Transit Authority, Out of Possession Landlord Held Liable

At issue in Bingham v New York City Tr. Auth., 2007 WL 470391, ___ N.Y. 2d __ (Feb. 15, 2007), was whether the New York City Transit Authority (NYCTA) could be held liable for a subway passenger's injury that occurred when her pants caught on a metal strip protruding from a stairway, causing her to fall down a flight of stairs that was not owned by the transit authority.  The NYCTA argued that it was not liable since the stairway was not utilized exclusively for access to the subway, while the plaintiff argued that since the stairway was used primarily as a means to access the subway, the NYCTA was liable.

The New York Court of Appeals agreed with the plaintiff, finding that the “duty of care imposed on a common carrier with respect to its passengers requires not only that it keep the transportation vehicle safe, but also that it maintain a safe means of ingress and egress for the use of its passengers.”  Although this area was maintained by others, this duty applies if "constantly and notoriously" used by passengers as means of approach.  This duty was first enunciated in Schlessinger v. Manhattan Ry. Co., 49 Misc 504 (App. Term 1906), and has been recognized not only in New York but also in other jurisdictions.

In this case, the stairwell or approach is primarily used as a means of access to and egress from the common carrier, that carrier has a duty to exercise reasonable care to see that such means of approach remain in a safe condition or, where appropriate, to take such precautions or give such warnings as would protect those using such area against unforeseen danger. Thus, even if the responsibility to maintain the stairway resides in another entity, defendants may not avoid their responsibility "to at least provide against injury to its passengers by erecting such barricades, or giving such warning, as [would] guard against accidents" (Internal citations omitted).  The court concluded whether those means of ingress or egress are used primarily for that purpose would generally be a question of fact.

Judge Graffeo dissented, stating that:

(T)he duty to maintain embraced by the majority turns on an amorphous standard: whether the property was used "primarily" by subway patrons at the time of the accident. Under this standard, a duty can come into and out of existence depending on circumstances outside a common carrier's control, such as the number and type of businesses that may also attract persons who walk across the property in question.

Comments:  Judge Graffeo raises a good point in regard to the difficulty that this holding presents in determining when a particular means of ingress and egress is "primarily" used to access a common carrier.  How the courts will interpret that standard remains to be seen.  While the Court specifically stated that it "generally" presented an issue of fact, I wouldn't be at all surprised to see lower courts granting summary judgment on that basis nonetheless.

Once Again, New York State Court Bends Over Backwards For Plaintiff

In Lewis v. Pimental, (Kings County 2007), defendant moved for summary judgment on the basis they did not sustain a serious injury pursuant to CPLR §3212 and Insurance Law 5102 (d). In violation of the court’s order, plaintiffs served opposition papers five days late.  Defendant timely served its reply papers.  Plaintiffs then served supplemental reply papers that were not included within the court’s briefing schedule.  Defendant objected to plaintiff’ untimely service of opposition papers as well as the submission of supplemental opposition papers contrary.  The court let the untimely papers go and provided the defendant an opportunity to submit a supplemental reply.  At oral argument, the court reserved its decision.

In reviewing the draft of the decision, the Kings County Clerk determined that a defect existed in Plaintiff’s motion papers as they annexed the wrong pleadings.  Although plaintiffs in their opposition or supplement opposition papers never addressed this defect, the court held that the requirement that a motion for summary judgment be supported by the pleadings is mandatory and renders the motion procedurally defective.  The motion was denied without ruling on the substance of the motion.
Comments: this is another example of how the system provides every ounce of protection for plaintiff while defendants bear the burden and cost.  Plaintiff’s opposition papers were untimely. The court could have stricken the opposition paper, but it did not.  In addition, the court could have disregarded the supplemental papers.  Rather, it chose to put the onerous and cost on defendant to produce a supplemental submission.  Lastly, although procedurally defective, it was clearly a clerical error in the insertion of the wrong pleadings.  Rather than providing an opportunity to insert the correct pleadings, the court simply dismissed the motion.

Exposures to Asbestos Insulation Are Multiple Occurrences

In Appalachian Ins. Co. v. General Electric Co., ___ N.Y. 2d __ (Feb. 15, 2007), New York’s Court of Appeals rejected arguments by General Electric Company ("GE") that all claims arising out of exposure to any particular asbestos-containing product GE manufactured should be deemed a single "occurrence" for liability insurance purposes. The Court instead ruled that under its "unfortunate event" test, the "occurrence" must be determined with reference to the circumstances surrounding each plaintiff’s exposure to GE’s asbestos-containing products and that, in light of the highly individualized exposure histories of each plaintiff, each claim constituted a separate occurrence.

