Merino v.New York City Transit Authority

218 A.D.2d 451, 639 N.Y.S.2d 784, 1996 N.Y. App. Div. LEXIS 2019

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1996
• Status: Published

Opinions

OPINION OF THE COURT

Tom, J.

Defendant New York City Transit Authority appeals a judgment, entered pursuant to a jury verdict, on the ground that plaintiff has failed to prove a prima facie case of negligence against it for injuries sustained by plaintiff who, while intoxicated, fell off a subway platform and was run over by a train. This was the second trial of the underlying action.

In 1988, plaintiff Francisco Merino found work as a dishwasher in a restaurant called "Mary Lou’s” in Manhattan where, in February 1989, he began to work full time. Plaintiff worked until 3:00 a.m. on Sunday morning, April 9, 1989, returned home and, at some point later that day, although plaintiff was unsure when, he proceeded to a fried food stand, the location of which he could not remember. Plaintiff testified that he consumed "some beers” and, when questioned on how many, stated "I don’t know exactly. Three, six. I don’t know the exact amount.”

Plaintiff thereafter left the food stand, although beyond stating it was dark, he could not specify the time. He then decided to buy bread at a restaurant but, as he started toward the establishment, he realized he had no money and proceeded to the 183rd Street Station.

Merino testified that after he reached the station platform (the Number 4 line at that point is elevated), he stood next to the stairs because he was tired and "the alcohol was having an effect on me”, making him dizzy. Plaintiff stated that at no other time did he see anyone else on the platform. Merino, because of his condition, then sat down in the middle of the stairs until he saw the lights of an approaching train, whereupon he got up and approached the edge of the platform, approximately 196 feet from the point where the train enters the station. Plaintiff testified that he then was either pushed or he fell¹ from the platform onto the tracks.

Plaintiff, who claimed he remembered nothing else after tumbling to the trackbed, was struck by the train and run over by approximately three subway cars. Dr. Mark Hirsch, an intern in the Emergency Room at Jacobi Hospital, where plaintiff was brought, testified that plaintiff, upon his arrival, smelled of alcohol, was clinically intoxicated, and appeared to be coming in and out of sleep. The hospital record described plaintiff as inebriated. Plaintiff suffered various injuries including a fractured skull, and, after microsurgery failed, the loss of his left arm.

Courtney John, a transit employee, testified that on Monday morning, April 10,1989, he arrived by train on the northbound platform of the 183rd Street Station to relieve the token clerk on duty for a meal break at approximately 3:35 a.m. Mr. John stated that plaintiff was alone on the platform, was sitting or crouching against a wall a few feet from the stairway and appeared to be intoxicated, holding what looked like a can of beer. Plaintiff did not board the train that Mr. John got off and remained seated against the wall of the platform. Approximately 15 to 20 minutes after going into the token booth, Mr. John heard the sound of a train brake going into emergency and was informed by a passenger that a person had been hit by a train.

Motorman John Sumpter testified that he was operating a Number 4 train consisting of 10 Kawasaki R-62 model subway cars (among the newest, most modern cars in the Transit Authority fleet) on the midnight to eight shift on the night in question. The R-62 cars are each 51 feet, 4 inches in length. Mr. Sumpter stated that after negotiating an upward grade and right-hand curve, he entered the 183rd Street Station at approximately 25 miles per hour (there are no speed restrictions at that station as long as the motorman can enter the station and is able to come to a smooth safe stop at the 10-car marker). Mr. Sumpter averred that he could see clearly to the end of the station and that when approximately three cars had entered the station, he saw plaintiff alone on the platform, approximately 50 feet from the front of the train. Mr. Sumpter testified that plaintiff suddenly fell onto the tracks and that he immediately put the train into emergency. Once the train stopped, Mr. Sumpter called the Transit Authority command center and got out of the train to investigate, whereupon he found plaintiff between the third and fourth cars.

