C. Grant v. SEPTA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charlotte Grant, :
Appellant :
:
v. :
:
Southeastern Pennsylvania : No. 1294 C.D. 2021
Transportation Authority : Submitted: October 28, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 23, 2023
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.
1
Grant raises two issues in her Statement of Questions Involved: “whether the movement
of the trolley was ‘unusual’ is an issue of material fact such that summary judgment was
inappropriate[,]” Grant Br. at 8, and whether “the [t]rial [c]ourt [improperly] substituted its
judgment for that of the jury[.]” Grant Br. at 14. Both issues are subsumed in the issue as stated
by this Court, and will be addressed accordingly.
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
2
The Jerk and Jolt doctrine provides:
[T]estimony indicating that a moving trolley car jerked suddenly or
violently is not sufficient, of itself, to establish negligence in its
operation. There must be a showing of additional facts and
circumstances from which it clearly appears that the movement of
the car was so unusual and extraordinary as to be beyond a
passenger’s reasonable anticipation, and nothing short of evidence
that the allegedly unusual movement had an extraordinarily
disturbing effect upon other passengers, or 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 jolt or jerk, will suffice.
Connolly v. Phila. Transp. Co., 216 A.2d 60, 62 (Pa. 1966) (emphasis added) (quoting Staller v.
Phila. Rapid Transit Co., 14 A.2d 289, 291 (Pa. 1940)). Courts have referred to the doctrine as
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
both the “jerk or jolt doctrine” and the “jerk and jolt doctrine.” See, e.g., Connolly; see also
Jackson v. Port Auth. of Allegheny Cnty., 17 A.3d 966 (Pa. Cmwlth. 2011).
3
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.
3
The entry of summary judgment is proper where the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue of material fact and that the moving party is entitled to
judgment as a matter of law. It may be granted only in cases where
the right is clear and free from doubt. The moving party has the
burden of establishing the nonexistence of any genuine issue of
material fact. In addition, the record must be viewed in the light
most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved against
the moving party. Our review of an order granting summary
judgment involves only an issue of law. Hence, our review is
plenary.
Bost-Pearson v. Se. Pa. Transp. Auth., 118 A.3d 472, 474 n.1 (Pa. Cmwlth. 2015) (citations
omitted).
4
With respect to the alleged slippery floor, Grant contends only that the condition of the
trolley floor is one “example[] of the evidence of the unusual nature of the acceleration such that
summary judgment was inappropriate.” Grant Br. at 14.
4
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 C.D. 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
5
Unreported decisions of this Court, while not binding, may be cited for their persuasive
value. Section 414(a) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa.
Code § 69.414(a).
5
Authority of Allegheny County, 745 A.2d 719 (Pa.
Cmwlth. 2000)], it is common knowledge that one’s
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 C.D. 2015, filed
Feb. 24, 2016); Burno v. Se. Pa. Transp. Auth. (Pa. Cmwlth. No. 772 C.D. 2014,
filed Mar. 18, 2015).6
6
Devlin and Burno are cited for their persuasive value.
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 approximately five
seconds after [Devlin’s] fall. Distinctly
absent from this multi-angle video is
anything showing that the bus moved in an
extraordinary or unpredictable way, or that
any of the passengers, other than [Devlin]
herself, were disturbed by its nearly
imperceptible, pre-fall deceleration.
([trial ct. op. at 5]) (emphasis in original) (internal citations
omitted).
In this case, there is no countervailing evidence of the
bus’s excessive speed or any other factors indicating that
this was an extraordinary jerk and jolt as to be beyond
Devlin’s reasonable anticipation that would raise an issue
of a disputed material fact. No matter whether she was
knocked down by sudden acceleration or a sudden stop, it
is not uncommon for a standing person on a bus to lose his
or her balance if an ordinary or moderate jerk occurs.
Although Devlin testified to the manner and extent of her
injuries, neither injuries alone or, for that matter, the extent
of her injuries, support an inference of an extraordinary or
unusual jerk or jolt.
7
Devlin, slip op. at 8-9.
Here, the trial court explained in its Rule 1925(a) Opinion:
[T]he Pennsylvania Supreme Court has held that when a
video recording “blatantly contradicts” the non-moving
party’s assertions, summary judgment is appropriate.
Sellers v. Twp. of Abington, . . . 106 A.3d 679, 690 ([Pa.]
2014) []; see id. at n.9 (noting that there were “no
allegations that the [] camera recording was altered[]”).
Here, we find that the video recording demonstrates that
when the trolley started moving, neither the character or
nature of [Grant’s] fall nor the manner in which the other
passengers moved could leave a fact-finder with any basis
to reasonably infer that the trolley’s movement was so
“violent and extraordinary” as to meet the threshold to
establish negligence under the “[J]erk and [J]olt” doctrine.
Rule 1925(a) Op. at 8.
The trial court noted:
The surveillance video in this case demonstrates a factual
scenario practically identical to the one in McClusky . . . .
In McClusky, plaintiff boarded a bus that accelerated
quickly before she was able to grab anything for support,
and she lost her balance and fell. The [Pennsylvania
Superior C]ourt considered the character of plaintiff[’]s
fall and lack of evidence regarding the effect on other
passengers. The [McClusky] Court then determined that
“the character of plaintiff’s fall was not so violent and
unusual as to permit the jury to predicate on it alone a
finding that the jerk was extraordinary and unusual, and,
therefore, negligent.” Id. at [425]. [The [McClusky C]ourt
then went on to distinguish these facts from those in
Sanson v. Philadelphia Rapid Transit Co., . . . , 86 A.
1069 (Pa. 1913), where the passenger had risen from a seat
and the sudden increase in speed from the trolley caused
him to be thrown out the doorway onto the platform and
into the street. McClusky, . . . [161 A. at 425]. Sanson
presented the type of “jerk and jolt” effect “inherently
establishing the extraordinary character of the jolt.” Id.Considering the surveillance video, along with the
deposition transcript and other exhibits, the facts here fail
8
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 [a] 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 happened here. [] Jackson, 17 A.3d [at]
970 [].
Rule 1925(a) Opinion at 6-7. Based on the aforementioned case law, and the record
evidence, including Grant’s testimony regarding the incident, see R.R. at 55a, and
this Court’s review of the surveillance video, this Court, like in Devlin, agrees with
the trial court’s observations and reasoning, and discerns no error.
For all of the above reasons, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charlotte Grant, :
Appellant :
:
v. :
:
Southeastern Pennsylvania : No. 1294 C.D. 2021
Transportation Authority :
ORDER
AND NOW, this 23rd day of January, 2023, the Philadelphia County
Common Pleas Court’s November 2, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge