Metropolitan News-Enterprise


Thursday, September 10, 2020


Page 1


Ninth Circuit:

Plaintiff Has Initial Burden in Access Action Under ADA

Wheelchair-Bound Man Failed to Show That Widening of Restroom Door Was ‘Readily Achievable,’ But Could Still Prevail If He Can Show Inexpensive ‘Alternative Method’ Was Not Offered


Above is a photo of the Jet Cat Express. The Ninth U.S. Circuit Court of Appeals yesterday held that the District Court properly determined that a wheelchair-bound plaintiff in an action under the Americans With Disability Act had the initial burden, where the defense sought summary judgment, to show, plausibly, that the expense of widening the door to provide access to a restroom by persons in wheelchairs would not exceed the benefit.



By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals held yesterday that the plaintiff in an action under the Americans With Disabilities Act based on a lack of access to a public accommodation has the initial burden, where the defendant seeks summary judgment, of showing, plausibly, that the expense of removing an architectural barrier would not be so great as to outweigh the benefit.

If that’s shown, a three-judge panel said in an opinion by Judge Mary H. Murguia, the defendant then has the burden of persuading the court that removal of the barrier cannot be readily achieved.

The plaintiff, Daniel Lopez, sued under the Americans With Disabilities Act (“ADA”), contending that restroom door aboard the Jet Cat Express, which sails back and forth between Long Beach and Catalina Island, is too narrow for him to be able to enter in the wheelchair to which he is confined. Murguia said Lopez failed to meet his initial burden of showing that widening of that door is “readily achievable.”

To that extent she agreed with District Court Judge Stephen V. Wilson of the Central District of California, who granted summary judgment to defendant Catalina Channel Express, which owns and operates the craft.

Summary judgment was reversed, however, for a determination, on remand, as to whether there was a feasible “alternative method” of providing access which the defendant failed to provide. It argued on appeal that it offered Lopez use of its own narrower wheelchair, which would have enabled access; he denied that such a suggestion was made.

Lopez could still prevail, Murguia said, if the District Court finds that no such accommodation was proposed.

In deciding the issue of which party had the initial burden, Murguia noted that Title III of the ADA spells out that architectural barriers must be removed where it is “readily achievable” but is “silent as to who bears the burden of proving at summary judgment that removal of an architectural barrier is, or is not, readily achievable.”

She wrote:

“The district court granted summary judgment to Catalina largely because it concluded that Lopez bore—and failed to carry—the burden of establishing that altering the Jet Cat Express’s restroom door was ‘readily achievable.’ Our court has not decided which party bears the burden to establish that removal of an architectural barrier is or is not readily achievable.”

Murguia went on to say:

“In affirming the district court’s conclusion that Lopez failed to meet his initial burden, we join the Second Circuit and adopt a burden-shifting framework….Under the Second Circuit’s approach, plaintiffs have the initial burden at summary judgment of plausibly showing that the cost of removing an architectural barrier does not exceed the benefits under the particular circumstances.”

2008 Decision Distinguished

Lopez noted that the Ninth Circuit, in its 2008 decision in Molski v. Foley Estates Vineyard & Winery, LLC, places the initial burden on the defendant to show justification for its refusal to remove architectural barriers that precluded wheelchair access to its wine-tasting room in Lompoc. That case is distinguishable, Murguia said, because a historic structure was involved.

In her opinion in Molski, Senior Judge Dorothy W. Nelson said:

“By placing the burden of production on the defendant, we place the burden on the party with the best access to information regarding the historical significance of the building. The defendant sought the historical designation in this case. Thus, the defendant possesses the best understanding of the circumstances under which that designation might be threatened.”

Nelson continued:

“The defendant is also in the best position to discuss the matter with the Santa Barbara County Historic Landmarks Advisory Commission and to request an opinion on proposed methods of barrier removal. As a result, the defendant is in a better position to introduce, as part of its affirmative defense, detailed evidence and expert testimony concerning whether the historic significance of a structure would be threatened or destroyed by the proposed barrier removal plan.”

Not Historic Facility

Murguia commented in yesterday’s opinion:

“Here, by contrast, the Jet Cat Express is not a historic facility. Catalina need not consult with a historic preservation entity on proposed methods of barrier removal to evaluate how the alteration of the vessels restroom door might threaten the vessel’s historic significance. Molski only applies in cases that involve removal of architectural barriers to historic faculties—it is the exception, not the rule.”

The boat was built in 2001.

The case is Lopez v. Catalina Channel Express, 19-55136.



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