Lewis v. Metropolitan Transp. Authority

• Citation: 472 N.Y.S.2d 368,99 A.D.2d 246
• Parties: Evelina LEWIS, Plaintiff-Respondent, v. The METROPOLITAN TRANSPORTATION AUTHORITY and The Long Island Rail Road Company, Defendants-Appellants.
• Decision Date: 28 February 1984
• Court: New York Supreme Court Appellate Division

Page 368

472 N.Y.S.2d 368

99 A.D.2d 246

Evelina LEWIS, Plaintiff-Respondent, v. The METROPOLITAN TRANSPORTATION AUTHORITY and The Long

Island Rail Road Company, Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

Feb. 28, 1984.

John F. Mulholland, Williston Park, of counsel (Mulholland, Minion & Roe, Williston Park, attorneys), for defendants-appellants.

S. Reid Kahn, New York City, of counsel (Kane, Kessler, Proujansky, Preiss & Nurnberg, P.C., New York City, attorneys), for plaintiff-respondent.

Before SANDLER, J.P., and ROSS, CARRO, FEIN and KASSAL, JJ.

KASSAL, Justice.

On September 28, 1978, plaintiff, then age 41 and concededly an obese woman, weighing between 180 and 230 pounds, was injured when she slipped and fell on the train platform while attempting to board a LIRR train at defendants' Northport station. Plaintiff, together with her daughter, Diane, had been visiting plaintiff's son at the Veterans Hospital. After taking a taxi to the Northport station, plaintiff went to the stationmaster's office to secure change to pay for the cab, while Diane proceeded ahead of her and boarded the train. The train was in the station at the time and was not due to depart for another 10 minutes. From the record, it appears that the train had been at the Northport station for between 10 and 15 minutes. As plaintiff approached the train, she observed two LIRR employees leaning against a fence, talking--the brakeman and the conductor, located about 30 feet away at the front of the train. The engineer was standing on the diesel engine at the time. The station platform, which is street level, was constructed of asphalt or blacktop, described as a tar-like substance.

As plaintiff attempted to board the train, she placed her right hand on the railing of the car to lift herself onto the first step, when she slipped on a slippery substance on the station platform breaking the heel of her shoe, which went onto the tracks. Plaintiff had not seen the substance before since it blended with the black platform. She described it as "dark ... oil and sticky and gooky." Diane, who had already boarded the train at the time, described it as "a splat of melted oil," with "a line running through it, indicating where mommy's foot had went throgh [sic] it." Diane admitted she had not observed the substance until after the accident, when she left the train to aid her mother. According to plaintiff, the substance was no larger than an inch or an inch and a half. However, both the conductor and the brakeman observed no "splat," liquid or substance, either on the platform or on plaintiff's heel, which had been retrieved from the tracks. The trainman, Kempster, conducted an inspection of the platform which failed to disclose anything oily or slippery, although he did notice scratches in the blacktop surface as a result of plaintiff's heel breaking off, "but there was no oil."

Following the accident, plaintiff was treated in the emergency room of Huntington Hospital and, after returning to her home, was admitted the next day to St. Barnabas Hospital. There were a total of six hospital admissions, with four operative procedures performed to relieve the back pain, including three laminectomies. Subsequent to plaintiff's discharge from St. Barnabas, she was involved in another unrelated accident in December 1978, when she was struck by a kitchen cabinet which fell from the wall. In all, her special damages exceeded $55,000. On three separate occasions during the trial and once after verdict, defendants moved to dismiss upon the failure of plaintiff to adduce evidence that defendants had actual or constructive notice of the condition prior to the accident. The trial court reserved decision on each such application and, following submission of memoranda at the close of the case, denied the motion, concluding that the jury had been properly charged with respect to both actual and constructive notice. The jury returned a verdict in favor of plaintiff in the sum of $750,000, and found plaintiff to be 25% contributorily negligent. The trial court concluded that the verdict was excessive, and directed a new trial on damages unless plaintiff stipulated to a reduction in the verdict to $400,000, to be further reduced by the 25% culpability of plaintiff as found by the jury. Plaintiff stipulated to the reduction.

