Asbury v. PAT OF ALLEGHENY COUNTY

863 A.2d 84, 2004 Pa. Commw. LEXIS 877
CourtCommonwealth Court of Pennsylvania
DecidedDecember 7, 2004
StatusPublished
Cited by13 cases

This text of 863 A.2d 84 (Asbury v. PAT OF ALLEGHENY COUNTY) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asbury v. PAT OF ALLEGHENY COUNTY, 863 A.2d 84, 2004 Pa. Commw. LEXIS 877 (Pa. Ct. App. 2004).

Opinions

OPINION BY

Senior Judge FLAHERTY.

Leslie Asbury (Asbury) appeals an order of the Court of Common Pleas of Allegheny County denying her post-trial motions to remove a nonsuit and to grant her a new trial. The trial court granted the Port Authority Transit of Allegheny County’s (PAT) motion for a compulsory non-suit after the trial court concluded that, as a matter of law, Asbury failed to produce sufficient evidence at trial that PAT was negligent in causing her to fall while riding a PAT bus.

Asbury raises the following three issues for this court’s review: whether, given her physical conditions at the time of the incident, PAT’s bus driver was negligent in moving the bus before Asbury was seated; whether the trial court erred in concluding that she failed to produce sufficient evidence of negligence to satisfy the requirements of Pennsylvania’s “jerk or jolt” doctrine; and whether the bus driver failed to comply with a policy of PAT requiring him to distribute witness cards after the accident.

On, November 26, 1999, Asbury boarded a PAT bus in order to return home from work. At the time, Asbury was twenty-nine years of age and was thirty-four weeks pregnant. After boarding the bus, Asbury proceeded to a seat. As the bus pulled away from the bus stop Asbury, while not yet seated, lost her balance and fell in the aisle, fracturing the femur bone in her left leg. The bus driver called for medical assistance, and Asbury was transported to a local hospital where she was first treated by Dr. David Neuschwander, an orthopedic surgeon. On the same day, Dr. Neuschwander performed surgery to place a stabilizing rod in Asbury’s femur bone, after which she was prescribed a program of physical therapy.

Asbury filed suit against PAT, alleging negligence on the part of the bus driver for placing the bus in motion before she was seated. At a jury trial held in November 2001 Asbury testified that at birth she suffered from clubbed feet and shortened heel cords and that, although surgery had partially corrected the defects, she still had flat- feet, walked with a limp and had some trouble climbing stairs. Asbury stated that, as she boarded the. bus she was carrying her purse and a knapsack and that she- did not speak to the bus driver. Asbury walked down the aisle to the first seat facing the front of the bus. She [87]*87placed her belongings on the seat and was in the process of getting ready to sit down when the bus “lurched with a sudden force.” More specifically, Asbury testified: “I was grabbing for the bar to keep from falling. It was too late. I landed on my right hip and the force of the fall snapped my femur; left thigh bone.” (R.R. at 82a).

Asbury testified that the bus driver summoned an ambulance and that in the interim the remaining passengers, except for a passenger who was trapped by her fallen body, quickly exited the bus. On cross-examination, Asbury acknowledged that she regularly walked the three to four blocks from the bus stop to work and that she did not need the assistance of a cane or walker, but she later noted that she does have trouble with her balance.2 As-bury agreed that with the coat she was wearing at the time, a casual observer might not see that she was pregnant. Also there were possibly four or five other persons on the bus, but Asbury was unaware of whether any of them had been affected by the sudden lurch of the bus that caused her to fall.

Steven Paskorz, the PAT bus driver, testified that he offers whatever assistance is necessary to blind or wheelchair-bound passengers, but he does not scrutinize each individual for disabilities or special needs. Paskorz further testified that there is no formal policy regarding when a bus driver may begin moving the bus after passengers have boarded, that on the day of the incident there were only a “handful” of people on the bus and that he did not recall anything unusual about Asbury when she entered the bus. After pulling away from the bus stop, Paskorz heard yelling in the bus, at which time he stopped the bus and discovered Asbury laying on the floor. Asbury made no complaints about his driving, but she stated that she had fallen when she reached for and missed a vertical bar. He agreed that the remaining passengers quickly exited the bus; however, he did obtain one “witness card” from the trapped passenger who had remained on the bus.

At the conclusion of Asbury’s case, the trial court granted PAT’s motion for a compulsory nonsuit. The court concluded that Asbury’s suit was governed by what has become known as the “jerk or jolt” doctrine set forth in Connolly v. Philadelphia Transportation Co., 420 Pa. 280, 216 A.2d 60 (1966), and that pursuant to this doctrine Asbury’s evidence was insufficient to prove negligence as a matter of law.3 Specifically, the trial court ruled that As-[88]*88bury failed to prove that the alleged jerking or jolting of the bus had a disturbing effect on other passengers or that the nature of the accident inherently established the unusual character of the jolting movement. The court denied Asbury’s motion to remove the nonsuit.4

Citing LeGrand v. Lincoln Lines, Inc., 253 Pa.Super. 19, 384 A.2d 955 (1978), for support, Asbury first argues that the trial court erred in granting the compulsory nonsuit because the bus driver, by pulling away from the bus stop before Asbury was seated, failed to exercise the highest degree of care practical under the circumstances. Asbury maintains that the bus driver should have perceived and accounted for her limp and advanced pregnancy and that he arguably had a duty to wait until Asbury was seated before moving the bus. These circumstances, Asbury asserts, present factual questions that should have gone to the jury.

We disagree. The plaintiff in LeGrand was a seventy-year-old woman who was partially blind, wore an eye patch and boarded the bus carrying a suitcase and purse. Not only was she obviously handicapped, but the bus driver apparently accelerated immediately after the woman boarded the bus while she attempted to show the bus driver her Medicare and Social Security cards. The Superior Court stated what it viewed the following legal principle as controlling: “[A] carrier which accepts as a passenger a person known to be affected by either a physical or mental disability which increased the hazards of travel must exercise a greater degree of care for that- passenger than is ordinarily required.” LeGrand, 384 A.2d at 956.

Even though the standard and scope of review requires us to consider the evidence and testimony most favorable to Asbury, this Court cannot conclude, based upon the evidence presented in the record, that PAT’s driver owed Asbury a heightened degree of care. The difference between the passenger in LeGrand and As-bury is that Asbury and the bus driver testified that, when Asbury entered the bus, she did not have any problem ascending the stairs or proceeding down the aisle, that Asbury may not have appeared pregnant through her heavy coat, that she was carrying a considerable amount of baggage and that she did not request that the driver wait until she was seated before proceeding. (R.R. at 111a).5 On these facts, the trial court did not err in determining that the driver did not breach any duty of care by starting the bus before Asbury was seated.

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Asbury v. PAT OF ALLEGHENY COUNTY
863 A.2d 84 (Commonwealth Court of Pennsylvania, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
863 A.2d 84, 2004 Pa. Commw. LEXIS 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asbury-v-pat-of-allegheny-county-pacommwct-2004.