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 – has reached a prospective settlement, which would see the City install thousands of ramps and curbs over the next 15 years and compensate plaintiff counsel for $1.1 million.
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.”
Both sides filed pre-trial memoranda on Dec. 13, 2021, in advance of a Feb. 2, 2022 bench trial before U.S. District Court for the Eastern District of Pennsylvania Judge Harvey Bartle III. Filings indicated 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.”
UPDATE
However, on Jan. 19 and just weeks from the scheduled trial date, the parties filed a joint motion to stay the trial and all pending case deadlines, in advance of settlement.
After nine additional months of negotiations, a motion for approval of a proposed settlement was filed on Oct. 14.
“The relief provided for the settlement class is robust, taking into account the costs, risks and delay of trial and appeal and the terms of the proposed award of attorneys’ fees. The relief in the agreement is substantial and will be quickly implemented. Principally, the City has agreed to remediate or install 10,000 curb ramps over the course of the 15-year settlement period, with tri-annual 2,000-ramp milestones. This will ensure that settlement class members begin experiencing the benefits of this commitment very soon,” the motion stated.
“The agreement also includes commitments by the City to install accessible curb ramps, to remediate existing but non-compliant curb ramps and to maintain curb ramps as required under the ADA, which will ensure that curb ramp improvements continue to provide access to the pedestrian rights of way for years to come. The City will also implement a new request system to allow Philadelphia residents to submit requests for installation, remediation or maintenance of specific curb ramps each year. Further, the City will publicly report information regarding the location, initiation, and completion of curb ramp work undertaken each year, making settlement implementation transparent and available for public oversight.”
$1.1 million will also be a part of the settlement, to cover the plaintiffs’ attorneys’ fees and costs.
“The parties acknowledge the time and risks associated with and inherent in any litigation and contend that the agreement will provide substantial benefits to the settlement class while providing finality and avoiding those delays and risks; the Court agrees. The Court also agrees that the negotiated amount of $1,100,000 for class counsel’s attorneys’ fees and costs in this case, which has entailed more than three years of active litigation and negotiations, is likely to be reasonable: it was negotiated at arms-length after injunctive relief was agreed-upon, the negotiated amount was reached with the assistance of U.S. Magistrate Judge Elizabeth T. Hey, it represents a significant reduction from class counsel’s lodestar, and there is no settlement fund from which it detracts,” per the motion.
Plaintiff Tony Brooks noted, “Activists and advocates fighting for disability rights in Philadelphia, like myself, now have a victory here in our city that we’ve wanted for a long time. I’m very happy that, with this settlement, we’re going to have safer and more accessible sidewalks.”
Meredith Weaver, a Senior Staff Attorney at DRA and one of plaintiffs’ counsel, said, “Sidewalks are an essential part of civic engagement, community building and independent transportation. We are pleased that the City of Philadelphia has made a commitment to invest in making its sidewalks useable by all Philadelphians and will work to ensure that the City meets its obligations over the next 15 years.”
David Ferleger, also class counsel in the case, said, “For many people in Philadelphia, there is no way to cross the street where the sidewalk ends. Without a curb ramp, a street corner is like a brick wall to someone who uses a wheelchair, or like stepping off a dangerous edge to a blind person. Enforceable by the federal court if necessary, this landmark agreement will expand the participation of thousands in our community in such things as person-to-person encounters, family events, recreation, education and government.”
The plaintiffs are represented by David Ferleger of David Ferleger Law Office in Jenkintown, plus Erin Gallagher, Rebecca C. Serbin, Meredith J. Weaver and Stuart Seaborn 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