Petition — Southeastern Pennsylvania Transportation Authority v. Kenny

IN THE

SUPREME COURT OF THE UNITED S¥FAGB re court, u-s

{ FILED

\

} nov 1 1978

October Term, 1978

_ MICHAEL R@DAK, JR., CLERK

N. %8-7297

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION

AUTHORITY (SEPTA ), Petitioner

we

CLARE IMMACULATA KENNY, Respondent

PETITION FOR CERTIORARI

TO THE COURT OF APPEALS

FOR THE THIRD CIRCUIT

Lewis H. Van Dusen, Jr., Esq.

DRINKER, BIDDLE AND REATH

1100 PNB Building

Philadelphia, Pa. 19107

(215) 491-7216

Lewis Kates, Esq.

KaTEs & LIVESEY

2900 PSFS Building

12 S. 12th Street

Philadelphia, Pa. 19107

(215) WA 3-8080

Attorneys for Petitioner

THE LEGAL INTELLIGENCER, 66 WORTH JUNIPER STREET, PHILA., PA. 19107 (215) 561-4050

Ri cS gh PO i alien a tn Vol AE VON, ANNO

Ohi nnn a prep

ee a ee ep

TABLE OF CONTENTS

Pare

GE EPP PT ee TET CELT OTETTTET Lee |

STATEMENT OF JURISDICTION ................ 2

ee yy 8 Be sf 3 | ae 2

STATEMENT OF THE CASE ..............c0e00. 2

REASONS FOR GRANTING THE WRIT

I. The Court of Appeals’ Holding That a Public Trans-

portation Authority May Be Held Liable for the

Tortious Acts of Third Persons Whose Acts Could

Not Reasonably Have Been Anticipated Conflicts

With Controlling Pennsylvania Law ........... 5

II. A Federal Court of Appeals In Attempting to Ascer-

tain State Law Governing a Diversity Case Under

Review, May Not Ignore Recent Decisions of the

State’s Intermediate Appellate Court and Earlier

Decisions of Its Highest Court Treating Identical

oS 5 errr 11

EE Sele eG oda 4S anew naka se 60 00a 4) 15

APPENDIX

Exhibit A—Opinion and Order of the United States

District Court for the Eastern District of Pennsyl-

vania, filed September 26, 1977 granting Judg-

ment N.O.V. for Defendant-Petitioner ......... A2

Exhibit B—Opinion and Order of the Court of Appeals

for the Third Circuit reversing Judgment N.O.V.,

ee. park dike bein eede ae Al2

Exhibit C—Order of the Court of Appeals for the Third

Circuit filed August 15, 1978 denying Defendant-

Petitioner's Motion for Rehearing ............. A24

i

TABLE OF CONTENTS—( Continued)

Page

AUTHORITIES RELIED UPON

Anderson v. Bushong Pontiac Co., 404 P. 382, 171 A.2d

Big, OR eee ee eee 9

Bernhardt v. Polygraphic Co., 350 U.S. 178 (1955) .. 12

Burlick v. Balt. & Ohio RR. Co., 41 Pa. Superior Ct. 87

ETAL Gh: » stab apie wea Kae Rates 80 6

C.LR. v. Estate of Bosch, 387 U.S. 463 (1967) ....12, 13

City of Dallas v. Jackson, 450 S.W.2d 62 (Tex. 1970) 10

Continental Southern Lines, Inc. v. Goodsell, 247 Ark.

606, 446 S.W.2d 668 (1969) ...........00 ee 10

Erie R.R. Co. v. Thompkins, 304 U.S.64 (1938) ..5, 6, 12

Fidelity Union Trust Co. v. Field, 311 U.S. 169

OR Cele Ge Vt ae seins oe hw awe 04843 6, 12

Gooding v. Wilson, 405 U.S. 518 (1972) ........... 12

Hanback v. Seaboard Coastline R.R., 396 F. Supp. 80

OE ORF OU? OEE 2 ae Ban Ee 10

Hicks v. Scott, 48 Cal. App. 2d 481, 120 P.2d 107

RISE Ere hea eee ree ree ae eee 11

Hillebrecht v. Pittsburg R. Co., 55 Pa. Superior Ct. 204

SE aa eae ois.e a akd va Males eho ReeS 7

Jackson v. B.State Transit System, 550 S.W.2d 228

ig Sg ery ee Pe eee Ok Or ere a eee 10

Kenny v. SEPTA, No. 76-2580 (E.D. Pa. Sept. 26,

1977) Rusd (3d C.R. July 18, 1978) ........... 4,5

Kerns v. Pennsylvania R. Co., 366 Pa. 477, 77 A.2d 381

4 7 SRA Perr ep rere Tee eee err 4, 6, 12

Letsos v. Chicago Transit Auth. 47 Ill.2d 437, 265

SPM CUED vis deS. dc oeesushskéeasdan es 10

Lipshutz v. Fifth Ave. Coach Lines, Inc., 28 A.D.2d

Soe, See ON. 5 ee STO (1G) oc ce sccncceess 11

LoPresti v. Metropolitan Transit Authority, 187 N.E. 2d

Wet CU SOE Faire ie xa ha var Wiencs Ohaee 11

Mangini v. SEPTA, 235 Pa. Superior Ct. 478, 344 A.2d

ee A ear Pereern s aneree pear 7, 9, 12

ii

TABLE OF CONTENTS—( Continued)

Page

Martin v. Erie-Lackawanna R. Co. 388 F.2d 802 (6th

aN Ong Seles ag 4 ale cas 4 Phe om 10, 11

Moran v. Valley Forge Drive-In Theater, Inc., 431 Pa.

GOB, WHS ABe STO CIGOB) on cc cctccdeccevcces 8, 9

Orr v. New Orleans Public Service, Inc., 349 So.2d 417

ORS OR) ee er 10

Pollock v. SEPTA, 228 Pa. Superior Ct. 911, 322 A.2d

672, affg. 61 Pa. D&C 2d 711 (1972) .......... 7

Romisher v. SEPTA, 65 Pa. D&C 2d 483 (1974) ..4, 8, 12

Six Companies v. Joint Highway Dist. 311 U.S. 169

CP fave Veda eC Ub ehe Lies Dom so 04's 12

Stoner v. New York Life Ins. Co., 311 U.S. 464 (1940) 12

West v. A.T.&T. Co., 311 U.S. 223 (1940) ......... 6, 12

Widener v. Phila. Rapid Transit, 224 Pa. 243 (1910) 7

Wood v. Phila. Rapid Transit Co., 260 Pa. 481 (1918) 7

Zimmet v. City of New York, 158 N.Y.S.2d 356 (1956) 11

Statutes

a | EEA Tr err e Trt rT ee ere 7

Pee eT ee eEeeT rer C Peer 7

Miscellaneous

Restatement (second) Torts Sec. 344 .............. 5

iii

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION

AUTHORITY (SEPTA), Petitioner

VU.

CLARE IMMACULATA KENNY, Respondent

PETITION FOR CERTIORARI TO THE

COURT OF APPEALS

FOR THE THIRD CIRCUIT

OPINIONS BELOW

The unreported opinion and order of the United States

District Court for the Eastern District of Pennsylvania

(Weiner, J.) filed September 26, 1977 granting judgment

N.O.V. for defendant-petitioner is set forth in full and

appended hereto as Exhibit “A”. The unreported opinion

and order of the Court of Appeals for the Third Circuit

reversing judgment N.O.V. filed on July 18, 1978 is set

forth in full and appended hereto as Exhibit “B”. The Order

of the Court of Appeals for the Third Circuit filed Au-

gust 15, 1978 denying defendant-petitioner’s Motion for

Rehearing is appended hereto as Exhibit “C”.

