Was Daytime “Open Run” Defense Dispositive?

For more than a century, New York courts have recognized the so-called “open run” defense, which permits a train engineer who sees a person on or near the tracks ahead to assume, under certain circumstances, that the person will notice the oncoming train and leave the tracks in time to avoid an accident. When the open run defense is applicable, the engineer has no duty to make an emergency stop unless he or she determines that the person cannot or will not leave the tracks.

A recent case raised a novel issue:

Was the open run defense applicable only when the train was operating “in broad daylight”.

If not so limited, was the defense applicable under any circumstances in which an oncoming train would be readily observable to a person on or near the tracks making reasonable use of his or her senses?

In late May 2009, Benjamin Kunnemeyer, then 30-years-old, was living in a supportive housing facility located in Patchogue for individuals with a history of substance abuse. At that time, he was taking prescribed Suboxone for the treatment of opioid addiction, once every morning. According to his testimony, he was aware that he should not consume alcohol while taking Suboxone because “it could intensify the effects.”

Kunnemeyer testified that, on May 28, 2009, he “got into a very bad argument with [his] girlfriend.” On May 29, 2009, at approximately 9:00 a.m., he woke up and took Suboxone. And, “want[ing] to feel numb” because he thought his relationship with his girlfriend “was ending,” he purchased seven 1 mg pills of Xanax at approximately 12:00 to 12:30 p.m., and took all of the pills at that time. Later that day, at approximately 4:00 to 5:00 p.m., Kunnemeyer purchased a 24-ounce can of malt liquor beer, a beer with high alcohol content. At approximately 7:30 to 8:00 p.m., he opened the can of malt liquor beer and started to drink it. At approximately 10:00 to 10:30 p.m., Kunnemeyer went to a McDonald’s restaurant for food, at which time he felt the Xanax was “wearing off.” And he drank his malt liquor beer.

After staying at McDonald’s for approximately 30 to 45 minutes, Kunnemeyer left and started walking toward the housing facility on a path that required him to cross from the north side of the railroad tracks that ran along Robinson Boulevard in Patchogue to the south side of the tracks to reach Hewlett Avenue. He testified that, before crossing the tracks, he decided not to return to the housing facility to avoid “them . . . smell[ing] beer on [his] breath[ ].” Instead, Kunnemeyer walked westward along the north side of the tracks to meet some “beer drinkers in the neighborhood” with whom he planned to “finish [his] beer.”

On May 29, 2009, at approximately 10:38 p.m., a train operated by the Long Island Railroad left Montauk at the start of its route on the “Montauk line” and headed toward the Jamaica station. The train crew included Peter Cardone, the engineer, Alfred Bukofsky, the brakeman, and Michael Panzica, the conductor. While traveling westbound, Cardone was in the engineer’s compartment of the cab car, from which he could look through a window at the tracks ahead.

On May 30, 2009, at approximately 12:24 a.m., the train was at the Bellport station. After leaving the Bellport station, the train proceeded west toward the Patchogue station, and entered a restricted speed area requiring the train to move no faster than 40 miles per hour.

At approximately 12:40 a.m., the train was moving at approximately 39 miles per hour as it neared a crossing east of the Patchogue station for vehicles driving on Conklin Avenue to pass over the tracks. Panzica and Bukofsky were in the engineer’s compartment of the cab car in close proximity to Cardone. According to Cardone’s testimony, since it was “dark and foggy,” the train’s headlights were turned on and set to “bright.” At that time, Cardone observed what “appeared to be a person laying down,” who would later be identified as Kunnemeyer, on the south side of the tracks no farther than two car lengths ahead. At approximately the same time, Panzica and Bukofsky first observed Kunnemeyer.

As soon as he observed Kennemeyer, Cardone sounded the horn and “dumped the train, which is railroad vernacular” for triggering an emergency stop. Kunnemeyer, who was lying on his back near the tracks with one leg extended over the rails, did not move. The train was not able to stop in time and struck Kunnemeyer. Once the train came to a stop, Cardone walked along the south side of the tracks and located Kunnemeyer by the fifth car. Cardone then spoke with Kunnemeyer, who was conscious and able to communicate his name and age.

