Design Professionals May Be Off the Hook for Third-Party ADA Claims

The United States Court of Appeals for the Ninth Circuit recently affirmed that an architect retained for and used in the design of a "commercial facility" could not be held liable in an action brought under Title III of the Americans with Disabilities Act (ADA), Lonberg v. Sanborn Theaters, Inc., 259 F.3d 1029 (9th Cir. 2001). Under Title III, Congress generally limited the ADA liability of construction-related entities to those entities that "own, lease (or lease to), or operate a place of public accommodation." 42 U.S.C. 12182(a). Congress also specifically defined "discrimination" under that title, which applies to "public accommodations and commercial facilities," as "a failure to design and construct facilities for first occupancy . . . that are readily accessible to and usable by individuals with disabilities... ." 42 U.S.C. 12183(a).

The plaintiffs in Lonberg, wheelchair-bound patrons of a multiplex theater, brought an action against the theater's owner and operator as well as its architect, Salts, Troutman & Kaneshiro, Inc. (STK). The plaintiffs sued STK for its alleged "failure to design and construct" the theater in a manner "readily accessible" to their wheelchairs. Even though STK was not an owner, lessor, lessee or operator of the theater, the plaintiffs based their action against the architect on a distinction between "commercial facility" and "public accommodation" as the terms are defined under the ADA. (The former includes a broader range of commercial buildings than the latter.) Therefore, the plaintiffs asserted their "design and construct" discrimination claim against STK notwithstanding that architects are not included within the general reach of ADA liability as set out in an earlier section of the Act. The Court rejected that distinction, holding that Congress' "general rule," limiting liability to owners, leasing parties and operators, was meant to include not only "public accommodations," but also the more broadly defined "commercial facilities."

In addition to Congress' "general rule" prohibiting ADA claims against entities whose responsibilities lie solely with a project's design, other courts have noted that the denial of such "design and construct" claims is based on the fact that the phrase "design and construct" is distinctly conjunctive. By putting the language in the conjunctive, Congress meant to refer only to parties who are responsible for both functions, such as general contractors or facilities...