Liability Aspects of Pedestrian Facilities (2015)

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4 dicts are presented to illustrate the costs of failure to construct improvements in a timely manner. Additionally, DOJ investigations and settlement agreements are reviewed and discussed. Lessons learned are also included as practical advice for the agencies. In Section II of the digest, tort claims are re- viewed and discussed. Plaintiffs’ claims typically include slip and fall and trip and fall accidents. Claims may also be based on the improper loca- tion, installation or signing of a crosswalk, or the complete failure to provide or upgrade the facility. Each of these types of cases are discussed, with an emphasis on the “failure to replace or rebuild” and “failure to provide facility” claims as they are non- traditional tort claims. The defenses employed by public agencies such as the “open and obvious” defense, design defense, lack of notice, the de minimis rule, compliance with the ADA and liabil- ity shifting ordinances are discussed. Tort ver- dicts and settlements are also analyzed in this section. Section III of the digest is devoted to an analy- sis of the formal survey and survey results and statistical summaries of the data collected in the survey. Section IV contains considerations and recommendations for risk management strategies and recommendations for compliance. II. ANALYSIS OF LEGAL ISSUES RELATING TO ADA CLAIMS A. ADA Issues The main applicable provisions of federal law are set out in their entirety, and other applicable provisions can be found in Appendix B. Some of the most important court cases are reviewed in this section to provide the background for the pre- sent state of the law. This section also includes a discussion of the role of the Department of Justice in civil claims and ADA compliant facilities, an analysis of current caselaw, and a review of mul- tiple agencies’ experiences with ADA issues. Cases involving compliance with the transition plan are analyzed and reviewed. Finally, reported claims and verdicts are discussed and analyzed. The typical trigger for a claim against a trans- portation agency is when an “alteration” to a road surface or other facility occurs and the sidewalk is not altered at the same time to allow ready access to individuals with disabilities, i.e., when a 2-inch asphalt overlay is done, adjacent sidewalks are ACT REQUIREMENTS (July 28, 2013), found in Appendix A. supposed to be upgraded and curb cuts added or modified to current standards. Until 2013, federal guidance was not completely clear as to which road treatments constituted an alteration and which were merely maintenance.5 Clarifying guidance and caselaw relating to the definition of “alteration” are discussed below. Government agencies are required by federal law to prepare a “transition” plan that outlines when its facilities will be in full compliance with the ADA provi- sions. B. The Law The Americans with Disabilities Act was signed into law in 1990 and amended in 2008. Revised regulations relating to accessibility standards were published in 2010.6 The text of the Act can be found at 42 U.S.C. 126, Sections 12101 et seq. For the purposes of this article, the pertinent sec- tions are as follows: Section 12132. Discrimination Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such dis- ability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public en- tity, or be subjected to discrimination by any such entity. Section 12147. Alterations of existing facilities General rule. With respect to alterations of an existing facility or part thereof used in the provision of designated public transportation services that affect or could affect the usability of the facility or part thereof, it shall be con- sidered discrimination, for purposes of §12132 of this title and §794 of Title 29, for a public entity to fail to make such alterations (or to ensure that the alterations are made) in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily ac- cessible to and usable by individuals with disabilities, in- cluding individuals who use wheelchairs, upon the com- pletion of such alterations. * * * * Essentially this section of law states that if a public entity chooses to make changes rising to the level of “alterations” to a facility, it must use that opportunity to make the altered portions of the facility accessible. Even though the ADA has been in effect since 1990, some agencies are not in compliance. If a complaint of noncompliance is made to the agency, the complaint will likely esca- 5 Id. 6 The Department of Justice has an online version of the 2010 ADA Standards for Accessible Design that can be found at ADA.gov. The 2010 changes encourage agencies to integrate walking and bicycling into their transportation systems. (See http://www.ada.gov/ 2010ADAstandards_index.htm.)