1

2

STATEMENT OF JURISDICTION

This petition seeks review of the judgment and order

of the United States Court of Appeals for the Third Circuit

originally filed on July 18, 1978 and later issued in lieu of

a formal mandate on August 15, 1978 as an Amended

Judgment upon denial of Petitioners’ Motion for Rehearing.

Jurisdiction is conferred by 28 U.S.C. Sec. 1254(1), and

is proper under Rule 19(1)(b) of the rules of this Court.

This Petition is timely filed within ninety days of the filing

of the Amended Judgment entered below as required by

28 U.S.C., Sec. 21026c.

QUESTIONS PRESENTED

I. Whether the Court of Appeals for the Third Circuit

erred in holding that under Pennsylvania law a public

transportation authority may be held liable for the rape

of a passenger where that crime could not reasonably have

been anticipated.

II. Whether a Federal Court of Appeals, in attempting

to ascertain Pennsylvania law governing a diversity case

which it has under review, may ignore decisions of Penn-

sylvania’s Appellate Courts which control the legal ques-

tion involved?

STATEMENT OF THE CASE

The Petitioner Southeastern Pennsylvania Transpor-

tation Authority (SEPTA) is an agency and instrumen-

tality of the Commonwealth of Pennsylvania charged with

the operation of a public transit system in and around the

City of Philadelphia. Respondent, Clare Immaculata Kenny

brought the instant action against SEPTA and the City of

Philadelphia after she was assaulted and raped at a SEPTA

elevated railroad station in the Frankford section of Phila-

delphia while waiting for a train.

3

When Kenny first arrived at the station on October 2,

1973, she paid her fare on the ground level cashier’s booth

and then went upstairs to take a seat on the then deserted

elevated northbound platform. A few minutes later, the

man who turned out to be the rapist arrived on the south-

bound platform. He walked across the bridge to the

northbound platform, sat beside Kenny and immediately

assaulted and dragged her to the south end of the plat-

form. A train approached and the assailant then ran from

the platform down the stairs. Kenny uttered no call for

help. The train arrived at the station but before Kenny got

to her feet, the assailant returned and pulled her against

the wall and began kissing her and raped her. He was

arrested before he could leave the platform, police seem-

ingly having been notified by a passerby on the street who

heard the commotion. No more than twenty minutes

elapsed between the time Kenny arrived at the station

(9:00 p.m.), and the time her assailant was apprehended

(9:20 p.m.). The assault and rape took no more than a

minute or two.

Kenny, a New Jersey resident, filed suit against SEPTA

and the City of Philadelphia in the United States District

Court for the Eastern District of Pennsylvania alleging

that the defendant's negligence had resulted in the rape.

The evidence produced at trial established that the sole

SEPTA employee on duty at the time of the incident was

its ground floor cashier. He testified that he had seen both

Kenny and the rapist go up to the platform, but the rapist

was well dressed and of good appearance, and the cashier

had not heard any noises or commotion although he had

been playing a radio in his cashier booth at the time. The

undisputed evidence at trial was that there had been no

prior incidents of criminal or improper activity of any kind

at the station. The Philadelphia Police Department handled

security for the SEPTA system and periodically checked

the Frankford station. An officer testified that he had

inspected the station earlier on the day of the rape.

4

At trial, the respondent attempted to show that the

lighting system on the extreme South end of the platform

was inadequate in that certain incandescent bulbs were

either broken or missing at the time of the rape, even

though Kenny herself had testified that the lighting was

sufficient to enable her to read a book while waiting for

her train. SEPTA produced its records and the testimony

of one of its maintenance men which proved that the light-

ing was checked on a daily basis.

The jury returned its verdict in favor of Kenny and

against SEPTA in the amount of $18,000.00. An additional

defendant The City of Philadelphia was exonerated. The

District Court below granted SEPTA’s Motion for Judgment

N.O.V. citing such Pennsylvania cases as Kerns v. Penn-

sylvania R.R.Co., 366 Pa. 477, 77 A.2d 381 (1951) and

Romisher v. SEPTA, 65 Pa. D&C 2d 483, 493 (1974). The

District Court held that under Pennsylvania law, SEPTA,

as a common carrier, was not liable for the unpredictable

tortious acts of third parties:

“We believe that it is only where there are reasonable

grounds to anticipate that the offending party indi-

cated a disposition to engage in violent behavior or

to locations where passengers regularly and predict-

ably are prone to engage in unruly and criminal con-

duct that a common carrier may be found to be

negligent in failing to provide adequate security

against sudden attacks by a third party.” Kenny vs.

SEPTA, No. 76-2580 (E.D.Pa. Sept. 26, 1977), p. 5.

The District Court also held that any lack of lighting

or warning devices at the station was not a proximate

cause of the attack. Id. at 6.

On Appeal, a three judge panel of the Court of Appeals

for the Third Circuit, reversed and reinstated the verdict

for the respondent. The Court of Appeals disagreed with

the District Court insofar as the lower court had ruled

that SEPTA’s liability depended upon whether the attack

5

by the particular assailant at the particular station could

have been anticipated. The Court of Appeals asserted that

crime was “on the rise” on the SEPTA system and held

that SEPTA’s liability depended more broadly upon

whether it “could reasonably have expected criminal activ-

ity from anyone at its station.” Kenny vs. SEPTA, (3d Cir.

July 18, 1978), p. 26. Relying on the Restatement (second)

of Torts Sec. 344, Comment “e” and three recent decisions

of the Pennsylvania Supreme Court which did not involve

public carriers, the Third Circuit held that the jury could

have found that inadequate lighting and the placement of

the cashier’s booth made the station susceptible to criminal

activity which SEPTA could have anticipated and for

which it could be held liable. SEPTA’s cross appeal seeking

a new trial as an alternative to reversal was dismissed.

SEPTA then petitioned for a rehearing before the

Court of Appeals en banc asserting, inter alia, that the

panel had not correctly applied the relevant and controlling

Pennsylvania law. This Motion for rehearing was denied,

and SEPTA now petitions this Honorable Court for a Writ

of Certiorari and asserts in support of this Petition that the

Court of Appeals below has decided an important State

question in conflict with applicable state law.

REASONS FOR GRANTING THE WRIT

I. The Court of Appeals’ Holding That a Public Transpor-

tation Authority May Be Held Liable for the Tortious

Acts of Third Persons Whose Acts Could Not Reason-

ably Have Been Anticipated Conflicts With Control-

ling Pennsylvania Law.

While the opinion of the Third Circuit purported to

rule according to Pennsylvania law, the issue of SEPTA’s

liability was not decided in accordance with the decisions

of the highest court in Pennsylvania as required by this

Court’s landmark decision in Erie R.R. v. Thompkins, 304

6

U.S. 64 (1938). This Court’s elaborations upon the Erie

doctrine have directed Federal Courts in diversity matters

not to deviate from decisions of the forum state’s highest

court and its intermediate appellate court, where there is

no higher authority, in deciding questions of state law.

See, e.g. Fidelity Union Trust Co. v. Field, 311 U.S. 169

(1940); West v. AT & T Co., 311 U.S. 223 (1940). Yet the

Court of Appeals below ignored decisions of Pennsylvania

Appellate Courts which were practically on “all fours” with

the facts and issues presented in the instant case.

