Cruz v. New York City Transit Authority , 136 A.D.2d 196 ( 1988 )

OPINION OF THE COURT

Bracken, J.

In this personal injury action, the trial court determined, at the close of the plaintiffs’ case, that the defendant was entitled to a judgment against the plaintiff as a matter of law (CPLR 4401). We reverse, and grant a new trial.

I

The pertinent trial evidence may be briefly summarized. While waiting for a friend to join him on the landing of an exterior stairway leading to the token booth and turnstile area of the Elderts Lane elevated station of the Jamaica Avenue subway line, the plaintiff Robert Cruz lifted himself up and sat on the landing’s 43-inch-high railing. As Cruz sat, a number of young people began to climb the stairway. One of these youths "brushed” against Cruz, who fell to the sidewalk below. His resultant injuries have rendered him quadriplegic.

In addition, the plaintiffs adduced expert testimony from an engineer who was of the opinion that the stairway and railing in question had not been designed in accordance with good and accepted engineering principles. According to the witness, the platform was approximately seven feet above the sidewalk and the railing was an additional 43 inches in height. Thus, the railing should have been designed to preclude persons from sitting upon it, by increasing its height to four feet, or by dimpling it or placing spikes along its length to make it difficult to sit upon or by placing a wire mesh screen above the railing extending to the roof over the stairway. However, the trial court would not permit the witness to testify regarding whether such design features had been implemented either at the elevated subway station in question or at other elevated subway stations within the city, including those within close proximity to the station in question.

II

In order to prove a prima facie case of negligence, it is incumbent upon a plaintiff to establish: (1) the existence of a duty on the part of the defendant to the plaintiff, (2) a breach of that duty, and (3) injury suffered by the plaintiff which was proximately caused by the breach (see, Boltax v Joy Day Camp, 67 NY2d 617; Solomon v City of New York, 66 NY2d 1026; Akins v Glens Falls City School Dist., 53 NY2d 325, 333, rearg denied 54 NY2d 831; Iannelli v Powers, 114 AD2d 157, 161, Iv denied 68 NY2d 604). In determining whether a plaintiff has proved a prima facie case, we must view the evidence in the light most favorable to the plaintiff and afford him the benefit of all inferences which could reasonably be drawn therefrom (see, Schneider v Kings Highway Hosp. Center, 67 NY2d 743, 745; Negri v Stop & Shop, 65 NY2d 625, 626; Iannelli v Powers, supra, at 160). Examining the evidence in that light, we conclude that the plaintiffs did establish a prima facie case of negligence on the part of the defendant and that the trial court therefore erred when it granted the defendant’s motion for judgment following the presentation of the plaintiffs’ case. In so holding, we express no view regarding the ultimate determination as to liability.

It is settled that a common carrier is required to exercise reasonable or ordinary care, in view of the dangers to be apprehended, in providing and maintaining safe and adequate stairways in its stations (see, Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 248, affd 64 NY2d 670; Serlin v City of New York, 266 App Div 668, affd 291 NY 595; 17 NY Jur 2d, Carriers, §§414, 420). In this case, the testimony of the engineer, viewed most favorably to the plaintiffs, was sufficient to establish a prima facie case that the defendant’s failure to have designed the railing in such a manner as to preclude persons from sitting upon it constituted a breach of that duty. Moreover, because the alleged defect was one created by the defendant, actual notice of the defect was established for purposes of a prima facie case (see, Lewis v Metropolitan Transp. Auth., supra, at 249).

Although it is argued that the infant plaintiff’s fall was caused by his own negligence in sitting upon the railing, or by his contact with an unknown third person, thereby relieving the defendant of liability, the evidence, viewed most favorably to the plaintiffs, simply does not establish that the infant plaintiff’s conduct or his contact with a third person was so extraordinary and unforeseeable as to constitute, as a matter of law, an intervening cause (see, Martinez v Lazaroff, 48 NY2d 819; Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, mot to amend remittitur granted 46 NY2d 770; cfi, Boltax v Joy Day Camp, supra; Marcroft v Carvel Corp., 120 AD2d 651, Iv denied 68 NY2d 609). For the purpose of establishing a prima facie case of negligence, a plaintiff must demonstrate that the negligence of the defendant "was a substantial cause of the events which produced the injury”, and, where there is an intervening act which also contributes to the injury, "liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, rearg denied 52 NY2d 784, 829). The evidence in this case, viewed most favorably to the plaintiffs, was sufficient to establish prima facie that the incident was a foreseeable consequence of the defendant’s failure to have provided a safe and adequate stairway.

