Hardnett-Majette v. National Railroad Passenger Corporation

Filing 23

MEMORANDUM-DECISION AND ORDERED, that Defendants motion for summary judgment (Dkt. No. 14) is GRANTED in part as to Plaintiffs negligence claim premised on the wet condition of the train and the platform, and DENIED in part as to Plaintiffs negligenc e claim premised on the width of the gap between the train and the platform; and it is further ORDERED, that Defendant shall have a continuance to conduct additional expert discovery in order to address Plaintiffs expert witnesss opinion, and that scheduling and other matters related to such additional discovery are referred to U.S. Magistrate Judge Christian F. Hummel. Signed by Senior Judge Lawrence E. Kahn on June 30, 2017. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RHONDA HARDNETT-MAJETTE,
Plaintiff,
-against-

1:16-CV-389 (LEK/CFH)

NATIONAL RAILROAD PASSENGER
CORPORATION d/b/a AMTRAK,
Defendant.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Rhonda Hardnett-Majette commenced this action against defendant National

Railroad Passenger Corporation (“Amtrak”) for an alleged slip and fall at the Albany/Rensselaer
Train Station. Dkt. No. 2 (“Complaint”). Presently before the Court is Defendant’s motion for
summary judgment. Dkt. No. 14 (“Motion”); see also Dkt. Nos. 14-11 (“Memorandum”), 14-10
(“Statement of Material Facts”), 19 (“Response”), 20 (“Reply”). For the reasons that follow, the
Motion is granted in part, and denied in part.
II.

BACKGROUND
A. Factual Background
On December 23, 2014, Plaintiff arrived at the Albany/Rensselaer train station for a trip

to Elyria, Ohio to visit her mother. Dkt. No. 14-5 (“Plaintiff Deposition”) at 24:9–22. Plaintiff
arrived at the train station at approximately 6:00 PM. Id. at 25:8–14. It had been drizzling all day
and the light rain continued as Plaintiff arrived at the station. Id. at 26:19–27:18. As Plaintiff
walked onto the platform, she observed that the floor was wet. Id. at 32:20–33:18, 39:8–13. That

day, the car in which Plaintiff was ticketed was not aligning with the station platform due to
construction. Id. at 61:6–22. A conductor instructed her to enter a different car and travel through
the train to enter the sleeper car. Id. at 40:11–14. According to Plaintiff, this construction resulted
in a larger than normal gap between the train and the platform. Id. 61:5–62. Plaintiff’s husband
accompanied her to the entrance of the car and witnessed the fall. Id. at 40:15–41:17, 50:1–7.
Also present were two Amtrak employees, one outside the entrance to the car and another just
inside the train vestibule. Id. at 47:1–8. The employee inside the vestibule told Plaintiff to
“[w]atch [her] step” as she boarded. Id. at 46:19–24. Plaintiff noticed the gap between the
platform and train and that the entrance to the train was wet. Id. at 42:5–8, 52:6–10.
As Plaintiff’s right foot made contact with the train, she slipped, and her entire right leg
fell through the gap. Id. at 42:15–43:18. Plaintiff’s left leg remained on the platform splayed
behind her as her right leg hung between the train and platform. Id. at 42:15–23, 48:18–49:11.
Plaintiff alleges that the gap was large enough to fit her entire body. Id. at 43:22–44:2. Plaintiff
has a forty-five inch waistline, and she has estimated the gap to be 14.3 inches wide—the
diameter of her body. Resp. at 4. Plaintiff’s husband stated that he “thought she was going to fall
through” the gap to the track below and estimated that the gap was “no more than a foot.” Dkt.
No. 14-7 (“Majette Deposition”) at 26:3–7, 35:13–17. According to Defendant’s expert witness,
the gap at the Albany/Rensselaer Station is at least seven inches wide as required by New York
Rail Road Law. Dkt. No. 14-9 (“Torisno Affidavit”) ¶¶ 5–8. Defendant has not provided the
actual or theoretical maximum gap size at the time of the accident or any other time. Id.; Reply
at 9.

