A mobility impaired person uses a motel. It turns out that motel does not meet the ADA guidelines for architectural accessibility. As a result, a person suffers personal injuries as a result of that inaccessible feature. Or, a person goes to a theater and despite asking for help from theater personnel does not receive any. It turns out, that the theater also does not meet ADA architectural accessibility standards and as a result of that particular standard not being met, the person suffers severe personal injuries. Can both of these individuals bring a cause of action for personal injuries alleging that the motel or theater was negligent because they did not meet the ADA architectural standards? The answer in both of these cases is yes though they get there in different ways using different theories.

The motel case is Val D’Aosta v. Cross 526 S.E.2d 580 (Ga. App. 1999). Georgia law requires that any facility used by the public constructed or renovated after 1995 must meet ADAAG standards for accessibility. If construction or renovation occurred after July 1, 1984, but before July 1, 1987, that construction or renovation has to comply with the American National Standards Institute specifications A117.1-1980 or A117.1-1986 for making buildings and facilities accessible to and usable by people with disabilities. If construction or renovation occurs after July 1, 1987 but before July 1, 1995, the construction or renovation has to comply with the American National Standards Institute specifications A117.1-1986 for making buildings and facilities accessible to and usable by people with disabilities. Ga. Code § 30-3-3 (Current Through the 2012 Regular Session). Violation of these standards is a misdemeanor. Ga. Code §30-3-8 (Current Through the 2012 Regular Session). Georgia also has a negligence per se statute that allows an injured party to recover damages for breach of legal duty whenever the law requires a person to perform an act for the benefit of another. Ga. Code § 51-1-6 (Current Through the 2012 Regular Session).

In Val D’Aosta, the Georgia Court of Appeals held that the plaintiff could proceed with a negligence per se claim because: 1) the accessibility standards were mandatory and imposed a continuing obligation at the risk of criminal penalties for noncompliance on the owner and therefore, the owner would be deemed to have superior knowledge over the plaintiff about whether the accessibility standards were violated; 2) the statute and regulations created a factual question as to whether these particular statutes and regulations were intended to protect the class of persons from certain risk of injury; and 3) a factual question existed as to whether the violation of the statute and regulation pertaining to accessibility constituted the proximate cause or a concurrent proximate cause of any injury and damages. Val D’Aosta 526 S.E.2d at 584-585. The superior knowledge piece of this opinion is a bit confusing as the case that the majority cites to, Alterman Foods, Inc. v. Ligon, 272 S.E.2d 327 (Ga. App. 1980), is clearly distinguishable since it dealt with a foreign substance and not with premises liability. Nevertheless, whether the owner has superior knowledge in a case like this is clearly in play as pointed out by the vigorous dissent in Val D’Aosta of Presiding Judge Andrews when he cites to Parks-Nietzold v. J.C. Penney, Inc., 490 S.E.2d 133 (Ga. App. 1997).

So, how do you make sense of the Georgia situation. First, it bears noting that negligence per se may vary from state to state. That is in some states, it is possible that if you can show a violation of the statute, that the statute was meant to protect the person from certain risk of injury, and that the violation was the proximate cause of the injury, the plaintiff automatically wins. In other states, such as Nevada, all this would do is get you a presumption which the defendant can rebut if they can show a good reason as to why the statute or regulation not complied with in this individual case. Barnes v. Delta Lines, Inc. 669 P.2d 709, 710-711 (Nev. 1983). Therefore, you want to check your state law and how it deals with negligence per se. Second, in Georgia, you might be able to argue that superior knowledge is part and parcel of the negligence per se case. It is also possible that you might be able to argue that superior knowledge just goes to causation and not to whether the duty was breached at all. Complicating matters further is Georgia Code § 51-11-7 which provides, “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” Georgia Code § 51-11-7 (Current Through the 2012 Regular Session). Therefore, in GA, if a person suffers injury as a result of the accessibility standards not being complied with, the person bringing a personal injury cause of action is going to have to show a myriad of things: 1) knowledge of noncompliance that is not superior to the owner; 2) violation of the statute or its regulations and its proximate cause of injuries; 3) plaintiff was meant to be protected by the statute or regulations from the injuries resulting from that violation; and 4) plaintiff exercised ordinary due care to avoid the injury. The superior knowledge requirement and the plaintiff being required to exercise ordinary care would seem to go a long way court preventing the person with a disability with superior knowledge of ADA architectural standards from recovering for personal injuries should they be injured by a facility that is not in compliance with the ADA standards. Nevertheless, in GA anyway, a plaintiff that suffers injuries as a result of ADA noncompliance with the architectural standards, will have a cause of action for personal injuries under Georgia law, but proving it up will not be an easy task.

