have such ordinances. The Court did not reject the plaintiff’s disabilities claims out of hand, and although it ruled for the defendants it denied their request for attorney’s fees.
I find a more positive lesson in the case, for the Court held the plaintiffs to a pleading and proof requirement that is often ignored in ADA cases; that is, that they prove actual as opposed to hypothetical discrimination. The most important ruling by the Court was in its earlier unpublished Order Granting Motion to Dismiss. Grider v. City of Aurora, Case Number 10-cv-722, docket entry 84 (Feb. 23, 2011). After discussing the pleading requirements imposed on plaintiffs by Iqbal and Twombly, the Court makes this observation concerning the plaintiffs’ claims:
Each of the Plaintiffs assert, in completely conclusory fashion, that they were “denied access” or “prevented from utilizing” unspecified “programs and services offered by a public entity,” Docket # 5, ¶ 31, 40, 45, but none of the Plaintiffs identify the particular programs or services they were prevented from using.
In a footnote, the Court goes on to observe that none of the plaintiffs has explained how the help provided by his particular service animal is necessary for the use or enjoyment of particular public facilities. The footnote is lengthy, but this portion of it captures the Court’s analysis:
The Complaint alleges that Mr. Grider’s dog is trained to “enter rooms and buildings ahead of [him] and alert him if anyone else is present in the room” and to “alert [him] when another individual enters the room.” Such assistance would be useless in a public park, which has no rooms, and of dubious assistance in libraries or courthouses, where one would reasonably expect that most rooms Mr. Grider visits would be occupied by other persons and that people would be frequently entering and leaving such rooms.
In short, to prove discrimination the plaintiff must show that the particular service provided by his service dog is needed for the use and enjoyment of a specific municipal program or service. In the Court’s Order of July 30, 2013 granting the defendants’ summary judgment the Court put it plainly: “Mr. Grider would have to show that he could not access government services and benefits without the aid of his service dog.”
This is precisely what the law requires, but the requirement has been generally ignored as courts presume that every kind of restriction on a service animal is a denial of access, or that every feature violating the ADA Standards constitutes a barrier to access. [See my blogs from Nov. 6, 2013, Oct. 4, 2013, May 13, 2013, May 7, 2013 and others]. That presumption turned ADA litigation from an enforcement mechanism into a litigation mill whose primary product is attorney’s fees.
This approach to Title II cases should apply as well to Title III cases, for there is no relevant difference in the pleading requirements or the nature of the discrimination forbidden. Before the owner of a service dog can proceed with a lawsuit claiming that a “no pets” policy violated his ADA rights he should be required to plead that with his particular disability, and the particular service provided by his dog, he could not avail himself of the goods and services provided by the defendant. Before a person in a wheelchair can proceed with a lawsuit claiming an excessive slope at an entry way she should be required to plead that given her personal physical condition and abilities the slope prevented her from using the goods and services of the defendant. Otherwise, as the Court found in Grider, there has simply been no discrimination at all.
Like most lawsuits of all kinds, ADA cases almost always settle, usually sooner rather than later. Except where damages are an issue, as in California, the settlement has only three components: what ADA violations will be fixed, when will they be fixed, and how much money will the plaintiff and plaintiff’s attorneys get. The presence or absence of a violation of the ADA Standards is usually not subject to dispute, and the readily achievable standard is heavily weighted against the defendant, so the when and where of remediation are generally not hard to resolve. The hard bargaining comes when the plaintiff makes his demand for fees. ADA plaintiffs and their lawyers have been thoroughly demonized in some parts of the press and blogosphere, but even if you think the plaintiff is the devil, it is useful to know how to calculate his price.
Defendants have an important advantage in settlement negotiations thanks to the Supreme Court’s holding in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) that a plaintiff cannot recover attorneys fees unless there is a “court ordered change in the legal relationship between the plaintiff and defendant” that favors the plaintiff. If the defendant moots the case by remediating before the case comes to judgment the plaintiff will not recover fees. See, Rush v. General Growth Properties, Inc., 2012 WL 1115518 (C.D. Cal. 2012). This is a key point that defense counsel sometimes overlook. The defendant can always win by remediating, just as the defendant will always lose if it refuses to remediate indisputable violations of the ADA. Because of this, plaintiff’s counsel can only make money in most ADA cases if he settles early, before remediation is complete.
Plaintiffs like to settle early, but they won’t usually settle for free. How much does settlement cost over and above remediation? Smart defendants will agree to pay attorneys fees to the plaintiff as long as the settlement cost is less than the cost of winning. Experienced ADA defense counsel can file a Motion to Dismiss or Motion for Summary Judgment based on mootness for a reasonably low price because he or she will not have to charge for the basic research; however, a “reasonably low price” in federal court is certainly thousands of dollars. Plaintiffs know this, and their demands are usually set at a level low enough to tempt the defendant to give up winning and settle instead.
The settlement dynamic can be more complex if there are real issues about what remediation is required or the defendant simply cannot get the work done fast enough to avoid the expense of litigating the case to some extent. In the end, however, remediation is an unavoidable cost and the issue is how much the defendant pays its counsel to win versus how much it pays the plaintiff’s counsel to settle.
Defendants find this equation aggravating, just as they find lawsuits about what they think are unimportant discrepancies to be aggravating. That aggravation can be turned to profit by defense counsel, but the wise defendant will do the math and take the reasonable settlement that is almost always available when the remediation work is done or is being done. It may feel like paying the devil, but sometimes its cheaper than paying the angels.
It is universally agreed that the ADA does not create a private cause of action for damages, but that doesn’t mean an ADA violation won’t result in a judgment for damages. I was reminded of this by the November 4, 2013 decision in Christian v. United States, 2013 WL 5913845 (N.D.W. Va. 2013). In Christian the plaintiff was injured when she stepped into a storm drain which, she claimed, constituted a violation of the ADA accessibility requirements. She argued that this violation was prima facie evidence of negligence under West Virginia law. The District Court disagreed. It found that using ADA violations as prima facie evidence of negligence would in effect create a implied cause of action for damages that contradicted the ADA’s own provisions. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Legislation, ADA FHA Litigation General, Apartments, Condominiums, FHA, Multi-Family, Residential Development Tags: Apartments, Condominiums, FHA Litigation, private lawsuits
Until 2011 it was clear that a person who purchased an existing multi-family development or apartment complex and was not affiliated with the original owner did not have the kind of liability that would require making every unit accessible. “Design/build” liability of that kind was reserved to the original owner of the project based on 42 U.S.C. § 3604(f)(3), HUD’s informal guidance and cases like Silver State Fair Housing Council, Inc. v. ERGS, Inc., 362 F.Supp.2d 1218 (D.Nev.2005). Then, in April of 2011 the District Court in the Middle District of Florida denied a Motion to Dismiss filed by a subsequent owner, finding that it might be possible to prove that merely owning an apartment complex that did not meet FHA standards would constitute discrimination under 42 U.S.C. §3605(f)(1) or (2). Harding v. Orlando Apartments, LLC, 2011 WL 1457164 (M.D. Fla. 2011). More