RAS Liability: What you should know about accessibility lawsuits

AIA/CES APA 1172.0 LU

Scott Lyford, AttorneyMills Shirley, LLP

TDLR Provider #1521AIA/CES Provider #G583

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© APA 2011

Who am I?• Construction lawyer• Defend architects and engineers, mostly, so approach

this with an eye for what an architect can/ will be sued for, and how they can avoid those suits.

• I realize many of you are not architects, but the issues faced in this case are related.

Why I’m Here

ADVOCATES• RAS protects the rights of the disabled

SCAPEGOATS• But we all know, no good deed goes unpunished

DEFENDANTS?• We’ll look at how the law treats a RAS

Learning Objectives

1. Recognize why and for what a RAS may be sued2. Understand how long exposure can last3. Predict, Minimize, and Avoid liability4. Understand the role of liability insurance5. Recall importance of high ethical standards

1. RAS liability under ADA

RAS may be liable for discrimination under the ADA

• Legislative intent- provide equal opportunity, protect

rights of the disabled: Civil Rights law, NOT construction law.

• Policy- those in position to protect should bear partial burden

• Haven’t seen instances of RAS liability, but architects have more recently been subject to suit

• You’re not all architects, but analysis shows how this affects your potential to be on the hook

1. ADA Liability

RAS may be liable for discrimination under the ADA

• 2 Big Questions remain unresolved as to architect liability under

ADA §§ 302, 303

a) May ONLY owners/ operators be held liable for discrimination?

b) If not, must a party both design AND construct to be liable?

1. ADA Liability

a) OWNER, LESSOR, OPERATOR

• § 302 clearly describes who may be liable, limiting discrimination claims for an entity who “owns, leases... or operates a place of public accommodation.”

– §302 (42 U.S.C. § 12182(a))

• § 303 describes discrimination as “failure to design and construct” accessible commercial facilities, but does not say who is liable- it refers only to § 302.

– § 303 (42 U.S.C. § 12183(a))

1. ADA Liability

• Does this mean that those who design and construct commercial facilities can only be liable for discrimination if they also own and operate?

a) OWNER, LESSOR, OPERATOR

• If § 303 incorporates §302: You’re in the clear! Architects typically don’t own or operate commercial facilities they design, nor does a RAS who approves the design

• If § 303 does not incorporate § 302: All entities involved in the design and construction process are potentially liable

1. ADA Liability

a) OWNER, LESSOR, OPERATOR

Good for non-owners...• 6th Circuit (Kentucky): Court held that § 303 incorporated § 302

– Congress’ intent was to limit scope of liability to owners/ operators for commercial facilities as well as for public accommodations

Bad for non-owners...• 11th Circuit (Florida): Limiting liability to owners essentially eliminated

commercial facilities from discrimination coverage– Instead, the court specifically held that an architect could be held liable for failing to design

an accessible commercial facility

1. ADA Liability

a) § 302 OWNER, LESSOR, OPERATOR

The trend, but by no means The Rule...

• 8th Circuit: Liability goes beyond owner and operator, but with a court-imposed limit- those with a “significant degree of control over the final design and construction of the facility.”

1. ADA Liability

a) OWNER, LESSOR, OPERATOR

So what?• Neither Texas nor 5th circuit have decided this issue

• Trend seems to be broadening the category of who may be sued

• If they followed either the 11th or 8th Circuits, RAS could be liable, depending upon what they do

• This leads to the second question left unresolved:– What type of architect or RAS participation would trigger the statute’s

application?

1. ADA Liability

b) Design AND construct

• § 303 goes on to describe what is considered discrimination- a “failure to design and construct facilities... that are readily accessible...”

• Must a new-construction participant do both to be liable under the ADA?

1. ADA Liability

b) Design AND construct

Good News• D.C. Circuit: Yes, architect will not be liable unless both designs and builds

– Many architects, and certainly a RAS, would be free from liability

Bad News• 7th Circuit: No, either designer or builder can be sued

– And those terms should be read broadly to possibly include many different members of the design team

• RAS approves plans but not design, however, if a court includes all players in the process, it could define RAS’s role as part of “design”

1. ADA Liability

Most common: third-party liability

• A designer or builder, relying on RAS approval, is sued because a building is in accessible. The designer or builder party may sue the RAS for:

– Indemnity– Negligence– Negligent misrepresentation

• RAS does not enjoy immunity as State Agency employees do

• Nor will TDLR indemnify a RAS

1. ADA Liability

Most common: third-party liability

Reliance• For this topic, there are Texas cases to draw from, at least for architects• Architects can be held liable for negligently providing faulty “professional

advice.”• RAS approval could also be brought within the description courts have

provided “advising” the designer that building is properly accessible– Licensed, just as an architect, lawyer, or doctor, who have long been held to high advice

standards– Serve a protective function for those in need

1. ADA Liability

Case Study

Spokane, WA Wastewater DisasterLarry Michaels v. CH2M Hill

• Engineering firm, CH2M, found negligent despite contract provisions and State statutes providing immunity

• In terms of “design” negligence, CH2M found liable despite NOT doing drawings: No appreciable difference between approving or recommending changes and actually doing the plans.

