Wal-Mart Held Liable To Disabled Shopper For 'Negligence Per Se' - It Failed To Comply With ADA

27 Jul 2007

U.S. Court of Appeals, 6th Circuit. Smith v. Wal-Mart Stores, Inc., No. 97-5313. January 27, 1999.

Where a disabled shopper fell and broke her neck in a Wal-Mart bathroom that wasn't handicapped-accessible, she can sue the store for negligence per se for failing to comply with the ADA, says the Sixth Circuit in interpreting Georgia law.

This appears to be the first decision in the country to hold that a lack of handicap accessibility is per se negligence in a slip-and-fall case.

If this opinion stands the test of time there may be a new day dawning for the traditional slip and fall case, at least where the injured victim is disabled within the meaning of the ADA (Americans With Disabilities Act).

More than half of the states allow claims for negligence per se. Negligence per se is a concept that eliminates the need to prove some of the difficult elements required in the typical slip and fall case.

The decision gives plaintiffs who can't get compensatory damages under the ADA a chance to recover for their injuries.

Title III of the ADA prohibits disability discrimination in "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." (42 U.S.C. Sect. 12182(a).)

Plaintiffs who sue under Title III can get injunctive relief and attorney fees, but not money damages.

If the Department of Justice sues on someone's behalf, civil penalties of up to $50,000 for the first violation and $100,000 for the second are available. However, such cases are rarely brought.

Under the Sixth Circuit's ruling, plaintiffs can, in effect, get damages for a violation of Title III by suing for negligence per se under state law. This makes it more attractive for disabled plaintiffs to sue.

The risk of damages under state tort law could encourage defendants who know they aren't complying with the ADA to settle quickly.

Using the reasoning of this decision a claim for negligence per se could be brought any time a disabled person is injured because a "place of public accommodation" isn't handicapped-accessible.

Some examples of lack of accessibility might include a ramp that is too steep or lacks a non-slip surface, railings on ramps that aren't long enough, and buildings that don't have visual as well as audible fire alarms. Places of amusement, such as theme parks, would come within the logic of the opinion in addition to retail establishments.

In theory, a claim could also be brought if a plaintiff in a wheelchair is injured trying to reach something that's too high, like a water fountain.

The plaintiff in the Sixth Circuit case was a disabled 74-year-old woman with a walker who was shopping at Wal-Mart. She went to use the bathroom, but the closest one wasn't handicapped-accessible, the stall wasn't big enough to fit her walker, and it didn't have grab bars. The plaintiff lost her balance and fell, breaking her neck. She is now a quadriplegic living in a nursing home.

Under the ADA regulations, "[a] public accommodation shall remove architectural barriers in existing facilities...where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense." (28 C.F.R. Sect. 36.304 et seq.)

"Readily achievable" modifications include "installing grab bars in toilet stalls" and "rearranging toilet partitions to increase maneuvering space," according to the regs.

The plaintiff sued Wal-Mart for negligence per se based on its failure to comply with the ADA.

The district court granted summary judgment for Wal-Mart. It said that the plaintiff couldn't base a negligence per se claim on a violation of the ADA because Congress didn't provide a damages remedy for violations of Title III.

But the Sixth Circuit reversed. It held that the ADA "may...impliedly provide a cause of action under state law for individuals harmed by violation of the federal statute...[The] ADA contains no provision barring application of it as the basis for a state cause of action...

"[W]e believe that if the Georgia Supreme Court were faced with the facts of this case, it would conclude (1) that whether Wal-Mart was in violation of the ADA by not installing grab bars in the toilet stall used by plaintiff, and thus was negligent per se, is a question for the jury, and (2) that [the plaintiff] has a private right of action against Wal-Mart under Georgia law for its failure to implement any ADA-mandated requirements designed for the protection of persons such as herself."

A dissenting judge complained that "[t]he import of the majority's holding is that a jury is free at any time to conclude that a defendant is negligent not only if every public toilet but also every stall in every public toilet is not equipped with grip bars and otherwise made handicapped-accessible."

The decision relieves P.I. lawyers of having to prove that the plaintiff's injury was foreseeable. (However, as with any negligence claim the plaintiff's recovery could still be affected by his or her comparative negligence.)

The ruling will also encourage places of public accommodation that aren't already complying with the ADA to do so.