SAN DIEGO –(Business Wire)–
In a case that reaffirms the right to safe public access for the physically disabled, Casey Gerry announced today that a $1.25 million out-of-court settlement has been reached in a lawsuit involving the country’s longest survivor of Amyotrophic Lateral Sclerosis (ALS) – a disease in which victims progressively lose muscle control.

Defendants Troon Golf, LLC and The Crosby National Golf Club, LLC agreed to pay more than $1.1 million to Northridge, Calif. resident Marilyn Cooper, 67. The rest of the settlement was paid by Summers/Murphy & Partners, Inc., a landscape architect and Masson and Associates, Inc., an engineering firm.

According to attorney Robert J. Francavilla, a partner with Casey Gerry, his client Marilyn Cooper, who has had ALS – also known as Lou Gehrig’s disease – for 36 years, suffered serious injuries after a fall at the exclusive Crosby Estates’ Sports Center in Rancho Santa Fe, just north of San Diego. “While driving her motorized wheelchair toward a family reunion celebration, she toppled down a two-step stairway that blended into the background and created an illusion of a flat surface,” Francavilla said. “The change in elevation lacked signage, visual cues and had rails, and as a result she was unable to see the steps.” To that end, “our legal team was able to prove that the defendants clearly chose aesthetics over safety, and violated the California Building Code and ADA requirements, as well as basic common sense in the design and management of the facility, which serves Crosby Estates, a high end residential community.”

Francavilla said he was able to establish both ADA and building code violations in the design of the facility, as well as demonstrate absence of handicapped access. “What the defendants claimed was adequate handicapped access was actually a dirt path, much like many paths meandering through the complex and clearly not built or marked according to ADA requirements.”

Cooper broke her hip in the fall, and required multiple surgeries to repair her injuries – significantly impacting her already reduced mobility, Francavilla said. The settlement funds will cover medical care and expenses as well as compensate Cooper for the effect the incident will have on her quality of life.

The settlement was reached after a full-day mediation conducted by Thomas Sharkey of Judicate West.
Francavilla says he hopes this settlement will compel facilities operators, architects and designers to place high importance on safe access for the handicapped. According to ADA regulations, “stairs must be clearly visible, and handicap ramps should be very prominently marked and integrated into all buildings frequented by the public.”

Original link: [TMC news]

This is the fifth time.

A business owner went to one of our seminars about six months ago. Saw our presentation on ADA compliance. Heard about

1. the gap between the coverage of the California Building Code and the Federal Americans with Disabilities Act,
2. learned that in the California Civil Code Section 52 and 54 he was liable for 4k worth of damages minimum of affected violations of the ADA

Of course when asked if he was interested in getting our help, he said no. He went back to his store, fixed a few items immediately that he learned from our presentation… and then was several months later sued for 80 thousand dollars worth of damages. He then went and hired us.

Another one of our clients heard our seminar, decided to hire us and then upon having a consultation and an inspection paid for our services. In following up with this client, when asked if they were going to look through the report and start to fix issues they said “No. We don’t need to. We have the report.”

I don’t know what else to say. We have started working with contractors to try and offer inspections and fixes — but in general most of our clients only want us to do the report. This is okay but reports are useless unless you also fix the actual issues! Getting sued is the worst case scenario — most disabled visitors simply won’t go to your store if they can’t get in. The only ones who sue are either extremely frustrated or looking for money.

It’s so unfortunate that it takes a lawsuit to get a perfectly good business to comply, but is that what it takes? Personally I would like to see businesses hire us and let us help them find effective ways to comply. Suing a business doesn’t help that business in any way. In fact, it’s an incredibly hurtful process that doesn’t leave the business in better shape before it was sued.

So avoid lawsuits! It’s many of the very simple things that can get a business in trouble. Most of our clients that have been sued have been sued over parking paint and signage. How expensive is that? Now, maybe not everything can be fixed right away, (like signage or parking paint) but most things can be taken care of eventually. If you can only afford $100 a month for accessibility, or even $50 by all means, budget it! Get it done! Also, look for ADA experts who can tell you what needs to be done and how to remediate that violation so you ARE accessible. It’s painful to see businesses that have done work trying to become accessible and getting it so wrong.

I don’t know what else we can do. We give free seminars, and publish free information… I guess that’s really all we can do.

We are working on putting one of our older education seminars online. In the meantime, stay tuned. I am a little swamped with work so I haven’t had time to write too much on here, but I do have some more updates planned.

