Bingham v. New York City Transit Authority

• Decision Date: 15 February 2007
• Citation: 864 N.E.2d 49,8 N.Y.3d 176
• Parties: Ina Jean BINGHAM, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

864 N.E.2d 49

8 N.Y.3d 176

Ina Jean BINGHAM, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY et al., Appellants.

Court of Appeals of New York.

February 15, 2007.

Lawrence Heisler, Brooklyn, and Wallace D. Gossett for appellants.

Ginsberg & Katsorhis, P.C., Flushing (Kerry John Katsorhis of counsel), for respondent.

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 plaintiff's 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, 98 N.Y.S. 840 (1906), should be abandoned in light of this Court's decisions in Adams v. New York City Tr. Auth., 88 N.Y.2d 116, 643 N.Y.S.2d 511, 666 N.E.2d 216 (1996), Kaufman v. Silver, 90 N.Y.2d 204, 659 N.Y.S.2d 250, 681 N.E.2d 417 (1997), and Bethel v. New York City Tr. Auth., 92 N.Y.2d 348, 681 N.Y.S.2d 201, 703 N.E.2d 1214 (1998), because that argument had not been preserved for our consideration (see Bingham v. New York City Tr. Auth., 99 N.Y.2d 355, 756 N.Y.S.2d 129, 786 N.E.2d 28 [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 plaintiff's 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 N.Y. 443, 20 N.E. 383 [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, 98 N.Y.S. 840 [1906]). This rule, as enunciated in Schlessinger, has been recognized not only in New York (see Ambriano v. Town of Oyster Bay, 266 A.D.2d 415, 698 N.Y.S.2d 696 [2d Dept.1999]; Haberlin v. New York City Tr. Auth., 228 A.D.2d 383, 644 N.Y.S.2d 718 [1st Dept.1996]; Fortson v. New York City Tr. Auth., 111 A.D.2d 58, 489 N.Y.S.2d 182 [1st Dept.1985]; Bruno v. Vernon Park Realty, 2 A.D.2d 770, 771, 154 N.Y.S.2d 587 [2d Dept.1956]), but also in other jurisdictions (see e.g. Buchner v. Erie R.R. Co., 17 N.J. 283, 111 A.2d 257 [1955]; Cotant v. Boone Suburban Ry. Co., 125 Iowa 46, 99 N.W. 115 [1904]; Skottowe v. Oregon Short Line & U.N. Ry. Co., 22 Or. 430, 30 P. 222 [1892], affd. 162 U.S. 490, 16 S.Ct. 869, 40 L.Ed. 1048 [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 A.D.2d 138, 670 N.Y.S.2d 419 [1st Dept. 1998]; Haberlin, 228 A.D.2d 383, 644 N.Y.S.2d 718 [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 A.D.2d 138, 670 N.Y.S.2d 419 [1998]; Pena v. New York City Tr. Auth., 237 A.D.2d 150, 655 N.Y.S.2d 357 [1st Dept.1997]; see also Valladares v. New York City Tr. Auth., 208 A.D.2d 471, 617 N.Y.S.2d 642 [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, 98 N.Y.S. 840).

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

GRAFFEO, J. (dissenting).

Based on the jury verdict, there is no question that plaintiff's injuries arose from a hazardous condition on a stairway. The question here is whether the Transit Authority, as a common carrier, is responsible for plaintiff's damages even though it did not own, occupy or control the defective premises. This inquiry turns on whether this Court should adopt a rule, developed by the Appellate Term in 1906 in Schlessinger v. Manhattan Ry. Co., 49 Misc. 504, 98 N.Y.S. 840 (App.Term.1906), that would hold the Transit Authority liable for injuries on property that is owned, maintained, and controlled by others, but is traversed by passengers on their way to and from subway stations. In my view, the Schlessinger rule of premises liability is outmoded and, consistent with our recent precedents, common carriers should be required only to maintain property they own, occupy or control.

This issue first came to our attention in 2003 when we decided Bingham v. New York City Tr. Auth., 99 N.Y.2d 355, 756 N.Y.S.2d 129, 786 N.E.2d 28 (2003) (Bingham I). In Bingham I, the injured plaintiff appealed the grant of summary judgment dismissing her complaint. As part of their motion papers, defendants submitted evidence indicating that they did not own, control or maintain the stairwell where plaintiff fell and asserting that the stairway was not used exclusively by subway patrons. Defendants had, however, failed to raise in the motion court the argument they pursued on appeal — that the Schlessinger rule should be abandoned. As a result, we did not reach that question. Instead, we reversed the order granting summary judgment and remitted on the ground that an issue of fact existed...