Johnson v. New York City Transit Authority

OPINION OF THE COURT Richter, J. 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. — 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 oh 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 damagés 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 oh 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 Kahlona v New York City Tr. Auth., 215 AD2d 630 [1995]). 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 plaintiffs] negligence on the basis of the evidence presented at trial” (Bruni v City of New York, 2 NY3d 319, 328 [2004]). “[W]hether a plaintiff is comparatively negligent is almost invariably a question of fact and is for the jury to — 325 — determine in all but the clearest cases” (Shea v New York City Tr. Auth., 289 AD2d 558, 559 [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 plaintiffs 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 plaintiffs 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 Plaintiffs 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 plaintiffs 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 AD2d 353 [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 Wright — 326 — v Riverbay Corp. (82 AD3d 444 [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 AD2d at 354). We reach the same result here. Citing Thoma v Ronai (82 NY2d 736 [1993]), the dissent argues that the matter should 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 plaintiffs 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, plaintiffs own negligence may reduce the damages awarded by the jury. Lopez v Garcia (67 AD3d 558 [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 AD3d 418 [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; see also Strauss v Billig, 78 AD3d 415 [2010], lv dismissed 16 NY3d 755 [2011]; Tselebis v Ryder Truck Rental, Inc., 72 AD3d 198, 200 [2010]). In finding that an entirely new trial is necessary, the dissent argues that the court’s failure to charge comparative negligence was plaintiffs 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 — 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 plaintiffs 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 the accident was primarily plaintiffs fault. After the trial, the court held a hearing on defendant’s application, pursuant to CPLR 4545 (a), to offset the jury’s loss of earnings award by the amount of plaintiffs disability pension.2 The evidence at the hearing established that plaintiff joined the police force in July 1984. In April 2002, approximately two years before she would have been entitled to a regular service retirement pension, she was granted an accidental disability retirement pension based on her line-of-duty injury. Plaintiffs disability pension was equivalent to three quarters of her salary, was not subject to state or federal taxes, and, like the regular service retirement pension, was payable for life. In a written decision, the trial court denied the application, finding that defendant did not satisfy its burden of showing that the disability pension replaced the loss of earnings award. In a personal injury action, the court must reduce the damages award “if . . . any element of the economic loss encompassed in the award was or will be replaced, in whole or in part, from a collateral source” (Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81, 83-84 [1995]; CPLR 4545 [a]).3 An offset is permitted “only when the collateral source payment represents reimbursement for a particular category of loss that corresponds — 328 — to a category of loss for which damages were awarded” {id. at 84). In other words, there must be a match between the item of economic loss awarded by the jury and the collateral source payment. Because CPLR 4545 (a) is in derogation of the' common law, its provisions must be strictly construed {id. at 86), and the defendant has the burden of establishing entitlement to a collateral source offset by clear and convincing evidence (Kihl v Pfeffer, 47 AD3d 154, 163-164 [2007]; Young v Knickerbocker Arena, 281 AD2d 761, 764 [2001]). The trial court, correctly found that defendant did npt meet its burden of showing that the loss of earnings award should be offset by the amount of plaintiffs accidental disability retirement pension. Defendant does not dispute .that under Oden it bears the burden of showing that there is a “direct correspondence” between an item of economic loss awarded by the jury and a collateral source payment (87 NY2d at 87). Defendant argues, however, that a disability pension can only be construed as a replacement for the wages plaintiff would have earned if she had not been injured and had remained on the police force. However, Oden rejected such a broad rule and declined to allow the disability pension there to offset the jury’s lost earnings award. The mere fact that the benefit at issue here is termed a disability pension does not end the inquiry; Oden requires that there be a direct match between the benefit and the loss of earnings award. Here, there was insufficient evidence in the record to meet defendant’s burden of establishing that this particular disability pension was meant to replace plaintiffs lost earnings. Nor does defendant identify any statute or legislative history to show that the pension received by plaintiff was intended to be a substitute for lost earnings as opposed to an early retirement benefit conferred upon police officers accidentally injured in the line of duty. Although certain sections of the Administrative Code of the City of New York relate to disability pensions for New York City police officers {see e.g. Administrative Code of City of NY §§ 13-252, 13-254), neither the briefs in the trial court nor the briefs submitted to this Court identify these statutes as governing plaintiffs disability pension. We cannot assume that these provisions are applicable, and, in the absence of any citation to them by defendant, we decline to speculate. Although this Court must take judicial notice of statutes, defendant has not explained which of the myriad pension provisions applies to this plaintiff. The judicial notice question here — 329 — is particularly complex in light of the fact that plaintiff was previously employed as a transit police officer by the New York City Transit Authority. Thus, it is not clear which pension provisions of the Administrative Code or other statutes might apply here. We reached the same conclusion and found that the defendant had failed to meet its burden of showing that the disability pension replaced the jury’s lost earnings award in Gonzalez v Iocovello (249 AD2d 143 [1998], affd on other grounds 93 NY2d 539 [1999]). To the extent this Court’s decision in Iazzetti v City of New York (216 AD2d 214 [1995], appeal after remand 256 AD2d 140 [1998], revd on other grounds 94 NY2d 183 [1999]) purports to stand for the broad proposition that disability retirement benefits always constitute an offset of a lost earnings award, it is inconsistent with Oden, which is the controlling precedent. We do not hold that Oden sets forth a general rule that disability pensions can never be a substitute for lost earnings. We merely conclude that, in this case, defendant did not meet its heavy burden to show its entitlement to an offset. Oden instructed that “[t]he problem of matching up a collateral source to an item of loss is simply a matter of proof and factual analysis” (87 NY2d at 89). Here, defendant’s proof falls far short of the clear and convincing evidence necessary to support a collateral source offset in this case (see id. at 88-89; Gonzalez, 249 AD2d at 144). Accordingly, the judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), entered March 25, 2009, upon a jury verdict, awarding plaintiff the principal sums of $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, and bringing up for review orders, same court and Justice, entered September 10, 2007 and on or about July 16, 2008, which, inter alia, denied defendant’s posttrial motion to dismiss for failure to make out a prima facie case and, after a hearing, denied defendant’s application for a collateral source offset pursuant to CPLR 4545 (a), should be reversed, on the law, without costs, the judgment vacated and the matter remanded for a new trial limited to the issue of plaintiffs comparative negligence. Footnotes [1] Nor did plaintiff explain how, if she had enough room to move her left arm from her side up to her chest, she did not have enough clearance to step sideways and put her left leg onto the platform. [2] At the time of trial, the relevant language in subdivision (a) was included in subdivision (c). The statute was subsequently renumbered and partially amended. [3] The defendant must also show a high probability that the plaintiff will continue to be eligible for the collateral source payment in question. The trial court concluded that defendant met its burden in this regard, a finding not challenged on this appeal.