2006 NY Int. 26
CIPARICK, J.:
The question presented by this appeal is whether
plaintiff's reckless behavior was of such a nature as to
constitute the sole legal cause of his injuries, vitiating the
duty of care of a train operator. We conclude under the
circumstances of this case that it was not, and that the evidence
was sufficient to support the verdict. We further conclude that
plaintiff's estimate of his own running speed at the time of the
accident was admissible and sufficient to lay a proper foundation
for plaintiff's accident reconstruction expert to use in forming
his opinion.
Plaintiff -- then 18 years old -- and three of his
friends spent the evening of January 24, 1997 in Manhattan and,
over the course of about five hours, each consumed a quantity of
alcohol. In the early hours of January 25, plaintiff and his
friends attempted to return home to Queens. They waited some
time for the No. 7 train at Queensboro Plaza -- an elevated
subway station -- where red tape indicating track work extended
across the platform. The group eventually decided that the train
was not running and walked along the "catwalk" -- a three-foot
wide path abutting the track -- to the next station (33rd
Street). They made it safely to 33rd Street and, after again
waiting for a while, decided to walk along the catwalk to the
next station (40th Street). As they proceeded along the
northbound route, the tracks were to the left of the catwalk and
to the right was a short railing.
Before they reached the 40th Street station, the group
became aware of a train approaching from behind and began running
along the catwalk in an attempt to reach the station before the
train. Their intent was to board the train to continue their
trip home. The four teens ran in single file, with plaintiff
third in line. The train struck plaintiff in the vicinity of a
signal box located on the catwalk, resulting in bilateral below-
the-knee amputation.[1]
Plaintiff was the only one of the four hit
by the train.
At trial, plaintiff was permitted to testify to an
estimate of his running speed at the time of the accident.[2]
Plaintiff established that he was familiar with his running speed
because he had been a member of a gym for about two years prior
to the accident and would frequently run on a treadmill
calibrated in terms of miles per hour. He would usually run at
seven or eight miles per hour and, based on that experience,
estimated that he was running about seven or eight miles per hour
at the time of the accident.
Plaintiff's expert then used that estimate in making
his calculations. Computing the train's stopping distance
assuming the train operator perceived the boys on the catwalk
from 151.5 feet away -- the distance allegedly illuminated by the
train's headlights -- and factoring in reaction time, the expert
determined that the train could have stopped 51 feet before it
reached plaintiff if he had been running eight miles per hour and
37 feet before it reached plaintiff if he had been running seven
miles per hour.
The train operator offered several inconsistent
versions of his conduct at the time of the accident. The police
report taken at the scene indicates that the train operator
stated he did not see the boys "until he was passing them because
they were hidden from view by a signal device" and that the train
stopped as a result of its own emergency devices before he was
able to apply the brake. However, later that night, the train
operator also filled out a report for NYCTA, this time stating
that he saw an object behind the signal device and then placed
the train into emergency mode. At trial he gave a third account,
testifying that his first reports were inaccurate in that he saw
a person on the catwalk in front of the signal box from about a
train car's length away. He also testified that he placed the
train into emergency stopping mode when he saw the person. The
road car inspector for NYCTA who examined the train at the scene,
however, only found blood on the train's "trip cock." The trip
cock hangs in front of the train's wheels as an emergency device
that automatically stops the train if it comes into contact with
an obstruction.
At the close of plaintiff's case, NYCTA moved to
dismiss the complaint for plaintiff's failure to establish a
prima facie case of negligence. NYCTA also moved for a directed
verdict on the issue of liability at the close of proof. The
trial judge reserved decision on both motions. The jury returned
a verdict finding NYCTA negligent, determining that its
negligence was a substantial factor in causing the accident and
assigning it 25% of the fault.[3]
The jury allocated the remaining
75% of liability to plaintiff. NYCTA moved to set aside the
verdict and Supreme Court denied all motions.
A majority of the Appellate Division affirmed, finding
legally sufficient evidence to support the jury verdict as
against NYCTA. Two Justices dissented in part and voted to
reverse. They would have dismissed the complaint for failure to
establish a prima facie case because they believed "plaintiff's
own reckless conduct constituted an intervening and unforeseeable
act which broke any causal connection between his injury and any
alleged negligence" by NYCTA (19 AD3d at 582). The dissent also
stated that plaintiff should not have been permitted to testify
as to an estimate of his running speed, nor should the accident
reconstruction expert have been allowed to use plaintiff's
testimony as a basis for his opinion, since no foundation was
properly laid and thus the testimony was "pure speculation and
conjecture" (19 AD3d at 582). NYCTA appeals as of right, and we
affirm.
