Home MTA Politics Does the MTA have a liability problem?

Does the MTA have a liability problem?

by Benjamin Kabak

The 1991 derailment north of Union Square led to justify lawsuits but not all accidents are as cut-and-dry as that one.

Every now and then, accidents involving the MTA make their ways into the news. Last week, we heard the horrific tale of a man crushed by the platform extenders at Union Square, and over the weekend, a disabled man lost control of his wheelchair and ended up in the tracks. Earlier this year, the MTA lost a $7 million judgment in a case in which the jury found a bus driver at fault in an collision with another vehicle. Eventually, the legal bills mount up.

In his column in the Daily News yesterday, Pete Donohue highlights the MTA’s liability gap. He found that, in many cases, the authority is losing to plaintiffs who were at fault. The piece leads with the story of one Dustin Dibble who fell onto the tracks while “drunk as a skunk,” lost his leg to a train car and won a $2.3 million judgment against the MTA. While plaintiff’s attorneys who are willing to take on these cases may carry some of the blame, Donohue highlights how open-ended liability costs the cash-strapped authority. He writes:

There’s no shortage of culprits behind the Metropolitan Transportation Authority’s constant cash crisis, which translates into fare hikes, service cuts and dirtier stations for riders. And somewhere on that list are boneheads who have no one but themselves to blame for being in the path of a subway train – as well as their opportunistic lawyers.

The state Legislature also deserves mention. The MTA has asked for a law clearly stating the obvious: Someone on the tracks because of their own recklessness shouldn’t be able to sue when a motorman doesn’t manage to stop a 400-ton train in time. The Legislature has failed to act. So, the lawsuits keep coming.

In one recent case, a 30-year-old man riding a bicycle on a subway platform crashed into a column and careened to the tracks, where he was struck. In another, a vandal filed a lawsuit after getting hit in a tunnel; he was trespassing to spray-paint graffiti. While the MTA wins a majority of such cases, it can take years of motions and appeals, all of which take money and effort better spent elsewhere. When it loses, the payouts are big – millions of dollars because of the severe nature of injuries.

Donohue sums up the morality behind Dibble’s case. The now-26-year-old deserves “sympathy – but not a seven-figure payday at riders’ expense,” and it sounds as though the state courts agree. The Appellate Division tossed out the $2.3 million award earlier this summer, calling it “utterly irrational.” The law firm of Smiley and Smiley plans to appeal, and the MTA’s legal bills will mount.

But how big of a problem is it? Earlier this year, the MTA released some statistics concerning its legal cases. In 2009, those injured filed 2720 claims against Transit, and only 216 of those went to trial. The agency won 65 percent of those trials, and since 2005, the agency has a similar percentage of the 870 cases to go to trial. Still, NYC Transit paid out $244.8 million in injury claims from 2005-2009 or close to $50 million annually. The bills mount up.

Tort law and personal injury law certainly has its place underground, and riders need protection from the MTA’s potential negligence. But at some point, straphangers have to take personal responsibility. While a jury may find a graffiti artists who wandered into the tracks to tag an abandoned tunnel contributorily negligent, the MTA can’t operate efficiently if it expects to find people illegally in its tunnels. The state should indeed grant the authority this protection. After all, more riders would benefit from the cost savings generated by looser liability standards than would suffer the consequences of their careless acts.

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Peter December 21, 2010 - 3:31 am

I would presume, that just as in the case of New York only recently allowing no-fault divorces, the reason this goes on, is because a lot of the legislators are trial lawyers.

Exhibit A is Assembly Leader Silver, who is of counsel at Weitz & Luxenberg, but refuses to disclose his clients, or how much compensation he gets from the firm.

About fifteen years ago, I was the foreman of a jury on a civil trial for a guy who while in the process of fleeing from mugging a lady at the Canal Street station, ran into the tunnel and was struck by a train.

He lost his foot (and in fact got a replacement in prison). He was a minor at the time of the incident, his mother originally bringing the suit.

He took the stand too, and though he walked with a limp, cross-examination revealed that losing a limb did not exactly turn him into an altar-boy. I write about the case here.

Nesta December 21, 2010 - 8:39 am

One problem is that the MTA employs a small army of lawyers throughout the different agencies yet they use outside counsel constantly while the inhouse guys do the same as the hundreds of useless managers do and that is do nothing!

Al D December 21, 2010 - 9:03 am

Wait a second. What happened to this guy at Union Sq? It’s less than entirely clear. I googled the pics and rad the Post article, but it doesn’t say how he got from standing on the train to beween the moving platform and the train. I’ve pass through Union Sq very often, and just don’t see how this happened. the moving platform wedges against the train BEFORE the cars doors open.

Andrew December 21, 2010 - 8:49 pm

Dion was standing on the platform. The train pulled into the station. He fell between the gap filler and the train. The gap filler deployed and crushed him.

(At least that’s my presumption – it’s the only sequence of events that makes sense to me.)

Eric F. December 21, 2010 - 9:20 am

Great post. Here’s a story about sucking $7 million out of the PATH system due to a person falling and breaking her elbow. How many PATH fares does it take to raise $7.2 million?


