The “jerk-and-jolt” doctrine, a seemingly living breathing principle subject to constant change and interpretation, is coming to a cross-roads. In the past few years, a number of jerk-and-jolt related claims have found their way in front of the Commonwealth Court. Most recently, in what appears to be developing into a landmark jerk-and-jolt case, George Norman Green v. Septa,
the Commonwealth vacated a $250,000 jury verdict in favor a plaintiff claiming injuries from an incident on a SEPTA bus even after both the plaintiff and his wife, also a passenger on the bus, testified to the unusual and extraordinary movement of the bus and the effect of the movement on themselves as well as other passengers.
As we all know per Buzzelli v. Port Authority of Allegheny and Connolly v. SEPTA, to invoke jerk-and-jolt, the plaintiff must be able to show an “unusual or extraordinary” stop, jolt or jerk, and that the movement was beyond the plaintiff’s reasonable anticipation, which can be evidenced by a) an extraordinarily disturbing effect on other passengers, or b) showing that the manner in which the accident occurred, or c) the effect of the accident upon the plaintiff, inherently established the extraordinary nature of the jolt. With the evidence seemingly in George Norman Green’s favor under these prongs (and sub-prongs) of the “jerk-and-jolt” doctrine, the Commonwealth Court’s decision has raised the collective eyebrow of the plaintiff’s bar and begs the question of how to evaluate your client’s potential jerk-and-jolt claim.
When a potential new client comes to our office for representation in a jerk and jolt matter, the intake must be even more narrowly tailored under the guidelines of the Buzzelli and Connolly cases. With those decisions in mind, and in conjunction with the recent back-and-forth between SEPTA, the plaintiffs’ bar and the Courts, here are four (4) tips to keep in mind when evaluating your client’s jerk-and-jolt claim:
- INVESTIGATE AND INTERVIEW OTHER PASSENGERS. One of the most common defenses that SEPTA raises in a jerk-and-jolt claim is the plaintiff’s inability to demonstrate any, let alone an “extraordinary” effect on other passengers. Make sure to get names and phone numbers of any other passengers on the bus. If your client cannot identify any other passengers by name and phone number, perform your
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own investigation; obtain the SEPTA operator report, police report, incident cards, etc., and complete your due diligence, documenting any and all evidence of the effect of the bus’s movement on other passengers. Failing to sufficiently present this evidence throughout discovery is likely to result in summary judgment being granted against your client.
- DETERMINE WHERE THE JERK-AND-JOLT OCCURRED. In its George Norman Green decision, the Court reviewed instances in which a passenger falls before he or she reaches her seat. In those scenarios, the Court determined that it would not be unusual or extraordinary for a passenger to lose his or her balance while walking down the aisle of the bus to find a seat during the bus’s departure from a scheduled stop. Under this notion, it appears that jerk-and-jolt becomes ever more difficult to meet where the claimed movement occurs while arriving at or departing from i) a regularly scheduled stop, ii) a traffic light or iii) a stop sign. Knowing where the jerk occurred will better prepare you for SEPTA’s defenses in a jerk-and-jolt case.
- DETERMINE WHETHER YOUR CLIENT WAS SEATED OR STANDING. The Commonwealth Court in its decisions on the subject, focuses its analysis on distinguishing between seated and standing passengers. In the case of the standing passenger, the Court referred to its own decision in Jackson v. Port Authority of Allegheny County, explaining that “it is not unusual for standing passengers to loser their balance and fall on a moving trolley or bus due to an ordinary or moderate jerk.” Again, by its own admission, the Court continued to make the jerk-and-jolt test “difficult to meet” by identifying instances in which an “ordinary” movement may cause a passenger to fall. It appears that whether your client was seated or standing can and will provide different hurdles to overcome as you inevitably face a Motion for Summary Judgment in your jerk-and-jolt case.
- FIND EVIDENCE OF THE BUS SPEED. Bus speed is an often overlooked criterion when performing an intake with a potential jerk-and-jolt client. We, as plaintiff’s lawyers are programmed to analyze the severity of the impact, or jolt, and the resultant effect on our client, despite speed. However, SEPTA relies heavily on whether or not there is evidence of excessive speed which may demonstrate “extraordinary” or “unusual” movement. Your client’s ability to testify regarding excessive speed under the circumstances could very well be one your case’s strongest components.
As we enter the next chapter of the jerk-and-jolt saga, we as Plaintiff’s lawyer must be more vigilant in identifying what evidence could exist to show an “extraordinary” or “unusual” movement of a bus or other common carrier vehicle. The jerk-and-jolt doctrine appears to be evolving into a more burdensome test for our clients. But, it is not an impossible one.
Marc I. Simon, is the CEO of Simon & Simon, PC, is a sixteen lawyer plaintiff’s injury firm in Pennsylvania and New Jersey handling primarily limited tort motor vehicle collisions and fall downs. For further information please visit www.gosimon.com