As a common carrier, defendant is held to a high standard of care, requiring the exercise of the highest or utmost caution for the safety of its passengers. However, while the operative standard does not make the carrier an insurer, it is "bound to use its utmost skill and vigilence to guard against the possibility of accidents from the condition of its road and of the machinery used in the transportation of passengers." (Stierle v. Union Railway Co., 156 N.Y. 70, 74, 50 N.E. 419; see also McLean v. Triboro Coach Corp., 302 N.Y. 49, 96 N.E.2d 83; 2A Warren's Negligence § 3.04[2], p. 542). This high duty of care applies with respect to injury or damage resulting from the carriage of passengers.

A lesser standard of care, however, has been imposed with respect to approaches, station platforms, halls and stairways, under which the carrier is held "to exercise ordinary care, in view of the dangers attending its use, to make it reasonably adequate for the purpose to which it was devoted." (Lafflin v. Buffalo & Southwestern R.R. Co., 106 N.Y. 136, 139, 12 N.E. 599; see also Kelly v. Manhattan R. Co., 112 N.Y. 443, 20 N.E. 383; White v. New York Central Railroad Co., 228 App.Div 50, 239 N.Y.S. 90; Boettcher v. Dowling, 243 App.Div. 397, 277 N.Y.S. 228, aff'd 270 N.Y. 557, 200 N.E. 316; 17 N.Y.Jur.2d, Carriers, §§ 414, 417). Thus, almost a century ago, in Kelly v. Manhattan R. Co., supra, the Court of Appeals distinguished the situation involving an injury on a stairway or platform from that sustained while a passenger was being transported, whether resulting from a defect in the roadbed, the machinery or the construction of the cars:

"But in the approaches to the cars, such as platforms, halls, stairways and the like, a less degree of care is required, and for the reason that the consequences of a neglect of the highest skill and care which human foresight can attain to are naturally of a much less serious nature. The rule in such cases is that the carrier is bound simply to exercise ordinary care in view of the dangers to be apprehended." (112 N.Y. at 450, 20 N.E. 383)

This standard of ordinary care was applied by us in Boettcher v. Dowling, supra, where plaintiff fell on a slippery and muddy floor at the arcade of defendant's subway station. Similarly, in White v. New York Central Railroad Co., supra, ordinary negligence principles were held applicable where plaintiff, about to board a train, tripped over the suitcase of another passenger which had been left on the station platform by defendant's porter. Likewise, in McSween v. Murray, 261 App.Div. 198, 24 N.Y.S.2d 756, we applied a standard of ordinary care where plaintiff had been injured as a result of a slip and fall on an icy platform at one of defendant's railroad stations.

The law has never exacted of common carriers an absolute duty to maintain approaches and station platforms in a condition so as to render it impossible for a passenger to slip or become injured. Rather, the standard is to exercise reasonable care under the circumstances. Except in cases where the defendant created the condition, thus constituting actual notice to establish a prima facie case, a plaintiff must prove actual or constructive notice of the dangerous or defective condition and a reasonable time within which to correct or warn about its existence. (Boettcher v. Dowling, supra; Sikora v. Apex Beverage Corp., 282 App.Div. 193, 122 N.Y.S.2d 64; Dickerson v. Long Island Railroad Company, 266 App.Div. 852, 42 N.Y.S.2d 335). Constructive notice "will generally be found where the defect is visible and apparent, and has been in that condition so long that the city or the contractor is presumed to have seen it, or to have been negligent in failing to see it." (Schmidt v. City of New York, 179 App.Div. 667, 669, 167 N.Y.S. 23, aff'd 228 N.Y. 572, 127 N.E. 921). In Boettcher, we reversed the judgment in favor of plaintiff and dismissed the complaint, finding that there had been no showing that defendants had actual or constructive notice of the slippery or muddy floor of the subway station. Similarly, in Dickerson, where plaintiff fell on a banana peel on the stairway at defendant's Jamaica station, the Appellate Division, Second Department, affirmed the order which had set aside a verdict in favor of plaintiff and dismissed the complaint, finding no proof of actual or constructive notice.

The same principle, requiring a...