United States District Court, E.D. Pennsylvania
K.W. A MINOR, BY AND THROUGH HIS PARENT AND GUARDIAN DELORES WHITE, et al.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, et al.
R. Sánchez, J.
case arises out of a tragic accident in which a SEPTA bus
making a left-hand turn struck two pedestrians in a
crosswalk-Sheena White and her eight-year-old son,
K.W.-killing White and seriously injuring K.W. In this
wrongful death and survival action, Plaintiffs Delores White,
individually and as parent and natural guardian of K.W., and
William A. Love, as administrator of Sheena White's
estate, bring claims pursuant to 42 U.S.C. § 1983 and
state law against Ronnie McGill, the driver of the bus
involved in the accident; SEPTA; and four SEPTA
executives-Chairman Pasquale T. Deon, Sr., General Manager
Joseph M. Casey, Chief Officer of System Safety Scott Sauer,
and Chief Surface Transportation Officer Michael R.
also bring state law products liability-related claims
against New Flyer of America, Inc. (New Flyer America), and
its parent company, New Flyer Industries Canada, ULC (New
Flyer Canada),  one or both of which designed,
manufactured, and supplied SEPTA with the bus involved in the
accident, and Rosco, Inc., the company that supplied the
bus's allegedly defective driver's side mirror
SEPTA Defendants, New Flyer, and Rosco each move to dismiss
portions of Plaintiffs' 23-count Amended Complaint. For
the reasons set forth below, the SEPTA Defendants' motion
to dismiss will be granted in part insofar as Plaintiff's
§ 1983 claims-the only federal claims in the Amended
Complaint-will be dismissed. Because all of the remaining
claims in the Amended Complaint arise under state law, and
because diversity jurisdiction is lacking in this case as
Plaintiffs and SEPTA are all citizens of Pennsylvania, the
Court will decline to exercise supplemental jurisdiction over
the balance of the case and will remand the case to the Court
of Common Pleas of Philadelphia County from which it was
removed. Insofar as Defendants seek dismissal of
Plaintiffs' state law claims, their motions will be
denied without prejudice to reassertion in state court.
accident giving rise to this lawsuit occurred in the early
evening on September 26, 2014, at the intersection of 15th
Street and Washington Avenue in Philadelphia. Prior to the
accident, Sheena White and her son were standing on the
northeast corner of the intersection, waiting to cross
Washington Avenue, heading south on 15th Street. Gill was
driving a SEPTA transit bus in a southbound direction on 15th
Street, approaching the intersection from the north.
the traffic light controlling southbound traffic on 15th
Street turned green, White and her son began walking across
Washington Avenue in the crosswalk. At the same time, Gill
made a left-hand turn from 15th Street onto Washington
Avenue, striking White and her son with the front end of the
bus. Upon impact, White was knocked to the ground, her body
became entrapped in the undercarriage of the bus, and the
wheels of the bus rolled over her, causing her to sustain
fatal injuries. K.W. survived the collision, but sustained
serious physical injuries and experienced the trauma of
witnessing his mother's sudden and traumatic death.
in question, a 2008 New Flyer model with vehicle
identification number 5FYH4FV188B033825, was designed and
manufactured by New Flyer. SEPTA purchased the bus pursuant
to an April 8, 2003, contract with New Flyer America, in
which New Flyer America agreed to furnish heavy duty
low-floor transit buses to SEPTA in accordance with
SEPTA's technical specifications, including the
requirement that buses be equipped with a Rosco model 715F
mirror mounted on the left front side of the bus. SEPTA's
specifications required that the mirror be mounted so as to
“give the operator a view of traffic alongside and
beyond the bus” and to “minimize blind spots for
the operator in front of mirrors.” Am. Compl.
¶¶ 31-32. The exact placement of the mirror,
however, was to be determined by New Flyer. See Id.
¶¶ 33-34. In mounting the model 715F mirror on its
buses, New Flyer relied on the specifications, instructions,
or manuals supplied by Rosco. See Id. ¶ 39.
to the Amended Complaint, the size, shape, configuration, and
placement of the model 715F mirror created an unreasonably
dangerous obstruction of the driver's view when making a
left-hand turn, and buses equipped with a model 715F mirror
were reported to have a high incidence of collisions or near
misses with pedestrians during left-hand turns. Although New
Flyer knew of these problems-and knew of ways to abate
them-before it sold the bus in question to SEPTA, it did not
alter (or recommend that SEPTA alter) the design or
configuration of the mirrors, and failed to warn SEPTA of any
risks associated with the blind spot its design created.
