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.