Ginter v. Trans World Airlines, Inc.

Mikoll and Yesawich, Jr., JJ.,

dissent in a memorandum by Mikoll, J. Mikoll, J. (dissenting). We respectfully dissent.

Plaintiff was injured by the fall of a bag described variously as 4 to 5 inches by 12 inches by 15 inches by plaintiff and 4 to 5 inches by 12 to 15 inches by 20 to 21 inches by her husband, an engineer. Plaintiff said it was as heavy as a concrete block. Since plaintiffs prevailed at trial, we are bound to view the evidence here in a light most favorable to them (see. Hill v St. Clare’s Hosp., 67 NY2d 72, 82). If the evidence permits a view thereof that the verdict reached by the jury is not utterly irrational, a court may not conclude as a matter of law that the verdict is not supported by the evidence (Cohen v Hallmark Cards, 45 NY2d 493, 499).

The evidence here was sufficient to allow the jury to find that defendant acted negligently and that defendant’s negligence proximately caused plaintiff’s injuries. Supreme Court, in charging the jury, appropriately instructed the jury that custom of the industry is helpful in determining whether defendant acted reasonably. The charge noted that custom, if established, may be considered in connection with the jury’s appraisal of the care exercised by defendant, but that it is not a conclusive or controlling test. The essential question is whether defendant acted with reasonable care under all the circumstances in this case. The jury found it did not.

The evidence here is such that the jury could reasonably conclude that bulging, overstuffed overhead compartments constitute an obvious danger to the passengers seated below. Such danger may be exacerbated by the configuration of the overhead compartments where, as here, the top part extends further out than the lower part. A witness testified that when the bin was opened by another passenger, the bag, which was not laid flat but was, because of its size, standing upright, flew out and struck plaintiff.

The danger to passengers in such a scenario is obvious and foreseeable. Heavy items, and even lighter ones such as briefcases but with hard sides, foreseeably can do great harm. Carry-on luggage, according to airline custom as testified to by *790two airline employees, was to be stored below passengers’ seats. This is a reasonable rule to avoid injury from falling items made dangerous because of their heft or because of the hardness of their composition. The bag in question was a carry-on bag of sufficient weight to cause damage. The jury could have concluded that defendant’s failure to insist on.its storage beneath the seats violated the standard of reasonable care. The failure to announce, as custom required, that carry-on cases should be stored below seats may have also constituted a lack of reasonable care on defendant’s part. Finally, the absence of a flight attendant, on the side where plaintiff sat, to supervise safe storage of items by passengers could also constitute, in the jury’s view, a lack of reasonable care which proximately caused plaintiff’s injuries.

Accordingly, we believe that the verdict of the jury in favor of plaintiffs should not have been set aside.