The lawsuit of a woman who fell while getting off the subway has been reinstated by an appellate court, which concluded that the New York City Transit Authority had not shown the reasonableness of its standard that the gap between the car and platform should be no more than six inches. The unanimous decision by the Appellate Division, First Department, in Tzilianos v. New York City Transit Authority, 6018, reversed a ruling by Manhattan Supreme Court Justice Michael Stallman (See Profile) granting summary judgment to the agency.

The agency argued that compliance with the six-inch standard proved that it was entitled to qualified immunity and that it was not negligent as a matter of law. But the panel noted that the Transit Authority submitted only a self-generated memorandum setting forth the six-inch gap rule without citing any basis for that standard. “In any event, even if we assumed defendant’s gap standard is reflective of an industry standard or a generally accepted safety practice, the fact that it complied with its own operating rule constitutes some evidence that it exercised due care, but is not conclusive on the issue of liability,” the panel held in an unsigned opinion. “A jury must be satisfied with the reasonableness of the common standard as well as to the reasonableness of the behavior that adhered to the practice.”

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