Moreover, the trial court erred in precluding the plaintiffs from adducing testimony from their expert pertaining to the design and construction of exterior stairways at other elevated subway stations in the city, including those in close proximity to the scene of the accident. Proof of a generally accepted practice, custom or usage within a particular trade or industry is admissible as tending to establish a standard of care, and proof of a departure from that general custom or usage may constitute evidence of negligence (see, Trimarco v Klein, 56 NY2d 98, 105-107; Bailey v Baker’s Air Force Gas Corp., 50 AD2d 129, 132, Iv denied 39 NY2d 708; Richardson, Evidence § 187 [Prince 10th ed]; 2 Bender, New York Evidence § 71.04; Fisch, New York Evidence § 203 [2d ed]). Of course, it need not be shown that the particular custom or usage is universally observed, so long as it is fairly well defined within the particular field (Trimarco v Klein, supra, at 106). There must exist, however, an identity of conditions, so that the particular custom or usage is applicable to the circumstances of the case at hand (2 Bender, New York Evidence § 71.04; Fisch, New York Evidence § 203 [2d ed]). Thus, the plaintiffs in this case should have been afforded the opportunity to establish that there existed an accepted practice with respect to the railing design both at the elevated station in question and on similar exterior stairways at other elevated subway stations in the city, and the trial court was unduly restrictive in precluding such testimony.

Ill

Our dissenting colleague cites several cases in support of the concept that a party has no duty to prevent the misuse of an instrumentality under its control. We gather that this rule would apply, under such interpretation, even though the occurrence of such a misuse might be proved to be eminently foreseeable, and even though the cost of taking reasonable steps to avoid such misuse might be vastly outweighed by the magnitude of the risks posed to society by the failure to take such preventative measures. We have reviewed the cases cited, and are unable to derive from them such a broad rule of law.

Most typical of the cases relied upon in the dissent are those in which an infant plaintiff suffered an injury as the result of having fallen from some area in which the infant should not have been (see, McCann v City of New York, 270 App Div 1040, affd 296 NY 886 [infant fell from a ledge on outside of a pedestrian bridge]; Roffenbender v City of New York, 24 AD2d 581, affd 17 NY2d 754 [infant plaintiff fell from a 22-inch-high concrete base upon which an iron fence had been mounted]).

It would be erroneous to derive from these cases an all-encompassing rule that the duty of a landowner to maintain a reasonably safe premises extends only to those who use the appurtenances located on the premises solely for their normal and intended purpose. Such a rule would be directly contrary to those determinations in which infant plaintiffs have been allowed to recover, notwithstanding their misuse of some instrumentality located upon the premises and, more fundamentally, notwithstanding it being on a part of a premises where they had no right to be. In Patterson v Proctor Paint & Varnish Co. (21 NY2d 447), for example, an infant plaintiff lit a fire on the defendant’s property, and then decided to play "fireman” by pouring on the fire a flammable liquid which he had earlier found in a can. The Court of Appeals held that the defendant was subject to liability. In Collentine v City of New York (279 NY 119), the infant plaintiff had climbed onto the roof of a building in a park which had been closed to the public, and fell off the roof when he tripped over an iron bar. Again, it was determined that the defendant landowner could be subject to liability (see also, Levine v City of New York, 309 NY 88 [defendant could be liable where infant plaintiff was playing "follow the leader” and while climbing on top of a railing fell and was injured]).

