Opinion
706036/2016
03-20-2018
Katie SPADARO, Plaintiff, v. LONG ISLAND RAILROAD, Defendant.
The following electronically filed documents read on this motion by defendant LONG ISLAND RAILROAD for an Order pursuant to CPLR 3212, granting defendant summary judgment and dismissing the complaint:
Papers Numbered
Notice of Motion–Affirmation–Exhibits EF 10—22
Affirmation in Opposition–Exhibits EF 23—37
Affirmation in Reply EF 38
This is an action to recover damages for personal injuries allegedly sustained by plaintiff on April 18, 2015 when she fell on a temporary platform bridge and concrete platform while attempting to board a LIRR train at Woodside station in Queens County, New York.
Plaintiff commenced this action by filing a summons and complaint on May 20, 2016. Issue was joined by service of defendant LIRR's answer on June 16, 2016. LIRR now moves for summary judgment, dismissing plaintiff's complaint.
Plaintiff appeared for a 50–H Hearing on August 17, 2015 and an examination before trial on February 28, 2017. She testified that the incident occurred on April 18, 2015 around 11:00 p.m. while she was at the LIRR's Woodside train station after a Mets Game. She had taken the train to or from at least twenty games before. At the game, she had two beers. After the game, she and her friends took the subway from Citifield to the Woodside station. They planned to board a LIRR train home to Rockville Center. She and her two friends went down the stairs from the subway to the LIRR platform. They observed the platform bridges at the west end of the platform, but they stood in place by the stairs toward the middle of the platform to wait for the train. They stood in place for about fifteen to twenty minutes waiting for the train. There were platform bridges being used to go over the first track closest to the platform so passengers could board the train on the second track away from the platform. The platform was crowded, but she and her friends were able to move freely within the crowd. It was a similar large crowd to other Mets games she had been to. Once the train arrived, people began to walk toward the west end of the platform to use the bridges to board the train. The crowd had been standing to use one bridge to board the train, but when the train pulled into the station, the crowd had to try to get to another bridge to board the train. The crowd continued to move, it became much more rushed, and as she continued to walk, she could move less freely in the crowd. As they were walking, she was pushed from behind, which caused her to fall onto the platform bridge. There was shoving and she was pushed from behind in a rushed forward movement. She did not know who pushed her. She did not trip on anything. After she was knocked down, and as she attempted to catch herself, she believes her foot also caught the edge of the temporary bridge platform lip. She did not see anyone else fall that night. She was not aware of any prior incidents, crowding, or people falling at the Woodside station. After her fall, she was on the ground for less than a minute. Her friends were able to get to her and help her up. For the minute or so she was on the ground, it was not so crowded that she got trampled by the crowd and no one was blocking off the crowd from trampling her. Her friends were able to walk her across the platform opposite the tracks and platform bridge.
Non-party witness Kimberly Cracovaner appeared for an examination before trial on May 8, 2017. She testified that she is a friend of plaintiff and was with plaintiff at the time of the incident. After the game, and once they arrived at the Woodside station, all three of them went down to the platform together where they waited for the train. The crowd congregated at the bottom of the stairs where they waited. The platform was crowded, but they were all able to stand safely in place without incident. Once the train arrived, a LIRR employee told everyone that they needed to walk to the west end of the platform to board the train. They began to walk toward the west end. Some of the doors on the train were originally closed on the first couple of cars or they were sardine packed with people. They walked about a quarter of the length of the platform before plaintiff was pushed from behind and fell. She witnessed plaintiff's fall. No one else fell besides plaintiff. After plaintiff fell, she was able to stop in place on the platform and went to plaintiff's aid without the crowd knocking either of them over. They were also able to move onto a platform bridge that was not in use, which was away from the crowd.
Non-party witness Colleen Burke appeared for an examination before trial on May 8, 2017. She testified that she is a friend of plaintiff and was with plaintiff at the time of the incident. The incident happened on the platform at the Woodside station. The station was crowded. They were able to navigate the station, go up and down the stairs, wait on the platform, and walk to the train without incident. When the train arrived, they had to walk to the west end of the platform to board the train. They passed about two or three bridges because the bridges were too crowded and she believes one or two of them were closed. At that point, people began to rush, and plaintiff was pushed from behind and fell. She did not witness the incident. She was able to stop in place, turn around, and walk backward thirty feet through the crowd and get to plaintiff without any problem. They helped plaintiff up and then walked through the crowd to the opposite side of the platform away from the tracks.
