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Dominique Henderson, As Administratrix of the Estate of Yvette Henderson, Deceased v. City of Philadelphia

July 23, 2012


The opinion of the court was delivered by: O'neill, J.


Plaintiff Dominique Henderson as administratrix of the estate of Yvette Henderson and in her own right as daughter of the decedent filed this action against defendant City of Philadelphia seeking damages for claims arising out of her mother's death. Plaintiff asserts claims under the Pennsylvania Wrongful Death Act, 42 Pa. Cons. Stat. § 8301, the Pennsylvania Survival Act, 42 Pa. Cons. Stat. § 8302, and 42 U.S.C. § 1983. Now before me is the City's motion to dismiss plaintiff's amended complaint. For the reasons that follow I will grant the City's motion.


The facts of the instant case viewed in the light most favorable to plaintiff are as follows. On October 31, 2010, emergency medical technicians employed by the City of Philadelphia came to 2531 West Harold Street, Philadelphia, PA in response to a 911 call. Am. Compl. ¶ 10. Plaintiff's mother was experiencing "difficulty breathing." Id. at ¶¶ 1, 10.*fn1 While attempting to carry her out of the home "in and/or on a bag" the EMTs dropped her on her head. Id. at ¶ 10-11. Plaintiff's mother was then taken to Temple University Hospital where she died of a subdural hematoma. Id. at ¶ 2, 13. Plaintiff avers that when the EMTs dropped her mother they aggravated her mother's "precarious condition," further causing pain and suffering and ultimately her mother's death at 11:45 am. Id. at ¶¶ 12-14. Plaintiff contends that the EMTs:

(a) fail[ed] to properly and safely transport the Plaintiff's decedent;

(b) fail[ed] to have adequate form of transport for Plaintiff's decedent; (c) fail[ed] to properly secure Plaintiff's decedent; (d) fail[ed] to properly train its personnel in the securing and transport of patients; (e) fail[ed] to properly supervise the transport of patients; (f) fail[ed] to promptly respond to a clearly enunciated medical emergency; . . . (h) fail[ed] to perform proper tests, review the patient's history and to determine appropriate care; (i) fail[ed] to perform a complete and thorough evaluation of the patient's condition prior to transport; (j) fail[ed] to perform the procedures properly and in a competent manner so as to prevent the plaintiff's decedent from falling to the ground; (k) fail[ed] to have an adequate amount of personnel care for and transport the Plaintiff's decedent; (l) fail[ed] to properly diagnose the nature and/or seriousness of Plaintiff's [decedent's] problem and act in accordance with reasonable standards of care; (m) [held] out expertise which induced Plaintiff to believe that adequate and/or proper care would be provided when, in fact, adequate and/or proper and/or reasonable care were not available or were not provided; (n) fail[ed] to maintain and keep adequate records, reports, and/or notes so as to allow proper treatment and/or follow-up by its employees, agents and/or servants.

Id. at ¶ 17.

Plaintiff seeks recovery including, but not limited to damages for all hospital, medical, funeral burial and estate administration expenses, incurred, loss of support and contribution which the family would have received from the decedent from the time of her death for the duration of [her] work life expectancy; compensation for the pecuniary value of the services, society, and comfort [she] would have given to her children, mother, father, step-mother, sisters and remaining family had [she] lived; compensation for the loss of services the decedent would have contributed to all family listed above and also for the net amount of money the decedent would have earned from the date of her death and would have earned between the date and the end of her work life expectancy; compensation for the mental and physical pain and suffering and inconvenience the decedent endured from the moment of [her] injury to the moment of her death.

Id. at ¶ 5.


Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The Court of Appeals has made clear that after Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 129 S. Ct. at 1949. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11, quoting Iqbal, 129 S. Ct. at 1950. The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S. Ct. at 1949.


I. Wrongful Death and Survival Act Claims

Plaintiff's amended complaint sets forth a wrongful death claim on behalf of herself and her mother's mother. Am. Compl. ¶ 19. It also sets forth a claim pursuant to the Survival Act on behalf of her mother's estate. Id. at ¶ 27. These "claims are not substantive causes of action; rather, they provide a means of recovery for unlawful conduct that results in death." Sullivan v. Warminster Twp., No. 07-4447, 2010 WL 2164520, at *6 (E.D. Pa. May 27, 2010). "[W]rongful death and survival actions sound in tort and are governed by the [Pennsylvania Political Subdivision] Tort Claims Act." Bornstad ex rel. Estate of Bornstad v. Honey Brook Twp., No. 03-3822, 2005 WL 2212359, at *22, n.53 (E.D. Pa. Sept. 9, 2005). I will dismiss plaintiff's wrongful death and ...

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