Tort Reform

Getting Hit By A Train Isn’t All It’s Cracked Up To Be

There’s a general feeling that if you sue New York City, you’re going to get paid. Certainly, if you sue NYPD, you can expect a settlement. Part of that is because the police have probably actually violated or brutalized you. Part of that is because the police department would rather pay you hush money than have a high profile exploration of their gestapo tactics.

The city’s litigious retreat doesn’t extend to the MTA. One would think that being hit by a train would put you on-track for a big settlement (did you see what I did there?). But apparently not, the MTA will fight you tooth and nail, all the way through trial and appeals, to prevent you from getting money from subway accidents. The city’s lawyers will run a train on you in court (yes, I’m having fun, thanks for asking).

And the city is probably right to do this. Have you really thought about how stupid most people are behaving when they’re hit by the subway?

The New York Daily News reports that the MTA manages to avoid a significant judgement against them in 90% of “man under” cases:

About 90% of the 92 “man-under” lawsuits that were resolved in the last five years ended in the Metropolitan Transportation Authority’s favor, according to a breakdown by the MTA.

The MTA didn’t pay a dime in 73 of those cases. It dispensed with another nine cases with paltry go-away payments averaging $40,000, according to the authority’s information. Five big cases did result in payoffs totaling $33 million.

Reflexively, that feels wrong to me. Getting hit by a train sounds like a significant medical hardship. Even if we don’t want to “punish” the MTA and city taxpayers with million dollar judgments, it still feels like the city is in the best position to help these victims of the subterranean iron horse pay their medical bills. Obviously, my solution to this (and really all issues of tort reform) is to have some kind of universal single-payer health care system so that tort law is just about balancing economic incentives of care, as opposed to a legal triage for desperate injured people.

But if wishes were tacos I’d be a happy man. Tort law is what it is, and so we are forced to look at the contributory negligence of subway accident victims:

In the MTA’s eyes, anyone who is hit by a train probably has no one else to blame but themselves, and the authority shouldn’t have to give away any taxpayer money, no matter how horrific the injuries inflicted. Riders enter the system drunk as skunks and fall onto the tracks. They sometimes moronically go to the tracks to retrieve umbrellas or cell phones. And they jump to commit suicide by train.

“We view the public interest as best served through the vigorous defense, often including trial, of lawsuits of this nature, in which individuals seek public funds after placing themselves in positions of obvious danger through their own illegal or reckless conduct,” said Martin Schnabel, general counsel of the MTA’s NYC Transit division.

I have a friend who got drunk, went down on the platform, then started walking through the service tunnels like a rank idiot with a death wish. When stopped by the transit cops, he said he was “exploring.” My friend emerged unharmed — and he’s a white friend so he wasn’t arrested either… had this been a brown friend he’d be in Guantanamo having sex with Carrie Mathison by now. But had he been rocked by the E during his travels, turning around and suing the city would be the height of hypocrisy.

It’s hard to think of a more “obvious danger” in this city than trying to provide service to Henry Blodget, but everything that happens on the New York City subway would have to come a close second. The trains are fast, the conductors are trying to keep on schedule, the tracks are narrow, crazy homeless people might push you down, and the whole situation is overcrowded most of the time. Yet people, regularly, tempt fate. They stand beyond the yellow line, peering over to see down the tunnel as if the sound of an approaching train isn’t enough of a warning. I’ve never seen someone actually jump on the track to retrieve a pointless bauble, but I was among 10 people who screamed “NO” while a man contemplated going down to get his newspaper (this was a long time ago). I can’t really fault the MTA for not paying people when their dumb behavior results in injury or death.

On the other hand, the subway could be safer. You shouldn’t have to be Neo to get off the subway tracks. If you can buy a freaking Audi with automatic-brake collision avoidance, you could design a subway car with the same capabilities. And a lot of subway injuries happen when the train is already in the station and then pulls off with a person stuck somewhere, and that’s a problem that could be relatively easily solved with more human conductors.

All those safety upgrades require money. But the MTA isn’t motivated to spend more money on safety, at least not when it’s so effective at beating back the tort claims of injured riders. Strangely, paying money to probably undeserving idiots is the only way to convince an institution like the MTA to make the world safer for all of us. Such is tort.

MTA pays nothing in majority of lawsuits for people who are hit by trains [New York Daily News]

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