No one person can usually make all the mistakes needed for design/build liability under the ADA and FHA. At a minimum the architect, builder and owner probably made mistakes, and in many cases there are subcontractors involved as well. In traditional litigation this would be a plaintiff’s dream. The more defendants, the bigger the pot of money for settlement and attorney’s fees. Despite this common wisdom courts looking at indemnity and contribution issues under the ADA and FHA have generally limited the ability to bring in additional defendants in ways tend to defeat the purpose of these laws and do so primarily at the expense of property owners and developers. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, ADA indemnity contribution, municipal government, Public Facilities, Title II Tags: cities, contribution, government contracts, indemnity, muncipalities
Concepts like “privatization” and “resource sharing” and “public/private partnerships” sound great in concept, but when it comes to ADA and FHA liability these may result in municipalities and government agencies taking on risks they cannot control. A handful of cases serve to sketch out the problem.
In Colorado a woman with a hearing impairment sued the community association for her senior living facility because it did not provide the kind of assistance she wanted at community board meetings and events. The community association was private, but used facilities from a housing district. The district court found that the municipal housing district could be held liable for the failure of the community association to provide assistance. More
In the heated debate over the new ADA pool lift requirements the hospitality industry, which is the industry most affected, has argued that tort liability for misuse of the lifts is an important objection to their installation. Safety is important, of course, but this may be one case where liability is not a problem because ADA requirements preempt state law tort claims. The existing regulations requiring fixed lifts may reduce the risk of liability rather than increasing it.
Federal preemption of state law claims has complexities enough to satisfy any law professor, but the Supreme Court has set out one very clear rule: “A holding of federal exclusion of state law is inescapable and requires no inquiry into congressional design where compliance with both federal and state regulations is a physical impossibility” Florida Lime and Avocado Growers v Paul. This rule seems to apply directly to tort claims arising out of misused pool lifts. The 2010 Accessibility Standards give hotels and other pool operators no choice about the installation of pool lifts for new construction and renovations. Older pools must have lifts installed only if this is “readily achievable,” but the price of pool lifts seems to fall well within the range of costs that courts routinely find reasonable. Pool lift manufacturers offer models they say can be installed almost anywhere, so location is also no objection. From a purely economic standpoint the cost of installing a lift is far below the cost of defending even one ADA lawsuit over what was “readily achievable.” More
According to the Fort Worth Star Telegram the long running case Frame v. City of Arlington has finally settled. The case was filed in July of 2005, involved an appeal to the Fifth Circuit Court of Appeals in New Orleans and a Petition for Certiorari to the United States Supreme Court. Now, after seven years of litigation, the City will spend around $200,000 fixing its sidewalks and pay the plaintiffs’ attorneys more than $300,000 in legal fees.
What’s wrong with this picture? More
You don’t have to own or lease a facility in order to have possible ADA liability when you are using it. The Supreme Court’s decision in PGA Tour v. Martin got quite a bit of attention because it seemed to pit the ADA against the rules of the PGA for golf tournaments. The case also created a much broader and more important rule. An event, even one that lasts only a few hours or days, can be a public accommodation whose organizers become responsible for ADA violations in facilities they only rent on a short term basis. In my last blog I described the possibility that the owner of a residential facility might become temporarily subject to more stringent ADA requirements. This is the inverse: the user of a facility who becomes responsible for ADA compliance when using a building whose owner may be subject to different standards. More