A Philadelphia judge is urging the Commonwealth Court to deny the appeal of a man who was injured during a videotaped incident in which he fell between SEPTA train cars.
Philadelphia Court of Common Pleas Judge Ellen Ceisler recently filed an opinion supporting her decision to deny the post-trial motions of plaintiff Dennis Morgan, who suffered a partial foot amputation and spinal fractures after he was dragged under a SEPTA train. The jury in the case had rejected Morgan’s claims that the Southeastern Pennsylvania Transportation Authority was negligent for failing to ensure that all passengers had safely boarded the train.
Morgan has argued Ceisler erred in precluding references to a fatal 2007 incident in which a man fell between SEPTA train cars, and allowing evidence that Morgan was allegedly intoxicated at the time.
Ceisler, however, contended in her Section 1925(a) opinion, which was filed with the court Sept. 18, that the evidence went to Morgan’s state of mind.
“Compelling evidence of alcohol consumption by the appellant prior to the accident certainly provided important insight into appellant’s state of mind and judgment at the time of the accident and offered some rational explanation as to why the appellant would engage in such irrationally reckless behavior,” Ceisler said. “Additionally, based on the video and photographs, it was eminently reasonable for the jury to infer that the appellant attempted to board the train carrying a 40 oz. bottle of malt liquor.”
According to Ceisler, videotape, trial testimony and other evidence showed that, at about 2 p.m. Aug. 31, 2012, Morgan arrived at the Fern Rock subway station.
Morgan was unable to cross the platform before doors to another train he intended to board had closed, Ceisler said. Then, Morgan, who was carrying a red plastic bag, opened a safety gate located between the third and fourth cars, and then tried to climb over three safety chains between the two cars. At that point, however, the train started to move out of the station.
Morgan then lost his balance, according to Ceisler, and fell between the cars and was dragged under the train.
Morgan was taken to Albert Einstein Hospital, where he was treated for a partial amputation of his left foot, along with fractures of the spine and hip. He also sustained nerve damage that affected his bowels and bladder, and allegedly caused a “drop foot” condition.
Morgan sued SEPTA, and argued that at least one employee should have known he was between the train cars before it started moving.
SEPTA filed a motion seeking to bar Morgan from introducing information about a 2007 incident in which Shawn Hood was killed while attempting to board a SEPTA train.
The safety report had indicated Hood tried to jump over the gates between two cars, lost his grip, fell under the cars and was killed. SEPTA argued the Hood incident was factually distinct from Morgan’s claims, and so it should be precluded.
Morgan countered that any differences were trivial, and also sought to preclude evidence of his alleged intoxication, arguing there was no evidence to corroborate that he was drunk.
The trial court allowed SEPTA to introduce the statements Morgan made to the hospital, including saying that, prior to the accident, “he was drinking heavily.” The trial court also allowed SEPTA to introduce photographs taken at the scene, some of which showed the red plastic bag and the malt liquor bottle lying on the tracks.
The case went to trial, and resulted in a defense verdict in early June.
On appeal, Ceisler said the Hood incident was properly precluded because it occurred years earlier, at a different station, and Morgan had no evidence about the timing of the incident, nor Hood’s physical or emotional state at the time.
“While evidence of prior incidents can be relevant where they have provided notice of a particular dangerous condition, appellant had no evidence even hinting that a similar dangerous condition existed,” Ceisler said.
Regarding the evidence related to Morgan’s alleged intoxication, Ceisler noted Morgan admitted at trial that he typically drank that brand of beer. She further said the evidence was relevant to show how potentially dangerous Morgan’s actions were.
Morgan “compounded the obvious danger by attempting to do this with one arm/hand, so as to keep his other arm/hand free to carry his plastic bag and protect the contents contained therein,” Ceisler said. “For this reason as well, the evidence of the bag and its contents and the manner in which appellant was holding them while trying to get into the train, were also relevant for SEPTA to prove that appellant acted in an extremely reckless manner.”
Albert Brooks Jr. of Fodera & Long, who represented Morgan, said the case exposed a “serious blind spot in SEPTA’s procedures,” and evidence of the Hood incident should have been put before the jury.
“We certainly feel that the Shawn Hood fatality was identical,” Brooks said. “We’re confident that the jury would have seen this matter differently if they knew SEPTA’s safety failures led to a death just five years before Mr. Morgan’s accident.”
Offit Kurman attorney Mark Gottlieb, who represented SEPTA, did not return a call for comment.
(Copies of the 11-page opinion in Morgan v. Southeastern Pennsylvania Transportation Authority, PICS No. 15-1466, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •