Reports Angus Loten in the WSJ:
Small-business owners face a growing number of disabled-access lawsuits in the wake of a recent appeals-court ruling giving rise to disabled “testers,” as well as the release of detailed federal specifications for curb ramps, self-opening doors and other standards.
…A November 2013 decision by the Eleventh Circuit Court of Appeals in a case against Marod Supermarkets found that someone who isn’t necessarily a patron could be a “tester” of disabled-access compliance. That cleared the way for individual plaintiffs to bring dozens, even hundreds, of lawsuits against multiple businesses, as serial testers….
The litigation upswing also follows the Justice Department’s release of a set of compliance standards for the 24-year-old federal disability law. Those standards, which came into force in March 2012, include detailed specifications for long-standing requirements, such as the allowable slope of a wheelchair ramp and the exact height of towel dispensers in accessible restrooms. They also introduced a new requirement for hotels with pools to provide a “pool lift” for disabled guests, which went into effect last year.
Some business owners say the lawsuits accomplish little more than providing revenue to attorneys. …
We warned about the pool-lift requirement multiple times. The article reports that plaintiffs are filing multiple suits against hotels in Florida for not having the lifts; along with Florida, California and New York account for a high share of all accessibility actions against local businesses and retailers, in part because of favorable state and city laws that increase complainants’ legal and financial leverage.
Australian journalist Jo Abi is perfectly serious about the idea:
Drowning is one of the leading cause of death in children under five with majority of those deaths occurring in backyard pools. So why haven’t backyard pools been banned? If any other product or activity caused so many injuries and deaths in our most vulnerable they would be banned, there would be lawsuits, there would be outrage. Except backyard pools are an intrinsic part of Australian culture, and it’s costing us children’s lives.
One who isn’t persuaded is Lenore Skenazy, who quotes a commenter at the Australian iVillage site:
I understand one always wants to take measures to prevent deaths, but 16 deaths a year is 0.00000064% of the population. …
We really need to be careful with these kind of ideas, it might not be the banning of cars but the amount of rules that can be added in the name of safety is and will continue to spiral out of control. People seem to want a zero fatality society yet this is not only impossible, the quest for it will create a culture and country based on fear and draconian governance. Given the rules in place now, and articles like this asking for more, 100 years from now you won’t be allowed to swim at all or build, play outside, run, experience anything really.
Lenore Skenazy will be speaking at Cato tomorrow (Wednesday)(Update: postponed to March 6 due to weather). To attend, register here.
More from comments, Bill Poser:
There’s a factor missing from this discussion. The dangers of backyard pools have to be balanced against the dangers of not having them. It seems likely that backyard pools contribute to public health in two ways: (a) by increasing the cardiovascular fitness of the people who use them, who might exercise less if they did not have access to backyard pools; (b) by teaching children to swim and keeping up the swimming ability of adults. Here again, one can learn to swim elsewhere, but it is likely that the availability of backyard pools brings about swimming instruction and practice that would otherwise not occur. We can’t formulate an intelligent policy without knowing the marginal increase in deaths from heart attacks and drownings due that would be incurred by banning backyard pools.
Yes, deaf lifeguard. The Sixth Circuit has ruled in favor of a would-be deaf lifeguard, saying not enough of an individualized inquiry was made into accommodating his possible placement in the life-saving position. Among the arguments the court found persuasive was that drowning persons typically do not call loudly for help, which of course leaves open the possibility that the calls for help might be coming from other persons. Some deaf persons have worked successfully as lifeguards, including Leroy Colombo, a championship swimmer who did rescues at Galveston, Tex. beaches. In the Sixth Circuit case, Oakland County, Mich., had cited safety concerns in not posting the applicant to a public wave pool. [Disability Law]
Averting a Memorial Day shutdown of many public and hotel/motel pools, the Obama Department of Justice has again delayed its pending ADA lift rules. I explain at a new post at Cato.
Unless hotels have moved to install expensive and cumbersome wheelchair lifts, they face new fines and litigation exposure under new Americans with Disabilities Act (ADA) regulations taking effect today. I explain why many pools will close as a result — and trace some of the ideological background — in my new post at Cato at Liberty (& Adler, Alkon, Frank, Adam Freedman/Ricochet (“the regulators have truly gone off the deep end,”) George Leef/Locke).
More: Notwithstanding my comments about Congressional Republicans being unhelpful, Sen. DeMint has filed a bill that would prevent the regulations from taking effect on their March 15 date. [Daily Caller] And Prof. Bagenstos defends the regulations in a way that I much fear will mislead newcomers to the topic. He emphasizes, for example, that hotel payouts resulting from federally mandated damages to complainants are for the moment unlikely. But as we know, the incentive of (one-way) attorneys’ fees has all by itself been enough to fuel a sizable volume of ADA complaint-filing, while in states like California the availability of piggyback damages under enactments like the Unruh Act turn many nominally zero-damage federal cases into highly profitable extraction propositions. As for the limitation of exposure to what is “readily achievable,” the USA Today report illustrates how uncertainty over the meaning of that term can leave pool operators exposed to risky and high-cost litigation. In the real world, fixes that wipe out the economic viability of a given pool (or the facility of which it is a part) are indeed asserted by advocacy groups to be “readily achievable.” That makes it cold comfort that some facilities can stave off liability for the moment by pledging to install the equipment by some future date.
It resulted in a lost product liability action against the pool maker in a recent Rhode Island case [Abnormal Use]
“A Connecticut teenager and her mother have agreed to pay $1.1 million to the family of a toddler who drowned while the girl was baby-sitting.” No criminal charges were filed in the Cheshire, Ct. case. The family named the teenager’s mother as an additional defendant “because she allegedly recommended her daughter to baby-sit.” [WINS.com] Earlier, a 2009 New Haven Register story reported that the family also intended to sue the town of Cheshire because the teenager had taken a babysitting class under its auspices, and because the mother had gotten to know the family in her capacity as the children’s teacher. However, according to the Waterbury Republican-American, court records “do not indicate a lawsuit against the town has been filed.”
Authorities in Queensland, Australia, intend to use spy-satellite photos to catch homeowners not in compliance with strict new safety rules on swimming pools, which include the mandatory clearing of trees near pool fences so that determined children cannot climb their way over. [Courier-Mail] More: Popehat.
In the United States, incidentally, there are some indications that a crackdown may be underway to enforce the new federal pool safety act passed last year and administered by the Consumer Product Safety Commission [Aquatics International, earlier] And (via AI) Billings, Montana is pulling the plug on a big public pool project, since “the city wasn’t willing to accept the financial risk and legal liability of owning a large aquatic center”. [Billings Gazette]
“A school has banned children from wearing goggles during swimming lessons for fear they could hurt themselves.” [Telegraph (U.K.) via Cathy Gellis, who writes, "As a swimming teacher -- in fact, one who doesn't actually like her students to use goggles -- I feel competent, and confident, in saying this school is insane."]
When compared, at least, with the comprehensively horrendous CPSIA, the other big consumer product safety law that Congress passed last year — the Virginia Graeme Baker Pool and Spa Safety Act — might seem practically uncontroversial. That doesn’t mean it was good legislation, though. [Arizona Republic, Common Room, Coyote]