LIRR Conductor Michael Magaliff appeared for an examination before trial on March 3, 2017. He testified that he has been employed by the LIRR for seventeen years. On the date of the incident, he was on a special assignment as a platform conductor at the Woodside station. His responsibility was to ensure that the trains platformed properly and also to provide instruction and guidance to the LIRR riding public using the station and bridges. The Woodside platform is long enough to allow twelve cars to pull up adjacent to the concrete platform. When track work is going on at the Woodside station and temporary platform bridges were in use, additional LIRR employees are placed at the station as a safety measure. On the night of the incident, there were platform bridges in place because of the track work taking place. Only the first four cars opened at the station. The use and installation of the platform bridges is a planning decision made by the LIRR and its Track Department. The platform bridges are used for passengers to walk over the main line four track during the track work. When platform bridges are being used, additional LIRR personnel are stationed on the platform to give the riding public instructions and announcements on how to safely board trains. There is a station master, platform conductors, and ushers all positioned among the platform to aid the public. On the night of the incident, there was a Mets game and a fireworks display after the game that would result in the crowds exiting the game at the same time. The LIRR was aware of the extra passenger traffic Mets games create. The LIRR runs extra trains out of the Mets Willits Point Station to accommodate the extra traffic. On the night of the incident, the train platformed properly with the temporary platform bridges and the platform. The engineer stopped the train in the correct location. The rear eight cars did not open. When the train arrived at the station, the passengers on the platform began to walk to the west end of the platform to board the train. He was standing at the sixth or seventh platform bridge directing the passengers onto the bridges and the train. Everybody was trying to get into the train, and the train was crowded to begin with. He witnessed plaintiff being helped up by her friends after a fall. He went to their aid and helped them walk over to the edge of the platform opposite the track. Despite the crowd, he was able to walk right through the other passengers and get to plaintiff. The other passengers were able to walk right by him without issue. Other than plaintiff's incident, there were no other incidents at the Woodside station on the date of plaintiff's fall, and no one else was injured or fell. There were no complaints at any time regarding the conditions at the Woodside station prior to plaintiff's incident. On the night of the incident, he spoke to plaintiff's father on the phone.
LIRR Assistant Train Master Mark Rodriguez appeared for an examination before trial on October 19, 2017. He testified that when there is an event at the Woodside station, additional staffing requirements go out to bid. For the subject night, he was the assistant train master for the station. The use of temporary platforms or pedestrian bridges requires additional LIRR staffing. There would be a station master, ushers, and platform conductors. When the bridges are being used, the additional staff are there to assist the passengers and give them safety instructions about where and how to board the trains. There are also overhead announcements to advise passengers about the use of the bridges and where and how to board the train. Temporary platform bridges are used because of the East Side Access project. At the time of the incident, track work was being done west of Woodside in an area called Harold Interlocking. The East Side Access project is a massive public works project involving the installation of a tunnel into Grand Central Station. As part of the project, LIRR's main line 4 track is taken out of service at certain times. As a result, the southern most track at the Woodside Station is out of service. The bridges are used so that passengers can walk over the main line 4 track and board trains that come in on the next track over. As the station manager, he was responsible for supervising the station. While the LIRR ran extra trains westward to the Mets game, it did not run additional trains from Woodside to points east to bring fans home. When there is a Mets game, he places his usher and platform conductors on the platform to assist with crowd conditions at the station. There were two ushers and four platform conductors on the night of the incident. The ushers were placed at the east end of the platform and the middle to perform crowd control and to instruct all passengers to walk to the west end of the station to board the eastbound train. The platform conductors were stationed at every other platform bridge to ensure passengers safely alighted from the train and then passengers at Woodside safely boarded. There was a total of seven additional LIRR staff on the platform to supervise the crowd and assist. At some point on the night of the incident, he learned of plaintiff's fall. He confirmed that the train platformed properly and in accordance with LIRR plans. All passengers on the platform would have received instruction from LIRR employees prior to the train arrivals that they needed to walk to the west end of the platform to board, and to walk and not run. The station was crowded, but not overcrowded. There was more than enough room on the platform to accommodate the number of passengers waiting to board incoming eastbound trains. There was enough room for those passengers to safely stand on the platform, move about, and board incoming trains. Prior to plaintiff's incident, there were never any complaints regarding conditions at the Woodside station.
