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Medford is sued over sidewalks

A Medford man who requires a wheelchair or cane to get around is seeking six figures from the city because of access issues throughout town that hamper his mobility.

Jerry Smith, who suffers from neurological disorders, filed a $100,000 discrimination lawsuit against the city saying that sidewalk-access obstacles at 14 streets and intersections throughout the city violate the Americans with Disabilities Act and the Rehabilitation Act, according to records filed in U.S. District Court in Medford. The lawsuit further argues that the city has neglected accessibility studies mandated by federal law.

The city broadly denied Smith's allegations earlier this week in a response filed by Medford City Attorney Lori Cooper.

The 14 obstacles cited in the complaint touch on various issues in southwest and west Medford, including utility poles and fences that block rights of way on Chestnut Street and Stewart Avenue, a lack of curb cuts on the north side of East Main Street at Almond Street, and drainage problems at West Main and Orange and Plum streets that cause standing water and mud in the crosswalks.

Smith's case is bolstered by a 2016 Federal Highway Administration findings and recommendations letter stemming from complaints Smith made in July 2015. The FHWA letter largely sided with Smith, stating that the city hadn't developed a "transition plan" identifying obstacles in a self-evaluation and hadn't created a schedule to address them since 1992.

City of Medford spokeswoman Kristina Johnsen said the city has been working closely with the FHWA to ensure that the city is compliant with the ADA, similar to claims made in the legal response filed by the city attorney. 

Medford argues for a dismissal with prejudice, along with awarding of attorney fees to the city on grounds that Smith doesn't state a claim that merits monetary relief, that removing certain barriers is "not readily achievable," that others are "technically unfeasible," that some requested modifications impose an "undue burden," and that other complaints fall under the ADA's safe harbor provision, which allows access-ways built under the 1991 code to remain, even if guidelines changed in the 2010 update.

The city's court reply doesn't get into specifics, which Johnsen said is because the lawsuit is still pending.

"Due to the fact that we are in litigation, we cannot comment at this time on which modifications may be 'technically infeasible,' " Johnsen said.

Smith is seeking a declaration from the court that Medford violated ADA provisions, along with civil penalties and $100,000 in compensation for discrimination, "loss of peace of mind and enjoyment of life," and emotional distress, among other damages, plus pre-judgment and post-judgment interest.

Smith is being represented by Ashland lawyer Thomas Dimitre, who represented Philip Lang in a civil rights lawsuit against the Oregon Shakespeare Festival for ADA violations on a courtyard known as "The Bricks," where slippery and uneven surfaces, steep slopes and a lack of handrails made mobility challenging for some people.

That case was dismissed in 2016 on grounds that Lang wasn't disabled when he filed the suit, though the ruling is being contested in the Ninth Circuit Court of Appeals. The lawsuit coincided with a two-year renovation project on The Bricks that addressed many of the claims.

— Reach reporter Nick Morgan at 541-776-4471 or nmorgan@mailtribune.com. Follow him on Twitter at @MTCrimeBeat.