PITTSBURGH – A federal judge has conditionally dismissed counts of survival and wrongful death against a taxi cab company, who a plaintiff says was responsible for the death of a woman afflicted with dementia, who was dropped off by one of the company’s cabs and wandered alone before later drowning in the swimming pool of one of the suit’s co-defendants.
Clarence E. Porter (as administrator of the Estate of Maxine Gillis, deceased) of Penn Hills first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 17 versus the United States of America, Classy Cab Company, Inc. (doing business as “Star Transportation Group, Inc.”, “Air Star Transportation & Limousine Service, Inc.”, “Cranberry Taxi, Inc.” and “Veteran’s Taxi”) of Cranberry Township and De Voka Gordon, of Pittsburgh.
“Plaintiff, Clarence Porter, and decedent, Maxine Gillis, were a married couple. On or about March 18, 2021, the decedent was present at the VA Hospital with plaintiff Porter, who was receiving treatment at the facility. Gillis suffered from the medical condition of dementia. Defendant Pittsburgh VA and their staff, was made aware of this fact by plaintiff Porter, who ensured that all staff caring for him knew of the medical condition afflicting Gillis,” the suit said.
“On the aforementioned date, plaintiff was at the facility undergoing testing for medical conditions involving his heart. Defendant USA, by and through its staff, agents, or employees, expressed to plaintiff that he be held overnight for observation. Porter requested that Gillis stay the night with him at the hospital. Said defendant, by and through its staff, agents, or employees, denied the request for Gillis to remain in the hospital overnight. Said defendant, by and through its staff, agents, or employees, did assume the responsibility of contacting transportation services for Gillis in order for her to be safely transported to the home of Toni McClendon, plaintiff’s sister, situated at 2103 Park Hill Drive in Wilkinsburg.”
The defendant taxi service arrived at the VA Hospital to transport Gillis as intended, the suit added, though it utilized the “door-to-door” method of service as opposed to the “hand-to-hand” method of service, which would have ensured that a passenger with a severe loss of function, such as Gillis, would safely reach their final destination.
Rather, the suit alleged that Gillis was merely dropped off outside McClendon’s home at just past 1 a.m., without making sure that she made it inside safely.
“At some point during the early hours of March 19, 2021, Gillis exited the Taxi she was a passenger in, without the transport driver assuring a safe reception with McClendon, and, Gillis, upon information and belief, began walking, all alone, along a main thoroughfare. On or about March 19, 2021, in or around the time of 3:40 a.m., a request was made by plaintiff’s family, claiming Gillis failed to arrive at the specified location. Sadly, later that same morning, Gillis was found dead in a swimming pool owned by defendant Gordon, located at 2285 William Penn Highway in Wilkinsburg, PA, approximately two miles from the location where she was to be delivered,” the suit stated.
“Gordon is the owner of a swimming pool on the property. Gordon’s swimming pool is enclosed, as required by law, by a structure which, if properly maintained, would prevent persons from entering the swimming pool. Gordon had a duty under Pennsylvania law to ensure that her swimming pool was maintained in a safe manner. Upon information and belief after investigation in this matter, it is not in dispute that defendant Gordon failed to safely close, secure, latch, lock, etc., the gate access to the pool area at her home, which was left either opened or unlocked and not sufficiently secured, which represents a gross breach of the standard of care for person owning pools in the locale wherein Gordon lived. Gordon failed to ensure that the safety enclosure employed in or around her swimming pool was self-closing or self-latching.”
The Allegheny County Medical Examiner determined that Gillis’s cause of death was accidental drowning, which the suit states was “a direct and proximate result of several breaches identified above by the named defendants in this matter.
Gordon answered the complaint on Aug. 25, and further asserted a cross-claim for liability against Classy Cab Company, Inc. Though admitting she owned the property in question, Gordon added she was without knowledge of what caused the tragic events in question and redirected liability for them to the cab company.
“The plaintiffs’ complaint fails to state a claim upon which relief can be granted as against Gordon. Plaintiffs’ claims are barred by doctrines of waiver, estoppel and laches. Plaintiff’s claims are barred by applicable statutes of limitations. At all times relevant, the property owned by Gordon was private property and clearly marked with no trespassing signs,” the answer stated, in part.
“The plaintiff’s decedent was a trespasser at the time of the accident described in the complaint. At all times relevant, the property owned by Gordon was gated and latched. To the extent supported by the facts, Gordon pleads the defense of comparative negligence on the part of the plaintiff’s decedent.”
Classy Cab Company, Inc. motioned to dismiss the case on Aug. 29, arguing it did not breach a duty under the law to the decedent Gillis and that the plaintiff failed to state a claim upon which relief could be granted.
