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Magistrate Judge Recommends Granting Class Certification in Title III ADA Parking Lot Slope Litigation

By: Alisa N. Carr, Esq.

On January 27, 2016, Magistrate Judge Robert Mitchell issued a Report and Recommendation (“R&R”) in the matter of Heinzl v. Cracker Barrel Old County Stores, Inc., Civil Action No. 14-1455 (W.D. Pa.), recommending that class certification be granted with respect to:

All persons with qualified mobility disabilities, who were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any Cracker Barrel store location in the United States on the basis of disability because such persons encountered accessibility barriers due to Cracker Barrel’s failure to comply with the ADA’s accessible parking and path of travel requirements.

Id. at Docket Nos. 103, 113.

Sarah Heinzl, by her attorneys, Carlson Lynch, filed suit against Cracker Barrel, individually, and on behalf of all others similarly situated, alleging violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and its implementing regulations (the “ADA”) arising from Cracker Barrel’s alleged failure to maintain parking lot slopes and paths of travel in compliance with ADA Accessibility Guidelines (“ADAAG”). Heinzl, who filed 20 similar lawsuits in 2014-2015, is seeking injunctive relief and the payment of attorneys’ fees and costs. The parties have until February 10, 2016 to request Judge Hornak’s review of the R&R.

The ADA requires all public accommodations, such as stores, hotels, banks, restaurants, professional offices, day care centers, private educational facilities and theaters, to maintain (in operable working condition) facilities and equipment that are required to be readily accessible to and usable by individuals with disabilities. A public accommodation is required to reasonably modify its policies, practices or procedures, if necessary, to avoid discrimination. Liability is imposed upon any person who owns, leases (or leases to) or operates a place of public accommodation that discriminated against an individual on the basis of a disability. To impose liability, the barrier does not need to completely preclude the plaintiff from entering or using the facility; it need only interfere with the plaintiff’s full and equal enjoyment of the facility.

While Title III ADA architectural barrier litigation concentrating on parking lot accessibility continues, recent ADA litigation is targeting the accessibility of websites. Demand letters and lawsuits directed to e-commerce companies are on the rise and while a private plaintiff may only seek injunctive relief in the form of remediation and reasonable attorneys’ fees, these damages can be very costly. Frequent review of accessibility at brick and mortar locations and on websites may prevent expensive and frequent litigation.

The attorneys at Leech Tishman have broad experience with ADA litigation defense. In September 2015, attorneys in Leech Tishman’s Pittsburgh office, in conjunction with local ADA and website technology professionals, presented an in-house lunchtime CLE seminar for clients regarding ADA compliance for websites. The 90-minute discussion included a review of current case law regarding compliance obligations, the Web Content Accessibility Guidelines 2.0 and, best practices for achieving compliance. Interested clients may contact Alisa Carr acarr@leechtishman.com or Mala Mason mmason@leechtishman.com for a copy of the seminar materials.

Alisa N. Carr is a partner in the Litigation Practice Group. She can be reached at 412.261.1600 or acarr@leechtishman.com. Please feel free to contact Alisa with any questions.

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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, safety & toxic torts, estates & trusts, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, internal investigations, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York and Wilmington, DE. For more information call 412.261.1600 or visit us at www.leechtishman.com.