IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patricia M. White, :
Appellant :
:
v. : No. 625 C.D. 2015
: Submitted: October 5, 2015
Southeastern Pennsylvania :
Transportation Authority :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: November 4, 2015
Patricia White appeals an order of the Court of Common Pleas of
Philadelphia County (trial court) denying White’s post-trial motion to remove a
nonsuit and grant her a new trial on her complaint against the Southeastern
Pennsylvania Transportation Authority (SEPTA) for injuries she sustained when
she fell on a SEPTA bus. The trial court granted SEPTA’s motion for compulsory
nonsuit after concluding that, as a matter of law, White failed to establish a prima
facie case of SEPTA’s negligence. Finding no error by the trial court, we affirm.
The following relevant facts were adduced during White’s case in
chief at her jury trial. On January 27, 2012, White was riding a SEPTA bus home
from work to her regular stop at 51st and Spruce Streets in Philadelphia. While the
bus was stopped at a red light at 50th Street, White stood up and pulled a chord to
request the driver to stop at the next block. As White was reaching for a pole to
hold onto, the bus began to accelerate away from the stop. White fell backward
across the aisle into a seat and struck her head on a metal pole above the seat.
White testified that the acceleration “felt like a fast pull and then a forward push
and then [I] fell backwards.” Notes of Testimony (N.T.), 2/19/2015, at 137;
Reproduced Record at 514 (R.R. __). White suffered a severe concussion, post-
concussive syndrome and a subdural hematoma.
White presented Daniel Imaizumi, M.S., a high school physics
teacher, as a liability expert. The trial court allowed Imaizumi to testify as an
expert on his educational knowledge of physics as applied to the incident in
question. Imaizumi testified that he viewed a video recording of the incident
produced by SEPTA, went to the accident location, matched video “markers” with
actual locations and took measurements. Applying mathematical equations,
Imaizumi determined that the bus traveled 133 inches in two and one-eighths of a
second, or 1.5 meters per second squared. N.T., 2/18/2015, at 70; R.R. 379.
Imaizumi testified that he could not compare the forces exerted on White with
those on seated passengers because their centers of gravity are different. Id. at 63-
64; R.R. 377.
Imaizumi conducted an experiment designed to emulate the force
someone would experience at the rate of acceleration to which he believed White
was exposed. The experiment, which was recorded and played for the jury,
involved pulling a test subject on a dolly at the same speed as the bus for a distance
of 133 inches. Imaizumi’s video showed the test subject in four different
positions: (1) seated; (2) standing with his legs apart in an athletic stance; (3)
standing with his legs together in a parallel stance; and (4) mimicking White’s
position at the time of the incident by leaning on his left foot with his right foot
2
slightly supported. Pulling the dolly at the calculated rate of acceleration had no
effect on the seated subject. When the test subject assumed the athletic stance he
had some difficulty maintaining his balance. In the parallel stance the test subject
had great difficulty maintaining his balance and nearly fell. When the test subject
replicated White’s stance, the acceleration caused him to fall off the dolly.
According to Imaizumi, his experiment demonstrated that the bus’s acceleration
was “unreasonably high” because the subject was unable to maintain his balance
when mimicking White’s stance immediately before she fell. N.T., 2/18/2015, at
79; R.R. 381.
Michael Cohen, M.D., a neurologist, testified as a medical expert on
White’s behalf. Dr. Cohen opined that White’s brain injury occurred when “she
was forcibly thrown back into a pole because the driver accelerated.” N.T.,
1/23/2015, at 56; R.R. 450. Dr. Cohen explained that he reached this conclusion
because he believed “that the only way [White] could have had sufficient trauma to
… cause her post-concussion syndrome … [and] subdural hemorrhages … was
[being] thrown forcefully, thrust into the pole.” Id. at 60; R.R. 454.
White offered into evidence SEPTA’s video recording of the incident.
The video depicts the bus coming to a stop; White standing up and signaling for
the next stop; the bus accelerating from the stopped position; and White falling
backwards across the aisle and striking her head above a bus seat as she lands in a
seated position. See Appendix A, R.R. 595.