A jury verdict rests on legally insufficient evidence
where there is "simply no valid line of reasoning and permissible
inferences which could possibly lead rational [individuals] to
the conclusion reached by the jury on the basis of the evidence
presented at trial" ( Cohen v Hallmark Cards, Inc., , 45 NY2d 493,
499 [1978]). We have held that this inquiry is similar to that
of a trial judge determining whether to direct a verdict ( see
Cohen, 45 NY2d at 499). If there is a question of fact and "it
would not be utterly irrational for a jury to reach the result it
has determined upon . . . the court may not conclude that the
verdict is as a matter of law not supported by the evidence"
( Cohen, 45 NY2d at 499; Campbell v City of Elmira, , 84 NY2d 505,
510 [1994]).
NYCTA argues that plaintiff's own reckless conduct --
entering the catwalk after consuming several alcoholic beverages
and attempting to catch the train -- was the sole proximate cause
of his injury. Significantly, NYCTA did not request any
instruction that the jury consider whether plaintiff's conduct
was the sole proximate cause of his injuries. Neither did
defendant request a jury charge on superseding or intervening
cause. Rather, the jury was instructed that plaintiff's
"negligence was a substantial factor in causing the accident,"
and was asked to determine further whether NYCTA was also
negligent, whether that negligence was a contributing factor to
plaintiff's accident and the percentage of fault attributable to
each party.
Plaintiff's conduct was undeniably reckless, but the
jury appropriately considered plaintiff's actions and determined
that he bore a far greater share of the fault. This is in
keeping with the doctrine of comparative negligence ( see CPLR 1411 ). Contrary to NYCTA's argument and the dissent, plaintiff's
conduct, although a substantial factor in causing the accident,
was not so egregious or unforeseeable that it must be deemed a
superseding cause of the accident absolving defendant of
liability.
This case does not involve the type of dangerous,
illegal conduct presented in Barker v Kallash (, 63 NY2d 19 1984])
where the plaintiff was severely injured while constructing a
pipe bomb. There, the Court denied plaintiff recovery for
injuries sustained as a direct result of a serious violation of
law, "not because the plaintiff contributed to his injury, but
because the public policy of this State generally denies judicial
relief to those injured in the course of committing a serious
criminal act" ( Barker, 63 NY2d at 24). Here, plaintiff surely
and very substantially contributed to his injury, but did not
engage in the type of dangerous criminal conduct that prohibited
recovery in Barker. Nor can it be said that his conduct was such
as to vitiate the duty of reasonable care owed to him by the
train operator to see what there was to be seen through the
proper use of his senses and to bring the train to a safe stop.
We have held that a train operator may be found
negligent if he or she sees a person on the tracks "from such a
distance and under such other circumstances as to permit him [or
her], in the exercise of reasonable care, to stop before striking
the person" ( Coleman v New York City Tr. Auth., , 37 NY2d 137, 140
[1975]; see Noseworthy v City of New York, 298 NY 76, 79 [1948]).
The train operator's duty certainly is not vitiated because
plaintiff was voluntarily walking or running along the tracks or
because of any reckless conduct on plaintiff's part.
Thus, it was not irrational for the jury to find NYCTA
negligent. There is a reasonable view of the evidence that the
train operator failed to see the teenagers from a distance from
which he should have seen them, and that he failed to employ
emergency braking measures. The jury's determination that the
operator could have avoided this accident is an affirmed finding
of fact with support in the record and is beyond our further
review. Plaintiff's conduct did not constitute such an
unforeseeable or superseding event as to break the causal
connection between his injury and defendant's negligence.
The trial court also properly permitted plaintiff to
testify regarding an estimate of his running speed. Plaintiff
established a sufficient foundation demonstrating the basis of
his knowledge -- two years experience running on a treadmill
calibrated to measure miles per hour. In comparable situations,
both police and civilian witnesses with an appropriate basis for
knowledge have been permitted to give testimony estimating the
speed of moving motor vehicles ( see People v Olsen, , 22 NY2d 230,
231-232 [1968]; Senecal v Drollette, 304 NY 446, 448 [1952]).
