The Circuit Court of Maryland for Montgomery County issued an opinion in late 2004 addressing potential liability claims against a commercial business pursuant to the Americans with Disabilities Act. While ADA claims are not new, the factual dispute giving rise to the case is both new and subject to repetition.

Katherine Savage was shopping at a local mall when a fire alarm was activated. All customers were instructed to evacuate the department store within the mall where she was shopping. Because of a juvenile rheumatoid arthritic condition, Savage was required to use a wheelchair. However, because the mall's elevators were inoperable and all other exits required the use of stairs, she was unable to escape until the emergency was over. In the interim, Savage was left alone by the store employees, unable to remove herself from the perceived emergency.

Following her ordeal, Savage sued both the mall and the department store for negligence and for violations of the ADA, in an effort to ensure that other citizens with disabilities would not be faced with a similar situation. In response, the department store filed a motion for summary judgment, which basically asked the trial judge to dismiss the case based on the alleged uncontroverted facts and existing case law.

In reviewing the motion for summary judgment, the court first addressed the plaintiff's negligence claim, noting that in Maryland, a business owner owes a store patron “a duty to use reasonable and ordinary care to keep the premises safe and to protect the invitee from injury caused by an unreasonable risk which the invitee [the store patron], by exercising ordinary care for his safety, will not discover,” as decided in Southland Corp. v. Griffith, 332 Md. 704, 633 A.2d 84, 89 (1993).

Whether or not a store employee has “knowledge of the injured invitee” was identified by the trial judge as the triggering event giving rise to a store's duty to provide aid. Because Savage was shopping in the department store when the evacuation occurred “and the danger presented itself,” the trial court ruled that the department store should have had knowledge of Savage, and therefore a duty to help her. Finding a duty owed to Savage by the department store, the court then ruled that whether or not the defendant knew or should have known that Savage would be unable to exit the mall because of the mall's inoperable elevators was a question of fact that should be answered by a jury.

The trial court then addressed, in detail, Savage's ADA claims, which included an allegation that the department store failed to design evacuation procedures that complied with Title III of the act. Before ruling on the merits of these claims, the court first held that although the plaintiff did not suffer a specific injury as a result of being left alone within the store during the evacuation, the fact that she may have been injured by the department store's evacuation policy allowed her to seek relief for the alleged ADA violations. The court further ruled that because the department store had a written policy addressing evacuations, there was a likelihood of future harm as a result of repetitive occurrences, and therefore Savage again had standing to file her ADA claims.

With respect to the merits of the plaintiff's claim, the court noted that Section 302 of the ADA makes it illegal for a corporation “to fail to make reasonable modifications in policy, practices, or procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations.” Case law suggests that the requested modification must be reasonable, as determined in Johnson v. Gabrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997).

The department store's main argument was that the emergency evacuation plan did not violate Title III because there are no specific Title III rules concerning the contents of an emergency evacuation plan. Savage relied on Martin v. PGA Tour, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) in opposition. Martin involved a PGA Tour golfer with a disability who sued the PGA for not allowing him to use a golf cart during tournaments. In that case, the U.S. Supreme Court ruled that even though there was not a specific Title III violation, Title III does require that any “‘policies, practices, or procedures’ of a public accommodation be reasonably modified for disabled ‘individuals’ as necessary to afford access unless doing so would fundamentally alter what is offered.” Therefore Title III of the ADA had been violated.

The Maryland court held that based on the reasoning in Martin, Title III does apply to policies of a public accommodation. The court noted that while “policies” is not defined in Title III, a store's nationwide evacuation procedures would certainly constitute a public accommodation's “policies”. As a result, the court held that Title III of the ADA would apply.

