                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-1798
                                      _____________

                                 ANNIE E. ARRINGTON,
                                               Appellant

                                              v.

                NATIONAL RAILROAD PASSENGER CORPORATION
                              _______________

                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. No. 2-15-cv-6750)
                    District Judge: Hon. Nitza I. Quiñones Alejandro
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 11, 2018

       Before: JORDAN, ROTH, Circuit Judges and MARIANI *, District Judge.

                                 (Filed: January 31, 2018)
                                     _______________

                                        OPINION ∗∗
                                     _______________




       *
         Honorable Robert D. Mariani, United States District Court Judge for the Middle
District of Pennsylvania, sitting by designation.

       ∗∗
         This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

          Annie Arrington appeals from the grant of summary judgment against her on her

claim that the National Railroad Passenger Corporation (“Amtrak”) violated the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and her further

claim that Amtrak’s negligence caused her injuries. We will affirm.

I.        Background 1

          Arrington was a passenger on an Amtrak train traveling between Pennsylvania and

North Carolina when she fell as the train “jerked.” (App. at 90.) Arrington identified

herself as “mobility impaired” when she purchased her train ticket. (App. at 537.) At

that time, she walked with the assistance of a cane because of a pre-existing condition

affecting her back. She did not, however, “need the cane continuously, only when [she]

was having problems.” (App. at 381.)

          When Arrington boarded the Amtrak train in Pennsylvania, Amtrak employees

directed her to a seat in the handicap-accessible section of the train car because her ticket

identified her as requiring an “accessible” seat due to her self-identified mobility

impairment. Arrington was carrying her cane when she boarded the train, but she did not

use it while walking to her seat.

          As it turned out, Amtrak employees directed Arrington and others to a handicap-

accessible section in the wrong train car, given that their ultimate destination was in



          1
              We view the facts in the light most favorable to the nonmoving party. See infra
note 2.

                                                 2
North Carolina. So, while the train was traveling between Wilmington, Delaware and

Baltimore, Maryland, an Amtrak conductor told those passengers that they were seated in

the wrong car and would have to move to a different one. Arrington informed the

conductor that she could not get up and walk to a different car while the train was

moving. The conductor replied that Arrington could wait until the train arrived in

Baltimore before moving to her new seat because the train would stop in Baltimore for

five minutes. Before the train reached Baltimore, though, Arrington observed the

passengers seated with her in the handicap-accessible section moving to the other train

car without assistance. She decided, as she noticed the train slowing down, to get up and

move to her new seat. She did not ask for assistance, and, in fact, declined assistance

from a fellow passenger. Arrington testified that the train was stopped when she got out

of her seat but that she did not know if the train had arrived in Baltimore, and she did not

see any other passengers in the aisle, apart from those waiting in line for the restroom.

She said that there was no reason she attempted to move seats before the train reached

Baltimore.

       Arrington fell as she was walking down the aisle as a result of what she described

as a “hard” and “long” jerk. (App. at 332.). After she fell, the Amtrak conductor who

had previously told her she could wait until Baltimore to switch seats came over and

offered to help Arrington off the floor. Arrington replied that she could not get up right

away and remained on the floor for a couple minutes. When Arrington was ready to be

helped into a seat, the conductor helped her get off the floor and into a nearby seat and

told Arrington to move to the appropriate train car when she was ready. Arrington later

                                             3
walked to her new handicap-accessible seat in the other train car without asking for or

receiving assistance.

       Prior to this incident, Arrington independently pursued a wide range of everyday

activities. She testified, “I did everything I had for myself. I cooked. I went shopping. I

did all my own shopping. For a long time I did my own grass [by riding mower], but

then I got somebody to start cutting my grass because it got to be too much for me.”

(App. at 395.) She was also active in religious organizations and did water aerobics at a

senior center.

       Arrington sued Amtrak for violations of the ADA and for negligence arising out of

her fall. The District Court granted summary judgment in favor of Amtrak on those

claims, and Arrington appeals that judgment.

