RUSH v. UNITED STATES OF AMERICA et al

Filing 85

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE PETRESE B. TUCKER ON 8/7/2017. 8/8/2017 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DAMON SHARON RUSH,
Plaintiff,
v.
UNITED STATES OF AMERICA,
AQUA AMERICA, INC. d/b/a
AQUA PENNSYLVANIA, &
AQUA PENNSYLVANIA, INC.,
Defendants.

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CIVIL ACTION
NO. 15-1839

MEMORANDUM

Tucker, J.

August _7_, 2017

Presently before the Court are Plaintiff’s Complaint (Doc. 1), Plaintiff’s Amended
Complaint (Doc. 20), Defendant Aqua America, Inc. d/b/a Aqua Pennsylvania’s and Aqua
Pennsylvania, Inc.’s Motion for Summary Judgment (Doc. 55), Plaintiff’s Response to Aqua
America, Inc. d/b/a Aqua Pennsylvania’s and Aqua Pennsylvania, Inc.’s Motion for Summary
Judgment (Doc. 59), Defendant Aqua America, Inc. d/b/a Aqua Pennsylvania’s and Aqua
Pennsylvania, Inc.’s Reply to the Response (Doc. 63), Defendant USA’s Response to Aqua
America, Inc. d/b/a Aqua Pennsylvania’s and Aqua Pennsylvania, Inc.’s Motion for Summary
Judgment (Doc. 64), Defendant USA’s Motion for Summary Judgment (Doc. 65), Defendant
Aqua America, Inc. d/b/a Aqua Pennsylvania’s and Aqua Pennsylvania, Inc.’s Reply to the
USA’s Response and Response to the USA’s Motion for Summary Judgment (Doc. 67),
Plaintiff’s Response to the USA’s Motion for Summary Judgment (Doc. 70), Defendant USA’s
Reply to Plaintiff’s Response (Doc. 72), and Plaintiff’s Reply to the USA’s Reply (Doc. 74).
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Upon consideration of the parties’ motions and for the reasons set forth below, Defendant Aqua
America, Inc. d/b/a Aqua Pennsylvania’s and Aqua Pennsylvania, Inc.’s Motion for Summary
Judgment is GRANTED and Defendant USA’s Motion for Summary Judgment is DENIED.
I.

FACTUAL BACKGROUND
Plaintiff Damon Sheron Rush (“Plaintiff”), through Robert S. Evans (Administrator of

Plaintiff’s Estate), brings this action against Defendant United States of America (the “USA”)
and Defendants Aqua America, Inc. d/b/a Aqua Pennsylvania and Aqua Pennsylvania, Inc.
(“Aqua”) for negligence under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671–2680
(the “FTCA”). Plaintiff alleges that Defendants’ negligence, carelessness, and/or recklessness
was the sole or substantial contributing cause of the accident and injuries that he suffered as a
result of falling through a steel manhole/sewer/mechanical access cover (the “Cover”). Compl.,
Doc. 1, ¶¶ 2, 17, 22. Plaintiff also brings a survival action under the Pennsylvania Survival Act,
42 Pa. C.S.A. § 302 et seq. and a wrongful death action under the Pennsylvania Wrongful Death
Act, 42 Pa. C.S.A. § 8301 et seq. Am. Compl., Doc. 20, ¶¶ 33, 37.
In 2013, Plaintiff was working for Watts Industries, Inc. Compl. ¶ 15. On April 17, 2013,
Plaintiff was working as a landscaper on the United States Marine Corps Training Center located
at 601 Kedron Avenue, Folsom, PA 19033 (the “Property”). Id. ¶ 16. In this capacity, Plaintiff
fell through the Cover located on the Property, causing him to suffer physical injuries “including
but not limited to” his neck, back, left leg, left knee, left foot, left side, a fracture of his left
foot/big toe, a sprain and strain of the cervical spine, a sprain and strain of the lumbar spine, and
a medial meniscus tear of the left knee. Id. ¶ 17–18. Plaintiff had to undergo at least one surgery
and “other extensive treatment” as a result. Id. ¶ 18.
Plaintiff alleges that he had to undergo a cervical spine surgery in June 2015 “[a]s a result

