Key ADA Defense Considerations in Title III Litigation

By Parker Atkins, PE, RAS

Professional Engineer | Registered Accessibility Specialist | ADA Defense Expert Witness

This article outlines some of the recurring technical and strategic issues observed in ADA Title III defense matters and provides practical guidance for attorneys, insurance

professionals, and property owners seeking to manage exposure, control costs, and achieve defensible outcomes.

Assuming Compliance Based on Age or Prior Permitting

Many property owners assume a facility is “grandfathered” if it was constructed prior to the ADA’s enforcement date for public accommodations (January 26, 1992) or if it received approval from a local building department.

Reality: The ADA contains no grandfather clause. Existing facilities open to the public have an ongoing obligation to remove architectural barriers where removal is readily achievable.

Defense Insight: Evaluate actual site conditions against the applicable ADA Standards—not against historical building code approvals or assumptions of exemption.

Overlooking Readily Achievable Barrier Removal Obligations

Defense efforts sometimes focus exclusively on new construction or alterations, overlooking the continuing obligations imposed on existing facilities.

Defense Insight: Demonstrating proactive readily achievable barrier removal efforts,

prioritization plans, and/or documented economic or physical infeasibility may materially reduce liability exposure and plaintiff settlement leverage.

Relying on Incomplete or Remote Site Evaluations

Photographs, third-party reports, and/or plaintiff-generated measurements often lack

critical context.

Defense Insight: Commission an on-site ADA survey by a qualified Professional

Engineer/Registered Accessibility Specialist to verify plaintiff-generated photographs,

third-party reports, and measurements against the alleged conditions and to identify any

technical inaccuracies.

The ADA Standards For Accessible Design Are Highly Technical And Frequently

Misunderstood.

Defense Insight: Early retention of a technically qualified ADA expert may reveal technical misinterpretations underlying the plaintiff’s allegations, demonstrate partial or full compliance, and/or identify readily achievable barrier removal conditions—allowing the defense to address, prioritize, or correct accessibility issues and, where appropriate, support early resolution.

Failure to Document Good-Faith Compliance Efforts

Courts routinely evaluate whether defendants have made reasonable, ongoing efforts to

comply.

Defense Insight: Maintain inspection reports, accessibility maintenance logs, and document all readily achievable barrier removal efforts and plans.

About the Author

Parker Atkins, PE, RAS is the President of Atkins Engineering and a nationally retained ADA defense expert witness. He provides technical consulting, expert reports, and testimony exclusively for defense counsel and insurance carriers in federal ADA Title III matters.

Contact:

Email: atkinspe@gmail.com

Phone: (210) 483-3242

Available for early case assessments, expert reports, deposition and trial testimony, and

insurer panel assignments.