Val D'Aosta Co. v. Cross

526 S.E.2d 580, 241 Ga. App. 583, 2000 Fulton County D. Rep. 71, 1999 Ga. App. LEXIS 1592

• Court: Court of Appeals of Georgia
• Decided: December 3, 1999
• Docket: A99A1033
• Status: Published

Opinions

Eldridge, Judge.

This case is a premises liability action, involving a user with disabilities in a wheelchair. The issue presented is whether mere prior use by the disabled person gives her equal knowledge to the owner/ occupier of a specific static defect that the regulations and guidelines prohibit as dangerous, when the owner/occupier is under a continuing statutory mandate to provide a safe handicap access ramp, defect-free and compliant with detailed regulations and guidelines to protect the disabled in use of the ramp, and when, in fact, the ramp is non-compliant, creating a static dangerous defect specifically prohibited by the regulations. We find that the owner/occupier has superior knowledge under such facts and circumstances.

Plaintiff Roberta Cross, who is confined to a wheelchair by arthritis, stayed at a motel owned and operated by Val D’Aosta Company. To gain access to her room, Cross had to use one of two disability access ramps, and the ramp nearest her room had a leading edge without beveling where it met the parking lot surface and had a difference in levels between the ramp and the surrounding parking lot that was greater than one-quartér inch, creating a ramp lip. Such conditions constituted non-compliance with the American National Standards Institute (“ANSI”) standards, as testified to by plaintiffs’ architect-expert witness by affidavit. This ramp was ascended and descended several times by Cross in her wheelchair with assistance from relatives during her stay without a problem. On return to her room, while being pushed by a relative, the front wheels of the wheelchair caught on the ramp lip for the first time, turning the front wheels so that they stopped moving forward and throwing Cross out of the wheelchair and injuring her. The specific guidelines and regulations prohibited the small lip between the ramp and the walk to prevent this very risk of just such occurrence.

Val D’Aosta Company contends that the trial court erred in denying its motion for summary judgment. We do not agree.

As a matter of law, Val D’Aosta Company, as owner of a place of public accommodation and a public building, had knowledge of the condition of the disabled access ramp that was superior to the knowledge of the plaintiff, as a person with disabilities who had merely used the ramp previously. This is because OCGA § 30-3-8, with criminal sanctions for non-compliance, mandated compliance with any regulation promulgated under OCGA § 30-3-1 et seq. by the owner/ occupier and required specific knowledge of the condition of the ramp and its compliance or non-compliance by the owner/occupier. ANSI specifications A117.1-1986 and the Americans With Disabilities Act Accessibility Guidelines for Buildings & Facilities constitute the regulations with which the public building owner/occupier must comply to avoid criminal sanctions and know for the protection of the elderly and persons with disabilities.¹ As owner/occupier of this motel, Val D’Aosta Company had such superior knowledge through its employees, because the mandate applied to “[a]ny person, firm, or corporation who violates this chapter.” OCGA § 30-3-8. Clearly, a jury issue arises that Cross came within the definition of a person with disabilities, being wheelchair-confined by her musculo-skeletal condition.²

Under the first of the two prongs of Alterman Foods v. Ligon, 246 (272 SE2d 327) (1980), the owner/occupier must have superior knowledge of the static condition on the premises that is alleged to create a dangerous defect as well as be negligent in creating or maintaining such condition. As to the superior knowledge aspect of this first prong, the statutes and regulations satisfy such requirement by mandating such knowledge in the owner/occupier as set forth in the guidelines and regulations. See Davis v. GBR Properties, 233 Ga. App. 550, 553-554 (1) (504 SE2d 204) (1998) (Eldridge, J., concurring specially); Flournoy v. Hosp. Auth. of Houston County, 232 Ga. App. 791, 794 (504 SE2d 198) (1998) (Eldridge, J., concurring specially). Thus, the owner had superior knowledge over a disabled person’s prior use.

To recover, the plaintiff must show at trial that the statutes and regulations were intended to protect the class of persons from certain risk of injury and that she came within the ambit of the act, protecting her from the prohibited acts or omissions of the defendant. See Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 624 (3) (385 SE2d 725) (1989). The facts and circumstances of this case create a factual issue as to the existence of negligence per se, because a jury must determine whether a violation of the statutes and regulations occurred and whether such violation constituted the proximate cause or a concurrent proximate cause of any injury and damages. See Keith v. Beard, 219 Ga. App. 190, 192 (1) (464 SE2d 633) (1995). “To prevail on a negligence per se claim, a causal relation between the violation of the statutory duty and the injuries sustained thereby must be shown. [Cit.]” Walter v. Orkin Exterminating Co., supra at 624. See also Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (1) (333 SE2d 829) (1985). As to the second prong of Alterman Foods, under the facts of this case, Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997), such holding directs that a jury issue exists as to the exercise of ordinary care for her own safety by the plaintiff under the circumstances, getting the case past the motion for summary judgment. See Flournoy v. Hosp. Auth. of Houston County, supra at 792-793; see also Davis v. GBR Properties, supra at 552-553. Thus, the trial court properly denied the motion for summary judgment.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., and Smith, J., concur. Andrews, P. J., Pope, P. J., and Ruffin, J., dissent.

1 OCGA § 30-3-2 (1), (3); see also Americans With Disabilities Act (“ADA”), 42 USCS § 12101 et seq., Pub. L. No. 101-336, Title II, § 209 (104 Stat. 337) (1990); 36 CFR § 1191, App. A, pp. 648, 694-697 (1994); 47 FR 1393, 1396.

2 OCGA § 34-6A-2 (3), (5), (7), and (8) must be construed in pari materia with OCGA § 30-3-1 et seq. to define a person with disabilities. See also 42 USCS § 12102 (2); 29 CFR § 1630.2 (h); 34 CFR § 104.3 (j) (2) (i); Torcasio v. Murray, 57 F3d 1340, 1353-1354 (4th Cir. 1995).