Rosco also failed to warn either New Flyer or SEPTA of the
dangerous vision obstruction inherent in its model 715F
mirror when mounted in a vertical position at or just below
the driver's eye level near the “A pillar” on
the driver's side of a transit bus. Id.
addition to faulting New Flyer and Rosco for the flaws in the
model 715F mirror system, Plaintiffs allege SEPTA knew or had
reason to know, beginning as early as 2003, that the mirror
system on the New Flyer buses created a dangerous blind spot
for drivers while making left-hand turns. After New Flyer
buses equipped with the model 715F mirror system were placed
into service, transit bus drivers and representatives of
Transportation Workers Union Local 234 began reporting to
SEPTA managers and policymakers that the mirror system
presented a dangerous vision obstruction during left-hand
turns, voicing their concerns during Location Safety
Committee meetings,  in Safety Hazard Forms and Vehicle
Condition Reports, and in grievances filed by the union in
response to disciplinary actions SEPTA initiated against
transit bus drivers involved in “left-hand turn
pedestrian knock down events.” See, e.g.,
id. ¶¶ 73-77, 80, 82.
2004, New Flyer buses equipped with Rosco model 715F mirrors
struck and killed pedestrians during left-hand turns on two
occasions, one in May and one in December. See Id.
¶¶ 84-85. SEPTA safety managers investigated both
incidents, conducting a partial reenactment of the December
2004 pedestrian knock down event later the same month.
See Id. ¶¶ 84-87. Following the
reeanactment, a SEPTA Systems Safety Officer published an
intra-office memorandum reporting that drivers may experience
a moment of visual obstruction “if a pedestrian is
exactly aligned with the left side front windshield support
structure divide, ” but rejecting the notion that the
New Flyer buses had an engineering flaw. Id.
¶¶ 86-87. A training bulletin issued
contemporaneously with the intra-office memorandum advised
transit bus operators that the mirrors could obstruct their
view and instructed them to lean forward or around in the
driver's seat to minimize the obstruction. Id.
March 2008, another SEPTA Systems Safety Officer published an
intra-office communication reporting that as a result of the
Rosco mirror system on the New Flyer buses a bus operator
could lose sight of pedestrians in a crosswalk for
approximately two seconds-and up to five feet of pedestrian
movement-during a left-hand turn, but deemed this degree of
visual obstruction an acceptable risk. See Id.
¶¶ 104-05. Approximately six months later, in
September 2008, a third pedestrian died after being struck by
a left-hand-turning New Flyer bus as the pedestrian crossed
the street. See Id. ¶ 94. SEPTA safety managers
investigated the incident, see id., but the Amended
Complaint does not describe their findings.
point during 2008, the Transit Cooperative Research Program
published a report entitled Guidebook for Mitigating
Fixed-Route Bus-and-Pedestrian Collisions, which
“highlighted the concerns of transit agencies and
stakeholders throughout the United States and Canada with
regard to left-hand turn transit bus-pedestrian
collisions.” Id. ¶ 97. The report noted
that “[b]us components-such as A-pillar and side
mirrors-might create blind spots, which obstruct the
operator's view of pedestrians, ” and recommended
strategies to mitigate left-hand turn bus-pedestrian
collisions, including changing the position and/or size of
the driver's side mirrors. See Id. ¶¶
98-99. SEPTA's then-General Manager was a member of the
Transit Cooperative Research Program committee that published
the report. See Id. ¶¶ 102-03.
study reportedly conducted by SEPTA found that during the
period from 2007 to 2011, 50% of all bus-pedestrian contacts
involving New Flyer transit buses equipped with model 715F
mirrors were left-hand turn pedestrian knock-down events.
See Id. ¶ 108. In April 2011, moreover, a union
official informed SEPTA that statistics maintained by the
union revealed that of 53 bus-pedestrian collisions involving
New Flyer buses equipped with model 715F mirrors that
occurred between January 4, 2010, and April 22, 2011, 51
occurred during left-hand turns.See Id. ¶
110. In June 2011, SEPTA revised a directive relating to
pedestrian hazards to acknowledge that transit bus operators
might temporarily lose sight of pedestrians obstructed by the
left side mirrors on the New Flyer buses. See Id.
