Key Points

• In ADA Title III cases, the plaintiff has the initial burden to show removing a barrier is readily achievable.
• The Court has yet to consider the complexities of naval architecture and the unique safety and seaworthiness issues on ships.
• If barrier removal is not readily achievable, alternative methods to barrier removal —or other facilitation for access to the service— should be considered.

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In Lopez v. Catalina Channel Express, Inc. (9th Cir., Sept. 9, 2020, 19-55136) ___ F.3d ___ ("Lopez"), the Ninth Circuit held that a plaintiff alleging denial of public accommodations under the Americans with Disabilities Act (ADA) Title III has the initial burden at the summary judgment stage to show that the cost of removing an architectural barrier does not exceed the benefits. (Lopez, at p. 17.) Mr. Lopez, a person who uses a wheelchair, sued the operator of a ferry that takes passengers between Long Beach and Catalina Island. Mr. Lopez alleged that he was unable to use the restroom aboard the ship because its door was too narrow for his wheelchair. (Lopez, at p. 4.) Granting summary judgment in favor of the ship's operator, however, the trial court concluded that Mr. Lopez had failed to meet his initial burden of plausibly showing that widening the vessel's restroom door was "readily achievable."

The Ninth Circuit reasoned that only if the plaintiff first makes a plausible case showing that the barrier removal is readily achievable does the defendant then have to negate that showing and prove that the removal is not readily achievable. (Lopez, pp. 11-12.) This burden-shifting framework is consistent with interpretations of other sections of the ADA and aligns with the burden-shifting approach of employment claims under the ADA. (Lopez, at pp. 12-14.) Here, Mr. Lopez did not present any evidence about whether widening the restroom door was readily achievable and therefore did not meet his initial burden of showing that the cost of removing the architectural barrier does not exceed the benefits. Of course, due to naval architecture requirements, making a change to a ship's design can be far different (and more complicated) than making a change to a restroom in your local restaurant or other landside place of public accommodation. Thus, reserved for a future decision, the Ninth Circuit did not attempt to work through ship safety, seaworthiness, or otherwise attempt to distinguish important differences between naval architecture and landside architecture. Toward this end, the Ninth Circuit did not reference the year of construction of the vessel or the Passenger Vessels Accessibility Guidelines (PVAG).

While the Ninth Circuit placed the burden-shifting requirement on whether removal of a barrier might be "readily achievable" on the plaintiffs, it remanded the case so that the trial court might consider if the defendant made the ship's restroom available to the plaintiff through "alternative methods," e.g., assistance in and out of the restroom via the ship's staff, etc.