Commonwealth claims sovereign immunity from SEPTA bus passenger's injury lawsuit

By Nicholas Malfitano | Jan 10, 2019

Southeastern Pennsylvania Transportation Authority (SEPTA)  

PHILADELPHIA – The Commonwealth of Pennsylvania’s Department of Transportation (DOT) is opposing a suit filed by a Philadelphia man after he was allegedly injured when the bus he was riding fell into a construction hole, alleging his claims are baseless and without merit.

On Dec. 11, the DOT submitted an answer to plaintiff Richard Stevens’s complaint which opposes it on the grounds of sovereign immunity.

“There is no cause of action based upon a failure to warn in that sovereign immunity has not been waived for such claims. This action is not within any of the exceptions to immunity as set forth in 41 Pa. C.S. Section 8522 and therefore is barred. The Commonwealth defendant is immune from suit, and therefore, plaintiff’s action is barred,” the answer reads.

The DOT further alleged the plaintiff was contributorily negligent in the accident, and asserted all defenses available to it under the Pennsylvania Comparative Negligence Act and the Pennsylvania Motor Vehicle Financial Responsibility Law, and asserted all cross-claims against its co-defendants.

Stevens of Philadelphia first filed suit in the Philadelphia County Court of Common Pleas on July 13 versus the trio of defendants, all of whom are based in Philadelphia.

“On Aug. 4, 2017, at approximately 6:20 p.m., the plaintiff, Richard Stevens, was a passenger lawfully riding the SEPTA Route H on Bus No. 8546, when the bus was caused to fall into a construction hole in the roadway of the 1300 block of Erie Avenue, which controlled and created by defendant A.P. Construction, Inc., which condition or conditions existed for a period of many days, and which defendants had or should have had knowledge thereof,” according to the litigation.

The suit says that the defendants collectively failed to prevent creating the defective condition, failed to warn of it, failed to provide a safe roadway for vehicles traversing city streets and failed to properly secure and reinforce its steel construction cover plates over open construction holes, among other claims.

As a result, Stevens says he suffered full-body injuries in the accident, specifically herniation at his C4-C5 vertebral junction, multiple cervical and lumbar disc protrusions, strain and sprain of his entire spine and unspecified internal injuries.

SEPTA also filed an answer to Stevens’s complaint on Sept. 13, denying the allegations and asserting the complaint fails to state a cause of action upon which relief can be granted, that Stevens is subject to the limited tort option and “may not recover for any non-economic loss unless plaintiff suffered a ‘serious injury’ as that term is defined in the Pennsylvania Motor Vehicle Financial Responsibility Law," failed to use reasonable efforts to mitigate, reduce, or lessen the injuries at issue in this lawsuit, and that his claim is “barred or limited by the Fair Share Act.”

SEPTA further levied cross-claims of liability against its co-defendants in the case.

For three counts of negligence, the plaintiff is seeking damages, individually, jointly and severally, in excess of $50,000.

The plaintiff is represented by Dennis A. Pomo of Pasquarella & Pomo, in Philadelphia.

The defendants are represented by Sharon E. Ulak of the City of Philadelphia’s Law Department, Barry W. Smiley of SEPTA’s Law Department and Gregory R. Webber of the State Attorney General’s Office, also all in Philadelphia.

Philadelphia County Court of Common Pleas case 180701449

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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Pennsylvania Department of Transportation Pennsylvania Office of the Attorney General Philadelphia County Court of Common Pleas

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