Seventh Circuit Applies Continuing Violation Theory in ADA Public Accommodations Suit

Yesterday, the United States Court of Appeals for the Seventh Circuit issued an opinion in Scherr v. Marriott International, Inc., ___ F.3d ___, 2013 WL 57857 (7th Cir., Jan. 7, 2013).  The case was a rather straightforward hotel-accessibility case.  In a renovation in 2004, the defendant had added a spring-hinged door closer to the bathroom doors in a number of its Courtyard by Marriott hotels.  Scherr uses a walker for mobility.  She visited one of defendant's renovated hotels, in Overland Park, Kansas, in 2006, and was injured when the spring-assisted door closed too quickly on her.  In this lawsuit, filed in 2010, Scherr sought injunctive relief under Title III of the ADA to remove the spring-hinged door closers in all of defendants' hotels that have them.  The district court concluded that Scherr had standing to challenge accessibility at the Overland Park hotel (as she has lots of family in the Overland Park area who live near the Courtyard hotel, and she often visits) but not at the other hotels (as she made no similar showing that she would ever visit them).  The district court also concluded that Scherr's suit was not barred by the statute of limitations.  But the district court held that the spring-hinged door closer, while not compliant with the Attorney General's 1991 ADA regulations, did comply with the Attorney General's 2010 ADA regulations.  Accordingly, the court granted judgment to the defendant.

The Seventh Circuit affirmed in all respects.  The most legally significant aspect of the Seventh Circuit's opinion is its discussion of the statute of limitations.  The court concluded that Illinois's two-year personal-injury statute of limitations applied to Scherr's claim.  But even though Scherr filed her suit more than two years after she encountered the barrier she challenged, the court nonetheless held that the statute of limitations did not bar the suit.  Because Title III authorizes plaintiffs to seek injunctive relief for actual or threatened violations of the statute, the court concluded that the existence of unlawful barriers to access is a continuing violation of the statute that continues to impose a fresh injury.

Although there is no clear circuit split (because the appellate cases involve different accessibility statutes), the courts of appeals have employed a number of different statute-of-limitations analyses to disability-access claims involving construction or renovation.  The Seventh Circuit's decision in Scherr is consistent with the Ninth Circuit's 2002 decision in Pickern v. Holiday Quality Foods Inc., which also applied a continuing violation theory to an ADA Title III accessibility claim.  Last year, the en banc Fifth Circuit decided Frame v. City of Arlington (blogged about here), which held that the statute of limitations in an accessibility suit under Title II of the ADA does not begin to run until the plaintiff knew or should have known of the inaccessibility of the facilities at issue.  In 2008, the en banc Ninth Circuit decided Garcia v. Brockway, which refused to apply a discovery rule or continuing violation theory to a case challenging inaccessible design and construction under the Fair Housing Act.  The Garcia court held that the statute of limitations begins to run at the end of the design and construction phase.  Also in 2008, the Third Circuit held that the statute of limitations on a challenge to inaccessible alterations to a facility under the public-transportation provisions of ADA Title II begins to run no earlier than the completion of the alterations -- though the court left open the possibility that the statute would begin to run even later if the plaintiff did not discover the violation by the time the alteration was completed.  That case was Disabled in Action v. Southeastern Pennsylvania Transportation Authority.