Design Professionals May Be Off the Hook for Third-Party ADA Claims
The United States Court of Appeals for the Ninth Circuit recently affirmed that an architect retained for and used in the design of a "commercial facility" could not be held liable in an action brought under Title III of the Americans with Disabilities Act (ADA), Lonberg v. Sanborn Theaters, Inc., 259 F.3d 1029 (9th Cir. 2001). Under Title III, Congress generally limited the ADA liability of construction-related entities to those entities that "own, lease (or lease to), or operate a place of public accommodation." 42 U.S.C. § 12182(a). Congress also specifically defined "discrimination" under that title, which applies to "public accommodations and commercial facilities," as "a failure to design and construct facilities for first occupancy . . . that are readily accessible to and usable by individuals with disabilities... ." 42 U.S.C. § 12183(a).
The plaintiffs in Lonberg, wheelchair-bound patrons of a multiplex theater, brought an action against the theater's owner and operator as well as its architect, Salts, Troutman & Kaneshiro, Inc. (STK). The plaintiffs sued STK for its alleged "failure to design and construct" the theater in a manner "readily accessible" to their wheelchairs. Even though STK was not an owner, lessor, lessee or operator of the theater, the plaintiffs based their action against the architect on a distinction between "commercial facility" and "public accommodation" as the terms are defined under the ADA. (The former includes a broader range of commercial buildings than the latter.) Therefore, the plaintiffs asserted their "design and construct" discrimination claim against STK notwithstanding that architects are not included within the general reach of ADA liability as set out in an earlier section of the Act. The Court rejected that distinction, holding that Congress' "general rule," limiting liability to owners, leasing parties and operators, was meant to include not only "public accommodations," but also the more broadly defined "commercial facilities."
In addition to Congress' "general rule" prohibiting ADA claims against entities whose responsibilities lie solely with a project's design, other courts have noted that the denial of such "design and construct" claims is based on the fact that the phrase "design and construct" is distinctly conjunctive. By putting the language in the conjunctive, Congress meant to refer only to parties who are responsible for both functions, such as general contractors or facilities owners who hire the necessary design and construction experts for each project. See Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., 945 F.Supp. 1 (D.D.C. 1996), aff'd, 117 F.3d 579 (D.C. Cir. 1997) (involving Washington, D.C.'s, MCI Center).
Even though the Lonberg decision and others before it may appear promising to design professionals wary of ADA claims, they should be aware that other courts have extended the reach of ADA liability to parties outside of Congress' "general rule," including architects and franchisors. See United States v. Days Inns, 151 F.3d 822 (8th Cir. 1998) (extending ADA liability to franchisors); United States v. Ellerbe Becket, Inc., 976 F.Supp. 1262 (D. Minn. 1997) (extending ADA liability to architects); Johanson v. Huizenga Holdings, Inc., 963 F. Supp. 1175 (S.D. Fla. 1997) (same). However, the cases listed above that extended ADA liability to architects involved preconstruction activities and were based on the release of a project's preliminary plans that indicated the existence of ADA violations or on an established pattern of conduct by an architect in designing buildings in violation of ADA standards.
In light of the foregoing, design professionals may be left with one additional defense in ADA actions that are brought against them by private parties. In such actions, private party plaintiffs are limited under the ADA only to injunctive relief. As the Court in Lonberg noted, this is significant because after the noncompliant building already has been built, injunctive relief can be obtained only against the person currently in control of the building. Thus, this limitation on relief suggests that holding architects liable in "design and construct" discrimination cases "would create liability in persons against whom there is no meaningful remedy provided by statute."
Against this uncertain legal backdrop, owners in the construction industry may be left holding the bag when post-construction ADA claims are brought. Such a possibility should cause owners to review their contracts in order to ensure that the contracts include indemnification provisions that afford them sufficient protection in the event that their architect has designed a project that does not comply with the ADA. If owners are left without a contractual or common law right of indemnity to assert against their architect as a result of an ADA claim, their only remedy may be to pursue an action against the architect in tort, which may prove to be a more difficult cause of action.