It is universally agreed that the ADA does not create a private cause of action for damages, but that doesn’t mean an ADA violation won’t result in a judgment for damages. I was reminded of this by the November 4, 2013 decision in Christian v. United States, 2013 WL 5913845 (N.D.W. Va. 2013). In Christian the plaintiff was injured when she stepped into a storm drain which, she claimed, constituted a violation of the ADA accessibility requirements. She argued that this violation was prima facie evidence of negligence under West Virginia law. The District Court disagreed. It found that using ADA violations as prima facie evidence of negligence would in effect create a implied cause of action for damages that contradicted the ADA’s own provisions.
This is not by any means a universal conclusion with respect to state court negligence claims. A quick survey of ADA based negligence decisions revealed the following positions:
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ADA violations are some evidence of negligence in Ohio (Klostermeier v. In & Out Mart, 2001 WL 305827 (Ohio Ct. App. 2001).
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An ADA violation is prima facie evidence of negligence in Georgia, but may or may not create a private cause of action under Georgia law (compare, Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 295 (6th Cir. 1999) and Jenkins v. Wholesale Alley, Inc., 2006 WL 2716091 (N.D. Ga. 2006).
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An ADA violation amounts to per se negligence in Maine (Swiridowsky v. Kennebec Mental Health Ass’n, 2000 WL 33675676 (Me. Super. Sept. 5, 2000)) and in Delaware, at least for federal tort claims (Emerson v. United States, 1998 WL 231023 (D. Del. Apr. 29, 1998, considering the Uniform Federal Accessibility Standards)
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The ADA standards are evidence of the standard of care in the District of Columbia (Theatre Mgmt. Grp., Inc. v. Dalgliesh, 765 A.2d 986, 991 (D.C. 2001)) and New York (Lugo v. St. Nicholas Associates, 2 Misc. 3d 212, 216, 772 N.Y.S.2d 449, 453 (Sup. Ct. 2003) aff’d, 18 A.D.3d 341, 795 N.Y.S.2d 227 (2005)) but not in Florida (White v. NCL Am., Inc., 2006 WL 1042548 (S.D. Fla. 2006). It is an open question in Illinois (Beyers v. Vill. of Hawthorn Woods, 2012 WL 5342419 (N.D. Ill. Oct. 29, 2012))
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ADA violations are irrelevant to negligence claims in Pennsylvania (Levin v. Dollar Tree Stores, Inc., CIV.A.06-00605, 2006 WL 3538964 (E.D. Pa. Dec. 6, 2006)), California (Urhausen v. Longs Drug Stores California, Inc., 155 Cal. App. 4th 254, 270, 65 Cal. Rptr. 3d 838, 850 (2007)) and South Carolina (Olson v. Faculty House of Carolina, Inc., 344 S.C. 194, 207, 544 S.E.2d 38, 45 (Ct. App. 2001) aff’d, 354 S.C. 161, 580 S.E.2d 440 (2003), considering South Carolina’s accessibility law.)
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Compliance with the Texas equivalent of the ADA (the Texas Accessibility Standards) is evidence that a condition is not dangerous, (Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex. 2007) but a violation may not or may not be evidence that a condition is dangerous (see, Craig v. Beeville Family Practice, L.L.P., 2012 WL 1656492 (Tex. App. May 10, 2012) and Pena v. H.E. Butt Grocery Co., 2005 WL 2277500 (S.D. Tex. Aug. 22, 2005))
It would be foolish to predict how other states will treat ADA violations vis a vis state law negligence claims, and many of the available decisions are unpublished and from lower courts, but a narrow majority seems to be leaning toward treating the ADA standards as some evidence of a personal injury standard of care. The different outcomes usually turn on whether the court views the ADA narrowly as an anti-discrimination statute, or more broadly as a statute that generally protects those with disabilities and therefore has a safety component. How these considerations will play out as these case reach higher courts may be uncertain, but there is no doubt that the the use of the ADA standards as evidence adds an entirely new dimension to the risk a business takes when it fails to comply with the ADA or similar state and federal standards. It is one thing to face the risk of an injunction and judgment for attorneys fees and quite another to face a claim for personal injury damages and perhaps punitive damages as well.
Two final notes. There seems to be almost universal agreement that ADA and similar standards are only intended to protect those with disabilities, and therefore cannot be used by those without a disability. At the same time, those with disabilities may be less able to avoid injury from a loss of balance or other result from an accessibility problem, so the risk of injury is greater. Readers may also be interested in Willam Goren’s May 2013 blog, which looks in more detail at a few of these cases. It can be found at http://www.williamgoren.com/blog/?s=negligence.