December 2011, a New Flyer bus struck a pedestrian while
making a left-hand turn. See Id. ¶ 112. The
pedestrian sustained serious injuries in the collision
requiring amputation of her left leg above the knee. See
Id. ¶ 113.
2012, a union official described the view obstruction caused
by the driver's side mirror on the New Flyer buses at a
union gathering believed to be attended by SEPTA
representatives. Id. ¶ 114. That same year,
SEPTA required transit bus operators “to undergo
‘rock-n-roll' driving training” to account
for the view obstruction during left hand turns. See
Id. ¶ 115.
March 2013, a union official addressed the dangerous view
obstruction the mirror system on New Flyer buses created
during left-hand turns in a presentation to the Pennsylvania
House of Representatives. Id. ¶ 117. At some
point during that same year-it is not clear whether earlier
or later-Defendant Michael Liberi, SEPTA's Chief Surface
Transportation Officer, acknowledged that the model 715
mirror system mounted on New Flyer transit buses created an
unreasonable obstruction of pedestrians during left-hand
turns and committed to the union official that SEPTA would
remove the mirror system. See Id. ¶¶
118-19. In May 2013, due to an increase in the number of
bus-pedestrian left-hand turn collisions, SEPTA retained STV
Incorporated to study and evaluate use of the model 715F
mirror system on SEPTA's fleet of over 1, 400 buses.
See Id. ¶ 120.
published its findings in January 2014, eight months before
the accident in this case, concluding that the mirror
system's configuration “obstructs a bus
operator's view of the crosswalk to seventeen (17) feet
when an operator starts a left hand turn movement at the
traffic stop line” and that either lowering the mirror
or reducing its size would dramatically increase the bus
operators' field of vision during such turns.
Id. ¶¶ 121-22. STV recommended that SEPTA
implement these measures and change the mounting of the
mirrors to make them more adjustable. See Id.
December 2014, three months after the accident in this case,
the Philadelphia City Council passed a resolution authorizing
the Council's Committees on Transportation and Public
Utilities and Public Safety to hold joint hearings concerning
side mirror placement on SEPTA buses in Philadelphia.
Id. ¶ 138. The resolution recounted, inter
alia, the drivers' longstanding concerns about the blind
spots the mirrors created; the amount SEPTA had paid to
compensate victims of bus-pedestrian collisions, including
left-hand turn knock-down accidents, in Philadelphia between
2011 and 2014; and the success other transit authorities in
other cities had had in addressing similar issues. After the
resolution was passed, SEPTA announced it would remove the
model 715F mirror system from SEPTA's fleet of buses
beginning in January 2015, allegedly in an effort to prevent
the hearings from going forward.
their 107-page Amended Complaint, Plaintiffs brings claims
against the SEPTA Defendants, New Flyer, and Rosco under
state and federal law. Plaintiffs' federal claims are
set forth in Counts XI-XV, in which Plaintiffs assert claims
pursuant to 42 U.S.C. § 1983 against SEPTA (Count XI)
and each of the individual SEPTA Executives (Counts XII-XV)
for violations of White and K.W.'s Fourteenth Amendment
substantive due process rights under both a state-created
danger and a Monell theory of liability. In addition
to their federal claims, Plaintiffs assert state law claims
for negligence and negligent infliction of emotional distress
against the SEPTA Defendants; claims for negligent
infliction of emotional distress, negligence, and strict
liability (defective design and failure to warn) against New
Flyer and Rosco; and claims for punitive damages against the
SEPTA Executives, New Flyer, and Rosco. Plaintiffs assert
both wrongful death and survival actions on behalf of White.
removing this case from state to federal court, the SEPTA
Defendants filed a partial motion to dismiss, seeking
dismissal of Plaintiffs' “outside to the
scope” claims, their § 1983 claims, and their
claim for punitive damages against the SEPTA Executives. New
Flyer and Rosco have also moved for partial dismissal of
Plaintiffs' Amended Complaint. New Flyer seeks dismissal
of all claims against New Flyer Canada for lack of personal
jurisdiction and of Plaintiffs' claims for punitive
damages and for negligent infliction of emotional distress
against New Flyer America. Rosco also moves to dismiss
Plaintiffs' claim for punitive damages. In addition, both
New Flyer and Rosco seek to strike paragraphs 71-140 of the
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(f). Plaintiffs oppose the motions.
