In recent years, premises-related injuries—and resulting litigation—have become increasingly common. Despite federal regulations related to accessibility like the Americans with Disabilities Act (ADA) and Architectural Barriers Act (ABA), accessibility remains a point of contention. Many organizations still do not comply with these standards and regulations, presenting a significant and often underestimated liability.
Premises liability encompasses a property owner or operator's legal responsibility for accidents and injuries on their property resulting from unsafe or defective conditions that the owner reasonably knew or should have known about and could or should have reasonably mitigated. These conditions can include anything from slip-and-fall incidents to poor lighting, broken handrails, uneven sidewalks or any other hazardous environment that unreasonably exposes individuals lawfully on the premises to harm.
Premises liability intersects with ADA compliance when a person with a disability is excluded due to noncompliant accessibility features. Improper or inadequate accessibility features can create hazardous conditions, and noncompliance could result in a premises liability claim and potentially a civil rights violation under federal, state and local laws. Premises liability is already a complex area of law, but when organizations also take ADA compliance into consideration, it becomes a critical risk issue that can have legal and financial repercussions if neglected or ignored.
Business owners are required to maintain reasonably safe premises for customers, vendors and employees. They also must provide accessible features that comply with all necessary regulations and requirements and make walkways, entryways and other areas safer for all users. If they fail to do so and someone is injured as a result, the owner may be held liable for damages.
Some business owners believe their properties are ADA compliant simply because they were initially built to code or have not received complaints. However, compliance with older building codes does not mean today’s accessibility standards are met. A formal ADA compliance inspection helps identify compliance issues on the property, and without it, a property owner may expose themselves to lawsuits, fines, reputational damage and even operational shutdowns.
ADA Requirements
Enacted in 1991, the Americans with Disabilities Act requires equal access and opportunity for individuals with disabilities, and Title III mandates public spaces be made accessible, including providing:
- Accessible parking spaces
- Accessible routes
- Ramps and curb cuts
- Door hardware operable with one hand
- Accessible restrooms
- Adequate aisle widths
- Proper signage with Braille
- Doors that open and close with the proper amount of force and that do not close too rapidly
- Service counters at accessible heights and much more
Federal ADA regulations were revised in 2010. For properties constructed between 1991 and 2010, compliance with the 1991 regulations was mandatory for new construction. From 2011 onward, new construction must meet the 2010 regulations. However, even if a property was constructed before 1990, the ADA regulations require the elimination of architectural barriers, if that can reasonably be achieved. Before 1991, accessible guidelines such as ANSI A117.1 were adopted by various entities, including the U.S. Department of Housing and Urban Development (HUD). These pre-ADA regulations often placed accessibility requirements upon buildings that predated the ADA.
Business owners and operators must realize that the ADA requires ongoing maintenance and compliance. It is not a one-and-done checkbox. A building may have met the accessibility standards at the time of construction, but without proper maintenance and care, it may deteriorate to the point where it no longer complies. Prior accessibility accommodations may not meet current regulations, especially as interpretations evolve and new guidelines are issued. For example, the 2010 ADA Standards for Accessible Design set new or modified minimum requirements for accessibility.
Hidden Costs of Noncompliance
Individuals who encounter barriers to access can file complaints with the Department of Justice or bring private lawsuits. The legal consequences of noncompliance can be severe. ADA lawsuit costs vary widely, from thousands to millions of dollars, and can cause irreparable reputational damage.
Insurance policies may not fully cover ADA-related claims, especially when the issue stems from a long-standing structural violation rather than a one-time accident. Insurers may deem these as preventable or outside the scope of coverage.
ADA Compliance Inspections
Whether the building owner is aware of the risks or not, many forego crucial ADA compliance inspections. Instead, they rely on architects or contractors who may not specialize in accessibility standards and building codes. Some business owners simply assume they are not at risk if they have not had a complaint or presume they are grandfathered in if the building was constructed before the 1991 ADA design standards. These are dangerous assumptions for businesses—the law applies whether you have had a complaint or not.
A formal ADA inspection can identify noncompliant elements and prioritize corrective actions. During the inspection, a qualified expert will conduct a comprehensive accessibility audit of the property. The expert will evaluate accessibility at the property, placing a specific focus on safety. They will look for things such as changes in level of the walking surface; gaps, openings or holes in the walking surface; the location, presence and quantity of accessible parking stalls and their requisite features like access aisles and accessible routes; the proper use of curb ramps, including the correct location, style and construction; barriers to entry and more. Proactive assessment, which helps prevent lawsuits, costs between $500 and $5,000, depending on the property.
Risk Management Best Practices for Property Owners
An ADA compliance inspection is just one way property owners can mitigate the risk of premises liability claims. These six best practices can also help business owners proactively approach accessibility and protect against premises liability and ADA-related claims:
- Document and prioritize findings. An action plan will help prioritize fixes based on severity. This action plan should focus first on safety, ensuring access is maintained and that accessible features are safe for all users. Some fixes are low-cost and high impact.
- Train staff. Employees should be made aware of ADA compliance requirements, what accessible features may be present on the site, and what to look for concerning safety hazards and barriers to entry.
- Complete regular maintenance and monitoring. The exterior and interior of the property both need to be maintained, including parking, accessible routes, entrances and accessible features within a building such as grab bars, door handles and door operators.
- Seek legal counsel: Legal guidance on compliance issues can be critical, especially in states with enhanced accessibility laws like California.
- Plan for accessibility upgrades: Accessibility improvements are necessary and sometimes mandatory, so assign budget funding for those in capital expenditure planning.
- Review insurance coverage: If your general liability policy does not include coverage for accessibility-related claims, meet with your insurer to discuss and consider supplemental policies.
ADA compliance is a legal mandate with direct implications for liability, reputation and business operations. Failure to maintain an accessible environment can expose owners to significant legal and financial consequences, which could impact their business with costs that far outweigh the expense of an audit and remediation plan.