BF v WC

[*1] BF v WC 2005 NY Slip Op 51758(U) [9 Misc 3d 1123(A)] Decided on October 4, 2005 Supreme Court, Rensselaer County Ceresia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 4, 2005
Supreme Court, Rensselaer County

BF, Individually and as Parent and Natural Guardian of RP, Plaintiff,

against

WC, GREYHOUND LINES, INC., and ADIRONDACK TRAILWAYS, INC., Defendants.



208416



The LaFave Law Firm, PLLC

Attorneys For Plaintiff

822 Delaware Avenue

Delmar, NY 12054

Boeggeman, George, Hodges &

Corde, P.C.

Attorney For Defendants

WC and Adirondack Trailways, Inc.

46 Columbia Street

Albany, New York 12207-2716

George B. Ceresia, J.

On August 2, 2002 RP (hereinafter "plaintiff") and her friend MW, both fourteen years of age, allegedly arrived at the Greyhound/Adirondack Trailways bus terminal in [*2]Albany, New York intending to run away from home. They attempted to purchase bus tickets to Texas but were unable to do so because they did not have cash to pay for the tickets. They left the bus terminal, but returned late in the afternoon on the following day. At some point they allegedly came in contact with MW's cousin, defendant WC, an employee of Adirondack Trailways, Inc. ("Adirondack Trailways"). According to plaintiff, upon being informed of their plan to run away, WC indicated that he could get them on a bus if a certain driver that he knew was there. WC departed, but soon returned to inform the two girls that he could get them on a bus to New York City. WC then allegedly assisted them in boarding the bus. Neither of the girls had purchased a ticket. The bus departed Albany at approximately 6:30 p.m. It arrived in the New York City Port Authority between 9:00 p.m. and 9:30 p.m. Upon arrival, they left the terminal and walked to Times Square, where they were approached by a man. The girls informed him that they needed a place to stay for the night. He indicated that he could provide them with a place to stay, but they would have to earn it by engaging in prostitution. They agreed to do so, and in return he put them up in a motel. They had engaged in prostitution for about a week when the infant plaintiff, upon entering a motor vehicle one evening, was allegedly kidnaped at gunpoint. She was then brought to a residence in Queens, New York where she was allegedly held for approximately thirty days against her will, and was sexually assaulted. At some point, an unidentified man assisted plaintiff in making an escape. Plaintiff thereafter telephoned her mother, who picked her up at the New York City Port Authority.

Plaintiff commenced the instant action seeking damages, against WC, Greyhound Lines, Inc. ("Greyhound") and Adirondack Trailways. WC and Adirondack Trailways have made a cross-motion [FN1] for summary judgment dismissing the complaint. Defendants, without conceding that any of the events as related by plaintiff actually occurred, emphasize that Adirondack Trailways fulfilled its responsibilities as a common carrier by safely transporting the girls to New York City. They maintain that the plaintiff voluntarily ran away from home with her friend MW. They point out that defendant WC, while acknowledging that he saw (and spoke to) the girls on the day in question, denies that he assisted the girls in any way. They point out that Michael Cummings, the bus driver who drove the 6:30 p.m. bus from Albany to the Port Authority, testified at a pre-trial deposition that the girls were not on board the bus. They place great emphasis on the testimony given by plaintiff, that she and MW safely arrived at the Port Authority Terminal, but then left the Terminal and walked over to Times Square. They point out that shortly after arriving in New York City plaintiff quickly agreed (without coercion) to [*3]engage in prostitution; and that she subsequently failed to avail herself of numerous opportunities to seek a safe haven, to call home, or to contact the local police. Defendants maintain that they could not reasonably anticipate that any of the foregoing would happen. They argue that once plaintiff left the relative safety and security of the Port Authority that she became the victim of unforeseeable intervening and superseding criminal acts which severed the causal connection between any alleged negligence on their part and the subsequent injuries which she allegedly suffered. It is contended that the obligation of Adirondack Trailways, as a common carrier, was limited to providing safe passage to the intended destination, and a safe place to alight from the bus.