withstand a motion to dismiss pursuant to Rule 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when the facts pleaded “allow the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. In
evaluating a Rule 12(b)(6) motion, a district court first
must separate the legal and factual elements of the
plaintiff's claims. See Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court
“must accept all of the complaint's well-pleaded
facts as true, but may disregard any legal
conclusions.” Id. at 210-11. The 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 211 (quoting Iqbal, 556 U.S. at 679).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege a person acting under color of state law engaged in
conduct that violated a right protected by the Constitution
or laws of the United States.” Morrow v.
Balaski, 719 F.3d 160, 165-66 (3d Cir. 2013) (en banc).
In evaluating a § 1983 claim, a court must first
“identify the exact contours of the underlying right
said to have been violated.” Id. at 166
(quoting Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.
2000) (en banc)). The court must then “determine
whether the plaintiff has alleged a deprivation of a
constitutional right at all.” Id. (quoting
Nicini, 212 F.3d at 806) (internal quotation marks
§ 1983 claims in this case allege violations of White
and K.W.'s Fourteenth Amendment due process rights. The
Due Process Clause prohibits a state from “depriv[ing]
any person of life, liberty, or property, without due process
of law.” U.S. Const. amend. XIV, § 1.
invoke the substantive component of the Due Process Clause,
which “limits what government may do regardless of the
fairness of procedures that it employs, ” Evans v.
Sec'y Pa. Dep't of Corr., 645 F.3d 650, 659 (3d
Cir. 2011) (citation omitted), protecting against
“government power arbitrarily and oppressively
exercised, ” Cty. of Sacramento v. Lewis, 523
U.S. 833, 846 (1998). The Supreme Court has emphasized that
where, as here, executive action is at issue, “only the
most egregious official conduct can be said to be
‘arbitrary in the constitutional sense.'”
Id. (quoting Collins v. City of Harker
Heights, 503 U.S. 115, 129 (1992)). Executive action
violates the substantive component of the Due Process Clause
only when it is “so egregious, so outrageous, that it
may fairly be said to shock the contemporary
conscience.” Id. at 847 n.8.
establish a substantive due process claim, a plaintiff must
allege (1) a state actor deprived him or her of an interest
protected by the substantive due process clause and (2) the
“deprivation of that protected interest shocks the
conscience.” Chainey v. Street, 523 F.3d 200,
219 (3d Cir. 2008). Although Plaintiffs do not specifically
identify the particular substantive due process interest or
interests at stake, the interests protected by substantive
due process include life and bodily integrity, both of which
are implicated here. See Lewis, 523 U.S. at 840
(life); Ziccardi v. City of Phila., 288 F.3d 57, 60
(3d Cir. 2002) (liberty interest in bodily integrity).
Notably, the SEPTA Defendants do not suggest a
constitutionally protected interest is lacking here.
seek to pursue substantive due process claims against SEPTA
and the SEPTA Executives under two independent theories.
See Pls.' Opp'n to SEPTA Defs.' Mot. to
Dismiss 7. First, Plaintiffs assert these Defendants are
liable under the state-created danger theory, alleging that
SEPTA and the SEPTA Executives increased the risk of injury
to White and K.W. by placing the New Flyer bus that struck
them into service on the day of the accident, knowing that
the configuration of the driver's side mirror created a
dangerous view obstruction. See Id. Second,
Plaintiffs assert a Monell claim against SEPTA and
the SEPTA Executives based on an alleged policy, custom, or
practice at SEPTA-created or acquiesced in by the SEPTA
Executives-which disregarded the obvious and known danger
that the configuration of the Rosco model 715F mirrors on New
Flyer buses posed to pedestrians during left-hand turns, and
“reflected a deliberate indifference to [White and
K.W.'s] constitutional rights.” See Id. at
State-Created Danger Claim
state-created danger theory provides an exception to the
general rule that “the Due Process Clause does not
impose an affirmative obligation on the state to protect its
citizens” in situations where the state
“affirmatively creates or enhances a risk of
danger.” Kaucher v. Cty. of Bucks, 455 F.3d
418, 431 (3d Cir. ...