Liability Aspects of Pedestrian Facilities (2015)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

3 LIABILITY ASPECTS OF PEDESTRIAN FACILITIES By Terri L. Parker, Parker Corporate Enterprises, Ltd.; Ronald Effland, Missouri Highway and Transporta- tion Commission; and Melissa N. Walden, Texas Transportation Institute* I. INTRODUCTION This digest addresses legal claims that relate to pedestrian facilities, such as sidewalks and cross- walks, and focuses on allegations of violations of the Americans with Disabilities Act1 (ADA) and lawsuits alleging that a government agency has been negligent in maintaining its facilities. Lim- ited and sometimes completely inaccurate infor- mation can be found in mainstream media regard- ing the legal aspects of design, construction, inspection, and maintenance of pedestrian facili- ties. Many of the reported verdicts and settle- ments are sizeable. These reports may be mislead- ing because they encourage the public to believe that all verdicts and settlements of these claims are sizeable. This research indicates that many tort settlements have a low value and that much tort litigation ends with a defendant’s verdict. ADA complaints catch the attention of the public when a disabled person is injured or denied access to a public facility, but in reality numerous ADA complaints are resolved through a mediation process or when injunctive relief is granted to the plaintiff. A detailed analysis of this research can be found in this paper and the appendices. Regardless of the out-of-pocket costs of litiga- tion, state and local agencies must appropriately construct and maintain their pedestrian facilities in order to maintain a reasonably safe transporta- tion system. The data available at the time of this report indicates that 4,432 pedestrians died in traffic crashes in 2011, which was a 3 percent in- crease from the number reported in 2010. In fact, in 2011, pedestrian deaths accounted for 14 per- cent of all traffic fatalities.2 The ADA originally required states and local agencies to formulate plans and work towards the * Texas Transportation Institute’s participation con- sisted of preparing and conducting the survey and pro- viding responsive data for the report. 1 42 U.S.C. 126, §12101. Pub. L. No. 102-25, as amended. 2 NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, TRAFFIC SAFETY FACTS (August 2013), available at http://www.-nrd.nhtsa.dot.gov/Pubs/ 811748.pdf. goal of compliance with federal law. However, bringing all local, state, and federal governmental agencies into compliance with the ADA has proven to be time consuming and difficult. Up- grades to buildings and pedestrian facilities are expensive and complicated. Sidewalks and cross- walks have become a major source of tort and ADA claims and a reliable source of income for plaintiffs’ attorneys in some jurisdictions. ADA claims have become so prevalent in California that a state law prohibiting frivolous claims was enacted.3 This publication is written for state and local transportation agencies that are tasked with the construction and maintenance of sidewalks and other pedestrian facilities. It is anticipated that this paper will be valuable to both government agencies and private entities and will contribute to the enhanced safety and accessibility of pedes- trian facilities. In Section I of the digest, landmark ADA cases are outlined to explain the basis of today’s legal issues. In the context of transportation litigation, ADA claims are usually based on lack of access to a facility, such as a sidewalk or a public building, by a disabled person. The typical trigger for a claim in the transportation context is the ADA requirement that when an "alteration" to a road surface or other facility occurs, the facility must be improved in a manner that allows ready access to individuals with disabilities, i.e., when a 2-inch asphalt overlay is done on a roadway, the adja- cent sidewalks must be upgraded and curb cuts provided. Caselaw relating to the definition of “al- teration” is analyzed in this section and the July 2013 Department of Justice (DOJ) memo that specifies which treatments are considered to be maintenance and which constitute an alteration of the sidewalk is highlighted.4 Settlements and ver- 3 In September 2012, the California State Legisla- ture enacted SB 1186 in an effort to limit frivolous Dis- abled Persons Act claims and encourage compliance with disability access laws. It is codified in § 6106.2 of the Business & Prof. Code. 4 FEDERAL HIGHWAY ADMINISTRATION AND U.S. DEPARTMENT OF JUSTICE, JOINT TECHNICAL ASSISTANCE ON THE TITLE II OF THE AMERICANS WITH DISABILITIES