5 late to involve the Department of Justice if not resolved at the local level. Methods of compliance with the Act have been explained in various CFR sections as noted in Appendix B. C. No Requirement to Provide Pedestrian Facilities It is important to note that the ADA does not require public agencies to provide pedestrian fa- cilities and that existing sidewalks, if built on or before January 1992, do not have to be made ac- cessible. But where those sidewalks have been altered since 1992 or were built after 1992, they must be accessible to the disabled.7 When agen- cies construct improvements that provide access for pedestrians, the completed project must meet accessibility requirements for persons with dis- abilities to the maximum extent feasible.8 The basic requirements of ADA are that: 1) new construction and altered facilities must be free of architectural and communication barriers; and 2) existing facilities, policies, and programs must be evaluated for discrimination and a plan for modi- fication (a transition plan) must be put in place in a timely manner. D. Department of Justice Jurisdiction The DOJ is tasked with enforcement of the ADA. Typically, DOJ gets involved in a situation in one of two ways, either via citizen complaint or through its own investigations. Through investi- gations, lawsuits, and settlement agreements, the DOJ usually works on behalf of disabled individu- als. In the course of litigation, and with the assis- tance of the DOJ, courts may award a plaintiff compensatory damages or they may impose fines on non-compliant government agencies or busi- nesses. DOJ frequently writes amicus briefs or statements of interest to guide courts in interpret- ing the ADA. DOJ provides free mediation services to indi- viduals, parties, and government agencies who are involved in a dispute. The agency provides technical assistance to businesses, states, and lo- cal agencies. DOJ also has an informational web- site and interactive telephone lines and is able to supply technical materials to the public and other government agencies. Annual status reports are 7 28 C.F.R. 35.149 and 35.150. 8 See CIVIL RIGHTS MEMORANDUM, FHWA, CLARIFICATION OF FHWA’S OVERSIGHT ROLE IN ACCESSIBILITY (September 12, 2006), available at http://www.armor-tile.com/articles/pdfs/DOT-info- Memorandum.pdf. posted on the ADA website so that Congress and the public can educate themselves on the activi- ties of the agency. 1. Project Civic Access Project Civic Access (PCA) is a DOJ program that requires staff of the Disability Rights Section (DRS) to review a community’s compliance with ADA and identify modifications to public facilities that are needed for compliance with the law. More than 200 PCA reviews have been conducted by the DOJ in more than 190 locations since the incep- tion of the program. The DOJ has conducted PCA compliance reviews in all 50 states, Puerto Rico, and the District of Columbia. The results of each compliance review are posted on the PCA website to help other communities and state and local agencies understand the types of accessibility is- sues that the Department of Justice reviews when determining ADA compliance. According to the DRS, an agency should review its facilities with the idea that the pedestrian trip begins where the vehicle trip ends, and both of those trips should be accessible by the public. The guidelines used to evaluate public rights-of-way were developed by a group of access professionals, and are discussed in more detail in Section II. Typical transportation issues addressed during the investigations in- clude: physical modifications to facilities, accessi- ble parking, and accessible routes to and through- out the pedestrian facilities. The first DOJ settlement agreement was reached with the city of Toledo, Ohio, in August 1999. In that agreement, the city agreed to re- move “barriers to access” within its facilities and to relocate some of the activities that were held in locations that could not reasonably be made ac- cessible to individuals with disabilities. The re- view for ADA accessibility included city owned facilities such as the municipal courthouse, police stations, fire stations, parking garages, museums, city parks and recreation centers, and city ad- ministration buildings. DOJ reports that local agency officials often re- spond favorably to PCA reviews and assist inves- tigators as they work to review ADA compliance within the community.9 Local officials are able to provide records about alterations and remodeling work performed within their facilities and rights- of-way. Additionally, local officials are asked to assist investigators as they conduct onsite compli- 9 Enforcing the ADA, Part 1, available at http://www.ada.gov/5yearadarpt/ii_enforcing_pt1.htm, site last visited April 25, 2014.