In the mean while, here’s an older website about some factoids about the access lawsuit situation in California (which is on the rise, by the by). The website is called ADA Crisis. It’s full of interesting facts, like “Did you know, at least 42% of the ADA/accessibility lawsuits in the U.S. are filed in California?”

Anyway, as always, our contact information if you have any questions: 866 982 3212 and help@ytaccess.com.

Re-posted from an attorney who has published an article on how to deal with letters from attorneys.

If you get a demand letter like this for ADA compliance, please, please PLEASE follow this advice. We tell business owners to use an attorney to talk to another attorney but unfortunately only half the time do they listen.

Here’s the article.

Just before leaving the office last night I got a call from Greg, of Greg’s Quality Plumbing. Greg does seem, on the phone anyway, to be a quality plumber: a nice guy running a six employee shop for new construction and homeowners. Unfortunately one of Greg’s employees made a mistake, overtightening a compression nut on the toilet water supply line in a very expensive house insured by BigState Casualty Insurance Company. The nut eventually fractured,over Christmas vacation with the family out of town, and the water flowed for days. BigState paid hundreds of thousands of dollars to rehabilitate the waterlogged house, and wants its money back. From Greg’s Quality Plumbing.

And so Greg got my letter, and Greg picked up the phone to sort this all out, and to set me straight. As I said, I have no doubt Greg is a quality plumber but Greg is an absolute amateur when it comes to dealing with sharks in the water. He made a number of serious mistakes, feeding me information about his business, the employee who did the work, the general contractor who built the house and will be cross-claiming against Greg in the coming lawsuit, and Greg’s business assets. All while trying to set me straight.

In the end, Greg did not set me straight. What he accomplished was to give me information I will use against him at his deposition and at trial. He kneecapped the defense attorney his insurance company will retain, an attorney who won’t even hear about the dispute between BigState and Greg’s Quality Plumbing for several months. I almost feel sorry for Greg, who came into the conversation with high hopes that he would frighten me off or convince me that I have no case against him. All that he did was convince me to write this post, as friendly advice to small businessmen on what to do when they get “the letter”.

You can get the complete article at popehat. Linked from Overlawyered.

Remember, like any kind of compliance or any kind of system, before you get in the ring with an expert, get your own expert.

866 982 3212 or help@ytaccess.com

This is an excellent analysis of an ADA Case:

Business property owners and tenants often misunderstand their legal obligation to make their premises accessible to individuals with disabilities. Many business operators mistakenly believe that if they have owned or leased their premises since before accessibility laws were enacted or if they have not made substantial physical changes to their premises during that time then they have no obligation to make their businesses accessible to individuals with disabilities. In other words, they believe they are “grandfathered in,” making them exempt from laws that now require businesses that are open to the public to be fully accessible to individuals with disabilities. The reality is that most business owners welcome disabled customers and offer assistance if it is needed. Yet, both federal and state laws require businesses to do significantly more.

You can find the original post here:  Wendel Rosen Black & Dean LLP

The two basic conclusions of this situation are all the things that we’ve been writing on here all along:

• Businesses are liable whether or not they own the property they are in.
• Fixing inexpensive items lower a business’s liability substantially.

Additionally, though, businesses can’t rely on unreasonable hardship as a “fix-all” as a future lawsuit some years later could cite that this business had amply time to comply with the more expensive items but did nothing in the interim.

An added consideration is that the ADA has been around for over twenty years. If a business not compliant, they will get into trouble. In the eyes of the court, businesses and property owners have had twenty years to comply. Most businesses aren’t that old — which means they should have started out compliant when they did the tenant improvements and moved in.

Any thoughts or comments?’

Note:  We are now offering a new service, under our pricing check for “Turnkey ADA Accommodation“.  Basically in addition to doing an ADA Exposure survey, we’ll fix all your items up to a certain amount and provide cost estimation for the rest so you can become compliant ASAP and significantly lower your outstanding exposure to ADA Lawsuits!

More on that soon.

help@ytaccess.com or 866 982 3212.

There’s some large confusion as to whether or not HOAs are required by the ADA to provide accommodations.

The logic that follows is simply this:

The Americans with Disabilities Act (ADA) is Civil Law that requires that places of public accommodation provide reasonable accommodations so as to allow members of the public to have access to all goods and services. The ADA is not building code and cannot be grandfathered in that way.

