How To Decide If A Person Is A Trespasser Or Not

Transcription

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK x HUGO ALEXANDER VENTURA, -against- Plaintiff, LONG ISLAND RAILROAD and NADIA FARBER, Defendants. PLAINTIFF S PROPOSED VOIR DIRE Docket No.: 01 Civ (HB) (WDW) x The following is plaintiff s proposed voir dire to be presented to the prospective jury venire: General contention: This is an electrocution case involving the plaintiff, an 18 year-old refugee from El Salvador who was lawfully in this country for less than a month, who was electrocuted on May 7, 2000, when he attempted to cross the LIRR train tracks in Brentwood, which is in the Township of Islip. At the time of the accident, plaintiff was riding a bicycle with his cousin on well-worn dirt path that ran from where Broadway dead-ended down to and across the train tracks in a heavily populated Hispanic neighborhood in Brentwood. The path was on vacant property belonging to defendant Nadia Farber. The path had been used for years by residents of that community as a shortcut to get to the stores located on the other side of the tracks. There were no No Trespassing or warning signs posted nor was any fencing installed on defendant Farber s property or along the train tracks. On May 7, 2000, plaintiff Hugo Ventura was electrocuted when he used the path for the very first time to cross the Long Island Railroad s (LIRR) train tracks. Plaintiff had attempted to walk across the tracks carrying his bicycle. At that point, plaintiff s bicycle came into contact with the LIRR s electrified third-rail. Both plaintiff and his cousin were unaware that the train tracks were electrified. Moreover, in their remote farming village of El Salvador, where they both came from, there was neither electricity nor trains.

2 Both the LIRR and defendant Farber were negligent because they had actual prior knowledge of the well-worn path that was used by the public to cross the tracks due to the death of a 2 ½ year-old girl who had wandered down that path eight years before and was struck and killed by a LIRR train. Despite their knowledge that people in the community used the path to cross the tracks, neither the LIRR nor defendant Farber did anything to make the area safe for pedestrians. The LIRR s safety specifications required that Danger High Voltage warning signs be posted approximately every four feet along the railroad s protective board that covered its thirdrail. The LIRR was negligent in that there were no high-voltage warning signs posted anywhere along the tracks or along its third-rail protective board. In addition, the LIRR was negligent for having failed to install a fence along the train tracks to prevent people from crossing at that location. Opposite the location where the dirt path crossed the tracks, the LIRR had a fence, but the LIRR had allowed that fence to fall into a state of disrepair with a large gaping hole big enough for people to walk through. This hole existed in the fence for years and was used by the Hispanic community who used the path to cross the tracks to get to stores located on the other side of the tracks. In addition to the LIRR s negligence, defendant Farber was required by law, pursuant to an agreement that she had entered into with the Town of Islip, to prevent access to the path on her property by blocking off Broadway with fences and barricades and also she was required by law to erect a fence along the LIRR s train tracks. Defendant Farber was negligent for doing neither; defendant Farber failed to block off the Broadway access to her property and she failed to erect a fence along the train tracks as required by her agreement with the Town of Islip. However, on developed, industrial property that Farber owned immediately adjacent to her vacant property where the path in question existed, defendant Farber had installed a chain link fence alongside the railroad tracks. 2

3 It is plaintiff s final contention that the LIRR s community outreach program to educate and provide information to children regarding its electrified third rail ( TRACKS ) was not conducted at private, parochial and religious schools and at other levels of the community, which was a departure from good and accepted safety practices. Because the majority of the population living in Brentwood is Spanish/Latino who do not understand the English language, the LIRR further departed from good and accepted safety practices in that their community outreach education program was conducted only in English, not in Spanish. Both the LIRR and Nadia Farber were negligent because they did not post any No Trespassing or warning signs warning of the hazards and dangers of the electrified third rail anywhere along the tracks or along the railroad s right-of-way or on the Farber property. As a result of this electrocution, Hugo Ventura sustained electrical burns, which left significant scarring over percent of his body. Hugo Ventura spent approximately 17 days in Stony Brook Medical Center s Burn Unit where he underwent skin graft surgery to his burns and rehabilitation therapy. According to plaintiff s treating physician, it is claimed that Hugo Ventura will have to undergo future surgical revision of his scars. Questions to be inquired of the venire: 1. The Long Island Railroad, commonly known as the LIRR, is a defendant in this action. It is fair to say that everyone knows the LIRR and has had some experience with the LIRR, perhaps by having ridden their trains. Does anyone have any negative feelings or opinions about the LIRR that are unrelated to this case, but would prevent you from rendering a fair and impartial verdict against the LIRR? 2. There has been extensive press coverage over the past several months against the LIRR and its parent entity, the Metropolitan Transportation Authority (commonly known as the MTA) concerning allegations of doctoring its books 3