6 ance surveys to expedite the inspections and to help educate local staff on the items that are cov- ered under ADA provisions. After the PCA follow- up reviews are completed, the city is provided a listing of items that need to be corrected to make their programs and facilities more accessible to all members of the public. Frequently after a DRS official conducts a review of a city’s facilities, nec- essary improvements are set out in a settlement agreement. Normally a city will be allotted three to six months to do the following: set up a system for accepting input from persons with disabilities; identify the roads and highways that have been constructed or altered since 1992; identify side- walks and crosswalks that have been constructed or altered since 1992; and begin constructing ap- propriate improvements such as curb ramps or new sidewalks. All these steps have to be reported to DRS officials and the local agency will be moni- tored for progress. A good source of current infor- mation on this process can be found at the De- partment’s Best Practices Toolkit for State and Local Governments.10 From 2011 to 2013, the DOJ entered into 26 settlement agreements after investigating local and state agencies. Details of those investigations can be found in Appendices C and D. The top five most common ADA deficiencies reported in PCA reviews include: signing within accessible parking areas; excessive slopes within accessible parking areas; handrail deficiencies; excessive slopes within accessible routes; and aisles within acces- sible parking areas. • Deficiencies in parking areas are by far the most commonly reported issues. Within that cate- gory, problems with signing for accessible spaces and excessive slopes within accessible parking areas are the top two items reported. The large number of deficiencies on items in the parking areas indicates that there is a continuing need for agencies to focus more attention on their parking areas. Having the correct number of accessible spaces in each lot with proper signing, striping, and access aisles is critical to having accessible communities. • Handrail deficiencies are the next most com- monly reported items. Agencies should be aware of the requirements for handrails and upgrade handrail systems necessary to meet current speci- fications. A common problem with handrails 10 Available at www.ada.gov/pcatoolkit/abouttoolkit. htm, site last visited November 11, 2013. seems to be that they do not include proper exten- sions onto the approaching surface. • Excessive slopes within the pedestrian access route are also common deficiencies. Excessive cross slopes and running grades make travel for persons with or without disabilities difficult. • Another commonly reported deficiency in PCA reports relates to access aisles in accessible parking areas. Missing access aisles, improperly marked access aisles, or access aisles that are too narrow are common problems. Agencies must be sure accessible spaces are adjacent to properly marked access aisles that lead directly to accessi- ble pedestrian routes. Providing the accessible parking space does not ensure compliance with the guidelines. There must be an aisle provided so users can enter and exit parked vehicles. • Other commonly reported problems in the pedestrian access route include the presence of steps or vertical bumps within accessible routes; curb ramp edge protection or flare problems; ex- cessive slopes within curb ramp spaces; accessible routes that are not firm, stable, and slip resistant; and various surfacing issues within accessible routes. The number of missing curb ramps reported decreased from earlier periods between 2011 and 2013, as the problem was only noted in 4 of the 23 communities that were involved in PCA reports in that timeframe. Excessive slopes, edge protection, and flared sides were among the top 10 deficien- cies reported during 2011 to 2013. 2. Guidelines Used for Facilities Review Pedestrian Rights-of-Way Access Guidelines (PROWAG) is the set of guidelines that outline technical requirements for the appropriate con- struction of pedestrian facilities such as side- walks, crosswalks, medians, islands, bridges, and signals. These guidelines are promulgated by the United States Access Board and were developed by disability organizations, public works depart- ments, and civil engineers. ADA Accessibility Guidelines (ADAAG) is used to evaluate buildings and grounds. Federal Highway Administration (FHWA) guidance states that PROWAG should be followed when ADAAG do not provide a standard that is on point.11 11 Available at http://www.fhwa.dot.gov/ programadmin/pedestrians.cfm, site last visited August 24, 2014.

