Practice point: Public Authorities Law § 1212(3) imposes liability upon the Transit
Authority for the negligence of its employees in the operation of the
subway system. Although it is a common carrier, the Transit Authority is
held to a duty of ordinary care under the particular circumstances of
each case. In Crosland v New York City Tr. Auth., 68
NY2d 165 [1986], the Court of Appeals held that the Transit Authority
could be held liable for the negligent failure of its employees to
summon aid as they watched a gang of thugs fatally assault a passenger. "Watching someone being beaten from a vantage point
offering both safety and the means to summon help without danger is
within the narrow range of circumstances which could be found to be
actionable." id. at 170 [citation omitted]
Here, plaintiffs were police officers who were injured in a subway station
while a perpetrator struggled to resist their attempt to arrest him. The
arrest stemmed from a criminal act that was committed in the street in
plaintiffs' presence. The perpetrator fled and was chased by plaintiffs
into the subway station. Upon entering the station plaintiffs, who were
in plainclothes, displayed their shields and asked the station agent to call for backup support. At the time, the agent was inside a
locked token booth that was equipped with an Emergency Booth
Communication System (EBCS) that would
have enabled him to summon help by pressing a button or stepping on a
pedal. Both plaintiffs were injured when the perpetrator put up a fierce
and protracted struggle to resist arrest. The agent watched the struggle
from his token booth and did not activate the EBCS or make any other
attempt to summon help. Plaintiffs' theory was that the agent's failure to
call for help constituted negligence which was a proximate cause of
their injuries. The trial court granted the Transit Authority's motion
for judgment, finding that the agent was under no duty to call for any
assistance to plaintiffs. The Appellate Division reversed.
Student note: The broad definition of onlooker liability articulated by the Crosland Court
does not lend itself to any exception based upon an injured party's
status as a police officer. To be sure, General Obligations Law § 11-106
gives police officers as well as firefighters, who are injured in the
line of duty, a distinct right of action against tortfeasors that cause
such injuries. Here, plaintiffs' recovery was not barred by their
status as police officers and the Transit Authority's liability was
established at trial.
Case: Filippo v. New York City Tr. Auth., NY Slip Op03025 (1st Dept. 2013).
Here is the decision.
Monday's issue: Amending bills of particulars, and opposing summary judgment.
