Where the Sidewalk Ends:
Curb Ramps, Pedestrian Travel and the ADA
More than 50 years ago, Jacobus tenBroeck, the constitutional scholar and disability rights activist, captured in a law review article the essential human need to be “abroad in the land.”
Movement, we are told, is a law of animal life. As to man, in any event, nothing could be more essential to personality, social existence, economic opportunity—in short, to individual well-being and integration into the life of the community—than the physical capacity, the public approval, and the legal right to be abroad in the land.
The Right to Live in the World: The Disabled in the Law of Torts, vol. 54, California Law Review (1966).
Facilitating movement for people with mobility disabilities is nothing new. From ancient wheelchair images to the latest wheelchair, Segway and other technology, inventive devices have provided assistance. Low tech curb cuts at intersections are simple, effective and inexpensive. Inaccessible transportation is a critical area of discrimination.
In enacting the ADA, Congress understood that accessible transportation is a linchpin that promotes self-sufficiency of people with disabilities. Sidewalks and crosswalks are the cords which join the pedestrian pathways which make it possible for us all to simply get around. Sidewalks must be readily accessible to individuals with disabilities. As Congress recognized, the marginal costs of making a sidewalks readily accessible are often negligible.
The Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 require such access, as courts have repeatedly held. See, for example,, Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002) (ADA requires maintenance of public sidewalks, which is a normal function of a municipal entity.”); Frame v. City of Arlington, 657 F.3d 215, 225–228 (5th Cir. 2011) (finding that a sidewalk unambiguously is a service, program, or activity of a public entity”); Hamer v. City of Trinidad, No. 16-cv-02545-NYW, 2020 WL 869818, at *7, 2020 U.S. Dist. LEXIS 29844, at *16 (D. Colo. Feb. 21, 2020) (“sidewalks are ‘services’ covered by the ADA”); Mich. Paralyzed Veterans of Am., Inc. v. Mich. DOT, No. 15-cv-13046, 2017 WL 5132912, at *8, *11, 2017 U.S. Dist. LEXIS 183280, at *26, 37 (E.D. Mich. Nov. 6, 2017); Mote v. City of Chelsea, 252 F. Supp. 3d 642, 654 (E.D. Mich. 2017) (“Any sensible reading of ADA Title II compels the conclusion that maintaining public pedestrian thoroughfares for citizens to get around a city…is the archetypal example of the most fundamental of public services. Inaccessible sidewalks are, in fact, the single most readily conceivable example of a basic obstacle to accessibility that comes to mind when considering the purpose that animates the ADA, which is to eliminate obstacles to the full enjoyment of public life by disabled citizens.”); Willits v. City of Los Angeles, 925 F. Supp. 2d 1089, 1093 (C.D. Cal. 2013); Mason v. City of Huntsville, No. CV–10–S–02794–NE, 2012 WL 4815518, at *8, 2012 U.S. Dist. LEXIS 145698, at *25 (N.D. Ala. Oct. 10, 2012) (“the ADA’s broad mandate to eliminate discrimination against disabled persons includes public sidewalks”); Culvahouse v. City of LaPorte, 679 F.Supp.2d 931, 939–40 (N.D. Ind. 2009) (“the ADA is broad enough to include public sidewalks within the scope of a city’s services, programs, or activities”).
Sometimes, local governments recognize the the benefits to the community of accessible pedestrian paths of travel. Seattle, Portland, and communities in California have settled such cases. In a Texas case in which the I represented the plaintiff on certiorari before the U.S. Supreme Court, the City of Arlington eventually agreed to city-wide installation/replacement of non-compliant curb ramps.
In a recently resolved case, Disability Rights Advocates (Berkeley and New York), http://www.dralegal.org, filed a class action in 2014 against the City of New York challenging widespread, dangerous curb ramps and inaccessible pedestrian routes throughout New York City neighborhoods in Lower Manhattan, where a number of critical services are located. Center for Independence of the Disabled New York (CIDNY) v. City of New York. https://dralegal.org/case/center-independence-disabled-new-york,-cidny-et-al-v-city-new-york-et-al/ . Under In a July 2019 settlement agreement, the City committed to ongoing, widespread accessibility improvements to its pedestrian ramps through scheduled installations and upgrades, complaint remediation, on-going maintenance, sharing of information, and third-party monitoring. The Agreement sets out long-term and short-term deadlines. In addition, the agreement requires the City to maintain its pedestrian ramps as required by the federal accessibility laws, both during and after the term of the agreement.
A class lawsuit is pending in federal court in Philadelphia in which I represent plaintiffs with a DRA team, Meredith Weaver, Michelle Caiola, Andrea Kozak-Oxnard, and Rebecca Sobie. The lawsuit alleges that the City of Philadelphia, in violation of the Americans with Disabilities Act, discriminates against residents and visitors with mobility disabilities. Liberty Resources, Inc. v. City of Philadelphia, Civil Action 19_3846 (E.D. Pa.) (motion to dismiss pending). In addition to Liberty Resources (Philadelphia’s center for independent living), plaintiffs include several individuals, Disabled In Action of Pennsylvania, and Philadelphia ADAPT. (Contact me for briefs and case status, david@ferleger.com )
Philadelphia has the largest prevalence of people with disabilities of any major city in the United States yet Philadelphia’s sidewalks are dilapidated, disintegrating, and teeming with obstructions, making every-day travel difficult and dangerous. Corners exhibit barriers such as curb ramps that are broken, steep, crumbling, or have missing or inadequate detectable warnings. Some corners are missing curb ramps altogether so that individuals who use wheelchairs are unable to utilize the sidewalk. These barriers have caused people to suffer bodily injury as a result of falling out of wheelchairs and tripping over obstacles.
In addition to challenging the street features, the Liberty case goes beyond what I call the “street features.” The suit alleges that Philadelphia fails to enforce parking laws, allowing an extreme situation of drivers parking their cars on sidewalks and in crosswalks on a regular and reoccurring basis. Vendor sandwich boards, trash cans, and sidewalk furniture are placed in the path of travel with impunity. People who are blind or have low vision routinely run into these obstructions and people who use wheelchairs often cannot pass without moving into the street traffic lane.
Pause a moment as this blog post ends to envision a community in which all people, regardless of any sort of mobility challenge, can freely move from one place to another, with nothing in the way, with right of way unimpeded.