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of the accident.” Am. Compl., ¶ 20. Plaintiff asserts that he acquired an infection as a result of
the surgery and “was prescribed numerous pain medications, all of which caused his death,”
concluding that the accident on the USA’s Property was the proximate and legal cause of his
death. Id. ¶ 20. Plaintiff died on July 7, 2015. Id. ¶ 21.
Plaintiff alleges that the “sole or substantial contributing cause” of his fall, his injuries,
and his death was the “negligence, carelessness and/or recklessness of all Defendants.” Id. ¶ 25.
Plaintiff asserts that this negligence consisted of, among other things, Defendants’: (a) failure to
inspect the Property which resulted in the continued existence of a dangerous condition on their
Property that posed a danger to all individuals on the Property; (b) failure to warn Plaintiff and
others similarly situated of the dangerous condition which Defendants knew or should have
known would not be noticed by individuals such as Plaintiff lawfully using or working on the
Property; (c) allowing the Property or Cover to remain in a dangerous condition; and (d) being
otherwise negligent and careless under the circumstances. Id. ¶¶ 25(a)–(m). Plaintiff alleges that
as a result of this negligence, Plaintiff suffered, among other things, permanent and severe
injuries including those listed above, inability to attend to usual activities and loss of earnings
and earnings capacity, mental anguish and humiliation, deprivation of enjoyment of life, and pain
and suffering. Id. ¶¶ 26–31.
II.

PROCEDURAL HISTORY
Plaintiff complied with the pre-suit requirements of the FTCA by presenting an

administrative claim in a timely and appropriate fashion. Compl., Doc. 1, ¶ 14. However,
Plaintiff’s claim was “not acted upon” within the time period designated for administrative
disposition of claims of this nature under the FTCA. Id. Plaintiff asserts that his claim is
therefore deemed to have been denied. Id. Plaintiff then filed his Complaint in this Court on

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April 9, 2015, and subsequently filed his Amended Complaint on November 24, 2015.
III.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when

“the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotations omitted)). A “material fact” is
one that “might affect the outcome of the suit under the governing law.” Liberty Lobby, Inc., 477
U.S. at 248.
The party seeking summary judgment “has the initial burden of showing the basis for its
motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden does not require the
moving party to “produce evidence showing the absence of a genuine issue of material fact,” but
rather, the movant “may be discharged by ‘showing’—that is, pointing out to the district court—
that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. If the
moving party satisfies this burden, the nonmoving party “may not rest upon the mere allegations
or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as
otherwise provided . . . , must set forth specific facts showing that there is a genuine issue for
trial.” Holt Cargo Systems, Inc. v. Delaware River Port Authority, 20 F. Supp. 2d 803, 817 (E.D.
Pa. 1998), aff’d, 165 F.3d 242 (3d Cir. 1999).
In reviewing a motion for summary judgment, the court must “draw all reasonable
inferences in the light most favorable” to the nonmoving party. Big Apple BMW, Inc. v. BMW of

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N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Thus, where “the non-moving party’s evidence
contradicts the movant’s, then the non-movant’s must be taken as true.” Id. Further, if the nonmoving party has “exceeded the ‘mere scintilla’ threshold and has offered a genuine issue of
material fact, then the court cannot credit the movant’s version of events against the opponent,
even if the quantity of the movant’s evidence far outweighs that of its opponent.” Id. The
nonmoving party, however, must “do more than rest upon mere allegations, general denials, or
vague statements.” Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir. 1992).
The inquiry performed by the court at this stage is “the threshold inquiry of determining
whether . . . there are any genuine issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Liberty Lobby, Inc., 477 U.S.
at 250. If the court finds that there “is sufficient evidence to reasonably expect that a jury could
return a verdict in favor” of the moving party, that is “enough to thwart imposition of summary
judgment.” See id. at 248–51.
IV.

DISCUSSION
This analysis will begin by discussing Aqua’s Motion for Summary Judgment. Neither

the USA nor Plaintiff presented evidence sufficient to establish a genuine issue of material fact
as to any of the claims against Aqua; therefore, this Court will grant Aqua’s Motion. This
analysis will then proceed to a discussion of the USA’s Motion for Summary Judgment. The
evidence in Plaintiff’s responses to the USA’s Motion are sufficient to create genuine issues of
material fact; therefore, this Court will deny the USA’s Motion.
a. AQUA’S MOTION FOR SUMMARY JUDGMENT
Aqua advances four grounds for summary judgment: (1) the USA admitted that it owned
and still owns the property on which Plaintiff was injured; (2) the applicable tariff for providing

