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Zuzel v. SEPTA

United States District Court, E.D. Pennsylvania

July 18, 2019

BELLA ZUZEL, Plaintiff,



         Before the Court are two motions to dismiss in this action alleging disability discrimination, products liability, and other state tort and contract claims. The Court has already given Bella Zuzel leave to amend her complaint after she misjoined a defendant to this action and failed to state a claim against Cardinal Health, Inc. Now, the remaining defendants, Southeastern Pennsylvania Transportation Authority (“SEPTA”) and Cardinal Health, each challenge the sufficiency of two claims against them in Zuzel's amended complaint. Because the amended pleadings still fail to state a claim for strict products liability based on a manufacturing defect and breach of express warranty, those claims against Cardinal Health will be dismissed with prejudice. Since claims brought under Section 1983 may not be predicated on violations of the Americans with Disabilities Act (“ADA”), Zuzel's Section 1983 claim against SEPTA will also be dismissed. However, Zuzel may proceed with the rest of her claims against Cardinal Health and SEPTA.

         I. BACKGROUND

         Zuzel asserts claims against SEPTA and Cardinal Health, which designs, manufactures, distributes, and sells “assistive devices” called “rollators, ” for injuries she sustained in two separate accidents. (Am. Compl. ¶ 3.) Because the Court has already recounted the factual allegations of this case in a previous memorandum, it will limit this background section to new allegations contained in Zuzel's amended pleadings that are pertinent to the motions before the Court.

         Zuzel, who is disabled, alleges that she sustained injuries from two accidents in November 2016 and April 2018 while using SEPTA's services. (Id. ¶¶ 33-44.) During the first accident, the wheel of her rollator, which was manufactured and designed by Cardinal Health, broke when she was exiting SEPTA's subway onto the platform. (Id. ¶ 54.) Zuzel alleges that the wheel broke due to its defective design: the wheel's size, diameter, and frame design “ma[d]e the product unsafe for use on subways and in particular in negotiating the gap between the subway car and platform.” (Id. ¶ 57.) This was in violation of Cardinal Health's “express and implied warranties” that “its product was safe for its intended use assisting users in ambulating in, onto and around areas of public accommodation such as subways and rail lines where the user would have to negotiate the gap between the rail cars and platforms.” (Id. ¶ 62.)

         Zuzel alleges that, under the ADA, SEPTA was required to “ensure its facilities were readily accessible to and usable by individuals with disabilities, including individuals who use manually-powered mobility aids.” (Id. ¶ 15.) SEPTA was on notice that there was a risk of injury due to the wheels of assistive devices becoming caught between subway cars and the platform and was aware that ramps or bridge plates could reduce or eliminate the likelihood of such accidents. (Id. ¶ 18.) However, SEPTA failed to provide “platform barriers, vehicle ramps or bridge plates, and proper and clear pathways and ramps” or information to the public about such devices. (Id. ¶¶ 17, 19.)

         In April, the Court severed Zuzel's claims against another defendant for improper joinder and dismissed all of Zuzel's claims against Cardinal Health for failure to state a claim. However, the Court granted Zuzel leave to amend her complaint. In her Amended Complaint, Zuzel asserts three claims against SEPTA: (1) violation of the ADA; (2) violation of 42 U.S.C. § 1983; and (3) negligence. She brings three claims against Cardinal Health: (1) strict product liability for failure to warn; (2) strict product liability for defective design and manufacture; and (3) breach of both express and implied warranties. Zuzel also requests attorney fees pursuant to 42 U.S.C. § 1988.


         “To survive a motion to dismiss, 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). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In assessing a motion to dismiss pursuant to Rule 12(b)(6), “courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).


         Both defendants have filed partial motions to dismiss. For the reasons below, the Court will grant in part and deny in part SEPTA's motion and will grant Cardinal Health's motion in its entirety.

         A. ADA Claim against SEPTA

         SEPTA argues that Zuzel's ADA claim must be dismissed because she seeks to recover only compensatory damages-rather than injunctive relief-and that remedy is available under the ADA only when a plaintiff demonstrates intentional discrimination. (SEPTA's Mem. of Law in Supp. of Mot. to Dismiss [SEPTA's Br.] at 5-6.) SEPTA asserts that Zuzel has failed to allege facts that support an inference of intentional discrimination and has, thus, failed to state a claim for compensatory damages. In response, Zuzel asserts that her allegations support an inference that SEPTA acted with “deliberate indifference” by failing to meet the ADA's accessibility requirements for disabled patrons. (Pl.'s Mem. of Law in Opp'n to Mot. to Dismiss [Pl.'s SEPTA Br.] at 3.)

         Title II of the ADA, which governs public services, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Compensatory damages are available under Title II of the ADA only when a plaintiff demonstrates intentional discrimination. S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 261 (3d Cir. 2013). In the Third Circuit, showing that the defendant acted with deliberate indifference satisfies this standard. Id. at 263. Deliberate indifference typically requires a two-part showing: that the defendant (1) knew that “a federally protected right is substantially likely to be violated” and (2) failed to act nonetheless. Id. at 265. To demonstrate this standard, a ...

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