Written by Ed Beckmann, Hellmuth and Johnson
“Drive-by” disability claims are so prevalent in Minnesota that local media regularly report on efforts to curb them. The “drive-by” description arises from the idea that the Americans with Disabilities Act, and its state law companion, the Minnesota Human Rights Act, are being used as unfair money makers for certain plaintiffs and their attorneys. The ADA and MHRA were written to make every commercial enterprise open to the public handicap-accessible. The intent of the law is obvious and beyond reproach. Unfortunately, these statutes have resulted in unfair liability to property owners and resulted in unfortunate payouts to plaintiffs and law firms. It has been a hardship on business owners that several organizations such as the Minnesota Chamber of Commerce have sought to alleviate.
There are two central difficulties with “drive-by” ADA lawsuits that property owners and their managers should understand. First, any small infraction of ADA Accessibility Guidelines published by the federal government, or the state Building Code, can trigger a lawsuit. Second, settlement of these suits without remedying the rule infraction limits very little liability. The rule infraction must be addressed.
Last year, the Minnesota Legislature passed a statute meant to address these “drive-by” lawsuits. Under the MHRA, plaintiffs must now serve a notice of an alleged violation and give a property owner the chance to remedy it before litigation. If a plaintiff fails to give this notice and a chance to remedy, the property owner will now have an affirmative defense in litigation. The essence of the defense is the plaintiff failed to give pre-suit notice. The new law can be found in Minn. Stat. § 363A.28 Subd. 3. At the federal level, similar legislation passed a committee but did not make it to the House floor. It would be extremely helpful for the federal government to change the ADA, as Minnesota changed state law, to address “drive-by” lawsuits.
There are certain areas of a building that property owners should focus on to avoid liability. The parking lot is top of the list. A true “drive-by” lawsuit would require a plaintiff to do no more than simply drive into the parking lot, observe a violation of law, and sue. People well versed in ADA signage, striping, and other requirements of a parking lot should assess parking lots to ensure compliance. It is also important to assess the building’s entrance and whether the surface approach can be navigated by a wheelchair. Lawsuits can and do arise from just a three-quarter inch rise between the plate at the bottom of a doorway and the sidewalk leading to the front door. Finally, every property owner should review their bathroom stalls to ensure accessibility. Parking lots, entrances, and bathrooms are the origins of most “drive-by” lawsuits. Property owners should consult with a certified professional with demonstrated knowledge in accessibility requirements
The ADA and MHRA do include a “grandfather” clause that may be helpful. Property built or remodeled before January 26, 1992 may not need to comply with the letter of ADAAG guidelines. These older buildings need only make “reasonable accommodations” for handicap accessibility. What is reasonable? That there is no bright line rule. Many public buildings such as restaurants in our central cities do not offer patrons handicap accessible bathrooms on the main level. If the bathroom is downstairs, the expense of adding an elevator is so cost-prohibitive that the law does not require it. However, it would be difficult for any property owner to argue that the expense of proper handicap parking signage, parking striping, or even sidewalks and door entrances are so cost-prohibitive that a building cannot be retrofitted for handicap accessibility. The assessment of what is cost prohibitive should be very thoughtful and handled by professionals. A maintenance team with accessibility licensure from the state should perform an audit and assess potential liability.