“First, it is noted the transport of Gillis was not a transport which fell under the contractual relationship between Classy Cab and the Pittsburgh VA, as Gillis is not a patient of the Pittsburgh Hospital. As such, Gillis’s transport was akin to any other transaction in which Classy Cab arrived to pick up a passenger and transport them to a requested location. Additionally, as admitted by plaintiff in the complaint, the Pittsburgh VA personnel failed to communicate to Classy Cab’s employees that Gillis suffered from a mental disability of any kind,” the dismissal motion stated.
“As such, contrary to plaintiff’s contention in the complaint, the duties of Classy Cab were not that which were due to disabled person, as Classy Cab was not informed by any of the Pittsburgh VA personnel that Gillis suffered from a mental disability. Further, there is no allegation to support the proposition that Classy Cab was required to ascertain additional information from the Pittsburgh VA personnel as to the status of a standard passenger such as Gillis, or to either independently assess the mental state of Gillis or question the assessment made the Pittsburgh VA personnel of her mental state, as alleged in the complaint. In light of the above, Classy Cab was not required to employ any specific ‘hand-to-hand’ transportation method in relation to Ms. Gillis, a standard taxi fare customer.”
The company explained that a “number of factors contributed to the harm which came of Gillis, not the least of which was the failure of the Pittsburgh VA personnel to alert Classy Cab and its employees that Gillis suffered from a mental disability and required special care, or the fact that a gate at a nearby pool was left unlocked.”
“As such, there is not sufficient information in the complaint to show that any actions of Classy Cab were the proximate cause of Gillis’s tragic death. Similarly, with no knowledge as to any specific mental disabilities or medical conditions of Gillis, and no way to know that a nearby pool was left for anybody to access, there was no way for the driver of the cab to foresee there would be any danger at the drop-off point. As the call to Classy Cab was placed as a standard fare rather than a transport of a patient pursuant to the contract, Classy Cab employees acted in a way which was standard for the duty owed to Gillis at the time,” the motion stated.
The U.S. government answered the complaint on Sept. 20, denying responsibility for Gillis’s death.
“Plaintiffs have failed to state a claim upon which relief can be granted. The alleged injuries and damages of plaintiffs were not proximately caused by a negligent, careless or wrongful act or omission of the defendant United States. Plaintiffs’ damages against the United States are limited to the damages recoverable under the Federal Tort Claims Act. Attorney’s fees are governed by the statute. Plaintiffs are not entitled to an award of pre-judgment interest as to the United States. Plaintiffs are not entitled to an award of post-judgment interest as to the United States,” the answer’s affirmative defenses stated.
“The acts of others, and not defendant, United States, were the sole and proximate intervening and/or superseding cause of the occurrence set forth in plaintiffs’ complaint. Plaintiffs are therefore barred from recovery. Plaintiffs’ injuries or damages, if any, were caused by the negligence or wrongful acts of third parties that were not under the control of the defendant United States. If defendant United States was negligent, which is expressly denied, others were also negligent. Defendant may thus only be held liable for its proportionate share of the fault, if any. Plaintiffs’ claims against the defendant United States are limited to those set forth in their SF-95 administrative claim and under the Federal Tort Claims Act. Failure by plaintiffs to exhaust administrative remedies bars recovery.”
UPDATE
On Feb. 28, U.S. District Court for the Western District of Pennsylvania Judge W. Scott Hardy granted the taxi cab company’s motion to dismiss the counts of survival and wrongful death against it.
“Upon consideration of the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by defendant Classy Cab Company, Inc., and the briefs filed by the parties in support and in opposition, and for the reasons the Court stated on the record at the oral argument on Classy Cab’s motion held this day, it is hereby ordered that: Classy Cab’s motion to dismiss is granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, and the claims against Classy Cab in Counts III and IV of plaintiff’s complaint are dismissed without prejudice to amendment of the complaint,” Hardy said.
“Plaintiff shall file his amended complaint by March 30, 2023, and defendants’ responses thereto are due by May 1, 2023. If plaintiff declines to file an amended complaint by March 30, 2023, then Counts III and IV of the complaint will be dismissed with prejudice and the case will proceed accordingly.”
For multiple counts of survival and wrongful death, the plaintiff is seeking all damages recoverable under the applicable laws of this Commonwealth against the defendants, individually or jointly and severally.
The plaintiff is represented by Matthew J. Scanlon of Scanlon & Wojton, in Pittsburgh.
The defendants are represented by Ashley N. Rodgers of Lewis Brisbois Bisgaard & Smith, Kathleen S. McAllister of DiBella Weinheimer and Michael C. Colville of the U.S. Attorney’s Office, all also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-00734
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com