PHILADELPHIA – Counsel for all parties have agreed upon a conditional dismissal for one defendant company named in a lawsuit filed by an election poll worker, which alleged she suffered a broken arm when she was asked to repair a faulty voting machine herself.
Janice Tangradi of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 12 versus the City of Philadelphia, City Commissioners Lisa M. Deely, Al Schmidt and Anthony Clark, City Commission Employee Jane Doe, all of Philadelphia, Danaher Corporation of Washington, D.C., Total Control, Inc. of Newtown and Fortive Corporation.
“Tangradi was an elected committee person for the City of Philadelphia, representing Ward 66B. As an elected committee person, Tangradi received no taxpayer-funded compensation, and was responsible, among other duties, for monitoring the polling places in her Ward on Election Day. On May 21, 2019, pursuant to her duties as a committee person, Tangradi was a poll watcher at the polling center for Ward 66B, which was located at the Palmer Playground, 3305 Comly Road, Philadelphia, PA 19154,” the suit said.
“At approximately 10:21 am, Tangradi was notified by one of the poll workers that voting machine #1, a Danaher Shouptronic 1242 designed/manufactured/sold by defendant Danaher Corporation and/or Total Control, Inc. and/or ABC Corporation, was not working. Tangradi immediately called the City Commissioners office and requested that a technician be sent to repair voting machine #1.”
The suit added the defendants never provided Tangradi with any training on the repair or maintenance of the Danaher Shouptronic 1242 voting machine, and did not have any polices/directives/procedures regarding the repair and maintenance of said voting machines – yet defendant Doe requested the plaintiff attempt to fix the machine herself.
“The Danaher Shouptronic 1242 voting machine comes as a unit, and is designed to fold up for transportation and/or storage. At the rear of voting machine is an approximately 3’ by 3’ box, approximately 8” deep, the front of which houses that actual voting machine. There were no warnings on the box or anywhere on the voting machine prohibiting persons from stepping inside the box area or warning of the dangers of stepping inside the box area,” the suit said.
“After Tangradi informed defendant City Commission employee Jane Doe that the machine was plugged in, defendant Jane Doe affirmatively ordered/directed plaintiff to read her information on a label that was located on the rear of the voting machine. The print on the label was very small, and because of the way defendant Danaher Corporation and/or Total Control Inc. and/or ABC Corporation designed the voting machine, to read the label the plaintiff had to step inside of the box.”
Subsequently, Tangradi stepped into the box with her right foot first, and then her left foot, which immediately became stuck in the left corner of the box. As Tangradi attempted to dislodge her left foot, she lost her balance, and because there was nothing to grab on to, fell to the ground, causing severe injuries.
“The plaintiff was a foreseeable victim of the defective, dangerously designed and manufactured Danaher Shouptronic 1242, and all defendants failed to warn her of the dangers of stepping inside the box located at the rear of the voting machine,” per the suit.
“As the direct and proximate result of all defendants’ acts and omissions, the plaintiff suffered serious injuries, including a severely broken left arm, requiring surgery and the insertion of a plate and seven screws, two torn rotator cuffs, and ongoing care, treatment and physical therapy.”
As a result of the incident, the plaintiff said she has both lost her job and incurred nearly $350,000 in medical bills and costs.
Counsel for the City defendants filed a motion to dismiss the suit on June 14, for failure to a state claim. The City did not believe that Tangradi adequately proved her claims of state-created danger and civil rights violations.
The City argued that Tangradi did not show that the harm ultimately caused was foreseeable and fairly direct; a state actor acted with a degree of culpability that shocks the conscience; and a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.
All of the above are required to prove a state-created danger existed.
Total Control, Inc. filed an answer to the complaint on Nov. 11, which denied its allegations entirely as conclusions of law to which no response is required, and levied a cross-claim against all of their fellow defendants.