Mr. Sumpter stated that before he began his run, he had tested the train’s brakes and headlights and found them to be working properly and that they continued to work properly at the time of the accident. Mr. Sumpter also stated that the platform lights were working and, as previously indicated, he could see the entire platform when he entered the station. Transit Authority Train Service Supervisor Michael Muro, who investigated the accident immediately after it occurred and drove the train from the scene, stated that the headlights were operating properly and that the engineer, if traveling at 25 miles per hour, was not speeding when he entered the station.

At the first trial, conducted before Justice Herbert Shapiro and a jury, plaintiff sought to establish the Transit Authority’s negligence on three theories: that the Transit Authority had a higher standard of care with respect to intoxicated passengers than was required by law, as per the Transit Authority’s own internal rules; that the motorman failed to use due care in operating the train; and that the Transit Authority failed to provide adequate lighting on the platform and track areas so that the motorman would have sufficient time to see a person on the tracks and stop the train.

At the conclusion of the first trial, the jury awarded plaintiff total damages in the sum of $9,349,730. The jury found that the motorman had not negligently operated the train; that plaintiff was not contributorily negligent; and that the Transit Authority was "negligent in the manner in which it supplied and maintained lighting at the station at 183rd Street” and "in the manner it acted, or failed to act, through its employees, with respect to [plaintiff] when he was observed on the platform * * * in what appeared to be an intoxicated condition.”

The Transit Authority thereafter successfully moved to set aside the verdict. Justice Shapiro found that the plaintiff had failed to establish a "special relationship” between himself and the Transit Authority, or that the Transit Authority had breached its duty to "take care” of him. The court dismissed this claim on the grounds that there was no evidence that the Transit Authority’s internal rule had been violated nor that its violation, if any, was the proximate cause of plaintiff’s injuries. The trial court also determined that there was barely sufficient evidence to support plaintiffs claim of inadequate lighting, but held nonetheless that a new trial was required; and that the jury’s finding that plaintiff was not contributorily negligent was against the weight of the evidence as his admitted intoxication was the "cornerstone of plaintiffs case”. Lastly, the trial court agreed that the damage awards were excessive.

This Court affirmed the IAS Court (Merino v City of New York, 183 AD2d 458) and directed a new trial "with regard to issues of whether [the Transit Authority] was negligent in lighting the accident site, whether plaintiff was also negligent and the amount of damages, if any, to be awarded”. We found that defendant owed no duty to plaintiff other than that of ordinary care as no special relationship was demonstrated. This Court also found that it was error for the trial court to have permitted plaintiff to introduce a portion of an internal rule which imposed a higher standard (with regard to intoxicated passengers)² upon the Transit Authority than required by law and that the introduction of such evidence may have affected the jury’s consideration of the comparative negligence issue.

In the second trial, both sides offered expert testimony concerning the issue of whether the Transit Authority was negligent with respect to the lighting of the 183rd Street Station. The station was designed in 1913, opened in 1916, and its lighting system was renovated in the 1920’s, but has not been redesigned since. A 1959 extension to the station used the same design, which consists of two sets of lights over the above-ground canopied platform.

One set of lights, the "AC” system, is located over the northbound platform and consists of approximately 140 36-watt bulbs which are powered by Consolidated Edison. The second set, which consists of light clusters, is designed to remain on in the event of a City-wide blackout and draws its power from the "third rail”, which is the "DC” system. At the time of the accident, it is uncontested that 33 of the 140 AC system bulbs were not working or had been vandalized.

Testimony also revealed that the headlights of the R-62 train are designed to provide illumination of the trackbed and to strike the rails approximately 150 feet in front of the train. The power of the lights cannot be adjusted in order to avoid glare problems for the train’s operator and to prevent the blinding of engineers of oncoming trains.

Plaintiffs expert, Nicholas Bellizzi, testified that the Transit Authority did not provide adequate lighting at the Station relying, over objection, on an internal Transit Authority "Station Planning Guide” (the Guide) for lighting in stations built, or rebuilt, after 1973. Mr. Bellizzi concluded that because the lighting in the 183rd Street Station "only provided about five foot candles of light” and that the "Transit Authority’s own requirements (based on the Guide) for station platform areas [are] fifteen [foot candles],” the lighting was far below its own guidelines. Mr. Bellizzi also stated that the Transit Authority was negligent for failing to put cages around the bulbs to prevent theft (the bulbs, in any event, are reverse-threaded so they are unusable in conventional sockets); and that the position where plaintiff was found was consistent with the train having gone into emergency upon striking Merino on the tracks and not, as the motorman testified, 50 feet before hitting plaintiff.