7 3. Progress Reports and Continuing Upgrades Some of the settlement agreements that are en- tered into as a result of PCA or other DOJ inves- tigations require progress reports and/or addi- tional work to be done on the agency’s system. For instance, as a result of a lawsuit and as part of a $1.1 billion 2010 settlement agreement, Caltrans is required to provide a report of ADA compliance progress each year. Initially, Caltrans was re- quired to improve the surface condition of thou- sands of miles of sidewalks and crosswalks. 12 The Caltrans compliance report now includes data on changes made to its program, resources allocated to ADA programs for the preceding years, the number of ADA complaints received and investi- gated, and a summary of new projects that have been awarded. In 2007, the city of Chicago settled one of the largest ADA cases in history, agreeing to spend $10 million per year for 5 years on side- walk accessibility, in addition to the $18 million it spends annually on sidewalk maintenance. Similarly, in a 2004 agreement, Delaware De- partment of Transportation agreed to review its 1992 to 1997 resurfacing records to determine which roads had received overlays of more than 3 inches so that it could identify locations that needed curb ramp upgrades or installations. The cost to the agency was estimated to be $800 to $1500 per curb ramp for approximately 1,500 curb ramps. The agency agreed to complete 100 up- grades per year until the deficient locations were in compliance with the law.13 E. Civil Cases Involving ADA Issues: Causes of Action and Stating a Claim In this section, current case law is reviewed and different theories and causes of action are discussed and analyzed. Plaintiffs’ causes of ac- tion are divided into categories involving altera- tions and compliance with the transition plan for the purpose of discussion. Many agencies have had difficulties determining when ADA upgrades must be made. The basic answer to the question is that when agencies are performing mere mainte- 12 Californians for Disability Rights, Inc. (CDR), et al. v. California Department of Transportation (Caltrans), available at http://www.dralegal.org/impact/ cases/californians-for-disability-rights-inc-cdr-et-al-v- california-department-of, site last visited April 28, 2014. 13 Voluntary Settlement Agreement Between the Delaware Department of Transportation, The Legal Aid Society, Inc. and the United States Department of Jus- tice, available at www.ada.govdeldot.htm, site last vis- ited April 28, 2014. nance, upgrades are not required. When a facility is altered, upgrades are required. To prove a violation of the ADA, a plaintiff must show that he or she is a qualified individual with a disability, that he or she was denied the benefits of public services or programs, and that the exclusion or denial was due to that person’s disability.14 Cases such as Kinney v. Yerusalim,15 Barden v. City of Sacramento,16 and Californians for Disability Rights (CDR) et al. v. California De- partment of Transportation17 illustrate some of the challenges agencies face with implementation of the ADA requirements. 1. Alterations to the Facility The law, according to Kinney v. Yerusalim, is that whenever an alteration such as a “change to a facility in the public right of way that affects, or could affect, access or use of the facility, including the changes to structure, grade, or use of the facil- ity" is undertaken, the work is subject to ADA re- quirements and must be brought into compliance. Essentially, an alteration is a change that affects the usability of the facility involved. In Kinney, the court defined "alteration" for the purposes of determining when it is necessary to program sidewalk improvements. The city of Philadelphia performed a 1-½ inch asphalt overlay which spanned the length and width of a city block, but didn't install curb ramps at the intersections; the court found the city to be in violation of the ADA. Barden v. City of Sacramento is another case that has been widely studied by cities, counties, and states. In Barden, the plaintiffs brought a class action against the city, alleging that the city violated federal law by failing to install curb ramps in newly constructed or altered sidewalks and failing to maintain existing sidewalks to en- sure accessibility for disabled persons. The court found that the prohibition against discrimination in the providing of public services applied to the maintenance of public sidewalks and found that public entities must address barriers to access such as missing or unsafe curb cuts in the side- walk system. Following the court's ruling, the par- ties reached a settlement whereby the city agreed to allocate 20 percent of its annual transportation 14 Weinreich v. Los Angeles County Metropolitan Transportation Authority, 114 F.3d. 976, 978 (9th Cir. 1997). 15 9 F.3d 1067 (3d Circuit 1993). 16 292 F.3d 1073 (9th Cir. 2002). 17 2009 WL 8595755 (N.D. Cal.). 2009 U.S. Dist. Lexis 91490, N.D. (Al. 2009).

