City violates ADA when sidewalks are inaccessible to individuals with disabilities

by Gary Taylor

Frame, et al., v. City of Arlington
(Federal Fifth Circuit Court of Appeals, September 15, 2011)

The plaintiffs, who depend on motorized wheelchairs for mobility, sued the City of Arlington, Texas, alleging that it violated the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act by failing to make certain public sidewalks accessible to them. They alleged that certain inaccessible sidewalks make it dangerous, difficult, or impossible for them to travel to a variety of public and private establishments throughout the City. Most of these sidewalks were built or altered by the City after the effective date of the ADA in1992.  The lawsuit was initially brought on July 22, 2005, and amended on August 9, 2007.

The ADA provides that no disabled individual “shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.” For nearly two decades, the ADA’s implementing regulations have required cities to make newly built and altered sidewalks readily accessible to individuals with disabilities.  The United States District Court for the Northern District of Texas originally dismissed the plaintiffs’ complaint, holding that their cause of action accrued from the date the city built or altered the sidewalks in question, and therefore the suit fell outside of the statute of limitations period.

The Fifth Circuit Court of Appeals reheard the case three times.   The entire panel of the Fifth Circuit heard this the latest case. The majority began by acknowledging that both the ADA and the Rehabilitation Act allow for a private right of action for individuals to bring suit.  The court saw two possible ways to frame the issue: (1) whether building and altering sidewalks are services, programs, or activities of a public entity, and thus whether the resulting sidewalks are “benefits” of those services, programs, or activities; or (2) whether a city sidewalk itself is a service, program, or activity of a public entity. The court then concluded that either way, when a city decides to build or alter a sidewalk and makes that sidewalk inaccessible to individuals with disabilities without adequate justification, the city unnecessarily denies disabled individuals the benefits of its services in violation of Title II. To reach this conclusion the court looked to the ADA’s implementing regulations and Congress’s intent in passing the ADA.

Further, the court found that a private cause of action accrues from the moment the plaintiffs knew, or should have known, of their injury, not the moment the non-compliant sidewalk was built or altered.

Seven judges joined an opinion concurring in part and dissenting in part, challenging only the majority’s conclusion that a sidewalk is a service under the ADA. In order to confine private causes of action to the proper subject matter of the ADA, the dissent asserted that “inanimate and static” sidewalks must be considered public facilities rather than public services. Thus the dissent would read the ADA as granting disabled individuals a private cause of action only if the inaccessible sidewalks denied the individuals access to a public service.

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