Four-factor standing test for "injury in fact" for ADA claim involving removal of architectural barriers.

The plaintiff, a New Jersey resident with quadriplegia, instituted suit under the ADA and alleged that two Atlantic City hotel/casinos were mandated to remove architectural barriers. The defendants challenged the plaintiff's standing to pursue the Action since he was simply sent to the property to act as a "tester" and had no interest in actually using the premises. In evaluating the standing question, the court indicated that the elements to consider are: (1) the plaintiff's proximity to the properties, (2) past patronage, (3) definiteness of the plaintiff's plans to return, and (4) frequency of nearby travel. The court also indicated that the plaintiff's "tester" status was an issue to consider in determining his standing. Finally, the court indicated that the plaintiff's ability to challenge architectural issues was limited to those that would affect his disability and not those of others.

Case Law Alert - 1st Qtr 2011