136 A.D.2d 196, Cruz v. New York City Transit Authority

Citation:136 A.D.2d 196, 526 N.Y.S.2d 827
Party Name:Cruz v. New York City Transit Authority
Case Date:March 21, 1988
Court:New York Supreme Court Appelate Division, Second Department

Page 196

136 A.D.2d 196

526 N.Y.S.2d 827

Robert CRUZ, et al., Appellants,



Supreme Court of New York, Second Department

March 21, 1988.

[526 N.Y.S.2d 828] Hoberman & Sussman, P.C., Brooklyn (Owen O. Hoberman and Samuel J. Sussman, of counsel), for appellants.

William E. Rosa, Brooklyn (Lawrence Heisler, of counsel), for respondent.


BRACKEN, Justice.

In this personal injury action, the trial court determined, at the close of the plaintiffs' case, that the defendant was entitled to a judgment against the plaintiff as a matter of law (CPLR 4401). We reverse, and grant a new trial.


The pertinent trial evidence may be briefly summarized. While waiting for a friend to join him on the landing of an exterior stairway leading to the token booth and turnstile area of the Elderts Lane elevated station of the Jamaica Avenue subway line, the plaintiff Robert Cruz lifted himself up and sat on the landing's 43-inch-high railing. As Cruz sat, a number of young people began to climb the stairway. One of these youths "brushed" against Cruz, who fell to the sidewalk below. His resultant injuries have rendered him quadriplegic.

In addition, the plaintiffs adduced expert testimony from an engineer who was of the opinion that the stairway and railing in question had not been designed in accordance with good and accepted engineering principles. According to the witness, the platform was approximately seven feet above the sidewalk and the railing was an additional 43 inches in height. Thus, the railing should have been designed to preclude persons from sitting upon it, by increasing its height to four feet, or by dimpling it or placing spikes along its length to make it difficult to sit upon or by placing a wire mesh screen above the railing extending to the roof over the stairway. However, the trial court would not permit the witness to testify regarding whether such design features had been implemented either at the elevated subway station in question or at other elevated subway stations within the city, including those within close proximity to the station in question.


In order to prove a prima facie case of negligence, it is incumbent upon a plaintiff to establish: (1) the existence of a duty on the part of the defendant to the plaintiff, (2) a breach of that duty, and (3) injury suffered by the plaintiff which was proximately caused by the breach ( see, Boltax v. Joy Day Camp, 67 N.Y.2d 617, 499 N.Y.S.2d 660, 490 N.E.2d 527; Solomon v. City of New York, 66 N.Y.2d 1026, 499 N.Y.S.2d 392, 489 N.E.2d 1294; Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531, rearg. denied 54 N.Y.2d 831, 443 N.Y.S.2d 1031, 427 N.E.2d 1192; Iannelli v. Powers, 114 A.D.2d 157, 161, 498 N.Y.S.2d 377, lv. denied 68 N.Y.2d 604, 506 N.Y.S.2d 1027, 497 N.E.2d 707). In determining whether a plaintiff has proved a prima facie case, we must view the evidence in the light most favorable to the plaintiff and afford him the benefit of all inferences which could reasonably be drawn therefrom ( see, Schneider v. Kings Highway Hosp. Center, 67 N.Y.2d 743, 745, 500 N.Y.S.2d 95, 490 N.E.2d 1221; Negri v. Stop & Shop, 65 N.Y.2d 625, 626, 480 N.Y.S.2d 151, 480 N.E.2d 740; Iannelli v. Powers, supra, 114 A.D.2d at 160, 498 N.Y.S.2d 377). Examining the evidence in that light, we conclude that the plaintiffs did establish a prima facie case of negligence on the part of the defendant and that the trial court therefore erred when it granted the defendant's motion for judgment following the presentation of the plaintiffs' case. In so holding, we express no view regarding the ultimate determination as to liability.

It is settled that a common carrier is required to exercise reasonable or ordinary care, in view of the dangers to be apprehended, in providing and maintaining safe and adequate stairways in its stations ( see, Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 248, 472 N.Y.S.2d 368, affd. 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d [526 N.Y.S.2d 829] 612; Serlin v. City of New York, 266 A.D. 668, 40 N.Y.S.2d 155, affd. 291 N.Y. 595, 50 N.E.2d 1009; 17 NY Jur 2d, Carriers, §§ 414, 420). In this case, the testimony of the engineer, viewed most favorably to the plaintiffs, was sufficient to establish a prima facie case that the defendant's failure to have designed the railing in such a manner as to preclude persons from sitting upon it constituted a breach of that duty. Moreover, because the alleged defect was one created by the defendant, actual notice of the defect was established for purposes of a prima facie case ( see, Lewis v. Metropolitan Transp. Auth., supra, 99 A.D.2d at 249, 472 N.Y.S.2d 368).