II.    Discussion 2

       We agree with the District Court’s thorough analysis and conclusion that

Arrington failed to establish a prima facie case of discrimination under the ADA and that

the record contains no evidence to support Arrington’s negligence claim.




       2
          The District Court had diversity jurisdiction under 28 U.S.C. 1332 and federal
question jurisdiction under 28 U.S.C. §§ 1331 and 1349. We have jurisdiction pursuant
to 28 U.S.C. § 1291. Our review of a grant of summary judgment is plenary. Deweese v.
Nat’l R.R. Passenger Corp. (Amtrak), 590 F.3d 239, 244 n.8 (3d Cir. 2009). Summary
judgment is appropriate if there are no genuine disputes of material fact and if the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In reviewing a summary judgment ruling,
we consider the facts in the light most favorable to the nonmoving party. Anderson, 477
U.S. at 248-49.

                                             4
       A.     ADA Claim 3

       “Title II of the ADA prohibits discrimination against the disabled in public

services, programs, and activities.” Disability Rights N.J., Inc. v. Comm’r, N.J. Dep’t of

Human Servs., 796 F.3d 293, 301 (3d Cir. 2015). To succeed on an ADA discrimination

claim, a plaintiff must establish that she is a qualified individual with a disability; that she

was excluded from participation in or denied the benefits of a public entity’s services, or

was discriminated against by a public entity; and that such exclusion, denial, or

discrimination was by reason of her disability. 42 U.S.C. § 12132; Disability Rights N.J.,

796 F.3d at 301. There is no dispute that Amtrak is a public entity subject to Title II of

the ADA.

       Arrington argues that she has established she is a qualified individual with a

disability because she presented evidence that she has a long history of orthopedic

impairments. The ADA defines “disability” as “(A) a physical or mental impairment that

substantially limits one or more major life activities …; (B) a record of such an

impairment; or (C) being regarded as having such an impairment[.]” 4 42 U.S.C. § 12102.


       3
         Arrington’s complaint appears, on its face, to state only a negligence claim. It
invokes the ADA only in a passing reference to Amtrak’s alleged failure to train its
employees pursuant to that statute in a sub-paragraph in support of her negligence claim.
Although the civil cover sheet filed with the complaint indicated Arrington intended to
bring a claim under the ADA, it invoked the District Court’s diversity jurisdiction, not its
federal question jurisdiction. The parties and the District Court, however, liberally
construed Arrington’s complaint to contain an ADA claim and we will do likewise and
review the resolution of that claim.
       4
          Arrington does not argue that her impairment qualifies as a disability under
subpart (C), which does not require a plaintiff to prove a substantial limitation on a major
life activity. 42 U.S.C. § 12102(3). We note, however, that even if Arrington could
                                               5
Walking is considered a major life activity. 29 C.F.R. § 1630.2(i)(1)(i). An individual is

substantially limited in performing a major life activity if that individual is unable to

pursue that major life activity in a comparable manner “to most people in the general

population.” 29 C.F.R. § 1630.2(j)(1)(ii). We agree with the District Court’s conclusion

that Arrington does not have a qualifying disability because she has not pointed to any

record evidence demonstrating that she was substantially limited in any major life

activity, including walking. In fact, she testified that, at the time of the incident, she

could do everything on her own.

       Arrington further argues that Amtrak discriminated against her when its

employees failed to provide assistance when she was moving between train cars. The

record evidence demonstrates that Amtrak provided Arrington with the one

accommodation she actually requested – a seat in a handicapped section. Amtrak did not

deny Arrington assistance to which she was entitled when she got up to move between

seats; she never asked for any assistance. An Amtrak conductor specifically told

Arrington that she could wait until the train reached the station in Baltimore before

moving to her new seat. Amtrak was under no statutory obligation to preemptively offer

her assistance on the chance she would get up prior to the train reaching Baltimore. We

agree with the District Court that the record contains no evidence that allows for a finding




demonstrate that her impairment was a qualifying disability, she would still fail to make
out a prima facie claim of discrimination because she cannot demonstrate that Amtrak
discriminated against her or denied her any benefits or services to which she was entitled.
See infra pp. 6-7.
                                               6
that Amtrak discriminated against Arrington or denied her any benefits or services to

which she was entitled.