Under its pre-1986 insurance program, GE essentially self-insured, through a retroactive premium arrangement, for the first $5 million of any occurrence and for most years the policies contained no aggregate products limit of liability.  Although GE had initially treated each individual claim as an occurrence, in 1991 it entered into an agreement with its primary insurer to treat all claims arising from each asbestos-containing product as one occurrence. Accordingly, GE sought to aggregate many thousands of asbestos-related personal injury claims on the theory that virtually all arose from claimed exposures to asbestos-containing insulation on steam turbines and that its corporate failure to warn of the hazards of asbestos constituted the sole occurrence.  GE’s excess insurers objected to this arrangement and commenced a declaratory judgment action.

Both the trial court and the Appellate Division (First Department) of the Supreme Court ruled that under the "unfortunate event" test established in Arthur A. Johnson Corp. v. Indemnity Ins. Co. of N. Am., 7 N.Y. 2d 222 (1959), the exposure of each plaintiff to GE’s asbestos was the liability-causing unfortunate event, and therefore the occurrence for insurance purposes.  New York’s highest court, the Court of Appeals affirmed.  Noting that Johnson had rejected the sole-proximate-cause test, the Court ruled that the lack of any "spatial or News Concerning Recent Insurance Coverage Issues temporal relationship" among the circumstances of the exposure to asbestos of hundreds of thousands of plaintiffs at tens of thousands of sites over a period of decades doomed GE’s arguments for a single occurrence per product.  In so ruling, the Court noted its agreement with the Second Circuit’s opinions in Prudential Lines v. American Steamship Owners Mutual Protection and Indem. Assoc., 158 F.3d 65 (2d Cir. 1998) and Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178 (2d Cir. 1995), mod. on other grounds 85 F.3d 49 (1996).

GE also argued that Johnson was not controlling because it interpreted the term "accident" instead of "occurrence."  Rejecting this purported distinction, the Court ruled that the terms "accident" and "occurrence" are synonymous unless the policy language provides otherwise.  In this case, the policies defined occurrence as "an accident, event, happening or continuous or repeated exposure to conditions which unintentionally results in injury or damage during the policy period." The Court did observe that the parties were free to contract around the Johnson rule by, for example, using policy language that provided for aggregation of claims into a single occurrence, but had not done so in this case.

Comments:  Although the Court’s reaffirmation of the vitality of Johnson’s "unfortunate event" is welcome news for excess liability carriers in latent injury mass tort litigation, this will not assist insureds with large self-insured retentions and primary carriers whose policies do not contain aggregate limits.  Stay tuned to see how New York’s courts will treat other policies with differing definitions of "occurrence."

“Place of Destination” Argument Rejected

In Baah v. Virgin Atlantic Airways Limited (S.D.N.Y. Feb. 7, 2007), an infant traveling on a roundtrip ticket from Heathrow to JFK was burned by a hot beverage during the outbound flight.  The infant’s father brought a personal injury action against the airline on his son’s behalf in a New York court, alleging liability under the Montreal Convention.

Virgin Atlantic moved to dismiss on the grounds that the court lacked subject matter jurisdiction.  All parties and the court agreed that the Montreal Convention exclusively governs plaintiff’s rights against Virgin Atlantic because the alleged physical injuries were sustained during “international carriage” by air within the meaning of the convention which is enforceable in the U.S. and the U.K. 

A plaintiff may bring an action in the U.S under the Convention only when the U.S. is (i) “the domicile of the carrier”, (ii) the “principal place of business” of the carrier, (iii) the place where the carrier has a “place of business through which the contract has been made”, (iv) “the place of destination” or (v) the “principal and permanent residence” of the passenger.  The issue before the court was whether the court had jurisdiction pursuant to the “the place of destination” within the Montreal Convention.

Under the Warsaw Convention, the Montreal Convention’s predecessor, the courts consistently held that “the place of destination” for jurisdiction purposes was the return city on a round-trip ticket.  In this case, the plaintiff argued that the court should ignore the Warsaw opinions because the Montreal Convention is supposedly more passenger-friendly than its predecessor.  The court ruled otherwise.  Relying on Warsaw opinions in interpreting a similar Montreal provision, the court reasoned that by enabling passengers to bring a cause of action in their place of privnicpe residence which was provided under the Warsaw, the drafters of the Montreal Convention would enhance the available fora in which passengers may bring claims.  As a result, the court ruled that London was the infant’s “place of destination” and dismissed the case for lack of subject matter jurisdiction.

Comments:  the court interpreted the ambiguous phrase "place of destination" in the Montreal Convention by relying on the Vienna Convention on the Law of Treaties by analyzing the relationship between the Warsaw Convention and the superseding Montreal Convention.  The court correctly articulated the doctrine of self-execution; it examined the purpose of the Montreal Convention as compared to the previous convention.  After it concluded that the ordinary meaning of the provision was not apparent from the text, the court relied on drafting history.