On Dec. 11, a plaintiff filed a civil lawsuit against the city of Escondido for an alleged violation of the Americans with Disabilities Act, as well as injuries and damages suffered as a result of lack of a handicapped accessible crosswalk and sidewalk at a heavily trafficked city intersection.
Filed at the Superior Court of California in Vista, Winchester v. City of Escondido pits Fallbrook resident John Winchester, 46, against the city of Escondido. The complaint alleges that the injury took place at an intersection at the south 2000 block of Auto Parkway in Escondido, which contains numerous auto dealerships and is in close proximity to Interstate Highway 15.
Winchester, who is wheelchair bound, alleges in the lawsuit that in October 2017 he encountered an area with “excessively and illegally abraded concrete, inaccessible walkways, which lacked protection from sharp, exposed and/or abrasive features.” He added, “The walkway also had an unlawful change in height.”
That rough terrain on city-owned property, the lawsuit alleges, led to Winchester falling and sustaining the following injuries: fractured pelvis, sternum, left knee, multiple ribs, his orbital, as well as a facial laceration on the right side of the face, a left thumb fracture and dislocation; and a right shoulder separation and tear.
Prior to filing the lawsuit, as required by California state law, Winchester first filed a claim against the city of Escondido in April 2018. The city, however, never responded, elevating the claim to the civil litigation realm. Winchester has asked the court for over $25,000 in damage fees to come from the city of Escondido’s coffers.
Richard Prager, a lawyer for Winchester in the case who works for the San Diego-based firm Charles S. Roseman & Associates, said that he believes civil lawsuits of this sort can spark broader societal change and force cities to build out handicapped accessible infrastructure as a mainstay in development plans.
“The importance of lawsuits like this are to make the city as accessible as possible for disabled individuals to improve and promote their independence and self-reliance,” Prager said. “The thing about the ADA is there’s authority that says basically the ADA applies to everything a city does. When you talk about sidewalks in particular, these types of claims can be common.”
Not everyone agrees with using the civil court system as a way to adjudicate ADA claims, however, and it has come under fire by the American Tort Reform Association, a corporate-funded organization. An American Tort Reform Association affiliate website, Sick of Lawsuits, has a whole section critiquing ADA cases of the Winchester variety.
“The ADA is an important, well-intended law meant to ensure the disabled have equal access to public places,” says the website. “The problem is that personal injury lawyers across the nation are using the ADA to extort settlements out of small businesses for violating the law.”
Prager says that in this particular case, he believes the facts point toward Winchester as a righteous victim who was badly injured. He says his firm has filed similar cases throughout North County, including in Oceanside.
“I don’t think anyone is going to criticize Mr. Winchester of having been a prior abusive ADA plaintiff,” Prager said. “He is a disabled guy trying to work and support his family. And he was very profoundly injured because the sidewalk was non-compliant with the ADA and that was part of the reason why he was hurt. And now, because he’s not earning income, it impacts him and his family.”
California, says Prager, has legal mechanisms on the books for ADA cases which allow for defendants in cases to settle cases with the aid of judges more hastily than other areas of the law. The goal, he said, is to keep legal costs low and have the law serve a broader public interest purpose.
“One of the things that California’s done to make ADA cases more streamlined to save costs for everyone is that, if the defendant wants to voluntarily right away file a request to see a judge at a settlement conference, California law requires that,” Prager said. “So, if the city wanted to sit down right away with a judge and go over everything and try to revolve it and make it accessible the law and our law firm supports that.”
City of Escondido attorney Michael McGuinnes said that, as a policy matter, the city does not comment on ongoing litigation.
Steve Horn is a San Diego, CA-based reporter covering Escondido and San Marcos. He works in a full-time capacity for The Real News Network, an online broadcast news ouetlet, covering climate change. He has worked as a staff investigative reporter for the publications Prison Legal News and Criminal Legal News and as an investigative reporter for the climate news website DeSmog.com.
A native of Wisconsin and graduate of University of Wisconsin, Steve is a competitive distance runner, with a personal best time in the marathon of 2:43:04 and nine marathons under his belt. He also has served on the film screening committee for the San Diego International Film Festival.