Ebanks v. New York City Transit Authority

OPINION OF THE COURT Wallach, J. On March 21, 1980, plaintiff, at that time a 53-year-old securities clerk employed by Chemical Bank, set out from his home in East Elmhurst, Queens, en route to his employment in the downtown financial district, arriving at the Bowling Green subway station at about 7:00 a.m. Because it was raining he was wearing "over boots” or "totes”. He boarded an escalator owned and controlled by defendant, whereupon his left foot became caught in a gap between the escalator step and the side, causing him to be thrown violently to the ground, fracturing his left hip, and inflicting related personal injuries. The trial court submitted the case to the jury on the theory of res ipsa loquitur; it returned a verdict apportioning the fault for plaintiff’s accident at 25% against plaintiff and 75% against defendant, and fixed damages in the total sum of $100,000 (the sum of $93,000 for loss of earnings and the sum of $7,000 for pain and suffering). Accordingly, the court entered judgment in plaintiff’s favor in the sum of $75,000 from which judgment defendant now appeals. Unfortunately, the testimony of plaintiff’s medical expert, Dr. Simmons, as to the unhealed avulsion fracture on the lateral aspect of plaintiff’s [365] left iliac bone was improperly received in evidence in the absence of the X rays on which the expert relied and, upon the inability of plaintiff to produce them, defendant’s motion to strike this testimony should have been granted (see, Hambsch v New York City Tr. Auth., 63 NY2d 723, 725; Richter v Trailways of New England, 28 AD2d 737, 738; Sirico v Cotto, 67 Misc 2d 636). Because of this error we reverse and remand for a new trial limited solely to the issue of damages. However, contrary to the contention of defendant and the position taken by our dissenting colleagues, we sustain the determination of the Trial Judge that this is a res ipsa case, and affirm the verdict of the jury upon the liability issues. In Corcoran v Banner Super Mkt. (19 NY2d 425, 430), the Court of Appeals adopted the well-known formulation for the applicability of res ipsa: " '(D the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ ” Here, the jury was entitled to credit plaintiff’s testimony that when he was ascending the escalator during the morning rush hour his left foot became caught in a two-inch gap between the side of the step and the sidewall of the escalator, and that unable to free himself during the course of the ascent, he was thrown to the ground and sustained a fracture to the iliac bone of his left hip. Certainly to permit the existence of such a dangerous gap on a public conveyance used by densely packed crowds of commuters is an event of "a kind which ordinarily does not occur in the absence of someone’s negligence”, and therefore to fault plaintiff for offering no evidence on this score is simply to misapprehend that the res ipsa rule is precisely designed to relieve plaintiff of that burden by invoking such rebuttable presumption based on circumstantial evidence (Enslein v Hudson & Manhattan R. R. Co., 8 Misc 2d 87, 93-91, mod 6 AD2d 833, affd 6 NY2d 723). There was further proof by plaintiff’s expert that the gap would have necessarily exceeded % inches, and defendant’s sole witness conceded that this was probably accurate based upon his inspection immediately after the accident. It was virtually conceded that a gap in excess of ⅜ inches is violative of both the Building Code and industry standards. There is no dispute that defendant operated and controlled the escalator. Defendant’s witness merely speculated that the [366] gap might have been caused by vandalism. Such a speculation, without more, is wholly insufficient to defeat the applicability of res ipsa. Nor is the Court of Appeals decision in Dermatossian v New York City Tr. Auth. (67 NY2d 219 [Mar. 27, 1986]) to the contrary. There, the improperly angled grab handle on a bus was, of course, subject to seizure, abuse, and thus "control” at the hands of any and all passengers who felt obliged to use it. Such an active hand grip of passengers is, for the duration of that grip, total control; the passive feet of the escalator passengers here hardly took dominion and control of the escalator step in a comparable manner. The "voluntary action” of the plaintiff in placing his foot in the gap also seems to give the dissenters pause. But on that third aspect the focus must be upon what kind of "voluntary action or contribution on the part of the plaintiff” will prevent his reliance upon the res ipsa doctrine. Comparison of the