PHILADELPHIA – Litigation between a group of plaintiffs and the City of Philadelphia, over claims the City failed to maintain its sidewalks to provide proper access to disabled citizens in violation of the Americans with Disabilities Act of 1990, will be heading to trial in February.
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, 2019 in the U.S. District Court for the Eastern District of Pennsylvania against the City.
According to the complaint, the plaintiffs alleged the City “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 claimed they sent a demand letter to the defendant on July 22, 2019 to resolve the issue, but that the City did not respond.
In response, the City motioned to dismiss the lawsuit for failure to state a claim on April 24, 2020.
“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.”
UPDATE
Both sides filed pre-trial memoranda on Dec. 13, in advance of a Feb. 2 bench trial before U.S. District Court for the Eastern District of Pennsylvania Judge Harvey Bartle III. Filings indicate the trial is expected to last 10 days, with each side given five days to present their respective cases.
“Plaintiffs will show that defendant has implemented policies and practices that fail to comply with the federal alteration requirements because it has explicitly omitted the installation or remediation of curb ramps in conjunction with street resurfacing from 2014 through 2019, has and continues to implement an incorrect interpretation of the ADA’s safe harbor, and does not adequately assess the state of existing facilities when determining whether remediation is necessary,” the plaintiffs’ pre-trial memorandum said, in part.
“Plaintiffs will also demonstrate that defendant does not provide for any systemic affirmative maintenance of existing curb ramps, in violation of the requirement that public entities maintain existing accessible features of their pedestrian rights of way.”
Furthermore, the plaintiffs argued they will show that the City performed over 200 miles of resurfacing projects on local roads, repairs which are not in lawful compliance.
“In addition, plaintiffs will present testimony and documentary evidence showing specific locations where the City’s failure to perform maintenance has resulted in access barriers. Plaintiffs will demonstrate that missing curb ramps, steep ramps, broken concrete, lips and other inadequately constructed or maintained curb ramps cause plaintiffs and members of the class to tip over in their wheelchairs, to trip and fall, and to travel in the vehicular way to avoid the barriers and risk altogether,” the memorandum said.
In contrast, the City argued in its own memorandum that it “has consistently worked to provide ADA-compliant curb ramps at every legal and safe crossing in the City, regardless of whether or not the adjacent street was resurfaced” and how City policies “have resulted in the installation of curb ramps at over 16,000 intersections throughout the City.”
“The City will further present evidence to rebut plaintiffs’ claims pertaining to the ‘Curb Ramp Partnership Program.’ Under this program, which was in place from 2015-2019, the City departed from its prior practice of replacing all curb ramps in conjunction with repaving regardless of ramp age or condition. Instead, the City dedicated 20 percent of its paving budget to building curb ramps in response to citizen requests,” the City’s pre-trial memorandum stated.
“The City’s witnesses will testify that this program was adopted with the involvement of the disability community, including plaintiff organizations. City witnesses will also testify that during this time period, some curb ramps were also upgraded during street resurfacing if they were identified as hazardous or missing during pre-construction site reviews on resurfacing routes. Further, City witnesses will testify that the City continued to upgrade all ramps adjacent to resurfacing on Federal Aid for Municipalities (FAM) routes during this time period.”
The City countered that it can show the Curb Ramp Partnership Program was discontinued in 2020, and that its witnesses “will testify about the City’s current process of evaluating all existing curb ramps in conjunction with repaving and conducting necessary installations and upgrades, as well as the City’s processes for curb ramp maintenance and repairs.”
“Consistent with the Court’s order at summary judgment, the universe of facilities about which Plaintiffs can present evidence in support of their 28 C.F.R Section 35.151 claims consists of those identified with specificity in discovery. With the exception of those facilities identified by the plaintiffs’ experts, plaintiffs have not identified any specific facilities in their pleadings, discovery responses, or expert opinions, or in response to the City’s motion for summary judgment that allegedly violate 28 C.F.R Section 35.151. The City will put on evidence that the majority of plaintiffs’ alterations claims at the facilities identified by plaintiffs’ experts are time-barred. Plaintiffs should be precluded from presenting claims about alterations to specific facilities for the first time at trial,” the City’s memorandum said.
“Similarly, with very few exceptions, plaintiffs have not identified alleged maintenance failures at specific facilities in their pleadings, discovery responses or expert opinions, or in response to the City’s motion for summary judgment. None of plaintiffs’ experts offered any opinions on specific maintenance issues at the facilities they evaluated or the City’s general maintenance policies or practices. Accordingly, plaintiffs should also be precluded from presenting maintenance claims about specific facilities for the first time at trial.”
The plaintiffs are represented by David Ferleger of David Ferleger Law Office in Jenkintown, plus Rebecca J. Sobie, Rebecca C. Serbin 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 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