No one person can usually make all the mistakes needed for design/build liability under the ADA and FHA. At a minimum the architect, builder and owner probably made mistakes, and in many cases there are subcontractors involved as well. In traditional litigation this would be a plaintiff’s dream. The more defendants, the bigger the pot of money for settlement and attorney’s fees. Despite this common wisdom courts looking at indemnity and contribution issues under the ADA and FHA have generally limited the ability to bring in additional defendants in ways tend to defeat the purpose of these laws and do so primarily at the expense of property owners and developers. More
ADA FHA Litigation General
A warning for cities and states – ADA FHA liability for private contractors
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, ADA indemnity contribution, municipal government, Public Facilities, Title II Tags: cities, contribution, government contracts, indemnity, muncipalities
Concepts like “privatization” and “resource sharing” and “public/private partnerships” sound great in concept, but when it comes to ADA and FHA liability these may result in municipalities and government agencies taking on risks they cannot control. A handful of cases serve to sketch out the problem.
In Colorado a woman with a hearing impairment sued the community association for her senior living facility because it did not provide the kind of assistance she wanted at community board meetings and events. The community association was private, but used facilities from a housing district. The district court found that the municipal housing district could be held liable for the failure of the community association to provide assistance. More
Pool lifts and preemption of state tort claims
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
Are you experienced?
By richardhunt in ADA, ADA FHA General, ADA FHA Litigation General, Restaurants, Retail
In her song “Raised on Robbery” Jonie Mitchell describes a man “sitting in the bar of the Empire Hotel, drinking for diversion and thinking for himself” while he watches a hockey game that he’s bet on. I thought about that song when I ate lunch with a wheel chair bound at a local restaurant. We had no trouble being seated; there were plenty of accessible tables. What we couldn’t do was see the three large flat screen TVs behind the bar because the bar area only had raised tables and raised booths.
Does the inability to sit in the bar or see a TV amount to discrimination against those with disabilities? It depends on how you look at the business of the restaurant. If the restaurant is only selling food and drink then a person with a mobility disability gets the same thing everyone else does – food and drink. But if the restaurant is the experience of drinking and watching a hockey game the disabled person is out of luck. More
A Burrito Tale
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General Tags: ada violation, bona fides, unruh act
On July 17 of this year the District Court for the Southern District of California awarded attorney’s fees of $550,000 against Chipotle Mexican Grill in a lawsuit that had been pending since 2005. A month later, on August 28, the same Court refused to certify a class in a lawsuit brought by the same plaintiff alleging the same violations of the ADA. What happened in the two lawsuits is a perfect illustration of my own slogan for ADA defense, “Fix First Then Fight.” The story of these lawsuits also demonstrates the dangers associated with attacking the plaintiff instead of attacking the problem. More