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Premises liability: when one accessible route becomes two (or more)

Don’t confuse the letter of accessibility law with the intent of accessibility law. You may find that the one accessible route you have provided on your premises as a mandated minimum is inadequate, and that a second (or third, or fourth) accessible route may also be required. I have just helped resolve litigation on that very point.

Accessibility Issues: no handrail
Photos by Rick Zimmerman

As do many other jurisdictions across the nation, my home State of Ohio endorses and adopts the current provisions of the Americans with Disabilities Act within its state building code. Further, my state building code — the Ohio Building Code (OBC) — applies to all public, governmental, and commercial establishments frequented by the general public: schools, libraries, hospitals, restaurants, stores, theaters, stadia, offices, and so on.

Though many designers, architects, engineers and building owners may refer simply to “the ADA” when discussing accessibility issues, “the ADA”, or The Americans with Disability Act, is in fact legislation on the much broader issue of prohibiting discrimination against those with disability. Specific issues of accessibility are in fact dealt with in far greater detail in a subtext of that legislation. The most current version of that subtext is “Title III — 2010 Standards for Public Accommodations and Commercial Facilities”, promulgated by the Department of Justice, September 15, 2010. That subtext is what is commonly referenced and adopted by a local building code.

Within Title III, the requirement of an accessible route is cited in Section 206. That Section’s extensive language is usually interpreted to mean that a single accessible route — compliant with all of the specific design, detailing and construction requirements of Title III — must be provided about a property site (from street to parking to building entrance, for example) and continuing within a premises to connect all of the key spaces frequented by the public (such as from entrance to lobby to dining room to theater to restrooms to mezzanine, etc.).

It has thus become common practice in recent years that a project planner, designer or architect will focus on planning and providing just one accessible route onto, into and about a premises or property. And, often only that single accessible route will fully comply with all of the detailed provisions of Title III.

However, I recently assisted in resolving litigation in which that minimal requirement of a single accessible route was determined by a jury to be inadequate — that a premises owner had in effect created a second accessible route that should have been made to comply fully with all of the detailed provisions of Title III.

In this matter, a patron at a restaurant/bar had fallen and become injured on a stoop platform outside a door to the restaurant/bar’s public patio. While Defendants argued that the stoop platform in question was not part of the ‘identified’ accessible route, and was thus exempted from Title III provisions, we maintained otherwise.

Though a separate single accessible route connecting building and site elements had been ‘identified’ by the design architect in his design documents and submitted for code and permit review, that ‘identification’ was not, and could not be, known to the public. Furthermore, by actions undertaken after code review, permit and substantial construction were completed, the premises owner had altered the subject route, making it more highly visible, attractive, inviting and prominent to the public. Over time, through the ongoing conduct of business, the premises owner had also substantially increased the use of the subject route, both by staff and by the public. The premises owner had effectively created a recognized primary public accessway where one had not been anticipated. And, we successfully argued, once that primary public accessway had been created, it was incumbent upon the premises owner to treat that public accessway like any other, by bringing it into conformance with Title III to insure the safety of the general public.

Moral: Don’t confuse the letter of accessibility law with the intent of accessibility law.

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