Kenny v. Southeastern Pennsylvania Transp. Authority

• Citation: 581 F.2d 351
• Decision Date: 18 July 1978
• Docket Number: Nos. 77-2489,No. 77-2490,77-2490,s. 77-2489
• Parties: 3 Fed. R. Evid. Serv. 636 Clare Immaculata KENNY, Appellant in 77-2489, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant in, and City of Philadelphia.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 351

581 F.2d 351

3 Fed. R. Evid. Serv. 636

Clare Immaculata KENNY, Appellant in 77-2489, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY Appellant in No. 77-2490 and City of Philadelphia.

Nos. 77-2489, 77-2490.

United States Court of Appeals Third Circuit.

Argued June 5, 1978.

Decided July 18, 1978.

Edward J. Morris, Joseph V. Cardona, Philadelphia, Pa., for Clare Immaculata Kenny.

Joseph R. Livesey, Kates & Livesey, Philadelphia, Pa., for Southeastern Pa. Transp. Auth.; Lewis H. Van Dusen, Jr., Drinker, Biddle and Reath, Philadelphia, Pa., of counsel.

Before ADAMS, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

Whether a woman who is raped in the station of the Philadelphia transit system may recover damages from the carrier because of its lack of adequate protection is the issue in this diversity case. We conclude that a showing of deficient lighting on the station platform and insufficient attention to conditions by the only employee on the premises support a jury finding of carrier culpability. Accordingly, we reverse judgment n. o. v. in favor of the transit authority and reinstate the jury verdict.

The young woman plaintiff was awaiting the arrival of a train operated by SEPTA ¹ when she was attacked by another patron. She filed suit in the district court charging negligence on the part of the transit authority and the City of Philadelphia. A jury awarded damages of $18,000 against SEPTA alone, but the district court entered judgment n. o. v.

The plaintiff's experience began on October 2, 1975, at about 9:00 P.M., when she purchased a ticket at the ground level cashier's booth at the Fairmont Avenue Station of the high speed Frankford Elevated Line in Philadelphia. She climbed three flights of steps to the elevated platform, sat on a bench near a light and waited for a northbound train. The only other person on the platform, a man on the opposite side of the tracks, crossed over to plaintiff's side and sat on the same bench. After saying a few words, the man dragged the plaintiff some 150 feet to the darkened south end of the platform and then beat and raped her. Her screams apparently alerted an unknown person in the neighborhood who called the police. Responding to a radio call, an officer apprehended the assailant on the platform.

The arresting officer and other policemen who investigated the crime testified that the area at the south end of the platform was dark and that the electric lights there were not lit. A detective who arrived about an hour after the attack occurred said it was necessary to use a powerful flashlight to illuminate the area in his search for physical evidence.

The SEPTA attendant who had been in the cashier's booth testified that he knew nothing of the attack and had not heard the plaintiff's screams. He admitted he had a portable radio playing in the booth, but said it was permitted by his employer. A telephone in the booth was connected with dispatchers and security units but was not used that evening until after police had come to investigate the incident. No other SEPTA employee was in the station or on the platform at the time the crime was committed.

A SEPTA employee testified that the transit system relied on Philadelphia police to provide protection for its patrons. He read a joint statement issued in 1972 by the Mayor of Philadelphia, the Board Chairman of SEPTA, and other public officials declaring that the occurrence of crime in the SEPTA transit system was intolerable. SEPTA had not taken any additional steps for passenger security after issuance of the joint statement, but as a measure to prevent crime, the city agreed in the statement to assign additional police to the SEPTA system. In 1973, Philadelphia received a grant from the federal government to hire 60 additional policemen after stating in its application that based on data compiled by SEPTA the "reported incidents on the high speed line are increasing, particularly robbery, assault, and rowdism (Sic )." At the trial, however, there was testimony that no criminal incidents had been reported at the Fairmont Station in the three years preceding the incident here.

Through its answers to interrogatories, the jury found that SEPTA had knowledge of the dangerous condition of the platform, failed to adequately protect against it, and this negligence was the proximate cause of plaintiff's injuries. The City of Philadelphia was exonerated.

The district court entered judgment n. o. v. in favor of SEPTA, finding it had no reason to anticipate the criminal conduct of the assailant at this particular station. The court also concluded that the lack of adequate lighting and a system of security devices, such as closed circuit TV coverage, telephones and warning devices, were not proximate causes of the assault upon plaintiff. In an alternative holding, the court denied the defendant's motion for a new trial based on contentions of an excessive verdict, improper admission of testimony on repairs to the lighting system following the attack, and prejudicial wording of the interrogatories.

I.

JUDGMENT N.O.V.

In this diversity case, we are guided by Pennsylvania law which does not hold the proprietor of a business establishment responsible for injuries to its patrons caused by criminal conduct of a third party unless the possibility or likelihood of criminal activity could reasonably have been foreseen or anticipated. In Moran v. Valley Forge Drive-In Theater, Inc., 431 Pa. 432, 246 A.2d 875 (1968), a patron recovered from a theater for injuries received when rowdy teenagers exploded a firecracker near him. The record revealed previous instances in which firecrackers had been exploded on the premises and the proprietor had taken no steps to warn its customers or curb unruly behavior of youthful visitors. The Pennsylvania Supreme Court cited with approval § 344 of the Restatement (Second) of Torts (1965) which reads:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Comment E notes "it may not be enough for the servants of the public utility to give a warning, which might be sufficient if it were merely a possessor holding its land open to the public for its private business purposes." A utility may be required to take additional steps to control the conduct of third persons or otherwise protect the patron against it.

Where the possessor of land may have reason to know that there is a likelihood of conduct on the part of third persons generally which is apt to endanger the safety of patrons, the owner may be under a duty to take precautions against such conduct. The focus of inquiry is not limited to anticipation of criminal conduct by the person who actually caused the harm. The trial court in this case narrowed the ambit of liability by looking to the expectations of SEPTA as they applied to the specific offender at the specific location. The duty to protect its patrons, however, is not determined by whether SEPTA had reasonable ground to expect violence directed toward the plaintiff by the particular assailant, but whether the Authority could reasonably have expected criminal activity from anyone at its station. See Morgan v. Bucks Associates, 428 F.Supp. 546 (E.D.Pa.1977); Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977); Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961).

The record reveals that crime on SEPTA's high speed lines, as well as its other systems, had been on the rise. Although steps had been taken to increase police protection, we cannot say as a matter of law that this was enough to preclude SEPTA's liability. As comment D to § 344 indicates, a utility is required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons may...