8 budget to make pedestrian walkways accessible to disabled persons. The city was required under the terms of the settlement agreement to install com- pliant curb ramps at intersections, remove barri- ers that obstructed the sidewalks such as narrow pathways and abrupt changes in slope, and re- move overhanging obstructions. Lessons Learned: Prior to Kinney and Barden, many state and local agencies believed that over- lay and resurfacing projects were simply mainte- nance projects and therefore, not subject to ADA requirements. That is not true. Because the dif- ference between maintenance activities and al- terations had been difficult for agencies to dis- cern, in July 2013, FHWA issued a new clarification memo. In that memo, maintenance activities are defined as but not limited to: chip and fog seals; scrub seals; joint repairs; pavement patching; diamond grinding, and crack filling and sealing. Alterations include treatments such as: a layer of new asphalt; mill and fill; rehabilitation and reconstruction; and thin-lift overlays. How- ever, pairing more than one “maintenance” activ- ity with another may be considered an “altera- tion.” (See July 2013 memo, attached as Appendix A.) As part of maintenance operations, the agency must ensure that its day-to-day operations keep the path of travel open and usable for persons with disabilities throughout the year. This in- cludes snow and debris removal, maintenance of pedestrian and wheelchair traffic in work zones, and immediate attention to or corrections of any disruptions to pedestrian traffic. It is obvious to the practitioner that not only must the alterations be done in a timely manner, but they must be done properly. Multiple in- stances have occurred in Missouri and other states on state and local routes where new side- walks have been improperly installed by contrac- tors and the sidewalk has later been taken out or reworked, at considerable cost. Common mistakes include the failure to properly place “ped heads” so that they can be reached from a wheelchair, failure to install curb cuts, and failure to provide an adequate slope for the safe travel of a wheel- chair. A sidewalk that cannot be safely traveled is of no use and that sidewalk is likely not reasona- bly safe for its intended users. Care must be taken by the agency to employ a contractor with experi- ence and knowledge of applicable standards so that costly re-working is not necessary.18 2. Transition Plan A good transition plan is essential to the agency’s compliance with ADA requirements and can be a solid defense to an ADA complaint or lawsuit. The court in Schonfeld v. City of Carls- bad19 found that the city was in compliance with the transition plan requirement after a challenge by Schonfeld, and granted the city’s motion for summary judgment on that issue. The court pointed out that the city conducted a self- evaluation in a timely fashion, solicited input from appropriate groups and individuals, indexed every street, and inventoried existing and missing curb ramps and then set up a procedure and budget to install 900 curb ramps over a 4-year period. The court also noted that the city had taken steps such as adopting a Pedestrian Action Plan, preparing a Sidewalk Inventory Report, and establishing a priority system to begin sidewalk installation over 5 years with a budget allocation of $300,000 per year. In Lonberg v. City of Riverside,20 the issue be- fore the court was plaintiff’s motion for summary judgment on the question of whether the city had prepared an adequate transition plan. The court reviewed the plan and the accompanying docu- ments which included a plan to improve curb ramps and sidewalks and found that the city did not comply with the minimum federal require- ments. The transition plan did not list the physi- cal obstacles in the streets that limited access for the disabled, nor did it identify steps that would be taken during each year of the transition period or indicate when the streets would be made wheelchair accessible. The city’s plan was found to be in direct violation of 28 C.F.R. § 35.150(d)(3). In Californians for Disability Rights (CDR)21 et al. v. California Department of Transportation (Caltrans), individuals and two disability rights 18 Resources for agencies and contractors are avail- able at https://www.fhwa.dot.gov/accessibility site last visited June 1, 2013. 19 978 F. Supp. 1329 (S.D. Cal. 1997). 20 No. EDCV97-0237-RT, 2000 WL 34602547 (C.D. Cal. June 1, 2000); this case was subsequently reversed and vacated, 571 F.3d 846 (9th Cir. 2009), cert. denied, 131 S. Ct. 78, 2010 U.S. Lexis 6408, the Circuit Court citing to Alexander v. Sandoval, 523 U.S. 275 (2001), and finding that 42 U.S.C. 12132 and 28 C.F.R. 35.150(d) do not provide a private right to enforce § 35.150(d)’s transition plan requirements. 21 No. C-06-5125, 2009 WL 8595755 (N.D. Cal.).

