Originally published by Richard Hunt.
Cities may be responsible for the carelessness of the public
More than a year ago I was interviewed for a local Dallas paper about complaints that rental bicycles were making sidewalks inaccessible for the disabled.‡ I rather blithely opined that the City of Dallas could not be responsible for the carelessness of people who rent bicycles. In Evans v. Bird Rides, Inc., 2019 WL 5864583 (N.D. Cal. Nov. 8, 2019) a District Judge in California disagrees, finding that blind plaintiffs unhappy with electric scooters stated a plausible claim under Title II of the ADA because “[i]t was predictable, not just foreseeable, that the scooters would sometimes be parked carelessly and block” the path of the disabled. Given the many companies now in the scooter business and the number of scooters on the streets of any major city this kind of claim is likely to become more common. Cities that license the scooter providers need to carefully consider the terms of their license and the extent to which they can limit their liability for Title II claims. Having said that, I still don’t believe Title II of the ADA obliges cities to manage the lack of courtesy of their citizens. Among other problems is the inability of the city to police the problem or the court to grant meaningful relief because the barrier encountered by any individual one day is unlikely to be present the next, and just where any individual plaintiff might next encounter a similar barrier is impossible to know. Managing the necessarily complex response of a city to this kind of problem is not the kind of work courts are suited for.
ADA and the Internet
Picon v. McKenzie Fine Art, Inc., 2019 WL 5963519 (S.D.N.Y. Nov. 8, 2019) is nothing but the entry of an agreed Consent Decree, but it is worth a look as an example of the kind of agreement that will, if accompanied by money, satisfy a serial plaintiff’s law firm. At first glance the Consent Decree looks quite friendly to those with disabilities because it requires that the defendant bring its website into compliance with WCAG 2.0 AA, but a closer look reveals a dispute resolution provision so burdensome for the plaintiff that it is unlikely ever to be invoked. Also interesting is the standard to be used to determine whether in fact the website fails to meet the Consent Decree requirements. The standard for determining compliance is not technical conformance to WCAG 2.0 AA, but rather:
whether a person, who has a disability and uses screen reader software and has average screen reader competency (“person with a Visual Impairment who has average screen reader competency”), can adequately utilize the Website.
It is helpful to remember that usability, not technical conformance, is what really matters. We have thousands of lawsuits based on technical non-conformance with no thought or little thought given by the plaintiff’s lawyers to usability because, of course, that kind of substantive inquiry takes time and money, reducing their profit margins.
A different kind of internet like claim
Bellone v. Gadabout Tours, Inc., 2019 WL 5864567 (N.D. Cal. Nov. 8, 2019) is a non-website case that might help define just what website accessibility is all about. The plaintiff was a participant in a tour operated by the defendant. In the course of the tour he was taken to a campsite that was not accessible and suffered an injury as a result. The campsite was owned by a different party. The court found there was no ADA violation because the service (booking a tour) was accessible and the company offices were not at issue. This harkens back to the still unresolved question of whether a business can offer its services in an accessible format and avoid ADA liability despite the inaccessibility of its website. In the Ninth Circuit and others that require a nexus, this should be a viable defense, at least in theory.
ADA Standing
Strojnik v. GF Carneros Tenant, LLC, 2019 WL 5963244 (N.D. Cal. Nov. 13, 2019) is an unfortunately typical Ninth Circuit cheap standing case. Ignoring the requirement in Iqbal and Twombly that a plaintiff make plausible allegations the district court relied on the decision in Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 867 F.3d 1093 (9th Cir. 2017) to find that rote allegations repeated almost verbatim in all of Mr. Strojnik’s lawsuits were sufficient to get past a Rule 12 motion to dismiss. There is more about standing in this blog, but anyone interested should look at William Goren’s recent blog devoted to this subject at Understanding the ADA.
