Prior Corrosion Inspections and Visible Stair Defects Establish Constructive Notice; Comparative Negligence Charge Requires Evidentiary Basis; Past Pain-and-Suffering Remitted to $100,000 — Schollmeier v. Metropolitan Tr. Auth. (LIRR)

Introduction

In Schollmeier v. Metropolitan Tr. Auth., the Appellate Division, Second Department, addressed a familiar but consequential premises liability scenario: a commuter falls on a corroded station staircase. The case arises from a January 2017 trip/slip and fall at a Long Island Railroad (LIRR) station. Following a bifurcated trial, the jury found LIRR negligent and awarded the plaintiff $200,000 for past pain and suffering (and $0 for future pain and suffering). LIRR moved post-trial under CPLR 4404(a), seeking to set aside the liability verdict (on both legal sufficiency and weight-of-the-evidence grounds), obtain certain jury charges (latent defect and comparative negligence), and reduce the damages award as excessive.

The Appellate Division (Iannacci, J.P., Christopher, Wan, and Love, JJ.) modified the judgment: it affirmed liability but held the $200,000 past pain-and-suffering award materially excessive, remitting to the Supreme Court, Queens County, for a new trial on past pain and suffering unless the plaintiff stipulates to a reduced award of $100,000. The opinion refines three practical rules:

Prior inspections documenting corrosion, coupled with a visible defect on the accident date and a substantial lapse in follow-up inspection, can establish constructive notice.
Latent-defect and comparative-negligence charges are properly withheld where the record contains no evidence to support them.
For a healed finger avulsion fracture, mild concussion, and minor scarring without surgery or lost vocational capacity, an award of $200,000 for past pain and suffering materially deviates from reasonable compensation; $100,000 is the appropriate cap on these facts.

Summary of the Opinion

The plaintiff alleged that a broken and corroded stair step caused her fall. LIRR attacked liability on constructive-notice grounds and challenged damages. The court held:

Liability affirmed: A May 2016 station inspection recorded “moderate to heavy corrosion” on the undersides of stair treads and risers, and the defect was “visible and apparent” on the accident date. With roughly eight months between that inspection and the fall, the jury could rationally conclude LIRR failed to make reasonable inspections or remediate the hazard. The verdict was neither legally insufficient nor against the weight of the evidence.
Jury charges: The trial court properly refused latent-defect and comparative-negligence instructions. The defect was not latent, and there was no evidentiary basis to charge comparative negligence.
Damages modified: The $200,000 award for past pain and suffering deviated materially from reasonable compensation given a left ring finger avulsion fracture (no surgery), a mild concussion, abrasions, a forehead scar, and residual finger tremor/hand cramping. The court ordered a remittitur to $100,000 for past pain and suffering or a new trial limited to that element of damages.

Analysis

Precedents Cited and Their Influence

Standards for post-trial relief (CPLR 4404(a)):
- Szczerbiak v. Pilat and Caliendo v. Ellington set the bar for judgment as a matter of law: the court may grant only if there is “no rational process” to support the verdict for the non-movant. The Second Department adhered strictly to this standard, crediting evidence favorable to the plaintiff.
- Lolik v. Big V Supermarkets, Avila v. VVFJ Realty, Lara v. Arevalo, and Koopersmith v. General Motors inform the weight-of-the-evidence review: the verdict stands where it can be reconciled with a fair interpretation of the evidence. The court applied this deferential lens to affirm the jury’s liability finding.
Constructive notice:
- Gordon v. American Museum of Natural History is the touchstone: constructive notice exists where the condition is “visible and apparent” and existed long enough to permit discovery and remedy. Vargas v. Lamberti reinforces this formulation.
- Lyman v. Cablevision of Ossining, Gairy v. 3900 Harper Ave., and Bergin v. Golshani demonstrate that internal inspection records showing deterioration, followed by inadequate follow-up, can establish constructive notice. The court relied on the May 2016 corrosion findings and a non-specific October 2016 inspection to conclude the jury could find LIRR’s inspection regime unreasonable.
- Barrett v. NYCTA and Cruz v. Bronx Lebanon Hosp. Ctr. support that a multi-month interval (here, eight months) can be sufficient for constructive notice when combined with a visible condition.
Jury instructions:
- Bruni v. City of New York emphasizes that negligence issues generally go to the jury only where a rational evidentiary basis exists. With PJI 2:36 and Reed v. Town of Amherst, the court affirmed denial of a comparative negligence instruction where there was no evidence suggesting plaintiff’s negligence.
- On latent defects, the court cited Lyman to underscore that where a defect is visible and apparent, a latent-defect instruction is inappropriate.
Damages and remittitur (CPLR 5501[c]):
- Molter v. Gaffney, Wynter v. Transdev, and Mihalko v. Regnaiere reaffirm that damages are principally for the jury, but may be set aside if they materially deviate from reasonable compensation.
- The court calibrated the remittitur using comparator cases (Vogel v. Cichy, Ross v. Mandeville, Sandy v. NYCTA, Seidner v. Unger, Torres v. City of New York, Fares v. Fox, Artis v. City of New York), signaling that non-surgical, relatively minor injuries with transient or mild residuals seldom warrant six-figure awards substantially exceeding $100,000 for past pain and suffering.

