Negligence and the Americans With Disabilities Act: Plaintiffs’ Use of ADA Violations as Evidence of Negligence in Premises Liability Actions
March, 2007
Introduction
It has long been established in jurisdictions across the country that, in premises liability actions, an alleged statutory violation on the property may be used as evidence of negligence where the statute at issue is a public safety statute – i.e., a fire code, building code, housing or traffic regulation, or OSHA. In 2001, however, the District of Columbia Court of Appeals – in an opinion of national first impression – added the Americans With Disabilities Act (“ADA”; 42 U.S.C. §12101 et seq.) to the list of public safety statutes, the violation of which may be used as evidence of negligence in “garden variety” premises liability actions1. Theatre Management Group, Inc. v. Dalgliesh, 765 A.2d 986 (D. C. Ct. App. 2001). In an appeal prosecuted for the defense by Clausen Miller, the Dalgliesh court rejected our argument that the ADA is a civil rights/anti-discrimination statute only, and found that it instead embodies a “public safety objective” which renders it applicable in premises liability actions. In the five years since Dalgliesh, the question has been presented to appellate courts in New York and Ohio, with conflicting results. The message for business owners: ADA violations on their property may pose a litigation minefield in more ways than one.
The District Of Columbia:
Dalgliesh
In Dalgliesh, plaintiff suffered from Charcot Marie Tooth Syndrome, a progressively degenerative neurological disorder which severely impaired his ability to walk. At the time of his accident, plaintiff walked with a cane and wore braces on both legs which prevented all movement in his ankles. He fell and broke his leg while walking to his seat at the defendant Warner Theatre, a designated national historic landmark in Washington, D.C., built in 1924. Although the theatre had been renovated and modernized in the late 1980s, the descending slope of its aisle could not be altered because of the need to maintain sight lines and because any alteration would require destruction of the theatre’s historic floor in violation of Department of Interior guide-lines. Although defendant obtained a variance which brought the aisle’s slope into compliance with the applicable local building codes, the slope nevertheless violated the ADA Accessibility Guidelines setting out the maximum slope for interior ramps (36 CFR Pt. 1191, App. A, §4.8.2 (1999)). Plaintiff alleged that he fell because he could not negotiate the aisle’s slope, and that the slope’s violation of the ADA Accessibility Guidelines constituted evidence of the theatre’s negligence – indeed, plaintiff admitted that this was his only evidence of its negligence. The jury reached a verdict for plaintiff, awarding him $983,177.00.
Before the District of Columbia Court of Appeals, CM on behalf of the theatre argued that the ADA evidence should have been barred because the ADA is not a public safety statute – instead, the ADA is a civil rights statute intended to prevent discrimination against disabled persons. The language of the ADA specifically makes this clear. In 42 U.S.C. §12101, the ADA identifies its purpose:
- to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
- to provide clear, strong, consistent, enforceable standards addressing discrimination against in-dividuals with disabilities;
- to ensure that the Federal Government plays a central role in enforcing standards established in this Act on behalf of individuals with disabilities; and
- to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.
42 U.S.C. §12101(b) (emphasis added).
Looking to §12101(b), courts interpreting the ADA prior to Dalgliesh had uniformly found that its purpose is not protect public safety: “The Act is not a general protection of medically afflicted persons.” Christian v. St. Anthony Medical Ctr., Inc., 117 F.3d 1051, 1053 (7th Cir. 1997). Instead, the courts found that the ADA was not enacted to promote public safety, but to “prevent old-fashioned and unfounded prejudices against disabled persons.” Galloway v. Superior Court of the District of Columbia, 816 F. Supp. 12, 20 (D.D.C. 1993). See also, James v. Peter Pan Transit Mgmt., Inc., ___ F. Supp. 2d ___, 1999 WL 735173 at *9 (E.D.N.C. 1999) (“The ADA was enacted ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’ [citation omitted] Therefore, it is unlike that the North Carolina courts would find that the ADA is a safety statute or that violation of the ADA constitutes negligence per se.”). Moreover, 42 U.S. C. §12188, that provision of the ADA which provides for a private cause of action, does not provide for the award of monetary damages. The theatre argued that allowing plaintiffs to use evidence of ADA violations as evidence of negligence is thus nothing more than an impermissible “end run” around §12188 which could not be sanctioned by any court.
The Dalgliesh court rejected all of the foregoing authorities and held instead – without citation to case law or any other legal authority – that the ADA is a public safety statute and that the trial court properly allowed plaintiff to rely upon evidence of the theatre’s ADA slope violation as evidence of its negligence :
Ultimately, however, this case does not compel us to resolve the issue of evidentiary use statutes having no public safety objective, because it is evident to us that the ADA – and specifically the physical accessibility guidelines promulgated under it – possess such an aim.
* * *
What seems to us to be the obvious relationship between the ADA’s barrier removal requirement and the safety of a particular subportion of the public was well-stated by the trial judge in this case: “Obviously, if a handicapped person cannot safely use a facility or accommodation, access to the facility or accommodation is seriously compromised. This reality is closely akin to the actual denial of access, because if a person cannot safely use a building, then access to the building is significantly restricted. And restricted access can amount to discrimination.”
Since, as we conclude, the ADA standard governing ramps embodies a public safety objective, it satisfied any admissibility requirement of such purpose that can be gleaned from our decisions.
Dalgliesh, 765 A.2d at 991.
