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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), 1st 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.
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