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water service identifies the USA as the owner and responsible party for maintenance of the meter
vault Plaintiff fell into; (3) the USA repaired the meter vault and never requested reimbursement
from Aqua following Plaintiff’s accident; and (4) if the Court dismisses Plaintiff’s claims against
Aqua then it must similarly dismiss all crossclaims against Aqua by the USA because the USA
has not alleged any independent basis for these crossclaims. Aqua’s Mot. Summ. J., Doc. 55, 2–
3. This analysis will consider these arguments in turn.
1. Aqua is Not the Owner or Possessor of the Property Where Plaintiff’s Fall
Occurred
Aqua correctly asserts in its Motion that the USA owned the Property where Plaintiff’s
fall occurred and still owns that Property today. Aqua’s Mot. Summ. J., 2. In fact, the USA
admits that it owns and operates the Property where Plaintiff’s accident occurred. Id. at 3.
Because neither Plaintiff nor the USA disputes this claim, there is no genuine issue of
material fact on the issue of whether the USA owns the Property where Plaintiff’s fall occurred.
2. The PUC Tariff Correctly Identifies the USA as the Responsible Party for
Maintenance of the Meter Vault at Issue
Aqua, quoting in relevant part from the Pennsylvania Public Utility Commission (“PUC”)
tariffs and supplements, asserts correctly that it is the “responsibility of the Customer,” in this
case the USA, “as the owner of the Meter Box/Vault to maintain the Meter Box/Vault and lid in
a safe condition.” Aqua’s Mot. Summ. J., 4. Moreover, Aqua correctly states that the PUC tariffs
and supplements have the force of law and that they are binding on the customer and the utility.
Id.at 9 (citing Stiteler v. Bell Tel. Co., 379 A.2d 339, 341 (Pa. Cmwlth 1977) (See also Behrend
v. Bell Tel. Co., 242 Pa. Superior Ct. 47, 75, 636 A.2d 1152, 1165 (1976) (vacated and remanded
on other grounds))).
Neither Plaintiff nor the USA challenges the assertion that the tariff has the force of law.

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Both parties, however, raise challenges suggesting that there is a genuine issue of material fact as
to whether Aqua shared any responsibility for the maintenance of the vault at issue. Both
Plaintiff and the USA quote Behrend’s language stating that “[t]he courts retain jurisdiction of a
suit for damages based on negligence . . . wherein a utility’s performance of its legally imposed
and contractually adopted obligations are examined and applied to a given set of facts.” 242 Pa.
Superior Ct. 47, 59, 363 A.2d 1152, 1158 (1976). Pl.’s Resp. to Aqua’s Mot. Summ. J., Doc. 59,
5; USA’s Resp. to Aqua’s Mot. Summ. J., Doc. 64, 4.
Further, Plaintiff argues that the applicable tariff in no way suggests that the “meter vault
was solely owned or maintained” by the USA, and that the tariff “implicitly suggests” that Aqua
retained “ultimate control over the meter vault” as Aqua could “terminate service with the USA”
for, e.g., “refusal of reasonable access . . . for reading, caring for, removing, or installing
Meters.” Pl.’s Resp., 5 (emphasis in original). The USA raises a functionally equivalent
argument. USA’s Resp., 4. Both the USA and Plaintiff also argue that Aqua had “unfettered
access” to the meter vault in support of the proposition that Aqua shared responsibility for
maintaining the meter vault. Pl.’s Resp., 6; USA’s Resp. J., 6. Moreover, the USA and Plaintiff
both argue that changes to the tariff language in 2015 indicate that the tariff language in effect at
the time of Plaintiff’s fall did not clearly indicate who was responsible for the meter vault. Pl.’s
Resp., 6; USA’s Resp, 4. Finally, both the USA and Plaintiff argue that Aqua’s “protocol” of
reporting defects in meter vaults and meter vault covers gives rise to a duty of care to maintain
the meter vault in a safe condition. Pl.’s Resp., 7; USA’s Resp., 6.
There are several problems with these arguments. First, neither the USA nor Plaintiff
argues that Aqua has a “legally imposed” or “contractually adopted obligation” to maintain the
meter box or vault, so both parties’ citations of Behrend are puzzling. Specifically, the USA

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argues that the case law does not “support Aqua’s effort to take this case out of the Court’s
jurisdiction.” USA’s Resp., 6. However, as this Court can best discern, Aqua is not trying to
remove the case to the jurisdiction of the PUC; Aqua is arguing that it is entitled to judgment as a
matter of law. Furthermore, a plain reading of the PUC tariff clearly indicates that the
responsibility for both the meter box and vault rested with the USA. Although both Plaintiff and
the USA assign great weight to the fact that Aqua amended the tariff after the beginning of the
instant action “to make clear” that it was the customer’s responsibility to maintain the meter
vault, neither party includes the previous tariff language that they suggest is ambiguous enough
to create a genuine issue of fact as to whether Aqua and the USA shared control of the vault.
Pointing out that the language was changed after the start of the instant action with no other
support seems to be just the sort of “mere allegations, general denials, or vague statements”
insufficient to create a genuine issue of material fact. Trap Rock Indus., Inc. v. Local 825, 982
F.2d 884, 890 (3d Cir. 1992).
Second, while the USA and Plaintiff devote significant time to attempting to establish
Aqua’s “control” over the meter box and “unfettered access” to the meter vault, ultimately these
arguments conflate these two, distinct objects. Even assuming that Aqua did have “ultimate
control” over the meter box itself, neither the USA nor Plaintiff establishes how this would give
rise to a “legally imposed” or “contractually adopted obligation” to maintain the door to the vault
containing that meter. The same can be said for Aqua’s supposed “unfettered access” to the
vault. It is not clear how “unfettered access,” either in and of itself or in addition to Aqua’s
supposed “ultimate control” of the meter box, would give rise to a legal duty obligating Aqua to
maintain the meter vault in a safe condition. The PUC tariff clearly identifies the USA as the
owner responsible for maintaining the box and vault and the USA admits to owning the Property

