Seong Sil Kim v. New York City Transit Authority

Gonzalez, J.,

dissents in a memorandum as follows: This is an appeal by defendant New York City Transit. Authority (TA) from a $5 million reduced judgment in favor of plaintiffs and from Supreme Court’s partial grant of the TA’s posttrial motion to set aside the judgment or reduce the damage award solely to the extent of reducing the damages for past and future pain and suffering. The majority holds that the conclusory testimony of plaintiffs’ expert witness was legally insufficient to demonstrate the negligence of the TA and its train operator and that the jury’s finding of proximate cause was based on speculation. Accordingly, the majority determines that judgment should be entered dismissing the complaint.

Because a rational jury could have found that the TA’s negligence was a proximate cause of the plaintiff Seong Sil Kim’s injuries, I respectfully dissent and would affirm the judg *336 ment and Supreme Court’s rulings on the posttrial motion, with one exception. That exception would be to modify the judgment solely to the extent of vacating the jury’s verdict on liability apportionment and remanding for a new trial on apportionment only, unless plaintiffs stipulate to a reapportionment of 70% to plaintiff Seong Sil Kim (hereinafter plaintiff) and 30% to the TA.

The TA’s argument that no evidence exists that its train operator acted negligently is refuted by the trial record. During his questioning of the train operator, plaintiffs’ counsel established that the operator received a warning of a person on the track six minutes prior to the accident, and that one TA document identified the warning given as “restricted speed, extreme caution,” which requires train operators to drive 10 mph or less and be able to stop within half their field of visibility. The operator also admitted that he had testified to at least three different distances at which he first observed plaintiff on the tracks, ultimately settling on 50 to 70 feet. In addition, he testified that his field of visibility was 60 feet at the time of the accident and that his reaction time in stopping this particular train was “a second or so.”

The operator further acknowledged that if he knew an unauthorized person was on the tracks, he should not go faster than 10 miles per hour (mph). In fact, he claimed he was trying to keep the train under that speed on the day of the accident, but he was actually going between 10 and 15 mph. Finally, the operator admitted that he was attempting to drive the train at a speed that would permit him to stop it within half of his field of visibility, and that it would not be safe operating procedure to drive at a faster speed.

Plaintiffs also called an expert witness who was asked to assume the facts testified to by the operator, and then to apply those facts to a stopping distance chart that was introduced into evidence. Plaintiffs’ expert explained the formula used in the chart, and then applied the formula to each of the four distances testified to by the train operator. In each case, the expert concluded that, assuming a speed of 10 mph and a one second reaction time, the train should have stopped before going over plaintiff with respect to each distance. Ultimately, the expert gave his opinion that driving the train at more than 10 mph was a violation of safe operating procedure and that it was unsafe to travel at a speed that would prevent stopping within half his field of visibility. The expert also noted that this train clearly did not stop within the operator’s field of visibility.

The majority discredits the conclusions of plaintiffs’ expert on *337 the grounds that he did not state how his standard for safe operating procedure was derived and he did not introduce any evidence of an industry standard. I disagree. On cross-examination, the train operator admitted that since 10 mph was an appropriate speed for track workers with reflective vests, it likewise would be appropriate for unauthorized or vulnerable persons on the tracks, if he knew they were there. Plaintiffs’ expert gave his opinion that the “extreme caution” warning was appropriate under the assumed facts given to him, and that the operator was negligent in not slowing the train to 10 mph. Notably, the TA did not challenge the existence or source of the “extreme caution” standard; it simply argued that it was inapplicable to unconfirmed reports of a person on the tracks. In my view, the jury was entitled to accept plaintiffs’ argument that the extreme caution standard was applicable in this situation and that the operator’s excessive speed constituted a failure to exercise reasonable care.

