Conductors refuse to assist woman disembarking train: ADA violation: Left arm injury: Postverdict settlement

Law Reporter, Aug 1999

Presta v. Peninsula Corridor Joint Powers Bd., U.S. Dist. Ct., N.D. Cal., No. C96-3607 TEH, Aug. 4, 1998.

Presta, 50, suffered from thoracic outlet syndrome-a condition in which pressure on nerves or blood vessels results in upper extremity pain-causing her to walk slowly. When she commuted by train she asked conductors for assistance disembarking. After a conductor allegedly ignored her request for help and allowed too little time for her to disembark, Prest's wrist was caught in the closing train doors. She continued to the next station with her hand outside the train. Presta suffered a traction injury to her left arm and exacerbation of her thoracic outlet syndrome. Her medical expenses totaled $2,500.

Presta sued the owner of the commuter service, alleging it had failed to provide her equal access to the train in violation of the Americans with Disabilities Act (ADA), 42 (sec)U.S.C. 12101 et seq. Plaintiff claimed that on several previous occasions, she had asked for assistance but a conductor was not made available, and that she had notified a high-level manager for defendant about these incidents. Defendant argued that plaintiff did not have a disability, and alternatively, that she was too disabled to be physically capable of riding a train.

Plaintiff did not claim lost income.

The jury had awarded $37,500 compensatory damages and found that plaintiff was entitled to punitive damages. The parties then settled for $75,000 plus costs and attorney fees.

Plaintiff's experts were Albert Yu, internal medicine, San Francisco, Cal.; Gary Moran, biomechanics, Alameda, Cal.; and Wladislaw Ellis, neuromuscular pain, Berkeley, Cal.

Defendant's expert was Robert Burton, neurology, San Francisco, Cal.

Plaintiff's Counsel:

*Barbara M. Cohen, Oakland, Cal.

*David B. Oppenheimer, San Francisco, Cal.

[ Comment: See also Galusha v. New York State Dep't of Envtl. Conservation, 27 F. Supp. 2d 117 (N.D.N.Y. 1998), 42 ATLA L. Rep. 49 (Mar. 1999), in which the court held that denying people with disabilities motor vehicle access to park areas when such access is permitted for other purposes violates the ADA. *Alvin A. Sabo, Joshua A. Sabo, and Joseph Baum, all of Albany, N.Y., represented plaintiffs. For a case alleging an employer violated the ADA by refusing to modify existing restroom facilities to provide wheelchair access, see Daugherty v. Palo Verde Unified Sch. Dist., 39 ATLA L. Rep. 334 (Oct. 1996). *John E. FitzGerald III, Palm Springs, Cal., represented plaintiff.]

[Documents in Galusha and Daugherty are available through the Court Documents section in the back section of this issue, courtesy of plaintiffs' counsel.]