D. Morgan v. SEPTA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dennis Morgan, :

Appellant :

: No. 1984 C.D. 2015

v. :

: Argued: May 12, 2016

Southeastern Pennsylvania :

Transportation Authority :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: July 6, 2016

Dennis Morgan (Morgan) appeals from the June 9, 2015 order of the

Court of Common Pleas of Philadelphia County (trial court) denying his motion for

post-trial relief following a jury verdict in favor of the Southeastern Pennsylvania

Transportation Authority (SEPTA) on his claim of negligence. We affirm.

Background

The facts may be summarized as follows. On August 31, 2012, at

approximately 2:00 p.m., Morgan arrived at the Fern Rock subway station, which is

located at the northern end of Philadelphia’s Broad Street Subway Line. Morgan was

leaving the area of the northbound subway that had just pulled into the Fern Rock

station and then walked across the platform to the subway trains waiting on the

southbound side. Before Morgan crossed the platform, all of the southbound subway

train doors were already closed. Morgan did not wait for the next train to arrive and

enter a subway car through open passenger doors. Instead, while carrying a red

plastic shopping bag containing items in one hand, Morgan used his other hand to

open the safety gate located between the third and fourth cars. By this time, the

subway train doors had been closed for nearly ten seconds. Using his one arm and

hand, Morgan opened the safety gate and then attempted to climb over the three

safety chains between the two train cars, at which point the subway train started to

move out of the station. As a result of his precarious position at the moment the

subway train started to move, Morgan lost his balance, fell between the cars, and was

dragged under the train. The passengers began screaming, the train’s engineer

activated the emergency brake, and Morgan was transported to Einstein Hospital to

receive treatment for devastating and permanent injuries, including amputation of

part of his left foot, fractures in his spine and hip, nerve damage in his spine, and a

“drop foot.” The incident was captured on video, from both the exterior subway

platform and the interior of the train, by video cameras maintained by SEPTA. (Trial

court op. at 1-2.)

On March 31, 2014, Morgan filed a civil action against SEPTA,

asserting a negligence claim and alleging that its employees and/or agents knew, or

should have known, of his position between the cars. SEPTA filed an answer and

later a motion for summary judgment, which the trial court denied. Id. at 2.

Prior to trial, SEPTA filed a motion in limine, seeking to preclude

Morgan from introducing evidence relating to a prior incident where an individual

named Shawn Hood (the “Hood incident”) was killed while attempting to board a

2

subway train at the Broad & Olney subway station. The trial court determined that

the two incidents were factually distinct and granted SEPTA’s motion. Id. at 4-5.

Morgan also filed a motion in limine, seeking to preclude SEPTA from

introducing evidence of his alleged intoxication. Specifically, Morgan sought to

prohibit evidence of his blood alcohol content (BAC) report from Einstein Hospital

indicating a BAC of 384.9 mg/dl; photographs of the tracks after the incident, which

depicted the red bag that Morgan was carrying and a 40-ounce bottle of Steele

Reserve malt liquor located nearby; and Morgan’s statement to Einstein Hospital

personnel four days after the accident that “he was drinking heavily because a friend

got out of jail.” Id. at 3, 5.

In reply, SEPTA argued that the photographs depicting the red bag and

40-ounce malt liquor bottle are admissible for the limited purpose of showing to the

jury the accident scene and the area where Morgan fell. SEPTA also argued that

Morgan’s statement to Einstein Hospital is admissible to the limited extent that it

could be used to attack his credibility. (Certified Record (C.R.) at 29.)

With respect to Morgan’s motion in limine, the trial court granted it in

part and ruled that SEPTA could not introduce evidence of Morgan’s BAC for the

purpose of proving intoxication. However, the trial court permitted SEPTA to

introduce into evidence photographs of the red bag and a 40-ounce malt liquor bottle.

Further, during trial, the trial court allowed SEPTA to cross-examine Morgan with

the statement that he made to Einstein Hospital personnel that he was drinking

heavily. (Trial court op. at 5.)

At trial, Morgan, inter alia, submitted the expert testimony of Patrick

Reilly, a railroad safety expert, who opined that SEPTA was negligent in failing to

3

have an employee ensure that passengers are safely on the subway train before

departing. (Reproduced Record (R.R.) at 377a-78a.)

