A recent case from Maryland, Bray v. Marriott Int’l, 2016 WL 319873, at *1 (D. Md. Jan. 27, 2016) serves as a reminder that violations of ADA accessibility standards may also serve as evidence of negligence in a personal injury case. When I last wrote about this subject in 2013 (click the following link to read my post Personal injury damages for ADA violations – it can happen.) the case law covered the spectrum from ADA violations being prima facie proof of negligence to ADA violations being no evidence at all of negligence. At the same time, it appears likely that compliance with the relevant ADA standard for physical accessibility cannot be considered negligence because the ADA preempts differing state law standards (click the following link to read my post Pool lifts and preemption of state tort claims.) Bray adds another jurisdiction to the list of those in which an ADA violation is evidence of negligence. More
My clients often ask about whether doing a survey to determine ADA or FHA compliance will simply set them up for damages based on a “knowing” violation of the disabilties laws. My advice is almost always no, because the ADA and FHA are no-fault statutes when it comes to physical accessibility. Ignorance is no defense. A recent case from a district court in Pennsylvania looks at the same problem in a different way: Can ADA or FHA surveys be protected from disclosure as attorney work product or even privileged documents. Heinzl v. Cracker Barrel Old Country Store, Inc., 2015 WL 6604015, at *1 (W.D. Pa. Oct. 29, 2015). I think it is worth asking another question — do you want these documents to be privileged? More
My colleague William Goren (see his blogs at www.williamgoren.com/blog) passed along a recent interview with Daniel Goldstein (http://www.bna.com/fighting-accessible-websites-n57982065991) that shows, I think, a serious disconnect is between the disabilities rights community and ordinary American businesses with respect to web accessibility.
I’ll start with what Mr. Goldstein said about making a web site accessible. He said: “It’s pretty easy to resolve most of these barriers [to access]” and “the expense is usually small.” His examples of common problems including things like failure to properly use the “H1 tag” or to write code that properly moves the “focus” of a web page. “Pretty easy” and “small expense” are words whose meaning depends on the business involved. This blog was set up by myself using a WordPress template. I didn’t write any code, and I couldn’t find an “H1 tag” to save my life. I do know, because a web programmer helped me look at it, that this single page is created by about 1000 lines of computer code. If that code is wrong, fixing it would not be “pretty easy” for me or any of the tens of thousands of small businesses that use WordPress or similar template based web design tools. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Internet, ADA Internet Web, ADA Web Access, Internet, Internet Accessibility Tags: ADA Internet, ada litigation, Carlson Lynch, WCAG 2.0, Web access
I hate scare mongering lawyers, but it looks like the risk that a business will be sued under the ADA based on web accessibility has dramatically increased over the last few months. Web access lawsuits may be one of the most important kinds of ADA litigation in 2016. This is not because of any change in the law, which remains largely unchanged and undeveloped. It is instead because of a change in plaintiff’s lawyers. Since this summer Carlson Lynch Sweet & Kipela, a Pennsylvania law firm with a very active ADA litigation practice, has filed at least eleven new lawsuits alleging ADA violations based on web accessibility. The defendants are primarily national retailers or restauranteurs: Footlocker, Sears, Toys-R-Us, Brooks Brothers, Pep Boys, and Hard Rock Cafe among others. Following these lawsuits Carlson Lynch has apparently sent dozens, if not hundreds of demand letters to retailers all over the country offering to settle supposed ADA web access claims. My clients in different states have received such letters, and I’m sure they are only a small sampling of the total sent. It remains to be seen how aggressively Carlson Lynch will follow up these demand letters, but they will certainly serve as an example to other law firms who represent ADA plaintiffs, so a wave of such demands and possibly lawsuits can be expected. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Attorney's Fees, ADA FHA Litigation General Tags: ada litigation, ADA pleading, ADA standing, private lawsuits, private litigants, restaurants, retail, serial plaintiffs
This post was inspired by an article forwarded from fellow ADA blogger William Goren, whose blog contains excellent analysis of current cases. The article describes a Florida hotel’s fight against a local serial ADA complainant who, it appears, may be afraid to go to trial on the lawsuit he filed. It isn’t clear how the case will end, but the defendant has William Norkunas on its side. Norkunas is himself a frequent ADA plaintiff and has served as an expert witness in more than a thousand cases. He is clearly an advocate for ADA enforcement, but is quoted as saying that the plaintiff in this particular case is operating a “continuing criminal enterprise that boils down to extortion.” More