Big win for ADA plaintiffs who sue non-compliant public establishments

A disabled resident of New York City sued a diner because it was not accessible to people with disabilities. However, she never entered the building. Is she able to bring the lawsuit? Yes.

The case is Kreisler v. Second Avenue Diner Corp., decided on September 25. The plaintiff cannot walk and travels around in a motorized wheelchair. He lives near a diner that he cannot enter because the front entrance has a step that is seven or eight inches high. The diner put in a ramp without hand-rails, and the ramp doesn't always seem to help; the sign that tells patrons to ring the bell for help is not always posted. The bathroom is also not accessible to people in wheelchairs. The district court said that the restaurant was in violation of the Americans with Disabilities Act. On appeal, the Court of Appeals (Winter, Walker and Wesley) focuses on a procedural issue (standing to sue) and not the substance of the case (whether the diner is violating the ADA).

Since plaintiff did not enter the diner, defendants argue that he does not have standing to sue because was never harmed by the ADA violations. The Court of Appeals disagrees. "Kreisler never attempted to enter the Diner; he did, however, testify that (1) the seven to eight‐inch step deterred him from attempting to enter, (2) he frequents diners in his neighborhood often, (3) he lives within several blocks of the Diner, and (4) he would like to frequent the Diner if he were able to access it. ... [T]hese are sufficient facts to show a plausible intention to return to the Diner." Which means he has standing to sue the diner.

These cases do not reach the Court of Appeals often, so the Circuit relies on cases from around the country to bolster its holding. The Second Circuit holds for the first time that "deterrence constitutes an injury under the ADA." Borrowing from the Ninth Circuit, the law in our jurisdiction is now that "[i]n the context of the ADA, the fact that the wheelchair‐inaccessible entrance deterred Kreisler from accessing the Diner established a concrete and particularized injury; Kreisler need not attempt to overcome an obvious barrier."

What about the inaccessibility of the diner's interior, like the bathroom? Plaintiff never entered the diner. Can he challenge those violations? Yes. Borrowing from the Eighth and Ninth Circuits, the Second Circuit says that "once a plaintiff establishes standing with respect to one barrier in a place of public accommodation, that plaintiff may bring ADA challenges with respect to all other barriers on the premises that affect the plaintiff’s particular disability."