PHILADELPHIA – A federal judge has denied the U.S. government’s motion for summary judgment, in response to a Delaware woman’s negligence lawsuit which contended she was injured when going through a Transportation Security Administration checkpoint at Philadelphia International Airport more than two years ago.
Jacqueline Allen-Fillmore of Dover, Del. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 26, 2022 versus the Transportation Security Administration, Philadelphia International Airport and the City of Philadelphia.
The plaintiff alleged that she was flying out of the Philadelphia International Airport on Jan. 14, 2021, to visit family in North Carolina. She claimed that at the TSA security checkpoint, she removed her shoes and was processed by TSA officers through the luggage and body scans.
The plaintiff alleged that she was only wearing socks when she slipped and fell on a slippery floor, and that the rubber mats in the area were placed in a “haphazard manner.”
She alleged the defendants were negligent for failing to prevent travelers from walking in area where a dangerous condition existed, failing to warn of the hazard, failing to inspect and maintain its premises in a safe condition or to correct the dangerous condition.
The plaintiff further claimed as a result of the fall, she suffered a fractured knee which required surgery and rehabilitation and incurred medical treatment expenses. She also argued the defendants had been on notice of the defective condition of the flooring prior to her fall, and failed to apply a slip-resistant coating in the area.
(An amended version of the complaint filed on June 6, 2022 added the United States of America and John Doe(s) as defendants, while Philadelphia International Airport and TSA were dismissed as defendants from the case on May 19 and June 8, 2022, respectively.)
On March 20, counsel for the United States of America filed a motion to dismiss the case for lack of jurisdiction under the Federal Tort Claims Act, or, in the alternative a motion for summary judgment to dismiss the City of Philadelphia’s cross-claim against it.
“Even if the Court were to consider the merits, there is an absence of any genuine issue of material fact regarding the basic elements of liability. TSA is not the possessor of the area of the Airport where Allen-Fillmore fell. Rather, it is undisputed that the City owns the Airport, including its floors, and, although the City makes space available to TSA so it can conduct its screenings, TSA does not own or lease those areas. Even if TSA could be said to control the screening area while it is conducting screenings, it is undisputed that its control does not extend to replacing or modifying the flooring surface. (And the City is undisputedly responsible for the overnight cleaning and regular buffing and waxing of the floor,” the motion stated, in part.
“Moreover, there is no evidence of the presence of any dangerous condition not obvious to a visitor. Allen-Fillmore acknowledged that there was no foreign substance present on the floor at the time of her fall. She simply contends that the floor is too slippery. But more than 8 million people successfully navigated the Airport floors in 2021 (a year when travel was depressed due to the pandemic). The Airport has common terrazzo floors that any visitor to the airport is familiar with, including Allen-Fillmore, by her own admission. TSA has long announced to the flying public that it will require passengers to remove their shoes to pass through security. Allen-Fillmore herself had been required to take off her shoes on her prior visits to the Airport and expected to do so on this trip, describing it as ‘routine.’ As a matter of law, the Airport’s terrazzo floor is not an unreasonably dangerous condition, even for people with socks, and even if it were, its condition is open and obvious. Furthermore, to the extent Allen-Fillmore seeks to base liability on some perceived shortcoming of TSA’s cleaning contractor, Byrd Enterprises, the United States is not liable for the conduct of its independent contractors under the FTCA.”
The plaintiff filed a motion to strike the dismissal motion for lack of jurisdiction or in the alternative, a motion for summary judgment to dismiss the City Of Philadelphia’s cross-claim on March 30.
“On April 26, 2022, the complaint in this matter was filed alleging negligence by TSA and the City of Philadelphia. On May 4, 2022, interrogatories and requests for production of documents were served on defendant City of Philadelphia and served on defendant USA/TSA on Aug. 24, 2022. Thereafter, depositions of two TSA witnesses, Director Myers and TSO Brown were conducted. Also, depositions of two City of Philadelphia employees involved in custodial maintenance and dealings with TSA were conducted. During discovery, the Government failed to produce a document known as the Checkpoint Requirements and Planning Guide (CPRG), despite the CPRG specifically detailing that the checkpoints were supposed to follow all state and local building codes and best practices as well,” per the motion to strike.