The case proceeded to the jury for a verdict. At the charging conference,

Morgan objected to SEPTA’s proposed jury charge regarding the duty of care owed

by a common carrier. The trial court overruled Morgan’s objection and submitted

SEPTA’s charge to the jury. (Trial court op. at 10-11.)

The jury found that SEPTA did not breach its duty of care and rendered

a verdict in SEPTA’s favor. Morgan filed a motion for post-trial relief, which the

trial court denied by order dated June 8, 2015. Thereafter, the trial court ordered

Morgan to file a Pa.R.A.P. 1925(b) statement. In this statement, Morgan contended

that the trial court erred in precluding evidence of the Hood incident, in admitting

evidence of his alcohol consumption, and employing SEPTA’s jury charge, which

contained language in addition to that used in Pennsylvania’s Standard Jury

Instructions. Id. at 1, 5-6.

In its Pa.R.A.P. 1925(a) opinion, the trial court concluded that evidence

of the Hood incident was inadmissible because it occurred years earlier at a different

subway stop and on a different track and Morgan did not have any evidence as to

whether the subway cars from the two incidents were of the same type. The trial

court further noted that no complaint or lawsuit was ever filed pertaining to the Hood

incident and there was no evidence that SEPTA acted negligently. While recognizing

that evidence of prior incidents can be admissible to prove notice of a particular

dangerous condition, the trial court determined that Morgan failed to show a

substantial similarity between the Hood incident and his accident. The trial court

further found that, given the paucity of details concerning the Hood incident,

4

evidence of the Hood incident would be prejudicial and would likely confuse and

mislead the jury. Id. at 7.

The trial court next determined that it properly admitted into evidence

photographs of the malt liquor bottle. In this regard, the trial court stressed that

“SEPTA never argued that [Morgan] was intoxicated or that his putative intoxication

was the reason for the accident. Rather, SEPTA’s defense was that it was [Morgan’s]

own reckless behavior that caused the accident . . . .” Id. at 8. The trial court stated

that the photographs were relevant and admissible for purposes other than to prove

intoxication: “Since the photographs were taken immediately after the accident, they

were part and parcel to the accident investigation and clearly depicted the accident

scene. As such, these photos were directly relevant to the case and essential for the

jury to understand what occurred.” Id.

Similarly, the trial court found that it properly admitted Morgan’s

statement to Einstein Hospital personnel that he “drank heavily” for impeachment

purposes and for refreshing Morgan’s recollection because Morgan testified at trial

that he had no recollection of the events leading up to the accident or the accident

itself. Id. at 9.

Finally, the trial court determined that its jury instruction regarding the

duty of care owed by a common carrier was proper and in accordance with the law.

The trial court noted that its charge followed Standard Jury Instruction 13.120 (Civ)

and that Morgan took issue with additional language stating that SEPTA is not a

guarantor of passenger safety and only has to protect against foreseeable risks. The

trial court determined that decisional law holds that common carriers are not insurers

of safety and are not bound to anticipate all possible risks, only foreseeable risks. Id.

at 11.

5

Accordingly, the trial court denied Morgan’s motion for post-trial relief.

This appeal ensued.1, 2

Discussion

Evidence of Prior Accidents

Morgan contends that the trial court abused its discretion in precluding

him from introducing into evidence the Hood incident to demonstrate SEPTA’s

knowledge of a dangerous condition and foreseeability. Morgan argues that the two

incidents are substantially similar because they occurred on the same street line and

in between train cars when the doors were closed. We disagree.

Evidence of prior accidents involving the same

instrumentality is generally relevant to show that a defect or

dangerous condition existed or that the defendant had

knowledge of the defect. However, this evidence is

admissible only if the prior accident is sufficiently similar

to the incident involving the plaintiff which occurred under

sufficiently similar circumstances. The burden is on the

party introducing the evidence to establish this similarity

before the evidence is admitted.

Lockley v. CSX Transp., Inc., 5 A.3d 383, 395 (Pa. Super. 2010) (citation omitted).