There is another possibility, which is the approach taken by the District of Columbia Court of Appeals in the theater case mentioned above, Theater Management Group, Inc. v. Dalgliesh 765 A.2d 986 (D.C. App. 2001). In that case, the approach the District of Columbia Court of Appeals took was to say that the architectural standards can be used not to show negligence per se but to show the standard of care. Id. at 991. Depending upon how your jurisdiction goes about the concept of negligence per se, the distinction may be theoretical rather than practical. Thus, if you are in a Theater Management Group, Inc. type of jurisdiction, the analysis for proving negligence may go like this: 1) was there a duty owed (ADA architectural standards); 2) was there a breach of duty (were the ADA architectural standards not complied with); 3) was the breach of duty the proximate cause of the injuries (actual and legal cause); and 4) were there damages. In short, call it what you want, but it it would seem that under traditional negligence per se concepts and under Theater Management Group, Inc. approach you would get to the same place though the concepts being used are not precisely the same.

Finally, you might argue that there are good policy reasons as to why personal injury plaintiff attorneys need to get involved. By getting involved, they would increase accessibility for persons with disabilities, through principles of spreading the loss, because the owners of the facilities would be at risk of facing damages suits rather than just injunctive relief and attorneys fees, which are the options entitled to a person alleging violations of title III of the ADA. Also, personal injury plaintiff attorneys are used to dealing with things on a contingency fee basis. Would such suits be easy? The answer is depending upon the jurisdiction, such suits may be very complicated, but nevertheless suits would be meritorious and may be worthwhile proceeding with depending upon the facts.

15 Responses to Negligence/negligence per se and title III of the ADA: Opportunity for personal injury attorneys to expand their practice

Great information and detail about the case. I wonder how many people don’t begin a personal injury case against a place such as a movie theater. They might see the actions they need to take (mentioned in the four steps in the article), feel intimidated, and decide to just deal with the injury.

Great comment. It may be that. However, I think it is more likely that people are just not thinking about other possibilities of pursuing matters. Also, people may be intimidated about a new area of law. However, that should not be a barrier because putting on such a case as the one I am proposing necessarily assumes hiring a person who is an expert in the ADA requirements.

If a owner of a restaurant gets sued by an individual with a disability, and the owner has liability insurance the covers personal injury is the insurance company obligated to compensate for the loss of revenue created by the suit along with the costs for remediation? I know of one case where the insurance company claimed there was no physical injury.

Welcome to the blog!

These things are a matter of contract between the insured and the insurer. That said, you wonder what the facts are. For example, is it a situation where a person with a disability is claiming the place was not accessible? Or, is it a situation where a person with a disability was injured or had pre-existing injuries aggravated because he or she tried to access an inaccessible place? I could see the answer being different depending upon the facts. Any litigators care to weigh in?

I am searching for a recent federal court charge re. ADA per se negligence concerning a narrow isle bordered by a drop off at a retail store. Does anyone have one I can study?

Thanks for sharing those worthy information dear William Goren. 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. 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.

Best Regards,
Jasper Alistair
Medical Negligence Claims

Thank you for contributing to the blog. You make a very valid point. However, utilizing ADA standards as a basis for personal injury liability does not, to my mind, turn the ADA into a safety standard. Again, if a place of public accommodation was built after 1992, there were certain architectural requirements that have to be in place. While standards have evolved over time, those standards do exist. All this case line of thinking is proposing is that where a standard is not complied with and a person is injured, that standard could be used as the basis for a negligence per se action. That is, there already existed an obligation to comply with the architectural guidelines when the building was built or renovated and it is foreseeable that a person could be injured if those standards were not followed. Also, it could work the other way too. That is, complying with the architectural standards might be a safe harbor in any subsequent action.

In your opinion could ADA violations be used by a non-disabled party as a basis for a Negligence Per Se action, or at least to help show that the property owner’s breached their duty of reasonable care ? For example, if a non-disabled Plaintiff is injured while using a handicap access ramp that is not in compliance with the ADA, can the non-disabled party use the ADA violations as a basis for a Negligence Per Se action, or at least to help show the property owner’s breached their duty of reasonable care ?

Thanks for posting! It is an excellent question. States can vary in terms of how they apply negligence per se rules and what it means in terms of liability or a presumption. That said, as a general matter, the question would come down to whether the person injured was meant to be in the class protected by the statute, in this case the architectural guidelines of the ADA. So, I would want to know more about why the person elected to go down the ramp. For example, regardless of whether they had a disability, might they have trouble with stairs?

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