After being transported to a hospital, Kennemeyer tested positive for the presence of marijuana and Benzodiazepine, and had a blood alcohol content of 0.081%.

In December 2009, Kennemeyer sued the LIRR and the Metropolitan Transit Authority to recover damages for personal injuries. And alleged that the operator of the train “failed to keep a proper lookout” or to “timely . . . sound the horn . . . and apply the brakes,” and that “members of the train crew were in the engineer’s cabin at the time of the incident and . . . distracted the engineer from his duties.”

In October 2017, Supreme Court conducted a jury trial on the issue of liability. During the trial, Kunnemeyer discontinued the action as  against the MTA, leaving the LIRR as the sole defendant.

At trial, the witnesses were Kunnemeyer,  Bukofsky, Cardone and Panzica. Also, a meteorologist, Michael Merin, and two expert witnesses on lighting, Carl Everett and Carl Berkowitz.

The train crew, Bukofsky, Cardone, and Panzica, consistently testified that, as soon as Kunnemeyer came into view on the tracks ahead, they simultaneously cursed and Cardone immediately sounded the horn and “dumped the train.” Bukofsky, Cardone, and Panzica also testified that it was foggy at the time of the accident, which Cardone stated impeded his “long range vision.” However, Bukofsky acknowledged “it was a high fog” that was not at the level of the train or the tracks. Panzica conceded that “fog was not an issue” with visibility when he looked out the front window of the train. Merin, the meteorologist, testified that at the time and location of the accident, there was “only mist,” which would allow for visibility of at least a half mile.

The expert witness Everett testified that federal regulations mandated the use of headlights with a brightness of 200,000 candelas each, which were capable of illuminating an object up to 800 feet away. Berkowitz and Bukofsky both testified that the tracks were straight, without any curves, in the area of the accident. Everett further stated that he and Berkowitz conducted a test with two train headlights matching the regulations raised to approximately six feet above the ground in the area where the accident occurred between 11:30 p.m. to 12:30 a.m. Berkowitz verified that the light illuminated a person up to 800 feet away and did not attribute the accident to a lack of visibility, but rather opined that “an attentive crew would have seen [Kunnemeyer] much sooner.”

The LIRR presented testimony from James Shiminski, road foreman of engines for the LIRR. Shiminski testified that the train moved a distance of 515 feet before coming to a complete stop after the emergency stop was triggered, which took approximately 16 seconds.

Following the close of evidence, the Court conducted a charge conference outside the presence of the jury. During the conference, the Court indicated that it intended to charge the jury with a modified version of the pattern jury instructions for the “open run” defense and read to the attorneys the charge as written in the pattern jury instructions, as follows:

“In deciding whether the railroad exercised due care, you should bear in mind that a train engineer, who sees a person on or near the tracks in broad daylight, is not bound to stop the train immediately but has the right to assume the person will see and hear the train and heed the danger and leave the tracks.”

The Court informed the attorneys that it intended to omit the words “in broad daylight” from the charge, since “[t]he [accident] happened at night.” And stated that:

“[t]he concept of whether or not a person who’s on the track can see a train in broad daylight and be able to make a decision . . . of the danger, is, in my opinion, no different than a person on the track at night who would be able to perceive the danger just as well . . . as he could in the day because of lights, because of the rumbling of the train, because of the noise of the train.”

LIRR’s attorney objected to the Court’s ruling, stating, “out of all the cases that we’ve . . . seen that apply to the open run rule, they all happened at daytime.” The LIRR’s attorney requested that the Court either not issue the charge, or if it decided to issue the charge, to include the words “in broad daylight” and “[l]et the jury make a determination what to do with that.” The Court adhered to its ruling.

After the jurors returned to the courtroom, the attorneys delivered their summations. During the summation, the LIRR’s attorney argued that “[a]s soon as the [ train crew] saw [Kunnemeyer], they reacted,” and that Cardone’s visibility “was cut down because of . . . the foggy conditions.” During the summation of Kunnemeyer’s attorney, he asserted that the train crew was “not paying attention in that cabin,” and that the fog “was not an issue” due to the “powerful headlight[s].”

