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
Are you saying these guys couldn’t deal with a 1:15 slope? Just what is an “architectural barrier” under the ADA
By richardhunt in ADA FHA General, ADA FHA Litigation General, DOJ, Hospitality, Hotels, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ADA standing, ada violation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, private lawsuits, private litigants
Just a few weeks ago I wrote about what seems to be a pervasive though obvious problem with the analysis of standing for ADA accessibility plaintiffs. (“Oops! – Can a plaintiff suffer an ADA injury if he gets exactly what he wants?” Oct. 4, 2013). The 11th Circuit apparently overlooked my critique when it decided Houston v. Marod Supermarkets, Inc., 2013 WL 5859575 (11th Cir. 2013) on November 1. Nonetheless, the case is worth examining as an example of the kind of slippery reasoning that usually covers up a logical fallacy.
The majority’s analysis of the “injury” suffered by an ADA plaintiff perfectly illustrates the way important problems are simply ignored. First, the Court writes: “The invasion of Houston’s statutory right in §12182(a) [to the full and equal enjoyment of the . . . facilities] occurs when he encounters architectural barriers that discriminate against him on the basis of his disability.” Packed into this statement are two enormous assumptions, neither of which was supported by the pleadings or by the logic of the statute. First, the opinion assumes that every architectural feature that does not comply with ADA Standards is an architectural barrier. More
I’ll be presenting a webinar for the National Retail Tenants Association on November 13, 2013 at noon EST. I’ll be covering ADA matters of interest to retail tenants. There’s more information at www.retailtenants.org if you click on the webinar tab.
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Retail, Shopping Centers Tags: ada litigation, ada violation, FHA Litigation, private lawsuits, private litigants, retail
On September 30 the District Court for the Eastern District of California denied in part and granted in part a defense motion for summary judgment concerning ADA compliance in the mens restroom at a Bed Bath & Beyond. Feezor v. Excel Stockton LLC, 2013 WL 5486831 (E.D.Cal. 2013). In a 5300 word opinion the Court mentions only once the general rule that a facility should be accessible to and usable by those with disabilities. The rest of the opinion discusses a purely technical interpretation of the Guidelines and Standards that never asks the question: “does this really matter to a person with a disability.”
The longest part of the discussion concerns the portions of the Guidelines and Standards describing the required clear floor area on the pull side of a swinging door. As presented to the Court, it appears the dispute centered on the significance of a “thick solid black line” in the drawings illustrating the clear floor space requirement. Id. at *4. The plaintiff contended that the line represented a wall, and that the inclusion of the wall in the drawing meant that a wall with a minimum length was required. The defendant disagreed. The Court dug into the language of the Guidelines and Standards, prior case law, and the alleged colloquial meaning of the word “strikeside” before concluding that the “thick solid black line” was not intended to indicate that a wall was required. More