9 organizations filed suit claiming that pedestrian facilities were not accessible for people with dis- abilities. The parties eventually reached a settle- ment with Caltrans that provided access for per- sons with disabilities to 2,500 miles of sidewalk and “Park and Ride” facilities. One of the main deciding factors noted by the court was that Cal- trans had not surveyed its 2,500 miles of sidewalk by the time the action was brought. Therefore, the agency could not and did not know what barriers to access for the disabled existed in its system and for that reason, could not possibly have an ade- quate plan to address the problem areas. The 2008 settlement required Caltrans to commit to a comprehensive plan which included a financial commitment of $1.1 billion for 30 years.22 Lessons Learned: The development of a transi- tion plan takes time and resources, but pays off many ways. The agency can determine the pro- jects that are most needed by comparing the data collected and balancing its resources against its needs. The reviewing court looked favorably on the Schonfeld v. City of Carlsbad plan, noted above, which had the following components: a pe- destrian action plan involving citizen input, a sidewalk and ramp inventory, and a budget ade- quate to install the necessary sidewalks over a period of time. Compliance with a good transition plan is a solid defense to an ADA complaint or lawsuit. The cases below discuss potential defenses to ADA complaints. F. Defenses The only real and full defense to an ADA law- suit or complaint is compliance with the law, al- though some agencies have successfully defended claims using a feasibility defense. Compliance with the law can be achieved in several ways: 1. Transition Plan Implementation of and compliance with a tran- sition plan, as discussed in the Schonfeld v. City of Carlsbad case, is required. 2. Feasibility The court in Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transp. Authority,23 examined the definition of “maximum extent fea- sible” looking at whether the agency could or should consider both technical and economic fea- sibility when determining whether to make acces- 22 See Survey Response, Caltrans, Section IV. 23 635 F.3d 87 (3d Cir. 2011). sibility improvements. At issue was the transpor- tation authority’s failure to install an elevator in a facility. The applicable regulation states as fol- lows: “the phrase ‘to the maximum extent feasible’ applies to the occasional case where the nature of an existing facility makes it impossible to comply fully with applicable accessibility standards....” 49 C.F.R. § 37.43(b). The court found that the narrow exception established in 49 C. F.R. § 37.43(b) con- templated that the “infeasibility” of making the altered portion of a facility would be only “occa- sional” and would arise from “the nature of an existing facility”—not from the budget limitations of a transportation authority. The court noted that ADA and DOT regulations define feasibility primarily with respect to technical, not economic, concerns.24 (See also Roberts v. Royal Atlantic Corp.,25 wherein the court held that the ADA’s “‘maximum extent feasible’ analysis does not re- quire the court to make a judgment involving costs and benefits.... the statute and regulations require that such facilities be made accessible even if the cost of doing so—financial or other- wise—is high.”) The cases essentially conclude that a high cost to the agency to do an accessibility improvement as part of an alteration is not a proper considera- tion or a defense to the failure to include an up- grade to a sidewalk. Cost may be considered, how- ever, when the agency is deciding whether to undertake a stand-alone accessibility improve- ment outlined in a transition plan. For example, if an agency lists an existing highway in its transi- tion plan as needing curb cuts, but the highway is not scheduled for alteration, the agency may con- sider the costs to upgrade “unduly burdensome” and not undertake that project for that reason.26 There is some indication that an agency may even be required to acquire right-of-way to comply with the ADA. In Deck v. City of Toledo,27 the plaintiff class sued the city regarding noncompli- ant curb ramps. The city argued that it was un- able to comply with the law due to site con- straints. The court found in favor of plaintiffs, noting that unless technical compliance would destroy the value and purpose of the improve- ment, the city had to comply with the law. The court stated that “no citations have been offered by the City to illustrate to the Court why compli- 24 Id. at 95. 25 542 F.3d 363, 371 (2d Cir. 2008). 26 28 C.F.R. 35.150(a)(3). 27 29 F. Supp. 2d 431 (N.D. Ohio 1998).

