Tenant not Liable for ADA Violations in Common Area Controlled Exclusively by Landlord
POSTED ON 04/22/2015, FILED IN Recent Developments
In a recent decision, the Ninth Circuit Court of Appeals clarified the scope of a shopping center tenant’s obligations under the Americans with Disabilities Act. In Kohler v. Bed Bath & Beyond of California, LLC, 780 F.3d 1260 (9th Cir. 2015), plaintiff Chris Kohler (“Plaintiff”) appealed the District Court’s grant of summary judgment to defendant Bed Bath & Beyond of California, LLC (“Bed Bath & Beyond”) on Plaintiff’s claims under Title III of the Americans with Disabilities Act (the “ADA”), and also appealed the District Court’s award of attorneys’ fees and costs to Bed Bath & Beyond as a prevailing defendant. Plaintiff claimed, among other things, that the District Court erred in holding that Bed Bath & Beyond, as a tenant, was not liable for any alleged access barriers in the shopping center parking lot, which pursuant to Bed Bath & Beyond’s lease was part of the common area that was maintained, operated and controlled by its landlord.
In challenging the District Court’s conclusion, Plaintiff relied on another Ninth Circuit decision, Botosan v. Paul McNally Real., 216 F.3d 827 (9th Cir. 2000), in which the court held that a landlord could not contract away its responsibility under the ADA by providing in its lease that all ADA compliance obligations were shifted to the tenant. In Kohler, the Ninth Circuit rejected Plaintiff’s attempt to extend the reasoning of Botosan to impose liability on a tenant for those areas of the property controlled by the landlord. In so holding, the court recognized that, while the ADA imposes compliance obligations on “‘any person who owns, leases (or leases to), or operates a place of public accommodation,'” the ADA does not define the scope of the tenant’s and the landlord’s respective obligations. Kohler, 780 F.3d at 1265. Looking to the legislative history of the relevant provisions as an aid in construction, the court also recognized that the obligations of a tenant with respect to the premises that it occupies are necessarily distinct from the obligations of an owner as to the portion of the property that it controls. The court further noted that the ADA’s legislative history itself emphasizes that the prohibition from doing indirectly by contract that which it could not do directly “creates no substantive requirements in and of itself,” but simply prohibits a party operating a public accommodation from reducing its existing obligations by virtue of its lease. Id. The court also looked to the implementing regulations promulgated by the Department of Justice, which provide that a tenant’s alterations to areas that only the tenant occupies do not trigger a “path of travel” obligation upon the landlord with respect to the common area portion of the property that the landlord controls, so long as the common area is not otherwise being altered. Id. In conclusion, the court held that neither the ADA nor the Botosan case imposed liability upon tenants for ADA violations that occur in the common area that is under the exclusive control of the landlord.
While affirming summary judgment in favor of defendant, the Kohler case also illustrates the difficult standard that a prevailing ADA defendant must satisfy in order to recover its attorneys’ fees. Specifically, while the ADA allows a prevailing party to recover its attorneys’ fees, courts have held that fees are available to a defendant only when a plaintiff’s action was “frivolous, unreasonable, or without foundation.” Id. at 1266. The Kohler court emphasized, however, that to find a plaintiff’s action to be frivolous requires more than an ad hoc showing that plaintiff’s case has no merit. Thus, even though the court affirmed the District Court’s grant of summary judgment, it nonetheless reversed the award of attorneys’ fees to Bed Bath & Beyond because the arguments raised by Plaintiff, while without merit, had not been clearly resolved by prior caselaw.