Before Farrell, Ruiz, and Reid, Associate Judges.
Appeal from the Superior Court of the District of Columbia (Hon. Reggie B. Walton, Trial Judge)
Farrell, Associate Judge: Plaintiff-appellee Dalgliesh, a partially disabled person, was injured when he fell as he began walking down an aisle ramp leading to his seat in the Warner Theatre. In his ensuing action for negligence against appellants Theatre Management Group, Inc. and LRW Theatre Group (both doing business as Warner Theatre Operating Group, J.V.), the jury awarded him $983,177.00 in damages. On appeal, the primary issue is whether the trial judge erred in allowing the jury to consider, as evidence of the standard of care, the fact that under the Americans With Disabilities Act (ADA) *fn1 and related regulations an interior ramp may not have a slope exceeding a ratio of 1:12, or one unit of rise for every twelve units of distance. Appellants contend that the decisional law of this jurisdiction prohibits use of such statutes and regulations to prove negligence unless they are laws designed to protect "public safety," and that the ADA, as an anti-discrimination law, does not meet that description. We conclude both that our decisional law is not so inflexible in this regard as appellants make it out to be and that, in any event, the ADA has an obvious safety component to the ends it is designed to serve. We therefore sustain the trial judge's admission of the ADA standard as evidence of the care required in the circumstances. We reject appellants' additional claim that the trial court erroneously failed to order a remittitur, and therefore affirm.
Dalgliesh suffers from Charcot-Marie Tooth Syndrome (CMT), a rare neurological disorder that causes the myelin - the coating of the nerves - in the arms and legs to deteriorate over time. As the myelin is lost, electric conduction through the nerves to the attached muscles slows down, generally resulting in progressive neurological impairment. Dalgliesh was diagnosed with CMT at the age of twenty, and at the age of thirty-five was fitted with MAFO braces for both legs. *fn2 The braces supported his feet and legs but prevented all movement in his ankles. By the time he was age forty-three, he was using a cane in addition to the braces. The immobility of his feet, combined with sensory problems in the feet, the MAFO braces, and the cane all made it difficult for him to negotiate uneven surfaces.
Viewing the evidence in the light most favorable to Dalgliesh, on March 18, 1994, he came to the Warner Theatre with four friends to attend a show. Entering the theatre some forty-five minutes before showtime, he and a companion, Bill Tucci, were directed to the far end of the lobby where they were met by a female usher named Heidi. Dalgliesh told her that he had a muscular disorder and would need assistance getting to his seat because he walked with a cane and wore MAFO braces. After Heidi left briefly and returned, he again told her it was important that he get help to his seat "because when I'm in crowds and . . . there are surfaces . . . I'm unsure of, I really like to have assistance." Heidi replied, "No problem. I'll take care of that."
Dalgliesh, Tucci, and Heidi waited in the lobby for Dalgliesh's other friends to park the car and join them. They talked about Dalgliesh's CMT, and at one point he showed Heidi the MAFO braces. When she asked what kind of help he wanted he replied, "I could have [Tucci] on one arm and you or someone else on the other arm as long as I have support on each side. Or, if you have a wheelchair of some sort . . ." Heidi said "No problem." By this time, according to Dalgliesh's testimony, he had asked Heidi for assistance three or four times and was confident she would provide it.
When the others arrived Dalgliesh beckoned to Heidi, who told the group to follow her into the auditorium, which by now was very crowded. As they entered the theatre Heidi turned and took the tickets from Tucci, then went down the center aisle and, after finding the seats, summoned the group to follow her. Since the house lights had begun to blink, Dalgliesh was anxious: "people were all around me. I didn't see any help. And I was concerned . . . I had asked for help. I had been told I was going to get it." He took a step forward on the aisle ramp and fell, landing on his right leg. He could feel the bone in his leg snap, experiencing pain more excruciating than he had ever felt. As he was carried out of the auditorium by paramedics, Heidi apologized to him saying, "I'm so sorry I didn't get you the help . . . I should have done more. I should have gotten you a wheelchair or something." Dalgliesh suffered a leg fracture from the fall that was very slow to heal and, in combination with the underlying CMT, resulted in his being permanently confined to a wheelchair.
At trial Dalgliesh presented expert testimony by an architect, Robert D. Lynch, that the slope at the top of the aisle ramp (where Dalgliesh fell) was 13.5 percent or a ratio of one unit of rise (or "vertical distance") to 4 units of "run" or level distance. *fn3 Lynch testified that uniform architectural standards for ramps going back to 1961 ("probably the oldest unchanged . . . accessibility standards" [Tr. 195]) establish "a run of 12 units [a ratio of one to twelve] as [the] maximum slope for a ramp." [Id.] Most recently, he stated, the Accessibility Guidelines for Buildings and Facilities promulgated under the ADA specify a "one in 12 slope" as the "maximum allowable [ratio]" for ramps [Tr. 196, 199]. In Lynch's opinion, the ramp at the point where Dalgliesh fell "significantly" exceeded "maximum ramp slopes . . . contained within the [ADA] and/or the architectural guidelines which supplement and apply to [it]." [Tr. 236] Although Lynch recognized that "the basic nature of the geometry of the theatre" meant that the ramp slope could not be altered [Tr. 238], *fn4 he testified to specific steps - installation of handrails, warning signs, or an alternative entry route into the auditorium - that in his view appellants could reasonably have taken to provide safe access for someone with Dalgliesh's condition.
Appellants objected to any evidence about the ADA and its accessibility standards on the ground that the ADA is not a "public safety" statute and thus its specifications could not provide evidence of the standard of care in what they term this "garden variety" negligence action. The trial judge disagreed. Besides instructing the jury on a landowner's common law duty of care in the circumstances to keep premises safe and warn invitees of hazardous conditions, he instructed it that the ADA and its accompanying regulations "set[ ] forth a standard of conduct" which it could consider in deciding whether appellants were negligent. On appeal, appellants renew the argument that in this jurisdiction only public safety laws can furnish proof of the standard of care in a negligence suit, and that the ADA does not fit that description. *fn5
Dalgliesh makes no claim that the trial judge erred in refusing to instruct that violation of the ADA would amount to negligence per se on appellants' part. See, e.g., Ceco Corp v. Coleman, 441 A.2d 940, 945 (D.C. 1982). *fn6 Rather, in defending admission of the ADA evidence, his primary argument is that this court has never tied evidentiary use of a statute or regulation - as distinct from per se liability based on violation of it - to the "public safety" nature of the enactment. He points particularly to Rong Yao Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268 (D.C. 1987), where we canvassed the law on the relation between negligence and a regulatory standard and stated that, "even where the court does not perceive ...