Judge says owners can't sue ADA Consultant or Architect for bad design
Every owner or developer of commercial facilities and multifamily housing should be very alarmed of a growing trend.
Some courts are not allowing owners and developers to sue their architects and consultants for designing facilities that do not comply Americans with Disabilities Act (ADA) and Fair Housing Act (FHA) accessibility requirements.
In one case, back in 2012 a Nevada casino owner sued their ADA consultant under their contract and state law after the Justice Department required the owner to make more than $20 million in retrofits to comply with ADA requirements. The Nevada Supreme Court dismissed the owner’s claims, finding that allowing these claims to move forward would “frustrate” the objectives of the ADA.
The judge said that allowing an owner to “completely insulate itself” from liability for an ADA or FHA violation by contract or through state common law principles would diminish an owner’s incentive to ensure compliance. The court emphasized that owners have a non-delegable duty to comply with these statutes that cannot be shifted to third parties.
The judge did acknowledge that the ADA does allow tenants and landlords to decide among themselves who shares in the responsibility for ADA violations, but that there was no Congressional intent to allow such allocation between owners and architects/consultants.
Another case had a similar outcome. It involved a multifamily housing developer that sued the architect that designed 15 apartment communities, which needed over $2.3 million in retrofits to comply with ADA and FHA requirements. The judge dismissed all of the owner’s claims against the architect under the same theory that the Nevada Supreme Court adopted.
Federal district courts in Mississippi, Maryland and Tennessee have also dismissed claims by owners against their architects applying the same rationale.
I often tell clients that if all architects/engineers or ADA consultants actually knew how to design to the federal accessibility standards, I wouldn't be in business.
The level of understanding of federal accessibility requirements among design professionals varies greatly.
The stakes are just to high for owners NOT to be proactive about accessibility issues.Here are a few things an owner can do to reduce their risk:Designate a point person to oversee accessibility compliance for any upcoming ADA project
Ask lots of questions to make sure accessibility is being considered and planned for through the design process
Have Architects/Civil Engineers plans reviewed by an independent and reputable accessibility specialist
Perform on-site accessibility inspections of each phase of construction to ensure compliance along the way
Obtain a final “Post Construction” inspection with certification/sign-off as soon as the project is completed
It's unfortunate, but the courts will continue to rule the way they do. I, on the other hand, prefer to “Prepare & Protect” my clients from this type of outcome.
Let’s design and build it properly so we can all worry about other important things … like running our businesses.