(Newsday posted the following article by Joseph Mallia on its website on October 27.)
NEW YORK — The Long Island Rail Road should brace itself for more lawsuits following recent revelations that the railroad knew for years of the dangers posed by wide platform gaps throughout the rail system, lawyers said Thursday.
Each of the personal injury lawsuits — including another notice of claim filed Thursday — claims that the Metropolitan Transportation Authority and LIRR knew about the chronic problem but failed to take action.
“In the past month I’ve gotten 15 calls from people who fell through a gap,” said Kenneth Mollins, a Melville attorney.
Dozens of gap-related lawsuits have been brought against the LIRR and MTA in the past decade, court records show.
The transit agencies “can and will be exposed to significant liability, especially because there were so many complaints over the years. The complaints show that the LIRR knew of the problem. Every time there’s an injury, they’re on notice that these gaps are dangerous,” Mollins said.
Records show dozens of gap-related accidents in recent years.
During a board meeting this week in the midst of the gap controversy, MTA chairman Peter Kalikow praised the new acting LIRR president for addressing the gap problem by moving tracks.
The LIRR moved 2,000 feet of track closer to the station platform at the Shea Stadium stop in time for the baseball playoffs and began work this week at the Jamaica station. The railroad plans to move tracks at six other stations.
“Ray Kenny comes up with a simple solution: ‘Let’s move the tracks closer to the platform,’ ” Kalikow said.
” … We made Ray acting president and literally within weeks, days maybe, of that decision, he came to the fore, starting to solve a problem,” Kalikow said. ” … Rather than wringing our hands at an issue, he took his jacket off, rolled up his sleeves and something done.”
Afterward Kalikow and an MTA spokesman declined repeated requests to answer questions about why the tracks weren’t moved sooner.
“This should have been corrected,” said Robert Kelner, of Old Westbury, a Manhattan personal injury lawyer who also practices in Mineola.
“As a Long Islander, my personal view is that there is not even an argument for an excuse for the Long Island Rail Road not fixing this long ago.”
Since the August death of a Minnesota tourist who fell through a gap in Woodside, the railroad has admitted the problem, but telling passengers about a problem does not shift responsibility from the railroad, the lawyers said.
Peter Smead, whose daughter Natalie, 18, died in the Woodside accident, filed a $5-million notice of claim Monday.
“This is not like a crack in your sidewalk that someone trips over. This is a space large enough to allow a person to fall through,” Kelner said.
“What any railroad knows … is that, at rush hour, there is going to be a very high volume of people getting on and off the train. As a passenger, you don’t expect a gap where you’re going to fall to your death.”
Under New York State law, injury claims are subject in court to the concept of comparative fault, and in the gap cases the decisions will probably favor the passenger in deciding liability, Mollins predicted.
Based on his understanding of the facts in several well-publicized gap cases, Mollins said, “the railroad will probably be deemed to be 80 percent responsible. . . . The railroad has an obligation to prevent foreseeable harm.”
The burden of responsibility is with the people operating the railroad to create a reasonably safe way to get on and off the trains, the lawyers said.
“It’s important to establish whether they knew that the gaps were a problem and were able to do something about it, but didn’t do so,” said Larry Silverman, a Huntington lawyer and a former non-voting MTA board member representing commuters. In that case, he said, the LIRR could find itself on the losing end of numerous legal battles, Silverman said. “A jury might reasonably conclude that an incident would be less likely if the gap had been lessened.”