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Sunday, June 14, 2020

Where the Sidewalk Ends

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),, 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.,-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, )

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.

Saturday, June 13, 2020


Is website a “place of public accommodation” covered by the Americans with Disabilities Act (Title II)? 

Is a website a “place of public accommodation” covered by the Americans with Disabilities Act (Title II)? The ADA was enacted in 1990, before there were websites; among the dozens of kinds of “places” identified in the ADA, there is therefore nothing about websites.  

If a website is covered by the ADA at all, are all websites covered? Some? Which websites are covered?

 What does “accessibility” mean for a website for someone who is blind or has limited eyesight? 

When a business’ website is a service welcoming and bringing people to the business, must the website be accessible to blind persons?

The first website accessibility case to go to trial was argued and is awaiting decision by the United States Court of Appeals for the Eleventh Circuit.

The trial court had ruled fully for the plaintiff, Juan Gil, and ordered Winn-Dixie, the grocery store chain, to make its website fully accessible to the blind, and to do so through compliance with the accepted standard, WCAG.

The case was argued by David Ferleger, Jenkintown, PA on October 2, 2018. Together with Joshua Entin, Florida, Mr. Ferleger represents Plaintiff Juan Gill; The lower court decision is at Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. FL 2017).

Mr. Ferleger stated, “We seek a decision guarantees that the internet’s doors are open to the blind. accessible websites are good for the blind, good for businesses, and good for society as a whole. As Mr. Gil, a paralympic athlete, testified at the trial, “Why me, as an individual that’s visually impaired, why can I not access the same, goods, services on a website…” “The dignity and perseverance of Juan Gil is inspiring,” said co-counsel Joshua Entin.

United States Senators wrote to the Attorney General to urge limits on ADA website accessibility cases, citing the Gil v. Winn-Dixie case at the outset of the letter. 

Organizations representing thousands of businesses asked the court of appeals to overturn the verdict, arguing that their obligations under the ADA do not extend to websites, and expressing concern about the cost of compliance. The brief was  filed by the Chamber of Commerce of the United States of America,  Restaurant Law Center, American Bankers Association, American Hotel & Lodging Association, American Resort Development Association, Asian American Hotel Owners Association, International Council of Shopping Centers, National Association of Convenience Stores, National Association of Realtors®, National Association of Theatre Owners, National Federation of Independent Businesses, National Multifamily Housing Council, and National Retail Federation, and a separate brief by the Florida Justice Reform Institute.

On the other side, the disability advocacy community’s friend of the court brief was filed by the National Federation of The Blind, American Council of the Blind, American Foundation For the Blind, Association of Late Deafened Adults, Disability Independence Group, Disability Rights Advocates, Disability Rights Education & Defense Fund, Disability Rights Florida, Florida Council Of The Blind, National Association of The Deaf, National Disability Rights Network, National Federation of the Blind of Florida, Washington Lawyers’ Committee For Civil Rights and Urban Affairs, and the World Institute on Disability. It is authored by Greg Care, Brown Goldstein & Levy.

The various federal courts of appeals have adopted their own standards for accessibility. Though there have been thousands of lawsuits on ADA website accessibility, Mr. Gil’s case is the first to have gone to trial. 

For whatever reason, the 11th Circuit has not yet decided Winn-Dixie. It remains to be seen how the court will enter the legal fray.  Federal courts of appeals have developed various flavors of standards on website website accessibility. Some are “all are covered” or “none or covered.” Some, including a prior 11th Circuit decision, find that the ADA covers a website if the site has a “nexus” to a physical store.  

Of course, with so much commerce having moved online, including to businesses with products and services being sold solely online, the caselaw’s “none covered” and the “nexus” approach are seriously deficient. The situation has been changing since those cases were decided. 

“What percentage of retail sales are ecommerce? More than 10 years ago, ecommerce was at 5.1% of total retail purchases. Ecommerce now [2019] accounts for 16%.” “Since 2007, the web has tripled its share of retail sales.”
March 3, 2020

For federal circuit court cases at the time of argument (and I know of none since then), see Rendon v. Valleycrest Prods., 294 F.3d 1279 (11th Cir. 2002);Haynes. v. Dunkin' Donuts LLC, 2018 U.S. App. LEXIS 21126 *5-6 (11th Cir. 2018);Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000); Cullen v. Netflix, 600 F.Appx 508 (9th Cir 2015); Earll v. eBay, 599 F.Appx 695 (9th Cir. 2015); Carports Distribution Center, v. Automotive Wholesaler's, 37 F.3d 12 (1st Cir. 1994); Peoples v. Discover Fin. Servs., Inc., 387 F. App'x 179, 183 (3d Cir. 2010); Ford v. Schering-Plough, 145 F.3d 601 (3d Cir. 1998); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997); Morgan v. Joint Admin. Bd, 268 F.3d 456, 459 (7th Cir. 2001); Stoutenborough v. National Football League, 59 F.3d 580 (6th Cir. 1995); Carroll v. Fedfinancial Fed. Credit Union, 2018 U.S. Dist. LEXIS 108808, *11 (ED VA June 25, 2018); Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999), opinion amended on denial of reh'g, 204 F.3d 392 (2d Cir. 2000). 

Please let me know of any court decisions on this issue, both in courts of appeals and district courts.

To check on status of the case, or for copies of the briefs, feel free to write or call Mr. Ferleger,


For various perspectives on the suit generally (and before the new court of appeals decision):


Courthouse News Service

Court Decisions Brief – Southeast ADA Center

“Perspectives from an ADA Lawyer: Practical Implications of the Winn-Dixie Lawsuit”

Seyforth Shaw – ADA Title III

Advertising News

Lainey Feingold 

Fredrickson & Byron: