Getting In Through the Back Door The Transit Authority's Interlock Defense Exposed

Transcription

1 Getting In Through the Back Door The Tranit Authority' Interlock Defene Expoed By David A. Roth, Eq. In light of thi and more the need ha become obviou to keep preing for everything that the Plaintiff are entitled to under the law. Thi dogged puruit of dicovery ha led u to uncover the truth behind the interlock defene to claim of bu accident liability. Roth Editor Note: The material referred to in thi article can be found in the member-only ection of the NYSTLA webite. In our practice we have found that litigation againt municipalitie i fraught with unuual difficultie and obtacle, but none o much a puruing a claim againt the New York City Tranit Authority. The Tranit Authority [hereinafter, TA ] conitently tall, frutrate, and imply fail to provide meaningful repone to dicovery no matter how many dicovery demand, conference, motion or Order are made. After many year of following how the Court countenance ometime grudgingly, ometime not thee tactical dicovery abue, it ha become clear to u that the way to uccefully proecute a TA claim i to follow up on all dicovery order and depoition to the utmot, requiring full ubtantive a well a technical compliance with the CPLR a well a other applicable tatute and rule. Aurance and promie accepted from or courteie extended to other in imilar ituation might prove to be counterproductive and even fatal where the TA i the defendant. Thi i not necearily volitional on the part of the attorney you will face, a much of the TA leight of hand ha been intitutionalized to occur before the lawyer ever get involved. Our mall office ha found intance of the TA: 1. Sending omeone to hopital to check on people who are injured in accident and gaining acce to them by howing badge a if they are there under the color of law enforcement authority. 2. Calling their dipatcher and then the ambulance to the cene of a ingle vehicle accident in which people on a bu are injured, though the police are not called by the Tranit Authority. 3. Routinely coercing plaintiff to go forward with depoition without providing the properly requeted and long-overdue dicovery neceary in order to conduct thoe depoition meaningfully. 4. Dicloing dicovery on the eve of or during trial often pecifically eeking to introduce to it own benefit document or witnee that it had pecifically warranted did not exit, were detroyed, or were overly burdenome to compile when plaintiff requeted it. Jerk Generally to maintain an action againt a bu for injury due to a lurch in New York State, a paenger mut etablih firt that the bu made an unuual and violent jerk, lurch or top. Then the burden hift to the bu company which mut come forward with an exculpatory explanation for aid udden unuual violent movement, which uually come in the form of a phantom, vehicle or peron either cutting the bu off or tepping out in front of it. Either circumtance would erve a an emergency not of the bu operator making, relieving the carrier of liability. 1 In repone, many attorney have tried to make the cae that the bu driver hould wait for the paenger to be eated or ecured after paenger board the bu and before pulling away from a top. Thi theory i reaonable the bu driver are trained to do thi but it i not in the PJI nor doe it eem to be actionable negligence under the preent tate of the law. 2 Not only doe the plaintiffpaenger have to prove the movement of the bu to be an unuual and violent jerk, lurch or top, but added to thi onerou burden i the requirement that there mut be ome independent corroboration for aid movement beyond a mere decriptive tatement of the plaintiff. 3 The mot oft-quoted cae in upport of thi Urguhart v. New York City Tranit Auth., 85 N.Y.2d 828, 647 N.E.2d 1346, 623 N.Y.S.2d 838 (1995) held (p)roof that the top wa unuual or violent mut conit of more than a mere characterization of the top in thoe term by the plaintiff. In order to etablih corroboration, the plaintiff may rely upon the defendant tetimony, other witnee tetimony or any objective evidence to etablih the violence, uddenne and/or unuualne of the top. In Foneca v. Manhattan and Bronx Surface Tranit Operating Auth., 14 A.D.3d 397, 788 N.Y.S.2d 99 (1t Dept. 2005), the court conidered plaintiff obervation of what happened when the bu topped intead of hi peronal characterization of the manner in which the bu topped, and thu the tetimony wa conidered factual, not concluory. Thi ha given paenger ome breathing room in the very narrow path toward proving a udden top cae. The plaintiff can tetify a to objective obervation that etablih the unuualne of the top, uch a if other paenger fell, or if package fell 4 and rolled forward. 40