The central question of whether SEPTA could be liable

for an unpredictable assault on one of its passengers by a

third party was clearly answered by the highest court of

Pennsylvania in Kerns v. Pennsylvania R. Co., 366 Pa. 477,

77 A.2d 381 (1951). In Kerns the plaintiff was injured at

the defendant's principal railroad station by a drunk who

pushed him down a flight of stairs. Although the drunk

had been singing inside the station in the presence of rail-

road employees for several minutes, he had not shown any

violent propensity until he pushed the plaintiff. On these

facts the Supreme Court of Pennsylvania ruled that the

trial court had erred in submitting the question of the

carrier’s negligence to the jury, since the drunk had given

no indication of a violent disposition.

“The carrier is liable for injuries to a passenger re-

sulting from negligent or unlawful acts of a fellow

passenger if prior to the accident the conduct of the

offending party has been such as to indicate a disposi-

tion to indulge in physically violent conduct and give

rise to a reasonable apprehension of injury to other

parties.” Id at 479, 77 A.2d at 382 quoting Burlick v.

Balt. & Ohio R.R. Co., 41 Pa. Superior Ct. 87, 91

(1909).

This decision in Kerns was consistent with a long line

of Pennsylvania Supreme Court holdings that carriers,

although under a high duty of care toward their passengers

7

may not be liable for attacks on those passengers by third

parties unless those attacks could have been reasonably

anticipated. See e.g. Wood v. Philadelphia Rapid Transit

Co., 260 Pa. 481 (1918) (no liability where passenger

struck by pipe carried by another passenger); Widener v.

Philadelphia Rapid Transit, 224 Pa. 243 (1910) (passenger

injured when shoved on board train by another passenger).

The opinion of the Court below notwithstanding, the

question of the carrier’s liability depends on whether the

particular offender's attack could have been anticipated

and prevented. In Hillebrecht v. Pittsburgh R. Co., 55 Pa.

Superior Ct. 204 (1903), the conductor was aware of the

verbal threat of violence against the plaintiff by a passen-

ger. However, the plaintiff was not permitted to recover

for his injuries caused when that threat was made good

“suddenly and without warning” by another passenger.

More recent opinions of the Superior Court of Penn-

sylvania, a court of last resort with state wide jurisdiction,}

favorably cited and quoted the Kerns decision. See Mangini

i -_. 235 Pa. Superior Ct. 478, 482, 344 A.2d 621, 623

The Superior Court in Pollock v. SEPTA, 228 Pa.

Superior Ct. 911, 322 A.2d 672, affg. 61 Pa. D&C 2d 711

(1972), affirmed the ruling of the trial court that SEPTA

“was not responsible for unforeseeable and unpreventable

criminal acts of third persons” where the plaintiff had been

attacked and thrown on the tracks at a subway station by

a roving band of robbers.

1, The Pennsylvania Appellate Court Jurisdiction Act of 1970

provides that “The Superior Court shall have exclusive appellate

jurisdiction of all appeals from final orders of the courts of Com-

mon Pleas... except... appeals .. . within the exclusive juris-

diction of the Supreme Court or Commonwealth Court.” 17 P.S.

§211.302. Appeal from the Superior Court to the Supreme Court is

not a matter of right but is allowed only on petition to the Supreme

Court. 17 P.S. 211.204.

8

Kerns was followed by a Pennsylvania trial court in

ruling on facts similar to the case at bar in Romisher v.

SEPTA, 65 Pa. D&C 483 (1974) (en banc). In Romisher,

a minor passenger was injured in a scuffle with one or

more other students on a SEPTA subway platform. Evi-

dence was offered by the plaintiff to establish that such

scuffies had taken place before, but the Court noted that

it was totally unpredictable when such an incident might

occur. In response to plaintiff's contention that SEPTA

was obliged to provide its own guards for protection against

criminal conduct, the Court stated, “our courts have never

declared that such a responsibility is imposed upon public

passenger carriers”. Id. at 488.

However, that is precisely the responsibility which

the Court of Appeals below would by its opinion now im-

pose. The Court below ignored Kerns, Pollock, Romisher

and a host of other Pennsylvania cases; and instead relied

principally on the Restatement (second) of Torts (1965)

for its holding that SEPTA may be liable for failing to

guard and totally light one of its stations. The Third Cir-

cuit cited section 344 which provides:

A possessor of land who holds it open to the public

for entry for his business purposes is subject to lia-

bility to members of the public while they are upon

the land for such a purpose, for physical harm caused

by the accidental, negligent, or intentionally harmful

acts of third persons or animals, and by the failure

of the passenger to exercise reasonable care to

(a) discover that such acts are being done or are

likely to be done, or

(b) give a warning adequate to enable the visitors to

avoid the harm, or otherwise protect them against it.

While it is true that this section has been cited by the Penn-

sylvania Supreme Court to define the duty of property own-

ers to protect invitees on their land in cases such as Moran

v. Valley Forge Drive-In Theater, Inc., 431 Pa. 432, 246

9

A2d 875 (1968); and Anderson v. Bushong Pontiac Co.,

404 Pa. 382, 171 A.2d 771 (1961) (also cited by the Court

below), it is clear that the Pennsylvania Supreme Court

would find SEPTA had met its obligations under this sec-

tion in the instant case. See Kearns, supra; Pollock, supra;

Romisher, supra.

The Court of Appeals parts company with the District

Court and Pennsylvania law when it holds that even if

SEPTA had no reason to expect an attack from the par-

ticular rapist involved, the jury could have found that

SEPTA was liable by reason of its failure to take additional

steps to guard generally against such attacks. This was

clearly error since Pennsylvania decisions have held car-

riers liable to protect against third party attacks generally

only in those situations where the carrier has notice of

such prior assaults at the particular station involved. See

Mangini v. SEPTA, 235 Pa. Superior Ct. at 482, 344 A.2d

at 621.

In all of the Pennsylvania cases cited by the Court

below where a duty to provide affirmative protection against

the general possibility of criminal attacks was found, there

had been a history of such activity on the defendant's

premises. The Court below does not attempt to contradict

the District Court’s findings and the weight of evidence

that there had been no such history of crime at the station

involved, but simply asserts without proof sua sponte that

“crime is on the rise” in the SEPTA system. Does this mean

that SEPTA must provide guards at its 252 railway sta-

tions? Can these cases possibly mean that SEPTA acquired

liability for general unexpected attacks at a heretofore

crime-free station simply because a few lightbulbs were

missing (even though there was enough light to enable

plaintiff to read her paper book) or because the cashier had

his radio playing?

Simply because the Pennsylvania Supreme Court may

have imposed a duty on the defendant in Moran, supra, to

have provided an effective guard at its one movie theater

10

with a history of trouble, it does not at all follow that the

instant defendant must provide guards throughout its vast

system even if “crime were on the rise”. There are 310

miles of track, 7000 surface stops and 3000 miles of route

traffic in the SEPTA system alone. Over 1,200,000 pas-

sengers ride the system daily.

In 1972, the Mayor of the City of Philadelphia together

with other public officials issued a public statement that

the City would embark on a program to curb crime on the

SEPTA system. The charter which created SEPTA does not

authorize it to maintain its own police force, so in 1973 the

City, receiving a one million dollar federal grant, hired

60 additional policemen to provide protection on the

SFPTA system. At the time of the incident in question, the

general frequency of all crime on the SEPTA system was

less than that occurring on the streets of areas which the

system served.

