Kunnemeyer v. Long Island R.R.

202 A.D.3d 74

161 N.Y.S.3d 133

Benjamin KUNNEMEYER, appellant,

v.LONG ISLAND RAILROAD, etc., respondent, et al., defendant.

2018–12287

Index No. 48032/09

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 12, 2021

December 22, 2021

Bisogno & Meyerson, LLP (Law Office of Judah Z. Cohen, PLLC, Woodmere, NY, of counsel), for appellant.

Stephen Papandon, Jamaica, NY (Andrew Muccigrosso of counsel), for respondent.

HECTOR D. LASALLE, P.J., LEONARD B. AUSTIN, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

OPINION & ORDER

WOOTEN, J.

For more than a century, New York courts have recognized the so-called "open run" defense, which permits a train engineer who sees a person on or near the tracks ahead to assume, under certain circumstances, that the person will notice the oncoming train and leave the tracks in time to avoid an accident. When the open run defense is applicable, the engineer has no duty to make an emergency stop unless he or she determines that the person cannot or will not leave the tracks. The novel issue raised on this appeal is whether the open run defense is applicable only when the train is operating "in broad daylight" ( PJI 2:176 ). We hold that the defense is not so limited, and may be applicable under any circumstances in which an oncoming train would be readily observable to a person on or near the tracks making reasonable use of his or her senses.

I. Factual Summary

A. Circumstances of the Accident

In late May 2009, the then 30–year–old plaintiff was living in a supportive housing facility located in Patchogue for individuals with a history of substance abuse. At that time, the plaintiff was taking prescribed Suboxone for the treatment of opioid addiction once every day in the morning. According to the plaintiff's testimony, he was aware that he should not consume alcohol while taking Suboxone because "it could intensify the effects."

The plaintiff testified that on May 28, 2009, he "got into a very bad argument with [his] girlfriend." On May 29, 2009, at approximately 9:00 a.m., the plaintiff woke up and took Suboxone. The plaintiff, "want[ing] to feel numb" because he thought his relationship with his girlfriend "was ending," purchased seven 1 mg pills of Xanax at approximately 12:00 to 12:30 p.m., and took all of the pills at that time. Later that day, at approximately 4:00 to 5:00 p.m., the plaintiff purchased a 24–ounce can of malt liquor beer, which is beer with high alcohol content. At approximately 7:30 to 8:00 p.m., the plaintiff opened the can of malt liquor beer and started to drink it. At approximately 10:00 to 10:30 p.m., the plaintiff went to a McDonald's restaurant for food, at which time he felt the Xanax was "wearing off." The plaintiff had not finished his malt liquor beer, and drank more of it in the bathroom at McDonald's.

After staying at McDonald's for approximately 30 to 45 minutes, the plaintiff left and started walking toward the housing facility on a path that required him to cross from the north side of the railroad tracks that run along Robinson Boulevard in Patchogue to the south side of the tracks to reach Hewlett Avenue. The plaintiff testified that before crossing the tracks, he decided not to return to the housing facility to avoid "them ... smell[ing] beer on [his] breath[ ]." Instead, the plaintiff walked westward along the north side of the tracks to meet some "beer drinkers in the neighborhood" with whom he planned to "finish [his] beer."

On May 29, 2009, at approximately 10:38 p.m., a train operated by the defendant Long Island Railroad (hereinafter the LIRR), left Montauk at the start of its route on the "Montauk line" and headed toward the Jamaica station. The train crew included Peter Cardone, the engineer, Alfred Bukofsky, the brakeman, and Michael Panzica, the conductor. While traveling westbound, Cardone was in the engineer's compartment of the cab car, from which he could look through a window at the tracks ahead.

On May 30, 2009, at approximately 12:24 a.m., the train was at the Bellport station. After leaving the Bellport station, the train proceeded west toward the Patchogue station, and entered a restricted speed area requiring the train to move no faster than 40 miles per hour.

At approximately 12:40 a.m., the train was moving at approximately 39 miles per hour as it neared a crossing east of the Patchogue station for vehicles driving on Conklin Avenue to pass over the tracks. Panzica and Bukofsky were in the engineer's compartment of the cab car in close proximity to Cardone. According to Cardone's testimony, since it was "dark and foggy," the train's headlights were turned on and set to "bright." At that time, Cardone observed what "appeared to be a person laying down," who would later be identified as the plaintiff, on the south side of the tracks no farther than two car lengths ahead. At approximately the same time, Panzica and Bukofsky first observed the plaintiff.