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where the vault is located. Furthermore, it was Aqua’s practice to read the meter on the USA’s
Property remotely, and as a result no agent of Aqua had been in the meter vault to which they
enjoyed “unfettered access” for four years prior to Plaintiff’s accident. Aqua’s Reply to Pl.’s
Response, Doc. 63, 6.
Third, although both the USA and Plaintiff place great significance on the fact that it was
Aqua’s practice to “report up” defects in the meter box and vault for repairs, this argument seems
to cut in favor of Aqua’s contention that it does not control either the meter box or vault and that
it is the USA’s responsibility to maintain both the meter box and the vault. If Aqua maintained
“ultimate control” over the meter box and “unfettered access to” the vault, and if it was Aqua’s
responsibility to maintain both the meter box and vault (in direct contradiction of the PUC tariff),
it would bolster the USA’s and Plaintiff’s case if Aqua did in fact take responsibility for that
maintenance and subsequently repaired any defects after Plaintiff’s fall. This was not the case.
Further, as Aqua asserts in its Reply supporting its Motion, this argument by the USA would
produce an absurd outcome requiring bystanders not to alert others to dangerous conditions lest
they assume a duty to other parties in doing so. Aqua’s Reply to USA’s Resp., Doc. 67, 2.
For these reasons, there is no genuine issue of material fact regarding the USA’s
responsibility for the meter box and vault.
3. The USA Maintained the Meter Vault
Aqua correctly asserts that the USA maintained the meter vault where Plaintiff’s fall
occurred. Specifically, Aqua indicates that the USA replaced the lid to the vault that Plaintiff fell
into after the accident, performed repairs to the vault itself after Plaintiff’s fall, and never asked
Aqua to compensate it in whole or in part for the costs of these repairs. Aqua’s Mot. Summ. J.,
4–5.

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Neither Plaintiff nor the USA disputes this claim. It is worth noting that these actions by
the USA also cut in favor of Aqua’s argument that the USA owned, controlled, and was
responsible for maintaining the meter vault.
Therefore, there is no genuine issue of material fact regarding whether the USA
maintained the meter vault.
4. The USA’s Crossclaims Against Aqua Must Be Dismissed
Aqua correctly asserts that, if this Court grants Aqua’s motion, the USA’s crossclaims
“must be dismissed for failure to state a claim.” Aqua’s Mot. Summ. J., 14. This is true because
the USA “has not alleged an independent basis for its crossclaim . . . nor has it offered any
evidence in support thereof.” Aqua’s Mot. Summ. J., 14.
Neither Plaintiff nor the USA disputes this claim. Therefore, there is no genuine issue as
to any material fact regarding whether the USA’s crossclaims must be dismissed.
b. THE USA’S MOTION FOR SUMMARY JUDGMENT
The USA advanced two grounds for summary judgment: (1) Plaintiff has no admissible
record evidence of either the circumstances of his fall or the existence of an unreasonably
dangerous condition causing Plaintiff to fall, and (2) there is no evidence that the USA had any
notice of an unreasonably dangerous condition. USA’s Mot. Summ. J., Doc. 65, 1. These
arguments will be considered in turn.
1. Plaintiff’s Record Evidence is Admissible and Allows Reasonable
Inferences of an Unreasonably Dangerous Condition on the USA’s Property
Causing Plaintiff to Fall
In support of its first argument, the USA asserts that the only record evidence of the
circumstances of Plaintiff’s fall is his testimony from his worker’s compensation proceeding, and
that this testimony is inadmissible under Federal Rule of Evidence 804(b) because neither the

