## Facts

- Clare Immaculata Kenny waited on the elevated platform at SEPTA’s Fairmont Avenue Station in Philadelphia at about 9:00 p.m.
- A man approached her, then dragged her about 150 feet to the darkened south end of the platform, beat her, and raped her.
- Police testimony described the south end of the platform as dark, with lights not lit; a detective later needed a powerful flashlight to search for evidence.
- A SEPTA attendant was on duty in a ground-level booth; evidence suggested he was listening to a portable radio and did not notice or respond during the assault.
- Kenny sued SEPTA and the City of Philadelphia in federal court on a negligence theory based on deficient lighting and inadequate attention to platform conditions.
- A jury found for Kenny against SEPTA for $18,000 and found no liability as to the City.
- The district court entered judgment notwithstanding the verdict (judgment n.o.v.) for SEPTA on the ground that SEPTA had no reason to anticipate criminal conduct at that station.
- At trial, the court permitted limited evidence that SEPTA added a new fluorescent fixture four days after the attack, to show feasibility and for impeachment.

## Issues

1. Whether, under Pennsylvania law, the evidence permitted a jury to find that SEPTA reasonably should have anticipated the risk of third-party criminal assault and breached its duty of reasonable care through inadequate lighting and monitoring.
2. Whether the district court properly granted judgment n.o.v. by concluding the evidence was insufficient to support the jury’s negligence verdict.
3. Whether testimony about post-incident installation of a new fluorescent light fixture was admissible for feasibility and impeachment despite the general bar on subsequent remedial measures.

## Decision

- The Third Circuit reversed the judgment n.o.v. and reinstated the jury’s $18,000 verdict against SEPTA.
- The court held the evidence permitted findings that SEPTA failed to exercise reasonable care in maintaining adequate lighting and in attending to station conditions.
- The court rejected a foreseeability analysis limited to prior incidents at the exact station, concluding broader crime conditions on the transit system could support foreseeability.
- The court found the causal connection between deficient lighting/inadequate monitoring and the assault was for the jury on this record.
- The court found no reversible error in admitting evidence of the later-installed light fixture for limited purposes of feasibility and impeachment.

## Legal Principles

- Under Pennsylvania law, a carrier/business proprietor must exercise reasonable care to protect patrons against foreseeable harm, including reasonably anticipated third-party criminal acts.
- Foreseeability may be supported by evidence beyond prior identical incidents at the precise location; general conditions and known crime risks may be relevant.
- In reviewing judgment n.o.v., the court must view evidence and reasonable inferences in the light most favorable to the verdict winner; judgment n.o.v. is proper only if no reasonable jury could find for that party.
- Evidence of subsequent remedial measures is generally inadmissible to prove negligence, but may be admitted for limited purposes such as feasibility and impeachment.

## Conclusion

The Third Circuit held that evidence of a dark, unlit platform area and inadequate attention by the only station employee, in the context of known transit-system crime risks, was sufficient for a jury to find SEPTA negligent and its negligence a substantial factor in the assault; the district court therefore erred in setting aside the verdict, and limited admission of post-incident lighting changes was permissible for feasibility and impeachment.


Kenny v. Se. Pa. Transp. Auth., 581 F.2d 351 (3d Cir. 1978)