When WNYC and Gothamist put out a survey a few weeks ago asking people to describe their commuting experiences, one question that several people posed boiled down to this: Can I sue the MTA for unreliable service?

People have certainly tried. But because our “We the Commuters” project is fueled largely by you, dear reader, we wanted a better answer. Fordham Law Professor Nestor Davidson talked with us about the nuances of what we, the commuters, are legally owed.

What’s the contract that I enter into, every time I swipe my Metrocard?

There are obligations that go both ways. Every day, we passengers agree to abide by the rules of conduct. The MTA, as a carrier, agrees to comply with the rules that dictate things like ticket prices.

But if you poke around the MTA’s website, you won’t find any explicit terms of service. What you will find is a legally-squishy, relatively vague “Pledge to Our Customers” that includes promises like: “We will endeavor to maintain a clean environment,” and “We strive to provide accurate, timely and useful information.”

“Those are not very specific obligations,” said Davidson. “They’re great aspirations.”

And you definitely can’t sue the MTA for not living up to its aspirations.

But can you sue the MTA for unreliable service?

Here’s how Davidson puts it: If you’re trying to sue for spotty service, the courts in New York have been pretty clear that what you’re really saying is you don’t like the decision-making process and allocation of resources that have led to the conditions that created bad service. Which means, you have a beef with the political system around the MTA, not with the courts.

This reasoning has a lot to do with the fact that the MTA is a public benefit corporation, and not a private company like an airline (most of which have detailed terms for recourse due to cancellations and delays).

“When you're dealing with any public entity that is providing services—whether it's the subway or it's police or fire or education—[questions about service] are deeply political questions, in a good sense,” explained Davidson. “Those are things that the democratic system needs to work out, because there are tradeoffs. If you say we need more police officers but fewer teachers, that's not something courts are really going to generally second-guess.”

Listen to Shumita Basu’s report on WNYC:

So if it’s a question of the politics of the transit agencies and who runs them, does that mean I can sue my elected officials for the current state of the MTA?

“That's a really complicated question. The general answer is no.”

Has anyone tried to sue the MTA for bad service in the past?

Absolutely. In fact, as recently as 2017, two LIRR customers were trying to sue the LIRR and NYCT.

But the case that really set the legal precedent for how New York handles this issue was brought in 1983: Disgruntled GG train (yep, that was once a thing) rider Oliver Leeds vs. the MTA. The complaint in that suit was that the subways were a wreck, there was too much graffiti and trash everywhere, and the MTA needed to do its job better.

In other words, it was questioning the way in which the MTA was (and wasn’t) tackling these problems.

“The, court was very clear in that case—and that case has been cited a number of times—that those are questions that the MTA is not amenable to suit on,” explained Davidson.

That doesn’t mean the MTA can’t be sued at all, of course. The MTA can be held liable in court for physical injuries in certain cases, like if you slip and fall in the subway and can prove that the transit agency’s negligence (i.e. failure to de-ice stairs or clear litter) led to your injury.

Switching tactics here: What if I tried suing for emotional damages?

“Who among the daily subway riders hasn’t felt frustration, right?” said Davidson, who rides some combination of the B/Q/R/2/3 every day.

Davidson said, you can tally up all of the tangible and intangible things that are lost with every delay or cancellation—”lost wages, pain and suffering”—and you can even round up thousands of people to file a class-action lawsuit...but it won’t go far.

Again, it comes back to the point that your pain and suffering is caused by a series of decisions about resource allocation and prioritization at the transit agency, which is a public benefit corporation.

“You might like to back into the sense that, ‘I’ve been harmed and therefore I must have a remedy,’” said Davidson. “But it turns out there are harms that there is no legal remedy for.”

To be honest, this desire to sue the MTA isn’t just about getting our money back. It’s about putting pressure on the right people to improve the system, as quickly as possible. How do we do that?

Remember those aspirations we laughed off earlier? The right way to channel frustration, according to Davidson, is to hold the MTA to those aspirations.

“I also think—and of course, we've seen this in the city and in the state in the last couple of years—that if you make a political issue out of this, whether through advocacy organizations or just as an ordinary citizen, politicians will eventually respond,” said Davidson.

“We're now beginning a process of institutional reform, of rethinking oversight and rethinking the structure of the MTA and who it's accountable to,” he continued. “I think that's a really important conversation. It's a conversation every subway rider, every bus rider, every commuter...people should pay attention to that. Because at the end of the day that really matters.”

This interview has been edited and condensed for clarity.

Shumita Basu is a host, producer and reporter in the newsroom. You can follow her on Twitter @shubasu.

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