Early tort law was heavily weighted towards injuries that involved train accidents. Here in the New York City metropolitan region with its huge dependence on rail transport, the older typical nineteenth century tort claims and defenses continue for injuries caused by subways, commuter lines and train equipment.
The Metropolitan Transportation Authority, Transit Authority, Long Island Railroad and Metro North regularly warn passengers of the dangers of railroads, which are extremely serious and potentially fatal. Long dark tunnels and speeding trains have romance and mystery, and are enormously attractive especially to young people. And the electricity that drives the trains is invisible yet deadly. The resulting accidents can be serious and life changing. The Transit Authority reports that contacts with subway trains killed 68 people in 2018.
Tort law principles act as incentives for safety, but tort law does so within the limitations of negligence law. Liability and compensation depend on proof of fault. The injured party must show that the railroad was negligent and that the railroad’s negligence caused the plaintiff’s injury. When an injured person sues the MTA or its subsidiaries, the railroads invoke tort law defenses and doctrines that are among the oldest doctrines in the common law. The result is that the railroads often prevail and may not be held liable for the injuries that occurred on railroad property. These defenses to tort claims include assertions that the railroad owed no duty or only a limited duty to a person trespassing on its property; that the railroad was not negligent and acted with reasonable care; that even if the railroad were negligent, that negligence did not cause the injury; that the railroad is protected by immunity; or that the injury was caused by the person’s own negligence.
Trespassers
Lawsuits by trespassers have been a traditional mainstay of litigation against railroads. A trespasser is anyone who enters onto railroad property without permission of the railroad. Courts are sympathetic to trespassers, but the railroads often prevail.
On a June evening in 1991 four boys, all 13 years old, entered a subway tunnel in Washington Heights to view a graffiti mural in a subway tunnel. The boys took the A train down to 190th Street, walked to the north end of the platform, and then proceeded into the darkened tunnel along the catwalk beside the tracks. The graffiti mural was located about 1,000 feet inside the tunnel between 190th Street and 200th Street. As trains came by, the boys shifted from catwalk to catwalk to avoid being seen by the train operator. After two trains had passed, the boys started walking on the narrow protective wooden covering of the southbound electrified third rail. Jesus de Pena, one of the four boys, slipped off the wooden covering and was electrocuted.
The administrator of Jesus de Pena’s estate alleged that the Transit Authority had failed to take reasonable precautions to prevent trespassing children from entering the tracks. The administrator also alleged that the tracks and the mural were attractive nuisances and that the 13-year-old boy should be judged as a child who lacked maturity, experience and judgment to appreciate the peril of his actions.
The Appellate Division, First Department, dismissed Jesus de Pena’s complaint, and held that the sole cause of Jesus de Pena’s death was his own willful and reckless actions in engaging in hazardous and illegal conduct. The court refused to invoke the attractive nuisance doctrine, a doctrine dating from 19th century railroad cases that protects child trespassers who may be enticed into harm’s way. The court held that Jesus de Pena had walked onto the tracks from the station platform where the risk and danger were obvious even to a 13-year-old boy who was clearly familiar with the subways. de Pena v. NYC Transit Auth., 653 N.Y.S.2d 327 (1st Dep’t 1997).
In a more recent 2001 trespasser case, Milton Colon, a 26-year-old man with an IQ of 75 and a mental age of a 14- to 15-year-old, climbed one of Metro North’s towers near New Haven, Connecticut. The tower was one of a series of climbable towers that run along Metro North’s tracks and support uninsulated high-power lines that propel Metro North’s trains. Colon climbed the tower to about 45 feet above the ground to get a better view of a nearby deer herd. At that elevation, Colon came close enough to the uninsulated high-power lines to cause an arc flash. An arc flash is a high-energy electrical explosion that occurs when electric current jumps from a power source through the air to a ground. In this case, the electricity explosively jumped from the uninsulated high-power lines to Colon. Colon was badly burned and remained hanging on the tower structure until rescued.
Colon alleged that Metro North knew that trespassers climbed its towers, knew that a person who climbed a tower could be injured by an arc flash without actually touching the electric wires, and that Metro North failed to provide reasonably adequate warnings of the hidden danger of arc flashes. Colon supported his claim by showing that Metro North was aware of constant or frequent trespassers on their right-of-way and therefore was under a duty to warn trespassers of known hidden dangers.
