PHILADELPHIA – A federal judge has authorized a settlement between a group of plaintiffs and the City of Philadelphia, over the plaintiffs’ 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.
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.”
On Jan. 19, 2022 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.
However, on Jan. 9, five individuals, Mark Fultz, Thomas Hamill, Gregory Lasky, Dean Ragone and Louis Veney, filed a formal objection to the proposed settlement. According to the group, the potential settlement did not properly conform to federal law, nor did it provide proper notice to all of those affected.
In a March 21 memorandum ruling, U.S. District Court for the Eastern District of Pennsylvania Judge Harvey Bartle III denied the quintet’s attempt to intervene in or dismiss the case.
UPDATE
In a 33-page memorandum opinion issued on May 1, Bartle authorized final approval of the terms of the settlement, giving them legal effect and paving the way for their imminent implementation. Under those terms, the City must:
• Install or remediate at least 10,000 curb ramps over the 15-year settlement period, with 2,000-ramp milestones every three years;
• Install accessible curb ramps where they are missing and fix curb ramps where they are noncompliant whenever the City newly constructs or alters a road or street with a pedestrian walkway, unless crossing is banned for all pedestrians due to safety concerns or a fully compliant curb ramp is technically infeasible;
• Maintain those curb ramps over which it has responsibility in operable working condition;
• Establish a curb ramp request system for City residents to request installation, remediation or maintenance of ramps at any crossing identified in the Settlement. The settlement sets out timelines for prompt investigation and fulfillment of requests;
• Post progress reports on the City’s official website on the number and location of curb ramps installed or remediated under the agreement.
“The settlement will provide significant relief to individuals with disabilities that affect their mobility. It will allow them to navigate Philadelphia’s streets in a safer manner. Under the agreement, the City will install and remediate 10,000 curb ramps over a 15-year period. It has agreed to complete 2,000 ramps every three years, with tri-annual cumulative milestones in addition to transparent annual progress reporting requirements,” Bartle said.
“It will implement a system whereby Philadelphia residents may submit requests for the City to cure inaccessible curb ramps. In addition, the agreement sets aside funding for class counsel to monitor the City’s compliance, and this Court will retain jurisdiction for purposes of enforcement. In sum, the agreement requires the City to prioritize curb ramp accessibility so that class members can more easily access jobs, schools, and other aspects of community life.”
Plaintiff counsel and Disability Rights Advocates, a nonprofit legal center that specializes in high-impact class actions, will monitor the City’s compliance with the aforementioned settlement terms.
“Barrier-free access is a civil right that for far too long has not been achieved in the City of Philadelphia. Judge Bartle’s approval of our ADA class action settlement will provide a strong framework to safely improve curb ramp access at thousands of intersections, corners and sidewalks throughout all neighborhoods in our city. LRI greatly appreciates the strategic legal work of our attorneys at DRA and David Ferleger in helping enforce our civil rights under Title II of the ADA,” Tom Earle, CEO of plaintiff Liberty Resources, Inc., said.
Two of the case’s citizen plaintiffs, Tony Brooks and Fran Fulton, also offered comment on the settlement.
“This settlement marks the beginning of holding the City of Philadelphia responsible for accessible sidewalks. I am happy that the City has committed to installing, fixing, and maintaining curb ramps in the communities in which we live, making sidewalks safer for the disabled community throughout Philadelphia,” Brooks said.
“I am absolutely thrilled that the court approved the settlement. I am delighted that the City of Philadelphia is now required to fix and maintain sidewalk curb ramps, and that they will be monitored to make sure that they do their due diligence,” Fulton added.
A member of plaintiff counsel also provided comment on the settlement.
“Our clients’ dedication to improving access in their city has resulted in this excellent outcome that will be enjoyed by thousands of Philadelphians and visitors. Having achieved this victory, we will now make sure that the City meets its commitments,” Meredith Weaver, senior staff attorney at Disability Rights Advocates, stated.
The plaintiffs were 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 was 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