The elements of a cause of action for negligence are "(1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof" (Akins v Glens Falls City School Dist., 53 NY2d 325, 333). The extent of a defendant's duty is, in the first instance, an issue of law for the court, dependent upon "whether the relationship of the parties is such as to give rise to a duty of care * * *, whether the plaintiff was within the zone of foreseeable harm * * *, and whether the [occurrence causing injury] was within the reasonably foreseeable risks" (Di Ponzio v Riordan, 89 NY2d 578, 583 [citations omitted]).

It is plaintiff's burden to demonstrate "that defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, citing Nallan v Helmsley-Spear, Inc., 50 NY2d 507, at p 520 and Restatement, Torts 2d, § 431). The determination of proximate cause may at times be difficult, particularly if there is more than one tortfeasor and/or more than one tortious event. It is well settled however, that the acts of a third person which intervene between the defendant's conduct and plaintiff's injury do not necessarily sever the causal connection (Derdiarian v Felix Contr. Corp. supra, at 315). "In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (id., citing Parvi v City of Kingston, 41 NY2d 553, 560, Restatement, Torts 2d, §§ 443, 449, and Prosser, Law of Torts, § 44). "If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus" (id., citing, Martinez v Lazaroff, 48 NY2d 819, 820, Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952, and Rivera v City of New York, 11 NY2d 856). "Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve" (id.). Of great significance here, while third-party criminal acts may operate to sever the causal connection between defendant's negligence and plaintiff's injuries, this is not the case where the criminal intervention of third parties was a reasonably foreseeable consequence [*4]of the circumstances created by the defendant (see Bell v Board of Education of the City of New York, 90 NY2d 944 [1997]), at 946, citing Kush v City of Buffalo, 59 NY2d 26).

As noted, plaintiff testified at her pre-trial deposition that both plaintiff and her friend MW informed WC that they intended to run away from home. She testified that she informed WC that she was 14 years of age. She also testified that WC walked them onto the bus without requiring that the girls pay for bus tickets. According to plaintiff the bus driver was present when this happened.

Viewing the evidence, as it must, in a light most favorable to the plaintiff, the Court finds that the plaintiff has presented evidence to demonstrate that WC made arrangements for the girls to board a bus to New York City knowing that they were fourteen years of age; and knowing that they intended to run away from home. He did so while allegedly aware that the girls had little or no money; that they possessed no obvious means of support; and with no assurance that they would have a safe place to stay once they reached their destination. If one believes plaintiff's version of the relevant events, it was WC's actions alone which enabled the girls (minors, unsupervised and intent on running away from home) to board a bus to New York City. Under such circumstances it was reasonably foreseeable that the teenage girls would be at high risk to fall prey to criminal elements (see Bell v Board of Education of the City of New York, supra)[FN2]. The Court is of the view that while no duty to the plaintiff would have arisen had WC done nothing, if indeed he intervened in the fashion that plaintiff alleges, he assumed a duty for her care, supervision and safety.

The Court finds that there are triable issues of fact which preclude the grant of summary judgment. The Court concludes that defendants' motion must be denied.

The Court makes no determination with respect to the applicability of the doctrine of respondeat superior to impute WC's alleged negligence to Adirondack Trailways, as that issue was not raised on the instant motion.

Accordingly, it is

[*5]

ORDERED, that defendant's cross-motion for summary judgment be and hereby is denied.

This shall constitute the decision and order of the Court. All papers are returned to the attorney for the plaintiff, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.

Dated:October 4, 2005

Troy, New York

George B. Ceresia, Jr.

Supreme Court Justice Footnotes

Footnote 1:The cross-motion was in response to a motion for summary judgment made by Greyhound. Plaintiff subsequently discontinued the action as against Greyhound, thereby rendering the motion moot.

Footnote 2: In Bell (supra), a six grade girl was raped by older students after she became separated from her class while at a school outing, and where her teacher failed to report her absence to the school. While there are obvious distinguishing factors present here, the Court cannot ignore the fact that, taking plaintiff's version of the relevant events to be true, it was WC's acts that set in motion the foreseeable chain of events which ultimately placed her in harm's way.