Opinion
9675 Index 102676/10
06-20-2019
Cheryl STEPHNEY, Plaintiff–Respondent, v. MTA METRO–NORTH RAILROAD, Defendant–Appellant.
Krez & Flores, LLP, New York (William J. Blumenschein of counsel), for appellant. The Wilder Law Firm, P.C., New York (Nick Wilder of counsel), for respondent.
Krez & Flores, LLP, New York (William J. Blumenschein of counsel), for appellant.
The Wilder Law Firm, P.C., New York (Nick Wilder of counsel), for respondent.
Friedman, J.P., Richter, Kahn, Singh, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered September 19, 2018, which denied defendant MTA Metro–North Railroad's motion for summary judgment dismissing plaintiff's sole claim under the Federal Employee Liability Act, unanimously affirmed, without costs.
On the evening of March 13, 2007, plaintiff Cheryl Stephney was working as an assistant conductor on Metro–North's New Haven Line, when she was physically attacked by a passenger while seeking to collect her fare.
The Federal Employers' Liability Act (FELA) ( 45 USC § 51 et seq. ) provides that operators of interstate railroads shall be liable to their employees for on-the-job injuries resulting from the railroad's negligence. In an action under FELA, "the plaintiff must prove the traditional common-law elements of negligence: duty, breach, damages, causation and foreseeability" ( Hyatt v. Metro–North Commuter R.R., 16 A.D.3d 218, 218, 792 N.Y.S.2d 391 [1st Dept. 2005] ). However, these elements are "substantially relaxed" and "negligence is liberally construed to effectuate the statute's broadly remedial intended function" ( id. at 218–219, 792 N.Y.S.2d 391 ; see also Foster v. Port Auth. of N.Y. & N.J., 154 A.D.3d 543, 544, 61 N.Y.S.3d 894 [1st Dept. 2017] ). A claim under FELA "must be determined by the jury if there is any question as to whether employer negligence played a part, however small, in producing plaintiff's injury" ( Hairston v. Metro–North Commuter R.R., 2 A.D.3d 127, 128, 768 N.Y.S.2d 453 [1st Dept. 2003] ). "A case is deemed unworthy of submission to a jury only if evidence of negligence is so thin that on a judicial appraisal, the only conclusion that could be drawn is that negligence by the employer could have played no part in an employee's injury" ( Pidgeon v. Metro–North Commuter R.R., 248 A.D.2d 318, 319, 670 N.Y.S.2d 833 [1st Dept. 1998] ).
To establish the element of foreseeability, a plaintiff must show that the defendant had either actual or constructive notice of the defective condition ( id. ). However, notice generally presents an issue of fact for the jury ( Hyatt, 16 A.D.3d at 219, 792 N.Y.S.2d 391 ). "As with all issues under FELA, the right of the jury to pass on this issue must be liberally construed, with the jury's power to draw inferences greater than in a common-law action" ( id. ).
Under the foregoing relaxed standard, there is sufficient evidence to raise an issue of fact concerning defendant's actual or constructive notice of a risk of assault to conductors on the New Haven Line. Plaintiff testified that she was previously assaulted by a passenger, and that there was an ongoing problem of physical intimidation by large groups of adolescents refusing to pay their fares, which caused her to fear for her safety. Plaintiff also testified that she has called the MTA's rail traffic controllers for police assistance at least 250 times to deal with abusive passengers; another conductor was punched in the face and knocked out on the New Haven Line; a passenger attempted to stab and rob another conductor on the Harlem Line. Based on plaintiff's testimony, summary judgment dismissing the complaint was properly denied (see Hairston, 2 A.D.3d at 128, 768 N.Y.S.2d 453 ; Ingrassia v. Metro–North Commuter R.R., 235 A.D.2d 350, 653 N.Y.S.2d 9 [1st Dept. 1997] ; cf. Okeke v. Long Is. R.R. Co., 2004 WL 2088513, *1 [S.D N.Y. Sept. 20, 2004] ).