It is therefore more than logical that decisions such as

Kerns limiting SEPTA’s liability to attacks by particular

individuals or in particular locations where they could have

been anticipated retain their vitality. It is not inconsistent

for Pennsylvania Courts to require movie theaters and

shopping centers to provide guards for their patrons, but

hold that to be an unreasonable burden for large public

carriers.

Indeed, Pennsylvania is not alone on this legal issue.

None of the states have held that large public transporta-

tion systems and other carriers must provide guards against

the general danger that third parties may attack their

passengers.”

2. Orr v. New Orleans Public Service, Inc. 349 So.2d 417 (La.

App. 1977); Jackson v. B.State Transit System, 550 S.W. 2d 228

(Mo. App. 1977); Hanback v. Seaboard Coastline R.R., 396 F.Supp.

80 (D.S.C. 1975); City of Dallas v. Jackson, 450 S.W.2d 62 (Tex.

1970); Letsos v. Chicago Transit Authority, 47 Ill.2d 437, 265 N.E.

2d 650 (1970); Continental Southern Lines, Inc. v. Goodsell, 247

Ark 606, 446 S.W.2d 688 (1969); Martin v. Erie-Lackawanna R.Co.

11

The precedential force of the Court of Appeals deci-

sion below could place the ruinous financial burden of pro-

viding security as well as a ruinous potential liability on

all of these systems. Although the Third Circuit purported

to decide only a Pennsylvania diversity case, it would not

overstate the danger to say that the financial resources of

mass transit systems throughout the nation will be im-

periled unless this Court reverses the decision below.

II. A Federal Court of Appeals In Attempting to Ascertain

State Law Governing a Diversity Case Under Review,

May Not Ignore Controlling Decisions of the State’s

Appellate Courts Treating Identical Legal Issues and

Facts.

The instant petition presents this Court with an oppor-

tunity to amplify the Ere doctrine and elaborate upon the

proper authorities for a federal court to rely upon when

determining the governing state law in diversity cases.

A reversal here would curb the Federal Judiciary from cre-

ating a body of applied state substantive law which in fact

differs from that state’s law and which invites litigants to

resort to the federal system, perhaps successfully, simply

because they know that state courts in prior cases have

been adverse on the same issue.

In the instant case, the Court of Appeals was faced on

one hand with an established line of Pennsylvania cases

holding that a carrier may not be held liable for unantici-

pated attacks by particular third parties, and on the other

by recent decisions requiring owners of particular trouble-

388 F.2d 802 (6th CR. 1968) (Ohio Jaw); Lipshultz v. Fifth Ave.

Coach Lines, Inc. 28 A.D.2d 266 284 N.Y. S.2d 470 (1967); LoPresti

v. Metropolitan Transit Authority, 187 N.E.2d 847 (Mass. 1963);

Zimmet v. City of New York, 158 N.Y.S.2d 356 (1956); Hicks v.

Scott, 48 Cal. App.2d 481, 120 P.2d 107 (1948).

12

prone premises to provide guards against the general dan-

ger of attacks. As the foregoing analysis of Pennsylvania

law illustrates, the Court below should have followed the

former authorities.

An analysis of the guidance provided in this Court’s

opinions should also have led the Court of Appeals to

affirm the District Court. This Court has repeatedly held

that in a diversity case, the Federal Court is sitting as a

state court and as such must look to the state Supreme

Court since “the state’s highest court is the best authority

on its law”. C.I.R. v. Estate -of Bosch, 387 U.S. 463, 465

(1967). It was therefore plainly error for the Court of Ap-

peals to seek authority in the comments to the Restatement

while the matter at hand had already been ruled upon in

Kerns v. Pennsylvania R.Co., supra.

The fact that Kerns was decided in 1951 should not

have diminished its persuasiveness to the Court of Appeals

in the instant case. In Bernhardt v. Polygraphic Co., 350

U.S. 178 (1955), decisions of the Supreme Court of Ver-

mont dating back to 1910 were deemed controlling on

Vermont law where “no fracture in the rules announced

in those cases has appeared in subsequent rulings or dicta,

and no legislative movement is under way to change the

result of those cases”. Id. at 204. In Gooding v. Wilson,

405 U.S. 518 (1972), a Georgia Supreme Court interpreta-

tion of a statute contained in a decision 50 years old was

treated as controlling where that decision had been cited

favorably in recent cases. The fact that Kerns has been

followed and quoted in recent cases such as Mangini v.

SEPTA, supra; and Romisher v. SEPTA, supra, is therefore

additional evidence of its force and current vitality.

The Court of Appeals should also have looked to the

Pennsylvania Superior Court’s affirmance in Pollock, supra

to guide its decision. No more closer set of facts to the

instant case could have been imagined, and the fact that

Pollock was not a Supreme Court case does not weaken

its authority as a rule of state law.

13

“An intermediate appellate state court... is datum

for ascertaining state law which is not to be disre-

garded by a federal court unless it is convinced by

other persuasive data that the highest court would

decide otherwise”. C.I.R. v. Estate of Bosch, 387 U.S.

at 465, quoting West v. American Tel. & Tel. Co., 311

U.S. at 237.

With the clear support for the Pollock decision apparent

in Kerns and its predecessors, it was error for the Court

below to so cavalierly disregard recent authority from

Pennsylvania’s lower courts. See Fidelity Union Trust Co.

v. Field, supra; Six Companies v. Joint Highway Dist., 311

U.S. 169 (1940); Stoner v. New York Life Ins. Co., 311 U.S.

464 (1940).

Here the Court below was faced with the basic ques-

tion present in all negligence cases, to wit, does the scope

of defendant’s duty include the plaintiff’s damages? In an-

swering these hard questions, courts must look to the na-

ture of the defendant involved in deciding what risks it

would be reasonable to charge that defendant to prevent.

Since the Pennsylvania Supreme Court could easily find

that it is reasonable to impose a greater duty upon a movie

theater with a known history of violent incidents to protect

its discreet quantity of patrons from third parties than

might be imposed on a sprawling mass transit system, the

Court below should have relied on the Pennsylvania carrier

cases rather than the movie theater cases in defining

SEPTA’s duty.

However, the Court of Appeals below chose to ignore

the carrier cases where the Pennsylvania Courts directly

spoke to the issues subjudice, and instead purported to

discern from cases arising from entirely different facts the

“trend” of Pennsylvania law. If federal courts are permit-

ted to disregard state decisions with which they do not

agree which directly control the issue before them and

instead interpolate state law as they prefer it to be from

14

decisions not on point, then a separate body of state law

will develop in the federal courts. This naturally results in

the forum shopping which this Court was trying to curtail

by its decision in Erie R.R. v. Thompkins, supra. The dif-

ference between the problem this Court addressed in Erie

and the one presented herein is that federal common law

is now being derived in the guise of what a federal judge

views to be the trend of state law.

Of course, there my be circumstances where an issue

has never been decided by the states’ appellate courts, and

under these circumstances federal courts must discern the

trend of state law. Kerns and other decisions show that is

surely not the situation in the instant case, yet the court

below has now adopted a view of a carrier’s liability that

the Pennsylvania decisions do not permit and have never

envisioned. The petitioner now fears that this decision,

insulated from the reversal which surely would follow if

appeal to the Pennsylvania Appellate Courts were possible,

will cause a stampede to the District Courts by plaintiffs

injured on the SEPTA lines in muggings, thefts, and other

assaults.