Based on the above testimony, defendant LIRR contends that the incident was caused by the intervening act of an unidentified person pushing plaintiff from behind as she attempted to board the train. Additionally, LIRR contends that the testimony confirms that the platform was not overcrowded as plaintiff and her two friends testified that the alleged crowded condition on the platform did not restrict plaintiff's free movement or prevent them from finding a safe place to stand.
In opposition, plaintiff submits a copy of the incident report filled out by Mr. Magaliff. The incident report provides that "Woodside was overcrowded with temp. platforms. Pass was pushed into platform". Additionally, the report states "Pass was pushed into side of platform by other pass hitting face + mouth into platform. Passengers at Woodside were trying to board an overcrowded train".
Keith Spadaro, plaintiff's father, also submits an affidavit dated February 1, 2018. He affirms that Mr. Magaliff told him that he needed more people at Woodside, it was way too crowded, that the situation was unsafe, and that he knew something like this was going to happened.
Plaintiff's counsel contends that triable issues of fact exist including, inter alia, whether LIRR was negligent due to overcrowding and lack of warnings, lack of employees, whether the train operator and conductors were negligent, and whether the LIRR had prior notice.
A movant for summary judgment must make a prima facie showing of entitlement by demonstrating that there are no material issues of fact (see Alvarez v. Prospect Hosp. , 68 NY2d 320 [1986] ). Once the movant satisfies this burden, then the burden shifts to the opposing party to present evidence in admissible form raising a triable issue of material fact (see Zuckerman v. City of NY , 49 NY2d 557 [1980] ). All reasonable inferences will be drawn in favor of the non-moving party (see Dauman Displays v. Masturzo , 168 AD2d 204 [1st Dept. 1990] ). "Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied" ( Daliendo v. Johnson , 147 AD2d 312, 317 [2d Dept. 1989] ).
"Courts have long recognized that the duty of care imposed on a common carrier with respect to its passengers requires not only that it keep the transportation vehicle safe, but also that it maintain a safe means of ingress and egress for the use of its passengers" ( Bingham v. New York City Tr. Auth. , 8 NY3d 176, 180 [2d Dept. 2007] ; see Dalton v. City of New York , 283 AD 1104 [2d Dept. 1954] [finding that it cannot be said, as a matter of law, that defendant took reasonable precautions to avoid plaintiff being pushed into pushing crowed while attempting to board a train] ). Additionally, "where it is anticipated, or in the exercise of reasonable foresight it ought to have been foreseen, that conditions of crowding will be so excessive as to deprive a passenger of control of free physical action and which would sweep him to a place of danger, measures reasonably appropriate to the danger ought to be taken, or if neglected, the usual risk of liability incurred" ( Callaghan v. City of New York , 283 AD 388, 391 [1st Dept. 1954] ).
Viewing the evidence in the light most favorable to the nonmoving party, this Court finds that triable issues of fact exist which preclude summary judgment. Here, Mr. Magaliff testified that after Mets games, there were large crowd. He also testified that it looked as if plaintiff was stampeded into a temporary bridge. Additionally, the Arne Form, filled out by Mr. Magaliff, noted that Woodside's platform was overcrowded. Plaintiff testified that she was pushed from behind by the crowd. She did not see any railroad employees, guards or anyone trying to keep the crowds safe. She further testified that as she continued to walk, there was less freedom of a movement. Plaintiff's friends testified that they were shoved and a handful of people bumped into them. Ms. Cracovaner testified that everyone was running and if she would have stopped, she would have been in the same situation as plaintiff. Accordingly, triable issues of fact exist, including, but not limited to, whether plaintiff's freedom of movement was restricted due to the alleged overcrowded condition, whether the LIRR had notice that there would have been a large crowd on the night of the incident, whether the platform was overcrowded, whether some precautions were taken to avert the incident, and whether the LIRR provided a reasonably safe means of boarding the train (see Rotz v. City of New York , 143 AD2d 301 [1st Dept. 1988] [finding that a jury could reasonably find that the risk of a stampede could have been averted, or its consequences contained, by adequate crowd-control measures]; Petruzzi v. New York Mercantile Exchange, Inc. , 10 Misc 3d 132[A][App. Term 1st Dept. 2005] ). Additionally, intervening acts of third persons are usually a question for the jury whether the intervening act was foreseeable (see Derdiarian v. Felix Contr. Corp. , 51 NY2d 308 [1980] ; Marenghi v. New York City Tr. Auth. , 151 AD2d 272 [1st Dept. 1989] ).
Accordingly, and for the reasons stated above, it is hereby,
ORDERED, that defendant LONG ISLAND RAILROAD's motion for summary judgment is denied.