Legal Reasoning

The court’s reasoning threads three core premises liability and trial-management principles.

Constructive notice grounded in a documented deterioration and a failure of reasonable follow-up: The May 2016 inspection explicitly described “moderate to heavy corrosion” on stair treads/risers and identified rust and corrosion on the relevant staircase’s underside. An October 2016 inspection lacked detail specific to stair condition. On the accident date, the defect was visible and apparent—not concealed. Within this evidentiary frame and the eight-month lapse, the jury could conclude that LIRR’s inspection cadence and remediation were unreasonable. This aligns with Gordon: a visible condition existing long enough to be discovered and fixed imputes constructive notice. It also dovetails with cases where owners’ own records foreshadowed hazards, making later injuries foreseeable absent timely action.
Refusal of inapplicable jury charges: There was no evidentiary foothold for a latent-defect instruction—the condition was visible. There also was no proof of plaintiff’s comparative negligence; thus, under Bruni and PJI 2:36, the trial court correctly declined to charge an issue that would invite speculation. The Appellate Division affirmed these instructional decisions, reinforcing the requirement that charges must be tethered to evidence, not merely requested as a default defense posture.
Damages correction via remittitur: The plaintiff’s injuries—a finger avulsion fracture treated conservatively with a splint and OTC analgesics, a mild concussion, abrasions, a forehead scar, and residual finger tremor/cramping—did not involve surgery, hospitalization beyond initial care, or documented lasting impairment affecting employment. The jury’s $0 award for future pain and suffering corroborates a relatively limited duration/severity of sequelae. Against Second Department comparators, $200,000 for past pain and suffering materially deviates upward. Applying CPLR 5501(c), the court fixed $100,000 as reasonable on these facts and offered the standard conditional remittitur: stipulate to the reduction or retry past pain and suffering only.

Impact

Premises liability for transit and institutional owners: Schollmeier underscores that internal inspection reports documenting corrosion or deterioration can become linchpins for constructive notice months later—especially when follow-up inspections are infrequent, non-specific, or undocumented, and when the hazard is visible on the incident date. Owners should:
- Implement targeted, timely follow-up inspections after any report flagging corrosion or structural wear, and document findings specifically (not just globally).
- Prioritize remediation plans for components already identified as deteriorating to preempt constructive notice findings.
Jury-instruction practice: Defense requests for latent-defect or comparative-negligence charges will be denied absent record evidence. Practitioners must develop a concrete evidentiary basis—photos, eyewitness testimony of plaintiff conduct, expert opinions on concealment—before seeking such instructions.
Damages valuation benchmarks: For non-surgical hand fractures with limited residuals, minor scarring, and mild concussion without demonstrated long-term impairment, the Second Department signaled a reasonable range topping out at roughly $100,000 for past pain and suffering (with $0 for future pain and suffering where the record supports resolution). Plaintiffs should align settlement expectations accordingly; defendants have a robust remittitur argument when verdicts exceed this calibration on comparable facts.
Appellate preservation and post-trial motions: The case illustrates effective use of CPLR 4404(a) to target excessive damages while preserving—and losing—liability challenges where plaintiffs can connect prior condition reports, lapse in inspection/remediation, and a visible defect.

Complex Concepts Simplified

Constructive notice: A defendant is treated as if it knew of a dangerous condition if the hazard was visible and apparent for enough time that a reasonable owner would have discovered and fixed it. You do not need proof the owner actually saw it; you need proof they should have seen it in the exercise of reasonable care.
Latent defect: A hidden condition that is not discoverable through reasonable inspection. If a defect is visible, a “latent defect” instruction does not apply.
Comparative negligence charge: A jury instruction asking the jury to apportion fault to the plaintiff. Courts should give it only if some evidence suggests the plaintiff’s conduct contributed to the accident. Without such evidence, giving the charge risks speculative blame-shifting.
CPLR 4404(a) motion: A post-trial request to set aside the verdict because it is legally insufficient (no rational jury could find for the opponent), against the weight of the evidence (the evidence overwhelmingly favors the moving party), or otherwise in the interest of justice (e.g., due to trial errors).
CPLR 5501(c) remittitur: An appellate tool to reduce a damages award that “materially deviates” from reasonable compensation based on comparable cases. The court often offers a choice: accept a reduced amount or retry damages.

Conclusion

Schollmeier is a measured but meaningful reinforcement of Second Department premises liability and trial management doctrine. It crystallizes a workable pathway to constructive notice where an owner’s prior inspection flagged corrosion and the defect later manifested visibly, especially after months without targeted follow-up or remediation. It also tightens trial practice by affirming that latent-defect and comparative-negligence charges are not automatic—they require an evidentiary foundation. Finally, the decision provides a concrete damages benchmark for non-surgical hand avulsion fractures with mild residuals and minor head/skin injuries, anchoring reasonable past pain-and-suffering at $100,000 on closely similar facts.

For premises owners—particularly transit authorities managing aging infrastructure—the message is clear: once corrosion or deterioration is documented, reasonable, specific, and timely follow-up is not optional. For trial lawyers, Schollmeier sharpens both instruction strategy and damages valuation in low-to-moderate injury cases. The opinion thus operates less as a departure from existing law than as a clarifying directive on how inspection records, visible conditions, and targeted evidence shape liability and rational compensation.