Johnson v. N.Y. City Transit Auth.

• Citation: 929 N.Y.S.2d 215,88 A.D.3d 321,2011 N.Y. Slip Op. 06402
• Parties: Ophelia JOHNSON, Plaintiff–Respondent,v.NEW YORK CITY TRANSIT AUTHORITY, Defendant–Appellant.
• Decision Date: 01 September 2011
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 321
929 N.Y.S.2d 215
2011 N.Y. Slip Op. 06402

Ophelia JOHNSON, Plaintiff–Respondent,
v.
NEW YORK CITY TRANSIT AUTHORITY, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Sept. 1, 2011.

[929 N.Y.S.2d 217]

Wallace D. Gossett, Brooklyn (Lawrence Heisler and Lawrence A. Silver of counsel), for appellant.Alexander J. Wulwick, New York, for respondent.RICHARD T. ANDRIAS, J.P. DAVID FRIEDMAN, DIANNE T. RENWICK, ROSALYN H. RICHTER, SALLIE MANZANET–DANIELS, JJ.RICHTER, J.

[88 A.D.3d 323] On the morning of May 20, 1998, plaintiff, then a 14–year veteran of the New York City Police Department Transit Bureau, was assigned to conduct a Train Order Maintenance Sweep (TOMS) of subway cars entering the 143rd Street station in the Bronx. A TOMS sweep consists of looking into each car of the train and checking for suspicious packages. After the train pulled into the station, plaintiff approached the conductor and told him that she and two other officers would be conducting a TOMS sweep. Plaintiff proceeded to the rear of the train while her fellow officers went to the front and middle.

[88 A.D.3d 324] Plaintiff testified that she was trained to check each car by standing with her left foot on the train, her right foot on the platform and her back against the doorway. She was in this stance inspecting the last car when the conductor closed the doors. As the doors were closing, plaintiff waited a second to see if the conductor was going to open them. She then put her left hand across her chest, closed her eyes, and pulled herself out of the doorway, falling into the wall or chair on the platform. During the incident, the train never moved.

Plaintiff brought this negligence action against defendant New York City Transit Authority, and the case proceeded to trial. At the close of the evidence, the trial court denied defendant's request to instruct the jury on comparative negligence. The jury found defendant liable and awarded plaintiff $700,000 for past and future pain and suffering, $500,000 for past loss of earnings and $1,200,000 for future loss of earnings. After the trial, defendant moved, inter alia, to dismiss the complaint for failure to make out a prima facie case. The trial court denied the motion and also denied, after a hearing, defendant's application for a collateral source reduction of the jury's damages award. Defendant now appeals from the judgment, arguing that the evidence at trial did not establish a prima facie case of negligence, that the court should have instructed the jury on comparative negligence, and that the court should have granted a collateral source offset.

We find that plaintiff submitted sufficient proof to make out a prima facie case that the accident was caused by the conductor's negligence. Plaintiff alerted the conductor of the TOMS sweep, yet the conductor closed the doors before the sweep was concluded and without any signal or announcement. Accordingly, the jury could have found that the conductor, aware that plaintiff was still in the process of conducting the sweep, should have checked or given some announcement before closing the doors ( see Khalona v. New York City Tr. Auth., 215 A.D.2d 630, 628 N.Y.S.2d 306 [1995] ).

[929 N.Y.S.2d 218]

However, the court erred in declining to instruct the jury on comparative negligence. A charge on comparative fault should be given “if there is a valid line of reasoning and permissible inferences from which rational people can draw a conclusion of [the plaintiff's] negligence on the basis of the evidence presented at trial” ( Bruni v. City of New York, 2 N.Y.3d 319, 328, 778 N.Y.S.2d 757, 811 N.E.2d 19 [2004] ). “[W]hether a plaintiff is comparatively negligent is almost invariably a question of fact and is for the jury to [88 A.D.3d 325] determine in all but the clearest cases” ( Shea v. New York City Tr. Auth., 289 A.D.2d 558, 559, 735 N.Y.S.2d 609 [2001] ).

Here, a reasonable jury could have inferred from plaintiff's own testimony that she failed to exercise due care and that her actions, even to a minimal degree, increased the risk of injury to herself in the station. Plaintiff testified that as the doors closed, instead of immediately moving out of the way, she waited for a second to see if the conductor would open the doors. Plaintiff offered no testimony explaining why she believed this would occur or why she did not immediately step onto the platform or into the train, either of which would have been a logical response. Thus, a jury could have reasonably found that plaintiff's delay contributed to her getting caught in the doors.

