J. De'Pierre v. SEPTA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jullian De’Pierre, :
Appellant :
:
v. : No. 510 C.D. 2022
:
Southeastern Pennsylvania :
Transportation Authority : Submitted: March 31, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: August 8, 2023
Jullian De’Pierre (De’Pierre) appeals from the May 4, 2022 order of the
Philadelphia County Court of Common Pleas (trial court), which granted a Motion
for Summary Judgment filed by Southeastern Pennsylvania Transportation
Authority (SEPTA). The issues before this Court are whether the trial court erred in
concluding that SEPTA is immune from suit under the act commonly known as the
Sovereign Immunity Act (Sovereign Immunity Act)1 for injuries De’Pierre sustained
when he was assaulted on a SEPTA train by two other SEPTA passengers, and
whether SEPTA should have reasonably anticipated that the assault on De’Pierre
would occur. After review, we affirm the trial court.
I. Background
The underlying facts in this matter are not disputed. On May 26, 2019, while
traveling on SEPTA’s Market-Frankford elevated subway train, De’Pierre sustained
1
42 Pa.C.S. §§ 8521-8528.
bruising injuries to his head and face following an assault by several individuals.
De’Pierre reported the assault to SEPTA police after he exited the train.
On February 11, 2021, De’Pierre filed a negligence action against SEPTA
asserting that it negligently failed to provide adequate safety measures on its train,
including security, as well as equipment for notifying the train operator of an
emergency or danger to SEPTA’s passengers, safety and monitoring devices, or a
call system for reporting emergencies on a train. Reproduced Record (R.R.) at 22a.
De’Pierre also alleged that SEPTA negligently trained and supervised its train
operator, whom SEPTA negligently entrusted to operate the train. Id. at 22a-23a.
SEPTA generally denied the allegations and asserted sovereign immunity as a
defense. Id. at 25a-28a.
During a February 10, 2022 deposition, De’Pierre related the events leading
to the May 26, 2019 assault. De’Pierre testified that he noticed two passengers on
the train looking at him and whispering “back and forth.” Id. at 159a. De’Pierre
became nervous and took photographs of the two passengers with his phone so he
could identify them “in case something” happened. Id. at 163a. Although De’Pierre
stated that he was uncomfortable and “fearful,” he did not exit the train at the next
stop or call 911, as he did not think anything was going to happen and the assault
“happened so fast[.]” Id. at 160a, 163a. After De’Pierre photographed the two
passengers, they approached and asked if De’Pierre “[got] enough pictures.” Id. at
157a. When De’Pierre replied that he had, the two passengers kicked and punched
him. De’Pierre “blacked out” for a period of time. Id. at 157a. When he woke up,
the two passengers were gone. De’Pierre did not call out for help during the
altercation because “[i]t happened so fast[,]” and he did not recall seeing an
“emergency button” in the train car. Id. at 169a-70a. After exiting the train,
2
De’Pierre reported the assault to SEPTA police and received treatment for his
injuries.
Two SEPTA employees also testified by deposition on February 10, 2022.
Adam Washington (Washington) was a SEPTA train operator on the Market-
Frankford line for 15 years, and he was employed in that capacity on May 26, 2019.
Original Record (O.R.), Item No. 22, Washington Dep., 2/10/22, at 9, 12. He does
not know if he operated the train on which De’Pierre was assaulted. Washington
stated that each train car is equipped with emergency buttons located in the center
of the car near the right and left doors. The buttons activate an intercom system that
allows a passenger to communicate with the train operator. Signage is located next
to each button indicating they are to be used in the event of an emergency. Each
train car is also equipped with several surveillance cameras, and SEPTA employs
police officers as an additional safety measure. Washington advised that the train
operator is usually the only SEPTA employee on a train; however, he typically
encounters one of SEPTA’s police officers “at least once a day[,]” either on the train,
a platform, or “walking through the hallway.” Id. at 19, 22-23.
