Carl Horowitz
The revolution in tort liability has claimed another victim. Chipotle Mexican Grill Inc. is now traveling lighter by around $140,000, thanks to a decision a few weeks ago by a three-judge panel on the 9th U.S. Circuit Court of Appeals. That might not seem a king’s ransom. But the ruling could have major consequences for the way businesses in this country operate.

The case, known as Antoninetti v. Chipotle Mexican Grill, Inc., has all the makings of a Hollywood dark comedy. If only it were fiction. A wheelchair-bound San Diego man, Maurizio Antoninetti, believed that two area Chipotle outlets violated the ban by the Americans with Disabilities Act (ADA) on discrimination in places of public accommodation. As a disabled customer, he insisted, his rights had been violated.

What exactly had the Denver-based Chipotle Grill, now with more than 1,000 Mexican-themed short-order restaurants in operation, done to deserve Mr. Antoninetti’s wrath? Apparently, the front counter of the offending establishments was set too high for people in wheelchairs like himself to see over. As a result, he could not view the ingredients of his order being assembled on the serving line. Restaurant management thus had deprived him of full access to its touted “Chipotle experience,” even though it was official restaurant policy to show disabled customers samples of the ingredients in spoons, tongs or cups at the counter or at a table.

Mr. Antoninetti was not one to be appeased. He and his attorney, Amy Vandeveld, sued, seeking $8,000 in damages and a vow from Chipotle to retrofit its restaurants in compliance with ADA requirements so that all people in wheelchairs could see their ingredients assembled. Following a four-day trial without jury, a lower court ruled in favor of Chipotle. U.S. District Judge Napoleon A. Jones Jr., a Clinton appointee who died last December, concluded in a judgment entered on January 10, 2008, that while Chipotle’s original written policy failed to meet ADA guidelines, its revised policy succeeded. The plaintiff resorted to the ultimate weapon at his disposal: the 9th U.S. Circuit Court of Appeals, an institution whose reputation as a reservoir of loony Left jurisprudence is all too justified. Antoninetti had deep pockets to go the distance, spending a whopping $546,151 in legal costs. That’s the equivalent of nearly 100,000 chicken burritos. Perseverance paid off. After hearing arguments this April, the Pasadena, Calif. appeals court on July 26 reversed the lower court, ordering Chipotle to pay Antoninetti $5,000 of his requested $8,000 in damages, plus $136,537 (i.e., a fourth) of his legal fees. The circuit court decision, written by Judge Daniel Friedman, was a howler of legal sophistry. Chipotle’s written policy and workaround procedures, he argued, “do not constitute ‘equivalent facilitation’ because they do not involve ‘use of other designs and technologies’ or ‘provide [him with] substantially equivalent or greater access to and usability of the facility.’” The policy and procedures “merely provide a substitute experience that lacks the customer’s personal participation in the selection and preparation of the food that the full ‘Chipotle experience’ furnishes.”

Chipotle, as it turned out, already had undertaken a design retrofit. The company issued the following statement to KGTV/“10News” in San Diego: “We respectfully disagree with the court’s ruling. However, the latter is largely moot because several years ago, independent of this lawsuit, we retrofitted all our California restaurants with a new counter design that eliminates concern regarding wheelchair accessibility.” Just to make sure, the ABC affiliate’s news team visited the Chipotle restaurant in San Diego’s Hillcrest neighborhood. Eureka! The wall in front of the serving line indeed had been lowered, from 44 inches high to 36 inches – low enough for a person in a wheelchair to see over.

Two things have to be stated here. First, the Chipotle retrofit, despite official spin, almost certainly was a response to the lawsuit. It defies logic that the company otherwise would have shelled out a sizable sum for an interior modification of at most ephemeral benefit to a tiny portion of its customer base. Second, and more importantly, the design retrofit shows the ability of the plaintiffs’ bar to intimidate even a highly successful company. Chipotle obviously thought that it could avoid more lawsuits by making the design change as soon as possible.

Despite Chipotle management’s fecklessness, plaintiff’s attorney Amy Vandeveld wasn’t impressed. “If that (the statement about the retrofit) were true, why did they spend hundreds of thousands of dollars litigating this case?,” she asked, adding that the issue of retrofits never came up in court. “They’ve not once told us that they lowered the walls. I have heard that from you; I’ve never heard that from Chipotle,” Ms. Vandeveld complained. Oh, the injustice of it all!

It shouldn’t be a great surprise that Maurizio Antoninetti is a professional plaintiff, or as modern euphemism would have it, “an advocate for the disabled.” Over the years, he has filed ADA-related lawsuits against more than 20 businesses. Moreover, after forcing design changes and/or collecting damages he has not always returned to those businesses. The circuit court, however, couldn’t fathom the possibility that Antoninetti might be nothing more than a lowlife grifter operating under cover of “civil rights.” “Courts must tread carefully before construing a Disability Act’s plaintiff’s history of litigation against him,” wrote Judge Friedman. “As we have noted more than once, “[f]or the [Disabilities Act] to yield its promise of equal access for the disabled, it may be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the [Disabilities Act].”