result reached in four elevator cases1 (Fehlot v New York Times Co., 32 NY2d 486; Weeden v Armor Elevator Co., 97 AD2d 197; Burgess v Otis Elevator Co., 114 AD2d 784, appeal discontinued & withdrawn 67 NY2d 871; Sirigiano v Otis Elevator Co., 118 AD2d 920) indicates that the kind of "voluntary action” by the plaintiff sufficient to negate the applicability of res ipsa must be his negligent interference with, intrusion upon, or invasion of control of the instrumentality causing the injury.2 In Burgess (supra), this court held that where plaintiff was injured in a malfunctioning elevator which failed to level and caused her to fall sustaining injuries, a jury finding of 7½% contributory negligence does not preclude recovery upon the res ipsa theory. In Weeden, the Second Department, and in Sirigiano, the Third Department (with 45% negligence assessed against plaintiff), held it reversible error to fail to charge res ipsa in similar accidents. Analysis of the Court of Appeals Fehlot decision sharpens the critical [367] distinction. Plaintiff Feblot was injured boarding an elevator in the New York Times building when, as she testified, she was struck by a malfunctioning door. It was error to charge res ipsa in Feblot, the court held, for the following reasons (at p 496): "In the case at bar Miss Feblot had as much, if indeed not more, control over the operation of the doors of the elevator than Times did because she was the one who activated the mechanism which controlled their operation. Furthermore, she was the one who determined when and how and under what circumstances she would enter the elevator. Even if the doors started to close while she was partially in and partially out of the elevator, as she claimed at the trial, she still had it within her power to cause them to instantly reopen automatically by merely touching the rubber safety edge on the inside of the door with her hand, as countless people entering and leaving elevators routinely do every day when the door of an automatic self-service door starts to close before they are completely inside or outside the elevator, as the case may be.” In the case before us, the jury found plaintiff 25% negligent in permitting his foot to become caught in a gap. This action by plaintiff cannot be said as a matter of law to be "voluntary” (as opposed to careless or inadvertent), but even if "voluntary”, it was not an action which in any sense took temporary control of the mechanism (here a defective escalator) which brought about his injury. Finally, and wholly apart from the evidentiary error tainting the present determination of damages, it might be added that a retrial of this aspect is desirable from a substantive point of view. Certainly, this damage award has some bizarre features. Plaintiff’s bill of particulars, served one year after the occurrence, claimed lost earnings of $2,000 only for the year preceding its service. At trial, plaintiff testified that after one year of postaccident employment, he became unable to work at all, and, over defendant’s objection on the ground of surprise, the trial court granted plaintiff’s motion to amend his bill to conform to this proof. The interrogatory verdict returned by the jury awarded plaintiff $93,000 for lost earnings ($234 per week times his work expectancy of IV2 years) but only $7,000 for pain and suffering. A retrial of the damages may resolve what appears to be an anomaly on this record. Accordingly, the judgment entered April 4, 1985 after trial (before Leo F. Hayes, J., and a jury), in Supreme Court, New [368] York County, should be modified, on the law, only to the extent of remanding the matter for a new trial confined solely to the quantum of damages, and, as so modified, it should otherwise be affirmed, without costs. Footnotes [1] The duty of maintaining an escalator is substantially the same as the duty of maintaining an elevator (Birdsall v Montgomery Ward & Co., 109 AD2d 969, 971; Gilbert v Korvette, Inc., 457 Pa 602, 327 A2d 94). [2] Before res ipsa becomes unavailable, the "control” exercised by plaintiff must be such as to permit appreciation of the peril and the opportunity to avoid it. Thus in Chisholm v Mobil Oil Corp. (45 AD2d 776), plaintiff was injured when she attempted to crank a towel from a wall dispenser in a gas station restroom and the entire contraption became detached and fell upon her causing injury. The court held a res ipsa charge proper, citing defective faucet handle cases: Jungjohann v Hotel Buffalo (5 AD2d 496), Kane v Ten Eyck Co. (267 App Div 789, affd 292 NY 701), and Schanberg v State of New York (58 Misc 2d 605).