Pool lifts and preemption of state tort claims

October 22, 2012 By richardhunt in ADA FHA General, ADA FHA Legislation, ADA FHA Litigation General, Hospitality, Hotels, Public Facilities Tags: politics

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

Frame v City of Arlington, what’s wrong with this picture?

October 18, 2012 By richardhunt in ADA FHA General

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

Event planners take note.

October 15, 2012 By richardhunt in ADA, ADA FHA General, Convention Centers, Public Facilities Tags: balls, convention centers, events, museums, parties, rodeos

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

Not as private as you think.

October 10, 2012 By richardhunt in ADA FHA General, FHA, Multi-Family, Residential Development

The 2010 ADA Standards were big news for commercial developers, retailers and others whose businesses are open to the public. They seem far less important to residential developers, because on their face they don’t apply, or apply only in limited places, like a leasing or sales office.There is, however, an easy to overlook application of the ADA Standards that creates a trap for the unwary. With a single phone call making a perfectly sensible business decision the manager of a Home Owners Association can turn private amenities into public accomodations that must comply with the ADA. More

Strategies for Surrender

October 1, 2012 By richardhunt in Accessibility Litigation Trends, ADA FHA General

Sometimes even surrender doesn’t work as a way to cut off the expense of litigation. A good Rule 68 offer of judgment will moot the claims and require dismissal under the holding in Deposit Guaranty National Bank v Roper, but making such an offer in an ADA lawsuit can be very difficult. A recent case from the Middle District of Florida, Duldulao v. La Creperia Café, illustrates the problem. The plaintiff’s complaint was, according to the court, “an obvious cut and paste job” that failed to give fair notice of the claim. The defendant’s offer of judgment was, of necessity, equally vague. The court concluded that because it could not meaningfully compare the offer of judgment to whatever relief might finally be granted the offer of judgment process was “unavailable.” It refused to dismiss based on the Rule 68 offer. More