4 and records to get a rate increase passed. Would such an allegation against the LIRR and its parent entity the MTA, which is not a defendant in this case, prevent you from rendering a fair and impartial verdict against the LIRR? 3. Does anyone know plaintiff Hugo Ventura? 4. Nadia Farber is also a defendant in this action. She is an Italian Contessa. Has anyone read anything about defendant Farber that would unfairly prejudice you against her? On the other hand, has anyone read anything about this defendant that would unfairly prejudice you in her favor and prevent you from rendering a verdict against her? 5. Has anyone ever been a plaintiff in a personal injury lawsuit? If yes, did it go to trial? If yes, were you please with the result? Did it leave you with any negative feelings about the legal process that would prevent you from being a fair and impartial juror in this action? 6. Has anyone ever been a defendant in any lawsuit? If yes, did it go to trial? If yes, were you please with the result? Did that experience leave you with any negative feelings about the legal process that would prevent you from being a fair and impartial juror in this action? 7. Has anyone ever served as a juror before? If yes, did you get to deliberate? Did your experience as a juror in another lawsuit leave you with any negative feelings about the legal process that would prevent you from being a fair and impartial juror in this action? 8. Has anyone ever been a witness who testified at trial or at a deposition (examination before trial) before? Did that experience leave you with any 4

5 negative feelings about the legal process that would prevent you from being a fair and impartial juror in this action? 9. Are you familiar with the area of this accident which is Broadway in Brentwood near the train tracks? Are you familiar with Suffolk Avenue in Brentwood which is just north of the train tracks where this accident occurred? Are you familiar with Brentwood? 10. Do you have any opinions or feelings about people who bring lawsuits for personal injuries that they sustained in an accident? 11. Do you have any feelings about refugees from El Salvador who immigrate to the United States and are here legally? If so, would those feelings prevent you from rendering a fair and impartial verdict in this case? 12. Do you have any feelings about people who live in the United States but can only speak and understand Spanish? If so, would those feelings prevent you from rendering a fair and impartial verdict in this case? 13. You understand that plaintiff, Hugo Ventura, and his cousin, Jaime Granados, can only speak and understand Spanish. Therefore, will it be a problem for you if they testify through a court interpreter? 14. Does anyone speak Spanish? If so, will you be able to accept the interpretation of the court interpreter and not substitute your own knowledge of the Spanish language when Hugo Ventura and his cousin, Jaime Granados testify? 15. Do you own or rent? 16. With whom do you live? 17. What do you and your immediate family members do for a living? 5

6 18. Does anybody or a member of their family or close personal friend work for the LIRR or its parent, the MTA or any related rail transportation entity such as the NYC Transit Authority? 19. Does anyone work for a real estate property manager? 20. Are you familiar with the LIRR s electrified third-rail? Are you familiar with the third-rail protective board? 21. Have you or any members of your family or close circle of friends ever attended a train track safety program? 22. Have you ever walked across the LIRR s electrified third-rail? 23. Are you ever seen a high voltage warning sign? If yes, where? 24. Hugo Ventura will be presenting his medical and psychological medical evidence through experts in the respective fields of burn surgery and psychology. Does anyone know burn surgeons Dr. Harry S. Soroff or Dr. Roger Simpson? Does anyone know social worker Orlando Perez? 25. Hugo Ventura will also be presenting evidence of the property owner, defendant Farber s obligations to provide fencing and barricades through a zoning expert and the LIRR s obligation to provide fencing and warning signs through a safety expert. Does anyone know attorney Matthew Pachman or safety expert Nicholas Bellizzi? 26. Both the LIRR and defendant Farber claim that plaintiff Hugo Ventura was a trespasser. Does anyone think that even if Hugo Ventura was a trespasser that this excuses defendants LIRR and Farber from their legal obligations to post warning signs and fence off the tracks or that they don t have to exercise reasonable care? 6

7 27. Would you agree that to be a trespasser, you have to have knowledge that the property that you are on belongs to someone else and that you are not allowed on it? Would you agree that to have this intent to trespass on vacant land where there exists a well-worn path used by residents of the community for years, that there should be No Trespassing signs posted on the property to let you know that if you enter upon it you are trespassing? 28. Do you agree that the defendant LIRR owes a duty of care to the public to make certain that public crossings over its tracks are safe? 29. Do you agree that a property owner of vacant land where there is a path that runs through it and leads to a 750 volt electrified third-rail that runs alongside it has certain responsibilities to the neighboring public to keep her property safe? 30. Would you agree that a dirt path that is well worn is indicative that people are continuously using it to travel upon. 31. Do you have any opinions about whether it is commonly understood that the LIRR s third rail is electrified? If so, do you think that it is commonly understood that the third-rail carries high voltage? If so, do you think that it is still necessary for the LIRR to post high voltage warning signs along its third-rail? 32. Would you agree that if residents of a community use a path that runs through a vacant lot as a shortcut to cross the tracks for years and that the 7