Frequent review of diversity cases by this Court is an

impractical procedure for all concerned. This Court is pre-

sented by this appeal with an opportunity to mitigate that

problem. A reversal of the Court of Appeals herein would

direct federal courts to resolve the common problem of

defining the scope of a defendant’s duty in diversity neg-

ligence cases in accordance with those state court deci-

sions arising from the most similar set of facts. This

approach would have guided the Court below to the correct

holding in the instant case, and would limit the occurrence

of federal decisions conflicting with state law in future

cases.

15

CONCLUSION

Because of the issues outlined in the foregoing argu-

ment, this Court should grant the instant petition for a

writ of certiorari to review the judgment of the Court of

Appeals below.

Respectfully submitted,

Lewis H. VAN DusEN, Jr., Esa.

LEwIs KaATEs, Esq.

Attorneys for the Petitioner

EXHIBIT A

A2

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

C.A. No, 76-2580

CLARE IMMACULATA KENNY

Vv,

SOUTHEASTERN PENNSYLVANIA

TRANSPORTATION AUTHORITY

AND

CITY OF PHILADELPHIA

OPINION AND ORDER SUR DEFENDANT

SOUTHEASTERN PENNSYLVANIA

TRANSPORTATION AUTHORITY

FOR JUDGMENT N.O.V. OR ALTERNATIVELY

FOR A NEW TRIAL

Weiner, J. September 26, 1977

A judgment for $18,000 was entered on a jury verdict

against defendant Southeastern Pennsylvania Transporta-

tion Authority (Septa) and in favor of plaintiff who sus-

tained personal injuries as a result of being raped on an

elevated train platform located at 3rd and Spring Garden

Streets, Philadelphia, Pennsylvania. The jury exonerated

defendant, City of Philadelphia. Presented to the Court is

Septa’s Motion for Judgment N.O.V, or in the alternative

for a New Trial.

A3

It is well established that in ruling upon a Motion for

Judgment N.O.V. or a New Trial the Court is bound to

review the evidence and all reasonable inferences there-

from in the light most favorable to the verdict winner.

Haldeman v, Bell Telephone Co. of Pa., 387 F2d 843 (3rd

Cir, 1968); Woods v, National Life and Accident Insur-

ance Company, 380 F2d 843 (3rd Cir, 1967). Applying this

standard we, in summarization form, accept the following

facts as established. On October 2, 1975, at about 9:00

p.m., plaintiff who was 19 years of age, walked to the

Septa elevated station, paid her fare at the ground level

cashier's booth, proceeded to the elevated platform, sat on

a bench and proceeded to write a letter while waiting for

her train, There was a man standing on the opposite plat-

form who walked across a bridge to the platform where

she was seated and sat down beside her (N,T. 31), He then

seized her and dragged her approximately 150 feet into the

dark area of the south end of the platform where there

was no lighting at all. (N.T. 31, 32—3rd day). Plaintiff was

beaten and raped over a period of time of approximately

10 to 20 minutes, In response to a radio call “woman

screaming” police officer Kosiucki arrived at the platform

and was successful in apprehending the rapist.

Plaintiff was treated at the Philadelphia General Hos-

pital on the evening of the rape. The following week she

was treated by her gynecologist, two weeks later by her eye

doctor, several sessions with a psychiatrist and subse-

quently a second psychiatrist. She vividly described her

emotional distress, her fear, loss of the companionship and

love of her fiance and to this day capsulized her anguish

by stating “.. . I felt this strange man hurt me and humili-

ated me, I just can’t trust any man, It hurt me so bad that

sometimes I just want to be left alone.” (N.T. p, 8 to 17

inclusive--5th day of trial). The testimony further estab-

lished that there was no safety device or communications

system for passengers, that the only telephone located at

this location was in the cashier’s booth on the street level,

A4

three flights below the elevated platform. Evidence revealed

that Septa depended solely upon the police department for

passenger security. We shall initially concentrate upon the

defendant’s motion for

Judgment N.O.V.

In its Motion for a Judgment N.O.V, the defendant

contends that under the facts of this case, it cannot be

responsible for the criminal acts of a third person, Under

Pennsylvania law a common carrier is held to the highest

degree of care, Summers v. Hessler, 227 Pa. Super. 41, 323

A2d (1974), There is no dispute that Septa is a common

carrier, As stated in Mangini v. Southeastern Pennsylvania

Transportation Authority, 344 A2d Pa. Super., 621-623:

“In the case where a third person, whether a passenger

or otherwise, acts in a violent, criminal or negligent

manner, the carrier has a duty to protect the other

passengers from his misbehavior to the degree possi-

ble. ‘It is [the duty of passenger carriers] to repress

disorder . . . and in case there is any reasonable

ground to apprehend that other passengers may suf-

fer physical injury from the violence of disorderly

passengers, it is their duty to use every means at their

command to protect other passengers and restrain,

and if necessary remove . . . the disorderly parties.’

Gerlach v, Pittsburgh Rys. Co., 94 Pa, Super. 121, 129

(1928), quoting Barlick v. Baltimore & Ohio R.R. Co.,

41 Pa. Super. 87, 92 (1909). If necessary, the em-

ployees of a carrier may enlist the assistance of will-

ing passengers, police, or other authorities to quell a

disturbance. See La Sota v. Philadelphia Transp. Co.,

421 Pa. 386, 219 A.2d 296 (1966); Kennedy v, Penn-

sylvania R.R, Co., 32 Pa. Super. 623 (1907), When

these measures are not employed and a passenger is

injured, the carrier is liable if prior to the injury the

conduct of the offending parties indicated a disposi-

AS

tion to engage in violent, harmful behavior, giving

rise to a reasonable apprehension of injury to other

parties. See Kerns v. Philadelphia R.R. Co., 366 Pa.

477, 77 A.2d 381 (1951 ).”

The fatal defect in plaintiff's proofs consists of the

fact that the evidence failed to establish that the defen-

dant had reason to suspect that the offending party “indi-

cated a disposition to engage in violent, harmful behavior,

giving rise to a reasonable apprehension of injury to other

parties”. id. at 623. See also Restatement of Torts 2d,

§314A-1(a), Comment E, which in relevant part states:

“. . . The defendant is not liable where he neither

knows nor should know of the unreasonable risk. He is

not required to take precaution against sudden attack

from a third person which he has no reason to

anticipate.”

Trial testimony clearly established that there was no

indication that the rapist’s appearance gave cause for sus-

‘picion, nor was there anything to warn the cashier of his

subsequent behavior. It is also undisputed that for at least

three years, between 1972 and 1975, the only criminal

incident that occurred at this platform was the rape in the

instant case. We believe that it is only where there are rea-

sonable grounds to anticipate that the offending party

indicated a disposition to engage in violent behavior or to

locations where passengers regularly and predictably are

prone to engage in unruly and criminal conduct that a

common carrier may be found to be negligent in failing to

provide adequate security against sudden attacks by a

third party. Cf. Romisher v. Septa. 65 D. & C. 483, 493

(1974).

