Virgil Smith v. Hazel E. Sherwood
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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Virgil Smith, &c.,
Respondent,
v.
Hazel E. Sherwood, et al.,
Defendants,
Central New York Regional
Transporation Authority, Also
Known as Centro, Inc., and
Theodore R. Gray,
Appellants.
W. Bradley Hunt, for appellants.
Michael P. Kenny, for respondent.
New York Public Transit Association, amicus curiae.
GRAFFEO, J.:
Defendant Central New York Regional Transportation
Authority, also known as Centro, contracted with the Syracuse
City School District to provide students in the District with bus
transportation to and from various schools.
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Centro buses were
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public buses, not yellow school buses that are generally
associated with the transportation of school students and are
outfitted with specially designed safety equipment.
The contract
did not prohibit members of the public from riding on Centro's
buses when students were being transported, but there were
exterior signs that read "Special" posted on these buses to
inform potential non-student riders that the buses were not
following normal routes.
In October 2002, Derek Smith was 12 years old and
attended seventh grade at a private school in the Syracuse area.
At the beginning of the school year, Derek and other students
attended a presentation regarding proper bus safety.
They were
instructed not to cross in front of buses and to wait until buses
were at least a block away before attempting to cross streets.
The purpose of this cautionary advice was to alert the students
that stopped buses could block their ability to see traffic.
Similar instructions were repeated in written materials that were
distributed to the students and the warnings were reiterated on
signs in Centro buses.
Centro's rules also required its bus
drivers to use the public address system on the buses twice a
week to repeat these cautions to students.
After school on October 3, 2002, Derek got on a Centro
bus being driven by defendant Theodore Gray.
Derek usually
disembarked at a designated stop on the west side of South Salina
Street (a four-lane road) near West Cheltenham Road, the side of
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- 3 the street nearest to his home.
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That day, the bus driver went
past Derek's stop, either because Derek did not pull the bus cord
to inform the driver that he wanted to get off or because the
driver did not hear or ignored the signal.
After the bus turned
around in a parking lot (pursuant to its scheduled route), it
stopped on the east side of South Salina Street and Derek exited
the bus.
He immediately walked in front of the bus and into the
adjoining lane of traffic, where he was struck by an automobile
traveling in the same direction as the bus.
Derek was seriously
injured in the accident.
Derek's father commenced this action against Centro,
Gray and others.
As relevant to this appeal, the complaint
asserted that Centro and Gray had breached their common-law duty
to Derek and violated the statutory provisions that regulate
school buses.
Centro and Gray moved for summary judgment
dismissing the complaint.
Supreme Court granted their motion,
but the Appellate Division, with two Justices dissenting,
modified and reinstated the common-law negligence claim.
The
Appellate Division then certified a question to us asking whether
its order was proper.
We answer the certified question in the negative.
It
has long been the rule that "[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, 73 NY2d
844, 846 [1988], citing Fagan v Atlantic Coast Line R.R. Co., 220
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- 4 NY 301, 306-307 [1917]).
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Once that occurs, no further duty
exists, even if the disembarking passenger is a school child who
attempts to cross a street by passing in front of a stopped bus
(see e.g. Wisoff v County of Westchester, 296 AD2d 402 [2d Dept
2002]; Sigmond v Liberty Lines Tr., 261 AD2d 385, 387 [2d Dept
1999]; Kramer v Lagnese, 144 AD2d 648, 649 [2d Dept 1988]; Mooney
v Niagara Frontier Tr. Metro Sys., 125 AD2d 997, 998 [4th Dept
1986]).
Although plaintiff correctly notes that there is a
question of fact regarding the reason why Derek was dropped off
on the east side of South Salina Street instead of the west side,
it is unnecessary to resolve that factual issue because Derek
exited the bus at a safe location, terminating the duty owed to
him by Centro and Gray.
In allowing the negligence claim to proceed, the
Appellate Division relied, in part, on Sewar v Gagliardi Bros.
Serv. (51 NY2d 752 [1980]).
Sewar, however, involved a yellow
school bus subject to the mandated use of specific safety
equipment under Vehicle & Traffic Law § 375 (20).
Such
specially-equipped school buses are statutorily required to stop
"with red signal lights flashing" until a passenger needing to
cross a street does so (id. § 1174 [b]).
Furthermore, a
violation of Vehicle & Traffic Law § 1174 (b) may serve as the
basis for a viable cause of action (see Chainani v Board of Educ.
of City of N.Y., 87 NY2d 370, 382-383 [1995]; Van Gaasbeck v
Webatuck Cent. School Dist. No. 1, 21 NY2d 239, 244-245 [1967]).
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Concomitantly, the Vehicle & Traffic Law provides that all
operators of motor vehicles must stop when approaching a school
bus with red flashing lights (see Vehicle & Traffic Law § 1174
[a]).
The public bus that Derek rode, however, was not subject
to these rules (see Vehicle & Traffic Law § 375 [20]) and its
driver therefore did not have the legal authority (or the
necessary safety equipment) to make other vehicles stop while
Derek crossed the street.
In the absence of the special duty
that applies to yellow school buses, Centro and Gray are entitled
to summary judgment dismissing the complaint against them.
Accordingly, the order of the Appellate Division,
insofar as appealed from, should be reversed, with costs, the
common-law negligence claim against defendants Centro and
Theodore R. Gray dismissed and the certified question answered in
the negative.
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Order, insofar as appealed from, reversed, with costs, the
common-law negligence claim against defendants Central New York
Regional Transportation Authority and Theodore R. Gray dismissed
and certified question answered in the negative. Opinion by
Judge Graffeo. Chief Judge Lippman and Judges Ciparick, Read,
Smith, Pigott and Jones concur.
Decided February 15, 2011
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