You have a tort system which (1) entertains any claim anyone asserts; (2) inflicts no real cost on plaintiffs who bring frivilous suits; (3) empanels juries that are highly sympathetic to plaintiffs aginst any perceived “deep pocket”; and (4) awards damages out of proportion to losses suffered.

Per haps the most absurd recent suit was the one where the PA, a victim of the first WTC attack (the truck bomb), has to pay out money to people injured in the attack. This tort system maw, and associated lawyer costs and insurance costs, sucks in a lot of funds that could be used to actually build and run a nice transit system.

AK December 21, 2010 - 9:53 am

To play devil’s advocate (and laywer), I disagree with the implication that because “more riders would benefit from the cost savings generated by looser liability standards than would suffer the consequences of their careless acts,” that somehow looser standards are justified. Indeed, the same arguments are put forth to eliminate tort claims involving medical malpractice, construction accidents, consumer protection, etc. I don’t think that the mere assertion of cost savings is anywhere near enough to loosen standards that promote careful attention to one’s craft. We always hear about the wild cases where individuals were seemingly at fault for their own injuries (one wonders, of course, if that conclusion is so self-evident to us after reading a 500-word piece in the Post why it wasn’t to a jury of our peers), whereas we are far less likely to hear about individuals injured because a worker accidently (but negligently) dropped a hammer, sped into a station, etc.

Eric F. December 21, 2010 - 10:17 am

I think jury decisons are motivated by the current ethos that every bad outcome occurs become some big company/agency/entity is at fault. I think 50 years ago, somone would slip and fall and suffer a bad consequence and the average perosn would think that accidents happen, and bad luck happens and there isn’t anything anyone can do about it, no “blame” to be apportioned. Now, the view seems to be that a person was injured, well that’s all the proof needed that some entity with millions to spare should have done something to ensure that the incident never occured. There is no notion of bad luck, but rather that every bad outcome is traceable to the avoidable action or omission of some entity with millions in the bank.

Simple legislation codifying the idea that a person’s presence on train tracks amounts to such person’s assumption of all risks associated with being there would seem like overkill if we lived under a rational legal system. But in a legal system devoid of common sense, it’s a useful corrective.

AK December 21, 2010 - 11:07 am

I respectfully disagree with your position. I think it is a sign of a civil society when a community doesn’t saddle the individual who faces “bad luck”, either by birth, accident, or mistake, with the costs of that error. Indeed, to get philosophical on this, Rawls’ “Veil of Ignorance” would dictate that we cannot know whether bad luck will befall us (or someone close to us) and that, were the positions reversed, we would seek redress in the courts or community institutions more generally. “Bad luck happens and there isn’t anything anyone can do about it” simply isn’t good enough. We can do something about it. We can compensate people for injuries, aid their rehabilitation, and otherwise promote their reintegration as full members of society.

The Americans with Disabilities Act embodies this principle. As a friend of mine put it, “The architecture of our social world often has the unintended effect of excluding disabled people from participating on an equal basis. The great promise of the ADA is to try to reshape the architecture of that world, in such a way that it no longer excludes the disabled from social life (or, at least, to minimize that exclusion). The idea behind the ADA is to reshape the physical environment by making it more accessible, so that disability is no longer experienced as disabling.”

We no longer think that “bad luck” should prevent an individual from enjoying the full blessings of liberty– indeed, we are willing to devote billions of dollars in ADA compliance costs to ensure this fact. Similarly, juries are wholly capable of deciding whether an individual is contributorily negligent, and the results of jury trials in these cases indicate that the position that “bad luck” is “tough luck” is rejected by the vast majority of the community.

Eric F. December 21, 2010 - 11:25 am

I don’t see the connection between facilitating handicap access to the subway system with diverting $7.2 million out of operations, capital expenditures and maintenance to give to somebody who slips and falls on a path traversed without incident by the other 10,000 people using the station on a given day. At any rate, your view of all injuries morphing into mega-millions tort lottery tickets split 60-40 with a contingency fee lawyer is the law of the land, so you should be thrilled with the status quo.

AK December 21, 2010 - 2:33 pm

I’m not sure any of us would trade health/disability for one of these “mega-millions tort lottery tickets,” but yes, you are right that I believe the status quo is acceptable and that the MTA has much bigger issues more salient to its mission to concentrate on.

pete December 24, 2010 - 11:50 am

The MTA is self insured ( “First Mutual Transportation Assurance Company” ). All wins against the MTA come out of the operating budget.

Andrew December 21, 2010 - 8:53 pm

According to that reasoning, how is the MTA the appropriate source of rehabilitative funds?

Chris December 21, 2010 - 3:19 pm

I guess my view is that expecting train drivers to be on the lookout for people deliberately putting themselves into harm’s way does not reflect “careful attention to one’s craft”, but a distraction from their craft.

The MTA’s requested language might be an overreach, but a basic interpretation that anyone deliberately entering the track bears entire responsibility for the resulting consequences, even in the presence of errors on the part of the MTA, would seem both useful and fair, any would apply to situations like the last one in the linked article, where someone decided to take a stroll on the tracks and was, unsurprisingly, hit by a train. Falling into the track from the platform is one thing, walking around between stations is another – why would we as a society plausibly expect the MTA to be responsible for that?

