PHILADELPHIA – Litigation between a 67-year-old woman suffering from multiple myeloma and other conditions, who claimed the Southeastern Pennsylvania Transportation Authority (SEPTA) and one of its bus drivers caused her to suffer a broken arm, has ended.
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.
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 should be 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 should be 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 should be 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 should be dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6) because they fail to state claims for negligence per se.
UPDATE
On Dec. 16, Watts’s counsel filed a notice of voluntary dismissal for the case without prejudice, as to all defendants – citing that a notice of dismissal may be signed by all parties who have appeared, according to Federal Rule of Civil Procedure 41(a)(1)(ii).
“Plaintiff Brenda Watts and defendants Southeastern Pennsylvania Transportation Authority and Sharon Gonzales hereby stipulate under Federal Rule of Civil Procedure 41(a)(1)(ii) that this action be dismissed without prejudice as to all claims, causes of action, and parties, with each party bearing that party s own attorney's fees and costs,” the notice read.
The dismissal was approved by U.S. District Court for the Eastern District of Pennsylvania Judge Juan R. Sanchez.
“Pursuant to the stipulation of the parties under Federal Rule of Civil Procedure 41(a)(1)(ii), it is ordered that this action be, and hereby is, dismissed without prejudice as to all claims, causes of action, and parties, with each party bearing that party’s own attorney’s fees and costs. The clerk is directed to close the file,” Sanchez said.
The plaintiff is represented by Alan R. Zibelman of Zibelman & Nerenberg, in Philadelphia.
The defendants are represented by William K. Kennedy and Dylan F. Henry 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