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USA nor any “predecessor in interest” with a “similar motive” was present at the proceeding to
cross-examine Plaintiff. USA’s Mot. Summ. J., Attachment 2, 1. The USA then argues that
because this testimony is inadmissible, Plaintiff cannot show that his injuries were caused by the
existence of an “unreasonably dangerous condition” on the USA’s property. Id. at 1.
Plaintiff advances two arguments in response to the USA’s first grounds for summary
judgment: (1) Plaintiff’s workers’ compensation deposition and testimony “qualify as the prior
testimony hearsay exception,” and (2) even absent this evidence, there is still “substantial
evidence” creating a “material question of fact” regarding an “unreasonably dangerous condition
causing” Plaintiff’s fall. Pl.’s Resp., Doc. 70, 12, 15. In support of his first argument, Plaintiff
cites Pennsylvania Workers’ Compensation laws and relevant case law. Pl.’s Resp., 14. In
support of his second argument, Plaintiff refers to several exhibits attached to his memorandum
that will be enumerated in greater detail below.
The USA then filed a Reply in support of its Motion for Summary Judgment arguing that
Plaintiff’s evidence was insufficient to create an issue of fact and that Plaintiff had “failed to
meet his burden on summary judgment.” USA’s Reply, Doc. 72, 2, 8.
This analysis will separate the USA’s first grounds for summary judgment into two parts
and address them in turn. First, the USA incorrectly concludes that Watts Industries, Inc. was not
its “predecessor in interest” and that it did not share a “similar motive” under Rule 804(b)(1) and
Third Circuit precedent. Second, the USA incorrectly concludes that the other record evidence
submitted by Plaintiff is inadmissible.
i. Watts Industries, Inc. was the USA’s “Predecessor in Interest” and Shared a
“Similar Motive with the USA Under Federal Rule of Evidence 804 and Third
Circuit Precedent
In support of its argument that Watts Industries, Inc. was not its “predecessor in interest”

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under Federal Rule of Evidence 804(b)(1), the USA argues that Watts Industries fails the
“similarity of motive” requirement. USA’s Reply, Doc. 72, 3. The USA, citing Kirk v. Raymond
Indus., Inc., 61 F.3d 147, 166 (2d Cir. 1995), asserts that the “similarity of motive” requirement
exists to ensure that “the earlier treatment of the witness is the rough equivalent of what the party
against whom the statement is offered would do at trial if the witness were available to be
examined by that party.” USA’s Mot. Summ. J., Doc. 65, 6. The USA further argues that Watts
Industries, Plaintiff’s employer at the time of his fall, did not have a “similar motive” to develop
Plaintiff’s testimony regarding the cause of his fall because, under the Pennsylvania Workers’
Compensation Act (“PWCA”), the employer pays compensation anytime an employee is injured
in the course of employment whether the employer, employee, or a third party “was causally
negligent.” USA’s Reply, Doc. 72, 6–7 (citing Heckendorn v. Consol. Rail Corp., 465 A.2d 609,
613 (Pa. 1983)). The USA then concludes that because neither the USA nor Aqua were “parties
to or participated in Plaintiff’s workers’ compensation proceedings,” they were “deprived of any
opportunity” to cross-examine Plaintiff. USA’s Mot. Summ. J., 6.
In response to this assertion, Plaintiff argues that the workers’ compensation testimony is
admissible because the word “similar” does not mean “identical.” Pl.’s Resp., Doc. 70, 12 (citing
Murray v. Toyota Distrib. Inc., 664 F.2d 1377 (9th Cir. 1982)). Plaintiff also rejects the USA’s
argument that Watts Industries “did not have a motive to develop” Plaintiff’s testimony
regarding the fall, arguing that Watts Industries could avoid liability under the PWCA if they
could prove Plaintiff was reckless in connection with the accident or his injury was caused by his
violating the law, e.g., as the result of illegal drug use. Pl.’s Resp., 13 (citing the PWCA, Article
II, § 201(c) and Article III, § 301(a)). From this, Plaintiff concludes that his workers’
compensation testimony is admissible in the instant case. Pl.’s Resp., 14. Plaintiff’s argument is

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persuasive.
Under Federal Rule of Evidence 804(a)(4), a declarant is “considered to be unavailable as
a witness if the declarant . . . cannot be present or testify at the trial or hearing because of death,”
as is true in the instant case. Fed. R. Evid. 804(a)(4). However, Rule 804(b)(1) creates an
exception to this rule for testimony “given as a witness at a trial, hearing, or lawful deposition”
that is “now offered against a party who had—or, in a civil case, whose predecessor in interest
had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination.”
Fed. R. Evid. 804(b)(1). The USA does not dispute that Watts Industries had the “opportunity” to
cross-examine Plaintiff, but does dispute the assertion that Watts Industries shared a “similar
motive” with the USA.
The USA appears to argue that the “predecessor in interest” requirement rises to the level
of what is essentially privity. That is, because neither the USA nor Aqua nor any entity directly
related to either the USA or Aqua was present at the workers’ compensation hearing, Plaintiff’s
testimony at this hearing should be inadmissible. This position contradicts Third Circuit
precedent. The Third Circuit, while not endorsing “an extravagant interpretation of who or what
constitutes a predecessor in interest,” prefers “one that is realistically generous over one that is
formalistically grudging.” Lloyd v. American Export Lines, Inc., 580 F.2d 1179, 1187 (3d Cir.
1978) (quotations omitted). This means if a party in a former suit has “a like motive to crossexamine” the witness “about the same matters as the present party would have,” and “was
accorded an adequate opportunity for such an examination, the testimony may be received
against the present party.” Id. In fact, the Third Circuit expressly rejected the standard suggested
by the USA, asserting that “[p]rivity or a common property interest is not required to establish a
predecessor in interest relationship, rather, a shared interest in the material facts and outcome of

