                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

 VYANNE SAMUELS,

                        Plaintiff,

                        v.                          Case No. 19-cv-00536 (CRC)

 SAFEWAY, INC.,

                        Defendant.

                                     MEMORANDUM OPINION

       Plaintiff Vyanne Samuels claims she was injured after she tripped over a concrete “wheel

stop” in a Safeway parking lot. According to Samuels, who suffers from an unspecified

disability, the placement of the wheel stop violated specifications established pursuant to the

Americans with Disabilities Act (“ADA”). Samuels sued Safeway under a theory of both

negligence and negligence per se. Safeway has filed a partial motion for judgment on the

pleadings, attacking only Samuels’s negligence per se claim. For the following reasons, the

Court will grant the motion.

 I.    Background

       Defendant Safeway owns and maintains a parking garage attached to its store at 1855

Wisconsin Avenue Northwest in Washington, D.C. Compl. ¶ 6. Inside the garage, there are

several long rectangular concrete slabs, colloquially referred to as “wheel stops,” placed at the

front of each parking space. Id. ¶ 7. On or about June 14, 2018, Samuels parked in the Safeway

garage, bought groceries, and returned to her car. Id. ¶ 16. While returning to her car, Samuels

alleges that she tripped on one of the wheel stops and fell. Id. ¶ 19. Samuels sustained a

fractured wrist, severe injuries to her lumbar spine, and various other injuries. Id. ¶ 20.
        Samuels filed suit in the Superior Court of the District of Columbia. She identified as an

individual with an unspecified disability under the ADA and alleged that the placement of the

wheel stop violated the ADA Accessibility Guidelines, namely Advisory 502.4, which regulates

elevation changes in access aisles. Id. ¶¶ 28–29. Safeway responded by removing the suit to this

Court on the basis of diversity jurisdiction. Safeway has now moved for a partial judgment on

the pleadings requesting the dismissal of Count II of Samuels’s complaint for failure to state a

claim. Safeway contends that the ADA may not be used as the basis of a negligence per se claim

for personal injury and that Samuels includes no other statutory basis for the per se action.

Samuels opposed, Safeway replied, and the motion is now ripe for the Court’s resolution.

  II.   Legal Standard

        In order to grant judgment on the pleadings under Federal of Civil Procedure 12(c), there

must be no material fact in dispute, and the moving party must be entitled to judgment as a

matter of law. Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C. Cir. 2008).

The standard courts apply to resolving a motion for judgment on the pleadings is often confused

with the standard applied to a motion to dismiss under Rule 12(b), especially for failure to state a

claim pursuant to Rule 12(b)(6). See Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50, 58

(D.D.C. 2007) (“The appropriate standard for reviewing a motion for judgment on the pleadings

is virtually identical to that applied to a motion to dismiss under Rule 12(b)(6).”) There are

important differences, however. While a Rule 12(b) motion may be based on procedural

failures, including “lack of subject-matter jurisdiction[ ] or . . . a lack of factual allegations to

support a claim,” a Rule 12(c) motion “centers upon the substantive merits of the parties’

dispute.” Tapp v. Washington Metro. Area Transit Auth., 306 F. Supp. 3d 383, 391–92 (D.D.C.

2016) (emphasis added). When evaluating a motion for judgment on the pleadings, inferences



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should be drawn and facts should be viewed in the light most favorable to the non-moving party.

Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992).


 III. Analysis

       When sitting in diversity, this Court must apply the District of Columbia’s substantive

law. Metz v. BAE Sys. Tech. Sol. & Servs. Inc., 774 F.3d 18, 21–22 (D.C. Cir. 2014); see also

Erie Co v. Tompkins, 304 U.S. 64 (1983). Under D.C. law, a negligence per se plaintiff must

“(1) identify a particular law or regulation designed to promote safety, (2) show that the plaintiff

is a member of the class to be protected by the statute, and (3) show that the statute imposes

specific duties of care and protection on the defendant.” Blake v. Securitas Sec. Servs., Inc., 962

F. Supp. 2d 141, 150 (D.D.C. 2013). The question in this case turns on the second element,

namely whether Congress enacted the ADA to protect people in Ms. Samuels’s position. The

Court finds that because the ADA has neither a primary nor partial purpose of protecting people

with disabilities from physical injury, it did not. Therefore, it will grant Safeway’s motion for

judgment on the pleadings with respect to Samuels’s negligence per se claim.

