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n a decision issued on April 20, Judge Arthur Schwab of the Western District of Pennsylvania makes it clear that every potential defendant who was sent one of the Carlson Lynch firm’s ADA Internet demand letters will end up in his court, and will have little choice but to settle. Since Carlson Lynch apparently sent hundreds of letters, Judge Schwab has effectively seized control of hundreds of cases that have not yet been filed. Sipe v. Am. Casino & Entm’t Properties, LLC, 2016 WL 1580349 (W.D. Pa. Apr. 20, 2016). More
private lawsuits
Abusive ADA Litigation – the answer is local, not legal
Tens of millions of dollars are wasted each year on litigation under the Americans with Disabilities Act. The money is wasted because instead of going directly to improvements that make businesses more accessible, the money goes to lawyers. Diverting money from remediation to litigation is the real tragedy of so called “drive-by” lawsuits..
Every couple of years Congress tries to fix this problem with legislation that would require notice before the filing of an ADA lawsuit. There are three such bills pending in the current session. The most sophisticated, the ADA Education and Reform Act of 2015 (H.R. 3765), includes provisions that would help educate businesses about their ADA obligations. This kind of legislative effort has always failed in the past, and there seems little reason to think that the current Congress will be able to do anything this time around.
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When there are a string of local lawsuits state and local government also try get involved, usually with similar efforts to require pre-suit notice. Of course these efforts fail from the outset because the ADA is a federal law and states cannot interfere with its enforcement mechanism.
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Can anything be done? Well, the real problem with the various legislative initiatives is that lawsuits feed on the existence of barriers to access. Plaintiffs’ lawyers I have dealt with tell me that even when they send demand letters more than half are simply ignored by businesses that don’t understand the law or their legal obligations. Given this level of ignorance, and the fact that a plaintiff can easily find 30 or 40 ADA violations just driving around for a weekend, merely requiring a pre-suit demand will do little to reduce the number of lawsuits.
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The ADA Education and Reform Act of 2015 starts to get at this problem with its provisions calling for the development by the DOJ of an education program, but the mandate is not funded, and past efforts by DOJ to educate small businesses have largely failed. Twenty-five years after the passage of the ADA the number of ADA lawsuits continues to climb, which is proof enough that top down education efforts without any funding will never improve ADA compliance or eliminate wasteful litigation.
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What we need instead is work by local chambers of commerce and municipal governments that focuses not on general education but on finding specific common ADA violations so they can be fixed before lawsuits are filed. The best way to do this is to adopt the same tactics used by serial litigants. With minimal training (see our page on Education for Business) police and employees responsible for code enforcement can spot common accessible parking problems. An official notice, even if not accompanied by the threat of a fine, should be enough to get most businesses to look seriously at ADA compliance. Chambers of Commerce can enlist volunteers to do the same thing. Compliance will come from education, but the education will be local, responding to the real needs of local businesses.
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This kind of program does not require any kind of extensive ADA training or survey. The reason lawsuits from serial litigants are sometimes referred to as “drive-by” lawsuits is that the plaintiffs literally just drive around looking for non-compliant handicapped parking. If the parking at a business looks good they probably won’t even stop to see whether the rest of the facility is accessible. A business with parking that meets ADA standards will have eliminated most of the risk of a lawsuit and bought itself time for a proper survey and remediation of the interior of the premises.
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The solution to the waste caused by serial litigation is to eliminate ADA violations, and that can be done most effectively when local governments and local chambers of commerce act directly to find violations and educate business owners about those violations. There is no need to wait for Congress to pass a bill that may be doomed anyway. The answer is local, not legal.
The ADA and safety – beyond accessibililty to damages.
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
ADA serial litigation problems? – don’t get mad, get even.
This post was inspired by an article forwarded from fellow ADA blogger William Goren, whose blog contains excellent analysis of current cases. The article describes a Florida hotel’s fight against a local serial ADA complainant who, it appears, may be afraid to go to trial on the lawsuit he filed. It isn’t clear how the case will end, but the defendant has William Norkunas on its side. Norkunas is himself a frequent ADA plaintiff and has served as an expert witness in more than a thousand cases. He is clearly an advocate for ADA enforcement, but is quoted as saying that the plaintiff in this particular case is operating a “continuing criminal enterprise that boils down to extortion.” More
ADA Maintenance – An ounce of prevention . . . .
One of the many ADA risks that businesses face is the risk of sliding into non-compliance through maintenance failures. This seems to come up most often in the context of parking, because the markings required for accessible parking are exposed to the weather and to wear from car tires. I recently settled a case of this type, and a reported opinion from California was a reminder of how important maintenance can be.
In Lozano v. C.A. Martinez Family Ltd. P’ship, 2015 WL 5227869, at *4 (S.D. Cal. Sept. 8, 2015), the complaint concerned nothing more complicated than striping accessible parking. The paint had faded and on repeated occasions over months the access aisles were blocked. As soon as the lawsuit was filed the owner repainted, but that was too late for the Court, which found that a policy of re-striping that apparently had not been followed would not let the owner escape an injunction and, of course, paying fees to the plaintiff’s attorney. More