Grant v. Se. Pa. Transp. Auth.

• Decision Date: 23 January 2023
• Docket Number: 1294 C.D. 2021
• Parties: Charlotte Grant, Appellant v. Southeastern Pennsylvania Transportation Authority
• Court: Pennsylvania Commonwealth Court

Charlotte Grant, Appellant v. Southeastern Pennsylvania Transportation Authority

No. 1294 C.D. 2021

Commonwealth Court of Pennsylvania

January 23, 2023

OPINION NOT REPORTED

Submitted: October 28, 2022

BEFORE: HONORABLE ANNE E. COVEY, Judge, ELLEN CEISLER, Judge MARY HANNAH LEAVITT, Senior Judge

MEMORANDUM OPINION

ANNE E. COVEY, Judge

Charlotte Grant (Grant) appeals from the Philadelphia County Common Pleas Court's (trial court) November 2, 2021 order granting the Southeastern Pennsylvania Transportation Authority's (SEPTA) motion for summary judgment (Motion) and dismissing Grant's complaint (Complaint) with prejudice. The sole issue before this Court is whether the trial court erred by granting summary judgment in SEPTA's favor and dismissing Grant's Complaint.^[1] After review this Court affirms.

On March 29, 2018, Grant boarded the Route 101 SEPTA trolley between Garrett Road and Beverly Road in Philadelphia, Pennsylvania. While entering the trolley, Grant was carrying a suitcase and speaking on her cell phone.

Grant moved to the main area of the trolley and put down the suitcase. Grant was not holding the railing when the trolley began to accelerate, she moved down the aisle, fell to the floor, and sustained an injury. No other trolley passengers fell or were injured as a result of the trolley's movement.

On May 16, 2019, Grant filed the Complaint against SEPTA, alleging negligence, specifically averring:

4. On or about March 29, 2018, [Grant], was a passenger on the Route 101 SEPTA trolley car, and had just entered the trolley car, when the duly authorized SEPTA agent, driver, employee, servant, worker, officer and/or manager to whom the SEPTA trolley car was assigned[,] suddenly and without warning accelerated the trolley car at an unusually high and dangerous speed and before [Grant] was in a safe position, causing [Grant] to fall and severely injure herself.

5. The Route 101 trolley car's floor was further unreasonably defective in that is was slick, slippery, and/or covered in an oily substance making the floor dangerous for prospective passengers to traverse or stand.

Reproduced Record (R.R.) at 16a. On August 2, 2021, SEPTA filed the Motion, arguing therein that Grant's claim did not satisfy the Jerk and Jolt doctrine.^[2] The parties conducted depositions of Grant and the SEPTA trolley driver, and SEPTA produced a surveillance video of Grant's fall. After reviewing the evidence, on November 2, 2021, the trial court granted summary judgment. The trial court explained:

When we consider the evidence in the record, viewed even in a light most favorable to [] Grant, we conclude that she is unable to establish facts sufficient to meet the threshold requirements for recovery under the "[J]erk and [J]olt" doctrine. As in Martin [v. Southeastern Pennsylvania Transportation Authority, 52 A.3d 385 (Pa. Cmwlth. 2012)], where the Commonwealth Court upheld [the] trial court's decision to grant summary judgment:

[The p]laintiff failed to present evidence supporting a finding that either the bus's acceleration or sudden stop constituted an unusual and extraordinary jerk or jolt beyond a passenger's reasonable anticipation. No other passengers, all of whom were seated, were affected by the movement of the bus. In addition, [the p]laintiff failed to present any other objective evidence of an unusual or extraordinary movement of the bus.

[Martin,] 52 A.3d at 391.

The surveillance video, when considered along with the deposition transcript and other exhibits, fails to demonstrate that the trolley's relevant motions had an "extraordinarily disturbing effect" on the other passengers. Nor did [Grant] adduce evidence that her fall was "so violent and unusual as to permit the jury to predicate a finding on it alone that the jerk was extraordinary and unusual" - which requires more than losing one's balance while standing or walking in a moving vehicle as it happened here. Jackson v. Port Auth[.] of Allegheny C[nty.], 17 A.3d 966, 970 (Pa. Cmwlth. 2011). See Pa.R.C[iv].P. [] 1035.2(2) (summary judgment proper if plaintiff "has failed to produce evidence of facts essential to the cause of action [] which in a jury trial would require the issues to be submitted to a jury[]"). [] Grant's testimony and evidence, taken in its most favorable light, is insufficient to make negligence on SEPTA's part a jury question.

Trial Ct. Op. at 2-3. Grant appealed to this Court.^[3] On January 18, 2022, the trial court issued its opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) (Rule 1925(a) Opinion).

Grant contends that the trial court erred by granting the Motion because whether the trolley's movement was unusual is a question of material fact for the jury.^[4] This Court has emphasized that "the [J]erk and [J]olt test is difficult to meet." Martin, 52 A.3d at 390.

