Low hanging fruit for professional disabled plaintiffs: Breaking down the structure of an ADA lawsuit- Part 1

Low Hanging Fruit For Professional Disabled Plaintiffs: Breaking Down The Structure Of An ADA Lawsuit (Part 1)

Everyday, there is a steady stream of ADA lawsuits being filed against both small and large businesses in this country. The truth is many of these suits could have easily been avoided if the defendant had understood some simple facts.

Regardless of the state in which the suit is filed in, they all present harsh consequences for the defendant when the final gavel is heard.

Not a week goes by that I don’t receive a copy of a court summons in an ADA lawsuit from a client. As I read through and dissect the plaintiff’s lists of alleged violations, I can’t help but shake my head with disgust and frustration. The barriers that are being called out in most cases are a result of simple neglect and lack of maintenance on a property.

On Memorial Day, I sat and read through a 10-page lawsuit against a small business owner located in the Bay Area of California. This one was especially hard on me because the defendant is a retired disabled Marine who is confined to a wheelchair. He has no legs from the knees down and is missing his left arm from the elbow down.

This disabled Marine served his country and paid a huge price yet pushed through the barriers in his own life to start a retail business. This man comes to work everyday, parks his van in the back lot and makes his way around the building, up and over a 4” curb at the end of the walkway to access his entry door.

Let me give you some detail to set the stage for the rest of this story, here’s why …

A professional disabled plaintiff who is also in a wheel chair sued this disabled Marine small business owner for alleged barriers outside and inside his retail space.

After I threw the 10-page document across the room and yelled out “You have to be freaking kidding me,” I gathered my wits (and all the papers off the floor) and sat down at my desk.

At that moment, I realized that more people needed to know how these plaintiffs structure these lawsuits.

What are they armed with when they go out to battle?

Although I can’t disclose specific names and sensitive information, I want to show you the codes, laws and the basic structure of a court summons in a civil rights action.

Here is how they structure an ADA lawsuit:

1.     A summons in a civil action will always first establish who is suing whom and in what district is the suit brought.  The Summary, Jurisdiction & Venue explain this.

 

I.              SUMMARY

 

This is a civil rights action by plaintiff “JOE SHMO” (plaintiff”) for discrimination at the building, structure, facility, complex, property, land, development, and/or surrounding business complex know as:

Retired Marine Retail Shop
1234 Main Street, #12
San Francisco, CA

2. Plaintiff seeks damages, injunctive and declaratory relief, attorney fees and costs, against RETIRED MARINE RETAIL SHOP, pursuant to the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) (“ADA”) and related California statutes.

 

II.      Jurisdiction

 

3. This court has original jurisdiction under 28 U.S.C. 1331 & 1343 for ADA claims.

 

4. Supplemental jurisdiction for claims brought under parallel California law- arising from the same nucleus of operative facts-is predicated on 28 U.S.C. 1367

 

III.    VENUE

 

5. All actions complained of herein take place within the jurisdiction of the United States District Court, Northern District of California, and venue is invoked pursuant to 28 U.S.C. 1391(b), (c)

 

IV.     PARTIES

 

6. Defendants own, operate, and/or lease the facility, and consist of a person (or persons), firm, and/or corporation.

 

7. Plaintiff is substantially limited in his ability to walk, and must use a wheelchair for mobility. Consequently, Plaintiff is “physically disabled,” as defined by all applicable California and United States laws, and a member of the public whose rights are protected by these laws.

 

V.       FACTS

 

8. The Facility is open to the public; intended for non-residential use, and its operation affects commerce. The Facility is therefore a public accommodation as defined by applicable state and federal laws.

 

9. Plaintiff visited the Facility and encountered barriers (both physical and intangible) that interfered with, if not outright denied, Plaintiff’s ability to use and enjoy the goods, services, privileges and accommodations offered at the Facility. Plaintiff personally encountered the following barriers at the Facility during Plaintiff’s visit to the Facility on or about March 17th, 2015:

 

a)    Plaintiff had difficulty locating a designated accessible parking stall at the Facility because the stall had faded paint and the parking lot was cracked, further obstructing the pavement markings.

b)    The ramp from the parking lot to the sidewalk leading toward the building entrance was an improperly configured built-up curb ramp, which made it difficult for Plaintiff to maneuver his wheelchair up and down the ramp. He needed his wife’s help to ascend and was afraid that his wheelchair would roll off the sloped sides of ramp.

c)     The aisles inside the Facility lacked necessary wheelchair clearances, and Plaintiff was unable to wheel around inside the store for fear of knocking things off the shelves and breaking them. He had to wait in an open space near the entrance while his wife went around the store and brought merchandise to the Plaintiff so that he could make a selection.

WOW! That’s it?  No, not even close!

So:

  1. The parking lot was cracked and the striping was faded?
  2. The asphalt built-up ramp was poorly designed and the sloped sides are scary?
  3. The interior aisles throughout the shop do not allow for wheelchair clearances?
  4.  Oh, but they don’t just stop there …

The complaint goes on and on, and the Plaintiff continues to drive his point home.

I don’t want to bore you with two-pages of the exact verbiage, so I created this summary:

  1. The barriers listed above are only those the Plaintiff personally encountered.
  2. Plaintiff is presently unaware of other barriers, which may in fact exist that may relate to his disability.
  3. Plaintiff will seek to amend this compliant once such barriers have been identified.
  4. The Plaintiff seeks to have all barriers on the property that affect his disability removed so that he is afforded full and equal access.

5)   Plaintiff continues to be deterred from visiting the Facility because he knows that the services and goods are unavailable to him due to his disabilities.

6)   Defendant “knew or should have known” that these barriers existed and that they violate state and federal law.

7)   Defendant has possessed and controlled the Facility for many years and still refused to remove such barriers.

8)   Defendant has intentionally maintained the Facility in its current condition and has intentionally refrained from altering the Facility so that it complies with the accessibility standards.

9)   Plaintiff further alleges that the (continued) presence of barriers at the Facility is so obvious as to establish Defendants’ “discriminatory intent”

In a nutshell, the Plaintiff was confused when he pulled onto the property as he tried to figure out where to park. Once he figured that out, he was scared by the small asphalt ramp that provided access up onto the sidewalk. And once inside the store, he had to stay near the entry door because he was scared that he might knock product off of the shelves if he tried to move around.

Even though the Plaintiff only encountered a few barriers, he wants to look around and find ALL barriers on the property that MAY deny him access.

The shop owner (the Defendant) who is a disabled wheelchair user himself is now brought into a lawsuit because the parking lot had issues. The fact that the shop owner is in a wheelchair and wheels around his own shop stocking shelves and doing business makes the alleged clear space issues inside the shop that much more unbelievable. But nonetheless, the Defendant has to deal with this suit.

The landlord failed to properly maintain at least a decent asphalt surface in the parking lot and appropriate striping and signage. The cost to repair this area would have been less than $5,000 and could have been done over a few years.

Because of neglect or just not being aware, this landlord allowed a $5,000 maintenance issue to turn into a $90,000 slap in the face.

Next month, watch for Part 2 where I detail out the claim and settlement process.

 

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