We reported back in February 2009, here, about a case in which a Manhattan jury found a subway car operator 65% liable for running over a drunk college student (and severing his leg below the knee).The jury found that the driver should have seen the young man in time to stop.

The defendant argued he had no time to avoid the accident since at first he thought the darkly clad young man was debris on the tracks and when he did realize it was a person on the tracks it was too late.

The jury verdict included $2,000,000 for pain and suffering ($1,000,000 past – 3 years, $1,000,000 future) and $1,500,000 for future medical costs. Dustin Dibble had no recollection of the accident although it was undisputed that the plaintiff was intoxicated after a night of drinking (and he had no recollection of the accident). He was assigned 35% of the fault thus leaving him him with $2,300,000 of the jury’s $3,500,000 verdict.

Now, though, in Dibble v. New York City Transit Authority, an appellate court has reversed the award in its entirety holding that the jury should not have been allowed to base its finding of negligence on expert testimony offered by the plaintiff. The expert, a professional engineer with a transportation background, testified that if the operator had put the train into emergency mode when he first saw what he thought was debris on the tracks (it turned out to be the intoxicated Dibble, in dark clothes), the train could have stopped before tragedy ensued.

The problem with the expert’s testimony was that it was based on a series of estimated stopping distances that incorporated a purported average reaction time (one second). While there have been many reaction time studies for automobile drivers, there appear to have been none for subway train operators and that lack of research led the appeals court judges to conclude that the expert’s use of a one second reaction time was arbitrary and that the jury should not have used it as the basis for its finding of negligence. The entire case was therefore dismissed.

So what’s it all mean? Is this a significant appeals court decision that will apply to other cases or is it limited to a unique set of facts?

Mayor Bloomberg and many others were upset when the verdict was announced last year (as mentioned in my earlier post on this case) and are pleased with the new decision to overturn it (as noted by Walter Olson at Overlawyered). And of course the defendant lauds the correctness of the appellate decision with a statement that the public shouldn’t have to compensate people who "place themselves in positions of obvious danger through their own reckless conduct."

Eminent members of the plaintiff’s bar, however, have reacted with concern. Dibble’s lawyer, Andrew Smiley, said the appeals court intruded on a question it should have left to the jury.

"The issue was whether or not he should have stopped upon seeing a mass on the tracks. That was an issue for the jury to decide, and they decided he shouldn’t have been mistaken for a piece of garbage," Smiley said, adding that Dibble plans to appeal further. To do that, though, under CPLR 5602, he will have the very difficult burden of showing that an important question of law should be reviewed and decided upon by New York’s highest court, the Court of Appeals. And if plaintiff gets that far, he will still have to convince the high court that the intermediate appellate court, the appellate division, erred in its finding as to the admissibility of the expert’s testimony. These burdens are likely too much for the plaintiff in this case.

Here’s a snapshot of a recent case being argued before New York’s Court of Appeals in Albany:

Other lawyers who regularly represent plaintiffs have agreed with Dibble’s lawyer and found this decision to reflect an outrageous intrusion into the jury’s fact finding function. They hope, though, that this may be a narrowly applied decision, one that affects just this case, in which the appellate court judges simply did not want to let stand a large verdict for a person whose intoxication left him in dark clothes on a subway track at night and against a motorman who may have had only one second to react when he realized there was a person on the tracks.

One lawyer put it this way: "The appellate division has essentially ruled that a drunk on the tracks who gets hurt is solely responsible for his accident barring special circumstances and we don’t see them here and the judges simply refused to let the operator and the city’s transit authority go down the tubes on a second’s delay."

Concern that this decision could apply to motor vehicle cases appears to be misplaced. There are specific statutes, such as Vehicle and Traffic Law Section 1146, that impose specific duties on drivers to avoid striking pedestrians. There are no such corresponding statutes for subway train operators nor, as the court noted, are there any recognized studies that conclude there are generally accepted reaction times for subway train operators (aa there are for motor vehicle drivers).

So, it appears that Dibble v. New York City Transit Authority will be narrowly applied; though there is little doubt but that defendants will argue otherwise and attempt in future cases to argue its expansiveness – perhaps as far as arguing that no drunk on the subway tracks may ever recover for a motorman’s negligence. Also, Dibble’s lawyer has already announced his intention to appeal. We will, of course, follow and report on any significant developments.