Merino v.New York City Transit Authority , 639 N.Y.S.2d 784 ( 1996 )

Ellerin, J. (dissenting).

The instant action was brought to recover damages for the grievous injuries suffered by plaintiff when he was hit by a subway train after falling to the tracks in the 183rd Street IRT Station. On a prior appeal, this Court affirmed an order which had set aside a verdict in plaintiffs favor and, after dismissing the other theories of liability asserted at the original trial, had directed a new trial on the issues of whether defendant was negligent in lighting the accident site, whether plaintiff was also negligent and the amount of damages, if any (183 AD2d 458). Upon the retrial, the jury again found that defendant was negligent, that plaintiff’s own negligence bore 24% of the responsibility for the accident and awarded substantial damages. It is that verdict which is now before us.

At the retrial, the evidence presented by plaintiff included his own testimony that he fell onto the tracks when the train was just entering the station at a point some 196 feet away from his position on the tracks, the essentially uncontested evidence that the train’s stopping distance was 180 feet, the testimony of plaintiff’s expert that the motorman could have stopped the train in time to avoid striking plaintiff had he been able to see him and that with adequate lighting the motorman would have been able to see the entire length of the station’s trackbed upon entering the station, including someone in plaintiff’s position.

The jury obviously accepted this version of the accident and rejected the testimony of the motorman to the effect that plaintiff fell when the train was already well into the station and well past the point when the train could have been stopped in time to avoid hitting plaintiff.

Since it is reasonably foreseeable that persons in a subway station will, albeit on infrequent occasion, fall or be pushed onto the tracks, a common carrier, such as defendant-appellant, may be held liable for failing to take reasonable steps to provide lighting adequate to enhance the motorman’s view of the tracks so as to enable him to see and avert such contingency. Indeed, that this is a viable theory of liability was established by this Court’s prior remand of the case for a new trial on precisely such theory. That remand also necessarily determined that plaintiff had established a prima facie case on the first trial (see, Talevi v Metropolitan Life Ins. Co., 10 AD2d 839; see also, Goldenberg v City of New York, 43 AD2d 861). Accordingly, if the evidence submitted by plaintiff on this trial were no less than that on the first trial, a dismissal would be inappropriate and the only alternative to affirmance would be a remand for another trial. (Talevi v Metropolitan Life Ins. Co., supra.)

In support of his position that defendant failed to provide adequate lighting in the station, plaintiff established that a large number of the lights which were present in the station were not working on the night of the accident—i.e., some 33 of the 144 bulbs, or almost a fourth of all the lights, were inoperable—and that no effort had been made to protect these lights from vandalism or to timely replace them despite sufficient notice. Expert evidence was also offered to the effect that the simple expedient of using fluorescent lights would have avoided the theft problem and provided adequate lighting and that such lights were in general use at train stations at the time in question. The opinions of both of plaintiff’s experts that the lighting was inadequate were essentially predicated upon their findings that the lighting conditions prevailing at the station at the time of the accident were not consonant with the level of lighting which a reasonably prudent common carrier of passengers would have provided under the same circumstances to avoid to the extent reasonably possible the dangers which were, or should have been, known to it.

The breach of duty issues submitted by the court to the jury, substantially in the language of the Civil Pattern Jury Instructions as requested by appellant, were whether appellant was negligent in the manner in which it supplied lighting to the train and/or station and whether it was negligent in the manner in which it maintained the lighting at the station. No exception was taken to such submission.