8 LIRR is on notice of this, that the LIRR should make certain that this area is safe for the public to cross? 33. Are you open to the possibility that a dirt path that runs through a vacant lot and has been used as a shortcut to cross the tracks for years by residents of a community could be considered a public crossing such as a street or highway? 34. Have you read anything or heard anything in the news media concerning the United States census and the ethnic makeup of Brentwood? 35. How do you feel about posting warning signs in both English and Spanish in an area that is predominately populated by Spanish/Latinos who do not speak English? 36. Do you think that it is sufficient to keep people off the tracks if you install a fence on only one side of the tracks and not both sides? 37. Do you think that if you install a fence to keep people off the tracks in an area in which you know that people do cross the tracks that you have an obligation to maintain the fence and patch a hole that is large enough for people to walk through? 38. Do you have any opinions or knowledge about the legal process of changing a property s zoning from residential to industrial? 39. Do you think that if a property owner gets permission from the Town to change the zoning on a parcel of land, that she should be bound by the terms and conditions that the Town set and that she agreed to be bound by? 8

9 40. Is it your understanding that safety issues that run to the benefit of the Town are meant to include the residents of that Town? 41. You understand that plaintiff is not asking for sympathy. Hugo Ventura believes that he is entitled to money damages for the injuries that he sustained. Does anyone have a problem awarding plaintiff a fair and reasonable amount for his injuries and for his pain and suffering if warranted by the evidence? 42. Does anyone have a problem awarding plaintiff money damages if the evidence warrants it? 43. Does anyone know anyone who sustained a significant burn injury? If yes, did that person undergo skin grafting surgery? 44. Anyone ever sustain a permanent scar as a result of an accident? Have you or any family member or close personal friend ever had plastic surgery to repair a scar? 45. Do you have any opinion about the level of pain associated with a significant burn injury? 46. Do you have any barrier in your mind that would prevent you from awarding monetary damages over and above that barrier if warranted by the evidence? 47. Does anyone think that psychological damages are not real? Are you open to the possibility that even if a scar is hidden by clothing, that a person can still be psychologically traumatized by it? Do you understand that plaintiff is not only seeking money damages for his physical injuries, but 9

10 he is also seeking monetary compensation for the emotional pain and suffering that he has had to endure as a result of this accident? Do you have any problem with that? 48. Do you understand that plaintiff is not the only one with the burden of proof? Defendants also have a burden of proof. Defendants must prove their affirmative defenses [culpable conduct, assumption of risk, and Railroad Law 83]. 49. Do you understand that the burden of proof in this case is by a preponderance of the evidence? This is different from criminal cases where the burden is proof beyond a reasonable doubt. Do you understand that plaintiff does not need to prove the negligence of either defendant beyond a reasonable doubt? Plaintiff need only prove defendants negligence by a preponderance of the evidence, meaning that plaintiff must offer some proof that shows that it is more likely than not that each of these defendants is negligent. Will you have any difficulty applying this lesser standard of proof that I have just described for you? 50. Do you understand that it is sufficient for plaintiff to prevail that he only need establish that one of the two defendants was a cause of the accident? 51. Do you understand that plaintiff need not prove that a defendant was the sole cause of the accident. It is sufficient for plaintiff to prevail that plaintiff prove that one of the defendants was simply a cause of the accident. Will you be able to apply this standard in determining liability in this case? 10

11 52. Do you understand that evidence is not just oral testimony from witnesses? It also includes records, such as police records and medical records that are allowed to come into evidence as well as deposition testimony. 53. If no evidence is offered concerning any issue that you might have a concern about, will you be able to avoid speculating as to what you think might have happened or what might have caused this accident or plaintiff s injuries and only decide it on the basis of the evidence that is introduced by way of testimony, deposition testimony, and police, hospital and medical records? 54. You understand that you are allowed to draw inferences from the evidence that is introduced? An inference is different from speculation, which you are not allowed to do. An inference means that you can conclude from the evidence that you have before you as to what reasonably happened. (i.e., if someone walks in this courtroom and is wet, you can infer from that that it is raining outside). However, if no evidence is introduced you cannot speculate as to what happened or what could have prevented it. For instance, if a pedestrian was hit by a car and the car drove off and could not be found and that is all that you heard, you cannot speculate that the accident could have been avoided if the pedestrian had crossed the road with a green light and so too you cannot speculate that the hit-and-run driver ran a red light. There was no evidence in that scenario as to what the color of the light was; therefore it would not be proper for you to draw 11

