In Winston Groom’s “Forrest Gump” a young man with a significant intellectual impairment manages to accomplish great things through a combination of luck, determination, and insistent loyalty to his friends and family. Was he disabled as that term is defined under the ADA? An April 11 decision from the Easter District of Pennsylvania reminds us how complex a disability determination can be. It also highlights a persistent question with intellectual and other mental impairments: If hard work and character allow someone to overcome their limitations, is that person really disabled? Bibber v. National Board of Osteopathic Medical Examiner, Inc., 2016 WL 1404157 (E.D. Penn. April 11, 2016). More
ada litigation
Abusive ADA Litigation – the answer is local, not legal
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Building Codes, DOJ, municipal government, Public Facilities, Restaurants, Retail, Shopping Centers Tags: ada litigation, drive-by lawsuits, drive-by litigation, private lawsuits, restaurants, serial litigation
Hot off the presses – ADA governs the internet, maybe.
By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Web Access, Internet, Internet Accessibility Tags: ada litigation, ada violation, WCAG 2.0, World Wide Web
On February 9 Magistrate Judge Katherine Robertson issued a 45 page decision denying a Motion to Dismiss in National Association of the Deaf v. Harvard University, Case No. 3:15-cv-30023-MGM in the District of Massachusetts. This is not the place for a detailed analysis of the opinion, but for ordinary businesses there is quite a bit less to this than some sources suggest.
The first statute discussed in Magistrate Robertson’s opinion is Section 504 of the Rehabilitation Act. This statute applies to programs or activities receiving federal assistance. While federal assistance programs are pervasive, the vast majority of businesses are not subject to Section 504, and so the arguments concerning its application don’t apply at all. More
The ADA and safety – beyond accessibililty to damages.
By Richard Hunt in Accessibility Litigation Trends, Damages, personal injury Tags: ada litigation, negligence, private lawsuits, private litigants
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
Accessibility surveys – opportunity or trap?
By Richard Hunt in Accessibility Litigation Trends, ADA Class Actions, ADA Policies, Privilege for accessibility surveys Tags: ada litigation, attorney client privilege, FHA Litigation
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