Following the summations, the Court charged the jury, as follows:

“In deciding whether the railroad exercised due care, you should bear in mind that a train engineer who sees a person on or near the track is not bound to stop the train immediately, but has the right to assume that the person will see and hear the train, heed the danger and leave the track. In such a situation, the engineer has no duty to make an emergency stop until he or she determines that the person cannot or will not leave the area on the track.”

The jury returned a verdict finding that the LIRR was not negligent. Although the verdict sheet did not require the jurors to answer any additional questions if they found the LIRR was not negligent, the jurors proceeded to answer the remaining questions. The Court stated on the record that the jurors also found that Kunnemeyer was negligent; his negligence was a substantial factor in causing the accident; and Kunnemeyer was 100 percent at fault and the LIRR was zero percent  at fault.

On April 5, 2018, Supreme Court entered a judgment in favor of the LIRR and against Kunnemeyer dismissing the complaint. Kunnemeyer appealed, arguing that the Court erred in omitting the words “in broad daylight” from the jury charge on the open run defense.

The so-called “open run” defense was traced back to an 1887 decision by the Court of Appeals in Chrystal v Troy & Boston R.R. Co.

In Chrystal, the injured plaintiff was a 17-month-old infant, who allegedly was left to nap on the floor inside his home, and left the home without his mother’s awareness while she was in another room. The child made his way onto train tracks near the home, and was struck by an oncoming train which was unable to stop in time. Following a jury trial, a verdict was rendered in favor of the plaintiff. On the defendant’s appeal from the ensuing judgment, the Court of Appeals reversed the judgment and directed a new trial. The Court determined that “there can be no doubt, upon this evidence, that after the engineer discovered that the child was in peril he did all he could to arrest the motion of the train”. The evidence at trial showed that after a girl “ran from the track, [the engineer] for the first time [observed the injured plaintiff] and immediately gave the signal for the brakes to be applied and reversed his engine.” Thus, there was no indication in Chrystal that the engineer declined to take immediate action due to an assumption that the injured plaintiff would leave the tracks in time. Nevertheless, the Court stated, in dicta, that “[a]n engineer is not bound to stop his train the moment he sees some living object upon the track” and “has the right, in broad daylight, when his train is perfectly visible and its approach must be heard and known, at least in the first instance, to assume that the object, whatever it is, will leave the track in time to escape injury” [italics added]). The Court did not indicate that its use of the phrase “in broad daylight” was intended to set forth the only circumstances in which the principle could be applied, as opposed to highlighting the particular facts of that case. Indeed, the Court made other statements applicable to the particular facts of that case, including that “[the engineer] is not bound to expect helpless infants upon the track without sufficient knowledge or ability to escape when warned of danger” and “[the engineer] could not know when he first saw the plaintiff that he was too young to be conscious of the danger to which he was exposed”.

The Court of Appeals subsequently repeated the principle set forth in Chrystal in other cases involving daytime accidents, stating that an engineer had the right to assume that a person observed on the tracks “in broad daylight, when his train is perfectly visible,” will move away from the tracks in time to escape injury.

In Fierro v New York Cent. R.R. Co. the Court of Appeals repeated this principle, without using the phrase “in broad daylight.” Specifically, the Court stated that “a locomotive engineer, seeing a person on the track at a time when his train is perfectly visible, may assume that such person will leave the track in time to escape injury and, without imputation of negligence, may continue his run until he discovers that the person is heedless of danger” [italics added]). While the decision in Fierro reflected that the accident occurred at 9:00 a.m., there was no indication that the occurrence of the accident at daytime was the determinative factor in the Court’s determination to reverse a judgment in favor of the plaintiff. Rather, the Court noted that the plaintiff’s decedent, an employee of the railroad company, was the only one of several workers who failed to “hear and heed the warning” provided by a watchman who blew a whistle to indicate an oncoming train, and that the plaintiff’s own witnesses acknowledged that “nothing prevented the decedent from seeing the train”.

In Guller v Consolidated Rail Corp., the Court recited the defense, including the phrase “in broad daylight,” when addressing a daytime accident. However, upon appeal the court determined that the defendant rail company “should not be held liable for the plaintiff’s failure to take heed of the oncoming diesel train, which was readily observable by the normal use of one’s senses” [italics added]).

