Bus passenger claimed NYCTA driver ignored her after she fell
Jury Verdict: $1,500,000.00
Case: Betty v. New York City Transit Authority
Court: Bronx Supreme
Facts & Allegations
On the night of Oct. 25, 2008, plaintiff Betty, 44, a pediatrician, was aboard New York City Transit Authority bus, running Bronx-bound on the Q44 route when she allegedly fell to the floor of the main aisle as the bus took off suddenly, violently and without warning after picking up several new passengers including the plaintiff at the Archer Avenue and Sutphin Boulevard bus stop in the Jamaica section of Queens. Betty, who was standing at the time of the accident and claimed she lost her grip on the vertical pole she was holding when the bus violently lurched forward, was treated for a torn meniscus in her right knee following the accident. Betty sued the transit authority, alleging it was vicariously liable for the unidentified driver’s negligent operation of the bus.
It was raining outside on the evening in question. Betty claimed that after boarding the bus and paying her fare, she carefully proceeded toward an empty seat towards the front of the bus, taking care in the aisle as she walked forward to grasp with her right dominant hand the poles lining the main aisle. Betty contended that as the bus took off from the Archer and Sutphin bus stop, the bus driver — whom Betty subsequently identified as a Caucasian female — caused the bus to suddenly and violently accelerate at a high degree of speed, prompting Betty to be thrown to the floor. Betty claimed that she spent several minutes on the floor of the aisle, crying out in pain, but that the driver did nothing to render assistance. Ultimately, other passengers came to Betty’s aid, according to Betty, and helped her into a seat. A fellow passenger substantially corroborated Betty’s account of the events surrounding her accident at the time of trial.
Betty filed her suit in Bronx County. The defense moved to have venue transferred to Queens County, where the accident occurred, but plaintiff’s counsel argued that the plaintiff, her eyewitness, and the majority of the treating healthcare professionals were all located in the Bronx. Justice Larry Schachner denied the defense’s venue motion in May 2009. In pre-trial court papers, defense counsel argued that, to the extent any accident had occurred, Betty had herself been negligent in failing to exercise due caution while walking along the aisle, despite knowing that the floor of the bus would be slippery due to the rainy weather. Defense counsel also noted that the plaintiff’s eyewitness had described the bus driver as a Caucasian male with long hair.
At trial, defense counsel called to the stand a NYCTA driver who regularly operates a bus along the Q44 route in order to establish that the agency’s hybrid buses – including those that run on the Q44 route – are fitted with acceleration-smoothing devices. Plaintiff’s counsel objected to the introduction of such evidence on the ground that the defense had not timely noticed its intent to raise impossibility as an affirmative defense, but Justice Mitchell Danziger (who presided at trial) ruled that the jury would be permitted to hear evidence regarding the hybrid fleet’s acceleration-smoothing feature. Under questioning from defense counsel, the non-party bus driver then testified that the acceleration-smoothing device found in the transit authority’s hybrid buses prevents the buses from lurching forward violently, even if the driver has slammed his or her foot down on the gas pedal.
In cross-examining the bus-driver witness, plaintiff’s counsel called to the driver’s attention news reports written after the transit authority had been dispatching hybrid buses for a significant amount of time; the articles indicated that the transit authority had initially dispatched buses that lacked acceleration-smoothing devices, but started including that feature in its hybrids after complaints about acceleration-related jerking. The witness acknowledged that hybrids operating on the Q44 line at the time of Betty’s accident would not have been fitted with acceleration-smoothing mechanisms.
Betty claimed that she walked home and that it normally took her 2-3 minutes but that night it took her 40 minutes to get home, where she iced and elevated her injured right knee, and took over-the-counter pain medication. The next morning, with her knee still in pain, Betty went to a local emergency room, where X-rays showed effusion and swelling, but no fractures. Several days later, with Betty still allegedly experiencing pain in her right knee, an MRI revealed complex tears of the right lateral meniscus.
Betty treated with physical therapy on several occasions, but claimed those sessions exacerbated her symptoms. She then underwent arthroscopic surgery on the right knee in December 2008, then underwent several sessions of physical therapy each week for the next three months. Betty’s treating orthopedic surgeon – who the jury heard has previously served as a team physician for the New York Yankees – testified that Betty’s meniscal tears were causally related to the subject accident. The surgeon opined that Betty would likely need knee replacement surgery at some point in the future, and that the cost of the procedure and other future medical care would total roughly $227,000.
Between the date of the accident and the date of trial, Betty missed approximately three months from work in treating and recuperating from the injuries she allegedly sustained during the accident. The jury was told that Betty practices pediatric medicine at a public clinic in the South Bronx. Betty sought to claim that a knee replacement would necessitate roughly $65,000 in missed time from work, but Justice Danziger ruled that plaintiff’s counsel would not be permitted to request future wage-loss damages at trial because no such claim had been presented in the bill of particulars.
Betty claimed that her lasting pain makes it difficult for her to lead an active lifestyle and to care for her young son. Plaintiff’s counsel asked the jury to award Betty $1 million in damages for past pain and suffering, $2 million for future pain and suffering, and $30,000 for past lost earnings. A defense expert in orthopedic surgery did not actively dispute that Betty had suffered a meniscal tear during the accident, or that her subsequent arthroscopy had been necessary, but he did argue that Betty’s knee damage did not amount to an orthopedic disability. (Plaintiff’s counsel questioned the defense expert as to the facts that he had never examined the MRI films from Betty’s medical records and that he had himself not performed surgery in roughly eight years due to a long-term, back-related disability.)
The jury found that the bus driver had been 100 percent negligent with respect to Betty’s accident. Damages totaling $1.5 million were awarded (one-third of which was for past pain and suffering).