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the case will create such an interest.” New Jersey Turnpike Authority v. PPG Industries, Inc., 197
F.3d 96, 110 n.21 (3d Cir. 1999).
In order to be considered a “predecessor in interest,” Rule 804(b)(1) “does not require
that a party had an identical motive to develop the testimony, only that the party had a ‘similar’
motive,” which is “essentially a factual question.” United States v. Paling, 580 Fed. Appx. 144,
148 (3d Cir. 2014) (citing United States v. Salerno, 505 U.S. 317, 326 (1992) (Blackmun, J.
concurring)). Under the PWCA, it “shall not be a defense” for an employer “in any action
brought to recover damages for personal injury to an employe [sic] 1 in the course of his
employment . . . [t]hat the injury was caused in any degree by negligence” unless the employer
can establish that “the injury was caused by such employee’s intoxication or by his reckless
indifference to danger.” Pl.’s Resp., Exhibit N, 2 (citing PWCA Article II, § 201(c)). Moreover,
“every employer shall be liable for compensation for personal injury” to an employee for such an
injury, except that “no compensation shall be paid when the injury . . . is intentionally self
inflicted [sic], or is caused by the employee’s violation of law, including, but not limited to, the
illegal use of drugs.” Pl.’s Resp., Exhibit O, 2 (citing PWCA Article III, § 301(a)).
Plaintiff’s argument that Watts Industries’ motive was sufficiently similar to the USA’s is
persuasive in light of this authority. As Plaintiff notes in his brief, Watts Industries “had a similar
motive to the instant defendants—i.e., ascertain how the accident happened, what was taking
place at the time, and who was responsible, if anyone,” and whether Watts Industries availed
“itself of all avenues of cross examination [sic] is of no moment under the law.” Pl.’s Resp., 14.
Plaintiff further notes that the PWCA gives rise to a clear motive for “inquiring into the
circumstances regarding the fall, centrally focusing on the issue of recklessness, the direct
1

This misspelling of “employee” persists throughout the document and is corrected hereafter for
clarity’s sake.
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neighbor of the issue of negligence.” Pl.’s Resp., 14. Therefore, while Watts Industries’ motive is
not identical to the USA’s, it is sufficiently similar for the testimony to be admissible.
Moreover, the USA’s citations in support of its argument are unpersuasive. For example,
the USA cites a First Circuit case in support of the proposition that workers’ compensation
testimony should be inadmissible in the instant case. USA’s Mot. Summ. J., 7 (citing Holmquist
v. Farm Family Casualty Ins. Co., 800 F. Supp. 2d 305, 310–11 (D. Me. 2011)). As Plaintiff
correctly notes, however, Holmquist is “markedly distinguishable” from the instant case. Pl.’s
Resp., 14. That is, in Holmquist, the party advanced as a “predecessor in interest” had
“conceivably the opposite” motive of the later party. Pl.’s Resp., 14 (citing 800 F. Supp. 2d at
310). Plaintiff also undermines the USA’s citation to Biggers v. Southern Railway Co., a case in
which the issue was that the declarant had not been proven to be unavailable. Pl.’s Resp., 14
(citing Holmquist, 800 F. Supp. 2d at 310). In the instant case, there is no such issue.
Under the broad standard set out by the Supreme Court and the Third Circuit on this
issue, and drawing all inferences in the light most favorable to the non-movant, this Court finds
that there is a genuine issue of material fact on the question of whether Plaintiff’s workers’
compensation testimony is admissible.
ii. The Evidence Submitted by Plaintiff Is Sufficient to Create Genuine Issues
as to Whether an Unreasonably Dangerous Condition Caused Plaintiff’s Fall
The USA’s first argument in support of its proposition that there is no genuine issue of
material fact supporting an inference that an unreasonably dangerous condition caused Plaintiff’s
fall flows directly from its argument that Plaintiff’s workers’ compensation testimony is
inadmissible. USA’s Mot. Summ. J., Doc. 65, 2, 3. Thus, because this Court finds that Plaintiff’s
workers’ compensation testimony is admissible, this should arguably be sufficient to determine
that there is a genuine issue of material fact supporting such an inference.
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However, in its Reply in support of its Motion for summary judgment, the USA further
argues that the evidence proffered by Plaintiff in opposition to the USA’s Motion for summary
judgment “does not create an issue of fact.” USA’s Reply, Doc. 70, 2. Specifically, the USA
challenges four pieces of evidence proffered by Plaintiff: (1) the Aiello-Hess Email sent by the
Commanding officer of the Marine Corps Property where Plaintiff’s accident took place;
(2) Plaintiff’s statement “found in a police report”; (3) Plaintiff’s “statements to medical
providers”; and (4) the written affidavit and letter from Plaintiff’s “hired private investigator.”
USA’s Reply, 4–5, 6, 7.
In his Reply in support of his Memorandum opposing the USA’s Motion for summary
judgment, Plaintiff disputes the USA’s objections to each piece of proffered evidence except the
affidavit and letter from Plaintiff’s private investigator. Therefore, this analysis will proceed in
turn through the first three pieces of proffered evidence, but it will not reach the fourth.
First, the USA argues that the Aiello-Hess Email proffered by Plaintiff “does not support
an inference of negligence” because it was written after Plaintiff’s fall and therefore does not
“provide any information regarding what caused Plaintiff to fall” and lacks evidence that the
officer was “present or witnessed the fall.” USA’s Reply, 4–5. The USA cites no case law in
support of this proposition, but references Federal Rule of Evidence 407. USA’s Reply, 5.This
rule precludes the use of evidence of measures taken subsequent to an injury that would have
made the injury less likely in order to prove, among other things, “negligence; culpable conduct;
. . . or a need for a warning or instruction.” Fed. R. Evid. 407. The USA argues that because the
Aiello-Hess Email was written after the fall and “requested the addition of locks and hinges to
three other covers on the property,” that it is inadmissible under Rule 407. USA’s Reply, 5.
Plaintiff responds that the language of the Email and the “totality of the evidence proving the