At trial, the jury rejected Colon’s argument, found in favor of Metro North and awarded Colon no damages. The jury specifically found that Metro North was not aware of persons climbing towers in the manner that Colon did, that the danger was not hidden, and that Colon’s injury was not caused by Metro North’s failure to warn. The Second Circuit upheld the verdict. Colon v. Metro North Commuter Railroad Co., 778 Fed.App.7 (2d Cir. 2019)
In another trespasser case, Juan Soto – then 18 years old – spent the evening of January 24, 1997 in Manhattan with three friends consuming alcohol. In the early morning hours, Soto and his friends attempted to return to Queens. They got to the Queensboro Plaza station, an elevated subway station in Long Island City, where they could transfer to the Number 7 line. They waited for some time at Queensboro Plaza where red tape was extended across the platform indicating that track work was being performed. The group decided to walk along the three-foot wide catwalk adjacent to the elevated tracks to the next station at 33rd Street. They safely walked on the catwalk adjacent to the elevated tracks over the Sunnyside Rail Yards to the 33rd Street Station, a 3,000-foot distance. When still no train came, the four men decided to walk further along the catwalk beside the elevated tracks to the next station, the 40th Street Station, which was 2,000 feet further into Queens. Before they reached 40th Street station, they saw a train approaching and began running along the catwalk to get to 40th Street Station in time to board the train. As the train passed the youths running on the catwalk, the train struck Soto and badly injured him. The three other youths were not injured.
Soto sued the Transit Authority. Soto claimed that the cause of his injury was the train operator’s failure to stop the train in time. Soto estimated his own running speed and the speed and stopping distance required of the train, and argued that the train operator could have stopped the train 51 feet before it hit Soto.
A jury found the Transit Authority 25 percent at fault and Soto 75 percent at fault, and awarded Soto $1,250,000. A split Court of Appeals upheld the jury’s verdict awarding compensation to Soto. The four-judge majority reasoned that the train operator had an obligation to avoid striking anyone, even a trespasser, and the jury’s verdict was supported by sufficient evidence. The three dissenting judges would have denied Soto all compensation, rejecting Soto’s evidence that the train operator had time to stop as speculative. Soto v. New York City Transit Auth., 6 N.Y.3d 487 (2006).
Causation
A standard railroad defense is to attack causation. Even if the railroad were negligent, the railroad would not be liable unless the railroad’s negligence was the cause-in-fact of the plaintiff’s injury. Causation is usually a jury issue to be decided on the facts of the case, but a judge will take a case away from the jury when the plaintiff cannot link the injury to the railroad’s negligence. Such a case involved the death of Ronald E. Williams.
In 2005, Ronald E. Wilson was killed by a Number 4 train while the train was traveling in a relay tunnel in Brooklyn near the Utica Avenue station, the last stop for southbound trains on that line. A relay tunnel has multiple tracks and switches designed to allow a train to reposition itself from the southbound track to the northbound track. Wilson, who was drunk (.27 percent blood alcohol content) was still on the Number 4 train when the train entered the relay tunnel in order to reverse direction. While the train was in the relay tunnel, Wilson walked between two cars, fell from the train to the tracks, and suffered his fatal injury.
The administrators of Wilson’s estate sued the Transit Authority. They claimed that Transit Authority personnel were negligent in that they failed to make sure that there were no passengers remaining on the Number 4 train before bringing the train into the relay tunnel to reverse direction.
The case went to trial and a jury allocated 65 percent liability to the Transit Authority and only 35 percent to Wilson. After adjusting the verdict according to the allocation, the trial judge entered a judgment in favor of Wilson in the amount of $1,255,000. The Transit Authority appealed.
The Appellate Division, Second Department reversed and threw out the judgment in favor of Wilson. The Appellate Division ruled that the Transit Authority’s negligence was not the cause of Wilson’s death. Even assuming that the Transit Authority was negligent in leaving Wilson on the train, its negligence only furnished the occasion for his injury. The actual cause of Wilson’s injury was his fall from between the two subway cars, and the cause of that fall was unknown and speculative. There was, as a result, no evidentiary basis for the jury’s finding that the failure to remove Wilson from the train was the cause of his death. Wilson as a result received no compensation from the Transit Authority. Williams v. New York City Transit Auth., 107 N.Y.S.3d 366 (2d Dep’t 2019).
