Boxes, ladders, furniture or other objects commonly placed in aisles, walkways or paths may not be temporary obstructions and may be actionable under the Americans with Disabilities Act (ADA) according to a recent ruling by the Ninth Circuit Court of Appeals in Chapman v. Pier 1 Imports (U.S.), Inc. DBA Pier 1 Imports #1132, No. 12-16857 (filed March 5, 2015).
Many property and business owners have long operated under the assumption that they are not violating ADA regulations requiring minimum clear widths for accessible routes (“[t]he minimum clear width of an accessible route shall be 36 in[ches]” (28 C.F.R. pg. 36, app. A, § 4.3.3)) when they place objects that can easily be removed in aisles or pathways such as trash cans, ladders, plants, signs and the like because temporary obstructions are not considered violations of the ADA (28 C.F.R. § 36.211(b)).
In Chapman, the Ninth Circuit upheld a trial court decision to deny summary judgment in favor of retailer Pier 1 Imports, ruling that aisles and pathways containing merchandise or other items (furniture, display racks and ladders) resulting in a functional width less than 36 inches violate the ADA. The ruling was made despite evidence that some of the items may have been placed in aisles by customers, despite store policies requiring employees to measure the widths of aisles to ensure compliance, and despite the fact that store employees could assist customers by moving objects when requested. Citing United States Department of Justice (DOJ) interpretative manuals, the Ninth Circuit stated that to qualify as a “temporary obstruction,” the obstruction must be transitory and promptly removed, such as boxes or merchandise that were placed in an aisle during re-stocking or when moving them from one place to another.
In denying summary judgment, the Court ruled that obstructions encountered by the wheel chair bound plaintiff on eleven different occasions over a two-year period at Pier 1 were not temporary, but systematic. The Court contrasted the scenario at Pier 1 to other cases where it had been held that an obstruction was temporary, and therefore not actionable, such as a single failure to remove shopping carts from a handicapped parking space, a failure to refill the handicapped toilet paper dispenser which was empty on a single visit, or the failure to remove snow and ice from a handicapped parking space on a single occasion.
Not limiting its ruling to accessible routes, the Court held that clutter plaintiff alleged existed on the ADA accessible service counter at Pier 1 was a temporary obstruction for which it may not be held liable. Unlike the aisles and pathways, clutter was only found on the service counter during two or three occasions when plaintiff visited the store. Furthermore, the evidence presented demonstrated that store employees were able to promptly remove the merchandise from the sales counter as soon as Chapman arrived to make his purchase, without Chapman having to ask for assistance. Accordingly, the court held that the obstructions did not persist beyond a reasonable period of time as set forth in the federal regulations and were not actionable.
Chapman should be instructive to property and business owners to be particularly careful when it comes to maintaining minimum clearance in aisles, pathways, on countertops and in, or on, other areas of the property where members of the public are invited. While the business may be designed and constructed to comply with the construction-related requirements of the ADA, it can quickly become inaccessible by the placement of objects in aisles or pathways whether done intentionally or not, and regardless of whether there is any intent to move the object at a later time. Courts are now more likely to find businesses liable where an obstruction exists unless it can be proven the obstruction is truly transitory and subject to prompt removal. The fact that a business has a policy or procedure in place to prevent obstructions does not necessarily absolve it of potential liability.
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