       A. Congress enacted the ADA to combat disability discrimination

       A brief examination of the ADA and case law interpreting it reveals that the ADA does

not have a public-safety purpose that can provide the statutory linchpin for a negligence per se

claim. The Court begins with the statute itself. Title III of the ADA expressly identifies its

various purposes:

       (b) Purpose. It is the purpose of this chapter—

           (1) to provide a clear and comprehensive national mandate for the elimination
               of discrimination against individuals with disabilities;

           (2) to provide clear, strong, consistent, enforceable standards addressing
               discrimination against individuals with disabilities;


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           (3) to ensure that the Federal Government plays a central role in enforcing the
               standards established in this chapter on behalf of individuals with
               disabilities; and

           (4) to invoke the sweep of congressional authority, including the power to
               enforce the fourteenth amendment and to regulate commerce, in order to
               address the major areas of discrimination faced day-to-day by people with
               disabilities.

42 U.S.C. § 12101(b). Nowhere does the ADA mention the creation or promotion of safety

measures. Instead, as § 12101(b) makes clear, the ADA’s relentless focus is on the elimination

of discrimination.

       The Supreme Court has confirmed this understanding of the ADA’s purpose. PGA Tour,

Inc. v. Martin, 532 U.S. 661, 674 (2001) (“Congress enacted the ADA in 1990 to remedy

widespread discrimination against disabled individuals.”). That purpose was reflected, the

Supreme Court explained, in both § 12101(b)’s statement of purpose and also Congress’s

“findings” in § 12101(a). One such finding, highlighted by the Court in PGA Tour, states that

“historically, society has tended to isolate and segregate individuals with disabilities, and, despite

some improvements, such forms of discrimination against individuals with disabilities continue

to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). Another, also

highlighted by the Court, states that “discrimination against individual with disabilities persists

in such critical areas as employment, housing, public accommodations,” and so on. Id.

§ 12101(a)(3). Findings like these spurred Congress to act. “After thoroughly investigating the

problem, Congress concluded that there was a ‘compelling need’ for a ‘clear and comprehensive

national mandate’ to eliminate discrimination against disabled individuals, and to integrate them

‘into the economic and social mainstream of American life.’” PGA Tour, 532 U.S. at 675




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(quoting S. Rep. No. 101–116, p. 20 (1989); H.R. Rep. No. 101–485, pt. 2, p. 50 (1990), U.S.

Code Cong. & Admin. News 1990, pt. 2, pp. 303, 332).

       Samuels contends that PGA Tour’s discussion of the ADA does not bear on this case

because the Supreme Court was not analyzing the ADA’s purpose with respect to a negligence

per se claim. Defendant’s Opposition (“Opp.”), ECF No. 9, at 7. The Court disagrees. Given

that the resolution of this question requires this Court to determine the purpose of the ADA, the

Supreme Court’s explanation of the statute’s purpose—regardless whether the case involved any

argument that the statute had a public-safety purpose—is certainly instructive. The fact that the

Court was not confronted with the argument that the statute had a public safety purpose relaxes

PGA Tour’s grip on this case, but it does not remove it altogether.

       In any event, cases that have considered whether the ADA can support a negligence per

se claim have uniformly concluded it cannot. A court in this district determined that personal-

injury plaintiffs could not use the ADA as the basis of their D.C.-law negligence per se claim.

Hunter v. District of Columbia, 64 F. Supp. 3d 158, 189 (D.D.C. 2014).1 Plaintiffs there

“argue[d] that accommodating the needs of disabled individuals does have a ‘public safety’

rationale.” Id. The court was unpersuaded, reasoning that even if “protection from injury for the




       1
          Hunter marshaled a number of other decisions by federal district courts sitting in other
states that likewise concluded that the ADA was intended to combat discrimination, not to offer
protection from injury for people with disabilities, and thus could not support a negligence per se
claim. See, e.g., McCree v. Se. Pa. Transp. Auth., No. 07–4908, 2009 WL 166660, at *12 (E.D.
Pa. Jan. 22, 2009) (“[V]iolation of an ADA regulation may not be used as evidence of negligence
per se in a personal injury action like this one.”); White v. NCL Am., Inc., No. 05–22030, 2006
WL 1042548, at *5 (S.D. Fla. Mar. 8, 2006) (“Because the ADA was not designed to protect
those with disabilities from personal injuries, Plaintiff is unable to state a claim for per se
negligence.”).




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disabled is no doubt a fortunate by-product of the ADA, it is clear that the statute was not

designed with that purpose in mind.” Id. (quoting White v. NCL Am., Inc., No. 05–22030, 2006

WL 1042548, at *5 (S.D. Fla. Mar. 8, 2006)) (emphasis added). That strikes the Court as

correct. Although one of the means by which the ADA (especially its accessibility components)

achieves an end to disability discrimination is by making certain that individuals with disabilities

are able to safely access public accommodations, that does not make public safety the statute’s

end.