In addition, plaintiffs’ expert confirmed that safe operating procedure under these circumstances required a speed in which the train could be stopped within half the operator’s field of visibility. Since the train operator had testified that his field of visibility was 60 feet, and the undisputed evidence showed that the train traveled at least 110 feet from the time he stopped the train, there was credible evidence in the record supporting plaintiffs’ expert’s opinion that the train was traveling too fast under the circumstances.

The TA’s arguments contradicting plaintiffs’ expert do not render plaintiffs’ evidence conclusory or speculative. Thus, although the TA’s expert testified that the reaction time could be as much as two seconds, and plaintiffs’ expert conceded as much, the jury was entitled to accept the train operator’s testimony that his reaction time in this instance was “a second or so.” Similarly, although the TA’s expert testified that the mere caution warning was appropriate and that the operator acted in conformity with that warning, that is simply one side of the argument that the jury was not required to accept (see Stevens v New York City Tr. Auth., 19 AD3d 583, 585 [2005] [resolution of factual dispute raised by parties’ experts was for jury]).

I further agree with Supreme Court’s rejection of the TA’s proximate cause arguments. Although the TA introduced forensic evidence in support of its claim that the subject train did not strike plaintiff, the jury had sufficient evidence to conclude otherwise. The fact that the train operator observed plaintiff on the tracks in front of his moving train, and emergency personnel subsequently removed her from underneath that train with *338 severe injuries, justified the jury’s inference that this particular train, and not two earlier trains, had struck her. In addition, while the TA contended that plaintiff’s apparent suicide attempt was the sole proximate cause of the accident, there was no direct evidence, given her amnesia, as to exactly how plaintiff ended up on the subway tracks. Further, plaintiffs introduced evidence demonstrating that even if her presence on the tracks was deliberate, the train would have stopped had the operator been driving 10 mph or less. These questions were matters for the jury to decide, and there was no basis to hold as a matter of law that plaintiffs own conduct constituted the sole proximate cause of her injuries.

A court may grant judgment notwithstanding the verdict to the losing party only where “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]), and a verdict may be set aside as against the weight of the evidence only where “the jury could not have reached its verdict on any fair interpretation of the evidence” (McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [2004]; see Nicastro v Park, 113 AD2d 129, 134-135 [1985]). In my view, the jury’s findings of negligence and proximate cause in this case were based on the evidence in the record and may not be disturbed under either of these standards.

However, I do find that the jury’s verdict on apportionment was against the weight of the credible evidence. Although the TA did not raise this argument in its posttrial motion, this Court has the power to review and correct manifest jury error. The evidence overwhelmingly demonstrated that plaintiff was suffering from postpartum depression and that her presence on the tracks was the result of a suicide attempt. While plaintiff and her family, at times, denied that she was depressed, their statements to the police and in their trial testimony indicated otherwise. On this record, the jury’s apportionment of 30% fault to plaintiff can only be interpreted one way—the jury accepted that plaintiff attempted to commit suicide by deliberately walking onto the subway tracks. The jury having reached this conclusion, their apportionment of 70% fault to the TA could not have been reached on any fair interpretation of the evidence. While the train operator may have acted negligently by driving too fast, the record also shows that he acted promptly in slowing down and attempting to stop the train as soon as he observed plaintiff. Thus, while in legal terms the accident may have been avoidable, the jury’s apportionment is illogical and *339 must be set aside. I would modify and remand for a new trial on apportionment only unless plaintiffs stipulate to a liability reapportionment of 30% to the TA and 70% to plaintiff (Pouso v City of New York, 22 AD3d 395, 396-397 [2005]; Roseboro v New York City Tr. Auth., 10 AD3d 524 [2004]; Nares v M & W Waterproofing, 5 AD3d 155,156-157 [2004], lv dismissed 3 NY3d 698 [2004]).

Finally, I reject the TA’s argument that the court erred in giving a Noseworthy charge to the jury (see Noseworthy v City of New York, 298 NY 76 [1948]). The medical testimony established that plaintiff suffered amnesia as a result of the accident and the facts further show that the train operator had superior knowledge as to the cause of the accident.