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Transit authority negligence - Alleged failure to properly maintain wall next to subway platform - Recurring water leak attracts pigeons - Plaintiff allegedly slips on water and pigeon feces and falls to tracks - Leg fractures - Four surgeries - Defendant contends leak confined to area near wall of station some 13 feet from edge of platform.

Bronx County, NY

The plaintiff contended that the defendant transit authority negligently failed to properly repair a recurring leaking condition that emanated from the subway station wall. This area of the station was enclosed and the other end of the station led from a tunnel. The plaintiff’s expert engineer maintained that the recurring water attracted pigeons from the far end of the station and resulted in the presence of pigeon feces in the water. The plaintiff maintained that the combination rendered the area particularly slippery and the plaintiff’s engineer maintained that until repairs were properly effectuated, warning signs should have been placed. The defendant maintained that the leak was confined to the area immediately next to the wall that was situated some 13 feet from the tracks and that it was clear that the plaintiff did not fall onto the tracks as a result of the leak.

The plaintiff maintained that the leaking and feces condition extended to within five to seven feet of the tracks and that he fell as a result of the defect. The defendant presented three employees who inspected the platform immediately after the incident who supported the defendant’s position. The investigating officer testified consistent with his report that the leak did not extend to the area the plaintiff fell.

The plaintiff suffered spiral fractures to the leg and has required some four surgical interventions. The plaintiff’s orthopedist related that a fifth surgery has been recommended. The orthopedist maintained that the plaintiff will, none-the-less suffer, permanent pain and difficulties ambulating.

The plaintiff held a seasonal job and worked from April to September. The defendant maintained that the jury should consider, on the issue of credibility, that the plaintiff made claims for being unable to work during periods he would have been out of work because of the time of year.

The jury found for the defendant.

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