Plaintiff also offered the previous trial testimony of John Davis, a transportation expert, who had died prior to the second trial. Mr. Davis essentially agreed with Mr. Bellizzi that the Transit Authority failed to adequately light the station.

Norman Marcus, the defense expert, offered the opinion that the position of plaintiff after the accident was fully consistent with the motorman’s testimony that plaintiff fell to the trackbed when the train was approximately 50 feet away. Mr. Marcus explained that at a speed of 26 miles per hour, with a reaction time of one second, the train could not have stopped until it had passed at least 130 feet beyond plaintiff. If plaintiff was found under the fourth car (Officer Patrick Sullivan, the first New York City Transit Authority patrolman on the scene, testified that Merino was found under the third car, which further bolsters the motqrman’s recollection of the events), Mr. Marcus estimated the speed of the train at the time of the application of the emergency brakes to be 29 miles per hour. Mr. Marcus opined that at either 26 or 29 miles per hour, and irrespective of the lighting conditions, the train could not have stopped in time to avoid striking plaintiff.

The jury subsequently found that the Transit Authority was 76%, and plaintiff 24% responsible for the accident and awarded plaintiff a gross verdict of $3,586,055: consisting of $500,000 for past pain and suffering; $2,400,000 for future pain and suffering, $44,000 for past loss of earnings; $620,000 for future loss of earnings, $12,055 for past medical expenses; and $10,000 for future medical expenses.

The Transit Authority moved, inter alia, for a mistrial, judgment notwithstanding the verdict and to set aside the verdict as excessive, which was denied by order dated July 7, 1993. Judgment for plaintiff was thereafter entered on September 14, 1993. Defendant appeals and we now reverse.

Defendant argues, inter alia, that pursuant to our prior decision, the sole issue as to liability to be determined in the second trial was whether the Transit Authority acted negligently in lighting the accident site and that the plaintiff has failed, under those restrictions, to establish a prima facie case.

In order to set forth a prima facie case of negligence, the plaintiff’s evidence must establish (1) the existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty; and (3) that such breach was a substantial cause of the resulting injury (Akins v Glens Falls City School Dist., 53 NY2d 325, 333; Solomon v City of New York, 66 NY2d 1026, 1027; Johnson v Grand Union Co., 158 AD2d 517, 518; Febesh v Elcejay Inn Corp., 157 AD2d 102, 104, lv denied 77 NY2d 801; Prosser and Keeton, Torts § 30, at 164-165 [5th ed]).

Plaintiff’s case herein relies heavily, almost exclusively, on the testimony of Mr. Bellizzi, who averred that the Transit Authority should have caged the light bulbs to prevent theft and vandalism and should have provided greater illumination at the station. The latter conclusion was premised, over repeated objection, on the Guide which was promulgated in the early 1970’s, decades after the 183rd Street Station was designed and upgraded. The Guide provided for "design guidelines” and criteria (not "standards” as the plaintiff continually argues) for new stations and for modernization of old stations when such projects are undertaken. The Guide was to apply to stations built or rebuilt after its publication in 1973. Plaintiff’s reliance on the Guide, however, was flawed.

The law is settled that a party is under no legal duty to upgrade a structure, which was originally built in compliance with the law, by reason of subsequent changes in specifications (Holscher v State of New York, 59 AD2d 224, 227, affd 46 NY2d 792; see also, Schwartz v New York State Thruway Auth., 61 NY2d 955; Benjamin v State of New York, 203 AD2d 629; Mason v State of New York, 180 AD2d 63; Trautman v State of New York, 179 AD2d 635, lv denied 79 NY2d 758; Rittenhouse v State of New York, 134 AD2d 774; Van De Bogart v State of New York, 133 AD2d 974).

