| Williams v New York City Tr. Auth. |
| 2013 NY Slip Op 04975 [108 AD3d 403] |
| July 2, 2013 |
| Appellate Division, First Department |
| Claude Williams, Respondent, v New York CityTransit Authority et al., Appellants. |
—[*1] Arnold E. DiJoseph, New York, for respondent.
Judgment, Supreme Court, New York County (Arthur F. Engoron, J.), enteredSeptember 20, 2012, which, insofar as appealed from as limited by the briefs, upon a jurytrial on liability, apportioned 40% liability to defendants, reversed, on the law, withoutcosts, the judgment vacated, and the matter remanded for a new trial on liability.
Defendants appeal from a judgment entered upon a jury verdict returned at the retrialof this action. Plaintiff is alleged to have sustained personal injury when he stepped off acurb and came into contact with a bus operated by defendant Transit Authority anddriven by defendant Cindy Hooper. Upon reversing the prior judgment, this Court notedthat plaintiff's theory of the case, as supported by testimony given by independentwitnesses, was that he "was hit immediately after he stepped off the sidewalk and into thepath of the bus . . . without looking" and while well outside the crosswalk(82 AD3d 448, 449 [1st Dept 2011]). We noted, "The jury could not rationally havefound fault on the part of the bus driver unless it accepted plaintiff's theory that the buswas traveling 'too close' to the curb as it approached the bus stop" (id. at 448).However, because defendant had failed to object to the admission of unsubstantiatedtestimony supporting this theory, reversal was predicated on the improper provision of aNoseworthy instruction (Noseworthy v City of New York, 298 NY 76[1948]) and the jury's irrational finding that plaintiff was free of comparative negligence.
Our prior observation followed this Court's decision in Splain v New York CityTr. Auth. (180 AD2d 454 [1st Dept 1992], lv denied 80 NY2d 759 [1992]),the facts of which do not differ in material respects. There, the plaintiff, standing at thecurb, suddenly stepped off, "almost instantly colliding with the side of a TransitAuthority bus traveling at a speed of from 10 to 15 miles per hour" (id. at 454).We concluded that no actionable negligence was demonstrated (citing Rucker v FifthAve. Coach Lines, 15 NY2d 516 [1964], remittitur amended 15 NY2d 852[1965], cert denied 382 US 815 [1965]).
At the retrial of the instant matter, plaintiff again posited that Hooper was operatingher vehicle too close to the curb. In support of this contention, he was permitted to offer,over defendants' objection, the videotaped testimony of William Careccia, a retiredTransit Authority superintendent and supervisor, who investigated the accident. Thoughnot qualified as an expert, Careccia offered conclusions and opinions based on both hiscommon sense and Transit [*2]Authority operatingcriteria, which he conceded "are much higher than anyone else's, so I would look at theaccident by our standards a lot different from anyone else."
The admission of testimony that holds a defendant to a higher standard of care thanrequired by common law is clearly erroneous (see Crosland v New York City Tr.Auth., 68 NY2d 165, 168-169 [1986]; Montes v New York City Tr. Auth., 46 AD3d 121,123-124 [1st Dept 2007]; Karoon v New York City Tr. Auth., 286 AD2d 648,649 [1st Dept 2001]). Moreover, the admitted testimony cannot be considered harmlesserror because it concerns the ultimate issue to be decided and corroborates unsupportedtheories of liability proffered by plaintiff's expert, thereby lending them an unwarrantedair of authority. It is well settled that "the duty owed by one member of society to anotheris a legal issue for the courts" (Eiseman v State of New York, 70 NY2d 175, 187[1987]). Only after the extent of a duty has been established as a matter of law may a juryresolve—as a question of fact—whether a particular defendant has breachedthat duty with respect to a particular plaintiff (Kimmell v Schaefer, 89 NY2d257, 263 [1996]). As this Court has noted numerous times, "Where the offered proofintrudes upon the exclusive prerogative of the court to render a ruling on a legal issue,the attempt by a plaintiff to arrogate to himself a judicial function under the guise ofexpert testimony will be rejected" (Singh v Kolcaj Realty Corp., 283 AD2d 350,351 [1st Dept 2001]; see alsoChunhye Kang-Kim v City of New York, 29 AD3d 57, 60 [1st Dept 2006]).Concur—Tom, J.P., Andrias and Renwick, JJ.
DeGrasse, J., dissents in a memorandum as follows: The case involves an accident inwhich plaintiff, a pedestrian, was struck by a New York City Transit Authority bus. On aprior appeal, we reversed a judgment in favor of plaintiff and ordered a new trial ongrounds that included our determination that the jury's finding of no comparativenegligence was "irrational" (82 AD3d 448, 453 [1st Dept 2011]).
A critical issue at the instant trial was whether the bus operator was driving too closeto the curb line. According to defendants, the accident happened when the bus was twofeet, seven inches away from the curb. Citing Crosland v New York City Tr.Auth. (68 NY2d 165 [1986]), Montes v New York City Tr. Auth. (46 AD3d 121 [1stDept 2007]) and Karoon v New York City Tr. Auth. (286 AD2d 648 [1st Dept2001]), the majority bases its reversal of the judgment entered solely on the premise thatthe trial court improperly allowed a New York City Transit Authority (NYCTA)investigator to testify as to his conclusions and opinions which were based on NYCTA'soperating criteria which exceeded the common-law negligence standard of care.Crosland involved the application of a specific rule, "rule 85," which imposed aduty higher than that actually owed in the exercise of ordinary care (Crosland, 68NY2d at 168-169). Montes involved testimony of how the driver's operation ofthe vehicle in that case "measured up to the Transit Authority's internal rules andstandards" (Montes, 46 AD3d at 123). Similarly, Karoon involvedtestimony that was based on actual standards (Karoon, 286 AD2d at 649). Thiscase is readily distinguishable because, as defendants concede in their brief, theinvestigator testified that he was not aware of any Transit Authority rule that dealt with arecommended "safety cushion" [*3]between buses andcurb lines—a matter on which he and plaintiff's expert opined.[FN*]Therefore, the majority's premise is flawed as the jury heard no testimony about astandard of care that was higher than that imposed by common law. The argument thatdefendants actually make is that the investigator's "views were incompetent." This cannotbe equated with an argument that the investigator's testimony called for an impermissiblymore stringent standard of care.
I am not persuaded by the sole argument set forth in defendants' brief—thatplaintiff failed to prove negligence on the part of defendant driver or that suchnegligence proximately caused plaintiff's injuries. In order for a court to set aside averdict and direct a judgment as a matter of law there must be "no valid line of reasoningand permissible inferences which could possibly lead rational [persons] to the conclusionreached by the jury on the basis of the evidence presented at trial" (Cohen v HallmarkCards, 45 NY2d 493, 499 [1978]). I would affirm the judgment entered belowbecause defendants have not made the required showing.
Footnote *: Although not bindingfor purposes of this appeal, we determined on the last appeal that a finding of liability onthe safe-cushion theory then advanced by plaintiff's expert was supported by legallysufficient evidence (82 AD3d at 455). In contrast to the majority's conclusion today, wedid not find on the last appeal that the safe cushion theory involved a duty higher thanthat imposed by common law.