On June 14, 2006, at about 3:30 p.m., then 72 year old Irene McDonald attempted to board a train at the New Hyde Park Long Island Rail Road (the LIRR) station when she fell through a 12 inch gap between the train station platform and the train door.

Here is the LIRR train station where Ms. McDonald fell:

Ms. McDonald fell in up to her chest with her feet on the ground, facing the train, and with her back against the platform. She was lifted out by fellow passengers but her legs were injured and she later sued the LIRR claiming that the gap constituted a dangerous and unsafe condition.

Trial in the case, McDonald v. Long Island Rail Road (Supreme Court, Queens County; Index # 2772/06), began on January 16, 2009. Plaintiff argued that the LIRR was negligent and fully liable for Ms. McDonald’s injuries because the 12 inch gap exceeded the defendant’s own standard of seven to eight inches and the LIRR was aware of the problem and failed to correct it. The jury agreed, finding the defendant 100% at fault and awarding Ms. McDonald $175,000 for her injuries ($110,000 past – 2 1/2 years, $65,000 future – 12 years).

There was evidence at the trial that the plaintiff already knew about the gap, in that she was a regular traveler at, and quite familiar with, the New Hyde Park train station but that, nevertheless, she looked straight ahead (and not down) as she was trying to board the train. These facts, the LIRR argued on appeal, required some finding of comparative negligence on plaintiff’s part.

On appeal, the defendant’s position as to comparative negligence has now been upheld. In McDonald v. Long Island Rail Road (2nd Dept. 2010) – the liability verdict has been reversed and a new trial ordered on the issue of liability.

Also, the appellate judges ruled that $110,000 for Ms. McDonald’s past pain and suffering is excessive and that award should be reduced to $75,000. They affirmed the jury’s $65,000 award for future pain and suffering. As a result, if this case is tried again $140,000 will be the total pain and suffering damages award which will be reduced by the percentage of plaintiff’s comparative negligence assessed by the new jury.

Ms. McDonald’s injuries were not specified by the appellate court. They included:

  • extreme fright at the scene of the accident
  • bruises to both shins with an eschar (area of dead skin) on one leg requiring daily nursing care
  • skin loss with a graphic cavity on one leg requiring a split thickness skin graft under IV sedation
  • follow-up treatment using silver nitrate to burn down the area of healing that had become hypertrophic or raised
  • permanent depression, numbness and pain at the wound site inhibiting activities of daily living and precluding swimming

Skin graft:

The appellate court cited only one case to justify its holding that Ms. McDonald’s past damages award should be reduced from $110,000 to $75,000 – Goady v. Utopia Home Care Agency (2nd Dept. 2003). In that case, the court reduced to $150,000 ($125,000 past, $25,000 future) a $300,000 pain and suffering award for an infant ($200,000 past, $100,000 future) who sustained a small 2nd degree hot iron burn that resulted in a keloid scar removed during a surgical procedure primarily undertaken to address complications from unrelated cerebral palsy. The boy had intense pain at the moment of the burn and some pain for months thereafter but did not require hospitalization or a skin graft.

Inside Information:

  • A hotly contested issue at the trial of McDonald v. Long Island Rail Road involved the admission of evidence of other gap-related accidents over many years at LIRR stations. The parties disagreed over whether the other accidents occurred under substantially the same conditions as Ms. McDonald’s accident and the judges cautioned that in the new trial any evidence of prior accidents must meet the substantial similarity standard.