On December 22, 2021, an appellate court covering an appeal from a defense verdict rendered by a Suffolk County jury, agreed that a Long Island Railroad train engineer was not responsible for the injuries suffered by a 30 year old male who was struck by a train. The plaintiff was residing in supportive housing for substance abusers but relapsed into intoxication with a combination of Suboxone, Xanax, beer and desperation over the potential loss of his girlfriend. A westbound train from Bellport struck the plaintiff shortly after midnight near the Patchogue station. It was a dark and foggy night so when the train Engineer first observed the plaintiff with one leg extended over the rails-he triggered an emergency stop about two railroad car lengths away. Unfortunately, the plaintiff never moved and the train was unable to stop in time to avoid the accident.

The LIRR and its Engineer successfully relied upon an 1877 Court of Appeals ruling commonly called the "open run" defense. The trial court modified the standard jury charge eliminating the condition that the open run defense can only be charged to the jury when the accident occurs in "broad daylight". The appellate court held that the trial judge was correct in charging the jury as follows: " In deciding whether the railroad exercised due care, you should bear in mind that a train engineer who sees a person on or near the track is not bound to stop the train immediately, but has the right to assume that the person will see and hear the train, heed the danger and leave the track. In such a situation, the engineer has no duty to make an emergency stop until he or she determines that the person cannot or will not leave the area on the track." Kunnemeyer v Long Island Railroad, 2021 N.Y. Slip Op. 07281