The first eight reported lawsuits have been filed against eight different hotels over their alleged failure to install pool lifts for the disabled. It didn’t take long. The lawsuits rely on the Department of Justice’s (DOJ) controversial 2010 regulation under Title III of the Americans with Disabilities Act (ADA), which went into effect January 31, 2013.
Filed by the same attorney-client tandem, the eight nearly identical lawsuits allege the disabled plaintiff called various hotels to see if their pools employed lifts to provide access to the disabled. The lawsuits claim the plaintiff was deterred from staying at these hotels because of the absence of a wheelchair lift. These lawsuits represent the first known claims filed under the pool lift regulation but clearly represent the beginning of what likely will be an accelerating trend.
Promulgated in September 2010, the regulation purports to require the installation of lifts for the disabled at all new and modified pools and spas of so-called “public accommodations” (including hotels and exercise facilities) and all pre-existing pools and spas where it is “readily achievable” to do so. The controversy surrounding the regulation grew in January 2012 when, less than two months before the regulation’s planned effective date (March 15, 2012), the DOJ issued guidance indicating portable lifts would not be acceptable and that for facilities with both a pool and spa, each would require a separate lift. The firestorm grew so considerably that the DOJ twice delayed the effective date of the regulation. The regulation finally became effective on January 31, 2013, more than 10 months after the other new Title III regulations took effect.
In addition to the DOJ’s criticism of portable lifts and its contention that pools and spas would each require their own lifts, the hospitality industry expressed concern over the prospective application of the “readily achievable” standard at those hotels and facilities that had pools in existence at the time the regulation became effective. Because the “readily achievable” determination looks to a variety of factors, including most prominently the financial resources available to hotels and other public accommodations and any parent entities, many members of the hospitality industry are loathe to defend claims under the standard because of its inherent ambiguity and the resulting cost and uncertainty of litigating claims. Members of the hospitality industry also expressed concern about leaving permanently-installed lift equipment exposed to the elements on a year-round basis in certain climates, as well as the “attractive nuisance” that a poolside lift may present to visiting children. Similar concerns caused the hospitality industry to remove diving boards from their hotel pools decades earlier.
As inevitable as these pool lift lawsuits were, it is nonetheless disconcerting to see the plaintiffs’ disability access bar initiating lawsuits over their absence so soon after the effective date. In some cases, however, these lawsuits may be premature, for example, where the hotels have established plans to install pool lifts over an extended period, claiming it was not “readily achievable” to do them all at once but was readily achievable over a three-year or five-year period. The hope and expectation are that most courts will be reluctant to find an ADA violation where a concrete plan is in place to install a pool lift, but it just has not happened yet. In this manner, having the detailed plan in place may help avoid and/or win ADA lawsuits.
While we expect the pool lift lawsuits to proliferate, many will be watching these lawsuits to see the impact their outcome may have on future claims.