Consider Your Liability Then Your Appeal

Consider Your Liability Then Your Appeal

By David P. Burke

Imagine a customer with a physical disability drives into the parking lot of your business. He notices faded blue paint outlining a disabled parking space. He never leaves his car and drives home. Are you aware he could now sue your business for all Americans with Disabilities Act (ADA) noncompliance related to his disability? ADA violations in the parking lot, in the front doorway, and in the interior of your business now present potential avenues of liability – regardless of whether the customer encounters them during his or her visit.

Businesses must be mindful of a recent decision from the Ninth Circuit Court of Appeals that broadly interpreted the ability to sue under the ADA. Likewise, businesses must be aware of appellate considerations in light of this and other anti-business decisions.

The Doran Case

In Doran v. 7-Eleven, Mr. Doran sued a 7-Eleven store for ADA noncompliance. Doran v. 7-Eleven, Inc., 506 F.3d 1191 (9th Cir. 2007). Doran used a wheelchair and claimed barriers denied him full access to the store. Doran claimed he encountered, or had knowledge of, nine barriers at the store, including faded paint for the disabled parking space and no sign designating the wheelchair ramp.

During discovery, Doran hired an expert to inspect the 7-Eleven. His expert found the cashier’s counter and ATM were too high, the condiment counter out of reach, and the parking spaces too sloped. The store argued Doran never encountered the barriers, and did not have any knowledge they even existed until the expert’s discovery.

The Constitution requires a plaintiff have “standing” to sue. This means an injury, caused by a defendant, that a court can redress. The Ninth Circuit held Doran had standing for all barriers related to his disability because he had knowledge of at least one. All barriers affecting Doran’s disability constituted one legal injury, giving standing.

In addition to Constitutional limitations, the United States Supreme Court has its own rules limiting standing. The Court’s “prudential standing requirements” allow it to deny standing if a case presents abstract questions, questions better answered by legislatures, or concerns of judicial economy. The Doran decision is based on judicial economy and concerns of “piecemeal litigation.” The Ninth Circuit refused to require disabled plaintiffs to challenge, in different cases, multiple barriers in the same facility, controlled by the same entity, all related to the plaintiff's specific disability.

The Ninth Circuit allowed Doran to sue for all barriers in the 7-Eleven related to his disability, including those he never encountered or knew of during his visit.

What Now?

If you are thinking that the scope of ADA standing is arguably boundless, you may be right. However, only the Ninth Circuit or the United States Supreme Court can change Doran. So, will the Supreme Court consider altering Doran, or other business-unfriendly cases?

Will the Supreme Court Take the Case?

Basically, the Court’s review is discretionary. A request for review is generally called a “petition for writ of certiorari.” The Supreme Court Rules provide certiorari will be granted “only for compelling reasons.” Of course, that phrase is not defined and other factors are at play. Certiorari is rarely granted. Each term, the Court receives about 8,000 petitions and about 80 are granted. eJournal USA: Issues of Democracy; Volume 10, Number 1 (April 2005): “The Writ of Certiorari: Deciding Which Cases to Review.” Hon. Peter J. Messitte. Each week, hundreds of petitions circulate the Justices’ offices and the Justices decide on their own which cases they find worthy. The process is the sum of nine individual decisions. According to the unwritten “Rule of 4,” the Court will accept a case when four of the nine Justices approve. These votes are typically secret, unexplained, and can be inconsistent from vote to vote. The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection: 82 Wash. U. L. Q. 389 (2004).

Rule 10.

The Court does not define a “compelling reason,” but indicates in Supreme Court Rule 10 that it considers lower court conflict and “important federal questions.”

Real conflict between the circuit courts of appeals, between state supreme courts, between federal courts and state courts, or between the lower court and Supreme Court greatly increases the chances certiorari will be granted. For an “important federal question,” one of the more consistent signals is where the United States government is petitioning for certiorari - especially where the government argues it is forced to operate differently across the country due to a lower court ruling. In fact, the Court grants over 50% of U.S. government petitions. Id.

“Amicus briefs” are briefs by non-parties in support of (or against) certiorari. Research indicates that filing of just one amicus brief, where there is an actual conflict or where the government is the petitioner, increases the chance of granting certiorari by 40-50%. Id.

Research also indicates certiorari is more likely where the circuit court reversed the district court, or where a judge dissented. Id. Some have suggested the area of law is a factor in the decision-making process, but recent studies indicate the area of law does not make certiorari more or less likely. Id.

Other Certiorari Considerations

A justice is more likely to vote to grant certiorari if he or she ideologically disagrees with the lower court. However, there is also strong evidence to support that Justices consider the likely outcome on the merits in their decision to grant certiorari; they will deny certiorari if they believe the case will be decided incorrectly on the merits. Id.

Also, the decision to grant certiorari is the product of a personal decision by each Justice. Justice Rehnquist called certiorari “a rather subjective decision” and Justice Douglas called it “highly personal.” Where there is lower court conflict, some Justices are willing to allow the courts a “percolation” period, where issues are hashed out by the lower courts over a matter of time. The higher the priority of a Justice to resolve conflict, the greater the chances he or she will vote to grant certiorari. Finally, some Justices are sensitive to certain interests and believe the Court can institute broad social change; these Justices are more likely to allow desires for social reform to affect their vote. Id.

Businesses Should Take Note

Businesses should be mindful that one minor ADA barrier could result in liability for every barrier affecting a plaintiff. Businesses should closely monitor the effect of appellate decisions in this area. When lower and appellate courts expand liability, businesses must assess the options and be aware of appellate considerations.


David Burke is a shareholder in our San Diego office. His areas of practice include appellate law, the defense of healthcare professionals and general civil litigation. Mr. Burke may be reached at (619) 238-1712 or dburke@neildymott.com

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