Seong Sil Kim v. New York City Transit Authority

Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered November 20, 2003, incorporating an order which denied defendant’s posttrial motion to set aside the jury verdict, apportionment of liability and award of damages thereon, and to order a new trial, reversed, on the law, without costs, the jury verdict vacated and the complaint dismissed. The Clerk is directed to enter judgment accordingly. On May 3, 2000, at 9:19 p.m., defendant New York City Transit Authority (NYCTA) received a call relayed by a 911 operator from a person who had been a passenger on a southbound A train. This passenger claimed to have seen a person on the southbound local tracks at 34th Street and 8th Avenue. However, he did not call 911 until arriving at an unidentified station in Brooklyn where he exited the train. Assuming that he [333] called from the first stop in Brooklyn, a minimum of 18 minutes would have elapsed from the time he saw the person on the tracks to the time he made the 911 call. During that time period, no less than three trains had entered the 34th Street local tunnel prior to the one which plaintiff claims struck her. Defendant’s Transit Command promptly warned its train operators in the vicinity of 34th Street to proceed with “caution.” This is a term of art that requires train operators to reduce their speed and make visible observations of the tracks, tunnel and surrounding area to ensure that these areas are clear. An E train had just departed from the 42nd Street station heading southbound toward Brooklyn on the local tracks when its operator received the “caution” warning. He slowed down from the posted speed limit of 25 miles per hour (mph) to approximately 10 to 15 mph. Although a preceding train operator reported nothing suspicious in the tunnel on the “A” or local track, the E train operator continued to proceed with “caution,” scanning the dark tunnel, pillars, catwalk and surrounding area as the train continued southbound. Ultimately, the train operator saw Seong Sil Kim (plaintiff), her arms at her side, lying on the track bed between the rails, her head facing the train. He immediately swung the control lever, placing the train into emergency mode so it would come to a quick stop. The operator’s estimate of the distance between plaintiff and the train when he first saw her varied. At his deposition, he testified that she was 80 to 120 feet away, but at trial he testified that 50 to 70 feet may be more accurate. It is undisputed that plaintiff was approximately 100 feet into the tunnel and that 50 feet of the train passed over her before it came to a complete stop. Several hours after the accident, a road car inspector employed by defendant scrutinized the undercarriage of the train for evidence of blood, body marks, scratches or anything else that might indicate that the train came into contact with a person. He found nothing to indicate such contact, explaining at trial that subway car undercarriages are full of grease, easily revealing any marks. He further testified that each train is equipped with a trip device that puts the train into an emergency stop mode when it hits something, as well as a “snow block,” which consists of a piece of wood that falls off the train if it hits something. Neither of these devices showed any evidence that the train struck anything, nor was there any evidence that the devices were not in proper working order. The jury returned a substantial verdict in favor of plaintiffs and apportioned liability 70%-30% against defendant. [334] Defendant moved to set aside the verdict, for a new trial or, in the alternative, for a reduction in the award of damages. It argued, inter alia, that plaintiff failed to establish it was negligent under the circumstances; that a previous train may have struck plaintiff before the issuance of the warning, and hence, there was no proximate cause; that plaintiff intentionally entered the tracks and the court’s failure to charge assumption of the risk was reversible error; that the apportionment of liability was against the weight of the evidence; and that the damage award was excessive. The IAS court denied the motion. This was a tragic accident. It is also one for which there is insufficient objective evidence to sustain a plaintiffs verdict. Virtually the only evidence plaintiffs presented on liability was the testimony of an “expert,” a Mr. Bellizzi. He opined that the appropriate warning for this unconfirmed sighting should not have been “caution” but “extreme caution,” i.e., operating the train at a speed no greater than 10 mph. However, his conclusion was speculative and not supported by anything in the record. When asked why traveling in excess of 10 mph was a violation of safety procedure, his response was merely “it is for safety.” He did not state where or how his standard for safe operating procedure was derived. So also, he used a series of charts purportedly showing stopping distances for miles per hour, but with no support, other than to back up his own conclusion as to why they were appropriate. His responses to the hypothetical regarding the 10 mph limit were cases where a workman is seen standing with a reflective vest or where there is a confirmed sighting of someone in the tunnel—not, as in this case, where the sighting was unconfirmed. Even the train conductor agreed that 10 mph is reasonable where the sighting is confirmed. Plaintiffs presented no evidence regarding an industry standard or why defendant’s policy of proceeding with “caution” as opposed to “extreme caution” was not appropriate under the circumstances.1 In short, plaintiffs failed to show that the train operator, who followed the warning order he received, acted negligently. Further, the evidence does not support plaintiffs’ alternative theories of liability that the train was traveling too fast, or that an attentive motorman should have seen plaintiff sooner.2 Finally and most significantly, even if, as our colleague in the [335] dissent argues, there was a rational basis to accept Mr. Bellizzi’s opinion, it is immaterial because there is no evidence that the train in question actually struck plaintiff. There is nothing in the record which indicates how long plaintiff was on the track bed prior to being spotted by the passenger who called 911. She could have been there for hours.* *3 At least three trains passed over the track bed where she was found after the “caution” warning was issued, but there is no indication of how many trains may have passed over those same tracks before that or before she was first spotted. The only proof was that she was in a “trough” between the tracks and the train stopped over her. After a detailed examination, the undercarriage inspection of the train in question failed to show any evidence that she was actually struck by that train. The claim that this train struck her is therefore pure speculation. The only proof of liability plaintiff offered was wholly conclusory expert testimony, unsupported by any factual basis to show the necessary relationship between the injuries and the train in question. Plaintiffs failed to establish that defendant was negligent or, if negligent, that its negligence was the proximate cause of these injuries. In view of the foregoing, it is unnecessary to address defendant’s other claims of error. Concur—Friedman, J.P., Nardelli, Williams and Sweeny, JJ. Footnotes [1] In fact, at one point plaintiffs argued the train should have shut down when an unconfirmed sighting is raised—an untenable standard for the transit system to follow. [2] In fact, ordinarily the Transit Authority may have been entitled to the protection of qualified immunity (see DeLeon v New York City Tr. Auth., 305 [335] AD2d 227 [2003]; Saborido-Calvo v New York City Tr. Auth., 11 AD3d 216 [2004]) which could be extended to this case. However, this issue was not preserved and in any event, need not be addressed for the resolution of this appeal. [3] Plaintiff testified at trial that she had no memory of the events in question.