2 It hould be noted that there have been a few cae which treat the plaintiff decription of the movement of the bu a a fact rather than a concluion, which can be of immene help in the right circumtance. 5 Recently, Grant v. New York City Tranit Auth., 61 A.D.3d 422, 877 N.Y.S.2d 31 (1t Dept. 2009), revered the lower court awarding ummary judgment to the Tranit Authority, tating:... plaintiff proof wa ufficient to raie a triable iue of fact a to whether defendant wa negligent. Plaintiff, who wa 29 year old at the time of the accident, tetified that building within hi view eemed to be moving by very quickly a the bu engine made a high-pitched ound. Plaintiff etimated the bu peed to be at leat 35 to 40 mile per hour immediately before deceleration. Plaintiff added that when the bu topped, he wa launched into the air even though he wa holding the overhead grip. It wa alo plaintiff tetimony that the bu udden top caued another tandee to fall to hi knee. Such tetimony contitute objective evidence that the force of the top wa ufficient to etablih an inference that the top wa extraordinary and violent, of a different cla than the jerk and jolt commonly experienced in city bu travel and, therefore, attributable to the negligence of defendant. It i important to undertand the proof required to meet udden, unuual and violent jerk, lurche or top, in invetigating the claim, finding witnee, a well a drafting pleading and generally proecuting the cae. The Burden Shift Once the paenger how that the top wa unuual or violent, the common carrier may then how that the caue of the udden and/or violent lurch or top wa caued by an emergency not of the common carrier own making. [See PJI 2:165 in Endnote 1.] Of coure, once an emergency defene i raied, the reult will be exceedingly fact-pecific: thee cae are won and lot on the proof. What eem patently unfair i that the court have held that unle there i evidence to contradict the phantom cut-off, then the carrier win even when the defene tetimony itelf i not credible. An intructive intance i our office cae of Brook v. New York City Tranit Auth., 19 A.D.3d 162, 798 N.Y.S.2d 381(1t Dept. 2005). Therein, becaue plaintiff wa in the back of the bu, he therefore could not contradict the bu driver tetimony about the emergency cut-off. The Brook court held, (i)n oppoition, plaintiff failed to adduce any evidence tending to how that the bu driver created the emergency or could have avoided a colliion with the cab by taking ome action other than applying hi brake. Accordingly, the motion court properly invoked the emergency doctrine in finding that no iue of fact exit a to defendant-repondent negligence (ee Gonzalez v. City of New York, 295 A.D.2d 122, 742 N.Y.S.2d 301 [2002]). However, the bu driver need to brake to avoid a colliion wa never in iue: what we did attack wa hi credibility and the impoibility of hi tetimony. The court ignored that the bu driver claimed he wa operating hi bu at ten mile per hour and firt aw the cab pull out and top in front of him two feet away, yet wa able to bring hi bu to a complete top in 2 feet without contacting the cab depite traveling at a rate of fourteen feet per econd when firt potting the cab! Even if the bu driver had uperior reflexe, there wa no way he could have topped the bu from hitting the cab under the fact adduced in thi cae. To make matter wore, the bu driver had tetified differently on four prior occaion about key fact in the cae. Neverthele, the majority dicounted all of the conflicting tetimony from the bu driver and concluded that the Plaintiff failed to etablih that it wa not an emergency (a tellar dient by Jutice Saxe notwithtanding). The reult i that emergency doctrine in thi ituation i difficult to oppoe no matter how incredible the bu driver tetimony: any inherent imperfection in plaintiff account i near fatal, yet nearly all uch weaknee in the defendant account are overlooked, no matter how crucial. 6 The Interlock A few year ago we had the mifortune to learn about thi new defene proffered by the Tranit Authority to udden, unuual violent top, jerk or lurch cae. The interlock i an additional mechanim on a bu which can prevent the bu from moving when it i topped, and/or caue the bu to top when the rear door are puhed upon or opened while the bu i moving. According to Tranit Authority witnee produced in the coure of litigation, whenever the rear door of one of thee newer bue in motion are opened due to preure on them in any manner, for any reaon or at any time, the interlock will activate and top the bu. 7 Thi made no ene to u, and we came to learn i that it i extremely mileading. If thi were true in the manner worn to by the TA expert, it would mean that every paenger on a NYCTA bu in the City of New York ha in effect one foot on the brake and could caue the bu to top at any moment by imply preing or accidentally leaning on the rear door. We dicovered thi i far from accurate. 42