Washington advised that SEPTA protocol after an incident takes place on a
train is to report the matter to dispatch and “go back” to the train car to “visually
see” what transpired. Id. at 27. SEPTA requires that its train operators leave the
control cabin in the event of an emergency to investigate the situation. SEPTA
police or emergency services are contacted, depending on the severity of the
incident. In those circumstances, Washington would wait with a victim until the
police or emergency services arrived. Washington agreed that altercations occur on
SEPTA’s trains and buses “[a]t least once a week.” Id. at 20, 39. Washington has
3
never been warned prior to an incident taking place; rather, he is notified after the
fact. Id. at 28.
Charles Lawson (Lawson) testified that he began working as a SEPTA police
officer in 1994, and that he currently holds the position of police inspector. O.R.,
Item No. 22, Lawson Dep. at 6, 11. Lawson advised that the “bulk” of a SEPTA
police officer’s patrol takes place on a train. Id. at 44. Lawson did not dispute that
criminal acts take place on the Market-Frankford line; however, he advised that
crime on the trains is “statistically much lower” than crime taking place in SEPTA
stations, stairwells, and platforms. Id. at 45-46. He estimated that each train car is
equipped with 10 surveillance cameras, which cover a large percentage of the car.
The cameras are not able to provide 100% coverage. When a crime is reported from
one of SEPTA’s trains, video footage captured by the train’s cameras is
“automatically” downloaded when the train returns to the station. Id. at 21. The
video footage is then obtained by the SEPTA police detective assigned to investigate
the matter. Lawson advised that video footage cannot be viewed “live.” Id. at 56.
On March 29, 2022, SEPTA filed a Motion for Summary Judgment, arguing
that SEPTA was protected by sovereign immunity under the Sovereign Immunity
Act and that De’Pierre could not assert a claim for the criminal acts of a third party.
R.R. at 32a-35a. The trial court granted SEPTA’s motion, after concluding that
De’Pierre’s claim did not fall within one of the enumerated exceptions to sovereign
immunity set forth in subsection 8522(b) of the Sovereign Immunity Act. Although
De’Pierre maintained that his negligence claim was covered by the motor vehicle
exception in subsection 8522(b)(1) of the Act, the trial court noted that De’Pierre’s
injuries were indisputably the result of an assault perpetrated by two SEPTA
passengers and not by any movement of the SEPTA train or its moving parts. The
4
trial court also rejected De’Pierre’s argument that SEPTA should have reasonably
foreseen the May 26, 2019 assault. Although Washington testified that criminal acts
frequently occur on SEPTA trains, there was no indication that De’Pierre would be
assaulted that day. Accordingly, as De’Pierre failed to demonstrate that SEPTA had
waived immunity or that the May 26, 2019 assault was reasonably foreseeable, the
trial court granted summary judgment in SEPTA’s favor. This appeal followed.
II. Issues
On appeal,2 De’Pierre argues that the trial court erred in concluding that the
vehicle liability exception in subsection 8522(b)(1) of the Sovereign Immunity Act
did not apply and that SEPTA was protected by sovereign immunity. De’Pierre also
argues that SEPTA should have reasonably anticipated the May 26, 2019 assault,
and the trial court erred in concluding that this criminal conduct superseded
SEPTA’s negligence in operating the train without adequate security measures.
III. Discussion
Summary judgment is appropriate where the record clearly demonstrates that
no genuine issues of material fact exist and that the moving party is entitled to
judgment as a matter of law. P.J.S. v. Pa. State Ethics Comm’n, 723 A.2d 174, 176
(Pa. 1999). This Court must view the record in the light most favorable to the non-
moving party, resolving all doubts about the existence of a genuine issue of material
fact against the moving party. Id.; see Guy M. Cooper, Inc. v. E. Penn Sch. Dist.,
903 A.2d 608, 613 (Pa. Cmwlth. 2006).
SEPTA is an agency of the Commonwealth and, as such, it may assert
sovereign immunity as a defense to liability under the Sovereign Immunity Act.
