Over the years, it isn’t often that I see a missed opportunity (see below for a further discussion of whether an opportunity was really missed here), by a defendant in an ADA case to make a plaintiff’s litigation more difficult when the law allows them to do so. It is possible (though a for sure determination of that would depend upon further research and application of the principles that we will discuss below), that Scherr v. Marriott International, Inc., may or may not be such a case. In that case, the plaintiff, 76 years old at the time of the accident and suffering from a neurodegenerative disorder, stayed at a Marriott hotel, a Courtyard, in Overland Park, Kansas. The hotel had recently undergone renovations, and the hotel had installed spring-hinged door closers on the bathroom doors of some of its rooms, including the ADA compliant room assigned to the plaintiff. The spring hinge closed the door automatically when a person let go of the door. While attempting to exit the bathroom door, which she had pushed open and then released in order to use her walker, the door quickly slammed shut on her, striking her and knocking her down resulting in surgery for a broken wrist and an injured hip. She then sued Marriott for personal injuries, which settled. Just prior to settling the personal injury suit, she brought suit under title III of the ADA seeking injunctive relief against the Marriott that she stayed at as well as many other Courtyards by Marriott for using the spring-hinge door closers that resulted in her injury.
You can find the facts of this case referenced above at Scherr v. Marriott International, Inc._F.3d_, 2013 WL 57857 (7th Cir. January 7, 2013).
Also, with respect to the many different Marriott’s that she brought suit against, there was a standing issue that the court discussed (the court holding that she had standing with respect to the Overland Park, Marriott but not with respect to the other Marriott that she sued). However, that standing issue is not important for purposes of this blog entry.
Whenever a title II or title III entity engages in new construction or renovations, that construction or renovation must be done in a way consistent with the guidelines put forth by the Architectural and Transportation Barriers Compliance Board (the guidelines being referred to as the Americans With Disabilities Act Accessibility Guidelines (ADAAG)). The problem is is that the guidelines changed over the years with respect to spring hinged doors. For example, the 1991 standards did not have a separate closing speed specified for spring hinges and did not discriminate between spring hinges and other types of door closers, such as hydraulic door closers. Id. at *6. However, the 2010 standards do in fact set out separate closing speeds for spring hinges and door closers. Id. To the court’s mind, the issue came down to whether the spring hinge should be evaluated according to the spring hinge standard or according to the door closer standard. The plaintiff argued that since the spring hinge was acting as a door closer, the proper standard was the door closer standard, which insisted upon a slower closing speed than the spring hinge standard. Id. at *7. However, the court decided that a plain reading of these guidelines was such that spring hinges provision was the standard and that Marriott International complied with that standard. Id. Therefore, the plaintiff had no case for a title III violation against Marriott because Marriott International had complied with the standard. Id.
The possible (see below), missed opportunity for the defense was this. In Scherr, everyone just seemed to assume that the regulation created a private remedy. That is, the argument was not over whether the plaintiff could sue for a violation of the ADAAG, but rather what was the meaning of various provisions of the ADAAG. However, Supreme Court precedent and case law is such that the defense may not necessarily have had to concede the point. That is, a regulation may be a perfectly permissible regulation. In other words, it may be a regulation that carries out the intent of the statute and has been promulgated after going through the rulemaking process. However, that is simply not the same thing as saying that violation of the regulation gives an individual plaintiff a private remedy for the violation of that provision. To determine whether a private remedy exists, a court must look to the statute itself to figure out whether the statute is laid out in such a way so as to evidence Congress’s intent to create a private remedy for that regulation.See Alexander v. Sandoval 532 U.S. 275, 286-287 (2001). In other words, only those regulations effectuating the statute’s clear prohibition or requirements are the ones enforceable through a private remedy and those regulations that do not encapsulate those statutory rights are not privately enforceable. Lonberg v. City of Riverside 571 F.3d 846, 851 (9th Cir. 2009). Therefore, by way of example, a Western District of Washington case held that no private remedy existed with respect to a paratransit service violating several regulations with respect to passenger safety because the specific regulations had nothing to do with whether the defendant provided an appropriate level of service, the topic of the statute at issue. Donnelly v. Intercity Transit 2012 WL 5567981 (W.D. Wash. November 15, 2012). In another case, the Ninth Circuit held that no private remedy existed with respect to the City of Riverside’s failure to develop a transition plan because the statute from which the transition plan regulations derived said nothing about a public entity’s obligation to draft a detailed plan and schedule for achieving meaningful access. Lonberg 571 F.3d at 851-852.
But was the opportunity really missed? With respect to a title III matter, which is the situation in Scherr,the answer could well be no. Under the discussion above, we first have to look at a statute and then compare that statute to the regulations to see if a private remedy exists. With respect to title II of the ADA, the Architectural and Transportation Barriers Compliance Board is specifically mentioned mentioned at 42 U.S.C. §§ 12204, and with respect to title III of the ADA, the Architectural and Transportation Barriers Compliance Board is mentioned at 42 U.S.C. §12186(c). Accordingly, since the statutory scheme is set up the way it is, a strong argument can be made that with respect to facilities under Title II or III of the ADA, a private remedy does exist should the architectural guidelines be violated. However, once you move away from the situation where the architectural guidelines come into play, you may get a different answer as was the case in Donnelly and Lonberg mentioned above.
Putting this into plain english: This stuff can get technical so let’s see if we can break it down. First, in many cases, it really isn’t necessary to rely on the regulations as the basis for arguing that the Americans with Disabilities Act has been violated. The statutes are very comprehensive and oftentimes the regulations are narrowly focused on interpreting the various provisions of the statute.
Second, if you are plaintiff, and you allege that the Americans with Disabilities Act was violated because of specific regulations being violated, then you have to be prepared for the defendant to argue that no private remedy exists. That is, the regulation may or may not be perfectly valid (it is a basic principle of administrative law that regulations that have gone through the rulemaking process and which contain regulations going no further than to carry out the intent of the legislature are going to be valid), but that is quite a different question than whether an individual can use those regulations as a basis for saying that, for example, the ADA has been violated and a private remedy is allowed for enforcing that regulation.
Third, on the defense side, if you do see a complaint saying that certain specific regulations have been violated thereby liability should be awarded to the plaintiff, you (the defense), are going to have to study the statute at issue and then see just how closely the particular regulations implement that statute. If the connection is not intuitive, you (the defense), have an argument than that while the statute may be perfectly valid, that is not the same thing as saying a private remedy for that statute exists.
Fourth, the key word is, “private remedy.” Since that is the term being used, this kind of defense is not going to work should the regulatory body itself sue on its own behalf for violation of the regulations that it promulgated. In that case, then it would be a matter of saying that the regulation, despite having gone through rulemaking, is invalid (a very difficult thing to pull off because you have to show that the regulation is arbitrary).
Fifth, study the statutes and regulations carefully as all this may play out differently depending upon whether you are talking about violating architectural guidelines or violating something else.
Finally, another lesson learned from all of this, one that applies regardless of whether a private remedy exists, is that everyone needs to follow the regulatory process very closely. As mentioned above, rulemaking is a process. For those not familiar, the process generally includes proposing the regulation, receiving comments on the regulations, and then responding and finalizing the regulations. At the commenting stage, regulatory bodies are truly quite interested in what interested parties have to say. After all, it simply doesn’t do the regulatory body any good to issue regulations that they know are going to be unworkable. Therefore, it is at that stage that people should jump in and explain the issues. For example, if a regulation does have an inconsistency to it or an ambiguity to it, as was the case in Scherr, it is in the commenting period stage that is the time to catch that and notify the regulatory body of such.