Posted by: Patricia Salkin | November 30, 2010

5th Circuit Court of Appeals Holds that Inadequate Sidewalks, Curbs, and Parking Lots are not a “Service, Program, or Activity” Covered by the Americans with Disabilities Act

In 2005, a group of disabled individuals filed suit under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, and the Rehabilitation Act, 29 U.S.C. § 794, claiming that curbs, sidewalks, and parking lots in the city made transportation by wheelchair impossible or unsafe. The plaintiffs were not seeking monetary damages but rather, were seeking an injunction which would require the city to fix the curbs, sidewalks and parking lots in question. The trial court dismissed stating that the two year statute of limitations had run. The 5th Circuit Court of Appeals held that the plaintiffs have a private right of action under the ADA to the extent that the sidewalks, curbs, and parking lots effectively deny them meaningful access to a “service, program, or activity” covered by the ADA. Claims that plaintiffs cannot access parks, public schools, or polling stations may meet the standard, but inadequate sidewalks, curbs, and parking lots are not in themselves violations of the Act because the Act suggests that the two categories are distinct from each other. The two-year state limitations period for personal injury claims applies to claims under both statutes and began to run when the plaintiffs knew, or should have known, they were denied access to covered services, programs, or activities.

Frame v. City of Arlington, 2010 WL 3292980 (5th Cir. 8/23/2010)

The opinion can be accessed at: http://www.ca5.uscourts.gov/opinions/pub/08/08-10630-CV1.wpd.pdf


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