Each year Jerry Doran travels 550 miles from his home in Cottonwood, Calif., to visit Disneyland. In 2004 his annual vacation hit an unpleasant roadblock. Doran, who is mobility-impaired and uses a wheelchair-accessible van to travel, stopped at a 7-Eleven store in Anaheim only to find that the store had no van-accessible parking, its wheelchair ramp was too steep for him to ascend and a mat obstructed the entryway, making it impossible for a person in a wheelchair to enter the store.
Doran waited outside while his companions went into the store for him. But he didn't forget the experience. When he returned from his trip, he sued for injunctive relief under Title III of the Americans With Disabilities Act (ADA) and for injunctive relief and monetary damages under California law.
Doran's suit didn't just seek to address the parking lot and the inaccessible ramp--instead Doran's lawyer asked the court to allow him to conduct a full inspection of the 7-Eleven store to identify other ADA violations that would have affected Doran if he'd been able to enter the store.
After much legal wrangling and several appeals, the 9th Circuit found not only that Doran and other ADA plaintiffs should be allowed to inspect sites for
violations they did not encounter, but also that they have standing to sue to remedy those violations. Needless to say, this decision has business owners in the
9th Circuit worried.
"It gives carte blanche for professional litigants to audit your space for ADA compliance," says Scott Oborne, partner at Jackson Lewis. "It makes Title III litigation more dangerous, complex, expensive and involved."
One of the main reasons this decision is so troubling to California business owners is that disability discrimination litigation is already a thriving business in the state. This is due in large part to the state's Unruh Civil Rights Act, which provides a minimum statutory penalty of $4,000 for any accessibility violation. Many plaintiffs' lawyers--and a growing pool of serial litigants--make a living by suing for small recoveries from multiple California businesses that have easy-to-identify technical violations of the act, such as missing signs identifying reserved parking.
Such a litigation industry isn't possible in most other states because the ADA does not allow private plaintiffs to sue for money damages. And in Florida, which also provides a statutory penalty for accessibility violations, the courts have curbed the trend of serial litigation by limiting the right of plaintiffs to sue for violations they did not personally experience.
"Courts in the 11th Circuit routinely support the proposition that you
cannot assert a claim for barriers you did not encounter," says Steve A. Miller,
Of counsel at Fisher & Phillips. "You have to have an actual injury."
But the 9th Circuit's decision in Doran v. 7-Eleven eliminates that requirement, giving California plaintiffs even more incentive to go out looking for technical violations of the ADA.
Whereas in the past most such claims were confined to a handful of violations that a plaintiff named in his complaint, now a plaintiff that encounters any ADA violation has the right to have an expert inspect the entire site for other problems and can sue over any violation that would have made the site inaccessible to him had he actually encountered it. This means that a single violation, such as a missing sign or a too-narrow door, can become a costly and complex lawsuit.
"It's one thing when a suit is brought against a 7-Eleven," Miller says. "But on a large property such as a seven-story department store or a 1,000-room hotel, this really opens a Pandora's box."
The first line of defense to the coming surge of Title III litigation is to address any issues outside your facility that might inspire a litigation tourist to take a closer look.
The ADA and Unruh Act describe a large set of specifications with which all places of public accommodation must comply, such as the width and demarcation of parking spaces, the placement of signs designating spaces as reserved for individuals with disabilities and the type of door handle that should be on front entryways. A suspicious exterior often clues in an enterprising plaintiff that more violations might be inside. Auditing the outside of the building for compliance is an important first step to reduce the risk of litigation.
"Have an expert come in and audit your space," Oborne recommends. "Spend the money now to get into compliance, because there is too much potential for broad-reaching lawsuits."
If a company is targeted in an ADA suit by a serial plaintiff, standing is still an important defense to consider. While Doran makes it harder to have a suit tossed at the motion-to-dismiss stage, companies can still get rid of claims on summary judgment if discovery reveals that the plaintiff does not have an imminent risk of injury because he does not intend to come back to the establishment in the future.
"A plaintiff still needs to show an injury in fact," Miller points out. "If the plaintiff lives 500 miles away and has no intent to come back to this property, there's a question of standing."