PHILADELPHIA – Counsel for the Southeastern Pennsylvania Transportation Authority (SEPTA) and one of its bus drivers are seeking to dismiss claims that it refused to deploy an accessible ramp so a 67-year-old woman suffering from multiple myeloma and other conditions could exit a bus.
Brenda Watts first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 17 versus SEPTA and Sharon Gonzales. All parties are of Philadelphia.
“On Sept. 30, 2019, at approximately 1:45 p.m., Watts, while using her walker, demonstrated significant difficulty boarding a Route 32 bus that Gonzales was operating at 33rd and Diamond Streets. Several minutes later, Watts intended to disembark said bus at the intersection of 33rd Street and Cecil B. Moore Avenue. Upon the bus coming to a stop, Watts requested Gonzales deploy the ramp in order to ease her disembarkation,” the suit stated.
“Gonzales refused to deploy the ramp, stating in words or substance, ‘I ain’t got time for that. We don’t put out the ramp for walkers.’ When Gonzales stopped the bus, the distance between the step and the curb prohibited Watts from placing her walker fully on the roadway while creating a space between the bus’s bottom step and the walker, and the distance was too far for Watts to place her walker on the sidewalk.”
Watts stepped down with her right leg while holding on to her walker, but due to her disability, was unable to move her left leg in order to step down. She then broke her left leg and left arm.
“In the process, Watts’ left leg twisted in an ‘oblique manner’, which resulted in a fracture of her left femur. Using her arms to support her full weight to fully step off of the bus caused Watts to suffer a fracture of her left humerus. Watts was transported from the scene by ambulance to Temple University Hospital, where she ultimately underwent open reduction internal fixation (ORIF) surgeries on her left femur and left humerus,” per the suit.
UPDATE
The defendants filed a motion to dismiss for failure to state a claim on multiple grounds on Oct. 19, related to all but two of Watts’s counts.
• Counts II and IV against defendant Sharon Gonzales are dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6) because they fail to state claims upon which relief can be granted for violations of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act;
• Counts V and VI against all defendants are dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6) because they fail to state claims upon which relief can be granted for violations of 42 U.S.C. Section 1983;
• Counts VII and VIII, IX, and X1 against all defendants are dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6) because these state law tort claims for negligence and negligence per se are barred by sovereign and qualified immunity doctrines under Pennsylvania law;
• Counts VII and VIII against all defendants are dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6) because they fail to state claims for negligence per se;
• All claims for pecuniary damages related to personal injury under the ADA and Rehabilitation Act are dismissed;
• All claims for punitive damages are dismissed;
• Having dismissed all claims against defendant Sharon Gonzales with prejudice, defendant Gonzales is hereby dismissed from this case;
• Defendant SEPTA shall answer the remaining allegations and claims in the complaint within 20 days from the date of this order.
For multiple counts of violating Title II of the ADA, the Rehabilitation Act of 1973, the Civil Rights Act, negligence and negligence per se, the plaintiff is seeking: A declaratory judgment finding that SEPTA was in violation of the specific requirements of Title II of the ADA; A permanent injunction for SEPTA to comply with the ADA; That SEPTA ensures that all employees, more specifically its vehicle operators, be given appropriate training on periodic basis calculated to achieve ongoing compliance; Compensatory damages for SEPTA’s deliberate indifference to violating her rights under the ADA and Rehabilitation Act; Costs of suit, attorneys’ fees, costs, any and all other relief this Court deems necessary and just, plus a trial by jury.
The plaintiff is represented by Alan Zibelman of Zibelman Legal Associates, in Philadelphia.
The defendants are represented by William K. Kennedy of Montgomery McCracken Walker & Rhoads, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-04010
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com