Vigilante Bounty-hunter Or ADA-Crusader? You Be The Judge.

Businesses who have fended off lawsuits over disability access can take heart in last week's decision in Gunther v. Lin from the Fourth District Court of Appeal here in California.  Now don't start flame-out comments, here, there are bounty-hunter-style lawsuits out there filed by people who are more interested in recovering money than in ensuring people with disabilities have access to services.  You can be the judge whether this lawsuit falls into the former or latter category. 

A wheelchair-bound customer entered a restaurant bathroom, and then sued the restaurant because there was a lack of insulation under the sink and the mirror was set too high for compliance with Americans with Disabilities Act standards.  The customer was able to access the toilet.  The customer's lawsuit sought penalties under California Civil Code section 52.

Short, relevant legal lesson here:  section 52 allows penalties with a showing that the business's actions in not complying with ADA standards was intentional (actual damages, punitive damages and a $25,000 penalty, plus attorneys fees).  Another section, California Civil Code section 54.3 creates strict liability for a violation (a sure win upon a showing of noncompliance), but the penalties ($1,000) are much less than section 52.  A plaintiff cannot pursue remedies under both statutes, she must choose one or the other.

In the case, the restaurant owner, John Lin, said he was in the process of remodeling the bathroom:  the insulation hadn't yet been installed and an employee did not install the mirror correctly.  In other words, the court believed that Mr. Lin's actions were unintentional.  Because Mr. Lin's actions were not intentional, the wheelchair-bound plaintiff was unable to recover any damages for the noncompliance. 

In other words, plaintiffs suing for ADA-style violations must first prove intent before the court will award substantial damages.  Recovery under Civil Code section 52 will likely now take the form of preliminary requests for compliance with the ADA that repeatedly get ignored, causing an actual injury to someone, rather than just non-compliance with the technical aspects of the law.