There remains for consideration the plaintiff's con-

tention that the negligence of Septa could be predicated

upon the failure to have provided adequate lighting and a

system of wider security, including but not limited to

A6

television coverage, telephones and warning devices. In

Martin v. Erie-Lackawanna Railroad, 388 F2d 802, 805

(6th Cir. 1968), a well reasoned compendium of the legal

principle applicable to the kind of problem we have here,

the Court said:

“Defendant argues that each of the negligent acts or

omissions alleged in the complaint is based upon the

assumption that defendant know or should have.

known that plaintiffs were in a perilous position or

that an attack upon Mrs. Martin was imminent or

likely. While this is of course true, the facts which

support the allegations that defendant failed to pro-

vide police protection for its passengers, failed to pro-

vide adequate lighting on the outside platform, and

failed to inform plaintiffs that the train in which they

had expressed an interest was expected to be late, are

also relevant to the issue of whether defendant knew,

or should have known, that Mrs. Martin was likely to

be the subject of an attack. Viewing the evidence in

support of these three allegations most favorably

toward plaintiffs, the jury was entitled to find that

defendant knew plaintiffs had gone out upon a dimly

lit and unguarded platform to await the arrival of a

train which was not expected to arrive for approxi-

mately ten minutes. While these facts might suggest

a situation such as would not discourage those with

criminal propensities from taking advantage of plain-

tiffs, these circumstances would not, in and of them-

selves, be sufficient to support a determination that

defendant should have known of the likelihood of an

attack.” |

We are of the opinion that the lack of warning devices was

not a proximate cause of the assault upon the plaintiff, nor

is this allegation sufficient to support a determination that

defendant should have known of the likelihood of an

attack. Accordingly the Motion for Judgment N.O.V. will

be granted.

A7

Motion for a New Trial

In the first allegation of error it is contended that the

verdict was excessive. In our previous discussion of the

facts we had noted the physical and mental anguish suf-

fered by the plaintiff. As a general proposition courts are

reluctant to disturb a jury’s verdict on the ground of ex-

cessiveness where damages are unliquidated and there is

no measure of mathematical certainty. Kaffana v. Pennsyl-

vania Railroad Company, 212 F. Supp. 362 (W.D. Pa.

1963). The test for excessiveness of damages is whether

the verdict is so excessive as to shock the conscience or

that it is the product of the jury’s passion or prejudice.

Smith v. Bowater S.S. Co., 339 F. Supp. 399 (E.D. Pa.

1972). We are not prepared to state that the verdict of the

-jury grossly overcompensated the plaintiff for the trau-

matic experience that was visited upon her. Accepting her

testimony, as we must, the humiliation, mental anguish,

emotional distress, drastic change in her social attitude and

life style prevailed at the time of trial and there is every

possibility that it may continue for an unforeseen time.

Hence, the conscience of this Court was not shocked nor

do we think the jury’s verdict was based on passion or

prejudice.

The next allegation is that error was committed when

the Court permitted evidence of a change or modification

in the lighting at the station after the incident. As a gen-

eral rule, evidence of change in conditions or proof of

repairs made after an injury is inadmissible to prove

antecedent negligence, but is relevant when introduced for

the purpose of attacking the credibility of a witness. Tyler

v. Dowell, Inc., 274 F2d 899, (2nd Cir.) Cert. Denied, 363

U.S. 812 (1960). A Mr. Morris, employed by Septa testified

that lights at the Fairmount station are checked on a daily

basis (N.T. 85—3rd day of trial). The questions relating

to subsequent repairs were targeted upon the credibility of

the above statement. In George v. Morgan Construction —

A8

Co., 359 F. Supp. 253, (E.D. Pa. 1975), the court decided

that although evidence of post accident precautions is not

admissible to prove prior negligence, it is admissible to

prove whether certain precautions would have been feasi-

ble, that is, whether there was a practical method which

was neither too costly or burdensome to employ to prevent

the accident. Under either standard, the questions regard-

ing post accident measures were properly received in evi-

dence.

Lastly, the defendant contends that the interroga-

tories submitted to the jury were unfair and prejudicial.

Prior to distributing the interrogatories to the jury a side-

bar conference was held with counsel. Counsel for de-

fendants voiced their respective objections to the wording

contained therein. Believing that the factual testimony

coupled with the closing jury addresses and the Court’s

charge removed any ambiguity concerning the meaning

of the phrase “knowledge of a dangerous condition”, the

Court was satisfied that the language used in the interroga-

tory was clear and unambiguous. The jury was told that:

“There is no dispute that the defendant SEPTA is a

common carrier and therefore held to the highest

degree of care, but this does not mean that SEPTA

warranted the absolute safety of the plaintiff. This

means that SEPTA was bound to exercise the upmost

degree of diligence in care. In this case, the dangerous

character of the place where the rape occurred, is in

dispute and various inferences are possible from the

testimony offered. You must, therefore, decide whether

1. The interrogatory with the answer of the jury objected to

reads as follows:

1. Was defendant Septa negligent? i.e., did Septa have knowl-

edge of the dangerous condition of the subway platform at

issue here and did it fail to adequately protect against such

danger?

Yes__* =

A9

it was, in fact, a place of hazard. If the surrounding

circumstances and facts as they existed at that time

and place are such that a reasonably prudent person

would believe that the conditions manifested the

characteristics of potential harm, then the place was

dangerous in the eyes of the law. In determining

whether this was a dangerous place and whether the

defendant carrier was negligent in failing to perhaps

provide proper security in its subway station, you must

remember that there was no duty on the carrier to

have anticipated the injury to the plaintiff unless

defendants had been put on notice by previous occur-

rences that greater security was necessary.”

The motion for a new trial will be denied.

Al0

IN THE

UNITED STATES DISTRICT COURT

FOT THE EASTERN DISTRICT OF PENNSYLVANIA

C.A. No. 76-2580

CLARE IMMACULATA KENNY

Vv.

SOUTHEASTERN PENNSYLVANIA

TRANSPORTATION AUTHORITY

and

CITY OF PHILADELPHIA

ORDER

The motion of the defendant Southeastern Pennsyl-

vania Transportation Authority for Judgment N.O.V. is

GRANTED.

The motion of the defendant Southeastern Pennsy]l-

vania Transportation Authority for a New Trial is

DENIED.

It Is So Ordered.

Charles R. Weiner

EXHIBIT B

Al2

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 77-2489/90

CLARE IMMACULATA KENNY

v.

SOUTHEASTERN PENNSYLVANIA

TRANSPORTATION AUTHORITY

and

CITY OF PHILADELPHIA

Clare Immaculata Kenny,

Appellant in 77-2489

Southeastern Pennsylvania

Transportation Authority,

Appellant in 77-2490

Appeal From the United States District Court for the

Eastern District of Pennsylvania.

(D.C. Civil No. 76-2580)

Argued June 5, 1978

Before: ADAMS, WEIS and GARTH, Circuit Judges.

Al3

OPINION OF THE COURT

(Filed July 18, 1978)

WEIS, Circuit Judge.

Whether a woman who is raped in the station of the

Philadelphia transit system may recover damages from

the carrier because of its lack of adequate protection is

the issue in this diversity case, We conclude that a show:

ing of deficient lighting on the station platform and insuf-

ficient attention to conditions by the only employee on the

premises support a jury finding of carrier culpability, Ac-

cordingly, we reverse judgment n.o.v, in favor of the transit

authority and reinstate the jury verdict.

The young woman plaintiff was awaiting the arrival of

a train operated by SEPTA' when she was attacked by

another patron. She filed suit in the district court charging

negligence on the part of the transit authority and the

City of Philadelphia. A jury awarded damages of $18,000

against SEPTA alone, but the district court entered judg-

ment n.0.Vv.