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existence of a defect . . . is overwhelming.” Pl.’s Reply, 4. Plaintiff also does not cite any case
law in support of his proposition. Setting aside the language regarding subsequent remedial
measures taken pursuant to Plaintiff’s fall, the Aiello-Hess Email plainly states, as both Plaintiff
and the USA acknowledge, that “one of our grounds maintenance contractors got injured on our
property. He fell partway into our water main and meter access area” and later, “[t]he cover [to
the vault] doesn’t fit properly or secure. There are also three other covers that are unhinged and
don’t lock.” Pl.’s Reply, Exhibit C, 90. These are not statements regarding subsequent remedial
measures. Considered in the light most favorable to the non-movant, a reasonable factfinder
could conclude that the Aiello-Hess Email supports an inference of negligence. Therefore, this
Court finds that the email creates a genuine issue of material fact.
Second, the USA argues that Plaintiff’s statement “found in a police report” is
inadmissible hearsay. USA’s Reply, 5. The USA, citing Graham v. Jersey City Police Dept., No.
11-7326, 2014 WL 7177362, at *3 (D.N.J. 2014) (citing United States v. Sallins, 993 F.2d 344
(3d Cir. 1993)), asserts that “statements made to police from a witness, are inadmissible hearsay
where . . . [offered] to establish the truth of the matters set forth in the report.” USA’s Reply, 5.
The USA then suggests that Plaintiff “unabashedly seeks to admit [his] embedded hearsay
statement regarding the circumstances of his fall for the truth.” USA’s Reply, 6. Plaintiff
responds that the report is admissible because it constitutes firsthand knowledge and impressions
gleaned by the officer. Pl.’s Reply, 4. Plaintiff further argues that the USA “seemingly wants to
exclude the statement” Plaintiff made to Sgt. David A. McGrath. Pl.’s Reply, 4. Plaintiff
acknowledges that even if this Court “deems [Plaintiff]’s statements” inadmissible, the rest of the
report nonetheless includes information about Plaintiff’s fall based on the officer’s investigation.
Pl.’s Reply, 5. Plaintiff cites no case law in support of his proposition. Neither Plaintiff nor the

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USA identifies a specific statement made by Plaintiff and included in the officer’s report that the
USA seeks to exclude. Plaintiff references one statement by the officer that the vault cover
“dislodged knocking [Plaintiff] into the hole where he injured his left leg,” but it is unclear
whether this observation was based on information from Plaintiff. Pl.’s Reply, 5. Plaintiff cites
another observation from the officer’s report that there was a “problem” with the vault cover, but
it is also unclear whether this includes statements by Plaintiff. Pl.’s Reply, 5. The case law favors
the USA’s assertion that Plaintiff’s statements in the report are inadmissible hearsay. USA’s
Reply, 6. Moreover, Plaintiff has not done “more than rest upon mere allegations, general
denials, or vague statements” in establishing that the officer’s observations were not gleaned
from Plaintiff’s own statements. Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir.
1992). This Court finds Plaintiff’s statements in the police report are not admissible and,
therefore, that no genuine issue of material fact exists.
Third, the USA argues that Plaintiff’s “statements to medical providers do not support an
inference of negligence.” USA’s Reply, 6. The USA specifically objects to statements by a Dr.
Freese that Plaintiff “fell through a man hole,” that he “partially fell into a 12-foot hole,
protecting himself by outstretching his arms,” and that Plaintiff “stepped on a plate. And this was
not solidly in place; and as a result he fell into what he told me was a 12-foot hole.” USA’s
Reply, 6–7. The USA concludes that these statements “provide little more than confirmation that
[Plaintiff] fell into the water vault.” USA’s Reply, 7. The USA does not cite any authority in
support of its proposition that this testimony should be inadmissible hearsay. Plaintiff responds
to this argument that his statements to medical providers “do support an inference of
negligence.” Pl.’s Reply, 5. Plaintiff, too, points to statements made to medical providers that he
stepped on “a metal plate which tipped, and he fell into the hole that was covering the plate

