Judgment, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 30, 2007, after a jury verdict and award of damages in plaintiff's favor, reversed, on the law, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Friedman, J.P., Sweeny, McGuire, Renwick, Freedman, JJ.
Plaintiff injured her leg when she slipped in the space between the subway platform and a downtown # 4 train at the 149th Street-Grand Concourse station in February 2001. After stepping onto the train with her right leg, plaintiff's left leg descended to a point above her knee and remained trapped for 15 or 20 minutes, until the subway car could be lifted by emergency equipment. Plaintiff claimed that defendant breached its duty of reasonable care, based on its own 1987 guidelines limiting the maximum tolerable gap between a subway car and a platform to six inches.
However, Plaintiff failed to demonstrate defendant's breach of a duty of reasonable care to remedy an unsafe condition. Her testimony that her leg went into the gap above the knee, and that the circumference of her thigh measured just above the knee was more than 16 inches, was insufficient to prove that the space between the train and the subway platform was greater than six inches. Plaintiff's civil engineering expert testified that based on his measurements four years after the accident, he concluded that the diameter of her leg above the knee was 6.68 inches. These measurements did not establish the size of the gap at the time of the accident. Even if the leg diameter exceeded six inches by a small amount, the wedging undoubtedly compressed it. That was why plaintiff's leg could not be easily extricated. Furthermore, defendant's measurements of the space between this platform and the doors of standard subway cars, both 9 months before and 15 months after the incident, demonstrated that the horizontal gaps at this point on the platform varied from 1.75 inches to 3.75 inches, and the vertical differential between platform and subway car floor was 4.5 inches. It should be noted that plaintiff's expert never measured any spaces at the station at issue, instead basing his testimony solely on plaintiff's leg measurements some four years after the accident. Thus, his contentions were at best speculative (see Wilson v City of New York, 271 App Div 1008 , revg 64 NYS2d 149 [App Term 1946, see dissenting op of McLaughlin, J.]).
The dissent's reliance on Pemberton v New York City Tr. Auth. (304 AD2d 340 ) is misplaced in that the Transit Authority's own measurements in Pemberton showed that the gap in some areas exceeded six inches; moreover, the trial court there had granted summary judgment dismissing the complaint prior to trial. Similarly, in Johnson v New York City Tr. Auth. (7 Misc 3d 42 [App Term 2005]) there was testimony by Transit Authority personnel that the space between the platform and train was well in excess of six inches, and that missing rubber boards contributed to an unsafe condition.
All concur except Renwick, J. who dissents in a memorandum as follows:
Plaintiff commenced this action to recover damages for personal injuries sustained when she fell in a gap between a platform and a subway car. At trial, defendant tacitly conceded that a gap greater than six inches would constitute a dangerous condition requiring remedial action under these circumstances. The majority, however, now holds that the trial court erred in denying the post-trial motion to dismiss the action on the issue of liability because plaintiff allegedly failed to produce sufficient evidence that the gap in which she fell exceeded six inches. I respectfully dissent because the majority's determination is based upon an erroneous evaluation of the evidence adduced at trial.
A thorough review of the evidence adduced at trial should make it abundantly clear that the jury verdict has ample support in the record. During the liability phase of the bifurcated trial, plaintiff presented the testimony of several witnesses, including her own. Plaintiff testified that her subway accident occurred on the morning of February 28, 2001, when she was on her way to work at the New York Mercantile Exchange, where she was employed as a supervising financial analyst. That morning, plaintiff, who lived in the Bronx, took a taxi to the subway station at 149th Street and the Grand Concourse, with the intention of taking the #4 train to work. Plaintiff, who weighed between 270 and 280 pounds, both at the time of her accident and at trial, was wearing a pair of size 10 Easy Spirit walking shoes with a ridged sole.
Upon arriving at the station, she went down the steps to the platform which was not yet crowded. The train was waiting on the middle track, which was straight. Plaintiff walked up to the second or third subway car, where there were available seats. As she began to enter through the first door, which was not blocked by any other passengers, she stepped onto the train with her right foot, then picked up her left foot to follow. However, her left foot came down into empty space, as "there was no train there." Her left foot sank between the train and the platform, initially up to about her ankle, then up to her calf, ultimately becoming trapped at a point above her knee at approximately mid-thigh.
Although she could not determine by mere observation how wide the gap was, when plaintiff looked down at her trapped leg, she observed that the gap between the subway car and the platform was "pretty wide." She surmised that the gap must have been greater than six inches because it went up her to thigh, which was wider than six inches; she wears a 91/2-inch ankle bracelet. Other riders reacted by running toward plaintiff while yelling to the train conductor not to close the doors. Their movement caused the train to press up against her leg even harder, until it felt like "it was going to pop." Eventually, emergency rescuers used an air bag to lift up the train and extricate plaintiff's leg.
Plaintiff called as a witness Flander Julien, a civil engineer who was employed by defendant on the date of the accident, as well as at the time of trial. His duties included supervising a crew that undertook measurements of the distance between trains and platforms when a train is stopped at a station. According to Julien, "gap measurements" are taken approximately every two years, using a train with no passengers and only a limited number of Transit Authority workers. He explained that the purpose of taking these measurements is "customer safety," and that gaps exceeding six inches from a straight platform ...