Koehler v. Metro. Transp. Auth.

ROBERT KOEHLER, Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY, Defendant.

No. 16-CV-00003 (AYS)

United States District Court, E.D. New York

August 17, 2021

OPINION & ORDER

Anne Y. Shields, United States Magistrate Judge

INTRODUCTION

On January 3, 2016, plaintiff Robert Koehler (“Plaintiff” or “Koehler”) commenced this action against defendant Metropolitan Transportation Authority (“Defendant” or the “MTA”) pursuant to the Federal Employers 'Liability Act (“FELA”), 45 U.S.C. § 5l, et seq. seeking, inter alia, damages for personal injuries he allegedly sustained as a result of Defendant's negligence. On October 16, 2016, Plaintiff filed an amended complaint, (appearing as Docket Entry (“DE”) [17-2]), which, by electronic order entered March 8, 2017 the Honorable Arthur D. Spatt, former United States District Court Judge to whom this case was initially assigned accepted for filing, on consent. Pending before the Court are Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing Plaintiff's claims in their entirety with prejudice; and Plaintiff's unopposed cross motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure striking Defendant's affirmative defenses asserting that Plaintiff's alleged injuries and/or damages were, in whole or in part, the result of Plaintiff's (i) own contributory negligence (third affirmative defense); and (ii) culpable conduct, want of care, and/or willful violation of Defendant's safety regulations and/or policies (fourth affirmative defense). For the reasons set forth below Defendant's motion is granted in part and denied in part and Plaintiff's cross motion is granted.

FACTUAL BACKGROUND

I. Basis of Facts Recited Herein

In support of their cross motions, the parties each filed a statement of facts in accordance with Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Rule 56.1”). To the extent that the statements are properly supported by citation to evidence which would be admissible pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the factual allegations are taken therefrom; otherwise the Court has disregarded any unsupported assertions. Giannullo v. City of New York, 332 F.3d 139, 139 (2d Cir. 2003)^[1]. Moreover, only those facts that are material to the disposition of the motion, i.e., that “might affect the outcome of the suit under the governing law, ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), are set forth herein. See Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013) (“The substantive law governing the case will identify those facts that are material, and only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”).

Both parties also filed their own counter-statement of facts pursuant to Rule 56.1, setting forth areas of agreement, as well as those as to which there is dispute.

II. Factual Allegations

Plaintiff joined the Long Island Railroad Police Department (“LIRR PD”) in December 1980. (Defendant's Statement of Material Facts pursuant to Local Rule 56.1, Plaintiff's Responses Thereto and Plaintiff's Counter-Statement of Facts, appearing as DE [45], ¶ 3; Defendant's Response to Plaintiff's Counter-Statement of Facts, appearing as DE [48], ¶ 1.)^[2]Effective January 1, 1998, the LIRR PD was merged with the Metro-North Commuter Railroad Police Department to become the MTA Police Department (‘MTA PD”). (DE [45], ¶ 3)

Plaintiff received training, including training on making arrests, from the NYPD when he joined the LIRR PD, and he made over a thousand arrests, including hundreds of individuals who resisted arrest, over the course of his career. (DE [45] ¶¶ 5-6; DE [48] ¶ 2.) Plaintiff testified, inter alia, (i) that he goes to the range once a year for additional training; (ii) that he always followed MTA PD procedures when making arrests; and (iii) that he made hundreds of arrests during his career where the suspect fought back, but he does not believe that he had any “real training” on the job about what to do in such instances beyond the basics that he learned at the police academy. (DE [48] ¶ 2.)

Plaintiff understood that his job involved dealing with potentially dangerous individuals and that, as an MTA PD police officer, his role involved assisting officers of other agencies, including the NYPD and State Police, if they needed help in arresting individuals. (DE [48] ¶ 3.) Plaintiff also understood that his job at Penn Station was to help keep the area safe, including arresting criminals and breaking up fights. (Id., ¶ 5.) According to Plaintiff, the MTA PD has a manual, called a patrol guide, which provides officers with procedure and department policy, including how an officer is supposed to make an arrest or assist in making an arrest. (Id., ¶ 4.)

A. The Metal Barriers

The MTA PD stored an electric vehicle known as a “GEM” cart in a recessed corner on the concourse of Penn Station, near the Kmart exit. (DE [48] ¶¶ 30, 41, 47, 53.) The natural layout of the recessed area gives the GEM cart protection from the flow of passengers walking through the corridor. (DE [48], ¶ 47.) The cart is backed into its “parking space” so that it does not block the corridor and is ready to pull out when needed. (Id., ¶ 32.)

