REPORT FROM THE U.S.—Just over 18 months after the deadline for the installation by hotels of fixed, or permanent, pool lifts under the Americans with Disabilities Act, there is the proverbial good news and bad news.
The good news is hotel operators have been diligently installing lifts over that time, sources said. Most major flags have put in the lifts with just a few outlying independent properties yet to install the pool lifts. The bad news is pool lifts have spawned an unforeseen and aggressive legal subculture of attorneys and plaintiffs who are bringing a barrage of lawsuits against hotel owners.
“Some people just use Google to look at your pool and see there’s no lift,” said Marty Orlick, chair of the ADA compliance and defense group at San Francisco law firm Jeffer Mangels Butler & Mitchell. “Others call on the phone and ask. And if you don't have one, they file a lawsuit.”
A half-dozen lawsuits have been filed in Santa Monica, California, by a single plaintiff, Orlick said.
Compliance is not protection
Of concern to hotel owners is not even the installation of a lift, which typically costs between $6,000 and $10,000, provides indemnity against a lawsuit.
“You also have to install them in the right place,” said Minh Vu, outside counsel for the
American Hotel & Lodging Association at the law firm Seyfarth Shaw. “And you have to make sure that they are always functional and that the batteries are fully charged. The serial plaintiffs are taking advantage of the fact that there are a lot of details that require attention, not just that you have a lift installed.”
For example, Vu said, she has defended lawsuits in Florida where lifts were installed, but clever attorneys and plaintiffs found a way to mount a legal challenge.
“The clear intention of these lawsuits that are happening around the country is not to help the disabled, but rather to enrich attorneys,” said Jimmy Patel, vice chairman of the Asian American Hotel Owners Association. “The constant threat of lawsuits increases litigation costs and increases our cost of doing business. It is an unnecessary cost of doing business that will ultimately be passed on in higher prices to consumers.”
Texas has seen a flurry of pool lift lawsuits, said Justin Bragiel, general counsel at the Texas Hotel & Lodging Association.
“Our hotel owners are very agitated about it,” he said. “I don't think anyone considers it a threat that can put them out of business. But it is definitely becoming a new cost of doing business. And it’s hard to predict your liability and costs when you know you're doing everything right, but you're still vulnerable to these lawsuits over and over again. You can settle a case one week and have another plaintiff suing you over the same pool lift the next week.”
The legal onslaught is being led by a small number of attorneys and law firms that are the hotel industry equivalent of ambulance-chasing personal injury attorneys, he said.
“And it's mostly these predatory attorneys that are seeking plaintiffs or 'victims,' rather than the other way around,” Bragiel said. “They're actively looking for hotels they can sue.”
Pay up or fight?
The dilemma for hotel owners is whether to settle the cases for modest amounts, usually less than $10,000, or incur the significant costs of litigation.
So far, most hoteliers have chosen to settle.
“Most of the large brands will just settle and move on,” Orlick said.
Vu agreed that it usually makes more practical sense to settle than fight.
“At the end of the day, it costs a lot more money to litigate these cases. But what’s frustrating is that there are examples where hotel owners have put in fully-compliant pool lifts that are properly attached to the pool deck. But I've had plaintiff's attorneys say, ‘Yes, but they're only attached by one bolt. Therefore it's not secure enough.’ And that's ridiculous.”
There is no formal specification under U.S. Department of Justice rules for how many bolts must secure a lift. “But winning on that would cost many thousands of dollars,” Vu said. As a result, even the most frivolous lawsuits often are settled as the practical, less expensive alternative to an expensive court battle.
And in turn, awareness among attorneys of those settlements prompts more lawsuits.
In Texas, however, a number of hotel owners have had success in fighting unfair lawsuits,
Bragiel said.
“Instead of offering a settlement, they say they're going to fight and contest the case. And a lot of times, these lawyers or plaintiffs dismiss the cases. Their money is in quick, easy settlements, not in going to court,” he said.
There also are growing concerns about legal liabilities of lifts that are unrelated to their purpose, said Bill DeForrest, president and CEO of Spire Hospitality, which manages 17 branded and three independent properties in the U.S. All of them have installed lifts.
“So the manufacturers created covers for the lifts to make them less tempting to climb or play on,” he said.
“The liability of children playing on the lifts has raised insurance costs,” Patel added.
The worst of the bad news, however, is that the threat of pool-lift related lawsuits will never be eliminated, Vu said.
“We will continue to see drive-by litigation by these serial plaintiffs forever,” she said. “It's never going away.”