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Ninth Circuit:
Plaintiff’s One-Liner at Deposition Was Sufficient to Defeat Summary Judgment
Woman’s Statement That It ‘Did Feel’ Like Bus in Which She Was Injured Was Speeding Sufficed—Opinion
By a MetNews Staff Writer
A woman’s comment in her deposition that she “did feel” that a bus in which she was a passenger was speeding at the time her motorized scooter tipped over, with her in it, causing her to be injured, was sufficient to overcome a motion for summary adjudication with respect to a negligence claim, the Ninth U.S. Circuit Court of Appeals held yesterday.
The memorandum opinion by a three-judge panel—comprised of Senior Circuit Judge Michael Daly Hawkins, Circuit Judge Eric D. Miller, and Judge Jane A. Restani of the United States Court of International Trade, sitting by designation—affirmed in part and reversed in part a summary judgment granted by Magistrate Judge Thomas S. Hixson of Northern District of California in favor of Amtrak and others.
The action was brought by Amanda Jones, who was injured on Aug. 25, 2014 while on Amtrak Highway 17 Express Bus #2310, traveling from Santa Cruz to San Jose. The bus was operated by defendant Santa Cruz Metropolitan Transit District under contract with defendant National Railroad Passenger Corporation.
Driver Sergio Gonzalez helped secure the scooter, rejecting advice from Jones on how to do it. After the fall, an ambulance arrived but Jones declined emergency services, continuing on the bus trip.
Later, however, she sued under various theories.
Magistrate Judge’s Decision
Addressing the claim for negligence, Hixson said.:
“…Jones asserts that Gonzalez ‘failed to adhere to a proper speed to prevent Ms. Jones from falling over in her wheeled apparatus.’…The only evidence Jones points to for this assertion is her deposition testimony. During her deposition, she was asked, ‘So do you know how fast the bus was going at the time when you fell?’…Jones responded, ‘I can’t—you know, I couldn’t see the speedometer, but I did feel like we were moving at a rather rapid pace, especially when we hit the curve and everybody got jostled around.’
The magistrate judge continued:
“However, another passenger on the bus. Christian Nieto, who had been riding the bus for three years, testified that the bus wasn’t speeding, and that ‘traffic was passing the bus,’ including when Jones fell….And Gonzalez stated in his declaration that ‘[t]he bus was not exceeding the speed limit at the time of accident’ and that ‘I was travelling slower than traffic passing me during the travel to the Mt. Herman exit where I stopped.’…Up against this evidence, the one statement by Jones that ‘I couldn’t see the speedometer, but I did feel like we were moving at a rather rapid pace’ is not enough to raise a genuine issue as to whether Bus #2310 was traveling at an appropriate speed.”
Ninth Circuit’s Opinion
The Ninth Circuit panel agreed with Hixson that Jones failed to show a violation of the federal Americans with Disabilities Act, the federal Rehabilitation Act of 1973, or the California Unruh Civil Rights Act because the defendants so provide bus drivers with training on dealing with passengers with disabilities. However, it ordered reinstatement of her claim for negligence, saying:
“Jones’s declaration and deposition testimony were sufficient to establish a genuine dispute] of material fact as to whether the bus driver breached his duty to safely transport her under California law.”
The opinion cites California Vehicle Code §17001 which provides:
“A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment.”
The opinion sets forth:
“Jones testified that the bus driver attempted to secure her scooter and then proceeded to drive his route at an unsafe speed, causing her scooter to tip and injure her.”
It cites the circuit’s 2015 opinion in Nigro v. Sears, Roebuck & Co. for the proposition that “uncorroborated and self-serving testimony sufficient to establish a genuine dispute of material fact because statements were ‘based on personal knowledge, legally relevant, and internally consistent.’ ”
The case is Jones v. National Railroad Passenger Corporation, 20-15279.
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