The department store argued that changing its emergency evacuation plan would constitute an unreasonable modification that would “fundamentally alter the nature” of its services. Savage disagreed and pointed out that she had made modification suggestions to the defendant throughout the case. The department store countered that the modifications suggested would not be reasonable because they would impose too many administrative burdens, such as coordinating all of its 600-plus stores and negotiating new lease terms with a corresponding number of landlords. The court pointed out that the number of department stores that did not have proper exits for the disabled would be considerably less than the total number of stores owned by the company, which would in turn ease the company's “administrative burden.”

In conclusion, the court held that while it was certain that Title III of the ADA applied to the situation involving Savage, there were a sufficient number of facts set forth by both sides regarding the issue of whether the specific evacuation plan did in fact violate Title III. Because both sides raised issues and evidence that could satisfy their respective burdens, the court denied the defendant's motion to dismiss the complaint so as to permit the case to be presented to a jury.

Although the ruling is from a trial court judge in the state of Maryland and has limited value as a legal precedent, several organizations that champion rights for disabled people are applauding this decision. In a press statement, the National Organization on Disability pointed out that a court, for the first time, “has declared that the American's with Disabilities Act requires a place of public accommodation to consider the needs of people with disabilities in developing an emergency evacuation plan.” The group advocates that this ground-breaking decision “means that shopping malls, stores, restaurants, movie theaters, museums, and other private entities subject to the ADA throughout the country, whether landlords or tenants, must now seek to accommodate people with disabilities in the development and modification of emergency evacuation procedures.”

While this decision appears only to apply to private businesses, there are significant implications for the public sector as well. First, many public buildings have escape or egress routes inaccessible to wheelchair users. Public entities must make sure that their own buildings are in order prior to enforcing building and fire codes. Second, fire inspectors must begin looking at fire codes more closely from an ADA perspective. Many fire codes require the formation of the egress plan for assembly occupancies, high-rise buildings or residential-care facilities. For example, Chapter 4 of the International Fire Code, 2003 Edition, requires approved fire safety and evacuation plans for assembly, educational, high-hazard, institutional, specified residential, high-rise, mercantile, covered mall and underground building occupancies.

NFPA 101 requires that an evacuation plan should include procedures for reporting emergencies, procedures for emergency response, and details for fire drills within the building and the building's fire protection systems. The plan must be reviewed and updated as required by the authority having jurisdiction. While many fire evacuation and safety plans must be detailed to comply with the code, the current codes do not expressly address alternative evacuation measures for handicapped people.

Fire departments that are approached by building owners and occupants must be prepared to assist in creating and reviewing evacuation plans for those people with disabilities. This effort should be coordinated with the fire department's pre-plan process as well. In examining buildings, firefighters must look for building obstacles that would limit mobility. Signage must be examined and updated to reflect exit ways to those people who may not be able to use the closest exit. Safe areas must be identified and marked.

Firefighters also must determine how handicapped occupants will be removed from buildings, especially if the structure is multi-story and the elevators can't be used. Firefighters must make concerted efforts to determine, in advance, whether mobility-restrained people are residing in or are likely to be located within the building. Also, don't forget to train with the owners and occupants of the building so that the fire department will be prepared if and when a real emergency occurs.

Finally, political subdivisions must look at their own disaster and emergency response plans to determine whether the needs of the mobility-impaired have been met. Fire departments and emergency managers must be cognizant of the impact those with disabilities may have on large-scale operations. Last year in Florida, hundreds of senior citizens with medical conditions required special assistance following the state's four hurricanes. This year, Florida is putting great emphasis on being better prepared to handle these types of challenges.

The decision issued in the Maryland Circuit Court has limited precedent. Yet, disabilities-rights advocates are heralding the decision as a means to have a lasting impact on improving safety. Fire inspectors, fire chiefs and heads of political subdivisions must begin to think proactively in approaching public fire and emergency protection. If you don't, a judge may do it for you.

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David C. Comstock Jr., CFOD, is an attorney specializing in fire litigation and the defense of government entities, including fire departments. He's also chief of the Western Reserve Joint Fire District, Poland, Ohio.