ADA compliance: ‘Drive-by’ lawsuits may go up this year

 Infrastructure Management, Planning, Risk Management, Walkability/ADA  Comments Off on ADA compliance: ‘Drive-by’ lawsuits may go up this year
Aug 132012
 

Source: Kami Corbett, Tampa Bay Business Journal

As the Tampa Bay area spiffs up its appearance for the Republican National Convention this month, local businesses need to be mindful that back in 2010 the Department of Justice modified the Americans with Disability Act (“ADA”) compliance standards, imposing new design standards for new construction and alterations to existing structures.

Mandatory compliance with those standards began on March 15, 2012. All businesses must be aware of the new standards, whether they are constructing a building, completing a major renovation, undertaking small scale projects or just making cosmetic upgrades.

Getting the facts straight

Misunderstanding No. 1: If a business is located in an older building it is “grandfathered” and need not be concerned with compliance. This is not the case. The ADA does not exempt existing buildings. In fact, it actually requires every business to undergo a fact-specific inquiry as to whether making the business accessible is readily achievable. This means that unless making the building accessible is an undue burden on the business, a business must make the necessary changes to make it accessible.

Unfortunately, there is no bright line test for determining what constitutes an undue burden. It is a fact-specific analysis that takes into consideration the nature and cost of the alteration that would be necessary to make the business accessible, along with the financial strength of the company (including parent companies) and the overall effect on the business.

Misunderstanding No. 2: Tenants are not responsible for ADA compliance. A tenant is also required to analyze whether it is readily achievable to make the business accessible. Therefore, it is highly likely that both the landlord and the tenant will be named in a non-compliance suit, leaving the private parties to argue about who is most responsible for bearing the cost of compliance.

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Feb 092011
 
Numerous trip hazards winning the war vs. asphalt ramping

Trees and Trip Hazards winning the war vs. Man and Asphalt Ramping

There was a recent news story of a 79-year-old woman in Royal Oak, MI (about 10 miles northwest of Detroit) winning a $49,000 settlement with the city after tripping on a residential sidewalk.  She was carrying her infant granddaughter at the time of the fall.  She broke 2 toes and displaced 4 others (I’m assuming both feet were involved).

One wonders what sort of mitigation plan the city has in place, if any.  Perhaps they have a well-planned, proactive sidewalk inventory and repair plan and suffered from a stroke of bad luck.  The city’s claim of “governmental immunity,” however, seems a bit desperate and not in character of an agency that is proactive on trip-and-fall hazards within their property.  This is speculation at this point and we’re going to follow up with the City of Royal Oak and continue to research this topic in an effort to get additional clarification.

It’s interesting to note that the Royal Oak case evaluation panel had previously awarded the trip/fall victim $83,000!  We talk with our clients about this sort of stuff all the time.  There are 2 extremes on this spectrum: (1) shakedown artists who make a living looking for trip/fall/ADA/other reasons to make a quick buck, often by suing and settling; and (2) the targets of the lawsuits (e.g., public agencies or small businesses) who stick their head in the sand and won’t fix anything unless they get sued.  Their reasoning is often that “I don’t want to know about it because if I do I am now liable.” Although this is true to a certain extent based on  interpretations of certain laws, it is generally unreasonable in practical terms.  A proactive, middle-ground approach is much more reasonable than these two extremes and will have the greatest possible benefit.

It is not reasonable to punish a public agency or business for wanting to inspect their property’s infrastructure and get a good understanding of the problems at hand.  It is equally (if not more so) unreasonable to expect a public agency or business to fix ALL of their problems in a single day.  This is not the same as an agency or business that absolutely won’t budge unless faced with a lawsuit.  Proactive property owners know they have problems, have a plan to fix them, and have allocated budget to do so over a reasonable period of time – with ongoing allocations for management and maintenance to boot.

Vanderhawk not only has experienced staff to inspect your infrastructure assets, we also have a highly experienced legal defense team and Certified Accessibility Specialists on board to help guide your agency, business, or non-profit through the murky waters of trip-and-fall claims.  Our saying is that if our trip-and-fall management services reduce the number of your claims by just 2 or 3, they will have often paid for themselves.