As soon as he observed the plaintiff, Cardone sounded the horn and "dumped the train, which is railroad vernacular" for triggering an emergency stop. The plaintiff, who was lying on his back near the tracks with one leg extended over the rails, did not move. The train was not able to stop in time and struck the plaintiff. Once the train came to a stop, Cardone walked along the south side of the tracks and located the plaintiff by the fifth car. Cardone then spoke with the plaintiff, who was conscious and able to communicate his name and age.

After the plaintiff was transported to a hospital, he tested positive for the presence of marijuana and Benzodiazepine, and had a blood alcohol content of 0.081%.

In December 2009, the plaintiff commenced this action to recover damages for personal injuries against the LIRR and the Metropolitan Transportation Authority (MTA) (hereinafter the MTA). The plaintiff alleged, inter alia, that the operator of the train "failed to keep a proper lookout" or to "timely ... sound the horn ... and apply the brakes," and that "members of the train crew were in the engineers cabin at the time of the incident and ... distracted the engineer from his duties."

B. The Trial

In October 2017, the Supreme Court conducted a jury trial on the issue of liability. During the trial, the plaintiff discontinued the action insofar as asserted against the MTA, leaving the LIRR as the sole defendant.

At trial, the plaintiff presented testimony from himself, Bukofsky, Cardone, Panzica, a meteorologist, Michael Merin, and two expert witnesses on lighting, Carl Everett and Carl Berkowitz.

The train crew, Bukofsky, Cardone, and Panzica, consistently testified that as soon as the plaintiff came into view on the tracks ahead, they simultaneously cursed and Cardone immediately sounded the horn and "dumped the train." Bukofsky, Cardone, and Panzica also testified that it was foggy at the time of the accident, which Cardone stated impeded his "long range vision." However, Bukofsky acknowledged "it was a high fog" that was not at the level of the train or the tracks, and Panzica conceded that "fog was not an issue" with visibility when he looked out the front window of the train. Further, Merin, the meteorologist, testified that at the time and location of the accident, there was "only mist," which would allow for visibility of at least a half mile.

The expert witness Everett testified that federal regulations mandated the use of headlights with a brightness of 200,000 candelas each, which are capable of illuminating an object up to 800 feet away. Berkowitz and Bukofsky both testified that the tracks were straight, without any curves, in the area of the accident. Everett further stated that he and the expert witness Berkowitz conducted a test with two train headlights matching the regulations raised to approximately six feet above the ground in the area where the accident occurred between 11:30 p.m. to 12:30 a.m. The expert witnesses verified that the light illuminated a person up to 800 feet away. Berkowitz did not attribute the accident to a lack of visibility, but rather opined that "an attentive crew would have seen [the plaintiff] much sooner."

The LIRR presented testimony from, among others, James Shiminski, road foreman of engines for the LIRR. Shiminski testified that the train moved a distance of 515 feet before coming to a complete stop after the emergency stop was triggered, which took approximately 16 seconds.

Following the close of evidence, the Supreme Court conducted a charge conference outside the presence of the jury. During the conference, the court indicated that it intended to charge the jury with a modified version of the pattern jury instructions for the "open run" defense (see PJI 2:176 ). The court read to the attorneys the charge as written in the pattern jury instructions, as follows:

"In deciding whether the railroad exercised due care, you should bear in mind that a train engineer, who sees a person on or near the tracks in broad daylight, is not bound to stop the train immediately but has the right to assume the person will see and hear the train and heed the danger and leave the tracks."

The court informed the attorneys that it intended to omit the words "in broad daylight" from the charge, since "[t]he [accident] happened at night." The court stated that:

"[t]he concept of whether or not a person who's on the track can see a train in broad daylight and be able to make a decision ... of the danger, is, in my opinion, no different than a person on the track at night who would be able to perceive the danger just as well ... as he could in the day because of lights, because of the rumbling of the train, because of the noise of the train."

The plaintiff's attorney objected to the Supreme Court's ruling, stating, "out of all the cases that we've ... seen that apply to the open run rule, they all happened at daytime." The plaintiff's attorney requested that the court either not issue the charge, or if it decided to issue the charge, to include the words "in broad...