Although Plaintiff saw the GEM cart parked on the concourse of Penn Station, he had no idea for what purpose it was used^[3]. (DE [48] ¶ 10.) However, it is undisputed that the police use the carts when there is a reduced pedestrian flow, typically at nighttime, so they can make a more effective patrol of the station. (Id., ¶ 47.) In addition, Henry Lennon (“Lennon”), who was an MTA PD Captain from October 23, 2013 to June 2015, (DE [45] ¶ 7; DE [48] ¶ 29, ) testified that the carts are generally used in non-emergency situations, but they also “play a vital role in emergency situations” because they could be used to transport injured people; “to close off hallways[;] . . . [and] to evacuate the terminal safely.” (Transcript of Lennon's Deposition Testimony (“Lennon Tr.”), appearing as DE [41-4], at 39:25-41:3.)

Lennon further testified that although there might have been a “non-publicly accessible” space on the LIRR level in Penn Station in which to store the GEM carts, they “need to be accessible in a timely manner so [the police] have them right away.” (Lennon Tr., DE [41-4] at 38:9-19.) Raffael Patacca, an MTA PD police officer, also testified that the GEM carts cannot be parked in a storeroom or garage when not in use. (Transcript of Deposition Testimony of Raffael Patacca (“Patacca Tr.”), appearing as DE [41-6], at 41:12-15.)

The GEM cart was safeguarded by the use of metal barriers^[4] to prevent people from sitting in the cart and from using the outlet on the wall to charge their cell phones. (DE [48], ¶¶ 31, 41, 47-48.) Both Lennon and Patacca acknowledged seeing people do both of those things, (id., ¶¶ 31, 41, ) and, as far as Lennon knew, the barriers were effective. (Id., ¶ 31.) However, Sergeant George Thomson (“Thomson”) testified that he saw pedestrians get into the GEM cart notwithstanding the presence of the barriers, (Transcript of Deposition Testimony of George Thomson (“Thomson Tr.”), appearing as DE [41-5], at 33:12-34:14, ) and Patacca testified that he saw people enter the two- to three-foot gap between the barrier and the wall to use the outlet on the wall. (Patacca Tr., DE [41-6] at 25:19-26:8.) Thomson described the metal barriers as about three (3) feet high, situated to form a right angle or “a half square” around the GEM cart, with one barrier running perpendicular from the Kmart storefront and the other running parallel to the concourse. (Thomson Tr., DE [41-5] at 26:19-24, 31:4-32:17.)

Lennon testified that since the security barriers are also used to close off an area for evacuation purposes or emergencies, they were stored in the recessed area near the Kmart store where the GEM cart was stored because they needed to be in a “somewhat centralized” area so they can be utilized “in a hurried or quick situation.” (Lennon Tr., DE [41-4] at 28:3-23.)

Patacca testified that although the barriers “all have the option to get hooked” together, it was not necessary to do so since they stand on their own and there was no reason to hook them together at the GEM cart location. (Patacca Tr., DE [41-6] at 24:16-24.) Although Lennon testified that interlocking the barriers when they were placed around the GEM cart “would be the right way to do it, ” (Lennon Tr., DE [41-4] at 30:21-31:6, 43:10-21, ) he also testified that if the barriers surrounding the GEM cart were interlocked, taken them apart would cause a delay in responding to an emergency, which would undermine the reason for why the cart was stored in a publicly accessible area, i.e., to provide quick access to it. (Id. at 44:16-45:6.) Furthermore, there is no policy or procedure by which officers are required to interlock the barriers when using them to secure an area. (DE [45] ¶ 18.)

Except for Plaintiff, none of the MTA PD employees who were deposed in this case ever saw anyone attempt to use one of the metal barriers as a weapon prior to this incident. (Lennon Tr., DE [41-4] at 45:7-11, 50:13-25; Thomson Tr., DE [41-5] at 80:16-21; Patacca Tr., DE [41-6] at 27:18-28:3; Transcript of Deposition Testimony of Gerald Willis (“Willis Tr.”), appearing as DE [41-7], at 86:16-20.) Neither did the two New York State Troopers (the “Troopers”) who were involved in the incident. (Declaration of Jeromy M. Furman (“Furman Decl.”), appearing as DE [41-8], ¶ 7; Declaration of Robert M....