• This reasoning could be used to extend liability to RAS

1. ADA Liability

Case Study

3 Take-Away Lessons

• Never assume you can’t be sued

• Even limited work can give significant liability

• You must assume the negligence of others

1. ADA Liability

Points To Remember...

• RAS may be liable for:– Discrimination– Negligence– Negligent Misrepresentation– Breach of Contract

• Courts could apply same legal theories for liability under TABA & TAC

• Always keep in mind: policy and congressional intent!

1. ADA Liability

2. How long can RAS be liable

Negligence

• Negligence claim in Texas: 2 Year statute of limitation, starts when the cause of action “accrues”

• Causes of action based on advice (Medical, Legal, Design): “accrual” takes place when the advice is “taken”

– Construction: when building constructed based upon advice given, not when design was drawn or drawings approved

– But...

• Discovery Rule very important: 2 year window could stretch to when the claimant discovered the building doesn’t meet ADA or TAS standards

2. Extent of liability

Discovery Rule

• Texas: No cases where Discovery Rule applies to RAS, however, court now leaning toward using it for architects!

• 1888: Statute of limitations starts to run upon construction• 1997: Discovery Rule WILL apply if injury incurred is:

– Inherently undiscoverable, as is always the case with “professional advice,” and– Objectively verifiable

• Given the modern trend and policy considerations, a RAS can be considered giving “professional advice”:

– Professional license, testing, and continuing education required to maintain– TAC § 68.76: exercise reasonable judgment and skill– TAS and ADA intricate standards not known to most people

• RAS would open to suit for years past initial plan approval!

2. Extent of liability

Statute of Repose

• Texas: Architect or Engineer cannot be sued more than 10 years from date of “substantial completion”

– Same time would be applied to RAS for similar claims

• This is true regardless of the discovery rule

• Once claim is filed, the time period extends 2 more years

2. Extent of liability

3. Minimizing risk through Contract

Contract for RAS in general

• From what I’m told, not all projects use a contract for a RAS’s services: I would advise protecting oneself in this ever-shifting field rather than relying on fee schedule only

• Important to remember, while contracting around potential pitfalls is helpful, the benefit is in non-ADA suits

• In ADA claim by public accommodation user, there is no contract

3. Contract provisions

Contract Provisions for RAS

• Language to use in contract between RAS & owner/ RAS & architect:1. Make it clear you are not contributing to “design” and you do not have

“significant control”2. Any approval or disapproval should not be considered “professional

advice”3. Contractual accrual- can stipulate when “accrual” takes place for

negligence suits (often used in AIA form contracts)4. Limit liability in relation to fee received5. Unlikely given, but you can ask for indemnity

3. Contract provisions

4. Insurance

Liability Insurance

• Not a sales pitch, this is just how we would advise an architect or engineer facing liability

• Possible recommendation, miscellaneous professional construction specialist policy, like that of kitchen consultant

• Effects:1. More likely to be brought into suit than without, however,2. Opportunities are greatly opened up

– Architects may feel more inclined/ comfortable to use services– Public jobs require liability insurance

4. Liability Insurance

5. Violations and TDLR

Statutory Violations

• Statutes/ Rules RAS subject to:– ADA– TABA– TAS– TAC– TDLR Rules

• TDLR: Commission investigates and metes out penalties

• Statutory violations result in administrative fees, possible suspension of license

5. Got Ethics?

Ethical Violations

• Violations most often found by TDLR1. Not paying fees to TDLR: Last year, $58,000. 2010, $143,000!!2. Conflict of interest: employed by firm requesting plan review3. An RAS using their own disability status to file claim for another (such

as an owner)

5. Got Ethics?

• Your training and status put you in the best position to protect the public by assuring civil rights aren’t violated

• Given your gatekeeper role, a RAS should be held to the highest professional standard.

Conclusion

• This is an important part of the building process

• This presentation is just to keep you informed, otherwise don’t worry about lawsuits

• Keep up the good work!

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QuestionsThis concludes the Accessibility Professionals Association

(APA) and American Institute of Architects Continuing Education

Systems Program

RAS Liability: What You Should Know About Accessibility Lawsuits

AIA/CES APA 117Scott Lyford, Attorney

Shirley Knox, Executive Director, APAscknox@sbcglobal.net512-415-5938