Home Owner Associations are in general, private entities, but may have areas that are open to the public. For example, a pool that is open to the public (but charges), guest parking, a leasing office or rooms that can be rented for are all areas that are public accommodations. Those areas definitely fall under the auspices of the ADA.

This does not mean that HOAs are exempt from the ADA however. For areas that are the exclusive use of a tenant, those areas must be allowed to be made accessible by the tenant for their own disability which includes entering and exiting a building.

Additionally, should the HOA remodel, or upgrade any of their areas, local building code would apply. For California, this definitely means Chapter 11A (which has disability requirements — causing the ADA to kick in).

This area of law does get trickier as local ordinances and other state specific laws come into play. Overall, our recommendation is that an HOA should become accessible whenever possible, to help their aging residents and avoid future litigation issues.

Unfortunately, many HOAs seem to think that resident accessibility is cosmetic or somehow not applicable to them. Some interesting links here include a story about an HOA that seems to think it doesn’t need to allow for easy ingress and egress for their residents:

AURORA, Colo. — A fight over a wheelchair ramp is pitting neighbor against neighbor at an Aurora condo complex.

69-year-old Charlotte Vaile rented the ramps with her own money after the elevator at the Bayberry Condo complex broke down, “because I can’t get in and out of the building,” she said.

Charlotte says she asked the HOA for permission to install the ramp, but the board didn’t get back to her right away.

Once the ramp was installed, the HOA promptly took it down. A board member told Charlotte the building does not have to comply with the American’s with disabilities Act because it was built before the law took effect.

Charlotte called the Aurora Fire department, and they put the ramp back up.

But the HOA is now refusing to make the 2nd and 3rd floors accessible to several other disabled people who live there.

Cathi Fort is also a disabled vet, and she lives on the 2nd floor. She told FOX31 Denver, “I feel like I’m a prisoner in my own home.”

FOX31 contacted the Bayberry Condo Association President and we were referred to the president of the property management company.

Lynda Reifman said the board “took the ramp down because they wanted the opportunity to review Charlotte’s request before she put it up.”

And when we asked Reifman what would happen to the other disabled if there was a fire in the building, she said, “the fire department will get them out, that’s their job.

If you want further resources regarding one law firm’s grasp of the ADA as it applies to HOAs, you can turn here.

The Americans with Disabilities Act and Accommodating the Disabled.

So the Takeaway from all this is that if you are an HOA be very careful.  You must not deny your tenants safe access in and out of their residences.

You could be a place of public accommodation have then you have to comply ASAP!

If you are fairly certain you’re not, also be careful, because your residents could at any point have a medical need for a ramp, or some other accommodation.  It’s of course better to become accessible, even if you don’t think you are — for future (and present) liability but if you choose to do work, that also could trigger the ADA.

You may be required to set aside an additional 20% of your budget just for ADA upgrades.

If you are an HOA or part of an HOA and have questions as to the applicability of the ADA, please contact an attorney. In general, if you take money from your residents you must consider their current and future needs (hint: egress and ingress are far more important than comestics).  Also, always also get a licensed and bonded contractor to do accessibility work — as many contractors aren’t always familiar with this area of law. If you have any questions for us, you can contact me at help@ytaccess.com or 866 982 3212.

That is, there is no end in sight as long as businesses are easy targets.

Here’s a series of links about some recent ADA Lawsuits around central and northern California.

Most ADA Lawsuits don’t come with a warning, drive-by litigants simply drive by and leave a string of lawsuits. You can read more about ADA Lawsuits in Yuba and Sutter County. Most of these come from George Louie.

More lawsuits as well from the Donner Lake Kitchen Lawsuit from Scott Johnson. You can read about his latest exploits at the Davis, CA Burger Joint, Redrum Burger.

Information thanks to Overlawyered.com and the Civil Justice Association of California.

Don’t be a victim! Look into our ADA Accommodation Tips, in particular our ADA Accommodation Tag.

Further questions, comments? 866 982 3212 or help@ytaccess.com.

Those of you who have been sued become very quickly familiar with the complex intertwine of laws that give rise to ADA Lawsuits, in particular ADA cases.

One quick way to try and buck an ADA lawsuit though, is argue that the plaintiff never visited your store.

This tactic has worked before (especially if the defendant can demonstrate that no barrier was encountered because the plaintiff never showed up!) An older case comes to my mind, centered around Home Depot, when the plaintiff provided a receipt that he visited Home Depot (but it turned out that wasn’t the right home depot).