Dutifully, Friedman and colleagues remanded the case back to trial court with an order to provide Mr. Antoninetti with an unspecified sum of injunctive relief. The court also vacated the lower court’s legal fee award, directing it to consider a larger sum – as if the plaintiff’s extensive track record of filing abusive suits hadn’t generated enough rewards. It would take a full-fledged thesis, or at least a lengthy dissent, to give the circuit court ruling its full measure of contempt. But let us briefly give it a go.

First, neither “damages” nor legal fees incurred by the plaintiff in any way should have been compensated. Indeed, the suit being utterly frivolous, the lower court should have thrown the case out. Correction – it should have laughed it out. Maurizio Antoninetti wasn’t harmed by his inability to view the assembly of the meat, beans, rice and other ingredients for his order any more than he was harmed by the food itself. Why should it be of importance to any customer, disabled or otherwise, to observe how a burrito, taco or salad is put together? Isn’t it enough simply to enjoy food once it is served? Apparently, for Mr. Antoninetti it wasn’t.

Second, the suit is indicative of a far deeper problem in the evolution of liability law. Antoninetti’s ability to pursue the case was made possible by his previous winnings in the lawsuit game. No sane person, however loaded, is going to pay a lawyer more than a half-million dollars to sue a restaurant chain for “failing” to provide an opportunity to observe employees stuffing a burrito or taco with requisite ingredients – unless, of course, that person anticipates winning an even larger sum. His lawsuit was a marriage of naked greed and unctuous moralizing. The larger point is that our legal system has come to encourage this sort of action. As Walter Olson, author of the book, “The Litigation Explosion,” argues, plaintiffs’ lawyers, egged on by the prospect of lavish contingency fees and the absence of a “loser pays” arrangement in force, have played the courts like a wheel of fortune.

Third, the decision will encourage more frivolous lawsuits, and as a consequence, legal bills borne by the defendants. True, an appeals court decision is formally binding only upon states within its circuit. But courts anywhere in this country can incorporate the decision into their own legal reasoning. And all too many members of the plaintiffs’ bar are eager to exploit such cases for personal gain and a sense of populist triumph. Even when the plaintiff has no realistic chance of winning – witness the case of a District of Columbia administrative law judge, Roy Pearson, who in 2005 sued a local Korean-owned dry cleaning establishment for $67 million for losing a pair of pants (he lost the case and eventually his job, but not before causing the proprietors to close shop) – such cases lend credibility to the worst human instincts while inflicting real financial and emotional costs on their intended targets.

Fourth, the case will trigger unnecessary spending by businesses, especially restaurant chains, to comply with the Americans with Disabilities Act. No business owner likes to face a lawsuit. The problem is that the 1990 law was passed with lucrative lawsuits very much in mind. The law’s costs have been substantial and, ironically, harmful to many of its intended beneficiaries. In an article appearing in the Spring 2000 issue of the Cato Institute periodical, Regulation, University of Chicago public policy professor Thomas DeLeire provided data showing that men with disabilities were less likely to be employed after enactment of the ADA. But don’t expect anyone in Congress to call for repealing, or even scaling back, this legislation. Doing so would mean being publicly tarred as “insensitive” toward the disabled. It also would risk the wrath of the plaintiffs’ bar and a possible re-election defeat. A recent report issued by the Manhattan Institute, Trial Lawyers Inc., reveals the extent to which the legal profession now drives politics. Since 1990, lawyers and law firms have contributed a combined more than $1 billion to federal election campaigns, more than any other industry during each election cycle as well as overall. Leading Democrats especially have benefitted. From 2005 until early 2010, for example, Senate Majority Leader Harry Reid received $2.1 million in donations from the legal profession, more than twice the $885,000 he received from the second-highest donor category, the securities and investment industry.

Fifth and finally, the case highlights a reality of human existence that all too often has been banished to the sidelines: Life isn’t fair. I, for one, sympathize with anyone stuck in a wheelchair, regardless of how that person’s condition came to be. But Maurizio Antoninetti deserves scorn as well as sympathy. A bitter man, he refashioned himself as a warrior for a noble-sounding cause that has amounted to a perpetual business shakedown. Chipotle Mexican Grill shouldn’t be held responsible for Mr. Antoninetti’s inability to see his meal being prepared any more than Ford Motor Company should be held responsible for his difficulty in getting into one of its cars. We all suffer from certain physical or emotional conditions that prevent us from being the person we would like to be. But suing businesses on specious, if not absurd grounds can never rectify unhappiness. It also makes for a less productive economy. The legal system, in refusing to recognize this, has become a lottery for the greedy and the unscrupulous.

As for me, I did my part for social justice the other evening coming home from work. I stopped off at the Chipotle Grill in Sterling, Virginia and had myself a burrito.


Carl Horowitz

Carl F. Horowitz is director of the Organized Labor Accountability Project of the National Legal and Policy Center, a Townhall.com Gold Partner organization dedicated to promoting ethics in American public life.
 
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