3 The baic way the interlock DOES work i a follow: when the bu i at a complete top, the rear door exit i deigned to be opened by paenger ONLY after the bu operator move the control lever to an open door poition with the brake pedal depreed, thereby activating the rear door interlock. Thi engage the brake and if the bu ha the optional throttle interlock relay then thi deactivate power to an electronic throttle or cut off the air flow to a pneumatic throttle. Thi then prevent the bu from moving with the rear door open. The door now unlocked, it can be opened by a paenger applying phyical preure to the door or by preing the enitized touch tape mounted above the door handle. When the door control lever i in a cloed poition, the rear door return to a cloed poition by pring preure and mechanically lock. In order to releae the interlock ytem, the operator mut depre the brake pedal to allow the bu to move. If and when the door are lightly opened due to applied preure, a when omeone accidentally lean on the door, the interlock will activate and top the bu. In hort, the interlock i a afety feature that mut be engaged and diengaged properly by the bu operator. It i NOT a it i portrayed: an automatic feature that reflexively prevent udden top, lurche, or violent motion. Thi i epecially important in two pecific type of cae that routinely get idetracked on interlock iue: where the defene claim the bu cannot move with the door open, and where the defene poition i that the bu topped uddenly becaue omeone puhed on the rear door. In order to fully undertand both the operation of the interlock in conjunction with the cae at hand, a well a to be able to explain it effectively to a jury at trial or to a court upon motion detailed and orderly dicovery mut be doggedly purued, epecially for the technical diagram, pecification, and intructional material regarding the interlock. The NYCTA ha interpoed the interlock defene to avoid reponibility for many udden top and for thoe intance where the bu i topped letting people off and then move while the rear door are open. Thi defene ha been ued uccefully for many year. 8 In fact, until Crane v. NYCTA, the defene wa almot alway ucceful. The only other cae in which there wa a ucceful outcome wa where the jury found that the interlock ytem wa defective. 9 The cae of Crane v. New York City Tranit Auth., 60 A.D.3d 467, 874 N.Y.S.2d 112 (1t Dept. 2009) i important becaue therein dicovery firt revealed that the interlock wa not a automatic a the Tranit Authority would have plaintiff and the court believe. If the information gleaned from the Roth Winter

4 dicovery obtained in Crane i utilized, thi defene hould not be quite o effective or fearome. There i, after all, an operational component of the interlock device that previouly wa deemed to be automatic by the court, thu requiring proof of a defect in the interlock ytem to make a cae for plaintiff. In Crane, the plaintiff wa a paenger in a NYCTA bu which abruptly topped hort. The Tranit Authority firt claimed that the interlock defene would get the cae dimied at the Preliminary Conference (!?!). Then through many year, numerou conference and everal motion it refued to turn over the relevant document pertaining to the interlock operation and manual, intead attempting to force plaintiff to do a depoition of their interlock expert firt. Thi i typical for intitutional defendant and mut be fought trenuouly when you need dicovery from the defendant to prove your cae. In the Crane cae there were thirteen appearance on conference a well a dicovery motion that were adjourned multiple time o that the TA could repond to plaintiff combined demand regarding the interlock pecification and material. The Tranit Authority took the poition that they could never loe thi cae a it wa the interlock that caued the bu to top uddenly: it went o far a to allow it bu driver to be precluded from tetifying and wa going to rely olely upon it interlock expert and the eyewitne tetimony from a paenger on the bu to defend the cae. Ultimately, plaintiff prevailed on motion both at the Supreme Court and Appellate Diviion Firt Department level, where the court utained the finding of ummary judgment on liability to the plaintiff. Appellate Diviion further analyzed the cae to ee who controlled the interlock, whether it wa operated properly, and whether it wa working properly. The Crane court held that: Defendant oppoition to ummary judgment wa inufficient to create a triable iue of fact. Their contention that the bu topped uddenly becaue a paenger puhed on the rear door, poibly activating the bu rear door interlock braking mechanim, wa unupported by evidence a to how the mechanim worked and a to whether it wa functioning properly and wa operated properly by the bu driver at the time and on the bu in quetion. The key here i in the phrae operated properly in the court deciion. The difference between the need for operation and it happening automatically i a ignificant hift away from the way in which the interlock had been viewed previouly. The fact that ome action by the bu driver can affect the operation of the interlock mean that imply finding that it wa functioning properly will no longer warrant ummary judgment when a bu i alleged to have moved with it rear door open. If the jury find that the bu moved, then it may alo find that the bu driver either didn t operate the interlock properly or may have activated the emergency override a another explanation of why the bu wa