Bingham v. New York City Transit Authority

864 N.E.2d 49, 8 N.Y.3d 176, 832 N.Y.S.2d 125

• Court: New York Court of Appeals
• Decided: February 15, 2007
• Status: Published

Opinions

OPINION OF THE COURT

Pigott, J.

In November 1995, plaintiff Ina Jean Bingham was injured when she fell while descending a stairway used as a means of access to and egress from the New York City subway. Plaintiff alleges that her foot caught on a metal strip protruding from one of the steps, causing her fall. She brought suit against the New York City Transit Authority and the Metropolitan Transportation Authority (collectively the Transit Authority), asserting, among other things, failure to keep and maintain the stairway in a proper and safe condition and failure to provide notice or warning of the defective condition.

The Transit Authority moved to dismiss the complaint arguing it neither owned nor maintained the stairway. Supreme Court granted the motion dismissing plaintiffs complaint, and the Appellate Division affirmed, holding that the Transit Authority established that it did not own the stairway and that, as a mere common user of the stairway, it was under no duty to maintain it for the benefit of its patrons.

This Court granted leave, reversed the Appellate Division’s order and reinstated the complaint, holding that the Transit Authority’s submissions were insufficient to establish that it was merely a common user of the stairway in question. We declined to reach the more fundamental issue raised by the Transit Authority, i.e., whether the common carrier rule, as stated in Schlessinger v Manhattan Ry. Co. (49 Misc 504 [1906]), should be abandoned in light of this Court’s decisions in Adams v New York City Tr. Auth. (88 NY2d 116 [1996]), Kaufman v Silver (90 NY2d 204 [1997]), and Bethel v New York City Tr. Auth. (92 NY2d 348 [1998]), because that argument had not been preserved for our consideration (see Bingham v New York City Tr. Auth., 99 NY2d 355 [2003]).

Following our decision, the matter proceeded to trial before a jury. At the conclusion of proof, the Transit Authority requested Supreme Court to charge the jury that, unless plaintiff had established that the stairway was used exclusively for subway purposes, she had failed to state a cause of action and her suit should be dismissed. Plaintiff, on the other hand, requested a charge that the Transit Authority would be liable if at the time of plaintiffs fall, the stairway was used by passengers constantly and notoriously as a means of approach. Supreme Court rejected the Transit Authority’s argument, and charged the jury as requested by plaintiff.

The jury returned a verdict in favor of plaintiff and the Transit Authority appealed. The Appellate Division modified by vacating the award for pain and suffering and remanding the matter for a new trial solely on the issue of damages unless plaintiff stipulated to a reduced award. Plaintiff so stipulated and a judgment was entered on the stipulation. This Court granted leave from that judgment to bring up for review the Appellate Division order, and we now affirm.

Courts have long recognized that the duty of care imposed on a common carrier with respect to its passengers requires not only that it keep the transportation vehicle safe, but also that it maintain a safe means of ingress and egress for the use of its passengers (see Kelly v Manhattan Ry. Co., 112 NY 443 [1889]). This duty has been applied to those areas owned and maintained by others if “constantly and notoriously” used by passengers as means of approach (see Schlessinger v Manhattan Ry. Co., 49 Misc 504, 505 [1906]). This rule, as enunciated in Schlessinger, has been recognized not only in New York (see Ambriano v Town of Oyster Bay, 266 AD2d 415 [2d Dept 1999]; Haberlin v New York City Tr. Auth., 228 AD2d 383 [1st Dept 1996]; Fortson v New York City Tr. Auth., 111 AD2d 58 [1st Dept 1985]; Bruno v Vernon Park Realty, 2 AD2d 770, 771 [2d Dept 1956]), but also in other jurisdictions (see e.g. Buchner v Erie R.R. Co., 17 NJ 283, 111 A2d 257 [1955]; Cotant v Boone Suburban Ry. Co., 125 Iowa 46, 99 NW 115 [1904]; Skottowe v Oregon Short Line & U.N. Ry. Co., 22 Ore 430, 30 P 222 [1892], affd 162 US 490 [1896]; Beard v Connecticut & Passumpsic Rivs. R.R. Co., 48 Vt 101 [1875]).

Several courts, in interpreting this rule, have held that the duty applies only where an approach is used “exclusively” to provide passengers access to the carrier (see O’Hara v New York City Tr. Auth., 248 AD2d 138 [1st Dept 1998]; Haberlin, 228 AD2d 383 [1996]). These courts have not applied the rule where the approach was used as a means of access to businesses or tenants in addition to the carrier (see e.g. O’Hara, 248 AD2d 138 [1998]; Pena v New York City Tr. Auth., 237 AD2d 150 [1st Dept 1997]; see also Valladares v New York City Tr. Auth., 208 AD2d 471 [1st Dept 1994]).

Where, as here, a stairwell or approach is primarily used as a means of access to and egress from the common carrier, that carrier has a duty to exercise reasonable care to see that such means of approach remain in a safe condition or, where appropriate, to take such precautions or give such warnings as would protect those using such area against unforeseen danger. Whether those means of ingress or egress are used primarily for that purpose would generally be a question of fact.

Contrary to the Transit Authority’s urging, our decisions in Bethel and Adams do not lead us to a different result. In Adams, we held that the special rule of “absolute liability” imposed on a carrier for the tortious acts of its employees was no longer practicable. Similarly, in Bethel, we held that a common carrier is no longer subject to a higher standard of care in transporting its passengers, but rather is subject to the same duty as any other potential tortfeasor.

While Adams and Bethel brought important aspects of the law governing common carriers in line with general tort law, they did not eliminate all distinctions between common carriers and other alleged tortfeasors. We therefore conclude that the Schlessinger rule should be retained, at least as applied to areas that serve primarily for ingress and egress to a subway or other similar station that is served by a single carrier.

* This long-settled rule is undoubtedly consistent with the expectations both of carriers and their patrons, expectations that may be relied on by property owners in allocating control over and responsibility for these areas, as well as by lawyers advising injured clients. A subway patron in the position of plaintiff here would surely be surprised to learn that the New York City Transit Authority had no duty to provide her with a stairway on which she could safely descend to the subway, and we see no good reason to hold that that duty is abolished.

In the case before us, the evidence at trial was sufficient to establish that the stairway in question was used primarily as a means of access to and from the subway. Therefore, defendants had a duty to maintain the stairway or to warn patrons of any dangerous condition. So imperative is the duty to provide a safe means of access to and from the subway that such duty may not be delegated to another. Thus, even if the responsibility to maintain the stairway resides in another entity, defendants may not avoid their responsibility to “at least provide against injury to its passengers by erecting such barricades, or giving such warning, as [would] guard against accidents” (Schlessinger, 49 Misc at 505).

Accordingly, the judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

We note that this duty of care imposed on a carrier to keep approaches and platforms safe has not been extended to common areas in a multi-carrier facility (see generally Raffile v Tower Air, 264 AD2d 721 [2d Dept 1999]).