“This limited exception, permitting the introduction of evidence of similar accidents,

1

Although we note that the order of the trial court denying Morgan’s motion for post-trial

relief was not reduced to judgment by praecipe of either party, as required by Pa.R.A.P. 301, in the

interests of judicial economy, we shall “regard as done that which ought to have been done.”

McCormick v. Northeastern Bank of Pennsylvania, 561 A.2d 328, 330 n. 1 (Pa. 1989).

2

Our scope of review of the denial of post-trial motions is limited to determining whether

the trial court abused its discretion or committed an error of law. Hunter v. City of Philadelphia, 80

A.3d 533, 536 n.7 (Pa. Cmwlth. 2013).

6

is tempered by judicial concern that the evidence may raise collateral issues,

confusing both the real issue and the jury.” Whitman v. Riddell, 471 A.2d 521, 523

(Pa. Super. 1984).

Here, SEPTA’s report summary concerning the Hood incident is vague

and lacking particular details. Specifically, the report states that on February 21,

2007, Hood ran down the steps onto the platform level, tried to board between cars

three and four of the train by attempting to “jump over” the gate in between the cars,

grabbed onto the platform of the fourth car, and then fell under the fourth car. (R.R.

at 195a.)

Although the two accidents could be perceived to be similar in very

broad terms, the particular circumstances surrounding them are virtually unknown in

significant, material aspects. As SETPA notes in its brief, Morgan did not adduce

any evidence concerning the Hood incident with respect to: how long the train was

on the platform before the doors closed; how much time elapsed between the time the

train doors closed and the train started to move; how much time elapsed between the

time the train doors closed and Hood attempted to jump on the train; whether the train

was moving when Hood attempted to jump onto the train; the distance between the

engineer and where Hood jumped on the train; and whether any bystanders attempted

to prevent Hood or warn him from jumping onto the train. Further, as SEPTA also

observes in its brief, Hood boarded the train when it was in the middle of a run, while

Morgan boarded the train at the start of its route, and it is unknown whether there was

a station person on the platform at the time of the Hood incident; whether the Hood

engineer followed SEPTA’s standard procedures for closing the doors for trains; and

whether the Hood engineer would have been able to see Hood had an alternate

procedure been in place.

7

In light of this lack of information, we cannot conclude that the trial

court abused its discretion in precluding Morgan from introducing into evidence the

Hood incident. See also Lynch v. McStome & Lincoln Plaza Associates, 548 A.2d

1276, 1279 (Pa. Super. 1988) (upholding the inadmissibility of prior accidents listed

in a computer printout where the plaintiff was injured in an elevator when it abruptly

stopped; although the printout contained phrases like “escalator stopped abrupt,”

there was no indication in the printout “of the circumstances of or causes for the

reported incidents.”). Accordingly, Morgan’s argument does not warrant relief.

Jury Charge on the Duty of a Common Carrier

Morgan next contends that the trial court erred in charging the jury on

the duty owed by a common carrier to passengers. While admitting that the trial

court charged the jury in accord with Standard Jury Instruction 13.120 (Civ),

regarding the “highest” standard of care owed by common carriers, 3 Morgan objects

to the inclusion of additional language stating that SEPTA is not a guarantor of the

safety of its passengers and only has to guard against foreseeable risks. According to

Morgan, this portion of the charge confused the jury and impermissibly intermingled

the concepts of duty of care and foreseeability. Again, we disagree.

Initially, we note that a trial court has wide discretion in phrasing jury

instructions. Gaylord ex rel. Gaylord v. Morris Township Fire Department, 853 A.2d

1112, 1115 (Pa. Cmwlth. 2004).

3

In this respect, the trial court charged the jury as follows: “Well, SEPTA as a common

carrier does have a duty to its passengers as recognized by the law. This is what that duty is: Under

Pennsylvania law, a common carrier must use the highest standard of care in operating its vehicle

and transporting [its] passengers. So SEPTA is the common carrier and must use the highest

standard of care.” (R.R. at 626a.)

8

It is clearly the law of this Commonwealth that when

reviewing a trial judge’s charge to the jury it must be

viewed as a whole. . . .

[J]ury instructions must be upheld if they adequately and

accurately reflect the law and are sufficient to guide the jury

in its deliberations. . . . Unless the charge as a whole can be

demonstrated to have caused prejudicial error, there will not

be a reversal for isolated inaccuracy. A charge should be

found adequate unless the issues are not made clear to the

jury; the jury is confused by what the judge said or there is

a statement in a charge that amounts to a fundamental error.

