Update from The Capitol: Efforts to Park Drive-By ADA Lawsuits

May 01, 2017

Written by Ed Beckmann, Hellmuth and Johnson

This article is a follow-up to a previously written article on ADA “drive-by” lawsuits. 

Legislation is moving through the Minnesota Legislature to further refine the Minnesota Human Right Acts.  Last year the Legislature and Governor Dayton modified this law to give property owners an affirmative defense if the plaintiff fails to give notice of disability law violations before suit.  The new law can be found in Minn. Stat. § 363A.28 Subd. 3.  An affirmative defense is an argument to make a trial, and may or may not be successful.  The argument in the ADA “drive-by” situation would be the property owner would have remedied the problem with notice, and failure to give notice is fatal to the lawsuit.  Two new bills moving through the Legislature would enhance this defense.

On March 6, 2017, I attended a Senate committee hearing in St. Paul.  A citizen from Mankato testified that approximately 70 disability access suits were served in the area within a two-year span.  One property owner, who owns a barber shop, said he was more than willing to remedy the problem at his building, but he could only do so after a suit was filed and after paying attorney fees to defend himself.  The expense of paying lawyers and a plaintiff for relatively small infractions could be saved if the plaintiff had simply provided notice before suit.

The bills moving through the Legislature would require a plaintiff to give written notice of accessibility violations before suit.  A bill currently (as of 4/28/17) on the Senate floor requires notice for all claims.  A bill moving through the House requires notice except for claims arising from a physical injury, or a claim moving through the Minnesota Human Rights Commission rather than the courts.  Therefore, all “drive-by” claims with no physical injury destined for court are subject to the notice requirement.  The notice requirement gives the property owner an opportunity to fix the alleged violation of Minnesota law, or show there is no violation, before a lawsuit. 

The House bill reflects input from the Minnesota Legal Aid, the Minnesota State Council of Disability, and a statement of neutrality from the Minnesota Human Rights Commission.  Last Thursday, April 27, the revised bill passed the entire house on a bi-partisan vote of 110 to 22. 

The House bill would not completely bar claims should the alleged violation be fixed before suit.  A suit may still commence.  Yet a property owner would have a very strong defense if the disability violation is fixed.  The plaintiff would be suing over a fixed problem.  The hope is this positing would discourage notorious “drive-by” lawsuits from ever being filed because of so little resulting harm.

The Senate bill is currently on the floor of the Senate.  BOMA and Chamber lobbyists expect amendments to the Senate bill so that it mirrors the House bill and receives the same bipartisan support.  This support may encourage Governor Dayton to sign the bill.

This is important legislation that all BOMA members should carefully consider.  BOMA and the Minnesota Chamber have advocated in favor of this bill.  All people who want “drive-by” lawsuits curbed should contact their state senator and Governor Dayton. 

The new legislation would be a welcomed change to state law, but of course, it would not impact the federal ADA.  Lawsuits will continue in their current form without assistance from the federal government.  Last year, a helpful bill was moving through Congress but failed to pass before the Congress ended.  If legislation that is similar to what is moving through the Minnesota legislature were signed into federal law, all property owners would benefit.  BOMA members would see a dramatic reduction in their exposure to “drive-by” "lawsuits, including lawyer’s fees.  Funds now directed to lawyers and settlements could be focus on remedying the violations themselves.  Everyone can agree on that outcome. 

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