In Mosley v. Kohl’s Dept. Stores, Inc., 942 F.3d 752 (6th Cir. 2019) the Sixth Circuit adopts a very Ninth Circuit like liberal pleading standard for standing. In doing so it adopts a rule that gives a nod to the “plausibility” standard from the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) but ultimately accepts the plaintiff’s allegations as true despite the fact that on their face they are completely unbelievable. As is usual when a court decides to ignore the Constitution in order to advance its perception of a policy goal the majority opinion leans heavily on the importance of the goals of the ADA and of private enforcement to achieve those goals even though neither is relevant to the question of standing. There is a vigorous dissent from Judge McKeague and some prospect the decision may be reviewed en banc, especially given the very different approach to standing taken by a different panel of the Sixth Circuit just a few months ago in Brintley v. Aeroquip Credit Union et al, 936 F.3d 489 (6th Cir. 2019).*
Castillo v. John Gore Org., Inc., 2019 WL 6033088 (E.D.N.Y. Nov. 14, 2019) is another dismissal of a lawsuit by serial filer Evelyn Castillo, who wants to bring her own snacks to the show.** In this case though the decision was based on a lack of standing that was in turn based on the carefully designed structure of the web page. The defendant’s home page was programmed so that it was not possible to reach the prohibition against outside food and drink without first knowing the theater had an accessibility policy and that requests related to accessibility could be addressed to the theater’s management. Because the plaintiff never asked for an accommodation she could not have had actual knowledge that outside food was prohibited; her only knowledge was that she could ask. This is a critical holding for any business with a website because it illustrates the power of programming to limit website based claims. I’ve long believed that a properly designed webpage can, with the use of an accessibility policy and a mandatory arbitration provision make any kind of website claim easier to defend.†
How about that arbitration provision?
O’Hanlon v. Uber Techs., Inc., 2019 WL 5895425 (W.D. Pa. Nov. 12, 2019) is a follow-on decision to Namisnak v. Uber Technologies, Inc., 315 F.Supp.3d 1124 (N.D. Cal. 2018) decision from California, holding that would-be Uber customers were not bound by an arbitration provision that they had not assented to. Uber puts the agreement in the terms and conditions for use of its app, but these plaintiffs never downloaded the app because they already knew it would not permit them to access accessible cars or vans in their area. The larger questions about Uber’s obligations under the ADA are not addressed, but the lesson for businesses who follow my suggestion that an arbitration clause may be helpful in ADA claims is that an agreement to arbitrate does no good if the plaintiff doesn’t assent to it. Not only must the arbitration agreement itself be carefully written, its placement in an app or website must be carefully planned as well.
Disabled compared to whom?
Mental impairments as disabilities under the ADA present special challenges, particularly when the impairment relates to performance in the academic world. Fifth Circuit’s decision in Doherty v. Natl. Bd. of Med. Examiners, 2019 WL 5855779 (5th Cir. Nov. 7, 2019) provides a close-up view of these challenges. The plaintiff, a medical student, had trouble reading, as proved by tests that compared her skills to those of other college educated students or individuals her own age. The Fifth Circuit rejected this evidence of disability because it did not compare the plaintiff to the general population, which is the standard for determining whether a mental impairment substantially limits a major life activity. Based on DOJ regulations it specifically declined to use any comparison to “similarly situated” individuals. It also declined to agree that a diagnosis of a reading disorder was sufficient because such a diagnosis did not implicate the “substantially limited” requirement.
Doherty is an important decision because its holding goes directly to the question of whom the ADA was intended to protect. When it comes to mental impairments, especially those related to intellectual ability, those with better educations or better economic backgrounds tend to compare themselves only to their peers who had equivalent opportunities; however, the ADA was not intended to protect the degree of socio-economic success into which one was born; in fact, a definition of disability that permitted a peer-group only comparison would amount to an insult to all those with ordinary abilities leading ordinary lives who don’t claim to be disabled merely because they couldn’t get into medical school. Disability is a meaningful word only if it doesn’t apply to everyone.
It’s easy to overlook some standards.
Abel v. Oceanic Arcata, LP, 2019 WL 5892777 (N.D. Cal. Nov. 12, 2019) is one of those cases that should remind businesses just how complex and detailed the ADA design/build requirements are. The disabled plaintiff suffered burns from hot water in the shower of an accessible hotel room. There was a factual dispute about the temperature of the water, but no dispute at all that the ADA requires that water in an accessible shower have a maximum temperature of 120 degrees. The case should also remind businesses of all kinds that ADA compliance issues don’t end when construction is over. Many ADA requirements implicate day to day maintenance obligations as well.
* See my blog at Sixth Circuit affirms its commitment to the Constitution
** See my blog at Blogathon – no so quick hits
† See my blog Browsewrap could tame the ADA website litigation monster
‡ See my post Rental bikes and the ADA
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