Legal E-Bulletin - January 2010

The Statute of Limitations on New Construction

This past summer, the ability of private citizens to enforce the Americans with Disabilities Act (ADA) was limited by a federal appellate court. In Frame v. City of Arlington, 575 F.3d 432 (5th Cir. 2009), a group of wheelchair users had sued the city government of Arlington, Texas under Title II of the ADA for failing to make its city curbs, parking lots, and sidewalks accessible. Title II prohibits state and local governments from discriminating on the basis of disability in its programs, services, and activities. Title II regulations mandate that new construction and alterations by state and local governments be designed and built to be accessible and usable by people with disabilities.1

A district court had previously ruled that the lawsuit was barred by a two-year statute of limitations applicable in Texas and dismissed the case. A statute of limitation sets the amount of time that a plaintiff has after a certain event to sue a defendant. In ADA cases, the event is usually when the plaintiff’s rights were allegedly violated. The heart of this dispute then was when the statute of limitation started accruing: Was it when Arlington first constructed the inaccessible sidewalks and parking lots, or was it when the plaintiffs first encountered the barriers?

A panel of three judges at the United States Court of Appeals for the Fifth Circuit (Fifth Circuit) reviewed the case, and two judges agreed with the district court in that the statute of limitation started accruing upon the construction of the sidewalk or parking lot. The majority rejected the premise that the failure of the city to make its curbs, sidewalks, and parking lots accessible represented a continuing violation of the ADA. The panel commented that allowing the statute to start accruing whenever someone discovers the barrier would defeat the purpose of the statute of limitation and unlimitedly exposed the city to liability.

However, the panel also ruled that the district court had erred by making the plaintiffs prove that the statute of limitations had not expired. The appellate court reinstated the case because the burden is on the city to prove that the statute of limitations had run out since the city knows when it had constructed its curbs, sidewalks, and parking lots.

One dissenting judge favored the rule that the statute of limitation started accruing when the plaintiff actually encountered the barrier. He divided the situation into two parts: (1) there is a wrongful act, which is the inaccessible construction, and (2) the injury that results from that act. He pointed out that a plaintiff would only be injured and have standing to sue under Title II if he had encountered the barrier and was denied access, not when it was built. For example, a person who lived across town from an inaccessibly built sidewalk and had never encountered or attempted to use it would not be able to sue the city over this issue. The dissenting judge felt that the majority focused on the underlying principals of statutes of limitations and ignored the policies underlying the ADA, which is to eradicate discrimination against people with disabilities.

Impact of this decision

This decision means that a plaintiff in Texas has two years to file an ADA lawsuit after something is inaccessibly constructed; not when he encounters the barrier. Since the Fifth Circuit’s decision also applies to Louisiana and Mississippi, plaintiffs in those states must consider their state’s statute of limitations before filing a lawsuit based on inaccessible construction.

This decision does not mean that a state or local government can ignore the ADA once the statute of limitation has passed on its construction activities. The public entity still has a general ongoing obligation not to exclude people from its programs, services, and activities. If an existing government facility is not accessible, the government entity still has to provide access to the programs and services provided in that facility through other means.

What does this mean for Title III of the ADA?

Title III of the ADA prohibits discrimination on the basis of disability by places of public accommodations (private businesses open to the public). Even though Frame v. City of Arlington was brought under Title II of the ADA against a government entity, this statute of limitations defense would presumably be also available in Title III lawsuits in Texas, Louisiana, and Mississippi over new construction and alterations. A public accommodation like a restaurant or a hotel might not seem to have much legal incentive to fix its accessibility mistakes after the statute of limitation has passed, but Title III also prescribes a separate obligation for a public accommodation to remove accessibility barriers to its existing facilities if the removal is readily achievable.2 A removal is readily achievable if it can be carried out without much difficulty or expense. One district court has ruled that statute of limitations do not apply to the duty to remove architectural barriers from existing facilities because this duty is a continuing one.3

1. 28 C.F.R. § 35.151.

2. 28 C.F.R. § 36.304.

3. Speciner v. NationsBank, N.A., 215 F.Supp.2d 622 (D.Md. 2002).

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This material is provided by the DBTAC National Network of ADA Centers. The DBTAC’s are funded by the National Institute on Disability Rehabilitation and Research (NIDRR), the US Department of Education (Grant # H133A060085), to provide technical assistance, training, and materials on the Americans with Disabilities Act (ADA). The information, materials, and technical assistance provided are intended solely as information guidance and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.