- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Evidence
- Date Filed: 07-22-2013
- Case #: 11-55265
- Judge(s)/Court Below: Chief Judge Kozinski for the Court; Circuit Judges Kleinfeld and Silverman; Partial Dissent by Judge Silverman
- Full Text Opinion
Matt Strong, a quadriplegic, filed a discrimination complaint against Peter Piper Pizza under the Americans with Disabilities Act ("ADA"). Strong listed ten observations that he knew were infractions of the ADA. The defendant sought summary judgment on the grounds that Strong did not have the requisite knowledge of the measurements taken during the investigation of the complaint, and that Strong’s testimony was based on hearsay. The district court granted summary judgment stating that evidence gathered in the investigators report could only be introduced during the testimony of the expert that prepared the report, and Strong missed the deadline for disclosing his expert witness. The district court also ruled that Strong failed to show that removal of barriers was “readily available.” To get past summary judgment and go to trial Strong only had to show that “reasonable persons could differ as to whether the witness had an adequate opportunity to observe.” It is common practice that a layperson may rely on their perception of estimated size, distance, weight, and speed, when they have observed them, without the need for precise measurements. The Ninth Circuit determined that Strong sufficiently observed the conditions that necessitated the ADA complaint and that gave rise to a triable issue of fact to be decided by a jury. The panel also determined that the showing that removal of barriers is “readily available” only applied to existing structures that were constructed prior to January 26, 1993 and new construction built after that date was expected to meet the ADA requirements. The defendant’s building was new construction and therefore Strong did not need to prove that fixes were “readily available.” REVERSED and REMANDED.