Having served for many years as a court certified forensic expert concerning design and construction litigation, I am continually surprised by ongoing case law as it evolves. Being in a creative profession, I am frequently struck by the unusual issues surrounding construction litigation. I often tell clients that I am not imaginative enough to have made up some of the drama surrounding these cases, whether it includes wrongful death in non-code compliant hospitals, tragic slip and fall incidents, owner/contractor disputes, landlord/tenant evictions, or land use regulatory changes threatening neighborhood cohesion.
Plaintiff in Slip and Fall Incident at Pool Side Resort received no Reward from Jury
Several years ago, attorneys representing a popular Tampa Bay area restaurant called me. The restaurant was known for its poolside happy hour parties along a Tampa Bay/Gulf of Mexico sea wall. While the band played one Saturday evening, a woman propped a poolside plastic lawn chair up next to a flagpole. The leg of the chair wedged between the flagpole and the pool deck pavers. When the woman tilted back her chair, one leg of the chair sunk into the sand pit around the flagpole and the chair tipped over throwing her into a roped guardrail above the sea wall. The woman fell through the ropes. To break her fall, she severely sprained one of her wrists. Soon thereafter, she retained local counsel and alleged career threatening Carpel Tunnel Syndrome emanating from an ADA violation. The suit went on to describe how this was perpetrated by the restaurant and landlord. Her attorney pointed to code issues governing handicap compliant rails.
The defense I prepared was based on outdoor elements “safe harbored” under the 1991 Standards. Outdoor recreational pool decks were not part of the built environment, I reasoned to the jury. Therefore, as poorly fabricated as the rope cordoning off the pool deck from the rocky sea edge below may have been, it was not subject to ADA code compliance. I opined that since the pool deck was not required to have an accessible route, then the rope barrier wasn’t required to be handicap compliant (42’’ high with grab rails). Over the objections of plaintiff’s counsel, I deflected his demand to speculate as to the safety of the design if the pool deck had been on an accessible route. “Would it (the guard rail) then need to be ADA compliant?” he asked. I countered that it did not have to be, period. The jury found no basis for an award and ruled in favor of the defendant. Bottom line, she got nothing.
Under Today’s Regulatory Changes in the ADA Code the Plaintiff May Have Prevailed in a Multi-Million Dollar Award against the Pool Side Owners
What has many savvy Legal Counselors alarmed is recent changes in the ADA that exposes many public entities to the type of litigation described above. In fact, by today’s ADA standards, I may not have prevailed. The insurance company may have been subjected to an enormous award and the landlords charged for jeopardizing the health, safety and welfare of the public. Investigations from the Justice Department, penalties, costly repairs, and a large liability for damages would have possibly ensued.
This code change has caused public entities around the State of Florida to begin the arduous task of updating their accessibility plans and creating capital improvement budgets that fund outdoor recreational area upgrades to comply. Areas affected that were previously exempted under the safe harbor provisions, element by element, include but are not limited to the following:
Recreational boating facilities
Swimming pools, wading pools, and spas
Exercise machines and equipment
Fishing piers and platforms
Miniature golf facilities
Saunas and steam rooms
o Team or player seating
o Accessible route to bowling lanes
o Accessible route in court sports facilities
Many advocates in the physically challenged community are monitoring public meeting notes to assess compliance measures by public entities, or a lack thereof, in anticipation of accessibility violations and litigation. RGA is currently working with many Community Development Districts, which in fact are public bodies, across the State of Florida to help them prepare plans and successfully address these code changes. At RGA, we have the capabilities and experience to:
Assess the various improvements and/or alterations constructed since 1991
Prescribe design cures to all noncompliant occurrences
Implement compliance strategies utilizing design and construction techniques