The plaintiff's experience began on October 2, 1975,

at about 9:00 P.M,, when she purchased a ticket at the

ground level cashier's booth at the Fairmount Avenue Sta-

tion of the high speed Frankford Elevated Line in Phila-

delphia. She climbed three flights of steps to the elevated

platform, sat on a bench near a light and waited for a north-

bound train. The only other person on the platform, a man

on the opposite side of the tracks, crossed over to plain-

= =

1. SEPTA, Southeastern Pennsylvania Transit Authority, is an

entity created by the Pennsylvania legislature to provide mass

transit in the Greater Philadelphia area, See Metropolitan Trans-

portation Authorities Act of 1963, §§2, 4, Pa, Stat, ANN, tit, 66,

§§2002, 2003 (Cum, Supp, 1978-1979),

Al4

tiff’s side and sat on the same bench, After saying a few

words, the man dragged the plaintiff some 150 feet to the

darkened south end of the platform and then beat and

raped her, Her screams apparently alerted an unknown

person in. the neighborhood who called the police. Re-

sponding to a radio call, an officer apprehended the assail-

ant on the platform.

The arresting officer and other policemen who investi-

gated the crime testified that the area at the south end of

the platform was dark and that the electric lights there

were not lit. A detective who arrived about an hour after

the attack occurred said it was necessary to use a powerful

flashlight to illuminate the area in his search for physical

evidence.

The SEPTA attendant who had been in the cashier's

booth testified that he knew nothing of the attack and had

not heard the plaintiff's screams, He admitted he had a

portable radio playing in the booth, but said it was per-

mitted by his employer. A telephone in the booth was

connected with dispatchers and security units but was not

used that evening until after police had come to investigate

the incident, No other SEPTA employee was in the station

or on the platform at the time the crime was committed.

A SEPTA employee testified that the transit system

relied on Philadelphia police to provide protection for its

patrons. He read a joint statement issued in 1972 by the

Mayor of Philadelphia, the Board Chairman of SEPTA,

and other public officials declaring that the occurrence of

crime in the SEPTA transit system was intolerable.

SEPTA had not taken any additional steps for passenger

security after issuance of the joint statement, but as a

measure to prevent crime, the city agreed in the statement

to assign additional police to the SEPTA system, In 1973,

Philadelphia received a grant from the federal government

to hire 60 additional policemen after stating in its applica-

tion that based on data compiled by SEPTA the “reported

incidents on the high speed line are increasing, particu.

Al5

larly robbery, assault, and rowdism [sic].” At the trial,

however, there was testimony that no criminal incidents

had been reported at the Fairmount Station in the three

years preceding the incident here.

Through its answers to interrogatories, the jury found

that SEPTA had knowledge of the dangerous condition of

the platform, failed to adequately protect against it, and

this negligence was the proximate cause of plaintiff's in-

juries, The City of Philadelphia was exonerated.

The district court entered judgment n.o.v, in favor of

SEPTA, finding it had no reason to anticipate the criminal

conduct of the assailant at this particular station, The

court also concluded that the lack of adequate lighting and

a system of security devices, such as closed circuit TV

coverage, telephones and warning devices, were not proxi-

mate causes of the assault upon plaintiff. In an alternative

holding, the court denied the defendant's motion for a new

trial based on contentions of an excessive verdict, improper

admission of testimony on repairs to the lighting system

following the attack, and prejudicial wording of the inter-

rogatories,

I,

JUDGMENT N.O.V,

In this diversity case, we are guided by Pennsylvania

law which does not hold the proprietor of a business estab-

lishment responsible for injuries to its patrons caused by

criminal conduct of a third party unless the possibility or

likelihood of criminal activity could reasonably have been

foreseen or anticipated. In Moran v. Valley Forge Drive-In

Theater, Inc,, 431 Pa, 432, 246 A.2d 875 (1968), a patron

recovered from a theater for injuries received when rowdy

teenagers exploded a firecracker near him. The record

revealed previous instances in which firecrackers had been

exploded on the premises and the proprietor had taken no

Al6

steps to warn its customers or curb unruly behavior of

youthful visitors, The Pennsylvania Supreme Court cited

with approval §344 of the RESTATEMENT (SECOND) OF

Torts (1965) which reads;

A possessor of land who holds it open to the public

for entry for his business purposes is subject to lia-

bility to members of the public while they are upon

the land for such a purpose, for physical harm caused

by the accidental, negligent, or intentionally harmful

acts of third persons or animals, and by the failure of

the possessor to exercise reasonable care to

(a) discover that such acts are being done or are

likely to be done, or

(b) give a warning adequate to enable the visitors to

avoid the harm, or otherwise to protect them against

it,

Comment e notes “it may not be enough for the servants

of the public utility to give a warning, which might be suffi-

cient if it were merely a possessor holding its land open

to the public for its private business purposes,” A utility

may be required to take additional steps to control the

conduct of third persons or otherwise protect the patron

against it,

Where the possessor of land may have reason to know

that there is a likelihood of conduct on the part of third

persons generally which is apt to endanger the safety of

patrons, the owner may be under a duty to take precautions

against such conduct. The focus of inquiry is not limited

to anticipation of criminal conduct by the person who actu-

ally caused the harm, The trial court in this case narrowed

the ambit of liability by looking to the expectations of

SEPTA as they applied to the specific offender at the spe-

cific location. The duty to protect its patrons, however, is

not determined by whether SEPTA had reasonable ground

to expect violence directed toward the plaintiff by the par-

ticular assailant, but whether the Authority could reason-

Al7

ably have expected criminal activity from anyone at its

station. See Morgan v. Bucks Associates, 428 F. Supp. 546

(E.D, Pa. 1977); Ford v. Jeffries, — Pa. —, 379 A.2d 111

(1977); Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171

A.2d 771 (1961).

The record reveals that crime on SEPTA’s high speed

lines, as well as its other systems, had been on the rise.

Although steps had been taken to increase police protec-

tion, we cannot say as a matter of law that this was enough

to preclude SEPTA’s liability. As comment d to §344 indi-

cates, a utility is required to exercise reasonable care to

use such means of protection as are available, or to pro-

vide such means in advance because of the likelihood that

third persons may endanger the safety of patrons.

The presence of adequate lighting is recognized as a

discouragement to violent criminal activity, particularly in

an area where members of the public may be expected.?

Traditionally, adequate street lighting has been advocated

as an effective means of reducing crimes against the per-

son, such as robbery, assault, and rape. SEPTA recognized

the value of adequate lighting. In response to an interroga-

tory inquiring what “security measures are currently in

effect,” it answered that, in addition to police department

measures, “[d]efendant’s stations were well-lighted.” In-

deed, there were light standards placed at adequate inter-

vals along the platform at the Fairmount station. But having

the fixtures in place is not enough. They must be in con-

dition to perform their function, that is, illuminate the

area. In this respect, there was a jury question as to

whether SEPTA had properly maintained the equipment

which it had installed.

The plaintiff's testimony, corroborated by the police,

was that there was no light in the area where the attack

2. See e.g., Picco v, Ford Diner, Inc., 113 N.J. Super. 465, 274

A.2d 301 (1971); Atamian v. Supermarkets General Corp., 146

N.J. Super. 149, 369 A.2d 38 (1976).

