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Technically Infeasible and Liability

Phil B

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Opinions please. How does ‘technically infeasible’ work from a liability standpoint? For instance, if you add ADA compliant restrooms to an area where the existing route to those restrooms has non-compliant floor slopes that exceed cross-slope requirements, and those slopes cannot be adjusted to be compliant due to existing conditions, who’s responsible if a wheelchair tips over or an ankle gets turned? This assumes the AHJ approves.

I’m not talking about huge slope violations, but clearly not complying with ADA.
 

e hilton

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who’s responsible if a wheelchair tips over or an ankle gets turned? This assumes the AHJ approves.

I’m not talking about huge slope violations, but clearly not complying with ADA.
Did the ahj approve the design of the added restrooms, or the restrooms and the path? what was the scope of the project?
 

fatboy

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I think e hilton hits the point, if the scope of work is the restrooms, that's as far as the AHJ's responsibility/liability goes.

The path to there is with the property owner.
 

Mark K

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Let us separate code compliance from liability. The building department is concerned about code compliance but not liability
 

Phil B

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Wow - 3 responses above that together hit the nail on the head, thank you!
e hilton - Nothing has been submitted or approved. I come across this scenario frequently where the scope is provide ADA toilets, work areas, or similar. The question is how far does the designer's responsibility extend away from the limits of work? For example, if you can easily install a new door that has the correct maneuvering clearances, it seems to reason that you also have to provide a level landing at the door. If the level landing, even with 2% slope, adversely affects the existing route to the landing, aren't you obligated to have an accessible route?
fatboy - I agree with you that the path is with the property owner, but as I mention in response to e-hilton, I feel the designer has some obligation to correct the path.
Mark K - Let's assume the ahj reviews and approves the new work, even if it's blending into an non-compliant path that may not be specifically addressed as part of the scope of work. If someone trips or falls getting to your new improvements, you'd get enjoined in a suit.
 

Phil B

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Another, and condensed way of asking the question I am looking for opinions on is: If you don't upgrade an accessible path of travel to your improvements because it is technically infeasible and/or disproportionate in cost, how does one protect themselves from being liable if someone trips or falls due to non-compliant conditions?
 

classicT

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Are you sure that it is technically infeasible? Read the definition, as provided below, because unless you have a critical structural member, you may be hard pressed to meet the definition.

TECHNICALLY INFEASIBLE. An alteration of a facility that has little likelihood of being accomplished because the existing structural conditions require the removal or alteration of a load-bearing member that is an essential part of the structural frame, or because other existing physical or site constraints prohibit modification or addition of elements, spaces or features which are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility.
 

Phil B

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Are you sure that it is technically infeasible? Read the definition, as provided below, because unless you have a critical structural member, you may be hard pressed to meet the definition.

TECHNICALLY INFEASIBLE. An alteration of a facility that has little likelihood of being accomplished because the existing structural conditions require the removal or alteration of a load-bearing member that is an essential part of the structural frame, or because other existing physical or site constraints prohibit modification or addition of elements, spaces or features which are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility.
Site constraints are such that it's feasible, but the cost to do so would be disproportionate. So if you can show disproportionality, and it's approved, you still have the condition where if someone trips or tips a wheelchair on changes in slope that are not ADA compliant, you;re liable, even if you didn't design the existing conditions.
 

ICE

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To be sued
Opinions please. How does ‘technically infeasible’ work from a liability standpoint? For instance, if you add ADA compliant restrooms to an area where the existing route to those restrooms has non-compliant floor slopes that exceed cross-slope requirements, and those slopes cannot be adjusted to be compliant due to existing conditions, who’s responsible if a wheelchair tips over or an ankle gets turned? This assumes the AHJ approves.

I’m not talking about huge slope violations, but clearly not complying with ADA.
the existing route to those restrooms has non-compliant floor slopes that exceed cross-slope requirements... that is not a requirement for a lawsuit. While it would certainly enhance the aggrieved party's position, an injury is ammo enough.

An AHJ approval, whether contemporaneous or ancient, in the absence of malice aforethought has no impact on the AHJ.
 

Yikes

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Phil B. forgetting the technical specifics of the case and focusing on your general question, "How does ‘technically infeasible’ work from a liability standpoint?"

Let's assume:
  • You have an existing facility that meets all portions of the building code under which it was originally permitted.
  • You've proposed an addition, which is where the AHJ gets involved.
  • There is some component or aspect of the related path of travel that doesn't meet the accessibility code or ADA for new construction
  • Your AHJ has declared full compliance to be technically infeasible, due to structural reasons.
  • The owner's legal counsel has also looked at their financial capabilities and determined that full compliance for this component is not "readily achievable" (note that this is a different standard than "technically infeasible").

