Cohen v. City of Culver City

When a facility is already in compliance with the ADA but disabled access has been eliminated, 28 C.F.R. § 35.151 applies rather than 28 C.F.R. § 35.150 for purposes of determining whether a person has been denied the benefits of a public entity’s services.

While staying in Culver City (“the City”), William Cohen (“Cohen”) sustained injuries after falling on a sidewalk as a result of a disabled access curb ramp being blocked. The district court granted summary judgment to the City after Cohen brought claims under Title II of the Americans with Disabilities Act ("ADA”) and other California laws. The Ninth Circuit reviews the summary judgment de novo. “To prevail under Title II of the ADA, a plaintiff must show that: (1) he is a qualified person with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) this exclusion, denial, or discrimination was by reason of his disability.” A sidewalk falls within Title II’s meaning of a “service, program, or activity.” The court considers two regulations: 28 C.F.R. § 35.150, which governs existing facilities and 28 C.F.R. § 35.151, which governs facilities built or altered after January 26, 1992. Under 28 C.F.R. § 35.150 if structural changes are unreasonable, the ADA permits facilities to have a “marginally longer” disabled access route. Under 28 C.F.R. § 35.151 facilities must be readily accessible to individuals with disabilities. The district court erred by relying on § 35.150 because § 35.151 applies. § 35.151 applies because the City allowed the disabled access it already had built to be eliminated. The existence of an alternative disabled access route did not entitle the City to summary judgment because § 35.151 contains no language allowing for alternative routes. A genuine dispute of material fact still exists as to whether Cohen was denied access to the sidewalk because of his disability therefore the case is remanded. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.