Although it is argued that the infant plaintiff's fall was caused by his own negligence in sitting upon the railing, or by his contact with an unknown third person, thereby relieving the defendant of liability, the evidence, viewed most favorably to the plaintiffs, simply does not establish that the infant plaintiff's conduct or his contact with a third person was so extraordinary and unforeseeable as to constitute, as a matter of law, an intervening cause ( see, Martinez v. Lazaroff, 48 N.Y.2d 819, 424 N.Y.S.2d 126, 399 N.E.2d 1148; Ventricelli v. Kinney System Rent-A-Car, 45 N.Y.2d 950, 411 N.Y.S.2d 555, 383 N.E.2d 1149, mot. to amend remittitur granted 46 N.Y.2d 770, 413 N.Y.S.2d 655, 386 N.E.2d 263; cf., Boltax v. Joy Day Camp, supra; Marcroft v. Carvel Corp., 120 A.D.2d 651, 502 N.Y.S.2d 245, lv. denied 68 N.Y.2d 609, 508 N.Y.S.2d 1025, 500 N.E.2d 874). For the purpose of establishing a prima facie case of negligence, a plaintiff must demonstrate that the negligence of the defendant "was a substantial cause of the events which produced the injury", and, where there is an intervening act which also contributes to the injury, "liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" ( Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied 52 N.Y.2d 784, 829, 437 N.Y.S.2d 1030, 418 N.E.2d 694). The evidence in this case, viewed most favorably to the plaintiffs, was sufficient to establish prima facie that the incident was a foreseeable consequence of the defendant's failure to have provided a safe and adequate stairway.

Moreover, the trial court erred in precluding the plaintiffs from adducing testimony from their expert pertaining to the design and construction of exterior stairways at other elevated subway stations in the city, including those in close proximity to the scene of the accident. Proof of a generally accepted practice, custom or usage within a particular trade or industry is admissible as tending to establish a standard of care, and proof of a departure from that general custom or usage may constitute evidence of negligence ( see, Trimarco v. Klein, 56 N.Y.2d 98, 105-107, 451 N.Y.S.2d 52, 436 N.E.2d 502; Bailey v. Baker's Air Force Gas Corp., 50 A.D.2d 129, 132, 376 N.Y.S.2d 212, lv. denied 39 N.Y.2d 708, 386 N.Y.S.2d 1025, 352 N.E.2d 595; Richardson, Evidence § 187 [Prince, 10th ed]; 2 Bender, NY Evidence, § 71.04; Fisch, NY Evidence § 203 [2d ed] ). Of course, it need not be shown that the particular custom or usage is universally observed, so long as it is fairly well defined within the particular field ( Trimarco v. Klein, supra, 56 N.Y.2d at 106, 451 N.Y.S.2d 52, 436 N.E.2d 502). There must exist, however, an identity of conditions, so that the particular custom or usage is applicable to the circumstances of the case at hand (2 Bender, NY Evidence, § 71.04; Fisch, NY Evidence § 203 [2d ed] ). Thus, the plaintiffs in this case should have been afforded the opportunity to establish that there existed an accepted practice with respect to the railing design both at the elevated station in question and on similar exterior stairways at other elevated subway stations in the city, and the trial court was unduly restrictive in precluding such testimony.


Our dissenting colleague cites several cases in support of the concept that a party has no duty to prevent the misuse of an instrumentality under its control. We gather that this rule would apply, under [526 N.Y.S.2d 830] such interpretation, even though the occurrence of such a misuse might be proved to be eminently foreseeable, and even though the cost of taking reasonable steps to avoid such misuse might be vastly outweighed by the magnitude of the risks posed to society by the failure to take such preventative measures. We have reviewed the cases cited, and are unable to derive from them such a broad rule of law.

Most typical of the cases relied upon in the dissent are those in which an infant plaintiff suffered an injury as the result of having fallen from some area in which the infant should not have been ( see, McCann v. City of New York, 270 A.D. 1040, 63 N.Y.S.2d 207, affd. 296 N.Y. 886, 72 N.E.2d 615 [infant fell from a ledge on outside of a pedestrian bridge]; Roffenbender v. City of New York, 24 A.D.2d 581, 262 N.Y.S.2d 422, affd. 17 N.Y.2d 754, 270 N.Y.S.2d 214, 217 N.E.2d 38 [infant plaintiff fell from a 22-inch-high concrete base upon which an iron fence had been mounted] ).

It would be erroneous to derive from these cases an all-encompassing rule that the duty of a landowner to maintain a reasonably safe premises extends only to those who use the appurtenances located on the premises solely for their normal and intended purpose. Such a rule would be directly contrary to those determinations in which infant plaintiffs have been allowed to recover, notwithstanding their misuse of some instrumentality located upon the premises and...

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