Ninth Circuit rules ADA plaintiff can sue for barriers not encountered

Rebecca Porter, Associate Editor

A wheelchair-bound paraplegic who sued a convenience store under the Americans with Disabilities Act (ADA) over barriers he encountered that prevented his access, as well as barriers that an expert noted during a site inspection, has constitutional standing to proceed with his suit, the Ninth Circuit has ruled. (Doran v. 7-Eleven, Inc., 506 F.3d 1191 (9th Cir. 2007).)

The district court had granted the defendant summary judgment, ruling that the plaintiff could not sue over barriers he had not encountered or had not known about.

“With regard to ADA suits, the district courts are always attempting to restrict the scope of standing, and, after time, the circuit courts reverse,” said Miami plaintiff attorney Matthew Dietz, who handles ADA cases. “It’s a constant struggle.”

In its decision, the Ninth Circuit quoted both the Eighth Circuit, which made a similar ruling in 2000, and one of its own earlier decisions on the same issue. The Eleventh Circuit reached the opposite conclusion in a 2006 unpublished opinion affirming a district court’s dismissal of the plaintiff’s case on standing grounds. (Access for America, Inc. v. Associated Out-Door Clubs, Inc., 188 Fed. Appx. 818 (11th Cir. 2006).)

Many of the other circuits have yet to specifically address the question of standing as it relates to ADA Title III, which applies to public accommodations. State courts have ruled both for and against plaintiffs.

Jerry Doran, the plaintiff in the Ninth Circuit case, lives in Cottonwood, California, about 550 miles away from the North Harbor 7-Eleven in Anaheim. However, Doran testified he had visited the convenience store 10 to 20 times and anticipated going again during his annual trips to Disneyland.

He claimed he was prevented from fully using the store by nine barriers that he encountered or knew about. Among the barriers were that the store had no van-accessible parking, no sign showing the location of the wheelchair ramp or nearest accessible store entrance, and merchandise that obstructed the floor space inside.

A magistrate judge’s discovery order permitted an expert’s site inspection, limited to barriers Doran had encountered or knew about. However, when Doran filed his lawsuit, he included barriers he didn’t know about until the expert pointed them out, such as a cashier’s counter and ATM that were too high and handicapped parking spaces that were too sloped.

While the Ninth Circuit affirmed the district court’s dismissal of Doran’s claims related to the width of the store aisles and lack of access to the employees-only restroom, it ruled that he had standing to bring the other claims regarding barriers both encountered by and previously unknown to him.

The Ninth Circuit considered the U.S. Supreme Court’s three-part Article III standing test: The plaintiff must suffer an injury-in-fact (invasion of a legally protected interest that is concrete and particularized, and actual or imminent); there must be a causal connection between the injury and the alleged conduct; and it must be likely that a favorable decision would redress the injury.

The court noted that the plaintiff had previously appeared before the Ninth Circuit in Pickern v. Holiday Quality Foods, Inc., in which it found that Doran had not met the injury-in-fact part of the test. (293 F.3d 1133 (9th Cir. 2003).)

This time, it concluded that because Doran had been to the 7-Eleven before, was currently deterred from going there, and would visit the store if he could, he had suffered a “concrete, particularized, actual, and imminent” injury.

The court cited a case in which the Eighth Circuit argued that, under the defendant’s reasoning, “to compel a building’s ADA compliance, numerous blind plaintiffs, each injured by a different barrier, would have to seek injunctive relief as to the particular barrier encountered until all barriers had been removed.” The Eighth Circuit found that the plaintiff in that case had standing to seek relief for any ADA violation in the building “affecting his specific disability.” (Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000).)

In Doran, the court noted that disabled people who couldn’t enter or fully access a public place would have “uncertainty” about whether further barriers would be encountered there. “Such uncertainty is itself an actual, concrete, and particularized injury under the deterrence framework of standing articulated in Pickern,” wrote the court per curiam, citing its earlier reasoning.

Since constitutional requirements permit it, “it is prudent to eliminate that uncertainty through the judicial device of discovery,” wrote the court. “We therefore hold that where a disabled person has Article III standing to bring a claim for injunctive relief under the ADA because of at least one statutory violation of which he or she has knowledge and which deters access to a place of public accommodation, he or she may conduct discovery to determine what, if any, other barriers affecting his or her disability existed at the time he or she brought the claim.”

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News & trends February 2008 | Volume 44, Issue 2

Ninth Circuit rules ADA plaintiff can sue for barriers not encountered

Rebecca Porter, Associate Editor

News & trends
February 2008 | Volume 44, Issue 2