Clack v. Department of Transportation, 710 A.2d 148, 152-53 (Pa. Cmwlth. 1998)

(citations omitted); see Commonwealth v. Williams, 732 A.2d 1167, 1187 (Pa. 1999).

Here, the objected to part of the charge reads as follows:

The law does not impute that SEPTA is the guarantor of

safety or required to insure against all possible risk. Rather,

the carrier or SEPTA, in this case, has the higher duty to

protect against foreseeable risks. Okay. So that’s the duty

of care. They have to protect against foreseeable risks.

(R.R. at 626a-27a.)

In Pennsylvania, although a common carrier must exercise the highest

duty of care, “the carrier is not an insurer of its passengers’ safety. . . .” LeGrand v.

Lincoln Lines, Inc., 384 A.2d 955, 956 (Pa. Super. 1978). Further, the negligence

element of duty “is not sacrosanct in itself, but is only an expression of the sum total

of those considerations of policy which lead the law to say that the plaintiff is entitled

to protection.” Hoffman v. Sun Pipe Line Company, 575 A.2d 122, 125 (Pa. Super.

1990) (citation omitted). Indeed, the concepts of duty and foreseeability are

inexorably intertwined because the scope of the duty is limited to those risks which

are reasonably foreseeable by the defendant in the particular circumstances. Zanine

v. Gallagher, 497 A.2d 1332, 1334 (Pa. Super. 1985) (concluding that the defendant

owed no duty of care to guard against unforeseeable risks). In light of this case law,

9

we conclude the trial court’s charge to the jury accurately reflected the law and did

not tend to mislead or confuse the jury. Consequently, Morgan’s argument lacks

merit.

Evidence of Alcohol Consumption

Finally, Morgan argues that the trial court erred in permitting SEPTA to

question him about his statement to Einstein Hospital personnel that he had been

drinking heavily and in admitting photographs of the 40-ounce malt liquor bottle.

Morgan contends that under prevailing case law, evidence of alcohol consumption is

inadmissible as unfairly prejudicial unless it reasonably establishes intoxication or

impairment to the degree that an individual is unfit for the given activity.

“The admission or exclusion of evidence is a matter within the sound

discretion of the trial court, which may only be reversed upon a showing of a

manifest abuse of discretion. To constitute reversible error, an evidentiary ruling

must not only be erroneous, but also harmful or prejudicial to the complaining party.”

Lock v. City of Philadelphia, 895 A.2d 660, 665 (Pa. Cmwlth. 2006) (citations

omitted).

The well-settled rule in Pennsylvania is that “where recklessness or

carelessness is at issue, proof of intoxication is relevant, but the mere fact of

consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably

establishes intoxication.” Whyte v. Robinson, 617 A.2d 380, 383 (Pa. Super. 1992).

See Braun v. Target Corp., 983 A.2d 752, 760 (Pa. Super. 2009). “However, while

evidence can be found inadmissible for one purpose, it may be admissible for

another.” Spino v. John S. Tilley Ladder Co., 696 A.2d 1169, 1172 (Pa. 1997).

10

Here, when ruling on Morgan’s motion in limine, the trial court did not

permit SEPTA to introduce evidence to demonstrate that Morgan was intoxicated.

Rather, the trial court allowed SEPTA to introduce the photographs as part of the

background of the case and Morgan’s statement to Einstein Hospital personnel to

attack his credibility if necessary.

Importantly, during his case-in-chief and on direct examination,

Morgan’s counsel asked Morgan: “Is it possible that earlier in the day, before the

accident, earlier in the day of the accident, you may have been drinking?” (R.R. at

419a.) Morgan responded, “It’s possible, but I don’t remember that. I don’t

remember nothing that day.” (R.R. at 419a.)

On cross-examination, SEPTA questioned Morgan, in pertinent part, as

follows:

Q. And do you recall us speaking with some folks at

Einstein Hospital on September 4th just several days after

the incident when you indicated to them that you were

drinking, you must have been drinking heavily. I guess you

were partying on behalf of a friend. Do you know that

statement that’s attributed to you?

