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From Nov/Dec 2000 ADVOCATE 

The ADA-PI Case:  Much More Than Money
By Rich Myers
 

         Personal injury lawyers have historically been effective instruments of social change.  The Americans With Disabilities Act affords an opportunity for the Plaintiff's bar to once again move to the cutting edge.

A GOOD LAW

         There are about 54,000,000 disabled Americans today (almost 20% of our population).  It is the public policy of our country that the disabled and the able-bodied participate side by side in what our society provides and demands of its citizens.  In 1990 Congress enacted and the President signed into law, the Americans With Disabilities Act (ADA).  The goal of this bipartisan law is stated by the National Institute on Disability and

Rehabilitation Research as follows:

"Barriers to employment, transportation, public accommodations, public services, and telecommunications have imposed staggering economic and social costs on American society and have undermined our well-intentioned efforts to educate, rehabilitate, and employ individuals with disabilities.  By breaking down these barriers, the Americans with Disabilities Act will enable society to benefit from the skills and talents of individuals with disabilities, will allow us all to gain from their increased purchasing power and ability to use it, and will lead to fuller, more productive lives for all Americans. 

 

The Americans with Disabilities Act gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion.  It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications." 

         Thus the ADA guarantees to all Americans equal access to the work place and to the market place.  The justice of access for the disabled to participate in both the work place and the market place makes these individuals both producers and spenders.

         The ADA is divided into five sections or "titles".  Title II, which guarantees access to transportation, and Title III, which guarantees access to public accommodations (goods and services), are of the greatest utility to the injured disabled in personal injury claims.  It is incumbent upon the Plaintiff's bar to be generally aware of the ADA and its potential

implication for their personal injury clients who are incidentally disabled individuals.

         Here are some examples of these good folks:  "Cherie" suffered a herniated disc from  lack of an ADA parking space, "Jack" suffered a head injury and brain damage from lack of an ADA trained lift operator, "Bobby" suffered a broken hip from lack of an ADA compliant parking space, and "Jim" suffered two broken elbows from lack of an ADA curb cut.  These are four actual examples taken from this author's recent personal injury practice. 

ADA AND THE NEGLIGENCE PER-SE JURY INSTRUCTION 

         The Federal ADA law found in the United States Code is the law of Nevada.  As one trial court Judge recently said, "in the same way that the NRS is the law of Nevada."  The following is an example of a jury instruction in one such case:

         "There was in force at the time of the occurrence in question a law which read as follows:

Prohibition of discrimination by public accommodations

                      (a) General rule

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantage, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

Specific prohibitions

Discrimination

For purposes of subsection (a) of this section, discrimination includes. . . a failure to remove architectural barriers . . . in existing facilities . . .where such removal is readily achievable.

Public accommodation

The following private entities are considered public accommodations for purposes of this subchapter . . . a professional office of a health care provider.

Readily achievable

The term "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: the nature and cost of the action needed under this chapter.

A violation of the law just read to you constitutes negligence as a matter of law.  If you find that the defendant violated the law just read to you, it is your duty to find such violation to be negligence; and you should then consider the issue of whether that negligence was a proximate cause of injury or damage to the plaintiff."

MONEY ISN'T ENOUGH 

         The U.S. Department of Justice is charged by law to enforce Titles II and III.  Individual disabled persons and disability advocacy groups have standing by law to enforce the ADA.  Unfortunately, for personal injury lawyers pursuing ADA related personal injury cases in State Court, enforcement is not possible since enforcement actions must be brought in Federal Court.  However, these cases present the perfect opportunity to

advocate ADA compliance while achieving monetary compensation for the client.  The personal injury lawyer is obligated to advocate compliance for the benefit of all as well as the dollar compensation for his or her own client.  Depending on the resolve of the individual injured client this can be done in two ways:  by insisting on compliance as a condition of settlement of the injury case; and by seeking the help of a disability advocacy group in forcing compliance. 

         Thus Plaintiff's attorneys and their clients can be effective instruments of social change.  A single case can make scores of people sensitive to ADA.  For example, in one recent case, a defense attorney later confided that because of such a case he and his building partners had made their law office building accessible to disabled individuals. 

         Some Plaintiff's attorneys are fortunate enough to have eliminated hazards to the public by way of personal injury litigation.  Examples range from automobiles, to pharmaceuticals, to water parks. Thus they have made the world safer.  The ADA-PI lawyer can do even more. 

         The above mentioned cases of Cherie, Jack, Bobby and Jim have resulted in just compensation to already disabled and now injured people and a significant amount of attorneys fees.  And much more than that.  Scattered around Clark County today because of these people and their attorneys, various public accommodations have been made not only safer but ADA compliant and are now accessible for all of our disabled brothers and sisters.  Thanks to all of these folks, in a small way, the world is a better place.

 

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