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[sic],” which could create an inference of negligence or “[a]t the very least . . . creates a genuine
issue of material fact regarding the defective status of the door,” particularly in tandem with
other evidence about the door lacking locks or hinges. Pl.’s Reply, 5–6. Contrary to the USA’s
assertion, and considered in the light most favorable to Plaintiff, a reasonable factfinder could
conclude that these statements allow an inference of negligence. Therefore, this Court finds that
a genuine issue of material fact exists as to whether Plaintiff’s statements to medical providers
allow a reasonable inference of negligence and are admissible in the instant case.
For these reasons, this Court finds as follows: (1) that Watts Industries was the USA’s
“predecessor in interest” to the instant case; (2) that, pursuant to the first finding, Plaintiff’s
deposition and testimony from his workers’ compensation testimony are admissible; (3) that the
Aiello-Hess Email and Plaintiff’s statements to medical professionals are admissible; (4) that the
police report containing Plaintiff’s statements is inadmissible; and (5) that, pursuant to these
findings, the record evidence creates genuine issues of material fact as to the existence of an
unreasonably dangerous condition on the property owned by the USA and the role this
unreasonably dangerous condition played in Plaintiff’s fall.
2. Plaintiff’s Record Evidence is Admissible and Allows the Reasonable
Inference that the USA had Notice of an Unreasonably Dangerous Condition
on Its Property
The USA’s first argument in support of its proposition that there is no evidence that it had
any notice of an unreasonably dangerous condition flows directly from its argument that
Plaintiff’s workers’ compensation deposition and testimony are inadmissible hearsay. USA’s
Mot. Summ. J., 5, 6. However, because this Court finds that Plaintiff’s deposition and testimony
are admissible, this argument fails.
The USA’s second argument in support of its proposition that there is no evidence that it

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had any notice of an unreasonably dangerous condition flows from its argument that Plaintiff has
no admissible record evidence that his injuries were caused by a dangerous condition on the
USA’s Property. USA’s Mot. Summ. J., 8. The USA argues that “negligence of a premises
owner cannot be inferred merely because an invitee has had an accident” under Pennsylvania
law. 2 USA’s Mot. Summ. J., 8 (quoting Myers v. The Penn Traffic Co., 606 A.2d 926, 932 (Pa.
Super. Ct. 1992) (internal formatting omitted)). The USA concludes that, because Plaintiff’s
evidence of the circumstances causing his fall is inadmissible, Pennsylvania law prohibits the
inference that he suffered his fall due to an unreasonably dangerous condition on the USA’s
Property based on such evidence. However, because this Court finds that Plaintiff’s record
evidence, including the Aiello-Hess Email and Plaintiff’s statements to medical providers about
the circumstances of his fall, are admissible, the Court also finds that Plaintiff has successfully
demonstrated that there are genuine issues of the following material facts: (1) whether this
evidence permits inferences that Plaintiff suffered his fall due to an unreasonably dangerous
condition on the USA’s property; (2) whether the USA had notice of the unreasonably dangerous
condition; (3) whether the USA did not notify Plaintiff of this unreasonably dangerous condition
even though it expected that Plaintiff would not discover or protect himself from it; and (4)
whether the USA was negligent as a result.
V.

CONCLUSION
For the reasons set forth herein, Aqua’s Motion for Summary Judgment is GRANTED,

2

The USA asserts that Pennsylvania negligence law applies in the instant case under The Federal
Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (the “FTCA”). The FTCA is the “exclusive
cause of action available to plaintiffs who seek tort damages from the United States and its
agencies.” USA’s Mot. Summ. J., Doc. 65, 4 (citing 28 U.S.C. §§ 1346(b)(1), 2679(a)). Under
the FTCA, the United States is liable in tort “in the same manner and to the same extent as a
private individual under like circumstances,” and is the “only permissible defendant under the
FTCA.” 28 U.S.C. §§ 2674, 2679(a).
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and the USA’s Motion for Summary Judgment is DENIED. An appropriate Order follows.

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