mark handler
SAWHORSE
Court Revives ADA Case
By ANNIE YOUDERIAN
Thursday, July 18, 2013
Courthouse News Service
(CN) - A quadriplegic customer doesn't need an expert to claim that a pizza place is not "readily accessible" to someone in a wheelchair, the 9th Circuit ruled Thursday.
"Perhaps we've become too expert-prone," Chief Judge Alex Kozinski quipped in the 10-page ruling by a three-judge panel in Pasadena, Calif.
Matt Strong sued the owners of Peter Piper Pizza in El Cajon, Calif., after patronizing the restaurant and finding several alleged violations of the American Disabilities Act.
He cited alleged issues with the restaurant's bathrooms, seating and parking, including that the parking spots sloped more than 2 percent.
But a federal judge dismissed his lawsuit because Strong had missed the deadline for disclosing his expert. Instead, Strong included the expert's measurements in his own presentation, which he based on his own experience at the pizza place.
"While I am not able to take measurements myself, I was present while another individual took measurements and photographs of the barriers present at the subject restaurant," Strong told the court.
Kozinski said that's enough to survive summary judgment.
"That another person holds the ruler does not deprive an observer of personal knowledge of the measurement, and Strong says he was present as the measurements were taken," he wrote.
"Even without precise measurements, Strong could support his case based on his own personal experience with the barriers."
In a partial dissent, Judge Barry Silverman said Strong's testimony about the expert's measurements was "inadmissible hearsay."
"The problem is that Strong is simply repeating what the declarant communicated to him -- classic hearsay whether the declarant is an expert or not," Silverman wrote. "And it is no less hearsay just because Strong was 'present' when the other person saw what he purported to observe."
Though Silverman departed from the majority on this point, all three judges agreed that Strong's case should proceed to trial based on his own experience.
"Given that so many public accommodations do comply with the ADA, it's likely that someone like Strong, who daily navigates the world in a wheelchair, would be attuned to variations in the slope and spacing of his environment," Kozinski wrote (original emphasis). "Even without tools, Strong could say, based on his experience, that the slope exceeds the maximum of 2.0% or that there's 'insufficient clear floor space in front of the water closet,' just as a man in a wheelchair who struggles to get out of his car can say that the width of the access aisle next to his handicap parking spot is less than the required five feet. The trier of fact may discount such personal observations, but the weight of the evidence is an issue for trial, not summary judgment."
By ANNIE YOUDERIAN
Thursday, July 18, 2013
Courthouse News Service
(CN) - A quadriplegic customer doesn't need an expert to claim that a pizza place is not "readily accessible" to someone in a wheelchair, the 9th Circuit ruled Thursday.
"Perhaps we've become too expert-prone," Chief Judge Alex Kozinski quipped in the 10-page ruling by a three-judge panel in Pasadena, Calif.
Matt Strong sued the owners of Peter Piper Pizza in El Cajon, Calif., after patronizing the restaurant and finding several alleged violations of the American Disabilities Act.
He cited alleged issues with the restaurant's bathrooms, seating and parking, including that the parking spots sloped more than 2 percent.
But a federal judge dismissed his lawsuit because Strong had missed the deadline for disclosing his expert. Instead, Strong included the expert's measurements in his own presentation, which he based on his own experience at the pizza place.
"While I am not able to take measurements myself, I was present while another individual took measurements and photographs of the barriers present at the subject restaurant," Strong told the court.
Kozinski said that's enough to survive summary judgment.
"That another person holds the ruler does not deprive an observer of personal knowledge of the measurement, and Strong says he was present as the measurements were taken," he wrote.
"Even without precise measurements, Strong could support his case based on his own personal experience with the barriers."
In a partial dissent, Judge Barry Silverman said Strong's testimony about the expert's measurements was "inadmissible hearsay."
"The problem is that Strong is simply repeating what the declarant communicated to him -- classic hearsay whether the declarant is an expert or not," Silverman wrote. "And it is no less hearsay just because Strong was 'present' when the other person saw what he purported to observe."
Though Silverman departed from the majority on this point, all three judges agreed that Strong's case should proceed to trial based on his own experience.
"Given that so many public accommodations do comply with the ADA, it's likely that someone like Strong, who daily navigates the world in a wheelchair, would be attuned to variations in the slope and spacing of his environment," Kozinski wrote (original emphasis). "Even without tools, Strong could say, based on his experience, that the slope exceeds the maximum of 2.0% or that there's 'insufficient clear floor space in front of the water closet,' just as a man in a wheelchair who struggles to get out of his car can say that the width of the access aisle next to his handicap parking spot is less than the required five feet. The trier of fact may discount such personal observations, but the weight of the evidence is an issue for trial, not summary judgment."