2
Our review of a trial court’s grant summary judgment is limited to determining whether
the trial court committed an error of law or an abuse of discretion. Kaplan v. Se. Pa. Transp. Auth.,
688 A.2d 736, 738 n.2 (Pa. Cmwlth. 1997).
5
Martz v. Se. Pa. Transp. Auth., 598 A.2d 580 (Pa. Cmwlth. 1991). Subsection
8522(a) of the Sovereign Immunity Act, 42 Pa.C.S. § 8522(a), provides that
sovereign immunity is waived in limited circumstances for actions against the
Commonwealth that arise out of a negligent act for which damages would be
recoverable from a party that could not raise sovereign immunity as a defense. One
such exception concerns motor vehicle liability under subsection 8522(b)(1), 42
Pa.C.S. § 8522(b)(1), for “[t]he operation of any motor vehicle in the possession or
control of a Commonwealth party.” The definition of “motor vehicle” includes a
vehicle operated by rail. Id. Subsection 8522(b) explicitly provides, however, that
the exceptions to sovereign immunity only apply to “acts by a Commonwealth
party[.]” 42 Pa.C.S. § 8522(b). This Court has held that this express wording
“manifests that the General Assembly has not waived sovereign immunity for harm
caused by third parties.” Evans v. Se. Pa. Transp. Auth., 613 A.2d 137, 139 (Pa.
Cmwlth. 1992). Sovereign immunity is only waived under the motor vehicle
exception in subsection 8522(b)(1) of the Sovereign Immunity Act “where the
negligent act that caused the plaintiff’s injury involved movement of the vehicle or
its parts.” Robertson v. Port Auth. of Allegheny Cnty., 144 A.3d 980, 986 (Pa.
Cmwlth. 2016). A claim that falls within the motor vehicle exception must allege
that injuries “were caused by the movement of the vehicle, or by the movement of
the part of the vehicle, or by an act that is . . . related to the operation of the vehicle[;]”
it does not apply to injuries simply because they are sustained while a
Commonwealth agency vehicle is in motion. Hall v. Se. Pa. Transp. Auth., 596 A.2d
1153, 1156 (Pa. Cmwlth. 1991) (emphasis in original) (motor vehicle exception did
not apply to injuries caused by object thrown through trolley window, even though
trolley was in motion at the time). Furthermore, the criminal acts of third parties are
6
superseding causes that absolve a Commonwealth party from liability for harm
caused thereby. Moore v. Dep’t of Just., 538 A.2d 111, 113 (Pa. Cmwlth. 1988).
Notwithstanding the plain language of subsection 8522(b), and this Court’s
precedent, De’Pierre argues that his negligence claim falls within the motor vehicle
exception because the train was operating when the assault took place. De’Pierre
relies on Toombs v. Manning, 835 F.2d 453 (3d Cir. 1987), in which the United
States Court of Appeals for the Third Circuit (Third Circuit) held that an accident in
which the plaintiff was struck by a SEPTA subway train after falling from the
platform fell within the motor vehicle exception. Relevantly, the Third Circuit
recognized that a SEPTA employee witnessed an argument between the plaintiff,
Harold Toombs (Toombs), and two individuals, but did not intervene or summon the
police. One of the individuals hit Toombs in the face, causing him to fall into the
path of an oncoming SEPTA subway train. In holding that the motor vehicle
exception applied to a negligence claim for Toombs’ resulting injuries, the Toombs
Court focused on the SEPTA employee’s failure to protect Toombs from “clear
danger while waiting for a train.” Id. at 468. Instantly, De’Pierre argues that SEPTA
similarly failed to provide adequate safety measures on its train, such as a “call
system” or other equipment that would alert or notify train operators of an
emergency or a dangerous situation involving a passenger. De’Pierre’s Br. at 17.
