Lewis v. Metropolitan Transp. Authority

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Before SANDLER; KASSAL; All concur except SANDLER, J.P., and FEIN, J., who concur in an Opinion by FEIN; FEIN
• Citation: 472 N.Y.S.2d 368,99 A.D.2d 246
• Decision Date: 28 February 1984
• Parties: Evelina LEWIS, Plaintiff-Respondent, v. The METROPOLITAN TRANSPORTATION AUTHORITY and The Long Island Rail Road Company, Defendants-Appellants.

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.

Page 369

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 [99 A.D.2d 247] 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

Page 370

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 [99 A.D.2d 248] 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,...