PHILADELPHIA – A federal judge has rejected an attempt by the Southeastern Pennsylvania Transportation Authority (SEPTA) to dismiss a case from the estate of a Southern New Jersey man, one which alleged that the agency failed to protect the decedent in his work for it as a conductor and subsequently led him to contract a two-year-long fatal case of COVID-19.
The Estate of Michael A. Hill of Gloucester, N.J. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 23 versus SEPTA, of Philadelphia.
“On or about April 2, 2020, plaintiff arrived at his job, as a conductor for SEPTA. As the day progressed, Mr. Hill was having trouble breathing and experiencing fatigue and stomach issues. On April 4, 2020, Mr. Hill went to Inspira Medical Center because he started coughing up blood and mucus,” the suit said.
“On April 5, 2020, Mr. Hill was admitted to the ICU. On April 6, 2020, Mr. Hill was placed on a ventilator. On April 14, 2022, Mr. Hill died from complications due to COVID-19.”
The suit added that the plaintiff’s injuries were caused in whole or in part by the negligence, carelessness and recklessness of the defendants, insomuch that it failed to provide the plaintiff with a safe place to work as required by the Federal Employers Liability Act, failed to ensure that appropriate personal protective equipment was available and used, failed to communicate with the conductors regarding COVID-19 regulations and failed to communicate with the work gangs regarding their co-workers having COVID-19.
“As a result of the aforesaid, plaintiff died from complications due to COVID-19. As a result of the aforesaid, plaintiff had incurred a medically determinable physical impairment which prevented plaintiff from performing all or substantially all of the material acts and duties which constitute his usual and customary work and limited his mobility and daily activities as well as enjoyment of life. As a direct result of the defendants’ negligence, through their agents, servants, workmen and/or employees, the plaintiff was unable to attend to his usual duties and occupations, all of which caused substantial financial loss,” the suit stated.
SEPTA filed a motion to dismiss the case on April 24, for failure to state a claim upon which relief could be granted. According to SEPTA, the complaint is “rife with threadbare and vague allegations that fail to place the Court (or SEPTA) on notice of the grounds for its claim” and fail to connect Hill’s fatal case of COVID-19 to his employment at SEPTA.
“Plaintiff’s complaint utterly fails to meet the legal standard for a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) – not only is the complaint replete with unsupported and conclusory allegations, but it likewise fails to state a cognizable claim under FELA. To prevail on a claim under the FELA, a plaintiff must prove four elements: (1) The defendant is a common carrier by railroad engaged in interstate commerce; (2) The plaintiff was employed by the defendant and assigned to perform duties that furthered such commerce; (3) The injuries were sustained while the plaintiff was employed by the common carrier; and (4) The plaintiff’s injuries resulted from the defendant’s negligence. Accordingly, in order to establish a prima facie claim under FELA, a plaintiff must prove the elements of a common law negligence action: duty, breach, foreseeability and causation,” the dismissal motion stated.
“Plaintiff has failed to allege any facts whatsoever about how or where Mr. Hill contracted COVID-19 and, more specifically, plaintiff fails to allege any connection between his purported exposure to COVID-19 and his job duties at SEPTA. Rather, plaintiff asserts that Mr. Hill ‘felt ill’ during his shift at SEPTA, and makes the wholly tenuous and speculative conclusion that Mr. Hill’s illness was caused by SEPTA’s negligence. Indeed, breaking the complaint down to its most basic form, plaintiff asserts only that Mr. Hill was a SEPTA employee and passed away from complications due to COVID-19 – without more, these are two separate and unconnected events. There are simply no facts in the complaint to support a claim for negligence under the FELA, and the complaint’s threadbare assertions completely fail to satisfy the legal standard for a motion to dismiss. Therefore, plaintiff’s complaint fails as a matter of law and should be dismissed.”
After an amended complaint was filed by the plaintiff on May 22 and likewise, a second dismissal motion was filed by SEPTA on June 5, the plaintiff brought forward an opposing response to the dismissal motion on June 7.