Absence of negligence
Train operators have an obligation to stop and avoid striking anyone on the tracks. But what if there is too little time to stop or the person suddenly appears on the track? The Transit Authority is not liable for an injury if the train operator responds as quickly as could be reasonably expected under the circumstances.
Many railroad cases turn on the reasonableness of the train operator’s actions. In a recent case Johnny L. Searcy, who had been drinking, fell to the tracks from the platform of an elevated outdoor station on the D line. Searcy, who did not know how he came to fall, remained lying on the tracks and was struck by a train entering the station. Searcy argued that the train operator had time to see him and failed to stop. Searcy calculated that the train operator could see him at a distance of 362 feet, and only needed only 124 feet to stop the train. The Transit Authority argued that the operator could not have seen Searcy in time to stop the train; the time was dusk, the train was coming around a curve and the operator had to read the rails, look at signals and car markers and observe the platform, as well as the tracks. The jury found the train operator not negligent and awarded Searcy no compensation. The Appellate Division upheld the verdict. Searcy v. New York Transit Auth., 169 A.D.3d 1076 (2d Dep’t 2019).
Similarly, the Transit Authority was ruled not negligent when a train entered the outdoor Parkside Avenue station in Brooklyn in the early morning and struck a man sitting in the tracks. The train operator testified that he first saw the man sitting in the tracks only two car lengths in front of the train. It was unknown how the man came to be sitting on the tracks. Mirjah v. New York City Transit Auth., 853 N.Y.S.2d 148 (2d Dep’t 2008).
By contrast, James Sanders won a jury verdict of $9.3 million against the Transit Authority. Sanders fell from the platform at Brooklyn’s Winthrop Street station and was struck by a northbound Number 2 train. He survived but sustained serious injuries. Sanders testified that the train was more than 400 feet away when he fell and that the train operator was negligent in not stopping the train. The jury found in favor of Sanders and the Appellate Division affirmed the verdict. Sanders v. New York City Transit Auth. 922 N.Y.S.2d 106 (2d Dep’t 2011).
The Transit Authority may also rely on the emergency doctrine which allows a jury to take into consideration emergency circumstances as where the train operator is faced with a sudden and unexpected circumstance which leaves little or no time for thought. The New York Court of Appeals specifically invoked the emergency doctrine when it reversed a subway case where a trial judge failed to charge the jury with the emergency doctrine. Milton Rivera, apparently drunk and staggering about the platform at the 42nd Street and 6th Avenue Manhattan station, fell to the track. When Rivera fell, he was just 30 to 40 feet from a train that was then entering the station at approximately 20 miles per hour. The trial court judge refused charge the jury with the emergency doctrine and the jury found the Transit Authority liable. The Court of Appeals reversed the jury verdict, declaring that the trial judge had erred in not allowing the jury to consider the emergency doctrine in considering the Transit Authority’s negligence. The Court sent the case back for a new trial. Rivera v. New York City Transit Authority, 567 N.Y.S.2d 629 (1991).
Qualified Immunity
Trains regularly enter stations at tunnel travel speed. The higher the speed, the longer it takes to stop a train. Plaintiffs have unsuccessfully argued that the Transit Authority was negligent in not requiring trains to enter stations at lower speeds.
Crystal Stevens was pushed onto the subway tracks at the Classon Avenue Station in Brooklyn and struck by an incoming train that entered the station at tunnel speed. Stevens alleged that the Transit Authority was negligent in not restricting the speeds at which trains enter the station. Stevens argued that the maximum speed for the station should have been 15 miles per hour, not tunnel speed. At the lower speed, the train could have stopped before striking Stevens.
The Transit Authority responded that its rules on speed could not be found negligent and were immune from review by a jury in a tort case. The Transit Authority’s speed rules had been formally approved by the Transit Authority’s Speed Policy Committee which has the job of balancing the complex engineering, operational, and safety policies that determine appropriate speeds for subway trains. As such, the Transit Authority argued, the rules on speed were protected by a qualified immunity based on the Transit Authority’s governmental status and the formal process by which the rules had been developed.