De’Pierre’s reliance on Toombs is misplaced, as he has not pled facts to
suggest that any SEPTA employee witnessed the assault on De’Pierre and failed to
respond or intervene. Furthermore, this Court explicitly rejected the reasoning of
the Toombs Court in Southeastern Pennsylvania Transportation Authority v. Hussey,
588 A.2d 110 (Pa. Cmwlth. 1991). In Hussey, Michael Hussey (Hussey), sustained
injuries during an argument that took place on the platform of a SEPTA subway
7
station. The argument took place in the direct sight and hearing of a SEPTA
employee. Hussey filed a negligence claim against SEPTA, arguing that its
employee failed to take steps to prevent an escalation of violence or to control the
situation, and failed to alert police or enlist their aid. The trial court agreed with
Hussey, basing its decision on Toombs. This Court reversed the trial court, holding
that SEPTA was not subject to liability under the motor vehicle exception to
sovereign immunity “for the criminal acts of third parties even if they were
facilitated by the Commonwealth agency’s operation of a vehicle.” Id. at 442.
The trial court’s conclusion that De’Pierre’s claim does not fall within the
vehicle liability exception is entirely consistent with our holding in Hussey and in
Evans, a factually similar matter in which this Court declined to find liability for
injuries a SEPTA passenger sustained during an altercation with three other
passengers that took place on a SEPTA train. Evans, 613 A.2d at 139. While this
Court assumed arguendo that SEPTA breached a duty of care owed to the injured
passenger, Andrea Evans (Evans), we concluded that Evans could not recover from
SEPTA because her injuries were not the result of a negligent act falling within one
of the exceptions to sovereign immunity. Rather, Evans’ injuries stemmed from an
attack perpetuated by three other SEPTA passengers. This attack was a superseding
cause that “absolved SEPTA of any liability for the harm suffered[.]” Id.Although De’Pierre suggests that SEPTA is liable for any acts or omissions
that led to the May 26, 2019 assault, the cases he cites pre-date the Sovereign
Immunity Act’s enactment, which became effective on December 4, 1980. This
Court has held that immunity is only waived under the motor vehicle exception in
subsection 8522(b)(1) for negligence in the operation of a vehicle “where the
negligent act involves movement of the vehicle or some part of the vehicle.”
8
Robertson, 144 A.3d at 986. Instantly, De’Pierre has failed to demonstrate that his
injuries caused by a negligent act involving movement of the SEPTA train or the
movement of its parts. His injuries stemmed solely from the assault perpetuated by
other SEPTA passengers. Accordingly, the trial court properly concluded that
sovereign immunity was not waived pursuant to the motor vehicle exception in
subsection 8522(b)(1) of the Sovereign Immunity Act.
Next, De’Pierre argues that the trial court erred in concluding that SEPTA
could not have reasonably anticipated the May 26, 2019 assault. De’Pierre maintains
that the evidence supports his argument that SEPTA’s safety measures are
inadequate, as SEPTA merely provides an emergency call button in the middle of
each train car, and both Washington and Lawson testified about the high incidences
of crime occurring on SEPTA’s trains. Thus, De’Pierre contends that the May 26,
2019 assault on De’Pierre was reasonably foreseeable and a jury should have
decided the question of whether SEPTA negligently failed to provide greater safety
precautions for its passengers.
We must reject De’Pierre’s argument under the facts presented. In
determining whether criminal conduct of a third party supersedes the alleged
negligence of a Commonwealth agency, we look to whether the intervening conduct
was so extraordinary that it was not reasonably foreseeable. Powell v. Drumheller,
653 A.2d 619, 623 (Pa. 1995). “Unless the facts are undisputed,” the “determination
of whether an act is so extraordinary as to constitute a superseding cause is normally
one to be made by the jury.” Id. at 624.
