(Newsday posted the following article by Zachary R. Dowdy on its website on August 23.)
NEW YORK — When LIRR president James Dermody acknowledged yesterday that the yawning gaps at some stations are “not a new problem,” he may have emboldened the litigants who are suing the agency for injuries they received when falling through the spaces between the train and platform.
At a minimum, Dermody may have helped plaintiffs pass a threshold test in potential negligence cases that determines whether a defendant was aware of a dangerous condition, according to area personal injury attorneys.
“The railroad is acknowledging they were aware of this existing defect and failed to take the necessary steps to correct this condition,” said Andrew B. Siben of Bay Shore, who is representing a woman who claims she fell through a gap in New Hyde Park in June.
“I think it’s a very honest statement, that the president is acknowledging they have a problem,” he said.
Siben’s client, Irene McDonald, filed a notice of claim, or an intention to sue letter, last week. She claims she hurt her left leg and needed skin graft surgery after dropping through a gap and onto her chest on June 14.
McDonald’s case and the renewed attention on the gap problem emerged after Natalie Smead, a Minnesota teenager, was struck and killed by a train on Aug. 5 after she fell through a gap and onto the tracks as she got off a train at the Woodside station.
Smead fell through but went under the platform to try to climb up from the other side — and was struck by an oncoming train.
Kenneth Seidell, a Smithtown attorney who serves on the Suffolk Bar Association’s insurance and negligence defense counsel committee, said Dermody’s words may help plaintiffs prove that the railroad knew about the problem but may not spark a flurry of fresh lawsuits.
“If it’s an admission by the individual from the railroad, it’s possibly a statement that can be used at trial with regard to the issue of notice,” said Seidell, a 20-year veteran in this area of law.
He added, though, that plaintiffs still must prove the gaps were an unnecessary peril to passengers.
“You still have to prove that there was a dangerous condition,” he said.