Kohler v. Eddie Bauer

A plaintiff bringing an Americans with Disabilities Act lawsuit is not required to prove a violation through expert testimony, rather a lay witness may be used.

Chris Kohler appealed from the district court’s rulings for Eddie Bauer on claims under the Americans with Disabilities Act (“ADA”). After a visit to an Eddie Bauer store, Kohler complained of three obstacles: (1) checkout counters that exceeded the permissible height; (2) a dressing room bench that exceeded the ADA required length; and (3) blocked aisles that prevented Kohler’s movement around the store. First, the Ninth Circuit reversed the district court’s ruling in terms of the checkout counters in light of the reversal of Strong v. Valdez Fine Foods through an appeal. In the reversal, the panel stated that an ADA plaintiff is not required to prove a violation through expert testimony, rather a lay witness may estimate size, distance, weight, etc. Further, being that the ADA Accessibility Guidelines (“ADAAG”) state a checkout counter height cannot exceed thirty-six inches, and the California Government Code states accessibility may not be less than that prescribed by the ADAAG, accommodations must be greater than or equal to the ADAAG required standards. Therefore, a counter estimated by a lay witness to be greater than thirty-six inches may be a violation of the ADA. The ruling for the dressing room bench was affirmed by the panel because Kohler was able to make a parallel transfer to it, despite being longer than the ADA requirements. As to the aisles, the panel affirmed the ruling because the district court did not dismiss Kohler’s testimony and its determination did not run afoul of Strong. Finally, the panel refused to reconsider and overrule Hubbard v. SoBreck, LLC., as requested by Eddie Bauer in its argument for attorney’s fees. AFFIRMED in part, VACATED and REMANDED in part.