able to move. And court hould permit dicovery a well a trial tetimony on that iue. The ucce on thi matter wa directly related to the tenacity with which we purued the dicovery and the refual to take defendant depoition until we got the dicovery we needed, which made the depoition a more powerful tool than uual. What wa finally exchanged revealed variou weaknee in the TA interlock defene. It wa revealed that the interlock need to be et in the firt place; that it could be overridden by a witch that the bu driver can ue to diable the interlock ytem; that it only function under two mile per hour; and that if the driver did not wait long enough (at leat three to five econd) to proceed after having been topped (letting paenger on and off), then the bu could lurch to a top abruptly injuring paenger. Thi information i crucial to undertand when proecuting a cae and defending againt ummary judgment where an interlock i implicated. (One of the pertinent page from the manual exchanged i available on the memberonly portion of the NYSTLA webite it literally took year to procure thi dicovery.) Although the lower court merely found that the Tranit Authority did not meet it burden to oppoe ummary judgment, the The difference between winning and loing an interlock cae i the continuing fight to get the requiite dicovery. The pec for the interlock device indicate that it mut be operated properly, that it i not automatic, and a far a puhing on the door to bring the bu to a halt that would only apply under two mile an hour! Thi lead to the inecapable concluion that if it wa a violent udden jerk which caued a paenger to fall down, then either the interlock wa not properly et or it wa not operated correctly; becaue in the abence of negligence the interlock will not engage if the bu i traveling at a peed of more than two mile per hour. If there i tetimony that the bu wa traveling at a peed greater than two mile per hour and the claim i that the interlock brought the bu to a udden top, then by definition it wa defective. In reading the brief from the other cae cited in thi article, it become clear that the plaintiff were never given the proper dicovery material and manual pertaining to the interlock device. 44

5 In Ramo-German, the Bronx jury found the TA to be 60% liable for damage to the plaintiff, who wa hurt exiting the rear interlocked door when the bu hook and moved, and awarded the um of $375, The Appellate Diviion Firt Department revered the award and dimied the cae finding: that there wa evidence preented that the interlock ytem would not permit the bu to move while the rear door were open; that the bu had been inpected and the interlock ytem wa functioning properly; and that Plaintiff offered no expert tetimony a to how or why the bu might have moved a M. Ramo- German alighted from the bu, and no evidence that defendant had actual or contructive notice of uch malfunction. The court alo found that there wa no valid line of reaoning and permiible inference that could poibly have led a rational finder of fact to reach the verdict herein. The TA expert relied upon in Ramo-German tetified extenively about the interlock and the court obviouly relied upon that tetimony in dimiing the plaintiff cae. An excerpt of the tetimony from the TA appellate brief follow: A to the operation of the interlock ytem itelf, (the expert) explained a did Neball, that when the operator pulled into a bu top, he or he moved a lever on the left forward which prepared the interlock ytem for activation ( ). He or he then depreed the brake pedal which activated the ytem, diabling the accelerator pedal o the bu could not move no matter what ele he or he did (1008). A imple reading of the manual contradict thi expert tetimony: WARNING: Apply the ervice brake or parking brake before placing the door mater witch in the ON poition. The ervice brake interlock will be deactivated and the bu can roll. [Orion bu manual and ] Additionally it clearly tate that the door mater witch can be ued to move the vehicle to a afe location in the event of an exit door or interlock or malfunction. The manual alo ay that moving the door mater witch to ON will deactivate all interlock and exit door control. Without quetion, then, the bu could in fact be moved if the bu operator engaged the door mater witch, according to the manufacturer manual of operation. In fact, the manual include warning againt doing thi (with big top ign ymbol next to them), deliberately or inadvertently. If the Appellate Diviion or the plaintiff - had thi information, the outcome would have been different for the everely injured M. Ramo-German. The TA did not exchange the manual regarding the interlock in thi cae. The imple language of even the mot baic Preliminary Conference order hould have led to the exchange of the manual pertaining to the interlock ytem. All court rely upon the forthright preentation of evidence by both partie. In thi intance, the TA maintained and kept manual regarding the interlock, yet thi crucial information wa not exchanged with oppoing