Black v Homer Cent. School Dist.
Annotate this CaseDecided on February 10, 2005
Supreme Court, Cortland County
Alexander J.R. Black, Deceased, by Martin G. Black, Administrator of the Estate of Alexander J.R. Black, CASEY MICHAEL BLACK, an infant, by his father and natural guardian, Martin G. Black, BRANDIE LYNN EDWARDS, by her step-father and next friend, Martin G. Black, , Plaintiffs,
against
Homer Central School District and VICKIE BLACK, Defendants.
36564
Friedlander & Friedlander, P.C.
By: William S. Friedlander, Esq.
Attorneys for Plaintiffs, Black and Tomberelli
425 Park Avenue
P.O. Box 109
Waverly, New York 14892-0109
Petrone & Petrone, P.C.
By: Janet F. Neumann, Esq.
Attorneys for Defendant, Homer Central School
300 Pearl Street 800 Olympic Towers
Buffalo, New York 13202
Paul E. Richardson, ESQ.
Attorney for Defendant, Vickie Black
806 Crossroads Building
Two State Street
Rochester, New York 14614
Phillip R. Rumsey, J.
This case and its companion (Perez v Homer Central School District, Cortland County Index No. 36563) arise from a collision between an automobile and a school bus, that occurred on May 3, 1999, on State Route 90 in Homer, New York. Plaintiffs Brandie Edwards, Casey Black, and Alexander Black were passengers in the automobile, which was driven by their mother, defendant Vickie Black. The children were injured in the collision, Alexander fatally. In addition to allegations that Black was negligent in her operation of the vehicle, plaintiffs also charge defendant Homer Central School District with negligence in, inter alia, the placement of the bus stop (from which the bus was just pulling away when it was hit in the rear by Black's vehicle) and a nearby bus turnaround. The District is also faulted for failing to recommend to the State Department of Transportation that a "School Bus Stop Ahead" sign be posted in the vicinity.
More of the specific facts of this case can be found in this court's prior decision, rejecting the District's contention that it has no duty at all to the traveling public, when planning bus routes or siting stops (Black v Homer Cent. School Dist., 190 Misc 2d 17 [2001]). In that decision, the court held that a school district has "a duty to consider and weigh [public safety concerns] when siting a bus stop and routing its buses" (id., at 21), and that plaintiff's claims that defendant District failed to do so were therefore sufficient, at the pleading stage, to state a cause of action for negligence (id.). Discovery has now been had, and the District moves for summary judgment dismissing the complaint as against it.
In support of its motion, the District has tendered evidence establishing, prima facie, that it took into consideration the requisite factors when planning the bus route in question. In particular, the record shows that there was no negligence or wrongdoing by the bus driver [FN1]; that the placement of the bus turnaround did not contribute to the accident (Affidavit of Richard Rogers, dated June 21, 2004, ¶ 12; Affidavit of Richard S. Hermance, dated June 28, 2004, ¶¶ 4, 9); that the bus stop was placed at what was considered to be the most reasonable spot, considering both the safety of the children and its visibility to traffic approaching from both directions (Rogers Affidavit, ¶¶12-15); and that no request was made for the posting of a "Bus Stop Ahead" sign, because the conditions did not meet the criteria established by the State Department of Transportation for such posting (Rogers Affidavit, ¶¶ 6, 7).
In response, plaintiff has not met his burden of coming forward with proof that could support a finding that the location of the bus stop (or turnaround) posed an unreasonable risk to public safety, "given [the] available alternatives and bearing in mind all other relevant factors" (Black, at 20; see also, Gleich v Volpe, 32 NY2d 517, 522-523). Although this court stressed the need to show the existence of a safer alternative location for a bus stop (Black, at 20, fn 4), the mere existence of another possible location is not, without more, enough to demonstrate a breach of duty. It must also be shown that the location chosen was unreasonably dangerous, given the entirety of the relevant circumstances (see, Moshier v Phoenix Central School District, 199 AD2d 1019, affd 83 NY2d 947); the existence of available alternatives is but one of those circumstances. Here, plaintiff's expert avers that placing the stop farther east would have improved visibility for vehicles approaching from the west (Affidavit of John M. Curatolo, dated September 20, 2004, ¶12), but he does not assert that the resulting need for schoolchildren to walk on a busy highway, without sidewalks, with traffic approaching from behind, or the change in sight distance for vehicles traveling west, do not outweigh the slightly increased visibility for eastbound drivers. Nor does he suggest that the District acted unreasonably in its attempt to [*2]balance these disparate concerns. Thus, plaintiff has not raised any material question with respect to its claim of a breach of the District's duty to use due care in designing its bus routes and locating bus stops.
As for the bus turnaround, plaintiff's expert avers that moving the bus turnaround farther to the west would increase the likelihood that a bus would be seen by eastbound drivers before reaching the stop where the collision occurred (id.). Aside from a general suggestion that the turnaround be placed "beyond the crest of the western hill," however, he does not propose any other specific location for placement of the turnaround, making it impossible to ascertain whether such location might pose different safety risks, or be unacceptable for other reasons. In sum, plaintiff has not demonstrated that there was an actual alternative location where the turnaround could have been placed, such that, in light of all of the relevant factors, the location actually chosen was "unreasonably unsafe" in comparison.
Noticeably absent, as well, is any proof that placing the turnaround in another location would have actually provided defendant Black with any additional opportunity to see the bus she hit, which had entered and left the turnaround, stopped to pick up passengers, and begun to pull out of that stop, prior to the collision. Under these circumstances, to conclude that the location of the turnaround was a causative factor in the accident would require impermissible speculation.
Plaintiff also contends that the District was negligent in failing to recommend or request that the State Department of Transportation (DOT) post a "School Bus Stop Ahead" sign, which would have provided additional warning for eastbound motorists - such as defendant Black - of the possibility of a stopped bus in their lane of travel. Even if such a sign might have changed Black's actions, however, plaintiff could recover on this theory only upon a showing that the District's failure to request a sign was a causative factor in the accident, i.e., that if such a request had been made, a sign would actually have been erected. In support of its motion for summary judgment, the District has demonstrated that DOT had a policy of rejecting such requests where there was a sight distance of more than 500 feet for drivers approaching a bus stop, unless there had been a prior accident at the location (Rogers Affidavit, ¶ 6, Exhibit A). Having failed to come forth with proof that such a request would have actually resulted in the posting of a sign in this instance (plaintiff's expert merely avers that a sign should have been placed in this location, not that DOT would have done so if one had been sought or recommended), plaintiff has not raised a factual question sufficient to preclude summary judgment.
Accordingly, the motion of defendant Homer Central School District must be, and hereby is, granted, and the complaint dismissed as to that defendant. This decision shall constitute the order of the court.
Dated: February 10, 2005
Cortland, New York
____________________________
HON. PHILLIP R. RUMSEY
Supreme Court Justice
ENTER
Footnotes
Footnote 1:This is relevant to the claim of negligent hiring or supervision of the driver; in the absence of any showing that the driver's action or omission caused the collision, there could be no causal connection between any negligence in hiring or supervising that individual, and the injuries for which recovery is sought.
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