10 ance cannot be attained, even in light of the ne- cessity of a private taking of land.” 28 3. Undue Burden A related affirmative defense, called the “undue burden” defense, can be made based on 28 C.F.R. § 35.150(a)(3). That section states that an agency is not required to take action that would result in an undue financial or administrative burden. The decision that compliance would result in an undue burden must be made by the head of the agency and be accompanied by a written statement of the reasons for reaching that conclusion. The undue burden defense is more likely to be successful in a building alteration scenario than a highway improvement situation because a city completing a building improvement can make the argument that other facilities are available or that improvements are not feasible due to histori- cal significance. For example, the “undue burden” defense was unsuccessful in the case of Culva- house v. City of LaPorte, Indiana.29 Disabled plaintiffs brought a suit alleging impassible side- walks. The city defended the case offering testi- mony that adjacent property owners, rather than the city, were responsible for the maintenance of the sidewalks and the cost of repair was an undue burden. The defense failed. 4. Statute of Limitations These defenses are largely unsuccessful. The Department of Justice interprets Title III and Fair Housing Act provisions to mean that the statute doesn’t begin to run, at the earliest, until the construction or alterations at issue have been completed. That interpretation was accepted in Disabled in Action of Pennsylvania v. Southeast- ern Pennsylvania Transp. Auth.30 (See also Schon- feld v. City of Carlsbad.31) According to Frame v. City of Arlington,32 the right of action accrues at the time the plaintiffs knew or should have known they were being denied the benefits of the side- walk, which is defined in that opinion as “the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.” 28 Id. at 434. 29 679 F. Supp. 2d 931 (U.S. District Court, N.D. Ind. 2009). 30 539 F.3d 199 (3d Cir. 2008). 31 978 F. Supp. 1329 (S.D. Cal. 1997). 32 657 F.3d 215, at 238 (U.S. Ct. Appeals, 5th Cir. 2011). G. Cases Reported in Traditional Media A media search was done for ADA verdicts and settlements. Several California cases are high- lighted to illustrate common issues. In Lawson v. City of Stockton, CA,33 the plaintiff, a paraplegic, was injured when he attempted to cross a city sidewalk which was apparently not accessible via wheelchair. He recovered $80,000 for his injuries and $125,000 in attorney’s fees. The court also ordered the city to post signs warning of the inac- cessible sidewalk and to install a compliant ramp within one year of the settlement. In a similar case, Imperiale v.City of South San Francisco, CA,34 a wheelchair-bound plaintiff was allegedly unable to access city hall due to the city’s failure to comply with the ADA. The plain- tiff was awarded $25,000 in damages and his counsel was awarded $65,000 in fees. The city also agreed to create disabled access points for city hall and the library and to create other walk- ways. H. Attorney’s Fees/Frivolous Lawsuit Legislation Clearly, the goal of the ADA in the transporta- tion context is to provide full and equal access to highways, pedestrian facilities, and transit sys- tems. The ADA contains both a private right of action for individuals and advocacy groups,35 and a public right of action by the Attorney General. The only remedies for a private individual under the federal ADA are injunctive relief (which usu- ally means the reconstruction of a sidewalk) and the recovery of attorney's fees and litigation costs. 1. State Laws State laws also may provide for attorney’s fees and statutory damages. For instance, California’s Unruh Civil Rights Act allows a minimum of $4,000 per access violation plus attorney’s fees.36 Government agencies and businesses have some- times found themselves victims of “get rich quick” schemes. A federal judge made the following comments in a 2013 opinion: The ADA is a testament to the country's effort to protect some of its most vulnerable citizens. It is one of the most significant federal statutes that was born out of this na- tion's Civil Rights movement and was enacted to ensure 33 No. 2:08-CV-01101. U.S. District Court, E.D. Cali- fornia. 34 No. 3:10-CV-04932. U.S. District Court, N.D. Cali- fornia. 35 Frame, 657 F.3d 215, at 240. 36 CAL. CIVIL CODE §§ 51 to 53, inclusive.