A. I don’t remember. . . .

Q. Let me read it [i.e., the medical document] to you. I’ll

ask you if you remember if [it] was accurate. . . .

* * *

Q. [I]t indicates that you said that [you were] drinking

heavily, because, quote, a friend just got out of jail. Was

that true or not?

A. I don’t remember a lot.

* * *

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Q. So do you remember drinking heavily because a friend

had just gotten out of jail?

A. No.

(R.R. at 429a-31a.)

Shortly thereafter, SEPTA continued to cross-examine Morgan as

follows:

Q. You’ve seen this picture before with the red bag,

correct?

A. Correct.

Q. That red bag was your red bag, correct?

A. Correct.

Q. You also have seen in that picture, if we go to the next

photograph, please? You see that, the beer bottle here, sir?

* * *

A. I had that before.

(R.R. at 439a-40a.)

It is well-settled that evidence of alcohol consumption is admissible to

contradict a witness’s statement that he had not been drinking. Brink v. Kessler, 165

A. 836, 836 (Pa. 1933). Similarly, here, Morgan testified on direct examination that

he did not recall drinking and the evidence of his prior statement to Einstein Hospital

personnel and the photographs were admissible to discredit this testimony and

undermine Morgan’s credibility. See Pa.R.E. 607(b) (“The credibility of a witness

may be impeached by any evidence relevant to that issue”); Pa.R.E. 803.1, Comment

(“An inconsistent statement of a witness that does not qualify as an exception to the

hearsay rule may still be introduced to impeach the credibility of the witness”).

12

Moreover, and perhaps more importantly, by exploring the topic of whether Morgan

was drinking on the day of the incident, Morgan’s attorney “opened the door” to that

issue. Consequently, under our rules of evidence, SEPTA was allowed, during cross-

examination, to prove that Morgan had, in fact, been drinking on the day of the

incident. See Commonwealth v. LaCava, 666 A.2d 221, 234 (Pa. 1995) (“Having

‘opened the door’ to this subject, appellant cannot now complain because the

Commonwealth chose to further examine what was behind that door.”);

Commonwealth v. Ford, 650 A.2d 433, 442 (Pa. 1994) (“A defendant’s prior criminal

record is not admissible as evidence. Where the defendant opens the evidentiary door

concerning his past criminal record, though, the Commonwealth is allowed to cross-

examine on this point.”). To the extent that Morgan believes that SEPTA’s evidence

was unfairly prejudicial and suggestive of intoxication, it was nevertheless

admissible, and it was Morgan’s obligation to request a curative and/or limiting

instruction, which he did not do. See Pa.R.E. 105 (“If the court admits evidence that

is admissible . . . for a purpose – but not . . . for another purpose – the court, on timely

request, must restrict the evidence to its proper scope and instruct the jury

accordingly.”); Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781

A.2d 1263, 1275 (Pa. Super. 2001) (“Generally, in the absence of extraordinary

circumstances, a prompt and effective curative instruction which is ‘directed to the

damage done’ will suffice to cure any prejudice suffered by the complaining party.”).

Therefore, on this record, we conclude that the trial court did not commit evidentiary

error and Morgan’s final issue is meritless.

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Conclusion

For the above-stated reasons, we affirm the trial court’s order denying

Morgan’s motion for post-trial relief and remand for a new trial. More specifically,

we conclude that the trial court did not err in precluding evidence of a prior accident,

namely the Hood incident. We further conclude that the trial court’s charge to the

jury pertaining to the duty owed by a common carrier was in accordance with the law

and, therefore, proper. Finally, we conclude that the trial court did not err in

admitting evidence of Morgan’s alcohol consumption for the limited purpose of

impeaching credibility and as background evidence of the accident scene.

Accordingly, we affirm the trial court’s order denying Morgan’s motion

for post-trial relief.

________________________________

PATRICIA A. McCULLOUGH, Judge

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dennis Morgan, :

Appellant :

: No. 1984 C.D. 2015

v. :

:

Southeastern Pennsylvania :

Transportation Authority :

ORDER

AND NOW, this 6th day of July, 2016, the June 9, 2015 order of the

Court of Common Pleas of Philadelphia County (trial court) is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge