PHILADELPHIA – A federal judge has ruled that a Delaware woman is entitled to $250,000 in damages from the United States government – but not from the City of Philadelphia – in a negligence lawsuit contending she was injured when going through a Transportation Security Administration checkpoint at Philadelphia International Airport.
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 17, 2023, 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, 2023.
“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, 2023, 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.
In response to the associated motion for summary judgment, Perez further denied that attempt as well on Aug. 31, 2023.
UPDATE
In an Aug. 28 memorandum opinion, Perez found that Allen-Fillmore was entitled to $250,000 from the U.S. government, but that she had not put forward evidence to be entitled to damages from the City of Philadelphia.
“At trial, the Court heard testimony from two experts: Scott Moore, P.E,. a licensed civil engineer who was a liability expert for plaintiff; and Brian Mills, P.E., a licensed mechanical engineer and human factors expert who testified on behalf of the City. Plaintiff’s expert Moore and the City’s expert Mills conducted two separate site inspections of TSA Checkpoint D/E. They each performed testing of the terrazzo flooring using a tribometer to measure slip resistance,” Perez said.
“Both Moore and Mills concluded that the terrazzo flooring at PHL is slip resistant under dry conditions for pedestrians who are wearing appropriate footwear. In reaching their opinions, both experts relied on the International Building Code, which has been adopted by the City in the Philadelphia Building Construction and Occupancy Code, as well as the industry standards for slip resistance set forth by the American Society for Testing and Materials and the American National Standards Institute. These flooring safety standards establish slip resistance criteria for a floor’s intended use and environmental conditions. This Court finds that the terrazzo flooring at PHL is slip resistant for its intended use – that is, for pedestrians wearing appropriate footwear.”
Notably, Perez mentioned there were “no signs posted at TSA checkpoint areas warning of the risk of slippery flooring conditions for people in socks” and “anti-slip coating has never been applied to the terrazzo flooring at [Philadelphia International Airport].”
Perez found while the City of Philadelphia was not ultimately responsible for Allen-Fillmore’s injuries, the TSA’s negligent actions did in fact contribute to causing those same injuries.
“The City is required by contract and under federal law to provide space to the TSA for security screening, and the TSA independently operates and exercises control over not just the screening process, but importantly for this case, the way the screening area is assembled or organized. The City has maintained its premises in accordance with flooring safety standards, which are based on the assumption that people will be wearing shoes. The terrazzo flooring is safe for pedestrians wearing appropriate footwear throughout the rest of the airport. The City had no independent duty to ‘inspect and discover whether it was safe for passengers in their socks to walk on the terrazzo flooring’ as plaintiff contends. The City ‘provided a slip-resistant floor under expected walking conditions wearing footwear,” Perez said.
“The TSA had a duty to conduct reasonable inspections of its checkpoint areas to discover dangerous conditions and to provide such warnings or safeguards as may be necessary for the business invitee's protection. Here, the evidence shows that the TSA should have long been aware that the terrazzo flooring at PHL presented a slipping hazard for travelers navigating the security checkpoint in their socks. Despite its knowledge of the risks to passengers, TSA failed to take any remedial steps to address the hazardous condition. The TSA breached its duty to plaintiff by failing to: (1) perform any inspection of the floors to test slip resistance for shoeless passengers; (2) provide warnings to passengers of the walking surface conditions for people wearing socks; (3) place the anti-fatigue mats all the way through the checkpoint area. The placement of additional mats in the checkpoint through the area where passengers retrieve their shoes and belongings from the x-ray conveyor belt would likely have prevented plaintiff’s fall.”
According to Perez’s conclusion, “The TSA exhibited negligence in failing to provide a slip-resistant pathway for airline passengers like plaintiff who are compelled to navigate checkpoint areas without appropriate footwear. Having found the government liable for negligence, a judgment in the total amount of $250,000 is awarded to plaintiff.”
Perez found that the plaintiff was entitled to damages for medical costs and pain and suffering, but noted her award was reduced based on her failure to fully comply with post-op physical therapy.
The plaintiff is represented by Andrew Neuwirth of Neuwirth Law Office, in King of Prussia.
Defendant City of Philadelphia is represented by lead counsel Michele E. Turner and Jacob Brandon Yzzi of Bennett Bricklin & Saltzburg, LLC, while defendant TSA is represented by Landon Y. Jones of the U.S. Attorney’s Office, 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