New York:
Lugo v. St. Nicholas Associates
The next court to consider the question was a trial court – the Supreme Court of New York County, New York in Lugo v. St. Nicholas Associates, et al., unpublished, Index No. 116012/2000 (July 10, 2003). In Lugo, plaintiff, a home-health care aide for a disabled person, slipped and fell in defendants’ lobby while lowering her patient’s wheelchair down two steps leading to the street entrance of the building. Plaintiff made no claim that defendants caused or created a defective condition on the steps or that defendants negligently maintained them. Instead, she alleged that defendants violated the ADA by failing to provide a wheelchair ramp and that this failure proximately caused her injury. Defendants moved for summary judgment on the ground that the ADA does not impose a standard of care applicable in state law negligence cases because it is not a public safety statute. The trial court denied defendants’ motion, expressly relying upon Dalgliesh:
[T]he court concludes that the ADA imposes
a standard of care applicable to this state law negligence action. While the ADA’s expressed, overriding purpose is to eliminate discrimination against individuals with disabilities (see 42 USC §12101[b]), the court finds that the ADA also has a public safety objective insofar as the statute addresses access to facilities by removal of physical barriers. As one court has reasoned: “Obviously, if a handicapped person cannot safely use a facility or accommodation, access to the facility or accommodation is seriously compromised. This reality is closely akin to the actual denial of access, because if a person cannot safely use a building, then access to the building is significantly restricted. (Theatre Mgt. Group v. Dalgliesh, 765 A.2d 986, 991 [DC 2001]). The ADA’s safety objective is further evidenced by the implementing regulations, which contain detailed specifications for the removal of physical barriers by means of ramps. [citation omitted]. Although no New York case has decided the issue, out-of-state cases are in accordance with this conclusion that the ADA imposes a standard of care. … Theatre Mgt. Group, 765 A.2d at 991.* * *
As the court thus concludes that the ADA imposes a safety standard, and that plaintiff falls within the class of persons entitled to its protection, the ADA may be raised as a standard of care for purposes of establishing negligence in this action.
Id. at pp. 5-7.
Plaintiff’s victory in Lugo was short-lived, however. The New York Appellate Court reversed and granted summary judgment to defendants. Although it did not specifically cite and distinguish Dalgliesh, the court reasoned that the ADA is not a public safety statute which can be used to establish the standard of care in a negligence action:
Since ADA’s purpose is to address issues of discrimination and not safety, the act should not be construed as setting a safety standard for stairs or walkways, even with respect to disabled plaintiffs. In light of the statute’s overriding purpose of eliminating discrimination against the disabled, and given that Congress did not include a private right of action even for direct and intentional discrimination, there is no discernible reason why the motion court, or any court, should use ADA as a safety standard to create new and wide-ranging liabilities on building owners. Turning ADA into a safety standard would, in effect, require building owners to refurbish buildings immediately or face potential tort liability to the disabled or persons associated with them for accidents occurring during their attempts to navigate steps into or out of a building, even though the steps may be perfectly proper and without defect.
There is nothing in ADA, or in the interpretation of the statute by a New York court, that would suggest its draftsmen intended to depart from traditional negligence principles and impose a new statutory duty on building owners.
Lugo, 795 N.Y.S.2d 227, 228-228 (N.Y. App. 2005) (citations omitted).
Ohio:
Stewart v. Lake County Historical Society, Inc.
The Ohio Court of Appeals has handed down the most expansive and plaintiff-oriented opinion on the question to date.
In Stewart v. Lake County Historical Society, Inc., --- N.E.2d ---, 2006 WL 2662726 (Ohio App. Ct. Sept. 15, 2006), plaintiff fell while walking down an outdoor access ramp on defendant’s premises. Although plaintiff was not disabled in any way and thus did not fall within the class of persons protected by the ADA, she alleged that the ramp’s slope exceeded ADA guidelines and that this failure to comply with the ADA proximately caused her fall. The trial court granted summary judgment to defendant, reasoning that, because plaintiff was not disabled, she could not use evidence of an ADA violation as evidence of negligence. The appellate court reversed in a split decision. The majority found that plaintiff could use evidence of an ADA violation as evidence of negligence despite the fact that she was not disabled:
It is unimaginable that a non-residential property owner, holding its premises open to the public, could construct poorly engineered ramps for its exits, in lieu of stairs, and escape liability because non-disabled persons use them. * * * [T]he evidence that the ramp failed to meet ADA criteria is evidence of negligence, which should have been construed in [plaintiff’s] favor.
Stewart, 2006 WL 2662726 at *3-4. The dissent, however, opined that because plaintiff “is not disabled and not entitled to the protections afforded by the ADA,” her “negligence claim cannot be based on a violation of the ADA.” Id. at *6. Notably, however, the dissent did not disagree with the majority’s general ruling that evidence of an ADA violation may be used as evidence of negligence. Id. at *6-7.
Conclusion
Although ensuring compliance with ADA regulations is critically important to business owners and their customers, state law premises liability actions are not the appropriate forum for such enforcement – particularly in cases such as Stewart, where the plaintiff is not disabled and thus not entitled to the ADA’s protections in any other context. As the New York appellate court pointed out in Lugo, allowing evidence of ADA violations to serve as evidence of negligence in premises liability actions not only creates a private right of action for money damages for ADA violations – something which the ADA itself does not provide – but it also exposes business property owners to potential unlimited tort liability. Given the conflicting case law on point, premises liability suits based on ADA violations arising in any jurisdiction should be challenged on precisely these grounds2. We will continue to monitor this important legal question and update our readers as new developments occur.
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1 This article is limited to the issue of the use of ADA violations as evidence of negligence, not negligence per se. Under the doctrine of negligence per se, the defendant’s violation of a statute designed to protect a certain class of people (including the plaintiff) conclusively establishes negligence and no further evidence of negligence is needed.
2 The author of this article briefed and argued Dalgliesh, supra. If you would like a copy of her brief, please contact her directly at mmurphy-petros@clausen.com.
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