It has been historically recognized that liability could be found by the jury even in those instances where there has been a misuse of an instrumentality. New York State courts have recognized "the special propensities of children and the prevailing social policy of protecting them from harm” (Barker v Parnossa, Inc., 39 NY2d 926, 929 [Breitel, Ch. J., concurring]) and have not deprived them of a right to compensation for injuries caused by the negligence of third parties solely on account of their status as trespassers (see, e.g., Martinez v Kaufman-Kane Realty Co., 34 NY2d 819, 821) or solely on account of their misuse of an instrument found on the defendant’s premises (see, e.g., Lathem v Double E, 53 AD2d 921 [recovery permitted where infant plaintiffs decided to take the "fun way” upstairs in the defendant’s premises, and attempted to use a conveyor belt to do so]; see also, Zapata v City of New York, 96 AD2d 779; King v Rotterdam Shopping Center, 21 AD2d 387).

This principle is further illustrated in the recent case of Holtslander v Whalen & Sons (70 NY2d 962, modfg 126 AD2d 917, on concurring in part and dissenting in part mem of Levine, J., at App Div). In that case, two teen-agers climbed from an overhanging tree limb onto the top of a tent which had been erected on the defendant’s property. They suffered personal injuries when the tent ripped, and they fell to the ground. In modifying the order of the Appellate Division, Third Department, which had held that this established that the accident was unforeseeable, and had thus affirmed a trial order of dismissal, the Court of Appeals adopted the concurring in part and dissenting in part memorandum of Justice Levine, holding that the plaintiffs had established a prima facie case. We can see no valid distinction between the facts of the Holtslander case and those of this case which would warrant a holding that the plaintiffs have failed to prove a prima facie case.

Even with respect to adults, there is no broad rule of law that a plaintiff who is injured while misusing an instrumentality is precluded from recovery because the defendant who controlled the instrumentality owed no duty to prevent its misuse. Instead, the focus is on the foreseeability of how a particular item may be used. In Farkas v Cedarhurst Natural Food Shoppe (41 NY2d 1041), for example, the court held that the defendant was entitled to summary judgment because the use which the plaintiff made of a display cabinet located on the defendant’s property was not " 'reasonably to be perceived’ ” (Farkas v Cedarhurst Natural Food Shoppe, supra, at 1042, quoting from Basso v Miller, 40 NY2d 233, 241; cf, Hall v Scheidelman, Inc., 65 AD2d 928 [holding jury could find defendant landowner liable for failure to prevent passengers from using lift intended for goods]). The sufficiency of the precautions taken by a landowner to prevent injuries is almost always a question of fact for the jury (see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520, n 8; Arena v Ostrin, 134 AD2d 306).

The decisions in the McCann v City of New York (270 App Div 1040, supra) and Roffenbender v City of New York (24 AD2d 581, affd 17 NY2d 754, supra) cases, rather than establishing the sweeping rule of law relied upon by our dissenting colleague, seem merely to hold that dismissal of a complaint is warranted where an infant plaintiff fails to prove that his fall was caused by some dangerous condition existing on the defendant’s property. In neither McCann nor Roffenbender did it appear that some defect actually existed on the defendant’s property. While there is no proof that the railing in the present case was defective in the sense that it was rusted or broken, there is proof in the form of expert testimony that the very design of the railing was not in accordance with prevailing safety standards. Thus, the jury could have concluded that the railing in question was inherently defective in that its design was such as to allow the occurrence of an accident which could easily have been prevented. Such expert testimony was altogether lacking in McCann (supra). In Roffenbender (supra), although the plaintiff did present expert testimony, the expert was unable to cite any authority for his assertion that the fence in question was improperly constructed (Roffenbender v City of New York, supra, at 755-756).

The other cases cited in the dissent likewise do not support the proposition that a landowner owes no duty of care to invitees on his property who misuse some instrument or structure located on the property.

IV

In conclusion, we find that none of the cases relied upon by our dissenting colleague hold, as a matter of law, that a landowner has no duty to prevent injuries which might result from the foreseeable misuse of instruments or structures located on his property. Such a rule would be particularly inappropriate in instances where the instrument or structure is that of a common carrier with the concomitant responsibility a common carrier has to take into consideration the safety of its passengers.

The trial court therefore erred in dismissing the complaint, and a new trial is necessary.