Federal District Court rules on Sidewalk Liability under ADA Title II

By Laurel Witt, CML Associate Counsel

Federal District Court rules on Sidewalk Liability under ADA Title II

In a February 21 ruling in the ongoing case of Hamer v. City of Trinidad, U.S. Magistrate Judge Nina Wang held for the first time in the Tenth Circuit that municipal sidewalks are among the “public services, programs, or activities” covered by Title II of the Americans with Disabilities Act. Last year in the same case, the Tenth Circuit Court of Appeals held that each day a “program, service or activity” remains out of compliance with Title II of the ADA constitutes a “repeated violation,” essentially preventing the statute of limitation from running as long as the violation continues to exist. Hamer v. City of Trinidad, 924 F.3d 1093 (10th Cir. 2019); cert. denied (2019)(CML, with the assistance of the Colorado Springs City Attorney’s Office, participated as amicus in this case).

The degree to which municipal sidewalks should be treated as a “service” under Title II continues to be an unsettled question throughout the U.S., particularly in regard to the duty municipalities may or may not have to address any supposed deficiency in their sidewalk systems that predated the adoption of the ADA in 1992. The February ruling in the Trinidad case also left open the question of whether or not the specific remedies sought by the plaintiff would impose an “undue burden” on the city.  Whenever a plaintiff seeks specific changes to any program or service under Title II, municipalities may argue that certain accommodations would cause an “undue burden.”

The parties in Hamer v. City of Trinidad are currently in negotiations over next steps in the case. CML continues to stay actively involved on this important issue.

Read Judge Wang’s order on motions for summary judgment.