[T]here are two ways to show that a jerk or stop was so unusual and extraordinary as to exceed a passenger's reasonable anticipation: (1) the jerk or jolt had an extraordinarily disturbing effect on other passengers [;] or[] (2) the manner of occurrence of the accident or its effect upon the plaintiff inherently established the unusual or extraordinary character of the jerk or jolt.

Id. . at 391.

As no other passengers fell or were injured, Grant seeks to satisfy the Jerk and Jolt test's second prong, under which "[a] plaintiff may raise a factual question requiring submission of the case to the jury by showing evidence of an accident, the manner of the occurrence of which or the effect of which upon the injured person inherently establishes the unusual character of the jerk or jolt.'" Asbury v. Port Auth. Transit of Allegheny Cnty., 863 A.2d 84, 89 (Pa. Cmwlth. 2004) (emphasis added) (quoting Connolly v. Phila. Transp. Co., 216 A.2d 60, 62 (Pa. 1966)).

Regarding the "abrupt" nature of the driver's actions, it is well established that descriptive language such as "sudden jerk," "unusual jerk," and "it threw me violently on the floor," is insufficient, in and of itself, to sustain a finding of negligence. McClusky v. Shenango Valley Traction Co., . . . 161 A. 424, 425 ([Pa. Super.] 1932). As the [C]ourt subsequently observed: "[I]f every person thrown and injured in a street car could recover damages on proof merely that he was 'violently thrown, the resulting burden on the carrier would be unbearable." Watson v. Pittsburgh Rys[.], Co., . . . 132 A.2d 718, 719 ([Pa. Super.] 1957) (emphasis added). Accordingly, without more, descriptive language such as "abrupt" is not sufficient proof of negligence. Francis v. Se. Pa. Transp. Auth., . . . (Pa. Cmwlth. [] No. 825 CD. 2009, filed Dec[.] 16, 2009), slip op. at 6-7.^[5]

Bost-Pearson v. Se. Pa. Transp. Auth., 118 A.3d 472, 475 (Pa. Cmwlth. 2015).

[T]o show that the fall was so violent and unusual as to permit the jury to predicate on it alone a finding that the jerk was extraordinary and unusual - requires more than losing one's balance while standing or walking in the bus. As this Court acknowledged in Meussner [v. Port Authority of Allegheny County, 745 A.2d 719 (Pa. Cmwlth. 2000)], it is common knowledge that ones balance is more easily lost when walking or standing in a moving bus than when seated. "It is common knowledge that a passenger can be thrown out of his seat only by an unusual or extraordinary jerk, whereas it is not unusual for persons to lose their balance while standing or walking in a car if an ordinary or moderate jerk occurs.' Smith v. Pittsburgh R[ys.] Co., . . . 171 A. [879], 880 [([Pa.] 1934).]" Meussner, 745 A.2d at 721 (quoting Hufnagel v. Pittsburgh R[ys.] Co., . . . 29 A.2d 4, 6 ([Pa.] 1942)) (first two alterations in original). See also, Asbury . . . (plaintiff was the only passenger not seated who fell down when bus accelerated).

Jackson, 17 A.3d at 970 (emphasis added; quotation marks and citation omitted).

Grant also asserts that

the case must be submitted to a jury because, as SEPTA ultimately contends, the threshold inquiry in a [J]erk and [J]olt case is whether the "manner of the occurrence of the accident or the effect of which upon the plaintiff inherently establishes the unusual character of the jolt or jerk." That is, without doubt, an issue of material fact only a jury can answer.

Grant Br. at 14. To the extent that Grant contends that "whether the movement was unusual or extraordinary is a factual issue that can only be decided by the finder of fact[,]" this Court disagrees. Grant Br. at 12 (italic emphasis omitted; bold emphasis added). This Court has repeatedly recognized that trial courts may grant summary judgment if the Jerk and Jolt test is not satisfied. See, e.g., Bost-Pearson; Martin; Jackson; Devlin v. Se. Pa. Transp. Auth. (Pa. Cmwlth. No. 1076 CD. 2015, filed Feb. 24, 2016); Burno v. Se. Pa. Transp. Auth. (Pa. Cmwlth. No. 772 CD. 2014, filed Mar. 18, 2015).^[6] In Devlin, the trial court granted summary judgment after it reviewed video evidence of a plaintiff's fall on a SEPTA vehicle and observed that there was no unusual or extraordinary movement of the bus . This Court affirmed, explaining:

Like the trial court, we reviewed SEPTA's video recording and after reviewing it, we agree with its observation []:

At the time of the fall, the bus was traveling in the left lane towards an intersection, moving at a speed consistent with that of the surrounding traffic, with no other vehicles in close proximity. The movement of the bus at the time of [Devlin's] fall is such that, as established by the video, only the slight forward movement of the other seated passengers offers an indication that the bus was actually slowing to any measurable degree. Once the bus driver notice[d] that [Devlin] ha[d] been injured, he [brought] the bus to a complete stop

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