AK December 21, 2010 - 3:36 pm

Because we want to incentivize MTA employees to constantly be on guard when performing their job. There are tons of people on the tracks legally for various reasons at all hours of the day– certainly we believe that part of the conductor’s job is to carefully travel down the tracks without mowing any of these people down. The fact that something should not occur in the regular course of business (i.e. someone illegally entering the tracks) should not insulate MTA from negligent behavior, in part because illegal entry is wholly FORESEEABLE. This word carries a significant amount of weight in negligence suits at tort law and we could go on at length about what it means. Suffice it to say, the law recognizes that certain things are foreseeable, and thus, we have duties to avoid the ills of said conduct. The classic example of this is the “attractive nuisance” doctrine, whereby property owners are required to take a reasonable level of care to avoid foreseeable injury to children who will, because of something “attractive” (often a shiny climbable object), will foreseeably trespass onto that individual’s property. While the property owner generally would have NO duty of care toward a trespasser, we have an exception for this scenario.

These types of exceptions aren’t limited to children. Indeed, everyone in NYC knows that drunk people occasionally (frequently?) are on subway platforms. As a result, it is wholly foreseeable that in a City of 8 million, people will fall onto the tracks with some frequency. The fact that it results from their own negligence affects the ultimate reward (i.e. the % of fault), but does not insulate the actor who should have foreseen the possibility.

Good stuff.

Andrew December 21, 2010 - 9:09 pm

That’s patently false. Once the train operator (not the conductor – the conductor operates the doors from the middle of the train) sees someone on the tracks, it is usually far too late too stop. That’s why the subway has a signal system: stopping distances often exceed the train operator’s field of vision.

The people who are on the tracks legally have been trained in how to safely walk the tracks. They are protected by flaggers, who warn the train operator in advance to slow down to 10 mph and prepare to stop.

Are you proposing that trains never exceed 10 mph? (Do you realize what effect that would have on the system?)

AK December 22, 2010 - 8:59 am

No, I am not. What I am saying is that negligence matters. I’m not sure how else to put it. Going 10 mph isn’t a reasonable solution, but blowing through the tunnels with no eyes on the road so-to-speak is unacceptable, and that is the risk of a complete insulation from liability (same holds for the med mal context and others).

Andrew December 22, 2010 - 9:42 pm

Trains don’t stop on a dime. At typical subway speeds, by the time the train operator sees somebody on the track, even assuming a reaction time of zero, the train will not stop in time. As I explained, that’s why there’s a signal system.

If you consider that negligent, then, to avoid negligence, NYCT has to slow down the trains. A lot. Which means much slower service. And much greater operating costs, as far more trains and train crews will be needed to accommodate the riders.

Do you also object to the exposed third rail?

pete December 24, 2010 - 11:52 am

Its time to fill the subways back with dirt to reduce liability.

Eric F. December 21, 2010 - 5:14 pm

“Because we want to incentivize MTA employees to constantly be on guard when performing their job.”

We might also wish to incentivize people not to wander onto tracks where they are not supposed to be and to watch their step when wlaking through the system. Dangling multi-million dollar payouts in front of the public and the tort bar does not assist in this effort. Further the amounts handed over come out of the fare-payers’ hide, not “the MTA” which is not a person with a chest of gold buried in his yard, but rather an instrumentality of the gov’t that can only get a dollar by extracting it from the public.

A law requiring people to assume their own slip and fall risks and track trespass risks would be a great boon to the MTA. As would a simple tort law that states if a party is more than 50% liable, it bears the costs of its injuries. That way if drunk guy is fouind 90% liable, he bears all costs. The way things work in NY now if drunk guy is 90% liable and MTA is found 10% liable, the jury assesses $100 mm in damages and forces the MTA to fork over $10 million. What a country.

AK December 22, 2010 - 9:05 am

I think we’ll just have to agree to disagree on just about everything having to do with tort law. I think the NY “pure” comparative negligence system has some real benefits vis-a-vis the modified system and people already have massive incentives not to wander on the tracks and be careful on the platforms: threat of death or severe injury.

You also keep implying that people long for these huge payouts from MTA, but the best evidence against that position is that practically no one would choose being maimed + millions of dollars over remaining healthy and having no money.

And I know that the payouts ultimately come from us– that was my entire point in the first place– that the community at large (taxpayers) in a civil society try, to the extent feasible, to make up for “bad luck” caused by birth, mistake, or accident, whether by ponying up money for an individual’s medical bills/emotional anguish or subsidizing schools in poor neighborhoods (we haven’t done as good a job in the latter context, but you get my point).

Andrew December 22, 2010 - 9:44 pm

But it isn’t taxpayers at large who pay. It’s transit riders specifically.

Appeals court dismisses $1.8M bus accident award :: Second Ave. Sagas March 10, 2011 - 11:31 am

[…] accident involving a passenger and the gap fillers at Union Square, I wondered if the authority needed some tort protection. After all, does it make sense for the taxpayers to subsidize excessive jury awards when oftentimes […]


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