This section contains the nature of the case and procedural background.

P was waiting for a friend to join him on the landing of an exterior stairway leading to the token booth and turnstile area of the Elderts Lane elevated station subway line. P was sitting on the landing's 43-inch-high railing. A number of young people began to climb the stairway, and one of them 'brushed' against P, who fell to the sidewalk below. P is now a quadriplegic. Ps sue D. Ps adduced expert testimony that the stairway and railing had not been designed in accordance with good and accepted engineering principles. The platform was approximately seven feet above the sidewalk, and the railing was an additional 43 inches in height. The railing should have been designed to preclude persons from sitting upon it by increasing its height to four feet, or by dimpling it or placing spikes along its length to make it difficult to sit upon, or by placing a wire mesh screen above the railing extending to the roof over the stairway. The court would not permit the expert to testify regarding whether such design features had been implemented either at the elevated subway station in question or at other elevated subway stations within the city, including those within close proximity to the station in question. The court granted D’s motion for judgment as a matter of law. Ps appealed.

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