In Powell, upon which De’Pierre relies, the widow of a man killed in a motor
vehicle accident filed a wrongful death claim against the Pennsylvania Department
of Transportation (DOT). The widow alleged that DOT negligently designed the
9
road where the accident occurred, as it had no centerline designating the lanes of
travel, there were no road markings or signs that restricted passing, and the road did
not have a shoulder or area to provide for emergency maneuvers. DOT argued that
it was immune from suit because the driver of the car responsible for the accident
was intoxicated at the time. Our Supreme Court rejected DOT’s argument, as a
factual dispute existed as to whether the primary cause of the accident was the
driver’s intoxication or the allegedly faulty design of the road, and a jury should
determine whether DOT’s negligence was a substantial factor in causing the
accident.
The Supreme Court’s holding in Powell relied on an earlier decision, Crowell
v. City of Philadelphia, 613 A.2d 1178, 1184 (Pa. 1992), in which an intoxicated
driver hit another car, killing its driver, after following a directional arrow that had
been misplaced by a city employee. The Supreme Court upheld a verdict in favor
of the plaintiff, as the jury found that the negligent misplacement of the sign was a
substantial contributing cause of the accident.
We disagree with De’Pierre that an issue of material fact exists, as De’Pierre’s
injuries were indisputably caused by other passengers on the train, and not by the
train itself, or by any movement of the train or its moving parts. In both Powell and
Crowell, a factual question existed as to whether the injuries were caused by a defect
in the land – i.e.: the negligent misplacement of a directional arrow or the negligent
design of the road – or whether the injuries were solely caused by an intoxicated
driver.
Instantly, while SEPTA’s own witnesses acknowledged that criminal activity
occurs on SEPTA trains, there is simply no evidence to suggest that SEPTA was
aware of prior incidents on the Market-Frankford line that would have foreshadowed
10
the May 26, 2019 assault on De’Pierre. De’Pierre admitted that, although he was
nervous and fearful, he did not use his cell phone to call 911 or attempt to leave the
train car, because he did not believe “[any]thing was going to happen.” R.R. at 163a.
If De’Pierre did not anticipate the assault by other passengers, it is difficult to
perceive how SEPTA personnel could have reasonably foreseen that specific event.
Moreover, while Lawson acknowledged that criminal acts have occurred on the
trains of that line, he also testified that incidences of crime are higher in other
locations, such as train stations, stairwells, and platforms. Washington’s deposition
testimony demonstrates that SEPTA equipped its train with several of the security
measures that De’Pierre claims were negligently absent, such as emergency buttons
located on either side of each train car that, when used, activate an intercom system
facilitating communication between the train operator and the passenger car.
De’Pierre’s lack of knowledge that the emergency buttons exist does not render them
unavailable or inadequate. Additionally, each train is equipped with multiple
surveillance cameras. While the footage from those cameras cannot be observed in
real time, the presence of the cameras could deter crime, as well as assist with the
investigation thereof.
Given that De’Pierre’s injuries were solely caused by the criminal actions of
third parties, and not by SEPTA’s negligent operation of the train in which the May
26, 2019 assault took place, the trial court did not err in granting summary judgment
in favor of SEPTA. Any other conclusion would effectively render SEPTA strictly
liable for the criminal actions of a SEPTA passenger, should such conduct result in
injury to another passenger. The plain language of the motor vehicle exception in
11
subsection 8522(b)(1) of the Sovereign Immunity Act does not contemplate such an
expansive waiver of immunity. Accordingly, we affirm the trial court.
____________________________
ELLEN CEISLER, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jullian De'Pierre, :
Appellant :
:
v. : No. 510 C.D. 2022
:
Southeastern Pennsylvania :
Transportation Authority :
ORDER
AND NOW, this 8th day of August, 2023, the May 4, 2022 order of the Court
of Common Pleas of Philadelphia County is hereby AFFIRMED.
____________________________
ELLEN CEISLER, Judge