Everyday millions of individuals in the New York metropolitan area use public transportation such as buses, subways, or the railways. Fortunately, these methods of transportation are considered safe and, with few exceptions, most riders arrive at their destinations without incident. However, in those instances where a passenger is either injured or killed a lawsuit will necessarily follow, alleging negligence on the part of the particular carrier and /or the driver, motorman or conductor.
Generally, such accidents are alleged to have been caused by sudden, quick, jerking, lurching forward movements or stopping suddenly, which take unsuspecting passengers by surprise. As a result, it causes them to fall, hit into objects, such as poles or railings, or to collide with fellow passengers, thereby sustaining injuries. Sometimes it’s only one individual affected by the unexpected movement, others times several persons are involved. As always, while each case has its own facts that will determine its outcome, courts have established some parameters that apply in these situations.
Perhaps one of the best explanations of how to approach these issues was set forth by the Appellate Division, First Department, in Harris v. Manhattan & Bronx Surface Transit Operating Authority, 138 AD2d 56 (1988), which held: “No ‘hard and fast’ rule can be formulated as to precisely what amount of jerking or jolting of a streetcar or bus will give rise to an inference of negligence and, conversely, what amount of such jerking or jolting is usual and ordinary, incidental to the operation of such vehicle. ‘Sudden jerks and jolts in the movement of railroad trains or street-cars are generally accepted as among the usual incidents of travel, which every passenger by experience has learned to expect to some extent. At precisely what point such violent movements lose their character as incidents reasonably to be expected during the course of travel and assume the status of actionable negligence is a question of fact to be determined in light of the surrounding circumstances.”
Under this guideline, a plaintiff could recover damages if the movement of the vehicle was “unusual or violent.” However, “the quantum of proof necessary to establish a prima facie case” varies with each case. (Id. at 58) For example, in the absence of additional evidence, testimony by a plaintiff that a vehicle’s movement is unusually violent will be considered too general and indefinite. In other words, the mere characterization of a vehicle’s sudden movements or stopping, without more, will not be sufficient for an injured plaintiff to sustain his or her burden of proving a common carrier’s negligence.
Further, where a plaintiff rides a vehicle on a regular basis and knows the route taken with its curves, up-hills and down-hills and the varying degrees acceleration and deceleration, the fact that the plaintiff was thrown from the vehicle does not automatically result in a favorable finding for the plaintiff where he or she “should have known from his [or her] own experience that the train would first decelerate and then accelerate.” (Waddy v. Brooklyn Hgts. R.R. Co., 156 App. Div. 30).
While it is always helpful to have more than one witness to an accident, where plaintiff was the sole witness who testified that “as she stepped down to get off a bus, it ‘jerked suddenly’ causing her to fall” a verdict in her favor was affirmed. (Newell v. Brooklyn Bus Corp., 280 NY 650)
In Weinman v. Murray, 256 AD 1109 (AD 2d, 1939), a judgment dismissing plaintiff’s complaint was reversed and a new trial was granted where there was testimony that as defendant’s train approached the station there was sudden stop and violent jerk and plaintiff was thrown to the floor. At the same time another passenger was thrown from his seat while others were “violently thrown around. When this occurred there was a hissing sound from which it could be inferred that the airbrakes had been applies violently and not gradually.” The Appellate Court held that the evidence presented a question for the jury regarding whether the defendant was negligent. The court distinguished the facts here from those cases where the passengers are moving about in a car or train when there is an alleged sudden jerk.
Where a motorman knew that the passenger- plaintiff was standing on the platform of the train waiting for it to stop so he could get off, and the motorman “put on the power” causing the car to suddenly shoot forward with a “violent jerk” throwing the plaintiff from the car, the Court of Appeals affirmed a judgment in favor of the plaintiff finding the defendant negligent. (Gardner v. Central Park, N&E Riv. R.R. Co., 218 NY 753 ; see also, Futoransky v. Nassau Elec. R.R. Co., 227 NY 638 [passenger in elevated railroad car thrown to street when there was a “violent jerk or lurch in the movement of the car” and defendant was found negligent])
As the Court of Appeals stated in Urquhart v. NYC Tr. Auth., 85 NY2d 828, 829-830 (1995): “To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was ‘unusual or violent’ (citation omitted). Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff.” In that case, the plaintiff testified that the “swiftly moving bus stopped so suddenly and violently as to propel his body down the entire length, causing injuries to his shoulder, elbow and knee. Such testimony provided more than a mere characterization of the stop. It also provided objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of the defendant.” (See, Fonseca v. Manhattan & Bronx Surface Tr. Operating Auth., 14 AD3d 397 [AD 1st Dept., 2005])
In the recent case of Falchetti v. NYCTA, MTA and Ross, NYLJ, 10/24/12, the defendants moved for summary judgment dismissal of the complaint. The plaintiff therein was allegedly injured when the “E” train he was riding stopped suddenly causing him to fall backwards onto the floor and striking a pole causing a four inch vertical by four inch horizontal laceration in his leg. The doctor who examined the plaintiff attested to the fact that the injury was caused by its severe impact on the pole. Defendant Ross, the operator of the train at the time of the incident, claimed that there was “nothing unusual about the start of the train” and that he “never stopped the train” after it pulled out of the station.
Relying on the holdings of Urquhart and Fonseca, supra, the court denied the motions to dismiss by NYCTA and Ross, finding that plaintiff’s testimony constituted “objective evidence to create an inference that the stop was more than just the usual jerks and jolts commonly experienced on a train” and, coupled with the doctor’s testimony, was sufficient to create issues of fact as to the negligence of the NYCTA and Ross.
It should be noted, however, that the complaint against the MTA was dismissed, as it is a separate and distinct legal entity from the city’s transit authority and its functions are limited to financing and planning. As such, it does not deal with the operation or maintenance and control of public trains or their facilities.