Plaintiff also testified that she closed her eyes before pulling herself out of the doorway. Based on this testimony, a jury could find that she was at least partially at fault for not being more attentive in the face of imminent danger. A jury could also conclude that the fact that plaintiff's eyes were closed contributed in some manner to her falling down against the wall or chair on the platform. Furthermore, at no time did plaintiff try to alert the conductor or her fellow officers that she needed help. She did not call out to them, nor did she try to wave them down with her right hand, which, according to her testimony, was outside the train.¹

Plaintiff's argument that, as a matter of law, the jury could not have found comparative negligence rests on her testimony that she was trained to conduct a TOMS sweep by standing in the doorway in the particular manner she used here. Her training did not, however, address the prudence of her response once she realized the doors were beginning to close. Moreover, the jury was not required to accept in its entirety plaintiff's testimony about her training, especially because she offered only generalities about it. Since the record does not reflect a total absence of comparative negligence as a matter of law, the trial court should have submitted that issue to the jury ( see Delemos v. White, 173 A.D.2d 353, 569 N.Y.S.2d 723 [1991] ).

Because the court failed to instruct the jury on comparative fault, the matter should be remanded for a new trial. However, the new trial shall be limited to that issue. In [88 A.D.3d 326] Wright v. Riverbay Corp., 82 A.D.3d 444, 917 N.Y.S.2d 864 [2011], a case directly on point, this Court recently reversed a judgment because the lower court failed to charge the jury on comparative negligence. Instead of ordering an entirely new trial, we remanded the matter for a trial limited to the issue of whether plaintiff was comparatively negligent ( see also Delemos, 173 A.D.2d at 353, 569 N.Y.S.2d 723). We reach the same result here.

Citing Thoma v. Ronai, 82 N.Y.2d 736, 602 N.Y.S.2d 323, 621 N.E.2d 690 [1993], the dissent argues that the matter should

[929 N.Y.S.2d 219]

be remanded for an entirely new trial and that defendant should be given a second chance to contest its liability. However, Thoma arose in an entirely different procedural context and addressed only the question of whether the plaintiff had satisfied her burden on summary judgment. Here, in contrast, a full trial was held, and the jury concluded that defendant was negligent and that defendant's negligence was a substantial factor in bringing about plaintiff's injuries. Because we now find that the evidence at trial was sufficient to make out a prima facie case of defendant's negligence, there is no reason for a new trial to revisit this issue. The dissent's contention that the evidence “raises issues concerning [defendant's] fault” and that “a triable issue exists as to defendant's negligence” fails to recognize the jury's finding that defendant was negligent. The only triable issue remaining here is the extent to which, if at all, plaintiff's own negligence may reduce the damages awarded by the jury.

Lopez v. Garcia, 67 A.D.3d 558, 889 N.Y.S.2d 174 [2009], which also arises in the summary judgment context, presents a different legal issue and, in any event, is inconsistent with this Court's more recent precedent in Gonzalez v. ARC Interior Constr., 83 A.D.3d 418, 921 N.Y.S.2d 33 [2011]. In Gonzalez, we affirmed the motion court's grant of partial summary judgment to the plaintiff on the issue of the defendant's liability. We held that because comparative negligence is not a complete bar to recovery, the plaintiff was entitled to summary judgment as to defendant's negligence even though there were issues of fact as to her own culpable conduct ( id. at 419, 921 N.Y.S.2d 33; see also Strauss v. Billig, 78 A.D.3d 415, 909 N.Y.S.2d 724 [2010], lv. dismissed 16 N.Y.3d 755, 919 N.Y.S.2d 109, 944 N.E.2d 645 [2011]; Tselebis v. Ryder Truck Rental, Inc., 72 A.D.3d 198, 200, 895 N.Y.S.2d 389 [2010] ).

In finding that an entirely new trial is necessary, the dissent argues that the court's failure to charge comparative negligence was plaintiff's fault and that it would be unfair to preclude defendant from challenging its own liability. However, the proper scope of the new trial has nothing to do with which party bears [88 A.D.3d 327] responsibility for the court's error. As for fairness, the dissent fails to appreciate that granting an entirely new trial would be unfair to plaintiff because it would give defendant, which already lost on this question at a jury trial, an unwarranted second chance to contest its liability. We do not share the dissent's concern that the playing field will be unfairly tilted by charging the jury at the new trial that defendant's negligence has already been determined. Any potential prejudice to defendant can be easily averted by an appropriate jury instruction that makes clear that the extent of defendant's liability and plaintiff's comparative fault are for the jury to decide. Furthermore, special interrogatories, carefully tailored to the circumstances of this case, will avoid any prejudice to defendant. Finally, at a comparative negligence trial, defendant will have ample opportunity to show, if it can, that...