In Vadell v Long Is. R.R. Co., the Appellate Division applied similar reasoning to a nighttime accident involving an automobile struck by a train. The Court stated “[t]he engineer had every right to assume that an automobile approaching the grade crossing would observe the danger signals at the crossing and bring his vehicle to a stop before it reached the tracks”. The Court noted that evidence was presented at trial that red flasher lights at the railway crossing where the accident occurred were functioning at the time of the accident, and there was nothing to obstruct the driver’s view in the direction from which the train was coming.

But there was a paucity of New York decisions discussing the application of the open run defense to train accidents that occurred at night. Nevertheless, some courts in other states had recognized that the operator of a train involved in an accident that occurred at night—or that did not occur in broad daylight—had the right to assume an individual on the tracks would move out of the way in time to avoid an accident.

Contrary to Kunnemeyer’s contention, the Court held that the open run defense was not exclusively limited to cases involving daytime train accidents, but rather might be applicable under any circumstances in which an oncoming train would be readily observable to a person on or near the tracks making reasonable use of his or her senses.

Although the phrase “in broad daylight” was frequently repeated since it was first used by the Court of Appeals in Chrystal, the decision in Chrystal disclosed no intent to limit the defense exclusively to daytime accidents. Rather, it was apparent from the decision that the Court included the words “in broad daylight” to highlight a fact relevant to the more critical language that follows, “when [the] train is perfectly visible and its approach must be heard and known”. And the only possible relevance of the phrase “in broad daylight” was with regard to the visibility of the oncoming train. However, it was not difficult to envision a scenario in which a train operating “in broad daylight” would not be “perfectly visible” to someone on the tracks, such as when an oncoming train was coming around a sharp curve in the tracks. A train operating in the middle of the afternoon could also be difficult to see approaching, for instance, during a snowstorm. To assign significance to the time of day when the accident occurred, without regard to visibility, would create an arbitrary rule. Further, a train operating at night could be “perfectly visible” to someone on the tracks, such as when the oncoming train is displaying bright headlights on tracks without a curve. Moreover, the time of day could not possibly affect whether “[the train’s] approach [would] be heard,” as there was no reason to believe a train’s horn would sound any louder during than the day than at night.

That the critical portion of the open run defense articulated in Chrystal was the visibility of the train, and not the phrase “in broad daylight,” was further evidenced by the Court of Appeals’ decision in Fierro, which did not even mention the phrase “in broad daylight.” Rather, the Court in Fierro stated that “a locomotive engineer, seeing a person on the track at a time when his train is perfectly visible, may assume that such person will leave the track in time to escape injury. While the reference to “time” could be construed as pertaining to the time of day, the Court did not so specify. Indeed, neither the Court of Appeals nor any New York Appellate Court had ever held that the open run defense was inapplicable simply because an accident occurred at night. And the Court declined to recognize such an arbitrary rule. Rather, the applicability of the open run defense was fact specific, and it must be evaluated based on the particular circumstances of each case.

Under the particular circumstances of this case, the issuance of a charge on the open run defense was appropriate.  At trial, Kunnemeyer presented testimony that: the train’s headlights were functioning at the time of the accident and set to bright; the headlights were capable of illuminating a distance of up to 800 feet; the tracks did not curve in the vicinity of the accident; and the engineer immediately sounded the horn when he observed Kunnemeyer. Although testimony was elicited that it was foggy when the accident occurred, Bukofsky stated “it was a high fog” that was not at the level of the train or the tracks. And Panzica stated that “fog was not an issue” with visibility. Indeed, Kunnemeyer’s own attorney argued during summation that fog “was not an issue” due to the “powerful headlight[s].” Thus, the evidence was sufficient to support a finding that the oncoming train would have been noticed by anyone on the tracks making proper use of his or her senses.

And it was appropriate for Supreme Court to issue a modified jury charge on the open run defense, which was tailored to the facts of the case, by omitting the words “in broad daylight”. Here, given that the accident occurred at night, issuing the charge exactly as written in the pattern jury instructions, with the words “in broad daylight,” would have had significant potential to confuse the jurors.

Consequently, under the circumstances of the case, Supreme Court did not err in charging the jury on the open run defense without including the phrase “in broad daylight.”