PHILADELPHIA – A federal judge has sided with the City of Philadelphia that an allegation it failed to maintain its sidewalks to provide proper access to disabled citizens in violation of the Americans with Disabilities Act of 1990 does not constitute denial of access to a City program – while at the same, certifying the litigation as a class action.
Liberty Resources Inc., Disabled in Action of Pennsylvania Inc., Philadelphia Adapt, Tony Brooks, Liam Dougherty, Fran Fulton and Louis Olivo first filed a complaint on Aug. 26 in the U.S. District Court for the Eastern District of Pennsylvania against the City of Philadelphia, alleging violations of the ADA.
According to the complaint, the plaintiffs allege the City has “shirked its duty” to people with disabilities residing in the city because it has failed to maintain its sidewalks.
The plaintiffs alleged the City’s sidewalks are “dilapidated, disintegrating and teeming with obstructions, making every day travel difficult and dangerous for the thousands of people with disabilities that call Philadelphia home.”
The plaintiffs alleged they sent a demand letter to the defendant on July 22 to resolve the issue, but that the City did not respond.
On April 7, the plaintiffs filed a motion to certify the lawsuit as a class action.
“Here, plaintiffs seek broad declaratory and injunctive relief – remediation, ongoing maintenance, and system-wide improvements in the City’s pedestrian rights of way program – on behalf of a class of all persons with disabilities or impairments that affect their mobility and who use or will use pedestrian rights of way in the City of Philadelphia. Additionally, the proposed class seeks only class-wide injunctive relief to address the alleged deficiencies and does not seek any damages,” per the motion
In response, the City motioned to dismiss the lawsuit for failure to state a claim on April 24.
“The plain text of the Title II regulations and the applicable case law make clear that physical pedestrian structures, like sidewalks, curb ramps, and crosswalks, are facilities, as opposed to services, programs, and activities under the ADA,” according to counsel for the city.
The City further alleged the plaintiffs failed to properly claim denial of access to any service, program or activity.
“Plaintiffs’ complaint alleges generally that plaintiffs were denied access to ‘Philadelphia’s pedestrian rights of way.’ This ‘pedestrian rights of way’ is described in the complaint as ‘curb ramps, crosswalks, pedestrian crossings, and other walkways.’ Without any legal support, the complaint then states that ‘pedestrian rights of way themselves constitute a vital program, service or activity under Title II of the ADA,” per the city.
“Plaintiffs have not attempted to limit their claims to facilities that were newly constructed or altered after Jan. 26, 1992, but rather have grouped all components of the right of way, no matter how old, into an alleged ‘program.’ As detailed above, these physical structures are facilities, and do not constitute a ‘program’ in and of themselves. Without denial of access to a service, program or activity, plaintiffs’ ‘program access’ claim must be dismissed.”
U.S. District Court Judge Harvey Bartle III authorized a stipulated protective order concerning sensitive records of parties involved in the case on June 4.
UPDATE
On July 6, Bartle sided with the City as to the requests made by the plaintiffs to effect changes in its right-of-way access for disabled citizens.
“We agree with the City that the pedestrian rights of way are facilities under the ADA and the Rehabilitation Act. The plain language of the regulations, discussed above, create a distinction between programs, services, and activities, and the facilities in which such programs, services, and activities take place,” Bartle said.
“This distinction is significant because it determines a public entity’s duties regarding accessibility. Our Court of Appeals has determined that streets and walkways are facilities under the ADA and the Rehabilitation Act. Similarly, other Courts of Appeals to address the issue have found that facilities are distinguishable from the services, programs, or activities of a public entity.”
Bartle added that “treating pedestrian rights of way as themselves a program, service, or activity would render superfluous the exception in the regulations which provide that a public entity need not make every facility accessible, and thus would contradict the clear language of the regulations.”
Bartle then granted the motion of the City to dismiss the plaintiffs’ complaint, to the extent that the plaintiffs alleged the City’s failure to maintain pedestrian rights of way itself constitutes the denial of or exclusion from a City service, program, or activity.
Moreover, Bartle dismissed the plaintiffs’ request for an injunction compelling the City to comply with self-evaluation and transition plan regulations, as there was no private cause of action mandating that to occur.
“We agree with the City…that such a request must be stricken from plaintiffs’ prayer for relief as no private claim in this regard exists,” Bartle said.
The following day, Bartle also ruled on the plaintiffs’ motion to certify the suit as a class action. In order to qualify as such, the plaintiffs need to meet the criteria of “numerosity”, “commonality,” “typicality” and “adequacy of representation.”
Bartle concluded that the litigation met all four criteria and certified it as a class action.
“Plaintiffs have cited data from the United States Census Bureau indicating that more than 143,000 non-institutionalized Philadelphia residents have an ambulatory disability and more than 49,000 non-institutionalized Philadelphia residents have a vision disability. These putative class members are sufficiently numerous to render joinder impracticable and to satisfy the requirements,” Bartle said.
“Plaintiffs’ claims give rise to numerous questions of law and fact that will be common to the class as a whole, including whether the City’s policies and practices have resulted in its failure to provide compliant, accessible curb ramps whenever the City resurfaces or alters streets. We therefore find that the commonality requirement is satisfied.”
Bartle continued that the remaining two certification elements were also met.
“Plaintiffs’ claims here arise from the same policies and practices of the City and are based on the same legal theory. Named plaintiffs all have disabilities that affect their mobility or represent such individuals. They have been denied access to the City’s pedestrian routes as a result of the City’s failure to install compliant curb cuts when resurfacing streets, and the named plaintiffs seek declaratory and injunctive relief on behalf of the whole class. Under these circumstances we find that the typicality requirement is satisfied,” Bartle explained.
“The named plaintiffs have submitted declarations stating that they are longtime residents of Philadelphia who are deeply committed to improving access for themselves and others with disabilities in the City. There is no conflict between the interests of the named plaintiffs and those of the other class members because they all seek the same declaratory and injunctive relief.”
The plaintiffs are represented by David Ferleger of David Ferleger Law Office in Jenkintown, plus Andrea Kozak-Oxnard, Michelle A. Caiola, Rebecca J. Sobie and Meredith J. Weaver of Disability Rights Advocates in New York City and Berkeley, Calif.
The defendant is represented by Diana P. Cortes, Benjamin H. Field, Eleanor N. Ewing and Sean J. McGrath of the City of Philadelphia’s Law Department, plus Kymberly K. Evanson and Paul J. Lawrence of Pacifica Law Group in Seattle.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-03846
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com