Train's conductor too quick to close doors, rider claimed
|Subway Accident, Government - Municipalities|
|Ophelia Johnson v. The NYCTA, No. 7582/99|
|Bronx Supreme, NY|
- Lucille M. Barbato; Spiegel & Barbato; Bronx, NY, for Ophelia Johnson
- Daryl L. Parker; Armienti, DeBellis, Guglielmo & Rhoden, LLP; New York, NY, for New York City Transit Authority
On May 20, 1998, plaintiff Ophelia Johnson, 35, an officer of the New York City Police Department's transit division, was inspecting a subway train that was stopped in a station that was located beneath 143rd Street, in Manhattan. She claimed that the train's doors closed while she was standing in the entrance of the train's last car, with one foot on the station's platform. She contended that she sustained an injury of her neck while she was freeing herself.
Johnson sued the New York City Transit Authority. She alleged that the train's conductor was negligent in his operation of the train's doors. She further alleged that the New York City Transit Authority was vicariously liable for the conductor's actions.
Johnson claimed that the conductor knew that she occupied a doorway, but that he nevertheless closed the doors.
Defense counsel contended that the incident did not occur in the manner that Johnson described. Defense counsel claimed that there was no evidence of negligence, that the incident was not witnessed, that the conductor was not aware that an accident had occurred, that two police officers who were in the station at the time of the incident did not report an accident and that the New York City Transit Authority did not learn of Johnson's claims until litigation was initiated.
On May 16, 2007, a jury found that the New York City Transit Authority was liable for the accident. It awarded damages of $2.4 million. Defense counsel appealed, and the appellate division, First Department, reversed. The First Department found that Judge Howard Sherman erred by not permitting the jury to consider comparative negligence. The matter was remanded for a retrial that addressed the issue of comparative negligence.
During the retrial, Johnson claimed that the train's doors closed suddenly, without warning, and that she could not have reacted quickly enough to avoid the doors. She also claimed that she did not hear any announcement warning that the doors would be closed. She further claimed that the conductor acknowledged that he was aware that Johnson was searching the train.
Defense counsel maintained that Johnson could have avoided the doors. He contended that she could have retreated into the train and summoned the conductor after the doors had closed.
Damages were not addressed during the retrial.
Johnson was transported to Jacobi Medical Center, in the Bronx. She underwent minor treatment.
Johnson ultimately claimed that she sustained a herniation of her C5-6 intervertebral disc, with impingement of the C6 nerve root. She initially underwent about two years of physical therapy, but her injury ultimately necessitated performance of anterior cervical fusion and the application of an iliac crest bone graft. Following the surgery, Johnson had to wear a hard neck brace and was confined to her home while her injuries healed. She then spent about two months in a soft collar. It was subsequently discovered that the graft had slipped, so Johnson had to be placed back in the hard neck brace. Johnson claimed that she suffers permanent nerve damage.
Johnson initially missed about seven days of work, and her subsequent work duties were intermittently restricted. After the surgery, she missed about 12 months of work. After her return, she was put on permanent restricted duty. In 2002, she was declared permanently disabled, and she was forced to retire.
Johnson's medical expenses and lost wages were reimbursed by her employer. She sought recovery of a total of $1.9 million for her past and future lost wages. She also sought recovery of a total of $1.9 million for her past and future pain and suffering.
Defense counsel contended that Johnson's injuries stemmed from a degenerative condition that predated the accident. Defense counsel noted that Johnson did not seek medical attention at the scene of the alleged accident and that she instead climbed a stairway and entered a patrol car, which transported her to a hospital.
Defense counsel also contended that Johnson merely suffered cervical degeneration--not a herniation. Defense counsel noted that Johnson did not undergo surgery until about two years after the accident, and the defense presented a letter that Johnson's doctor sent to Johnson's employer, stating his original opinion that Johnson suffered degenerative disease of the cervical vertebrae.
The defense's medical experts opined that Johnson's 1998 post-accident MRI scans merely revealed bulges of cervical discs. They opined that the bulges were a product of degeneration. In response, Johnson's expert spinal surgeon opined that the 1998 scans were of poor quality. He contended that Johnson's medical history and the results of subsequent MRI scans indicated that the accident produced a disc herniation.
During the retrial, the jury found that the New York City Transit Authority was 97 percent liable for the accident. Johnson was assigned 3 percent of the liability. Thus, the original award was reduced by 3 percent, to $2,328,000.
$500,000 Personal Injury: Past Lost Earnings Capability
$1,200,000 Personal Injury: FutureLostEarningsCapability
$200,000 Personal Injury: Past Pain And Suffering
$500,000 Personal Injury: Future Pain And Suffering
Judge Faviola Soto denied defense counsel's motion for a new trial.
This report is based on information that was provided by plaintiff's counsel. Defense counsel did not respond to the reporter's phone calls.