Case SummarieS

City does not have to build sidewalks to comply with ADA

 

The Americans with Disabilities Act generally provides that public entities may not discriminate against those with disabilities by failing to provide services that are otherwise available to those who are not disabled.  Plaintiff Geiger argued that the ADA requires sidewalks as part of a basic public service program.  Geiger claimed that the lack of sidewalks in the City of Upper Arlington was a violation of the ADA.  The City argued that the lack of sidewalks affected everyone, not just the disabled.  Therefore Geiger was not discriminated against.  The City also asserted that the ADA does not require a city to build sidewalks.

 

In order to succeed on a claim under the ADA, a plaintiff must have a disability and must prove that he “is being denied access to or the benefits of the program or service solely on the basis of” his disability.  Geiger attempted to meet his burden by citing to a recent case in which the City of Sacramento was required to bring sidewalks to compliance with the ADA when it improved maintenance on them or altered them in some way.  However, the Court determined that case had no bearing here, since the City of Upper Arlington did not even have any sidewalks. Geiger failed to prove he was discriminated against because the lack of sidewalks affects everyone in the community.  The Court also noted that the ADA requires a public entity to make sure that the improvements it makes comply with the ADA.  In this case, since there were no sidewalks in the City of Upper Arlington, the Court could not find that the ADA required the City to build sidewalks compliant with the ADA.

 

Geiger v. City of Upper Arlington, 2006 U.S. Dist. LEXIS 46705 (S.D. Ohio July 7, 2006)

 

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To prove a defendant’s failure to perform in a workmanlike manner, expert testimony is useful but not necessary.

 

The plaintiff owner of a service station sued a contractor for negligently installing an oil-interceptor system and sewer line by damaging an adjacent clay sewer.  The owner dismissed its original lawsuit against the contractor so it could excavate the damaged line so its expert could inspect the work and determine if the contractor’s negligence was the cause of the damage.  However, the owner did not notify the contractor so the contractor’s expert could form his own opinion.  Therefore, the defendant contractor was able to have the testimony of the owner’s expert witness stricken based on an argument of spoliation of evidence.

 

Even without the owner’s expert testimony, the Court found that the contractor still did not meet its burden to justify summary judgment because there was an affidavit from the owner testifying that an employee of the contractor admitted that the broken line was the contractor’s fault.  Since the alleged statement of the contractor’s employee was not hearsay (it was made within the scope of employment), this created a genuine issue of material fact that needed to be weighed by a jury.  The owner’s lack of expert testimony was not fatal to its claim of negligence against the contractor.

 

Loukinas v. Roto Rooter Services, Co., (June 23, 2006), 1^st Dist. No. C-050354, 2006-Ohio-3172.

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Rejected Bidder’s only remedy is injunctive relief

 

The Summit County Court of Appeals had ruled that Cementech, Inc., the rejected bidder on a publicly advertised service-road project, could recover lost profits, reasoning that this was the only way to deter the government’s violation of competitive bidding laws.  However, on June 28, 2006, the Ohio Supreme Court reversed this decision and stated that “a rejected bidder is limited to injunctive relief.”  The Supreme Court stated that the intent of competitive bidding is to protect the taxpayers, to prevent excessive costs and corrupt practices, and to provide open and honest competition in bidding for public contracts.  The Court felt that injunctive relief and “the resulting delays serve as a sufficient deterrent to a municipality’s violation of competitive-bidding laws.”  Therefore, when a municipality violates competitive-bidding laws in awarding a competitive bid project, the rejected bidder cannot recover its lost profits as damages.

 

Cementech, Inc. v. Fairlawn, (2006) 109 Ohio St. 3d 475.

 

 

FEATURE ARTICLE

 

The Cost When Things Go Wrong...

 

By: Christopher M. Ernst

 

Nowadays, it seems like people are unwilling to take responsibility for their own mistakes.  For example, recently the Ohio Department of Transportation oversaw the re-construction of the West Third Street Lift Bridge, spanning the width of the Cuyahoga River in Cleveland. It was a $20 million dollar project that was to culminate with the late winter installation of a 2.1-million-pound bridge deck that had to be floated up the river, pushed by two tugboats normally accustomed to guiding iron ore carriers to the steel mills upriver. 

 

With the road already closed due to the bridge reconstruction, and with the United States Coast Guard on hand to close the river to traffic, the 217-foot deck was put into position with assistance of cranes and the 64 cables that would lift the bridge for decades to come were attached to the counterweights on the 130-foot towers on either bank of the river.

 

The installation was just about complete when it was realized that all the cables were three feet too short. This was a problem.

 

With ships stacked up waiting for clear passage, the Coast Guard anxious to re-open the river and motorists tired of lengthy detours around the river that bisects Cleveland, it began: the finger pointing. Practically everyone involved in the project blamed someone else for this mistake. The project was delayed for months and the costs have yet to be totaled. Lawsuits will, no doubt, be filed.

