WILLITS, et al v. CITY OF LOS ANGELES - Order Granting Plaintiff's Motion for Partial Summary Judgment

A. Whether Sidewalks Are a Service Program, or Activity Covered by Title II of the ADA and Section 564 of the Rehabilitation Act

Plaintiffs argue that sidewalks are subject to the access requirements of Title II of the ADA and Section 504 of the Rehabilitation Act because Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

The ADA defines “public entity” as “any State or local government [and] department, agency, special purpose district, or other instrumentality of a State or States or local government.' ” 42 U.S.C. § 12131(1); Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir.2001).

Lee held that “the ADA's broad language brings within its scope ‘anything a public entity does.’ ” 250 F.3d at 691 (quoting Yeskey v. Penn. Dep't. of Corr., 118 F.3d 168, 171 & n. 5 (3d Cir.1997)). “[M]aintaining public sidewalks is a normal function of a city and without a doubt something that the [City] does. Maintaining their accessibility for individuals with disabilities therefore falls within the scope of Title II.” Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir.2002) (citations omitted). The Barden court stated that the inclusion of sidewalks within the definition of “services, programs, or activities” of a local government is consistent with the plain language of the Rehabilitation Act, which defines “program or activity” as “all of the operations of” a local government. Id. at 1077.

In Simpson v. City of Charleston, the Southern District of West Virginia held that although a city enacted an ordinance holding landowners responsible for adjacent sidewalks, the city had authority over its sidewalks such that it was required to draft a transition plan pertaining to curb ramps pursuant to 28 C.F.R. § 35.150(d)(2). 22 F.Supp.2d 550, 554 (S.D.W.Va.1998). The Court held, however that under Title III of the ADA, which unlike Title II is explicitly premised on ownership, leasing, or operation of a public accommodation, the owner or lessor of the adjacent land had a duty to remove barriers in existing sidewalks. Id. at 555. Because that was a Title III case, it is not particularly helpful. In Culvahouse v. City of LaPorte, an Indiana district court found a city responsible for maintaining its sidewalks under the ADA, but in that case Indiana municipalities had exclusive jurisdiction over sidewalks according to Ind.Code § 36–1–3–9(a) and case law. See 679 F.Supp.2d 931, 940–41 (N.D.Ind.2009).

Consistent with these cases, the Court makes the following findings, to be used for all purposes in this litigation:

• Any public sidewalk over which the City of Los Angeles has responsibility to inspect and notify property owners of repair needs is a “program, service, or activity” within the meaning of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

• The City of Los Angeles is a “public entity” within the meaning of Title II of the ADA.

To the extent that the City's First, Fifth, Sixth, Eighth, Ninth, Thirteenth, and Fourteenth Affirmative Defenses are based on the theory that public sidewalks are not covered by Title II of the ADA or Section 504 of the Rehabilitation Act, the Court rules that the City may not assert those affirmative defenses with respect to those public sidewalks over which the City of Los Angeles has responsibility to inspect and notify property owners of repair needs is a “program, service, or activity” within the meaning of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.