2

Plaintiff’s husband and an Amtrak employee pulled Plaintiff out of the gap. Pl. Dep.
at 42:15–23. She was then offered medical treatment, but declined. Id. at 53:20–54:10. As
Plaintiff walked to her seat, she experienced burning pain in her right leg. Id. When she took her
seat, Plaintiff rolled up her pant leg and found that her right leg had been scraped and bruised by
the fall. Id. at 55:12–56:1. Plaintiff later assisted an Amtrak employee in filling out an accident
report in which she stated that the causes of her fall were the presence of the gap and the wet
condition of the train and platform. Dkt. No. 14-6 (“Accident Report”) at 1–2.1
When Plaintiff arrived at her destination the following day, her right leg was severely
bruised and she experienced pain in her left knee. Pl. Dep. at 68:12–22. Upon disembarking,
Plaintiff went to the hospital and she was given a wrap for her left knee and told to ice and
elevate her right leg. Id. at 69:3–13. Plaintiff sought medical treatment a month later from an
orthopedist for pain in her left knee. Id. at 71:7–72:4. An MRI of her left leg showed torn
ligaments and tendons, and was given a cortisone shot, which alleviated the pain. Id.
Approximately eleven months later, Plaintiff began experiencing pain and mobility problems
again in her left knee and sought care from multiple doctors. Id. at 73:7–74:5. It was at this point
that she brought suit against Defendant. Id. at 80:5–20.
B. Procedural History
Plaintiff initiated this lawsuit in Schenectady County Supreme Court on February 17,
2016, and it was removed to the Northern District of New York on April 6, 2016. Dkt. No. 1

1

The page numbers for the accident report refer to those generated by the Court’s
electronic filing system (“ECF”).
3

(“Notice of Removal”); Compl. at 2.2 The Complaint asserts that Defendant negligently
maintained the premises, causing Plaintiff to fall between the train and the platform. Id. ¶ 4. On
February 17, 2017, Amtrak moved for summary judgment, arguing primarily that it cannot be
liable for negligence because it complied with all legal standards for gap width between the
platform and train. Mem. at 11–12.
III.

LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs courts to grant summary

judgment if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although “[f]actual disputes that are
irrelevant or unnecessary” will not preclude summary judgment, “summary judgment will not lie
if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924
F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted.”).
The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and of identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party
carries the ultimate burden of proof and has failed “to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id.
at 322.
2

The page numbers for the Complaint refer to those generated by ECF.
4

In attempting to repel a motion for summary judgment after the moving party has met its
initial burden, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). At the same time, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736,
742 (2d Cir. 1998). Thus, a court’s duty in reviewing a motion for summary judgment is
“carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo v.
Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
IV.

DISCUSSION
A. Plaintiff’s Failure to File a Statement of Material Facts
At the outset, the Court must determine the consequence, if any, of Plaintiff’s failure to

file a statement of material facts as required by Local Rule 7.1(a)(3). Under this rule, “[t]he Court
shall deem admitted any properly supported facts in the Statement of Material Facts that the
opposing party does not specifically controvert.” L.R. 7.1(a)(3). The Court could grant summary
judgment based on Plaintiff’s failure to comply with this rule. N.Y. State Teamsters Conf.
Pension & Ret. Fund v. Express Servs., 426 F.3d 640, 649 (2d Cir. 2005). The Second Circuit
has acknowledged that the rule promotes judicial economy by identifying the disputed facts and
the record evidence supporting such facts. Hotz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir.
2001).3 But the Court has discretion to excuse a failure to comply with the local rules. Id. Here,
3

The Court is troubled by the complete absence of citations to the record in Plaintiff’s
Response. It is not the job of a court to hunt for the evidence that supports a plaintiff’s assertions.
Johnson v. Colvin, No. 13-CV-6319, 2014 WL 1394365, at *6 (W.D.N.Y. Apr. 9, 2014).
5

