PRECEDENT-SETTING
DECISION ON EMERGENCY EVACUATIONS FOR PEOPLE WITH DISABILITIES ISSUED
IN MARYLAND
For the first time, a court has declared that the Americans with
Disabilities Act (the ADA)
requires places of public accommodation to
consider the needs of people with disabilities in developing emergency
evacuation plans. This groundbreaking decision - issued on December 28,
2004 by Judge John W. Debelius III of the Circuit Court for Montgomery
County, Maryland - 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.
"This is a significant decision that should greatly enhance the safety
of persons with disabilities in the post-September 11th world," said
Elaine Gardner, Director of the Disability Rights Project at the
Washington Lawyers' Committee for Civil Rights and Urban Affairs. "The ADA
always has been understood to help get people with disabilities into
places of public accommodation. Now, for the first time, it also has
been found to require that public places try to get those same people
out in the event of a fire, terrorist attack, or other emergency."
The court's significant decision arises out of a lawsuit that was filed
in Spring 2003 by Katie Savage, a Washington,
D.C. resident who became trapped
during an emergency evacuation in a local shopping mall that had no
accessible exits for persons with disabilities. Ms. Savage, who uses a
wheelchair, was shopping at a Marshalls
store in Silver Spring, Maryland's
City Place Mall on September
3, 2002, when the store and the Mall were evacuated. After
Marshalls required her to exit into an area of the Mall that is below
ground level, Ms. Savage found that she was trapped there and unable to
evacuate, because the elevators were shut down and all the exits had
stairs. Abandoned by store employees and trapped, Ms. Savage resolved
to use her terrifying ordeal as a vehicle for ensuring that fellow
citizens with disabilities would not be similarly victimized in
emergency evacuation situations. Ms. Savage joined the Disability
Rights Council of Greater Washington (the DRC) in filing a lawsuit
against Marshalls and City
Place Mall that alleged violations of the ADA
in both the Mall's emergency evacuation plan and Marshalls'
corporate-wide evacuation policies.
In briefs filed with the court last Fall, Marshalls
took the position that the ADA
does not require places of public accommodation to modify evacuation
plans in order to accommodate the needs of people with disabilities.
The court, however, rejected Marshalls'
view and held that "a store's nationwide evacuation procedures would
certainly constitute a public accommodation's 'policies.'" Therefore,
the court wrote, "it is certain that Title III of the ADA
does apply to this situation."
"I am delighted by the court's decision and hope that it has a lasting
impact on improving safety for people with disabilities," said Ms.
Savage. "Regrettably, Marshalls and other major retailers have
seen fit to evacuate non-disabled persons, while leaving people with
disabilities to fend for themselves in an emergency. That is not only a
poor business decision, it is also now against the law."
One of Ms. Savage's attorneys, Steve Hollman, agreed. "We've all heard
stories about people with disabilities being trapped and left to die on
September 11th and in other emergency situations," said Mr. Hollman, a
partner with Hogan & Hartson L.L.P. in Washington, D.C. "Hopefully,
this decision will serve as a wake-up call to public accommodations
across the country that they must start considering the needs of people
with disabilities in their evacuation plans."
The Opinion of the Court also was significant for refusing to allow a
tenant to abdicate its responsibility to patrons with disabilities by
merely placing them outside a store's entrance in an emergency
evacuation situation and leaving actual evacuation to a shopping mall's
owners. Additionally, the Opinion recognized Ms. Savage's standing to
bring her ADA claims
against Marshalls. Despite
the fact that Ms. Savage had not visited the Marshalls
fitting room at City Place Mall, she was found to be able to seek
barrier removal there, as "a Plaintiff need not encounter every barrier
in a store to bring a claim for all the store's ADA
violations." Moreover, the Court found that Ms. Savage had standing to
remedy Marshalls' corporate-wide emergency evacuation policy - which is
in effect at more than 672 Marshalls stores - because "where the harm
alleged is directly traceable to a written policy . . . there is an
implicit likelihood of its repetition in the immediate future." The
Disability Rights Council of Greater Washington also was found to have
standing to proceed. As a result, the case will now proceed to trial to
determine whether Marshalls
and City Place Mall are in violation of the requirements of the ADA.
The trial date will be set at a hearing on January 14.
Ms.
Savage is represented by the law firm of Hogan & Hartson L.L.P. and
the Washington Lawyers' Committee for Civil Rights and Urban Affairs.
An important Amicus Curiae brief was submitted to the Court by the law
firm of Howrey, Simon, Arnold & White, on behalf of the American
Association of People with Disabilities and several other organizations
of people with disabilities.
Hilary C. Styron, Program
Officer
Emergency Preparedness Initiative
National Organization on Disability Headquarters
910 16th Street, NW 6th Floor
Washington, DC 20006
HQ Office: 202-293-5960
Direct:
202-955-6320
TTY:
202-293-5968
Fax:
202-293-7999
http://www.nod.org/emergency/