Court Revives ADA Case|Over Curbs & Sidewalks

(CN) - Poorly maintained sidewalks, curbs and parking lots don't violate the Americans with Disabilities Act unless they block wheelchair access to other public "services, programs or activities," the 5th Circuit ruled in reinstating a lawsuit filed by disabled residents of Arlington, Texas.

In a federal lawsuit, disabled residents claimed Arlington has more than 100 curbs and sidewalks that aren't safe for wheelchair use. They also cited at least three public facilities that allegedly lack adequate handicap parking.

They sought an order forcing the city to modify its curbs, sidewalks and parking lots to comply with the ADA and the Rehabilitation Act, which bars federal funding recipients from discriminating on the basis of disability.

A federal judge dismissed the lawsuit as untimely, but the appellate panel in New Orleans voted 2-1 to revive the case.

The majority noted that the ADA mandates the modification of physical infrastructures that "effectively deny" access to public services, programs or activities.

"Within this framework, sidewalks, curbs, and parking lots are 'facilities,' not 'services, programs, or activities,'" Judge E. Grady Jolly wrote.

This means that disabled residents can invoke the law only if a curb, sidewalk or parking lot denies them access "to actual services, programs or activities," Jolly explained.

The majority agreed that the claims were subject to a two-year filing deadline, but said the lower court was wrong to shift the burden of proof from the city to the plaintiffs. It's up to the city to prove that residents missed the filing deadline and not the other way around, the majority ruled.

The court vacated the lower court's dismissal and sent the case back to the federal judge.

Judge Edward Prado dissented from the majority's ruling.

"I believe that characterizing sidewalks as 'facilities,' and thereby limiting private causes of action under the ADA, is not supported by the statute, regulations, or caselaw," he wrote. "I fear that the majority departs dramatically from congressional intent and creates a distinction that is unworkable and ultimately meaningless."

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