11 that disabled individuals have equal and safe access to the same benefits and accommodations as every other American. However, a troubling reality is that cases like the one presently before the court have the effect of being less about ensuring access for those with disabilities and more about lining counsel's pocket.37 2. California and New York Due to a problem with a large volume of trivial claims, California enacted a law aimed at frivo- lous Americans with Disabilities Act access law- suits in the state. 38 The state reportedly has 12 percent of the country’s disabled population, but 40 percent of the nation’s ADA lawsuits.39 In a 2004 opinion, Molski v. Mandarin Touch Rest, the court outlined a typical unscrupulous plan: The scheme is simple: an unscrupulous law firm sends a disabled individual to as many busi- nesses as possible, in order to have him aggres- sively seek out any and all violations of the ADA. Then, rather than simply informing the business of the violations and attempting to remedy the matter through conciliation and voluntary com- pliance, a lawsuit is filed, requesting damage awards that would put many of the targeted es- tablishments out of business. Faced with the spec- ter of costly litigation and a potentially fatal judgment against them, most businesses quickly settle the matter.40 Similarly, the city of New York has had diffi- culty defending sidewalk trip and fall and slip and fall cases since the Big Apple Pothole and Side- walk Protection Corporation was formed in 1982. The Big Apple Pothole and Sidewalk Corporation was established by the New York State Trial Law- yers Association for the purpose of giving notice of sidewalk defects to the city and establish compli- ance with New York’s Pothole Law. The corpora- tion promulgated maps of potholes and other side- walk defects, which allegedly gave the city notice of problems with its sidewalks. Plaintiffs in litiga- tion frequently asserted that Big Apple maps had given written notice of the defect so that the city should have fixed the problem before the plain- tiff’s accident occurred. The city paid hundreds of millions of dollars over a period of 2 decades be- fore a 2003 law shifted liability for sidewalk de- fects to adjacent property owners. 41 After the law 37 Costello v Flatman, No. 11-CV-287 (E.D. N.Y.) Or- der and Memorandum dated March 28, 2013. 38 CAL. BUS & PROF. CODE §6106.2 (2014). 39 See http://www.jacksonlewis.com/resources.php? NewsID=4205, site last visited March 24, 2013. 40 347 F. Supp. 2d 860, 863 (C.D. Cal. 2004). 41 New York Times, January 4, 2009. changed, the amount of new suits brought against the city dropped significantly, but thousands of cases utilizing the maps as evidence were still pending in 2014. In D’Onofrio v. City of New York,42 a plaintiff testified that he tripped on a defective subway grating, but the only symbol on the relevant sec- tion of the Big Apple map denoted a raised or un- even sidewalk. A jury found that the map pro- vided the city with prior written notice of the defective grate, but the trial court set the verdict aside and the trial court’s decision was affirmed on appeal. The appellate court found that the in- formation contained in the maps did not provide the notice required by law: the photos used at trial conflicted with the map, and symbols denot- ing the alleged defect were illegible. Essentially the court found that the city did not receive notice of and could not be liable for damages due to a defect unless the markings on the map matched the actual conditions of the sidewalk. While the D’Onofrio ruling, and others like it, significantly decreased the sidewalk defect cases that are filed in New York, and the maps are no longer produced by the Big Apple Pothole and Sidewalk Protection Corporation, the city still faces thousands of cases involving alleged defects of their sidewalks and streets. I. Survey Responses Formal surveys requesting information about state and local government’s ADA experiences were sent to all 50 states and to a mixture of large, small, and medium sized cities and coun- ties. (See Appendices E and F.) Forty-four re- sponses were received and the authors believe the survey responses are indicative of general pat- terns in the industry. Of the agencies that re- sponded, 21 (47 percent) had received an ADA complaint. Of the complaints that were filed, all except the one in Helena, Montana was resolved without the involvement of FHWA. The state of Pennsylvania reported that an ADA lawsuit was filed relating to installation and remediation of curb ramps that support sidewalks in northwest- ern Pennsylvania and that a settlement of that matter is pending. Most of the agencies made changes to their sidewalks in response to the complaints and many of the agencies made changes to their policies as a result of the complaints. For instance, the county of Arlington, Virginia, adopted new policies for accessible rights-of-way in response to a com- 42 901 N.E.2d 744 (N.Y. Ct. App. 2008),