Kunnemeyer v. Long Is. R.R.
2021 NY Slip Op 07281
| N.Y. App. Div. | 2021Background
- Plaintiff Benjamin Kunnemeyer, while intoxicated and medicated, was lying on or near LIRR tracks in Patchogue around 12:40 a.m.; a westbound LIRR train struck him after an emergency stop could not prevent the collision.
- Train crew testified they saw the plaintiff from about two car lengths away, sounded the horn and initiated an emergency stop immediately; headlights were on bright and experts testified they could illuminate up to 800 feet.
- Plaintiff sued LIRR for negligence (failure to keep proper lookout, delayed horn/braking, crew distraction); case tried to a jury in Supreme Court, Suffolk County.
- Trial court charged the jury on the "open run" defense but omitted the PJI phrase "in broad daylight" because the accident occurred at night; plaintiff objected.
- The jury found LIRR not negligent and apportioned 100% fault to plaintiff; Supreme Court entered judgment for LIRR. Plaintiff appealed contesting the omission of "in broad daylight."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the "open run" defense applies only "in broad daylight" | Kunnemeyer: open run is historically tied to daytime; court must include "in broad daylight" limiting the defense to daytime situations | LIRR: defense depends on visibility, not time of day; can apply at night if train would be readily observable | Court: open run is not limited to daylight; applicable whenever train would be readily observable to a sensible person using ordinary senses |
| Whether the trial court properly modified the PJI by omitting "in broad daylight" | Kunnemeyer: omission departs from PJI and could confuse jurors; phrase matters | LIRR: modification tailored to facts (nighttime) and PJI is guidance, not mandatory word-for-word | Court: modification was appropriate and substantially complied with PJI given nighttime facts; omission avoided juror confusion |
| If the charge was improper, whether the error was reversible | Kunnemeyer: any erroneous omission warrants reversal | LIRR: any error was harmless because crew testified they acted immediately and plaintiff alleged crew should have seen him sooner, not that crew delayed after sighting | Court: even assuming error, it was harmless—verdict would be the same; jury found plaintiff entirely at fault |
Key Cases Cited
- Chrystal v. Troy & Boston R.R. Co., 105 N.Y. 164 (Court of Appeals 1887) (original articulation of open run principle, using phrase "in broad daylight" while emphasizing visibility)
- Fierro v. New York Cent. R.R. Co., 256 N.Y. 446 (Court of Appeals 1931) (reiterated open run rule focusing on times when the train is "perfectly visible")
- Coleman v. New York City Tr. Auth., 37 N.Y.2d 137 (Court of Appeals) (stated engineer may be held negligent only if train could reasonably have stopped before striking person)
- Guller v. Consolidated Rail Corp., 242 A.D.2d 283 (2d Dep't) (applied open run where train was "readily observable by the normal use of one's senses")
- Vadell v. Long Is. R.R. Co., 6 A.D.2d 88 (1st Dep't) (applied similar assumption-of-safety reasoning to nighttime crossing where warning devices were functioning)
- Kretik v. New York Cent. R.R. Co., 227 N.Y. 474 (Court of Appeals) (repeated open run principle in daytime context)
- Alba v. Long Is. R.R., 204 A.D.2d 143 (2d Dep't) (upheld issuance of open run charge where facts supported visibility)
- Green v. Downs, 27 N.Y.2d 205 (Court of Appeals) (pattern jury instructions may be modified to fit case facts)