Opinion
November 10, 1998
Appeal from the Supreme Court, Bronx County (Lucindo Suarez, J.).
The infant plaintiff was injured when a young woman fell or was pushed from an elevated subway platform and landed upon him. Seeking to cast defendant Transit Authority in damages for the infant plaintiff's harm, plaintiffs have alleged that the Transit Authority was negligent in failing to design, construct and maintain a railing sufficiently high to prevent the young woman's fall; the existing platform railing was 43 inches in height. Assuming arguendo that the design and maintenance of a safe platform railing constituted an aspect of defendant's proprietary duty and that that duty ran to persons, such as the infant plaintiff, not upon defendant's premises, it is nonetheless clear that the action must be dismissed since defendant satisfied whatever duty it may be said to have had to design and maintain a safe railing. Certainly, barring any proof to the contrary, and plaintiff has presented none ( compare, Cruz v. New York City Tr. Auth., 136 A.D.2d 196, 197-198), the existing 43-inch high platform railing should have afforded reasonable protection against an accidental fall such as that hypothesized by plaintiffs ( see, Cruz v. New York City Tr. Auth., 190 A.D.2d 651, lv denied 82 N.Y.2d 654 [44-inch high railing deemed to satisfy Transit Authority's duty to provide a safe railing]). In this latter connection, we note that the fact of the young woman's fall cannot be adduced as evidence of the subject railing's inadequacy, since there exists no non-speculative basis to conclude that the young woman's fall was indeed accidental. The evidence is at least equally compelling that the young woman fell despite, not because of, the railing, by reason of volitional conduct for which defendant Transit Authority cannot be held accountable ( see, Weiner v. Metropolitan Tr. Auth., 55 N.Y.2d 175).
Concur — Milonas, J. P., Ellerin, Rubin, Tom and Saxe, JJ.