Plaintiff’s oversight appears to be in good faith as evidenced by the letter she filed with the Court
clarifying the disputed facts in this case. Dkt. No. 21 (“Plaintiff Letter”). For this reason, the
Court will not deem admitted the facts set out in Defendant’s Statement of Material Facts.
B. Wetness Negligence Claim
Plaintiff’s Complaint contains two theories of negligence. Plaintiff primarily argues that
Defendant was negligent in allowing the train’s entranceway to be wet. Compl. ¶ 4. Plaintiff also
argues that Defendant negligently permitted Plaintiff to board across an unreasonably large gap.
Id. Defendant moved for summary judgment on the ground that both theories fail. Mem. Yet
Plaintiff’s Response does not address Defendant’s argument regarding wetness at all. Resp.
When a nonmoving party fails to address an argument for summary judgment offered by the
moving party, the Court may deem the issue abandoned. Bellegar De Dussuau v. Blockbuster,
Inc., No. 03-CV-6614, 2006 WL 465374, at *7 (S.D.N.Y. Feb. 28, 2006); Arias v. Nasdaq/Amex
Mkt. Grp., No. 00-CV-9827, 2003 WL 354978, at *13 (S.D.N.Y. Feb. 18, 2003). Thus, any
negligence claim premised on the wet condition of the train and platform has been abandoned.4
Defendant’s Motion is granted with respect to the wetness negligence claim.

4

Even if Plaintiff had not abandoned this claim, it would fail on the merits. There is no
evidence that Defendant created the condition or had actual knowledge of the condition.
Nussbaum v. Metro. N. R.R., 603 F. App’x. 10, 11–12 (2d Cir. 2015). Further, there is nothing in
the record to suggest that the wetness of the floor was visible and apparent for a sufficient length
of time before the accident to allow Defendant to discover and remedy the condition. Lewis v.
Metro. Transp. Auth., 472 N.Y.S.2d 368, 371 (App. Div. 1984), aff’d, 474 N.E.2d 612 (N.Y.
1984). Under such circumstances, New York tort law does not recognize a common carrier’s
liability for a slip and fall due to a wet surface on a rainy day. Hussein v. N.Y.C. Transit Auth.,
699 N.Y.S.2d 27, 28–29 (App. Div. 1999).
6

C. Admissibility of Plaintiff’s Expert Witness Testimony
Plaintiff relies in part on an affidavit from an undisclosed expert witness to prove that the
gap between the platform and the train evidences Defendant’s negligence. Dkt. No. 19-2
(“Levine Affidavit”). Under Rule 26(a)(2)(d) of the Federal Rules of Civil Procedure, a party
must disclose an expert witness “at the times and in the sequence that the court orders.” Further,
under Rule 37(c)(1), “[a] party is not allowed to use [an undisclosed expert] witness to supply
evidence on a motion . . . unless the failure [to disclose] was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). This rule seeks to deter the unfair practice of sandbagging the
opposing party. Globalrock Networks, Inc. v. MCI Commc’ns Servs. Inc., 943 F. Supp. 2d 320,
329 (N.D.N.Y. 2013). “It [is] an exceedingly simple, perfunctory task to give notice of witnesses
as required by Rule 26(a)[] but one which [is] important to permit defendants to meet [the
expert’s] testimony.” Kullman v. New York, No. 07-CV-0716, 2009 WL 1562840, at *8
(N.D.N.Y. May 20, 2009). The pretrial scheduling order in this case required that Plaintiff
disclose her expert witness ninety days prior to the discovery deadline on February 1, 2017. Dkt.
No. 7 (“Pretrial Scheduling Order”) at 1–2. Instead, Plaintiff disclosed her expert witness six
months late on April 5, 2017, when she filed her Response. Resp at 6.
To determine whether an expert witness’s testimony should be excluded for failure to
timely disclose, a court should consider the following factors: “(1) the party’s explanation for the
failure to comply with the discovery order; (2) the importance of the testimony of the precluded
witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet
the new testimony; and (4) the possibility of a continuance.” Softel, Inc. v. Dragon Med. & Sci.
Commc’ns, 118 F.3d 955, 961 (2d Cir. 1997). Plaintiff has not justified the late disclosure and
7

