Opinion
No. 772 C.D. 2014
03-18-2015
David Burno, Appellant v. Southeastern Pennsylvania Transportation Authority
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
David Burno appeals from an order of the Court of Common Pleas of Philadelphia County (common pleas) that granted the motion for summary judgment of the Southeastern Pennsylvania Transportation Authority (SEPTA) based on Burno's failure to satisfy the "jerk and jolt" doctrine. Pursuant thereto, a passenger in a negligence action must establish that a jerk or jolt was so unusual or extraordinary as to be beyond a passenger's reasonable anticipation, or that a jerk or jolt had an extraordinarily disturbing effect on other passengers. Connolly v. Phila. Transp. Co., 216 A.2d 60, 64 (Pa. 1966). We affirm.
In September 2011, Burno suffered a fall after boarding a SEPTA underground trolley, paying his fare and turning to walk down an aisle wet from the day's heavy rains. Burno testified that he was not holding onto anything and fell when "[t]he driver started out as he normally would do." September 24, 2013 Deposition of Burno, Notes of Testimony (N.T.) at 59; Reproduced Record (R.R.) at 148a. In describing his fall, Burno stated that his feet slipped forward out from under him, his body flew up in the air, and he landed on his back, twisting his neck and left wrist. Id. at 37; R.R. at 143a. Burno suffered multiple spinal injuries, including herniations. In March 2013, Burno filed a negligence action against SEPTA seeking judgment in excess of $50,000.
In February 2014, SEPTA sought summary judgment based on Burno's alleged failure via his deposition to satisfy the "jerk and jolt" doctrine. Common pleas granted SEPTA's motion for the following reasons: 1) Burno failed to show that any jerk or jolt had an extraordinarily disturbing effect on other passengers, given his testimony that he did not see any of them fall or move in any different or odd way; 2) Burno failed to show that the manner or occurrence of his fall was caused by anything other than the usual or ordinary operation of the trolley that a passenger could have reasonably anticipated; and 3) Burno's injuries, in and of themselves, did not support an inference of an extraordinary or unusual jerk or jolt. Accordingly, common pleas concluded that there was no genuine issue of material fact because Burno's "own testimony indicate[d] that the driver of the trolley was driving as he normally would and that the floor was wet from the rain." Common Pleas' Opinion at 6-7. Burno's appeal to this Court followed.
September 24, 2013 Deposition of Burno, N.T. at 55; R.R. at 147a.
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. Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991). 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.
Our Supreme Court, in creating the "jerk and jolt" doctrine, stated as follows:
It is well established by a long line of decisions that testimony 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, 216 A.2d at 64 [quoting Staller v. Phila. Rapid Transit Co., 14 A.2d 289, 291 (Pa. 1940)]. In addition, as this Court noted in Meussner v. Port Authority of Allegheny County, 745 A.2d 719, 721 (Pa. Cmwlth. 2000), it is not unusual or extraordinary for a standing passenger to lose his or her balance when an "ordinary or moderate jerk occurs."
In the present case, Burno's testimony was insufficient to survive SEPTA's motion for summary judgment. He admitted that none of the other passengers was affected when "[t]he driver started out as he normally would do." This is in contrast to the situation in Buzzelli v. Port Authority of Allegheny County, 674 A.2d 1186 (Pa. Cmwlth. 1996), where other passengers were thrown forward, without being able to control their movement, and we reversed and remanded with instructions for a new trial. In addition, the fact that Burno was not yet seated and/or had not grabbed onto anything for support does not, by itself, support a negligence claim. In Asbury v. Port Authority of Allegheny County, 863 A.2d 84 (Pa. Cmwlth. 2004), the unsuccessful plaintiff similarly fell when the bus accelerated before he had a chance to sit down. In both the present case and in Asbury, a passenger could have reasonably anticipated that after coming to a complete stop in order to pick up passengers, a driver would accelerate.
September 24, 2013 Deposition of Burno, N.T. at 59; R.R. at 148a. --------
Moreover, common pleas correctly rejected the suggestion that, based on the extent and severity of Burno's injuries, an inference could be made that the jolt of the trolley was so unusual or extraordinary as to be beyond a passenger's reasonable anticipation. An unreported case with highly analogous facts is instructive. In Francis v. Southeastern Pennsylvania Transportation Authority, (Pa. Cmwlth., No. 825 C.D. 2009, filed December 16, 2009), a standing passenger sustained injuries after she boarded a SEPTA bus, paid her fare, turned from the fare box and slipped and fell on the wet floor when the driver accelerated from a stopped position. We rejected Francis' argument that her injuries, including herniated lumbar discs, were sufficient for the jury to infer that the jolt of the bus was so unusual or extraordinary as to be beyond a passenger's reasonable anticipation. In so doing, we observed that, "medical evidence of a forceful injury, by itself, is insufficient to establish an extraordinary jerk or jolt." Id., slip op. at 8. In addition, we noted that Francis' injuries were less compelling than those in Asbury, where common pleas entered a nonsuit despite the fact that the pregnant plaintiff, before reaching her seat, fell hard enough to shatter her femur. That analysis is applicable here, especially given Burno's characterization of the driver starting out from the trolley stop in a normal manner.
Accordingly, even viewing the evidence in a light most favorable to Burno, we agree with common pleas that he failed to offer evidence sufficient to overcome the "jerk and jolt" doctrine. As we have observed, the "jerk and jolt" test is difficult to meet. Martin v. Se. Pa. Transp. Auth., 52 A.3d 385, 390 (Pa. Cmwlth. 2012). For the above reasons, therefore, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 18th day of March, 2015, the order of the Court of Common Pleas of Philadelphia County is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge