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K.W. v. Southeastern Pennsylvania Transportation Authority

United States District Court, E.D. Pennsylvania

April 2, 2018



          Juan R. Sánchez, J.

         This 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. Liberi.[1]

         Plaintiffs 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), [2] 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 system.

         The 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.


         The 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, [4]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.

         After 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.

         The bus 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.

         According 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. ¶¶ 54-55.

         In 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, [5] in Safety Hazard Forms and Vehicle Condition Reports, [6]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.

         In 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.[7] Id. ¶ 88.

         In 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.

         At some 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.”[8] 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.[9] 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.

         A later 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.[10]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. ¶ 111.

         In 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.

         In 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.

         In 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.[11] 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.

         STV 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. ¶¶ 123-24.

         In 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.

         In their 107-page Amended Complaint, Plaintiffs brings claims against the SEPTA Defendants, New Flyer, and Rosco under state and federal law.[12] 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[13]; 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.

         After 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.


         To 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).

         “To 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 omitted).

         The § 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.

         Plaintiffs 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.

         To 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.

         Plaintiffs 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 7-8.[14]

         A. State-Created Danger Claim

         The 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. ...

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