In Benjamin v State of New York (supra, at 629-630), plaintiff was injured when his car veered off a State road and struck a railroad rail marker that had been in place since the 1940’s. Plaintiff averred that the State was negligent in failing to replace the existing marker with a newer, flexible marker which was designed to collapse when struck by a vehicle. The Court held, however, that: "Claimants contend that by reason of certain provisions of the New York State Highway Design Manual, adopted after the installation of the railroad rail, the State had a duty to replace the rail with a flexible marker. We disagree. * * * Rather, a fair reading of the applicable provision of the Manual prohibits DOT from using concrete and wood posts as culvert markers subsequent to the promulgation of the Manual. It would be unreasonable indeed to interpret the aforesaid provisions as requiring DOT to seek out and remove culvert markers erected many years prior to the promulgation of the Manual” (supra, at 629-630 [emphasis added]).

Pursuant to the ruling in Benjamin, the Transit Authority was not required to upgrade its stations with brighter illumination to meet the standards of the Transit Authority’s Planning Guide which was promulgated decades after the stations were built.

Similarly, in Schwartz v New York State Thruway Auth. (supra), the plaintiff contended that the State had failed to adequately safeguard highway users by modernizing guardrails. The Court of Appeals, in affirming the dismissal of the claim, held that the "guardrail that was installed met the relevant design standards in effect at the time of its construction.” (Supra, at 956.)

In Rittenhouse v State of New York (supra, at 776), the Court, in affirming the dismissal of the plaintiff’s claim, held that "the subsequent safety guidelines [the highway in question predated the 1967 guidelines] were not applicable as a standard for measuring the State’s ongoing duty to maintain older highways”.

In the matter before us, plaintiff, who has the burden of proving inadequate lighting at the accident site, has provided absolutely no evidence that the platform lights in the 183rd Street Station did not meet the applicable standards at the time of their original installation; that lighting condition was inadequate at the time of the accident; or that the headlights on the Kawasaki R-62 train, which provided light to the trackbed in a manner designed to avoid glare to the train’s operator as well as to the operators of oncoming trains, failed to meet current standards. Indeed, the only evidence provided established that the station lighting was soundly designed to provide illumination during blackouts and that, to avoid theft, the individual bulbs had reverse threads rendering them useless in conventional sockets.

While this Court ordered a new trial with regard to, inter alia, the issue of whether the Transit Authority was negligent in lighting the accident site, at no time did the Court in its decision express an intention to exclude plaintiffs burden of proving proximate cause which is an essential element of liability in a negligence action.

In the instant matter, even if defendant was somehow negligent for failing to upgrade the platform lighting to meet its guidelines for new and rehabilitated stations, plaintiff offered absolutely no proof that, under such improved lighting, the motorman would have been able to see him on the tracks in enough time to have stopped the train before striking him. Further, contrary to the dissent’s position, plaintiff failed to offer any evidence to show that the condition of the platform lights during the time of the incident, with 33 of the 140 AC system bulbs out, affected the general lighting of the station or the motorman’s vision so as to substantially cause plaintiffs injuries. As a result, plaintiff has failed to establish a prima facie case in that he failed to prove that defendant breached a duty or was negligent in the manner in which it supplied lighting to the 183rd Street Station and that even if such a duty existed and had been breached, that such negligence was a proximate cause of his injuries. Since plaintiff has not made out a prima facie case, the complaint must be dismissed (Negri v Stop & Shop, 65 NY2d 625).

Accordingly, the judgment of the Supreme Court, Bronx County (Anita Florio, J.), which was entered on September 14, 1993, finding the Transit Authority 76% and plaintiff 24% responsible for the accident in question and awarding plaintiff a verdict of $3,586,055, is reversed, on the law, without costs, and the complaint is dismissed. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

1 . Merino originally contended, as memorialized in his hospital chart, and at the first trial, that he was pushed to the track bed "by some black guys.” Merino later testified that he was pushed or he fell, yet he admits that no one else was on the platform and no other witnesses reported any other individuals in the station at the time Merino was injured.

2 . On the initial appeal, plaintiff argued that he was not intoxicated at the time of the incident, yet in his bill of particulars, and at both trials, he vigorously contended that he was, in fact, intoxicated at the time in question.