Claims For Trespass: A New Trend In Website Accessibility Cases Filed In Florida?

Lawsuits filed under Title III of the Americans with Disabilities Act, or ADA, do not carry with them any right to money damages on behalf of the person who files the lawsuit.   The person suing has no right to demand payment of money to her by the defendant.   This holds true both with respect to  lawsuits that  are the more traditional form of such claims, alleging physical barriers on a defendant’s property, as well as the more recent variation, for lack of a better type, of ADA lawsuits—cases where a visually impaired or legally blind plaintiff sues because she allegedly cannot access someone’s website.

What ADA lawsuits have historically sought was an equitable remedy, usually what is known as declaratory relief, i.e., the court issues a declaratory judgment that the website violates the ADA, as well as an order directing the defendant to undertake certain measures by a date certain.  In addition, of course, such lawsuits always seek the recovery of attorney’s fees on behalf of the party filing the lawsuit.

What we are seeing more of in Florida in recent months are website accessibility lawsuits that, in addition to requesting the traditional equitable relief sought in ADA cases, also demand monetary damages on behalf of the party suing under a theory of trespass.    There have been at least three cases filed in the United States District Court for the Southern District of Florida in the last two or so months that contain both claims under the ADA and for trespass.

The trespass claim is an admittedly novel approach to alleged website accessibility issues and does not remotely approach what many would normally consider a trespass.  Black’s Law Dictionary has defined trespass as  “[a]n unlawful act committed against the person or property of another; especially, wrongful entry on another’s real property.”

The way that these trespass claims have been phrased or stated in federal court in Florida probably does not mirror this conventional definition of a trespass.  In a nutshell, the plaintiff suing for trespass, in a website accessibility case,  essentially alleges that his computer or cellular phone contains personal information and browsing history and  that each time the plaintiff would have visited a given defendant’s website, that defendant would have employed software analytics present on the website, which the plaintiff navigated, software which the plaintiff will maintain he did not consent to or know of given his inability to fully view and access the website.   Plaintiff will claim such actions, which involved placing tracking and information on his computer or phone, constitute a trespass of his personal property, causing him damages.

In the context of a website accessibility case, what adding a claim for trespass does in Florida is not even subtle.   It takes a lawsuit that ordinarily has no right to monetary damages for the allegedly injured plaintiff and suddenly turns that into an action where such damages are at least potentially available.   In reality, what it may very well end up accomplishing is driving up the dollar amount it will take to settle the case in that there is an added element of available relief that a defendant must now consider in evaluating whether to attempt to settle the case early or vigorously contest it.

It remains to be seen how federal courts in Florida will view these trespass claims.