Comments on: NYC subway track totterer awarded $5.95 million

By: Bob Lipton

Bob Lipton — Tue, 12 May 2009 23:45:08 +0000

That’s an interesting thought, VMS. Perhaps it could be tested by placing the plaintiff’s lawyer in harm’s way and having the plaintiff react. Surely his ability to avoid killing the lawyer would be conclusive.

Bob

By: VMS

VMS — Tue, 12 May 2009 22:31:04 +0000

My calculations show that if the distances and train speed were reported correctly, a motorman with instantaneous reflexes would need 38 feet to stop the train. [Add 5 feet for hairtrigger, but plausibly quick) reflexes]. So where’s his negligence?

Also, the “last clear chance” doctrine is not the law in New York. The comparative negligence rule of CPLR Article 14-A (CPLR 1411-1413) was enacted, effective September 1, 1975, to make comparative (not contributory) negligence the law in New York State. CPLR 1412 makes comparative negligence an affirmative defense, and it must be pled and proved by the defendant.

“Last clear chance” was a doctrine that mitigated the harsh outcomes of the contributary negligence standard where if a plaintiff were one iota negligent, (s)he could not recover anything. It does not apply in New York which is a pure comparitive negligence state. http://en.wikipedia.org/wiki/Last_clear_chance

While looking at Webcivil Supreme, the NYS court’s on-line tracking system, I noticed that the MTA, in its usual style of litigation, forced about 40 appearances during the case. That money could have been better spent conducting repeatable tests (videorecorded of course) where a 15 MPH train was forced to brake as hard as it could at the location of the accident in response to a dummy being thrown onto the tracks 20 feet in front. Such testing would have shown that the motorman was not negligent to the point where no reasonable jury could have concluded otherwise. This is important since the court could override the jury’s factfinding as a matter of law under those circumstances circumstances.

By: Ron Miller

Ron Miller — Tue, 12 May 2009 16:01:15 +0000

Are you kidding me? With all due respect, there is a lot more context to the facts of a trial than those things that you reported. You can’t cite 5 facts and evaluate all of the evidence at trial. Did this lawyer sit through the trial? Where did he get his information? Do we even know the 5 facts are right?

I agree, Patrick, mainstream reporters misreport all of the time. But when they do, they have breached real standards. Someone report that the media has not touched is usually an awful basis to make conclusions. Isn’t this a case the media would jump all over? Yet we have nothing but silence.

Do you think I’m crazy to want some actual evidence?

By: Patrick

Patrick — Tue, 12 May 2009 01:41:43 +0000

Actually, in a case like this, I’m as comfortable accepting the word from a New York PI lawyer (Hochfelder) than I would be from, say, the Daily News. He got the verdict amount. He got the comparative fault reduction. He got the defenses and the issues on a likely appeal. What else is there to report?

Even if he’s writing on word of mouth, Hochfelder has never steered me wrong on a story about the law in his bailiwick. Many reporters writing on legal cases know beans about the law. Consider the atrocious journalism on the WR Grace case, cited at Point of Law to our right.

Very few of the reporters in the stories cited (as bad journalism) bother to mention that the defendants were being prosecuted for actions that took place before the passage of the relevant Clean Air Act, which lawyers would tell you is the most important fact.

By: Ron Miller

Ron Miller — Mon, 11 May 2009 21:34:38 +0000

Certainly, it is tricky to evaluate cases without hearing all of the evidence. I’m also not a huge fan of accepting news that comes from a blog post. Where is the underlying article that lays all of this out?

By: L Nettles

L Nettles — Mon, 11 May 2009 13:03:59 +0000

If the facts are as related, I have to assume there are no Judges in NY.

By: Robert

Robert — Mon, 11 May 2009 00:25:27 +0000

There must have been a jury of 12 drunken junkies. That’s the only logical explanation.

By: Bob Lipton

Bob Lipton — Sun, 10 May 2009 23:19:40 +0000

Clearly this will open the possibility for another lawsuit against the MTA fror enabling this man to kill himself thereby. In fact, I’m surprised this wasn’t brought up at the first trial with the intention of collecting the money in advance. Might this failure be considered legal malpractice?

Bob

By: Dave Lincoln

Dave Lincoln — Sun, 10 May 2009 21:39:14 +0000

Nah, L.C. life’s too short – there are plenty more governments to sue, small corporations to put out of business, ….

… oh you mean the methadone man, I thought you meant the lawyer. If only!!

By: L.C. Burgundy

L.C. Burgundy — Sun, 10 May 2009 20:07:26 +0000

Once this guy gets his money, I’m betting he’ll kill himself with drugs within a few weeks anyway.