In the brief, the plaintiff insisted that “SEPTA failed to uphold its duty under the FELA, to provide him with a reasonably safe place to work” and further alleges that “SEPTA’s conduct was unreasonable in the face of a known and foreseeable risk of harm, as defendant did not maintain, timely or appropriate, health and safety protocols during the COVID-19 pandemic.”
“In this matter, the dangers and manner of transmission of COVID-19 exposure were well-known and thus, foreseeable. Defendant’s safety protocols were at first nonexistent and thereafter inadequate. These allegations present a jury. As to defendant’s secondary argument that plaintiff’s claim of exposure at work was causative of his injury ‘as opposed to any number of other places where he could have been exposed.’ This argument is also premature. Under the FELA, the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the employee’s injury,” the plaintiff’s response brief stated.
“It does not matter that, from the evidence the jury may also with reason, on grounds of probability, attribute to result to other causes…judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sites primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities.”
In this case, the plaintiff alleged, “the defendant’s lack of and/or inappropriateness of safety measures in the face of a known and foreseeable risk played any part, even the slightest, in producing plaintiff’s harm.”
“Cognizant of the duty to effectuate the intention of the Congress to secure the right to a jury determination in cases under the act, this Court is vigilant to exercise its power of review in any case where it appears that the litigants have been improperly deprived of that determination,” the brief added.
UPDATE
In a memorandum opinion handed down on Aug. 3, U.S. District Court for the Eastern District of Pennsylvania Judge Michael M. Baylson denied SEPTA’s dismissal motion.
Baylson began by reiterating that the plaintiff must prove four elements under FELA: 1) The defendant is a common carrier by railroad engaged in interstate commerce; 2) The plaintiff was employed by the defendant and assigned to perform duties which furthered such commerce; 3) The plaintiff sustained the injuries while employed by the common carrier; and 4) The plaintiff’s injuries resulted from the defendant’s negligence.
“Plaintiff has satisfied the first element because plaintiff alleges that defendant operates a system of railroads in Pennsylvania and nearby states. Plaintiff has satisfied the second element because plaintiff alleges that Mr. Hill was employed by defendant as a SEPTA conductor. The parties dispute whether plaintiff has satisfied the third element. Defendant argues that plaintiff could have been exposed to COVID-19 at any number of other places and through any number of people. However, taking the facts alleged in the complaint as true, plaintiff has alleged that Mr. Hill was exposed to COVID-19 while working for SEPTA, contracted COVID-19 and died of COVID-19. This allegation is enough to state a plausible claim for relief, so plaintiff has satisfied the third element of his FELA claim,” Baylson said.
“The parties also dispute whether plaintiff has satisfied the fourth element. Defendant argues that SEPTA could not have been negligent because SEPTA’s policy required employees exposed to COVID-19 to isolate for 14 days before returning to work, so employees who had been diagnosed with COVID-19 would not have been at work for 14 days. Taking the facts alleged in the complaint as true, plaintiff has alleged that defendant was negligent in causing Mr. Hill’s injury because defendant did not trace exposures from known diagnosed and exposed employees, defendant failed to ensure that personal protective equipment was available and used by employees, and the risk of COVID-19 was reasonably known and foreseeable to defendant. Although defendant makes a valid argument that may be successful in later proceedings, plaintiff has alleged facts sufficient to establish that Mr. Hill’s death was caused by SEPTA’s alleged negligence, namely that SEPTA did not trace exposures from exposed employees and that, without trace exposures, contagious but asymptomatic employees could still have been at work and in contact with Mr. Hill. For this reason, plaintiff has satisfied its FELA claim. For the foregoing reasons, the defendant’s motion to dismiss is denied.”
For counts of violating FELA, the plaintiff is seeking all remedies available.
The plaintiff is represented by Robert S. Goggin III of Keller & Goggin, in Philadelphia.
The defendant is represented by Amy C. Lachowicz and Daniel J. McGravey of Clark Hill, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-00702
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com