On this appeal, however, appellant attempts to frame the liability issue in terms of the Transit Authority manual, an argument apparently adopted by the majority as determinative. This is somewhat puzzling since the questions submitted to the jury as to whether or not appellant was negligent were in no wise predicated upon its failure to comply with any guideline contained in its manual. Nor, contrary to appellant’s assertions, was that manual the basis of the opinion reached by plaintiff’s witness, Nicholas Bellizzi, an expert in the field of civil and transportation engineering. The record discloses that Mr. Bellizzi, in explaining the reasons for his opinion that the lighting at the station at the time of the accident was not adequate in accordance "with good and accepted engineering principles as of April, 1989” indicated that one reason was that the existing lights provided only five footcandles of light. To illustrate the import of that level of lighting, he briefly noted that this was far below the Transit Authority’s own requirements, which used 15 footcandles as a guideline. It was appellant itself who thereafter introduced the Transit Authority’s "Station Planning Guidelines” into evidence, emphasizing that they applied only to stations built or upgraded after 1973 and did not apply to this station which was opened in 1916, and whose lighting system was renovated in the 1920’s but had not been altered since. Significantly, however, there was no showing that the internal guidelines as to lighting contained in the manual set a standard of care higher than the minimum required by law—i.e., ordinary care commensurate with the existing circumstances (Crosland v New York City Tr. Auth., 68 NY2d 165)—and, absent such a showing this Court has held that the rules "may be considered by the jury as evidence of the standard of reasonable care” (Clarke v New York City Tr. Auth., 174 AD2d 268, 275, citing Kush v City of Buffalo, 59 NY2d 26, 31-32).

As I understand the thrust of the majority opinion, it takes the position that because this subway station was built before 1916 and its lighting system was last renovated in 1920 appellant had no obligation to adjust lighting conditions, or any other conditions at the station, so long as they met whatever legal requirements governed in 1920, although there was no showing what, in fact, those standards were. No citation is needed for the proposition that the doctrine in our jurisprudence requiring the exercise of "reasonable care under the particular circumstances” predates 1920 and goes back even further than the days of gaslight and horse-drawn carriages. The position of the majority opinion appears to be that the lighting provided in 1920, before the current advanced types of locomotives were in use, must, as a matter of law, be held to fulfill the appellant’s duty as a common carrier to those who use its facilities under the conditions currently prevailing no matter how different they may be. Of course, not only does this conclusion completely ignore this Court’s prior ruling, in this very case, that appellant had a duty to provide adequate lighting under the circumstances actually prevailing at the time of the accident herein, but also, in effect, eliminates any duty on the part of appellant to exercise any degree of care, reasonable or otherwise, with respect to the manner in which it continues to maintain and operate its oldest facilities so long as those stations were "originally built in compliance with the law”, in this case some 80 years ago. Indeed, this position brings to mind the disparagingly cited adage that "because thus it was in the time of Henry IV, thus shall it be always”.

While I agree that there was no obligation upon appellant to reconstruct or completely rebuild the station to meet the latest, state-of-the-art standards, it was, however, charged with the duty of providing adequate lighting at the station so that its operations as a common carrier could be carried out in a reasonably safe manner to avoid foreseeable dangers to those using the facility. To require that appellant exercise the requisite care to keep its existing lighting system operational— and not permit almost a fourth of those lights to remain non-functioning—or to utilize fluorescent lighting which is in such common use, in order to provide adequate lighting in a subway station is hardly an onerous or insurmountable burden in light of the foreseeable risks in such locations, and can hardly be equated to the burden incidental to rebuilding or renovating the station. Parenthetically, it may be noted that even if the station met all statutory standards when built, that would not have insulated appellant from liability, even then, for its failure to fulfill its duty of operating the facility in a reasonably safe manner (see, e.g., Kellman v 45 Tiemann Assocs., 87 NY2d 871).

Since I find that the record sufficiently supports the jury’s findings both as to inadequate lighting and proximate cause, I would affirm as to the defendant’s liability. However, I believe that under the facts of this case, the jury’s findings as to the parties’ proportionate degrees of fault are against the weight of the evidence and I would direct a new trial on that issue unless plaintiff would consent to an increase of the percentage of his responsibility to 50%.

Murphy, P. J., and Rubin, J., concur with Tom, J.; Ellerin and Mazzarelli, JJ., dissent in a separate opinion by Ellerin, J.

Judgment, Supreme Court, Bronx County, entered September 14, 1993, reversed, on the law, without costs, and the complaint dismissed.