Most lawsuits brought under the ADA are brought by “testers” that is, individuals whose primary motivation is not to take advantage of particular goods and services, but rather to discover whether a particular facility complies with the ADA. This fact offends many defendants, and seems to defy the constitutional requirement that the plaintiff have suffered an actual injury. As a result, motions to dismiss that are based on the plaintiff being a tester are common. It took me very little time to find four decisions in 2013 that discuss tester standing, and more than 10 in 2012. In some of these cases the complaint was dismissed for lack of standing, but not in all. While some defendants raise the “tester” argument as if it were a generic fault, in fact its application requires careful analysis because ADA claims require not only a past injury, but also a likely future injury. More
Restaurants
Obesity and disability – demographics will drive litigation.
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, FHA Litigation, private lawsuits, real-estate, restaurants, retail
The obesity epidemic that attracts so much attention in terms of public health serves as an additional reason for businesses and property owners to pay attention to ADA and FHA accessibility issues. The statistics are well known and striking. In the last 40 years obesity (Body Mass Index >30) has increased from around 12% to more than 30% of the population. Extreme obesity (Body Mass Index > 40) has increased from around 1% to more than 6% of the population. (http://win.niddk.nih.gov/statistics/index.htm) If current trends continue, extreme obesity will become as common as mobility disabilities, which affect around 7.5% of the population (http://www.pascenter.org) . More
Booths, tables and discrimination beyond the ADA Standards.
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Hospitality, Hotels, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, private lawsuits, private litigants, restaurants, retail
A few careless words in an opinion can spawn dozens of lawsuits and may create precedents that cost property owners and operators tens of thousands of dollars in legal fees if not in remediation costs. The question of whether compliance with ADA Standards and Guidelines is sufficient to avoid an ADA claim illustrates just how this can happen. More
What 2013 will bring for ADA and FHA accessibility litigation
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Hospitality, Hotels, Multi-Family, Residential Development, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, FHA Litigation, private lawsuits, private litigants, real-estate, restaurants, retail
2012 brought with it the final effective date for the 2010 Accessibility Standards and with that new possibilities for claims under the ADA and FHA. The most significant change in the standards from a litigation standpoint was the imposition of long pending requirements for ATM’s, which brought a wave of new cases around the nation. There were important trends for more traditional claims that will continue in 2013.
There will be an increased emphasis by plaintiffs on claims based on alleged policies regarding regarding FHA and ADA compliance as opposed to incidents of non-compliance. Once of the basic economic problems for ADA and FHA plaintiffs is that the barriers to access encountered by any individual plaintiff may be modest, and once such modest barriers are remediated the case may become moot. Unless there is a substantial controversy the fees awarded even by a generous court may be less than what is needed to justify the lawsuit in the first place. Alleging a policy of discrimination allows an individual plaintiff to assert claims based on barriers to access he or she does not know exist and may never encounter. The case law in this area is mixed at best, and plaintiffs can be expected to expand the availability of policy and practice claims in the accessibility context. More
The aisles are overflowing – which may violate the ADA
By richardhunt in Accessibility Litigation Trends, ADA, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, restaurants, retail
I buy small gifts for the holidays at a handful of stores with inexpensive products and cluttered aisles. I’ve even been told by clients that clutter can be a marketing strategy because it coveys the idea of bargain prices. Unfortunately, it may also violate the ADA by making otherwise accessible aisles too narrow and otherwise accessible counters too crowded. That, at least, was the finding in the most recent chapter of the long running lawsuit between Byron Chapman and Pier 1 Imports. The case has been pending for more than eight years, and has already generated two opinions from the Ninth Circuit. The last of these seemed to be a complete victory for Pier 1, but on remand and with an amended complaint Chapman obtained a summary judgment and permanent injunction. The case is headed once again for the Ninth Circuit, but the facts and holding should be of interest to any retailer. More