Nonetheless, here’s an interesting article:

SELINSGROVE — The son of a Texas woman who sued several Valley businesses for noncompliance with the Americans with Disabilities Act had dropped out of Bucknell University about a month before the lawsuit was filed.

Richard K. Greer was a student during the fall semester 2010, which ended Dec. 16, but was not a student in the spring semester that started in January, university spokesman Tom Evelyn confirmed Thursday.

Meanwhile, Greer’s mother, Leslie Greer, filed ADA lawsuits on Jan. 11 against BJ’s Steak & Rib House, Emma’s Food for Life and Bot’s Cafe Inc., all of Selinsgrove; Mom’s Dutch Kitchen, Danville; Fox’s Family restaurant, Pennsdale; Colonial Village Plaza, Shamokin Dam; and Basin Street Shopping Center, Williamsport.

Leslie Greer, who uses a wheelchair, alleged in her lawsuit that she patronized the businesses during a recent visit with her son, a Bucknell student, and believes they are in violation of the ADA.

But when several of those being sued informed Greer they learned her son was no longer a student, the lawsuits were dropped.

“The premise of suit was that she’d be in our establishment, that there was the possibility she could continue to patronize us during her son’s tenure at Bucknell,” said Rick Schuck, owner of Bot’s. “He transferred in December, and we were served in the middle of January.”

You can read more here: Lawsuits against small businesses dropped from The Daily Item and through Overlawyered.com

Another way is to have a surveillance video of your store of everyone who enters your store — assuming of course that you didn’t erase your tapes, or that they did in fact did enter your store.  A loophole with this approach is that if you don’t have accessible parking, it’s possible that the plaintiff would claim that they couldn’t enter your store because there wasn’t proper parking, or there was something wrong with the outside. Sometimes that’s not the case. We can help provide evidence to verify the plaintiff claims, something we do regularly.

But that’s a different issue. Of course, the best way to avoid attracting a serial litigant who sees your facility as being an “easy target” is to become 100% compliant, to have all the appearance of compliance.

Comment below and share your thoughts on this!

If you want more tips on accessibility you can go here: Accommodation Compliance Rules and Regulations. Or you can reach us at 866 982 3212 or email us at help@ytaccess.com.

Here is a very interesting story about service animals and places of public accommodation:

Christy Gardner, who was a driven athlete at Edward Little High School in Auburn and at Long Island College in New York, found basic training at Fort Leonard Wood a breeze.

She cruised through military police training before being deployed to the demilitarized zone between North Korea and South Korea.

But she suffered a traumatic brain injury during police operations there, and even the most basic tasks became challenging, even dangerous. “My medical records said I was not allowed to bathe alone, in case I had a seizure,” said Gardner, 28.

With brain damage that makes her prone to terrible seizures, Gardner lays credits for her ability to live alone squarely at the four furry feet of her golden retriever, Moxie.

Moxie, a service dog, can sense her owner’s grand mal seizures 10 minutes before they hit, and warn her to sit on the ground so she doesn’t injure herself falling.

Moxie can pull blankets off Gardner so she doesn’t choke during a seizure in bed, and is trained to roll her on her side and dial 911 on a special, large-button cell phone. She even can open the door, run to a neighbor’s home and ring the doorbell for help in an emergency.

So Gardner was startled when she entered a Portland convenience store last summer to get Moxie some water and the owner ordered them to leave, then walked toward them, his hands outstretched, to herd them from the store.

Gardner was frightened, mostly for Moxie. “If something happened to her physically, I have to find a live-in nurse or I have to live in a (nursing) home,” Gardner said.

You can read more from The Portland Press Herald. I sourced it from this Twitter: Service Dog Registry of the United States.

EDIT:

An additional story:

An Aurora man has sued the International House of Pancakes, saying employees at the popular breakfast restaurant discriminated against him because he uses a service dog.

The suit, filed in Kane County Court, alleges that Ricky Lee Schopp went to the IHOP restaurant on Augusta Way in Aurora on June 30, 2009, with his mother and his service dog, Phato. Schopp is paralyzed from the waist down and uses a wheelchair. Phato, a Labrador retriever, helps with certain skills, like opening doors.

At first, Schopp, his mother and the dog were seated at a table by the IHOP hostess, the suit says. However, not long after they sat down, an IHOP employee demanded they move to a different section of the restaurant that had no other customers, forcing them to eat alone, the suit says. The employee said the reason for the changing tables was that Schopp had a dog with him.

