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Quadriplegic allowed to continue fight against Arlington

09/24/2011 12:01 AM

02/21/2012 7:41 PM

Richard Frame can continue his legal battle against Arlington over the lack of accessible sidewalks and curb cuts, the 5th U.S. Circuit Court of Appeals has ruled.

"Continuing to build inaccessible sidewalks without adequate justification needlessly perpetuates the 'isolation and segregation' of disabled individuals, and is the type of discrimination the ADA prohibits," the Sept. 15 ruling states.

Frame, who has been a quadriplegic for 12 years, had sued the city, alleging that when it built or altered sidewalks and curbs in some areas, it did not make them accessible, violating Title II of the Americans with Disabilities Act. But a district court had dismissed the case, saying Frame had waited too long after the work had been completed to sue.

Frame's attorney appealed to the 5th Circuit. A panel of that court initially upheld the dismissal, but in a rehearing by the full court, the district court's decision was vacated.

"This is exciting. It's been a long battle, as we filed the case in 2005," Frame said.

The majority opinion notes that cities are to use "any and all means" to make sidewalks accessible. Though the court writes that a city's obligation is not "boundless" and that a city should not be forced to take on undue financial burden, it can "avoid liability whenever it chooses simply by building sidewalks right the first time or by fixing its original unlawful construction."

Miguel de la O, a Florida attorney who represents Frame, said the 5th Circuit ruling allows Frame to go back to the district court where he originally sued Arlington.

"My client is very pleased that the court recognized that Arlington needs to live up to its obligations under the ADA," he said.

He added that Arlington could appeal to the U.S. Supreme Court.

Assistant City Attorney Denise Wilkerson said the court ruling does not mean Arlington violated the disabilities act. It means only that Frame can go forward with his legal action, she said.

"Arlington has not filed an answer. We are still in the preliminary stages of litigation," Wilkerson said.

The City Council will discuss the ruling during an executive session at Tuesday's meeting.

Frame originally sued after he tried to run errands at medical supply stores and restaurants and visit Vandergriff Park as he awaited test results at the Medical Center of Arlington. But Frame found that the sidewalks on Omega, Mayfield and Matlock roads had cracks and indentations and were too steep, preventing access.

The Matlock sidewalk had steep cross slopes, and a utility pole forced Frame to leave the sidewalk, his original lawsuit said. Later, he was joined in his lawsuit by four other people with disabilities who cited missing or badly sloped curb ramps, impassable or nonexistent sidewalks, and a lack of handicapped parking in areas such as Abram and Division streets, California Lane and Randol Mill Road.

Frame's lawsuit said Arlington repeatedly violated the disabilities act by not providing accessible curbs and sidewalks in parts of the city, even though the curbs and sidewalks had been built or altered since Title II was enacted in 1992.

Until Frame sued, Wilkerson said, the city had received no requests for repairs.

Three years later, U.S. District Judge Terry Means in Fort Worth dismissed the case, ruling that Frame's lawsuit came too long after the sidewalk and curb work had been done. He also noted that Frame had filed 14 "accommodation discrimination" lawsuits -- including some against businesses -- but had voluntarily dropped most of them.

The 5th Circuit ruling states that Texas' two-year statute of limitations for such lawsuits applies but that the period doesn't begin until the disabled person is deterred from using a sidewalk.

"As applied to this case, the plaintiffs' cause of action accrued when they knew or should have known they were being denied the benefits of the City's newly built or altered sidewalks," the ruling says.

Charles Ferguson, another attorney for Frame, said the disabilities act mandates curb cuts on every corner if a street is built or altered. Case law says sidewalks are included in the mandate, although that isn't specified in the regulations, he said.

The city had argued to the 5th Circuit that Frame and others should not be able to sue regarding access problems for sidewalks and curbs they had not personally encountered. But the court wrote that a disabled person "need not engage in futile gestures before seeking an injunction."

The 5th Circuit ruling also states that Congress anticipated that Title II would require local governments "to provide curb cuts on public streets" because the "employment, transportation, and public accommodation sections of [the disabilities act] would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between streets."

Elizabeth Campbell,

817-390-7696

Eva-Marie Ayala,

817-390-7700

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