The Appellate Division, Second Department, agreed with the Transit Authority, and ruled that the Transit Authority’s speed decisions were immune and could not be second guessed by a jury. Stevens v. New York City Transit Auth., 733N.Y.S.2d 492 (2d Dep’t 2001).
Similarly, the Transit Authority’s decision to keep the doors unlocked between subway cars was protected by a qualified immunity. The Transit Authority’s decision on doors gives priority to affording passengers a ready means of escape during an emergency at the price of accepting the risks that occur when people walk between cars. McCord v. City of New York, 748 N.Y.S.2d 761 (2d Dep’t 2002); Zambrana V. New York Transit Auth., 786 N.Y.S.2d 488 (1st Dep’t 2004).
Transit Authority policies for dealing with persons lost and wandering in the subway tunnels have also been questioned in a tort case. When a person is known to be wandering in the subway tunnel, the Transit Authority severely restricts train speeds during the search, but does not halt trains. The Appellate Division, Second Department, recently refused to second-guess the Transit Authority’s speed policy in a case where a person was known to be wandering undetected in the tunnels for two hours.
In November 2011, Brian Mark Rowe jumped onto the tracks from the subway platform and walked into the tunnel between the Flatbush Avenue and the Newkirk Avenue Stations in Brooklyn. As Rowe disappeared into the tunnel, subway patrons on the platform shouted at Rowe to get off the tracks and reported the incident to Transit Authority personnel. The Transit Authority ordered restricted speeds and extreme caution, and commenced a search for Rowe using NYPD officers who rode on the trains through the tunnel. Rowe was not located during a two hour search, after which a subway train struck and killed Rowe.
The estate of Rowe sued arguing that the Transit Authority should have halted the trains until Rowe had been located. The Appellate Division rejected Rowe’s argument, ruling that Rowe was the sole cause of his death. The court wrote that Rowe’s “reckless conduct was ‘so obviously fraught with danger’ that by its very nature evinced a ’wanton disregard’ for his own personal safety such that it broke any causal chain between his death and any alleged negligence on the part of the [Transit Authority].” Nelson v. New York City Transit Auth., 96 N.Y.S.3d 342 (2d Dep’t 2019).
Plaintiff’s own negligence
Under New York’s comparative fault regime, the plaintiff’s own negligence can reduce or eliminate entirely the Transit Authority’s liability. An example where the Transit Authority’s liability was reduced occurred in a recent case where the passenger was injured when she stepped into the gap between a subway car and the platform.
In the morning rush hour on November 23, 2009, Noreen Stallings-Wiggins stepped in the gap between a subway car and the platform at the Prospect Park Station in Brooklyn. Stallings-Wiggins regularly used the Prospect Park station to transfer to the shuttle train from the B train. On the day she was injured, Stallings-Wiggins had just gotten off the B train and stepped over the gap without incident. She looked to see if the shuttle train was there. Upon seeing that the shuttle train was not there, Stallings-Wiggins attempted to reenter the B train. She stepped onto the B train with her right foot, but her left foot fell through the gap between the subway car and the platform.
After trial, a jury found the Transit Authority was 100 percent at fault. The Appellate Division reversed the jury’s verdict as against the weight of evidence and ordered a new trial. The court wrote that the jury’s verdict completely absolving Stallings-Wiggins of any fault was not supported by a fair interpretation of the evidence. Some portion of the fault for Stallings-Wiggins’ injury must be assigned to her. Stallings-Wiggins v. New York City Transit Auth., 88 N.Y.S.3d 79 (2d Dep’t 2018).
As these cases show, tort law is better at sorting out liability than it is at improving safety. Reducing injuries will required new engineering improvements and protections, continued warning and public relation campaigns, and a more profound awareness of the dangers of subway trains, tracks and tunnels.
By Ross Sandler, Professor and Director of the Center for New York City Law at New York Law School, with special thanks and appreciation to Laine Vitkevich, NYLS 3L for her extensive research for this article.