counel or the trial and appellate court. The Orion Bu Manual itelf would have provided the court with that very valid line of reaoning that could have led a rational finder of fact to jutifiably find in plaintiff favor. Unfortunately neither plaintiff counel nor the Appellate Diviion had the benefit of thi manual, which hould have been exchanged yet wa not. The Plaintiff Repondent brief how how the plaintiff wa materially prejudiced by not having the manual regarding the interlock ytem during the cro of the defendant witnee. Quoting from the re-cro of the defendant expert from Ramo- German (ee Endnote 8): On re-cro, plaintiff counel had one quetion: whether he could explain how the bu could have haken forward and backward while omeone wa getting off it; the anwer wa No (1064). After finally obtaining the interlock manual that how it mut be operated and i not imply automatic, then the anwer to thi quetion can be that the interlock wa not operated correctly even if it wa functioning properly. In Ramo-German, and any cae where it i alleged the bu i moving with the rear door open, we have now dicovered at leat two way in which the bu could move without the interlock being defective: the bu driver might not have et the interlock to begin with, or the bu driver might have engaged the auxiliary bypa witch (door mater witch). The manual indicate that thi witch hould only be ued in an emergency but it allow for the poibility of driver error or action which could explain how the bu could move without the interlock failing. The Orion Service manual ha four eparate top ign image indicating that if the door mater witch i activated, the interlock will be deactivated and that the parking brake mut be put on or the bu can roll. Unquetionably thee warning clearly etablih that the operator of the bu can engage the door mater witch which can deactivate the interlock ytem and permit the bu to move. In light of the clear warning in the Orion Bu Manual, to be generou, it i improbable that the TA expert in Ramo-German would not be aware that if the door mater witch wa put in the ON poition then the bu could hake 46

6 back and forth. It i equally clear that the manual wa not exchanged with either the plaintiff counel 10 or the court. in oppoing ummary judgment, a well a on appeal where the interlock defene i being proffered by the Tranit Authority. It hould alo be noted that in the Orion Service Manual it clearly tate that the throttle interlock i optional; the plaintiff mut get the make and model of the bu and determine whether the bu ha a throttle interlock. If the bu doe not have a throttle interlock, the ability of the bu driver to pre the accelerator while the interlock i engaged and rock the bu i at leat plauible and could explain bu movement even with the interlock engaged. Thi theory would need to be invetigated through depoition and expert conultation. The mere repreentation by the TA at trial or depoition that, when the rear door are open the interlock engage automatically and the bu imply cannot move unle there i an interlock malfunction, hould no longer be taken by the court at face value. In the other cae uch a Gilbert or Crane, where the bu wa moving and came to a udden top allegedly becaue a paenger puhed or leaned on the rear door, the manual give an alternate explanation for the hort top. The manual clearly tate that if the bu driver pull away too quickly then the bu can come to an abrupt top. Thi information i critical to plaintiff Hopefully thi information will be helpful in maintaining thee cae whenever an innocent paenger i injured when a bu move while the rear door are open or when it i claimed that omeone puhed on or opened the rear door while the bu wa moving cauing the bu to top. Additionally it hould be an aid in defending againt the Tranit Authority motion for ummary judgment a well a appeal pot-plaintiff -verdict in explaining that thee can and hould be quetion of fact for the jury. Prior to eliciting thi information about the interlock the plaintiff would have to how that there wa omething wrong with the interlock ytem. Becaue plaintiff can now how thee are operational iue no different than teering or braking, there can be a negligent explanation for the movement of the bu. If a bu move while paenger are alighting then the reaon can be that bu driver failed to operate the interlock correctly. Previouly it wa imply impoible to make that argument. The myth of a fail-afe automatic interlock ha been debunked. Roth ExpErt MEdical WitnE David A. Mayer, MD, FACS Minimally Invaive Surgery, P.C. 19 Southdown Road Huntington, NY Ph: Fax: dmayer3091@aol.com General / Vacular / Bariatric Surgery Ivy League-trained IME pioneer Surgery Profeor 25 Year Trial Experience Chairman of Surgery Timeline and an organized office Winter

