RUSH v. UNITED STATES OF AMERICA, 2:15-cv-01839

Background

On April 17, 2013, Damon Sheron Rush (later deceased) fell through a steel meter-vault cover while working as a landscaper on U.S. Marine Corps property in Folsom, PA, suffering serious injuries; he later died in 2015 after subsequent treatment and surgery.
Plaintiff (through the estate administrator) sued the United States under the Federal Tort Claims Act (FTCA) and Aqua America / Aqua Pennsylvania (Aqua) for negligence, and asserted survival and wrongful-death claims under Pennsylvania law.
Aqua moved for summary judgment arguing (inter alia) that the United States owned and was responsible for the meter vault by PUC tariff, that the U.S. repaired the vault after the accident, and that there was no basis for crossclaims against Aqua.
The United States moved for summary judgment arguing (inter alia) that plaintiff had no admissible evidence of the circumstances causing the fall or of notice to the U.S.; it challenged admissibility of plaintiff’s workers’ compensation testimony under Fed. R. Evid. 804(b)(1).
The District Court granted Aqua’s summary-judgment motion (Aqua not owner/responsible) and denied the United States’ motion, finding (1) the PUC tariff and record showed the U.S. owned/maintained the vault and (2) plaintiff’s proffered evidence (including workers’ compensation deposition, an internal email, and medical statements) raised genuine issues of material fact on causation and notice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Aqua owned or had legal duty to maintain the meter vault	Rush: Aqua retained effective control/access and had practices (reporting defects) that created a duty	Aqua: PUC tariff and practice make the U.S. the owner/responsible party; Aqua did not control/maintain the vault	Aqua not owner/responsible; summary judgment for Aqua granted
Effect of PUC tariff on maintenance responsibility	Rush/U.S.: tariff ambiguous or later amended; Aqua’s access/ability to terminate service implies shared responsibility	Aqua: tariff unambiguously places maintenance duty on customer (U.S.); tariff has force of law	Tariff read to place maintenance on the U.S.; no genuine dispute that U.S. was responsible
Admissibility of plaintiff’s workers’ compensation testimony under Fed. R. Evid. 804(b)(1)	Rush: employer (Watts) was a predecessor in interest with a similar motive to develop testimony; testimony admissible	U.S.: Watts lacked a similar motive (workers’ comp system pays regardless), so testimony inadmissible hearsay	Court: Watts was a predecessor in interest with sufficiently similar motive; WC testimony admissible
Whether record creates triable issues on causation and notice	Rush: WC testimony, an Aiello-Hess email (reporting defective covers), medical statements, and other evidence support inference of defective cover and U.S. notice	U.S.: many items are inadmissible hearsay or insufficient; cannot infer notice or dangerous condition merely from accident	Court: email and medical statements and WC testimony admissible; police report statements inadmissible; overall record creates genuine issues on causation and notice; U.S. summary judgment denied

Key Cases Cited

Anderson v. Liberty Lobby, 477 U.S. 242 (summary-judgment genuine-issue standard)
Celotex Corp. v. Catrett, 477 U.S. 317 (movant’s initial summary-judgment burden)
Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358 (3d Cir. 1992) (drawing inferences for nonmovant)
Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884 (3d Cir. 1992) (nonmovant must do more than vague assertions)
Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3d Cir. 1978) (predecessor-in-interest standard interpreted generously)
New Jersey Turnpike Auth. v. PPG Indus., Inc., 197 F.3d 96 (3d Cir. 1999) (shared interest, not strict privity, can establish predecessor-in-interest)
Behrend v. Bell Tel. Co., 636 A.2d 1152 (Pa. Super. Ct.) (utility tariff obligations and court jurisdictional remarks)
Stiteler v. Bell Tel. Co., 379 A.2d 339 (Pa. Cmwlth.) (PUC tariffs have force of law)