OK, now let's assume an ADA serial litigant comes along and sees the non-compliance with the 2010 ADA Standards (whether or not there was a wheelchair tip or an ankle turn). He doesn't know that it's been vetted for technical infeasibility. In this incidence, he's going to file a suit, naming as many defendants as possible.
  • Do you have a legitimate defense of "technically infeasible" and "not readily achievable"? Yes, of course.
  • Will you prevail in court, especially having a record on file at the building department of having reviewed and documented the technical infeasibility? Yes, probably. In that case, you would not be found liable. Hopefully, this answers your original question.
  • Will any of those records keep the litigant from dragging you into a legal battle in the first place? No. Welcome to the American legal system.
Note that in California, we have the "CASp" program, where a certified access specialist can document (in advance to the incident) your good faith efforts at compliance, and it can provide you with a defense that can keep the case from ultimately going to court. However, that doesn't stop the initial complaint, and the related hassle that attends it.

But let's face it, the only way you can avoid the initial complaint is if it already looks code-compliant.
 
Last edited:

tmurray

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NB, Canada
Phil B. forgetting the technical specifics of the case and focusing on your general question, "How does ‘technically infeasible’ work from a liability standpoint?"

Let's assume:
  • You have an existing facility that meets all portions of the building code under which it was originally permitted.
  • You've proposed an addition, which is where the AHJ gets involved.
  • There is some component or aspect of the related path of travel that doesn't meet the accessibility code or ADA for new construction
  • Your AHJ has declared full compliance to be technically infeasible, due to structural reasons.
  • The owner's legal counsel has also looked at their financial capabilities and determined that full compliance for this component is not "readily achievable" (note that this is a different standard than "technically infeasible").

OK, now let's assume an ADA serial litigant comes along and sees the non-compliance with the 2010 ADA Standards (whether or not there was a wheelchair tip or an ankle turn). He doesn't know that it's been vetted for technical infeasibility. In this incidence, he's going to file a suit, naming as many defendants as possible.
  • Do you have a legitimate defense of "technically infeasible" and "not readily achievable"? Yes, of course.
  • Will you prevail in court, especially having a record on file at the building department of having reviewed and documented the technical infeasibility? Yes, probably. In that case, you would not be found liable. Hopefully, this answers your original question.
  • Will any of those records keep the litigant dragging you into a legal battle in the first place? No. Welcome to the American legal system.
Note that in California, we have the "CASp" program, where a certified access specialist can document (in advance to the incident) your good faith efforts at compliance, and it can provide you with a defense that can keep the case from ultimately going to court. However, that doesn't stop the initial complaint, and the related hassle that attends it.

But let's face it, the only way you can avoid the initial complaint is if it already looks code-compliant.
This is a better answer than you will get from the rest of us. Even if you will be successful in defending a lawsuit, the financial impact is usually severe and there is nothing stopping the next person from attempting their own lawsuit.
 

Phil B

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Sep 15, 2018
Messages
102
Location
Florida
Phil B. forgetting the technical specifics of the case and focusing on your general question, "How does ‘technically infeasible’ work from a liability standpoint?"

Let's assume:
  • You have an existing facility that meets all portions of the building code under which it was originally permitted.
  • You've proposed an addition, which is where the AHJ gets involved.
  • There is some component or aspect of the related path of travel that doesn't meet the accessibility code or ADA for new construction
  • Your AHJ has declared full compliance to be technically infeasible, due to structural reasons.
  • The owner's legal counsel has also looked at their financial capabilities and determined that full compliance for this component is not "readily achievable" (note that this is a different standard than "technically infeasible").

OK, now let's assume an ADA serial litigant comes along and sees the non-compliance with the 2010 ADA Standards (whether or not there was a wheelchair tip or an ankle turn). He doesn't know that it's been vetted for technical infeasibility. In this incidence, he's going to file a suit, naming as many defendants as possible.
  • Do you have a legitimate defense of "technically infeasible" and "not readily achievable"? Yes, of course.
  • Will you prevail in court, especially having a record on file at the building department of having reviewed and documented the technical infeasibility? Yes, probably. In that case, you would not be found liable. Hopefully, this answers your original question.
  • Will any of those records keep the litigant dragging you into a legal battle in the first place? No. Welcome to the American legal system.
Note that in California, we have the "CASp" program, where a certified access specialist can document (in advance to the incident) your good faith efforts at compliance, and it can provide you with a defense that can keep the case from ultimately going to court. However, that doesn't stop the initial complaint, and the related hassle that attends it.

But let's face it, the only way you can avoid the initial complaint is if it already looks code-compliant.
Thank you 'Yikes'! Exactly what I was looking for!!
 

Yikes

Gold Member
Joined
Nov 2, 2009
Messages
2,220
Location
Southern California
This is a better answer than you will get from the rest of us. Even if you will be successful in defending a lawsuit, the financial impact is usually severe and there is nothing stopping the next person from attempting their own lawsuit.

