Taft v. New York City Transit Authority

• Decision Date: 18 May 1993
• Parties: Una TAFT, as Administratrix of the Goods and Chattels of Frances Thomas, Deceased, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 374

597 N.Y.S.2d 374

193 A.D.2d 503

Una TAFT, as Administratrix of the Goods and Chattels of Frances Thomas, Deceased, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

May 18, 1993.

Before SULLIVAN, J.P., and ROSENBERGER, WALLACH and KUPFERMAN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Alfred Toker, J.), entered February 24, 1992, which granted the defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, the motion is denied and the complaint is reinstated, without costs.

The plaintiff instituted this action to recover damages for the wrongful death of the decedent and for the conscious pain and suffering sustained by her prior to her death. The decedent was killed in a subway accident at approximately 6:15 p.m. on January 27, 1982. According to the platform conductor at the 42nd Street station, and reports of the defendant and the New York City Police Department containing his statement, he was approached by an "extremely agitated", unidentified man who told him that approximately one minute earlier, he saw a woman trying to board a train through pantograph gates between cars. She then slipped and was hanging on as the train left the station.

Subway trains are equipped with a "trip cock" emergency system which is activated when the train comes in contact with something on the tracks. The train went into an emergency stop south of the 50th Street station where the decedent was found under the fourth car. The decedent's leather bag was later found on the tracks about 100-200 feet north of the 42nd Street station. An autopsy report indicated that the decedent suffered fractures in her skull, spine and pelvis. All of her ribs were broken and her aorta and spinal cord were severed. She also suffered fractures, bruises, abrasions and puncture wounds on various parts of her body. Third degree burns and charring were found on her right foot.

In the complaint and bills of particulars, the plaintiff asserted, inter alia, that the defendant was negligent in failing to observe the decedent trying to board the train at the crowded station, in failing to notice that she was hanging on as the train left the station. The defendant moved for summary judgment dismissing the complaint for failure to state a cause of action. The Supreme Court granted the motion, concluding that the statement of the platform conductor, contained in the defendant's reports, was hearsay and inadmissible under any exception to the hearsay rule, inasmuch as the declarant was an unidentified bystander. Since the plaintiff failed to make out a prima facie case without this statement, the court granted the defendant's motion and dismissed the complaint.

We reverse. An excited utterance or spontaneous declaration is admissible as an exception to the hearsay rule since it is made "under the immediate and uncontrolled domination of the senses", during the brief period when considerations of self-interest are not brought to bear by reasoned reflection. Its trustworthiness is thus sufficient for admissibility (People v. Brown, 70 N.Y.2d 513, 518, 522 N.Y.S.2d 837, 517 N.E.2d 515, quoting People v. Marks, 6...