Nearly three years ago, Dustin Dibble, then 22, fell onto the tracks at Union Square and was run over by an N train. He was so severely injured that one of his legs had to be amputated below the calf, and of course, he sued New York City Transit.
Last week, he won his case, and the financially beleaguered transit agency is now on the hook for $2.3 million. There is, of course, a catch: Dibble was so drunk at the time of his accident that he wound But iup in the tracks because he passed out and fell there. He doesn’t remember ending up on the tracks, and his blood alcohol content was 1.8 or twice the legal limit for drivers in New York. Somehow, though, the jury found him just 35 percent responsible for his accident, and he’ll walk away, for now, with a $2.3 million judgment.
On the surface, it’s rather easy to be outraged about this. Chris Rovzar, writing at NYMag.com’s Daily Intel blog, is fairly outraged by this development. Others have called this a prime example of the need for tort reform, and most are just dismayed that the MTA — and thus taxpayers — are going to have to pay $2.3 million to some guy who was too drunk to stand and fell onto the train tracks at 1:50 a.m. one night.
The lawyer for the case, meanwhile, picked on the testimony of the man driving the train. From The Post story about the case:
Train operator Michael Moore, a longtime MTA vet with a sparkling record, said in a deposition, “I saw what I thought was garbage on the track” and continued into the station.
Moore, who suffered a fatal stroke before the case went to trial, also said in his deposition, “I saw movement and I put the train into emergency” – meaning he hit the emergency brake.
[Dibble’s lawyer Andrew] Smiley said Moore had testified at the deposition that he couldn’t “stop every time he sees garbage,” because “there’s garbage all over the place,” but NYC Transit rules call for the motorman to stop the train if there’s a mass on the tracks.
That’s a mess of a case, and as a law student, I can certainly appreciate it. Per New York City Transit laws, it seems as though Moore was negligent in operating his train. However, industry custom dictates that it would be impossible for train operators to break every time they see a “mass on the tracks,” as The Post puts it. Meanwhile, once Moore saw movement, he tried to do all he could to stop the train.
So who wins and who loses? Well, the taxpayers don’t win. That’s for sure. While NYC Transit is sure to appeal, on the legality of it all, it seems as though Dibble may have a strong case, but I have to wonder if a man too drunk to sit down or stand up on a train platform is really just 35 percent responsible for his actions? At some point, we have to take responsibility for how we are, and being too drunk to function shouldn’t excuse falling onto the subway tracks and into the path of an oncoming train.
8 comments
I’m surprised that, as a fledgling attorney, you did not parse or explain the verdict correctly. Allow me (as a proud personal injury attorney) to explain:
1. If the verdict was 2.3 million and the jury finds the plaintiff to be 36% responsible for the happening of the accident, then the verdict is reduced by that amount. That happens as a matter of law.
2. The plaintiff’s bar will tell you that the judge has the often exercised right to reduce the verdict and the appellate division has the right to do so, too. They (both parts) regularly, frequently and without rhyme and/or discernible reason reduce verdicts.
3. Transit will appeal. There is no question about it and will not agree to a lower number instead of an appeal.
4. Transit is considered (by many on both sides of the litigation fence, I mean plaintiffs and codefendants) to be a particular nasty, difficult and quite often lying defendant to litigate against with documents hidden or denied, surprise witnesses sprung at the last second and other things.
5. NY County is not plaintiff friendly. Guy Smiley must have put in a hell of a case to get a jury to agree with him.
To respond to point 1: I wasn’t clear in the post. I understand how shared liability works. The verdict was actually $3.5 million, reduced by 35 percent to $2.3 million. Still, I find it tough to believe that this guy shouldn’t be found at least 50 percent responsible.
Cue an unfunded mandate for the MTA to install screen doors in all stations in 3, 2, 1….
I think the most outrageous thing is that there are no comparable cases for pedestrians hit by cars. There is a pedestrian killed or injured in NYC every few days, sometimes by school buses or other vehicles with an institutional owner who can be easily sued. These cases would also fall under the negligence category, but I have yet to see any kind of civil or criminal case.
Boris – serious cases happen regularly. You just don’t hear about them. What distinguishes this case is that it is Transit which makes it appear that it is coming out of our pockets personally.
While part of agrees with you that would justify this verdict:
http://gothamist.com/2009/01/0.....runk_p.php
since she was drunk and “being too drunk to function shouldn’t excuse”
I can’t do that but IMO these verdicts should have been reversed (no judgment for drunk guy, thrown the book at the hit and run driver).
America: Land of frivolous lawsuits.
[…] the headlines. In February, for instance, the MTA came out on the wrong end of a case when a jury awarded $2.3 million to a man who lost a leg after falling onto the tracks with a BAC twice the legal limit. In April, a […]