Recent years have seen a proliferation of lawsuits against building owners and businesses for violation of the accessibility requirements of the Americans with Disabilities Act (ADA). Not only restaurants, but also hotels, multi-family housing projects and commercial buildings are among the most popular targets for enforcement. Curing such violations can be very expensive when it involves redesign and reconstruction of building features.
What makes matters worse for building developers and owners is that, many times, they are seriously impeded from recovering the costs of curing violations from the design professionals whose building designs failed to adequately respond to ADA accessibility requirements. Two legal factors work against owners in this area. One is that the duty to comply with ADA requirements is a non-delegable legal duty - meaning that owners cannot contract it away to others. The second is the constitutional doctrine of federal preemption - that state law that conflicts with federal law is preempted and unenforceable.
This can lead to bad results for building owners and developers. A recent case from the Appellate Court of Illinois is illustrative. In Chicago Housing Authority v. DeStefano and Partners, Ltd., 2015 IL APP (1st) 142870, the Chicago Housing Authority (CHA) hired a design firm to provide complete architectural, engineering and construction administration services on the renovation of a public housing project. This included certifying that all work complied with federal accessibility standards. After the Department of Housing and Urban Development conducted an ADA compliance review of the renovated project, CHA was forced to spend $3.4 million in redesign and retrofitting costs to cure accessibility deficiencies.
Understandably, CHA then sued the design firm on the basis of breach of contract and indemnity to recover those costs. CHA's claims, however, were dismissed by the court on the basis that these state law claims were preempted and barred by federal law. Because the owner itself has an affirmative duty to comply with the ADA, it cannot delegate that duty to another party by contract. The appellate court reasoned that permitting CHA to pursue its state law-based breach of contract or indemnity claims against the architect would discourage CHA from fulfilling its own obligations to prevent discrimination prohibited by the ADA and would undermine the law's purpose. The court emphasized that the ADA makes no provision for indemnification or allocation of liability between the various entities subject to its requirements. Allowing CHA to seek indemnity against the architect would effectively insulate CHA from liability for ADA violations, contrary to the statutory goal of preventing and remedying discrimination against disabled persons. Therefore, these claims were preempted and prohibited. In short, CHA was left without a remedy against the architect whose design caused the very violations.
In reaching its decision, the Illinois court relied in part on Equal Rights Center v. Niles Bolton Associates, Inc., 602 F.3d 597 (4th Cir. 2010), where the U.S. Court of Appeals held that the ADA and the Fair Housing Act (FHA) preempt any claims against an architect for breach of contract, professional negligence, indemnity or contribution under state law. Again in this case, the court denied the developer of apartment buildings any remedy against the architect for the costs to correct the design and retrofit the buildings to bring them into ADA and FHA compliance. These cases are not outliers, but are just two of many state and federal court cases with similar results.
Owners cannot, therefore, insulate themselves from ADA liability simply by contracting with design professionals and building contractors to design and construct ADA compliant projects. Nor will owners protect themselves simply through better contractual indemnification provisions. These measures remain important, but the owner's own increased attention and emphasis on achieving ADA compliant projects is essential to avoiding liability. Many owners now hire accessibility consultants, who specialize in ADA compliance, as part of their project development team. Hiring such consultants now represents best practice in the industry, but even this is not a perfect solution, because ADA compliance remains an owner's non-delegable duty. It is vitally important that owners and developers understand that the responsibility for ADA accessibility compliance cannot be delegated away, and that traditional remedies against architects for inadequate design are severely limited in this realm. This risk cannot be eliminated but can only be controlled by taking increased measures to ensure ADA compliance.