The reliability of plaintiff's testimony and the weight it should
have been accorded were issues for the finders of fact. The
jury, which was best able to observe plaintiff's testimony and
evaluate his credibility, resolved the question of reliability in
plaintiff's favor. It cannot be said that the jury's conclusion
was utterly irrational.
Additionally, the jury was entitled to credit the
testimony of plaintiff's expert who used the estimated running
speed in making his calculations. The expert did not express an
opinion as to how fast plaintiff was running, but used
plaintiff's own estimate to determine where the train could have
come to rest if plaintiff was running at the speeds he asserted.
As a result, it was not "pure speculation and conjecture," but
admissible and reliable evidence from which the jury properly
concluded that the train could have stopped before striking
plaintiff.
Accordingly, the order of the Appellate Division should
be affirmed, with costs.
Juan Alejandro Soto v New York City Transit Authority, et al.
No. 37
R. S. Smith, J. (dissenting):
Since the enactment of CPLR 1411 in 1975, it has been
the general rule that plaintiff's own culpability will not bar
his claim, but will only be grounds for apportioning fault. In
several cases, however, we have recognized that a plaintiff's
fault may be so egregious in comparison to the defendant's that
it "supersede[s] defendants' conduct" ( Egan v A. J. Constr.
Corp., , 94 NY2d 839, 841 [1999]) and becomes the "sole legal
cause" ( Olsen v Town of Ridgefield, , 81 NY2d 1024, 1026 [1993]) or
"sole proximate cause" ( Howard v Poseidon Pools, Inc., , 72 NY2d 972, 975 [1998]) of the plaintiff's injuries. I believe the
facts of this case bring it within the superseding cause
doctrine.
Plaintiff here was reckless twice. It was, of course,
very foolish for him and his companions to choose a narrow
catwalk next to the subway tracks for pedestrian travel. But
plaintiff would have escaped unharmed if he and the others, when
they heard a train coming, had done what minimal common sense
would require -- stand still, as far as they could get from the
tracks, and let the train pass by. Instead, they chose to race
the train to the next station. On these facts, I think it is
fair to say that plaintiff's injuries were entirely his own
fault, even if a non-negligent motorman might have been able to
stop the train in time to avoid the accident.
While no two cases are identical, precedents support
the view that this plaintiff's recklessness was serious enough to
be a "superseding cause." In Merino v New York City Transit
Authority (89 2 824 [1996]) we refused recovery to a plaintiff
who had fallen onto the subway tracks as a result of his own
intoxication, holding, as an alternative ground for dismissal,
that plaintiff "failed to show that the defendant's alleged
negligence was a substantial factor in causing his injury."
Several Appellate Division cases also deny recovery on
superseding cause grounds to plaintiffs who put themselves in the
paths of trains ( e.g., Wadhwa v Long Island R. R., 13 AD3d 614
[2d Dept 2004]; Lassalle v New York City Tr. Auth., 11 AD3d 661
[2d Dept 2004]; Snyder v New York City Tr. Auth., 2 AD3d 162 [1st
Dept 2003] lv denied 2 NY3d 707; Gao Yi Feng v Metropolitan Tr.
Auth., 285 AD2d 447 [2d Dept 2001]). Gao Yi Feng is perhaps the
closest to this case on its facts: the plaintiff there was struck
while standing "directly adjacent to the train tracks with his
back to oncoming trains" (285 2 at 447).
Cases denying recovery, even under a comparative
negligence regime, to highly reckless plaintiffs speak of
causation in defending their results, but in each case it is
clear that the extraordinary degree of the plaintiff's fault --
not just the foreseeability of the plaintiff's conduct -- has
been decisive. A pure foreseeability analysis does not explain
the cases. For example, I would not hesitate to uphold an award
if this plaintiff had been pushed by someone else into the path
of the train, rather than recklessly placing himself there,
though there is not much difference in the foreseeability of the
two events.
The principle we have applied in previous cases, and
should apply here, is that people whose failure to take care of
themselves is extreme may not shift any of the consequences to
others. Anyone of normal human compassion will sympathize with
plaintiff; he is not the only eighteen-year-old who ever acted
recklessly, and he has paid a much higher price for it than most.
But I do not think it consistent with law or wise policy to hold,
as the majority does, that the New York City Transit Authority
must compensate him in part for his loss. The Transit Authority
moved, before the case was submitted to the jury, for a directed
verdict, asserting that plaintiff's reckless conduct was the sole
legal cause of the accident. I think that motion should have
been granted.