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Thursday, August 6, 2015

Court to Plaintiff: You “lost” the lawsuit but “won” the access

An ADA suit challenging the physical accessibility of a store or restaurant, or similar location, is filed. The defendant reacts, “Oh yes, I’ll fix this immediately,” and does so.
The defendant then goes to the court and requests that the suit be dismissed, be thrown out. “All is well now, there’s nothing to complain about” is the argument. The plaintiff with disabilities responds, “Wait a minute, the defendant could allow the situation to deteriorate and, in any event, if this suit is thrown out, then ADA-violating defendants can always avoid court decisions by doing such quick fix-ups.”
The above situation occurs fairly often, I believe. There is a long-standing legal principle that generally “voluntary cessation” of an illegal practice does not moot a case. Because illegal practices can be “capable of repetition, yet evading review,” courts exercise their jurisdiction to render decisions in such cases.
In the Title III access situation, private plaintiffs can win only an injunction, not damages. So once the offensive condition is fixed, there is an argument that there is nothing more for a court to do.
A Florida federal court dealt with such a case in an August 4, 2015 decision in Harty v. North Lauderdale Supermarket, Inc., 2015 U.S. Dist. LEXIS 101848 (S.D. Fla). Plaintiff Harty sued the North Lauderdale Supermarket on account of structural barriers such as inadequate clear floor and other space for bathroom access, and for clearance for use of seating at dining tables.
Promptly after suit was filed, the store hired an accessibility expert and remedied all the access issues.
The court dismissed the lawsuit before trial, after the store argued that “we’re done.”
The court stated that"ADA-architectural-barrier cases are a unique subset of voluntary cessation-doctrine cases." Noting other decisions on the topic, the court explained: “The fundamental rationale supporting these cases is that the alleged discrimination cannot reasonably be expected to recur since structural modifications permanently undo the offending conduct.”
No absolute rule was adopted.  Three factors must be considered:
Under the voluntary-cessation doctrine, a court must evaluate a defendant's assertion that the case is moot because the offending behavior has ceased by analyzing three factors: "(1) whether the challenged conduct was isolated or unintentional, as opposed to a continuing and deliberate practice; (2) whether the defendant's cessation of the offending conduct was motivated by a genuine change of heart or timed to anticipate suit; and (3) whether, in ceasing the conduct, the defendant has acknowledged liability."
Here, the store was sincere in making the changes, an expert was hired quickly and all needed changes made.  There was no intentional or repeated misconduct. There was no showing that the store’s actions were merely to avoid liability.
Mr. Harty won access to the grocery store. There is now room for him to maneuver in his wheelchair. He “lost” the lawsuit but “won” the access.
Lesson for plaintiffs: Be prepared for a short-lived litigation if the other side is quick to make changes.
The mirror-image lesson for defendants: If plaintiff’s access complaints are valid, admit it, make changes quickly and with sincerity.

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