After being informed that it was a service dog, the employee still insisted they move or leave the restaurant, the suit alleges. Schopp chose to leave the restaurant.

You can also read this additional story of a Man from Aurora suing an IHOP for the same denial of service From: the Beacon News.

Service Dog Registry is a volunteer registry for Service Animals. It is NOT required. For more information about Service Dogs you can turn to United States Service Dog Registry.

Any questions about accessibility in general, feel free to call 866 982 3212 and help@ytaccess.com.

Through Overlawyered.com comes this article from the California Civil Justice Blog.

Cities can worry a little bit less about unexpected litigation costs in their already-strained budgets after a federal court ruling at the end of March ended a 14-year dispute over street curbs and sidewalks in Riverside, CA. A Riverside man named John Lonberg, who uses a wheelchair, first sued the city in 1997 claiming its curbs were sloped too high and lacked dividers to allow disabled access. In the latest ruling, U.S. District Judge R. Gary Klausner ruled Lonberg had failed to demonstrate that Riverside as a whole is inaccessible to the disabled. A ruling in favor of Lonberg could have meant millions of dollars in liability for mandatory modifications.

Riverside’s City Attorney, Greg Priamos, was quoted in the Daily Journal saying the suit was “about money, not accessibility…The only hangup to a settlement earlier in the case was the amount of attorney’s fees. I’m offended by that.”

The lead counsel for Riverside, Greg Hurley, added, “Had Lonberg prevailed, there would have been an avalanche of lawsuits, because no city in the U.S. is totally accessible.”

Read more on the details of the case in the Riverside Press-Enterprise and Daily Journal (subscription required). Note the millions Riverside has spent over the past ten years to resolve the vast majority of its handicapped access issues, and the $221,000 Lonberg received in 2007.

The basic takeaway here, is that Riverside saved by this last judgement. By needing to prove that an entire city is not accessible, cities may be saved from an “avalanche of lawsuits”.

Nonetheless, entities in charge of public right of way should be aware that the ADA applies to them as Federal Civil Rights Law — requiring them to update their sidewalks even if their sidewalks preexist the ADA [New Jersey Protection and Advocacy, Inc. v. Township of Riverside, 2006 WL 2226332 (D.N.J.))].

This issue will be compounded in the near future when the access board, which is quasi-Federal agency to determine accessibility standards, is working on a Public Right of Way Accessibility Guidelines. Once this becomes law, you can be sure there will be a ton of lawsuits to follow as these guidelines explicitly apply to municipalities.

And of course, it’s been proven over and over that businesses are liable since the ADA has requirements that businesses must follow. As the economy gets worse, more and more people will be tempted by this on-going series of ADA lawsuits… so the avalanche for more businesses to get sued is bound to rise even more.

So GET COMPLIANT, either from us or from someone else.

Contact us for questions at 866 982 3212 or email us at help@ytaccess.com.

Following an on-going Chipotle case as covered previously:

Chipotle Deprived Disabled of Food View [From San Francisco Chronicle: Chipotle and Disabled Rights Lawsuit]

WASHINGTON — The Supreme Court won’t stop a disabled man’s lawsuit against Chipotle Mexican Grill for having counters too high for a person in a wheelchair.

The high court on Monday refused to hear an appeal from the Denver-based chain.

Maurizio Antoninetti sued when he found that he could not see the Chipotle food preparers because of the height of the counters. A federal judge ruled against him, saying Antoninetti had sued dozens of other places for access violations and dropped the suit after received cash settlements.

The judge said Antoninetti was insincere about wanting to return and eat at Chipotle.

The 9th U.S. Circuit Court of Appeals overturned the judge’s ruling, saying Antoninetti’s litigation history cannot be used against him.

The case is Chipotle Mexican Grill, Inc. v. Maurizio Antoninetti, 10-1051.

[From Huffington Post: Supreme Court Permits Maurizio Antoninetti's Lawsuit Against Chipotle]

If you are aware of this past lawsuit back in 2006, and you’ve been to a new Chipotle you will notice that even some of the new ones are not built to the standards required by that lawsuit (of having a continuous lowered counter).

The lesson here is simply that a business’s responsibility to follow the law cannot be waived for external reasons.

I’m sure more information will come forth soon.

Comment below and share your thoughts on this!

If you want more tips on accessibility you can go here: Accommodation Compliance Rules and Regulations