Getting around can be difficult for Dennis Brady, a Vietnam veteran with a history of back and neck injuries.
The inch of ice encasing much of the parking lot of his north Fayetteville apartment complex since last week certainly hasn’t helped.
“I went out there to get mail and just about slipped and broke my tailbone,” Brady said Tuesday. “I haven’t been able to get to the bank — and I’m overdrawn — to put my disability check in.”
The federal Americans with Disabilities Act, passed in 1990, guarantees access to and from public accommodations, including apartments, for people with disabilities, as long as the access doesn’t require an “undue burden” on the property owner. Preventing that access, even by doing nothing, can be illegal.
Managers of Fayetteville apartments such as Brady’s, however, have largely adopted a policy of doing nothing about ice-coated parking lots and sidewalks. They say their lawyers have advised them they have no obligation to improve their lots, not even to lay down salt or gravel.
Doing something, they said, would expose them to liability if someone gets injured in the lot.
“It’s also in our lease that we’re not allowed to do anything about bad weather,” said Esther Sanford, manager for Pierce Properties Campus Studios on North Leverett Avenue, echoing her counterparts across town. “It has to do with liability issues and from the advice that we received from our attorneys. I don’t really understand all of it because I’m not an attorney, but in short, basically, we can’t do anything.”
Stockland & Trantham, the law firm Sanford said advised her, declined to comment.
Legal Lingo
What it Says
Section 12182, Americans With Disabilities Act
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”
Discrimination includes “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”
Source: www.ada.gov
Several states, including Kentucky, Missouri and Nebraska, require landlords to keep common areas such as parking lots safe and clear, according to the National Conference of State Legislatures — but not Arkansas. A 1969 Arkansas Supreme Court opinion states landlords aren’t obligated to remove temporary hazards such as ice.
“If you take action to deal with it, then you’re responsible for doing it right, and if you don’t, you put yourself in a situation where paradoxically you have more liability than if you had done nothing,” Bill Putman, a lawyer with Fayetteville’s Taylor Law Partners, said Wednesday.
How the Disabilities Act interacts with that decision is murky at best, Putman said.
“It looks like that’s something that, certainly under Arkansas law, hasn’t been addressed,” Putman said. “Maybe (the act) doesn’t deal with it at all.”
Tom Masseau, executive director of the Disability Rights Center of Arkansas, disagreed, saying there was no question landlords here are responsible under the act.
“Especially for people with disabilities, in terms of path of travel, they have to make those accessible to people,” he said Monday. “If they have sidewalks, those have to be clear. If they have handicapped parking, that needs to be taken care of as well. They should’ve been taking care of that ASAP.”
Many apartments’ parking lots and sidewalks were impassable Tuesday, even for those without disabilities. University of Arkansas students gingerly made their way up frozen sidewalks to campus for afternoon classes. Vehicles in handicapped parking spots appeared not to have moved for several days.
“I just got back in town — in the two steps from the car to my front door I slipped,” said Deanna Mantooth, a sophomore who was already late for class because the walk was so much slower than usual. “It looks like it’s been mostly untouched. No one’s made an effort to do anything about the sidewalks.”
Marshall Johnson, a senior, spread the blame. He pointed to Fayetteville’s roads, several of which were no better than the parking lots.
“It’s an overall problem,” he said as he steadily carried groceries to his apartment. His complex’s parking lot, coated in ice, sloped 100 yards up a steep hill to his right.
A few complexes kept lots fairly clear, including the Hillcrest Towers Senior Center in downtown Fayetteville, which houses several tenants with disabilities. Betsy Killebrew, the center’s community director, said the south lot, nearly ice-free, was cleared Monday. As public housing, the center has different standards and likely more resources than private complexes, she said.
Still, the north lot, sloping downward in the center’s shadow, was a bit icy.
“One gentleman pushed me down to my truck,” Bob Jones, who uses a wheelchair, said with a laugh. “It went well. It was an adventure.”
It was a different story for Brady, the Vietnam vet. He said he hadn’t spoken with management because he was evicted for complaining at another complex.
“A lot of people, they give lip service to the Americans with Disabilities Act, but they really don’t know much about it,” Brady said. “That seems to be the general thing around here.”