this failure is clearly prejudicial to Defendant, which has had no opportunity to depose Plaintiff’s
expert. But Plaintiff’s expert testifies that the gap in question is larger than Defendant suggests.
Levine Aff. ¶ 10. This may prove to be important testimony at trial. Further, a continuance to
reopen discovery is appropriate when doing so may cure any prejudice resulting from the failure
to timely disclose the expert witness’s opinion. See, e.g., Chart v. Town of Parma,
No. 10-CV-6179, 2014 WL 4923166, at *27 (W.D.N.Y. Sept. 30, 2014) (“[M[uch of the
prejudice to the Town may be cured through reopening expert discovery.”); Brenton v. Consol.
Rail Corp., No. 00-CV-742, 2006 WL 1888598, at *4 (W.D.N.Y. July 7, 2006) (ordering
additional discovery related to untimely disclosed expert witness’ opinions). Thus, the Court
grants Defendant an opportunity to depose Plaintiff’s expert, conduct any other discovery
necessary to rebut the testimony of that expert, and supplement its own expert affidavit if
necessary. Scheduling and other matters related to this additional expert discovery are referred to
U.S. Magistrate Judge Christian F. Hummel.
D. Gap Negligence Claim
Plaintiff’s second theory of negligence is that Defendant maintained an unreasonably
large gap between the train and platform. Compl. ¶ 4. “While a claim of negligence does not
preclude the granting of summary judgment, courts are generally reluctant to grant summary
judgment in negligence cases because the assessment of reasonableness is generally a question of
fact ‘in all but the most extreme situations.’” Palmieri v. Celebrity Cruise Lines, Inc., No.
98-CV-2037, 1999 WL 494119, at *3 (S.D.N.Y. July 13, 1999) (quoting Ortiz v. Rosner, 817 F.
Supp. 348, 350–351 (S.D.N.Y. 1993)). Railroads have a duty “to provide proper and safe means
of getting from the platform of the cars to the platform of the station.” Boyce v. Manhattan Ry.
8

Co., 23 N.E. 304, 305 (N.Y. 1890). The gap between the train and the platform ensures that the
train does “not scrape the platform of the station, and [the car] must be far enough away to allow
for the oscillation and swaying of the train.” Ryan v. Manhattan Ry. Co., 23 N.E. 1131, 1131
(N.Y. 1890). Therefore, the mere fact that a gap exists is “not of itself negligence, if necessary in
the proper operation of the railroad.” Iorio v. Murray, 10 N.Y.S.2d 492, 494 (App. Div. 1939).
But a gap may evidence negligence if “passengers are not reasonably protected” from the dangers
it creates. Id.
Defendant argues that “a rail carrier who is compliant with applicable standards is not
liable for alleged negligence due to the space between the platform and the train, where plaintiff
fails to demonstrate the carrier’s breach of duty to ‘us[e] proper care to provide proper and safe
means of getting from the platform.’” Reply at 8 (quoting Boyce, 118 N.Y. at 318). This
argument fails for multiple reasons.
Under Defendant’s theory, a rail carrier is not liable for negligence if it complies with a
minimum seven inch gap standard. Defendant asserts that under New York law, high passenger
platforms, such as that found at the Albany/Rensselaer Station, must have at least a seven inch
gap between the platform and the train. Torisno Aff. ¶¶ 5–8; N.Y. R.R Law § 51-a (2). Notably,
the statute in question states that high passenger platforms “may be five feet seven inches from
the center line of the track,” creating a seven inch gap. N.Y. R.R. Law § 51-a (2) (emphasis
added). There is no language indicating that this clearance distance is a requirement. But the
Court need not interpret New York Railroad Law here. Even adopting Defendant’s interpretation
of the statute, summary judgment must be denied.