7 1 PJI 2:165 Common Carrier Duty to Paenger Sudden Stop or Jerk: A common carrier, uch a (a railroad, ubway, bu company, taxi cab company, etc.), owe a duty to ue reaonable care for the afety of it paenger. However, becaue tarting, lowing or topping may not alway be done moothly, and occaionally there may be ome jolting, a carrier i not liable for injurie to a paenger when that happen. A paenger mut alo ue reaonable care for hi or her own protection. But, in the abence of an emergency, the carrier mut avoid udden, unuual and violent jerk, lurche or top. If you find that the movement or top of the (bu, cab, ubway, railroad) wa unnecearily udden, unuual and violent, or, if neceary, it reulted from an emergency created or contributed to by the carrier own conduct, then you will find that the carrier wa negligent. If, however, you find that the top or movement wa not udden, unuual or violent, or that, if it wa, uch top or movement wa made neceary becaue of an emergency and that uch emergency wa not created by or contributed to by the carrier, your finding will be that the carrier wa not negligent. 2 McLeod v. County of Wetcheter, 38 A.D.3d 624, 831 N.Y.S.2d 550, (2nd Dept. 2007) The operator of the bu wa not required to wait until the plaintiff found a eat before proceeding... 3 PJI 2:165 To utain a verdict for plaintiff there mut be other evidence that the bu wa propelled forward with unuual and unneceary force, beyond plaintiff mere claim that it lurched forward with unneceary force, Taylor v. Wetcheter St. Tranp. Co., 276 App. Div. 874, 93 N.Y.S.2d 395 (2nd Dept. 1949). 4 The bu driver gave a conflicting account of the incident. While admitting that he heard but did not ee plaintiff fall, he tated that he oberved plaintiff and hi package trewn on the floor of the bu, and that he immediately went to plaintiff aitance. Foneca v. Manhattan and Bronx Surface Tranit Operating Auth., 14 A.D.3d 397, 788 N.Y.S.2d 99 (1t Dept. 2005) 5 In the commentarie of PJI 2:165 it tate...plaintiff claim that the bu wa traveling at a high rate of peed when it came to a udden, unuual and violent top, cauing a crowd of people tanding behind her to be thrown againt her, wa ufficient to defeat a motion for ummary judgment, Harri v. Manhattan & Bronx Surface Tranit Operating Auth., 138 A.D.2d 56, 529 N.Y.S.2d 290 (1t Dept. 1988); Dialvatore v. New York City Tranit Auth., 45 A.D.3d 402, 845 N.Y.S.2d 312 (1t Dept. 2007) (defendant ummary judgment motion properly denied where plaintiff tetified at depoition that he walked hakily toward eat becaue bu wa peeding, waying, jolting from ide to ide, bouncing up and down and moving erratically ; plaintiff alo tetified that he had never experienced anything like it on any bu and that he wa thrown a bu made harp turn while traveling quite fat ). It wa held error to utain an objection to the quetion whether the top wa the uual and ordinary top, Lombardi v. New York Ry., 224 App. Div. 438, 231 N.Y.S. 306 (4th Dept. 1928). The court held that becaue the plaintiff wa accutomed to riding on treet car, the evidence ought by the quetion wa decriptive and called for a fact, rather than for a concluion. 6 When defending againt a motion for ummary judgment by the Tranit Authority relying upon the emergency doctrine, there i ome hope! See Edward v. New York City Tranit Auth., 37 A.D.3d 157, 829 N.Y.S.2d 462 (1t Dept. 2007) where the Court found the emergency to be a quetion of fact for the jury baed olely upon the tetimony of the driver and the paenger plaintiff. 7 The bu model in quetion i New Flyer Arctic. It wa manufactured by New Flyer Indutrie Limited. 8 Gilbert et. al v. NYCTA, /04 Supreme Court, New York County wa lot on the interlock defene of omeone puhing on the rear door cauing the bu to top. Ramo-German v. New York City Tranit Auth., 39 A.D.3d 415, 835 N.Y.S.2d 94 (1t Dept. 2007) The Appellate Diviion Firt Department overturned a $375, verdict and found that Defendant preented evidence, including maintenance record and extenive expert tetimony a to the deign and operation of the paenger-operated rear door of the bu from which plaintiff Ramo-German allegedly fell, which howed that it interlock brake ytem would not permit it to move while the rear door were in ue, and that thee feature were duly inpected and teted on the day of the accident and were functioning properly. Plaintiff only evidence a to defendant liability wa M. Ramo-German tetimony that a he diembarked, the bu moved, cauing her to fall, and the tatement of a depoed witne who died prior to trial, which tated that the bu hook. 9 Ha v. Manhattan and Bronx Surface Tranit Operating Auth., 204 A.D.2d 208, 612 N.Y.S.2d 134 (1t Dept. 1994). 10 Plaintiff counel on Ramo-German confirmed that the manual had not been exchanged either before or at trial. David Roth i a member of the Board of Director of NYSTLA and a Committee activit. He i partner with hi wife Audra Roth in the Manhattan firm of Roth & Roth, LLP. He ha been litigating cae involving all area of peronal injury on behalf of plaintiff for approximately 20 year. Recently hi practice ha concentrated on complicated municipal liability a well a Traumatic Brain Injury (TBI) and other ignificant injury cae. The author wihe to thank Marc Dittenhoefer for hi invaluable aitance with thi article. 48