Before delving into the fascinating details of ADA and FHA legal developments it doesn’t hurt to remember that in the larger scheme of things the day-to-day problems caused by flaws in the ADA and FHA are not as earth shattering as we like to imagine.
Cities may be responsible for the carelessness of the public
More than a year ago I was interviewed for a local Dallas paper about complaints that rental bicycles were making sidewalks inaccessible for the disabled.‡ I rather blithely opined that the City of Dallas could not be responsible for the carelessness of people who rent bicycles. In Evans v. Bird Rides, Inc., 2019 WL 5864583 (N.D. Cal. Nov. 8, 2019) a District Judge in California disagrees, finding that blind plaintiffs unhappy with electric scooters stated a plausible claim under Title II of the ADA because “[i]t was predictable, not just foreseeable, that the scooters would sometimes be parked carelessly and block” the path of the disabled. Given the many companies now in the scooter business and the number of scooters on the streets of any major city this kind of claim is likely to become more common. Cities that license the scooter providers need to carefully consider the terms of their license and the extent to which they can limit their liability for Title II claims. Having said that, I still don’t believe Title II of the ADA obliges cities to manage the lack of courtesy of their citizens. Among other problems is the inability of the city to police the problem or the court to grant meaningful relief because the barrier encountered by any individual one day is unlikely to be present the next, and just where any individual plaintiff might next encounter a similar barrier is impossible to know. Managing the necessarily complex response of a city to this kind of problem is not the kind of work courts are suited for.
Auer deference – the subject of the Supreme Court’s recent decision in Kisor v. Wilkie – has played a role in some important ADA cases, especially those concerning the line-of-sight issue for movie theaters and stadiums that Justice Kagan mentioned in her opinion. Despite this, Kisor is unlikely to have much effect on Title III jurisprudence both because of the limits on the decision, which confirmed Auer deference with a little explication, and because of the limits on Auer deference itself. Auer deference could be outcome determinative in ADA cases, but at the end of the day it is the court, not the legal principle, that matters. 