PHILADELPHIA – The City of Philadelphia and two of its Commissioners have been dismissed from 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 state a 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.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Joel H. Slomsky ordered the dismissal of the City/County of Philadelphia and Commissioners Deely and Schmidt from the case on March 17, who had been listed under claims of a state-created danger theory.
“Even when the facts alleged in the amended complaint are viewed in the light most favorable to plaintiff, they are not sufficient to put Jane Doe on notice that she subjected plaintiff to a risk of harm, never mind the risk that she would fall and break her arm. This result is also irrespective of the lack of any technical training or knowledge by plaintiff of which Jane Doe may or may not have been aware,” the dismissal motion said.
According to Slomsky, “nothing in the Amended Complaint even suggests that anyone had previously complained to Jane Doe regarding a risk of harm caused by the voting machines or that anything had previously occurred that would make her aware of the risk of harm” – and further, “the plaintiff’s assertion that the risk of harm of asking a person to investigate a malfunctioning voting machine – by checking if it is plugged in or reading a label on the back of the machine, as is alleged here – is so obvious and inherent that ‘common sense and experience’ should have put Jane Doe on notice of the risk is unpersuasive. And the fact that there are trained technicians who can fix the machines does not mean that they are inherently dangerous.”
Thus, Slomsky said the plaintiff did not demonstrate that the harm she suffered was foreseeable – however, he did agree that the plaintiff “sufficiently alleged that the harm she suffered was fairly direct from Jane Doe’s actions because these actions did set in motion a chain of events that apparently resulted in plaintiff’s injury.”
“The status quo prior to plaintiff’s call to Jane Doe was that plaintiff was not standing in the box in the back of the machine in an attempt to read the label. In other words, but for Jane Doe requesting plaintiff to attempt to fix the voting machine, it is likely that plaintiff would never have stepped into the box in the back of the machine to read the label, had her foot stuck, attempted to dislodge it, lost her balance, and broken her arm. Therefore, when viewing the facts in the light most favorable to plaintiff, it can fairly be said that Jane Doe’s affirmative actions formed a direct causal relationship with plaintiff’s injury, in that, if it were not for Jane Doe’s actions, the harm would not have occurred,” Slomsky stated.
“Therefore, plaintiff has satisfied the final element of the state-created danger test. However, because she has failed to demonstrate that the harm she suffered was foreseeable, or that Jane Doe’s actions shocks the conscience, her state-created danger claim ultimately fails.”
Slomsky further found that the plaintiff could not show that a City policy, custom, or deliberate indifference caused a constitutional violation, and thus, her Monell claim failed.
For counts of 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 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