“Answering defendant did not manufacture, distribute, supply, sell and had nothing to do with the subject Danaher Shouptronic 1242 voting machine. The incident which is the subject of this suit was not the result of any negligence, carelessness or recklessness on the part of answering defendant. Plaintiff’s injuries, damages and/or losses, if any, may have been caused in whole or in part by her failure to mitigate damages. If plaintiff sustained the injuries and damages as alleged in plaintiff’s complaint, said injuries and/or damages were not the result of any act or failure to act on the part of answering defendant. If there was a defect, which is denied, then such defect did not constitute an unreasonably hazardous condition, nor did it present an unreasonable risk of harm to plaintiff,” the answer’s affirmative defenses stated, in part.
“Plaintiff’s complaint may be barred and/or limited to the extent that plaintiff failed to give prompt notice to answering defendant. Answering defendant neither had nor should have had notice of any alleged defect and/or condition complained of in the complaint. The complaint may be barred or limited due to the acts or omissions of other third persons or persons not joined as parties herein over whom answering defendant had no control at the time of the alleged incident in question. plaintiff’s alleged injuries and damages may have been caused in whole or in part by circumstances and conditions other than the alleged incident described in the complaint.”
Both Fortive Corporation and Dynapar Corporation each filed answers to Total Control’s cross-claims on Nov. 30.
“To the extent the averments contained in Paragraph 2 of defendant Total Control, Inc.’s Cross Claim are directed to Fortive and Dynapar, the same are denied. By way of further response, it is specifically denied any product designed, manufactured or sold by Fortive or Dynapar caused injury to Plaintiff. It is further denied that any act and/or omission of Fortive or Dynar caused injury to plaintiff or that Fortive or Dynapar is liable to plaintiff or any other party to this action under any theory of law or equity,” the corporations’ answers read.
“Defendant Fortive Corporation denies liability under any theory to plaintiff or defendant Total Control, Inc. and respectfully requests that judgment be entered in favor of Fortive Corporation on Total Control, Inc.’s cross-claim.”
However, counsel for the plaintiff and Total Control, Inc. stipulated on Feb. 1 that the claims against the latter would be released for the time being.
“It is hereby stipulated by and between the undersigned counsel that any and all claims against defendant Total Control, Inc. are dismissed without prejudice,” the filing stated.
U.S. District Court for the Eastern District of Pennsylvania Judge Joel H. Slomsky authorized the dismissal on the very same day.
UPDATE
Counsel for both parties filed a joint stipulation to dismiss without prejudice all claims against defendant Danaher Corporation on March 15.
“The limitations period, that had not expired as of May 12, 2021 is hereby suspended, stayed or tolled, with respect to the claims set forth in the complaint against Danaher. Unless this stipulation is extended by further agreement of the parties, such tolling shall run from May 12, 2021 through May 12, 2023. All claims against Danaher in the Litigation are hereby dismissed without prejudice, with each Party to bear its own costs and attorneys’ fees. The parties agree that the doctrine of contra proferentum shall not apply and that this stipulation shall not be construed against the party that drafted it,” per the stipulation.
“The parties further agree that nothing contained in this stipulation shall be considered, construed or deemed an admission of liability, fault or other wrongdoing by any party, or an attempt to allocate liability or fault. This stipulation shall be binding upon and inure to the benefit of each of the parties and their respective successors, assigns, affiliates, parents, subsidiaries, officers, directors, agents and other representatives. This stipulation shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without reference to its choice of law rules. Each of the undersigned represents and warrants he or she is duly authorized to enter into this stipulation and that each intends the stipulation to be a valid and binding obligation, enforceable in accordance with its terms.”
For counts of state-created danger and civil rights violations through Monell and under 42 U.S.C. Section 1983, strict liability and negligence, the plaintiff is seeking compensatory damages against each of the defendants in excess of $175,000, plus interest, costs, attorney’s fees and delay damages.
The plaintiff is represented by Alan E. Denenberg of Abramson & Denenberg, in Philadelphia.
The defendants are represented by Shannon G. Zabel of the City of Philadelphia’s Law Department and Mitchell S. Berger of Ryan Brown McDonnell Berger Gibbons & LaRocca, both also in Philadelphia, plus Douglas M. Grimsley and Michael P. Flynn of Dickie McCamey & Chilcote, in Pittsburgh.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02165
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com