- oe a rnc is reer tn Ca

Al18

occurred, even though fixtures were there. There was evi-

dence that the light bulbs were missing and that the fix-

tures were rusted, indicating they had not held bulbs for

some time. The jury was entitled to determine that insuffi-

cient maintenance by SEPTA was negligence, particularly

in view of its knowledge that crime had been increasing in

the transit system. If further evidence of the connection

between criminal activity and lack of lighting were needed,

the fact that the assailant dragged the plaintiff to a dark-

ened area supplied it. Whether inadequate, indeed non-

existent, lighting was a substantial factor in bringing about

harm to the plaintiff was a matter for the jury to resolve.

See Ford v. Jeffries, supra.

Nor was this the only way in which the jury could have

found SEPTA failed to protect the plaintiff. The Authority

had one employee on the premises. Perhaps it might not

have been feasible to place the cashier’s booth where he

could observe conditions on the platform or to utilize the

area on the ground floor near the ticket booth as a waiting

room during the evening hours when the platform would

be deserted. Nevertheless, for the company to permit the

cashier, the sole employee of the Authority at the station,

to play a radio while on duty and thus impair his hearing

ability was to reduce the effectiveness of his presence. The

location of the ticket booth prevented him from seeing any

disturbance on the platform and the radio prevented him

from hearing anything. Had the cashier heard the screams,

he could have quickly gone to the platform, as well as

called for police assistance immediately. Plaintiff's cries

were loud enough to be heard by someone in the neighbor-

hood who called the police. The jury might well have

found that SEPTA owed the plaintiff at least as much

concern. See La Sota v. Philadelphia Transportation Co.,

421 Pa. 386, 219 A.2d 296 (1966).

Al19

II.

SEPTA’s MoTION FOR A NEW TRIAL

SEPTA has filed a cross appeal from the district

court’s dismissal of its motion for a new trial. Among the

grounds asserted is that the trial court erred in allowing

testimony that new lighting had been installed on the plat-

form a few days after the attack. A SEPTA employee

testified that lighting at the stations was checked on a daily

basis. He produced records showing that about an hour

after the rape one light bulb was replaced at a crossover

between the two tracks, and the following night, three

bulbs were installed. On the day before the incident, four

bulbs had been replaced on the southbound platform.

On cross-examination, plaintiff's counsel elicited the

fact that a new fluorescent fixture was installed four days

after the attack. Defendant contends that this evidence of

subsequent repairs was prejudicial. The trial judge, however,

ruled that the testimony was admissible for impeachment

purposes and also to show the feasibility of precautions.

We conclude that the evidence was admissible.

As a general rule, evidence of remedial measures taken

after the event is not admissible to prove culpable conduct.

Fed. R. Evid. 407. The reason for the exclusion is to en-

courage post-accident repairs or safety precautions in the

3. Rule 407 states.

Subsequent Remedial Measures

When, after an event, measures are taken which, if taken

previously, would have made the event less likely to occur,

evidence of the subsequent measures is not admissible to

prove negligence or culpable conduct in connection with

the event. This rule does not require the exclusion of evi-

dence of subsequent measures when offered for another

purpose, such as proving ownership, control, or feasibility

of precautionary measures, if controverted, or impeach-

ment.

et ee

ent et i gD "tcc TI Bi at

a

A20

interest of public safety. See SaALTzBURG & REDDEN, FED-

ERAL RULES OF EVIDENCE MANUAL 162 (2d ed. 1977). But

when the defendant opens up the issue by claiming that

all reasonable care was being exercised at the time, then

the plaintiff may attack that contention by showing later

repairs which are inconsistent with it. See 2 J. WEINSTEIN

& N. BERGER, WEINSTEIN’s EvipENCE {{1407[03], [04]

(1977).

In this case, the evidence did not show that a protec-

tive device of a nature not previously utilized was subse-

quently installed, but rather established the need for re-

placement of that which had previously been employed.

As such, the testimony bore directly on the inference that

since the lighting was checked on a daily basis, it was ade-

quate at the time the incident occurred. The installation

of a new fixture suggested that more than new light bulbs

were necessary to maintain the level of lighting that ap-

parently had once existed at the station. Moreover, the

cross-examination tended to cast doubt on the thorough-

ness of the inspections made by the defendant. Hence, the

evidence was admissible.

Defendant also argues that the interrogatory sub-

mitted to the jury was unduly suggestive of SEPTA’s lia-

bility. The interrogatory read:

Was defendant SEPTA negligent? i.e., did SEPTA

have knowledge of the dangerous condition of the sub-

way platform at issue here and did it fail to adequately

protect against such danger?

While the wording of the interrogatory might well have

been more neutral in tone, in this case and on this record

we do not find its submission to the jury constituted re-

versible error. The trial court in its charge clearly in-

structed the jury to “decide whether it was, in fact, a place

of hazard” and twice said that the jury had to be satisfied

by a preponderance of the evidence that SEPTA knew

“the place where plaintiff was injured was a dangerous

one.” Moreover, similar language was used in the inter-

a ee ne

A21

rogatory directed toward the potential liability of the city;

yet, the jury exonerated it. We do not believe, therefore, EXHIBIT C

that the jury was misled as to matters which it had to

decide.

Defendant also contends that the verdict was exces-

sive. The trial judge stated that his conscience was not

shocked by the amount of the verdict, nor did he believe it

was based on prejudice or passion. In considering the

agonizing experience which the plaintiff had undergone,

her humiliation, mental anguish and emotional distress,

we cannot say that the trial court abused its discretion in

not ordering a new trial.

Accordingly, the judgment in favor of the defendant

in appeal No. 77-2489 will be vacated. In appeal No. 77-

2490, the order denying defendant’s motion will be

affirmed. The verdict in favor of the plaintiff will be rein-

stated and judgment entered in her favor.

A True Copy:

Teste:

Clerk of the United States Court |

of Appeals for the Third Circuit |

|

A24

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 77-2489/77-2490

|

CLARE IMMACULATA KENNY,

| Appellant in No. 77-2489

v.

| SOUTHEASTERN PENNSYLVANIA

TRANSPORTATION AUTHORITY,

| Appellant in No. 77-2490

and

CITY OF PHILADELFHIA

(D. C. Civil No. 76-2580)

On Appeal from the United States District Court for the

Eastern District of Pennsylvania.

Present: ADAMS, WEIs and GarTH, Circuit Judges.

AMENDED JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Eastern District of

Pennsylvania and was argued by counsel on June 5, 1978.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

| District Court, filed September 26, 1977, be, and the same

is hereby vacated with respect to the judgment in favor of

defendant in appeal No. 77-2489 and affirmed with respect

to the order denying defendant’s motion in appeal No.

Sree et

A25

77-2490. The verdict and judgment in favor of plaintiff,

entered June 3, 1977, and June 6, 1977, are reinstated. all

in accordance with the opinion of this Court. Costs taxed

in favor of plaintiff.

ATTEST:

M. ELIZABETH FERGUSON

Acting Clerk

Costs taxed in favor of appellant, Clare Immaculata

Kenny, as follows:

8a Kk cleric vias np bi $ 147.02

Y Joint Appendix ......... 1,052.64

EE acs ce na yives bce 135.68

fs 7 eee 50.00

cee $1,385.34

August 15, 1978

Certified as a true copy and issued in lieu

of a formal mandate on September 6, 1978

Test: M. ELIZABETH FERGUSON

Acting Clerk, U.S. Court of Appeals

for the Third Circuit