Finally, White presented the testimony of two SEPTA employees:
Arthur Langford, the bus driver, and Hasan Hall, a corporate designee. These
witnesses confirmed that SEPTA’s policy requires bus drivers to distribute witness
3
cards to passengers following an accident. Langford did not distribute any witness
cards after White fell.
SEPTA moved for a nonsuit at the conclusion of White’s case.
SEPTA argued that White had failed to overcome the so-called “jerk and jolt”
doctrine, which allows a plaintiff to recover only where an unusual or
extraordinary movement of a public transportation vehicle has caused the injury.1
The trial court granted SEPTA’s motion. White filed a post-trial motion to remove
the nonsuit, which was denied. White now appeals to this Court.
On appeal,2 White argues that the trial court erred in entering a
nonsuit in favor of SEPTA because White presented sufficient evidence for a jury
to decide whether the bus’s “jerk and jolt” was extraordinary. This evidence
1
The Supreme Court has summarized the “jerk and jolt” doctrine as follows:
It is well established by a long line of decisions that testimony indicating that a
moving trolley car jerked suddenly or violently is not sufficient, of itself, to
establish negligence in its operation. There must be a showing of additional facts
and circumstances from which it clearly appears that the movement of the car was
so unusual and extraordinary as to be beyond a passenger’s reasonable
anticipation, and nothing short of evidence that the allegedly unusual movement
had an extraordinarily disturbing effect upon other passengers, or evidence of an
accident, the manner of the occurrence of which or the effect of which upon the
injured person inherently establishes the unusual character of the jolt or jerk, will
suffice.
Connolly v. Philadelphia Transportation Co., 216 A.2d 60, 62 (Pa. 1966) (quoting Staller v.
Philadelphia Rapid Transit Co., 14 A.2d 289, 291 (Pa. 1940)). The “jerk and jolt” test is
difficult to meet. Bost-Pearson v. Southeastern Pennsylvania Transportation Authority, 118
A.3d 472, 476 (Pa. Cmwlth. 2015).
2
This Court’s review of a trial court’s order denying removal of a nonsuit is to determine
whether the trial court abused its discretion or committed an error of law. Asbury v. Port
Authority Transit of Allegheny County, 863 A.2d 84, 88 n.4 (Pa. Cmwlth. 2004). A judgment of
nonsuit may be entered only in the clearest cases, and a plaintiff must be given the benefit of all
favorable evidence, together with all reasonable inferences of fact arising therefrom, and any
conflict in the evidence must be resolved in the plaintiff’s favor. Id.
4
included White’s testimony, video footage of the incident, Imaizumi’s expert
liability testimony, and Dr. Cohen’s expert medical testimony. White also
contends that the driver’s failure to distribute witness cards following the incident
constituted spoliation of evidence and entitled her to an adverse inference charge.
White asserts that the trial court, by granting a nonsuit, misapplied the law and
improperly substituted its own credibility and factual findings for those of the jury.
We have reviewed White’s evidence, including the video recordings
of the incident and Imaizumi’s experiments. We agree with the trial court’s
assessment of White’s evidence, i.e., even when viewed in a light most favorable
to White, and drawing all reasonable inferences in her favor, she failed to
demonstrate that the acceleration of the bus was so unusual or extraordinary as to
merit submission of her case to the jury. Based on the well-reasoned opinion of
the Honorable Karen Shreeves-Johns, which explains why White’s case is barred
by the “jerk and jolt” doctrine, we affirm.
______________________________
MARY HANNAH LEAVITT, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patricia M. White, :
Appellant :
:
v. : No. 625 C.D. 2015
:
Southeastern Pennsylvania :
Transportation Authority :
ORDER
AND NOW, this 4th day of November, 2015, the order of the Court of
Common Pleas of Philadelphia County in the above-captioned matter, dated
February 20, 2015, is AFFIRMED on the basis of the opinion of the Honorable
Karen Shreeves-Johns in White v. Southeastern Pennsylvania Transportation
Authority (Phila. Co., No. 1421 Dec. Term 2013, filed May 19, 2015).
______________________________
MARY HANNAH LEAVITT, Judge