 

All too often, litigation is the finale of a construction project. Everyone who has ever been involved in construction knows that no project ever ends up exactly as it was intended or planned. Unforeseen circumstances occur. Design changes are made. In the vernacular of the jobsite, stuff happens. How people react to the bumps in road is not only a true test of professionalism, but is frequently the best barometer of profitability. 

 

Litigation can be (and often is) expensive, time-consuming and unsatisfying. If the parties involved fail to listen to each other and fail to focus on the details of the project, they can expect a long and costly trip to the courtroom.

 

Let the litigation process begin

 

When a lawsuit is filed, either on behalf of an owner/developer or a contractor, the ability to control the destiny of the dispute is automatically withdrawn from the parties’ hands and placed in the hands of high-priced lawyers and overburdened judges. 

 

The first issues fought over by the parties usually pertain to jurisdiction issues. Is the case in the right court? The right state, even? Is there a mandatory arbitration clause in the contract? Have the parties waived it? What if one party wants to waive it and the others do not? Often times, this wrangling can take months to work through. If the case gets routed to mandatory arbitration, it can take even longer as the parties will now have to go through the process of selecting the arbitration panel. A year could elapse before the case could proceed.

Once the initial issues are resolved, discovery occurs. The discovery process involves the exchange of information between the parties. Often times, documents are the first items exchanged. This usually means all the job files, bids, contracts, letters and the like. It also means electronic material as well, including e-mails, Web sites, online programs such as project networks, and hard drives. This is also known as e-discovery. If the stakes are big enough, parties will want to obtain exact copies (called images) of all the hard drives, servers and back-up tapes used by the other parties. 

 

The reason for this is to look for incriminating data, the 21^st century’s version of the smoking gun. Because computers do not actually remove data files from the hard drives when deletion occurs, outside vendors are hired by high-priced lawyers who can reconstruct or reclaim files deleted long ago. Often times, fairly damaging evidence exists in those deleted files. This process is not inexpensive (it costs about $4,000 to thoroughly examine just one hard drive – then multiply that by the number of computers on the project), but it can recover some very useful information. Of course, there are additional costs involved in having the lawyers review and interpret the wealth of information obtained during e-discovery. 

 

After documents are exchanged, depositions typically occur. These require intensive preparation for the lawyers who must synthesize all the information obtained to date and use it in a manner that is most advantageous to their respective clients. It also involves a loss of productivity for the clients as their employees are taken out of the office or off the jobsite to sit and discuss the case, over and over, with the lawyers – either in preparation for the deposition or in the deposition itself.

 

At this juncture in the process, experts usually come into play. Because no jury could be expected to understand the intricacies of the construction industry and most judges do not have the time to become experts, it falls upon a party’s expert witnesses to explain, in layman’s terms, why a particular party is right in its position. Expect to require the services of multiple experts to address multiple areas of expertise. Some attorneys will even insist on redundant experts (two or more experts on one particular subject) to prevent against problems if one expert does a poor job or is prohibited from testifying by the court.

 

What has not been addressed yet is what happens when problems occur in the process. Just as in construction, no litigation ever goes as planned and, inevitably, one party or one set of attorneys will do something that throws a wrench in the works. This usually involves arguing over what documents should or should not be produced in discovery, or just how difficult (or, conversely, cooperative) the parties will make the e-discovery process. 

 

Going to court is like walking through a wall of molasses

 

Just because you’ve reached the steps of the courthouse (or arbitration hearing room) does not mean the lawsuit will get any easier. In courts across the country, your case will be sandwiched in between the other business that is on the court’s calendar, including pre-trials, hearings, pleas and sentencings. In fact, in most states, criminal cases take priority over civil cases, regardless of how old or complex they may be. If your case is slotted behind the petty thief who is demanding his day in court, your case will end up getting bumped back, either by days, weeks or months.  This will happen irrespective of the preparation and cost put in, the travel schedules of your witnesses or the demands of your routine business. Even if your trial starts, rare is the court that is able to devote more than four or five hours of attention to it on a daily basis. The balance of the day is devoted to the other matters the court is handling at the same time.

 

Construction is too important to be left to the lawyers

 

Sometimes, litigation is inevitable. Often times, though, it can be avoided. Before accepting the amount of time and money that comes along with litigation – such as jurisdiction issues, loss of business, the discovery process and the court system – it’s best for those involved in the construction process to be proactive.

 

The best tool for litigation avoidance is communication. All too often, on a job site, too little is left unsaid, too much is assumed. Procedures are not followed by anyone. Egos replace wisdom.  If contractors and owner/developers could mutually work towards better communication during the process, then disputes can be thwarted. Of course, this is a two-way street and both sides need to work diligently at the process, bending and cooperating as demanded by the process.  Change orders should be clearly spelled out. Delay claims should be brought to everyone’s attention immediately. Quality issues have to be addressed before they get out of hand.

 

In the end, construction projects that result in litigation benefit no one. Preventative medicine is the best course to take for everyone. Otherwise, let the finger pointing begin.

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Christopher M. Ernst is a Partner and a member of the Litigation and Real Estate & Construction Practice Groups.  He can be reached at cernst@bdblaw.com or 216.736.4216.