This inspiring picture of a para-athlete should remind us all of what those with “disabilities” as defined by the law can achieve. It should also make the courts consider whether they have mis-construed the law concerning injury under the ADA. I’ve written many times before about the troubling tendency of some courts to ignore the actual injury requirement for lawsuits under the ADA. (See my posts on December 23, 2013, October 3, 2013, May, 2013 and especially Nov. 6, 2013). A recent decision from North Carolina shows how one court, at least, has adopted the common sense view that a plaintiff who has not been injured cannot maintain an action under the ADA. Blue v. Boddie-Noell Enterprises, Inc., 2015 WL 509831 (E.D.N.C. Feb. 6, 2015). More
A pair of recent district court decisions provide some hope for defendants that federal courts are taking seriously the plaintiff’s obligation to plead an intelligible claim for relief. Unfortunately, the standard is still fairly low, and will only slightly limit cookie cutter lawsuits based on generic allegations. Nonetheless, ADA defendants will want to study the cases when confronted by a plaintiff whose settlement demands are so unreasonable that a substantive defense makes economic sense. More
Two cases decided only last week illustrate what a defendant must do if it is determined to win an ADA lawsuit. In one case the defendant failed, and in the other the defendant succeeded. Both cases were ATM cases filed by the same law firm, and it is safe to assume that the work on behalf of the plaintiffs was of equal quality in both cases. The difference was the defense.
In the first case, Sawczyn v. BMO Harris Bank Nat. Ass’n, 2014 WL 1089790 (D. Minn. 2014), the defendant argued that the case was moot because non-functioning audio jacks in two ATMs had been replaced. The defendant did not address other alleged failures to comply with the ADA requirements for ATMs, and could only state with respect to its overall compliance that it was “unaware” of any other problems. There was no evidence that all the ATMs were compliant before the lawsuit was filed, and no evidence of a comprehensive policy for testing to make sure the ATMs remained compliant. The court was not impressed, and denied the defendant’s Motion to Dismiss. More
Are you saying these guys couldn’t deal with a 1:15 slope? Just what is an “architectural barrier” under the ADA
By richardhunt in ADA FHA General, ADA FHA Litigation General, DOJ, Hospitality, Hotels, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ADA standing, ada violation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, private lawsuits, private litigants
Just a few weeks ago I wrote about what seems to be a pervasive though obvious problem with the analysis of standing for ADA accessibility plaintiffs. (“Oops! – Can a plaintiff suffer an ADA injury if he gets exactly what he wants?” Oct. 4, 2013). The 11th Circuit apparently overlooked my critique when it decided Houston v. Marod Supermarkets, Inc., 2013 WL 5859575 (11th Cir. 2013) on November 1. Nonetheless, the case is worth examining as an example of the kind of slippery reasoning that usually covers up a logical fallacy.
The majority’s analysis of the “injury” suffered by an ADA plaintiff perfectly illustrates the way important problems are simply ignored. First, the Court writes: “The invasion of Houston’s statutory right in §12182(a) [to the full and equal enjoyment of the . . . facilities] occurs when he encounters architectural barriers that discriminate against him on the basis of his disability.” Packed into this statement are two enormous assumptions, neither of which was supported by the pleadings or by the logic of the statute. First, the opinion assumes that every architectural feature that does not comply with ADA Standards is an architectural barrier. More
Suppose a wheelchair bound individual interested in accessibility issues becomes a Registered Accessibility Specialist (“RAS”) in Texas or a Certified Accessibility Specialist (“CASp”) in California. She sets up a consulting business, and her first client hires her to do an accessibility survey of a hotel. She finds numerous barriers to access, prepares her report, and then sues her client, claiming that she suffered discrimination under the ADA when she encountered the barriers to access she was hired to find. There is clearly something wrong with this picture, but you wouldn’t know it from reading some decisions on ADA standing. Looking at what is wrong helps clarify how courts have gone wrong in analyzing ADA standing.