12 either conclusion without any evidence. Will you assure me that you will make any speculations about what happened or what caused anything in this case whether it be the accident or plaintiff s injuries, but that you will make your decisions solely on the basis of all the evidence before you? 55. With respect to evidence, it is important to apply your common sense. As I said before about it not being proper to speculate, just because someone testifies about how something happened, I trust that you will apply your common sense and reason to it before deciding upon whether to accept it and what weight you will give to it? 56. Will you be able to apply your common sense as you listen to the testimony given in this case? Are you open to the possibility that sometimes a defendant might testify to something that is not truthful to avoid liability? Would you agree that so too a plaintiff might testify to something that is not truthful because of an interest in the financial outcome of the case? 57. Are you open to the possibility that sometimes a party may be shy and not eloquent in their testimony? Will you be able to determine whether a witness or party is just shy or is being evasive? 58. Will you be able to consider all the testimony on both sides and reach a conclusion as to whom you believe to be telling the truth by applying your common sense? In this regard, will you be able to factor in whether what the party is testifying to is believable or utterly unbelievable based upon 12

13 your life s experiences? Will you be able to look at all the evidence to see who is telling the truth? 59. Are you familiar with the costs associated with future surgical scar revision surgery? 60. Has anyone heard anything on TV or on the radio or seen anything in the newspapers that has influence you and will prevent you from rendering a liability verdict against the defendants, even if the evidence shows that the defendants were negligent? 61. Has anyone heard anything on TV or on the radio or seen anything in the newspapers concerning personal injury awards that has influence you and will prevent you from awarding plaintiff a fair and reasonable sum of money, if the evidence shows that he is entitled to it? 62. If plaintiff is able to prove his case to you, will you be able to award him a monetary amount that is fair and reasonable to compensate him for his injuries and for his pain and suffering related to this accident? 63. Do you understand that an award for plaintiff s injuries and for his pain and suffering is different from an award for his medical expenses? Do you have any problem with awarding plaintiff his medical expenses in addition to his pain and suffering if the evidence so warrants? 64. With respect to plaintiff s injuries and his pain and suffering and medical expenses, the law permits you to make an award for plaintiff s past pain and suffering and medical expenses which is from the date of the accident or May 7, 2000 to the date of your verdict, as well as for his future pain 13

14 and suffering and any future medical expenses that the evidence shows that plaintiff may be entitled to which runs from the date of your verdict to the end of plaintiff s life expectancy as determined by the mortality tables. Do you have any problem with rendering an award to plaintiff for his past as well as his future pain and suffering and medical expenses if the evidence so warrants? 65. Can you accept the concept that when awarding plaintiff monetary damages that a fair and reasonable amount is that amount of money that you, together with your fellow jurors, agree will fairly and reasonably compensate plaintiff for his injuries and for his pain and suffering? 66. In addition to damages for plaintiff s injuries and for his pain and suffering and medical expenses, plaintiff is also claiming punitive damages as against defendant Nadia Farber because of what plaintiff contends is her reckless and wanton conduct. Would you have any problem with awarding plaintiff punitive damages as against defendant Farber in addition to damages for his past and future pain and suffering and medical expenses if the evidence so warranted? 67. The law will not permit punitive damages against a municipal corporation such as the defendant Long Island Railroad Company, no matter how reckless or wanton its conduct. All that plaintiff can recover against the Long Island Railroad is his past and future pain and suffering award as well as his past and future medical expenses. Will you have a problem awarding punitive damages against one defendant, defendant Farber, and 14

15 not the Long Island Railroad, even if the evidence warranted punitive damages as against both defendants? 68. Will you be able to set aside personalities, especially the personalities of the attorneys and the parties, when deciding upon this case? 69. Is anyone or is any member of your family employed by a liability Dated: Islandia, New York July 24, 2003 insurance carrier or investigation firm that insures for liability and damages in a liability case such as this one? Respectfully submitted, DONIGER & ENGSTRAND, LLP Attorneys for Plaintiff Hugo Alexander Ventura To: Christopher P. Yodice, Esq. General Attorney, Law Department-1143 LONG ISLAND RAILROAD Attorney for defendant LIRR Jamaica Station Jamaica, NY Kevin J. Murtagh, Esq. O CONNOR, O CONNOR, HINTZ & DEVENEY, LLP Attorney for defendant Farber One Huntington Quadrangle/Suite 1C07 Melville, NY By: D. Daniel Engstrand, Jr. (DE 2713) a member of the firm One Suffolk Square/Suite 500 Islandia, NY (631)