December 2007 Attorney Blog

LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
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Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
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LIABILITY UPDATE
December 28, 2007

In Urhausen v.Longs Drug Stores California, Inc. 2007 Daily Journal D.A.R 14503, the First Appellate District of the California Court of Appeal held that disabled access regulations governing the slope of parking spaces were not intended to provide a cause of action for disabled persons who have suffered physical injury, but to persons who have been denied the same access to public facilities as persons without a disability.

As a consequence of a neuromuscular condition, plaintiff has used crutches for over 30 years. In September 2002, plaintiff drove to an unenclosed shopping center in Martinez owned by defendants Patty and George Ogino and managed by defendant David H. Malcolm & Associates (hereafter jointly referred to as Malcolm). She parked in front of a drugstore run by defendant Longs Drug Stores California, Inc. (Longs). The parking space was one of several located directly in front of the drugstore, all of which dead-ended against the curb of the sidewalk that ran along the frontage of the store.

At the time of the incident underlying this lawsuit, plaintiff possessed a disabled person parking placard entitling her to park her vehicle in spaces reserved for the use of disabled persons. Although the right-hand disabled access parking space was not occupied by a vehicle, plaintiff, as was her habit, chose not to park in that space but took the ordinary parking space immediately adjoining it. As she emerged from her vehicle, therefore, she was standing in the disabled access space. After lifting her crutches from the vehicle, she headed for the entrance of the drugstore. Within eight inches of the curb at the head of the disabled access parking space, before she had begun to step up onto the sidewalk, plaintiff fell backwards. The fall severely fractured her wrist, and she remained on the ground until taken away by ambulance to the hospital.

Plaintiff filed suit against defendants, alleging negligence per se, and denial of equal access under the California’s Disabled Person’s Act (DPA) (Civil Code section 54, et seq.). The trial court granted defendants’ motions for judgment on the pleadings. Plaintiff appealed, and the Court of Appeal affirmed.

Plaintiff contended that the trial court improperly granted judgment for defendants on her DPA and negligence per se claims. She claimed that she was denied full and equal access to the Longs store because the disabled access parking space and the adjacent aisle did not comply with slope regulations applicable under the DPA. In the area of plaintiff's fall, from a distance of eight inches to the curb, the slope was measured as 18.75 percent. The applicable regulations governing disabled access parking spaces permitted a maximum slope of 2 percent in any direction. (Cal. Code Regs., tit. 4, § 1129B.3, subd. 4.) Plaintiff contended that this noncompliant slope caused her to fall backward. Plaintiff also presented evidence that the cross‑hatched access aisle between the disabled access parking spaces failed to comply with applicable regulations.

The appellate court observed that Sections 54 through 55.2 are intended to secure to disabled persons the “same right as the general public to the full and free use” of facilities open to the public. (§ 54, subd. (a).) “Full and equal access” is defined by section 54.1 to mean access that complies with the regulations developed under the federal Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12111-12117), or under state statutes, if the latter impose a higher standard. (§ 54.1, subd. (a)(3).) “ ‘Access’ refers not only to entry into a building but, more broadly, to the use of all facilities made available for general public use, such as restrooms, parking, and fixtures within a building.”

The court noted that the private cause of action provided by section 54.3 has not been extensively considered by our courts, and that the leading case is still Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168 (Donald). Donald held that section 54.3 incorporates what is, in effect, a standing requirement. As the court explained, “to maintain an action for damages pursuant to section 54 et seq. an individual must take the additional step of establishing that he or she was denied equal access on a particular occasion. . . . For example, let us take a restaurant that is required to have 100 percent of its dining area accessible to the handicapped, but in fact only 90 percent of the dining area meets this standard. If a handicapped individual is readily seated and served in the 90 percent primary dining area which meets all handicap access requirements, then he or she would not have a cause of action for damages for denial or interference with admittance pursuant to Civil Code section 54.3, but an individual or a designated public agency could pursue an action under one of the enforcement provisions to bring about full compliance by the restaurant.” The court noted that subsequent cases have recognized this standing requirement, “at least implicitly.”

Plaintiff Urhausen argued that she satisfied the standing requirement because the sudden increase in slope near the curb caused her to fall, thereby preventing her from entering the store. “While we recognize that the failure of the parking space to comply with slope requirements was the cause of plaintiff's injury, and therefore a cause of her failure to reach the entrance of the drugstore, we do not believe that this is sufficient to demonstrate that plaintiff was denied equal access to the store. The phrase ‘denied equal access’ necessarily implies that either the structure of the public facility, or some policy of its operator, precluded equal access. It is undisputed, however, that Longs provided access to its entrance by way of an aisle, curb cut, and ramp installed for the particular use of the disabled. Because this means of access was at all times available for plaintiff's use, she cannot demonstrate that she was denied equal access to the store without demonstrating that this route, too, was inadequate. By her own acknowledgment, however, she was fully capable of negotiating a typical disabled access ramp. It was plaintiff's injury, and not the physical configuration of the store, that prevented plaintiff from entering. Accordingly, she was not denied equal access to the store; rather, she was unable to enter as a result of her fall.” (Emphasis in the original.)

Plaintiff next argued that she should have been permitted to use the disabled access parking space slope regulation as the applicable standard for negligence under the doctrine of negligence per se because the regulation was promulgated for the protection of disabled persons in accessing public facilities. The court rejected this argument as well.

While the requirement of an essentially level surface undoubtedly eases the transition even for the ambulatory disabled, such as plaintiff, it was particularly intended to accommodate wheelchair users, who require a level surface on which to rest a lift or ramp. The level surface is therefore intended to facilitate the use of mechanized means of vehicle entry and exit and minimize the accidents that a greater slope or irregular surface might cause, such as a loss of balance or unintended movement of a wheelchair.

Given this intent, the court concluded that, for at least two reasons, the slope regulation was not designed to prevent the type of accident suffered by plaintiff. “First, the regulations were not designed to prevent injury to persons crossing the parking space or curb on foot. As noted above, the regulations anticipate that disabled persons will use the aisle, curb cut, and ramp to enter the store, not that they will step up onto the curb. Necessarily, the regulations anticipate that when the parking space is being used by a disabled person, a vehicle will be parked there, preventing persons from stepping onto the curb. Second, the requirement of a level surface was designed primarily to facilitate the use of wheelchairs and mechanized loading devices, not to make it easier to cross the parking space or aisle. As the considerably steeper access ramp slope requirement demonstrates, it is not necessary to impose a 2 percent slope to allow disabled persons to cross the parking space and aisle.”

----Andrea Lynn Rice