       Accordingly, Arrington has not established a prima facie case of discrimination

under the ADA.

       B.     Negligence Claim 5

       To state a claim for negligence under Pennsylvania law, “the plaintiff must show

that the defendant had a duty to conform to a certain standard of conduct; that the

defendant breached that duty; that such breach caused the injury in question; and actual

loss or damage.” Phillips v. Cricket Lighters, 841 A.2d 1000, 1008 (Pa. 2003) (quotation

marks and citation omitted). Pennsylvania holds common carriers, such as Amtrak, “to

the highest duty of care.” LeGrand v. Lincoln Lines, Inc., 384 A.2d 955, 956 (Pa. Super.

Ct. 1978). When a common carrier “accepts as a passenger a person known to [have] …

a physical … disability,” a common carrier “must exercise a greater degree of care for

that passenger than is ordinarily required.” Id.

       The record does not support that Amtrak breached its duty to conform to a

heightened duty of care. As discussed above, an Amtrak conductor told Arrington she


       5
          As the District Court noted, both parties rely exclusively on Pennsylvania state
law when discussing Arrington’s negligence claim, despite the fact that Arrington’s fall
occurred while the train was in Maryland. The Court applied Pennsylvania law after it
determined that “the law with respect to the duty owed … a passenger on a common
carrier is the same in both Pennsylvania, where [Arrington] boarded the train, and in
Maryland, where [Arrington’s] injury occurred.” (App. at 16 (comparing Wash. Metro.
Area Transit Auth. v. Djan, 979 A.2d 194, 196 (Md. Ct. Spec. App. 2009) with Connolly
v. Phila. Transp. Co., 216 A.2d 60, 62 (Pa. 1966)).) Because we agree with the District
Court on that point and because no party objected to the application of Pennsylvania law,
we too apply Pennsylvania law.
                                             7
could wait to move until the train reached the station in Baltimore. Instead of waiting

until the train reached Baltimore, Arrington attempted to move to her new seat before the

train got to Baltimore, without asking for any assistance. The common law, just like the

ADA, placed no affirmative duty on Amtrak to predict that Arrington would get up to

move to her new seat before the train stopped and to preemptively offer assistance she

had not requested. 6 We agree with the District Court that Arrington’s negligence claim

fails as a matter of law. 7

III.   Conclusion

       For the foregoing reasons, we will affirm the grant of summary judgment in favor

of Amtrak.




       6
          Arrington appears to argue that Amtrak was negligent because its employees
failed to conform to Amtrak’s own policies. The policies contained in the record,
however, do not require Amtrak employees to predict when a passenger seated in a
handicap-accessible seat might need assistance going from one seat to another. Rather,
the policies state that “[i]ndividuals with disabilities should notify the ticket agent in
advance of any special accommodations needed … on-board the train.” (App. at 564.)
And, while the policies explicitly state that “[p]assengers may notify the crew at any time
that they have a disability and will need special assistance,” (App. at 564 (emphasis
omitted)), as explained above, Arrington never asked for assistance.
       7
         The Court also concluded that Arrington’s negligence claim failed by operation
of Pennsylvania’s “jerk or jolt” doctrine. (App. at 18.) That doctrine precludes a finding
of negligence against a common carrier based only on a common carrier’s sudden
movement unless the plaintiff can demonstrate the sudden movement was particularly
unusual and extraordinary. Connolly, 216 A.2d at 62. Arrington argues that doctrine
does not apply when a common carrier is transporting an individual it knows to be
disabled. We do not reach that issue because it is clear to us that Arrington’s negligence
claim fails as a matter of law regardless of the applicability of the “jerk or jolt” doctrine.
                                              8