9

New York courts have firmly rejected the notion that rail carriers cannot be found
negligent if the gap between the platform and the train is within the applicable standard.
Tzilianos v. N.Y.C. Transit Auth., 936 N.Y.S.2d 159, 161 (App. Div. 2012); Sanchez v. City of
New York, 926 N.Y.S.2d 52, 53 (App. Div. 2011). The cases that find rail carriers to be
non-negligent are distinguishable because they involve compliance with a maximum gap while
Defendant has cited only its purported compliance with a minimum gap. Boyce, 118 N.Y. at 318;
Howell, 998 N.Y.S.2d at 127; Glover, 879 N.Y.S.2d at 41; Curtin v. Metro N. R.R., 2013 No.
112572/10 Lexis 3053, at *5–6 (N.Y. Sup. Ct. July 17, 2013). Under Defendant’s theory, it
would be equally immune to negligence claims if passengers were made to board across a seven
inch gap or a seven foot gap. This is an absurd proposition. A gap of exactly seven inches could
still establish negligence if passengers are not reasonably protected from the dangers it poses.
Iorio, 10 N.Y.S.2d at 494.
Moreover, Defendant has not provided any evidence indicating the actual width of the
gap. Torisno Aff. ¶¶ 5–8. Nor has it indicated that it complies with a maximum gap size set by
law or internal policy. Reply. A visual estimate of a gap can be used to raise a genuine issue of
material fact as to a rail carrier’s negligence. Sanchez, 926 N.Y.S.2d at 53 (citing Pemberton v.
N.Y.C. Transit Auth., 758 N.Y.S.2d 29, 31 (App. Div. 2003)). Plaintiff provided such a visual
estimate when she testified that the gap was large enough to accommodate the size of her body.
Pl. Dep. at 43:22–44:2. Further, her husband stated that he thought Plaintiff was going to fall
through the gap to the track below. Majette Dep. at 35:13–17. Plaintiff is an admittedly large
woman, and the diameter of her body suggests that the gap was approximately fourteen inches
wide. Resp. at 4. A reasonable jury could find that a fourteen inch gap evidences negligence. See
10

Boyce, 23 N.E. at 305 (holding that a reasonable jury could find a fourteen inch gap to be
evidence of negligence); Pemberton, 758 N.Y.S. 2d at 31 (denying summary judgment where the
gap was estimated to be between six to eight inches); Iorio, 10 N.Y.S.2d at 493 (finding that an
eleven inch gap was sufficient to be submit the case to a jury); Johnson v. N.Y.C. Transit Auth.,
794 N.Y.S.2d 564, 566 (N.Y. App. Term 2005) (holding that a gap between eight to fourteen
inches was enough for a reasonable jury to infer negligence). Further, the mere fact that the entire
leg of such a large woman was able to fall through the gap would allow a rational jury to find that
Defendant was negligent. Sanchez, 926 N.Y.S.2d at 53; Pl. Dep. at 42:15–43:18. Thus, the Court
denies Defendant’s Motion with respect to the gap negligence claim.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant’s motion for summary judgment (Dkt. No. 14) is

GRANTED in part as to Plaintiff’s negligence claim premised on the wet condition of the train
and the platform, and DENIED in part as to Plaintiff’s negligence claim premised on the width
of the gap between the train and the platform; and it is further
ORDERED, that Defendant shall have a continuance to conduct additional expert
discovery in order to address Plaintiff’s expert witness’s opinion, and that scheduling and other
matters related to such additional discovery are referred to U.S. Magistrate Judge Christian F.
Hummel; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.

11

IT IS SO ORDERED.

DATED:

June 30, 2017
Albany, New York

12