The key here is to remember you have TWO areas in which a project must comply:
1. Locally adopted code compliance. If you have documented the "technically infeasible" issue with the building department and they have accepted it and issued a permit, then you are "code compliant". In that instance, no one can prove you did not meet code, because code includes the mechanism for technically infeasible".
2. ADA Standards. This is where it gets tricky, because the definition of "readily achievable" is subjective, based in part on how rich the owner is. What is not readily achievable for the average person may be quite achievable if the building owner is Elon Musk or Jeff Bezos.

Definition of "readily achievable" in section 36.104 of "ADA Title III Regulation 28 CFR Part 36"
https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

"Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable factors to be considered include --

(1) The nature and cost of the action needed under this part;

(2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;

(3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

(4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

(5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity."


If you are the design professional, you need to make sure the owner is aware that it is outside of your scope of work to determine what is readily achievable, because you are typically not privy to everything in items 2-5. The owner must take ultimate responsibility, in consultation with their legal counsel.
 

ADAguy

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Joined
Sep 11, 2013
Messages
6,274
Location
California
Phil B. forgetting the technical specifics of the case and focusing on your general question, "How does ‘technically infeasible’ work from a liability standpoint?"

Let's assume:
  • You have an existing facility that meets all portions of the building code under which it was originally permitted.
  • You've proposed an addition, which is where the AHJ gets involved.
  • There is some component or aspect of the related path of travel that doesn't meet the accessibility code or ADA for new construction
  • Your AHJ has declared full compliance to be technically infeasible, due to structural reasons.
  • The owner's legal counsel has also looked at their financial capabilities and determined that full compliance for this component is not "readily achievable" (note that this is a different standard than "technically infeasible").

OK, now let's assume an ADA serial litigant comes along and sees the non-compliance with the 2010 ADA Standards (whether or not there was a wheelchair tip or an ankle turn). He doesn't know that it's been vetted for technical infeasibility. In this incidence, he's going to file a suit, naming as many defendants as possible.
  • Do you have a legitimate defense of "technically infeasible" and "not readily achievable"? Yes, of course.
  • Will you prevail in court, especially having a record on file at the building department of having reviewed and documented the technical infeasibility? Yes, probably. In that case, you would not be found liable. Hopefully, this answers your original question.
  • Will any of those records keep the litigant from dragging you into a legal battle in the first place? No. Welcome to the American legal system.
Note that in California, we have the "CASp" program, where a certified access specialist can document (in advance to the incident) your good faith efforts at compliance, and it can provide you with a defense that can keep the case from ultimately going to court. However, that doesn't stop the initial complaint, and the related hassle that attends it.

But let's face it, the only way you can avoid the initial complaint is if it already looks code-compliant.
There in lies an issue, "assumptions" by the serial litigant and his law firm. They seek low hanging fruit knowing that small businesses will often fold and settle.
They will claim "discrimination" based on their "opinion" just because.
 

jar546

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Oct 16, 2009
Messages
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Palm Beach County Florida
Some states, such as Pennsylvania adopted the ANSI A117.1 but do not allow the local AHJ to determine "technical infeasibility." In the case of PA, for example, only the State Board for accessibility can make that determination and any other variances that are granted. It is not permitted at the local level.
 
Joined
Jun 7, 2014
Messages
102
Location
Hawaii
Opinions please. How does ‘technically infeasible’ work from a liability standpoint? For instance, if you add ADA compliant restrooms to an area where the existing route to those restrooms has non-compliant floor slopes that exceed cross-slope requirements, and those slopes cannot be adjusted to be compliant due to existing conditions, who’s responsible if a wheelchair tips over or an ankle gets turned? This assumes the AHJ approves.

I’m not talking about huge slope violations, but clearly not complying with ADA.
Answer is based on the ADA law.
Depends:
1. when the facility was originally built? Was it built before 1991 when no ADA was being enforced? If so they you could put the building in the Barrier Removal category.
2. if it was built after 1991 then all of it has to comply with the 1991 ADA law. I would recommend the facility do a site survey anyway, listing all ADA barriers and starting a priority list for removing those barriers. If the facility is engaging in voluntary barrier removal and show how they have done a self evaluation and show receipts of work done and the plan with schedule for removing barriers, the DOJ says that shows good faith effort and that can help the facility. The AHJ will not step into an ADA lawsuit nor with the DOJ pin the blame on the AHJ (state or county) their reason is listed in the law.
3. Technical in-feasibility examples by the DOJ talks about the initial terrrain being too steep or a swamp. They are looking at new construction.
If it is not a huge slope then it should be correctable by adjusting the walkway surface. I know it is easier said than done.
 
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