“It is impossible to assert that it was either irrelevant or privileged. Therefore, it should have been produced. Plaintiff’s counsel should not have to wade through the morass of federal bureaucratic publications when TSA’s own counsel is involved in the case. While this document was discovered to be publicly available, this is evidence of the Government’s repeated failure to honor its discovery obligations. As a result, plaintiff’s counsel was forced to pursue its own investigation once the existence of the document was revealed after Director Myers’ deposition. Though the Government was certainly required to disclose the CPRG, this failure curtailed questioning of Myers. Next, the Government failed during discovery to produce a document known as the Other Transaction Agreement. The Agreement is essentially the lease for the TSA’s use of space at PHL.”
Plaintiff counsel continued that the failure to produce the document in question was unacceptable.
“This was specifically requested well before depositions and not produced. No excuse was provided by the Government’s counsel other than something to the effect of ‘this was just provided to me by the City.’ This is plainly unacceptable. The TSA is a signatory to this document. Failure to produce this pertinent document is absurd,” per the motion to strike.
According to plaintiff counsel, a deposition from Director William Myers contained incorrect and contradictory information as to the anti-slip coating used to treat the floor at Philadelphia International Airport.
“Myers is not competent to make such a statement regarding the dangers of these products. He testified at his deposition that he had no training or experience in custodial operations, had no experience doing custodial work, did not have any certifications from flooring associations or any technical qualifications regarding flooring, is not qualified by the National Terrazzo and Mosaic Association, and does not attend conferences on airport safety or checkpoints,” per the strike motion.
However, on Aug. 7, U.S. District Court for the Eastern District of Pennsylvania Mia Roberts Perez denied the motion to strike.
“On consideration of plaintiff’s motion to strike certain documents and for sanctions and all responses thereto, it is hereby ordered that plaintiff’s motion is denied,” Perez stated.
UPDATE
In response to the associated motion for summary judgment, Perez further denied that attempt as well on Aug. 31.
Perez explained that “the Agreement between the City and the TSA does not make clear that either party is the sole possessor of the checkpoint area” – though the City’s access is largely restricted during the TSA’s operating hours, Perez said, the facts also demonstrate that “outside of TSA operating hours, the City maintained possession and control of the flooring even within the checkpoint grounds.”
Perez added that the plaintiff “presents facts that the terrazzo flooring failed to comply with various codes and regulations pertaining to its usage, safety, and maintenance” and that “there is enough evidence, under the summary judgment standard, for a reasonable fact-finder to conclude that the City’s negligence created a hazardous condition for the thousands of shoeless passengers who travel through airport security screenings at PHL each day.”
“The United States and the City each point the finger at one another, asserting that they are not the possessor of the premises. This Court has already rejected the United States’ argument that it does not own or lease the checkpoint area and does not exercise any control over the flooring decisions or maintenance for purposes of a negligence tort claim. The City now argues that the real property exception to the Pennsylvania Political Subdivision Tort Claims Act, does not apply in this case because it did not ‘possess’ the checkpoint area where the incident occurred. This very dispute demonstrates that the premises liability question is too entangled in the of liability determination to make summary judgment appropriate in this case. There are genuine issues of material fact surrounding who was in possession of the checkpoint area and to what degree, if any, there is shared responsibility for Ms. Allen-Fillmore’s injuries,” Perez stated.
“Drawing all inferences in favor of Ms. Allen-Fillmore as the non-movant, this Court finds that genuine issues of material fact remain with respect to a myriad of issues concerning liability in this case, including but not limited to: who possessed the land covering the checkpoint; whether the cleanliness of the flooring contributed to the slippery condition of the terrazzo; who was responsible for cleaning the security checkpoint areas; whether the cleaning and maintenance of the terrazzo flooring complied with pertinent building regulations on slip resistance; how often the terrazzo was cleaned; and whether the slippery condition of the terrazzo flooring was known and obvious. In short, the reasons behind the slippery condition and who may be liable are plainly in dispute.”
For multiple counts of negligence, the plaintiff is seeking damages in excess of $75,000, consisting of compensatory, economic and non-economic damages, in addition to other damages permitted by law.
The plaintiff is represented by Andrew Neuwirth of Neuwirth Law Office, in King of Prussia.
The defendants are represented by Jacob Brandon Yzzi and Michele E. Bennett of Bennett Bricklin & Saltzburg, Landon Y. Jones of the U.S. Attorney’s Office and Joseph G. McHale of William J. Ferren & Associates, all in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-01610
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com