       Still, Samuels protests that Hunter should be discounted because its “reasoning relied

predominantly in pertinent part on other trial court opinions,” including opinions “in jurisdictions

outside of the District of Columbia.” Opp. at 5. Samuels is correct that the Hunter court looked

to decisions in other district courts, but that is hardly a reason to ignore it. The Hunter court did

not blindly follow those other decisions that determined the ADA could not serve as the basis of

negligence per se claim, but instead explained their reasoning and agreed with them. 64 F. Supp.

3d at 189 (“The Court agrees and concludes that the same rationale prevents [several other

discrimination statutes] from serving as the basis of a negligence per se claim[.]”). For the

reasons already explained, including the ADA’s explicit statement that its overriding purpose is

to end discrimination, this Court agrees with them, too.

       Samuels urges the Court to consider Theatre Mgmt. Grp., Inc. v. Dalgliesh, 765 A.2d 986

(D.C. 2001), but that case does not help her much. There, the D.C. Court of Appeals held that

the physical accessibility guidelines within the ADA have a safety objective. Id. at 991 (“[I]t is

evident to us that the ADA—and specifically the physical accessibility guidelines promulgated

under it—possess [a public safety objective.]”). However, the court limited its analysis to the

question of whether the ADA guidelines could serve as evidence of a standard of care for the



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purposes of an ordinary negligence claim. Id. (“The ADA standard constituted evidence of the

standard of care, no more.”). As for a negligence per se claim, the court noted that the plaintiff

“advanced that theory below but the trial judge rejected it. The issue is not before us on appeal.”

Id. at 996 n.6. And the trial court’s analysis, left undisturbed by the D.C. Court of Appeals, is

completely consistent with this Court’s: “Obviously, it would have been error if the court had

instructed the jury that evidence of the ADA and the applicable C.F.R. violations constituted

negligence per se, since the Act was promulgated to prevent discrimination, not physical injury.”

Dalgliesh v. Theatre Mgmt. Grp., Inc., No. 96-CA-3985, 1999 WL 638127, at *1 (D.C. Super.

Ct. May 28, 1999).

       Samuels insists that even if the ADA’s primary purpose is to combat discrimination, it

also has a partial safety-promoting purpose that can sustain a negligence per se claim. She relies

heavily on Rong Yao Zhou v. Jennifer Mall Rest., Inc., 534 A.2d 1268 (D.C. 1987), which held

that a statute prohibiting liquor license holders from serving alcohol to intoxicated individuals

had the purpose of protecting both the intoxicated individual and the general public. However,

Rong Yao Zhou is easily distinguishable, as it involved a question of to whom the protection

from harm applied under a statute clearly designed with an overall safety purpose. In other

words, there was no debate in Rong Yao Zhou, unlike in this case, over whether the statute had a

public-safety purpose. It clearly did, and the only question was whom the statute sought to

protect. Here, however, the Supreme Court and others have found that the ADA’s primary

purpose is ending disability-based discrimination; the only question, then, is whether an

additional safety-promoting purpose can be gleaned from it. Id. Samuels thus asks more from

Rong Yao Zhou than the facts of the case permit.




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        At any rate, the ADA reveals no additional, public-safety purpose. To the contrary, the

statute contains clues that its purpose is sometimes in conflict with public safety concerns. For

example, 42 U.S.C. § 12182 contains a provision which carves out an exception to the

requirements set forth in the section when the individual in need of accommodation would pose a

direct threat to the health and safety of others. The Supreme Court extended this same statutory

exception, holding that when a structural modification would pose a direct threat to the health or

safety of others, it is not a readily achievable modification that the ADA requires public

accommodations to implement. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 136

(2005). These clues suggest Congress understood that the ADA’s commands may sometimes

create safety concerns. Thus, Samuels in effect asks the court to read in a secondary purpose that

the statute itself recognizes will sometimes be in tension with its primary purpose. The Court

declines this invitation.

        Given that the ADA cannot provide the statutory basis for Samuels’s negligence per se

claim, and because Samuels offers no other such basis, Safeway is entitled to judgment on the

pleadings with respect to the negligence per se claim.


  IV. Conclusion

        For the foregoing reasons, the Court will grant Defendant’s Motion for Partial Judgment

on the Pleadings and dismiss Count II of the Plaintiff’s Complaint. A separate Order shall

accompany this memorandum opinion.




                                                             CHRISTOPHER R. COOPER
                                                             United States District Judge

Date: June 5, 2019


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