In Bacic v. New York City Transit Authority, the decedent was found beneath two subway cars, but one of her shoes was found on the platform. There were no witnesses to the accident and it was later determined that the decedent’s blood alcohol level exceeded the legal limit. At the close of evidence the trial court granted the defendant’s motion to dismiss the complaint based on the plaintiff’s failure to make out a prima facie case of negligence. The plaintiff appealed relying on their expert’s testimony that the train’s conductor should have seen the decedent or, at least her shoe, on the platform. The appellate court affirmed the trial court’s decision finding that the plaintiff’s expert’s testimony was speculative and further held that although a deceased plaintiff is held to a lesser standard of proof, the plaintiff still has an obligation to provide some proof from which negligence could reasonable be inferred.

Thanks to Ed Lomena for his contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_05734.htm