In two rulings arising in Minnesota in March of 2018, federal courts reminded litigants that business owners have various defenses that can effectively shut down so-called “drive by” disability access lawsuits prior to trial.

“Drive by” lawsuits are so named for a suspected practice of plaintiffs or lawyers allegedly driving by businesses to spot visible legal violations without any real intent to patronize those businesses. Finding a perceived violation of Title III of the Americans with Disabilities Act (ADA) or similar state law, the plaintiff files suit, claiming he or she was unable to patronize the business due to the alleged violation. These cases often settle quickly because the defendants wish to avoid the associated legal expenses that can easily surpass the plaintiffs’ settlement demands. When the parties do litigate these cases, however, business owners often have several defenses available under the ADA, as these two new cases illustrate.

First, in Dalton v. NPC International, Inc., No. 17-4012 (March 20, 2018)—a case in which Ogletree Deakins’ Thomas Henderson successfully represented the defendant—the U.S. District Court for the District of Minnesota granted the defendant’s motion for summary judgment, dismissing all claims on the grounds that some of the claims were moot and the others were not sufficiently pled in the complaint. Aaron Dalton, who uses a wheelchair, claimed he was prevented from patronizing the defendant’s Pizza Hut restaurant because the accessible parking spaces in the parking lot lacked proper access aisles, the restaurant entrances were not accessible and/or properly identified, and the service counter was too high.  

The defendant moved to dismiss, arguing first that it had remedied the parking lot, signage, and service counter violations, rendering those claims moot under the ADA. The court noted that to prove mootness, the defendant had to prove not only that it had remedied the violation but also that it was “’absolutely clear’ the offending conduct ‘could not reasonably be expected to recur.’” Dalton offered no meaningful evidence of potential recurrence, so the court ruled that the defendant had met its burden and dismissed those claims. The court dismissed the remaining claims as well, finding that Dalton had failed to present any viable evidence to show that the restaurant entrances were inaccessible.

The next day, the Eighth Circuit Court of Appeals affirmed the dismissal of another “drive by” case that had arisen in Minnesota. In Disability Support Alliance v. Heartwood Enterprises, LLC, No. 16-1759 (March 21, 2018), Eric Wong claimed that he was unable to enter Heartwood Enterprises’ office building because the entrance was not accessible via wheelchair. Heartwood Enterprises first argued that Wong did not have standing because he had not actually attempted to enter the building, he would not have been admitted anyway because he had no appointment, and he lacked any true intent to visit the building again. The court held that Wong had produced sufficient evidence to avoid dismissal on those grounds. 

Heartwood Enterprises next argued that removing the alleged architectural barriers was not “readily achievable,” thereby relieving it from compliance requirements under the ADA. Specifically, Heartwood Enterprises submitted evidence that it would cost more than $300,000 to make the entire building accessible. The court found that this evidence was sufficient and unrefuted, and it dismissed the case.

These cases offer timely reminders, given the explosion of these drive by lawsuits across the country, that plaintiffs must do more than simply observe an apparent ADA access violation in order to bring a successful lawsuit. The plaintiff must also be able to show that the defendant has not fixed the problem and/or that the problem could be reasonably expected to recur, that the plaintiff tried to access the defendant’s business unsuccessfully and truly intended to access the business in the future, and that the removal of the barrier at issue was “readily achievable.” Absent those factors, courts are willing to dismiss disability access cases without forcing the defendant to incur the additional legal fees required to go to trial.