Legal Duty of a Bus Operator to Safely Drop Off Passengers

In New York a common carrier’s duty of care to an alighting passenger is to stop at a place where the passenger can alight safely and towards that end to exercise reasonable and commensurate care in view of the dangers to be apprehended. Blye v. Manhattan and Bronx Surface Transit Operating Authority, 124 A.D.2d 106, 511 N.Y.S.2d 612 (1st Dept., 1987) and Rodriquez v. Manhattan and Bronx Surface Transit Operating Authority, 117 A.D.2d 541, 498 N.Y.S.2d 826 (1st Dept., 1986)

In other words, a common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area. Miller v. Fernan, 537 N.Y.S.2d 123, 73 N.Y.2d 844 (Court of Appeals, 1988); Conetta v. New York City Transit Authority, 307 A.D.2d 333, 762 N.Y.S.2d 634 (2nd Dept., 2003); Lockhart v. Adirondack Transit Lines Inc., 289 A.D.2d 686, 733 N.Y.S.2d 533 (3rd Dept., 2001) and Commentary, New York Pattern Jury Instructions Section 2:166 (3rd Edition, 2005).

The established precedent obligates the common carrier, in discharging passengers, to provide a reasonably safe point from which the passengers can alight and walk away without incurring a risk of injury. A common carrier is under a duty to provide a prospective passenger with a reasonably safe, direct exit off the vehicle, clear of any dangerous obstruction or defect which would impeded that exit and a safe path from which to leave this area. Imposing liability on a common carrier requires a finding that the placement of the bus dictates that the passenger, in order to exit the bus, must navigate a dangerous or defective path. Blye, supra and Gross v. New York City Transit Authority, 256 A.D.2d 128, 681 N.Y.S.2d 513 (1st Dept., 1998)

It is clear that the complaint of a plaintiff passenger injured while leaving the area where the bus stopped to discharge its passengers will not be dismissed on a summary judgment motion if there is a factual dispute over whether there was any safe alternative route which plaintiff could have taken. Miller, supra. In accordance with these principles, it is now well settled that the common carrier’s duty is breached if the carrier did anything to compel or even suggest that the passenger take a defective or dangerous path of ingress or egress. In addition, it is established that it is for a jury to decide whether there was any safe alternative route that the plaintiff could have chosen when there are factual disputes as to whether the plaintiff voluntarily chose to follow a particular path. Garcia v. Hope Ambulette Service Corp., 307 A.D.2d 860, 763 N.Y.S.2d 605 (1st Dept., 2003).

The common carrier, as the proponent of a summary judgment motion, must put forth evidentiary proof in admissible form sufficient to establish that the passenger was provided with a safe place to alight from the bus and that there was a safe alternative path the passenger could have taken to leave the area. Miller, supra.

In Malawer v. New York City Transit Authority, 18 A.D.3d 293, 795 N.Y.S.2d 201 (1st Dept., May 17, 2005) the Appellate Division, First Department reversed an Order of the Supreme Court, New York County which granted defendants’ motion for summary judgment. The plaintiff slipped and fell on an icy subway grating as he was exiting the front doors of a city bus. The defendants argued that the plaintiff was able to safely alight, but only that he stepped on a perilous spot after alighting from the bus. In addition, the defendants argued that any negligence on behalf of defendant was not the proximate cause of the plaintiff’s injuries as a matter of law because the plaintiff had exited the bus before he actually fell.

The Malawer Court applied established law to the facts and held that the fact plaintiff failed to see the defect did not conclusively negate an inference that the driver could have been aware of the hazard. The Court went further to state that “whether the driver met the duty to stop the bus at a safe location and whether the path afforded to the plaintiff was reasonably safe was a question of fact for the jury and [could] not be determined on the record before [the Court].”

In Archer v. New York Transit Authority, 806 N.Y.S.2d 582, 2006 N.Y. Slip Op. 00091 (1st Dept., January 5, 2006) the Appellate Division, First Department unanimously reversed an Order of the Supreme Court, New York County which granted defendants’ motion for summary judgment. The plaintiff sustained injuries when he stepped down from the rear exit of the bus into a pothole and fell. The defendants argued that there was no evidence to show that they had any notice of the condition that caused the accident nor was there evidence to show that the property where the accident occurred belonged to the defendants. The defendants’ permitted the plaintiff to exit the bus when the defendants’ bus stopped in advance of the designated bus stop and approximately two to three feet away from the curb.

The Archer Court held that the fact that “plaintiff did not see the defect in time as she stepped off of the bus some three feet from the curb [did] not negate the inference that the bus driver could have been aware of the hazard; therefore issues of fact existed that precluded the award of summary judgment on behalf of the defendants.” [Citing to Miller, supra and Jenkins, supra].

In Gross, supra, the Appellate Division, First Department unanimously reversed an Order of the Supreme Court, New York County which granted defendants’ motion for summary judgment dismissing the plaintiff’s complaint. The plaintiff sustained injuries when she was struck by a bicycle after stepping onto the street to board defendants’ bus. The defendants argued that there was no material question of fact that the defendants were not negligent in operating the bus or, even if they were, that their actions were not a proximate cause of the plaintiff’s injuries.

The Gross Court explained that it was for a jury to decide “whether requiring prospective passengers to navigate a full traffic lane, in order to board the bus presented a foreseeable risk of injury.” Although the defendants argued that the evidence demonstrated that the bus driver acted reasonably to provide plaintiff with a clear, direct and safe path, the Gross Court disagreed and further explained that “whether the path afforded to plaintiff, under the circumstances presented in this matter, was reasonably safe was a question for the jury and was certainly not resolved by the record before the Court.”

Finally, the Gross Court also addressed the defendants’ arguments that regardless of whether the placement of the bus was negligent, it could not be considered a proximate cause of plaintiff’s injures in that her own behavior constituted an intervening cause, since she chose to step into the roadway. The Gross Court disagreed with the defendants’ allegations and noted that the defendants failed to put forth evidence showing as to “what precautions plaintiff took, or failed to take, upon approaching the bus, and certainly no showing that she failed to take such precautions that were so obviously necessitated by the situation that her failure to take them was an extraordinary and unforeseeable act of reckless.”

In Conetta, supra, the Appellate Division, Second Department reversed an Order of the Supreme Court, Queens County which granted defendant’s motion for summary judgment dismissing plaintiff’s complaint. The plaintiff sustained injuries when she fell while alighting from a bus operated by the defendant when she stepped down onto the uneven, sloped part of a curb that had been cut for a driveway.

The Conetta Court explained that there were “questions of fact as to whether the defendant breached its duty to the plaintiff, whether such breach proximately caused the plaintiff’s injuries, and whether the plaintiff was comparatively negligent.” The Court further explained that the “defendant failed to set forth evidentiary facts sufficie