Blye v. Manhattan and Bronx Surface Transit Operating Authority

• Decision Date: 10 February 1987
• Parties: , 132 A.D.2d 478 Mimi BLYE, Plaintiff-Respondent-Appellant, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendant-Appellant-Respondent, and The City of New York, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 612

511 N.Y.S.2d 612

124 A.D.2d 106, 132 A.D.2d 478

Mimi BLYE, Plaintiff-Respondent-Appellant, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY Defendant-Appellant-Respondent and The City of New York, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Feb. 10, 1987.

As amended July 16, 1987.

Lawrence Heisler, New York City, of counsel (Anthony J. Bellito and John A. Murray, with him on brief; William E. Rosa, Brooklyn), for defendant-appellant-respondent.

Stephen R. Krawitz, of counsel (Mangiatordi & Corpina, New York City), for plaintiff-respondent-appellant.

Fay Leoussis, of counsel (Leonard Koerner on brief; Frederick A.O. Schwarz, Jr., New York City), for defendant-respondent.

Before SANDLER, J.P., and CARRO, FEIN, KASSAL and ELLERIN, JJ.

CARRO, Justice.

At issue is the scope of the duty of care owed by a bus operator to prospective passengers. While keeping in mind that factors such as the vehicle's proximity to a hazardous condition and the foreseeability and seriousness of any harm such a hazard could produce will be critical in determining whether in any particular case a breach of duty has occurred, we hold that a bus operator's duty of care to a prospective passenger is to provide a reasonably safe passage onto the bus which does not invite or dictate that the passenger board the bus via a treacherous path. Under the particular facts herein, we hold that the Manhattan & Bronx Surface Transit Operating Authority (MABSTOA) met this duty of care. Accordingly, we reverse the judgment of liability against it.

The facts of this case can be briefly stated. In the early afternoon of September 8, 1981, plaintiff Mimi Blye was standing against the wall of a store at 801 Madison Avenue, between 67th and 68th Streets, waiting for a bus. The bus stop at this location ran from the corner of 67th Street past the front of 801 Madison Avenue. The sidewalk on this block had a width of approximately 10 feet. Alongside the street curb of the sidewalk and across from 801 Madison Avenue was a tree well or square measuring three feet by three feet, which contained indiscriminately placed cobblestones, but no tree.

Ten to fifteen minutes after plaintiff's arrival at the bus stop, a bus owned and operated by defendant MABSTOA, travelling north on Madison Avenue, a one-way street, pulled over to the bus stop, with its front end approximately two feet past the northerly border of the tree well and five feet past the southerly border of the well. Rather than walk along the sidewalk directly to the front door of the bus, which path was clear of any obstruction or hazardous condition, plaintiff chose to head directly to the tree well, which was not in the direct path of the bus door, and tripped over the top southeasterly corner cobblestone. The cobblestone was raised two inches above the sidewalk level. Plaintiff sustained multiple injuries for which she now seeks damages. Plaintiff never alerted the bus driver to the accident, nor was she able to identify the particular bus or operator.

Suit was commenced against both MABSTOA and the City of New York, and the matter was tried before a jury. Plaintiff was the only witness to testify as to the accident. The jury found that the City had not received the proper notice of the defect, as required under Section 394a-1.0(d) of the New York City Administrative Code, and thus entered a verdict in favor of the City against plaintiff. The jury also found MABSTOA to have been 85 per cent responsible for the accident and plaintiff 15 per cent negligent. The gross damages award of $230,000.00 was reduced, accordingly, to $195,000.00. Motions to set aside the verdict and for entry of a directed verdict against the City were denied. While plaintiff and defendant MABSTOA both appeal from the dismissal of the complaint against the City, we conclude that adequate notice was indeed not given and the jury's verdict of no liability in favor of the City is, accordingly, affirmed. Of concern in this case is the finding of liability against MABSTOA.

Before liability can be imposed on a defendant for his or her conduct, it must be demonstrated that the defendant owes a duty of care to the plaintiff to conform to a standard of reasonable conduct in relation to the risk involved and that there was a breach of that duty. Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019, quoting from Prosser, Torts (4th ed.) § 53 at 324. See also Palsgraf v. Long Island Railroad Company, 248 N.Y. 339, 342, 162 N.E. 99; Waters v. Housing Authority, 116 A.D.2d 384, 386, 501 N.Y.S.2d 385. Fixing the boundaries of that duty with respect to any particular set of circumstances is the responsibility of the courts. This involves a very delicate balancing of such considerations as logic, common sense, science, and public policy. Bovsun v. Sanperi, 61 N.Y.2d 219, 228, 473 N.Y.S.2d 357, 461 N.E.2d 843; DeAngelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406; Waters v. Housing Authority, supra; Donohue v. Copiague School District, 64 A.D.2d 29, 33, 407 N.Y.S.2d 874. The concept of foreseeability is a critical factor in defining the boundaries of that duty, [Pulka v. Edelman, supra, 40 N.Y.2d, at 785, 390 N.Y.S.2d 393, 358 N.E.2d 1019; Waters v. Housing Authority, supra, 116 A.D.2d, at 387, 501 N.Y.S.2d 385], but it is never the avenue by which to create a duty which does not otherwise exist. Pulka v. Edelman, supra.

Whether or not in a given case a breach of duty has occurred will depend on the particular facts of the case and is either a question of law or of fact depending on the susceptibility of the facts to varying inferences. Sheehan v. City of New York, 40 N.Y.2d 496, 502, 387 N.Y.S.2d 92, 354 N.E.2d 832; Palsgraf v. Long Island Railroad Company, supra, 248 N.Y., at 345, 162 N.E. 99; Amoruso v. New York City Transit Authority, 12 A.D.2d 11, 12, 207 N.Y.S.2d 855. The facts at bar, which are not susceptible to varying interpretations, enable us to determine, as a matter of law, whether a breach of duty of care has occurred.

Although we are concerned herein with the duty of care owed a boarding passenger, that duty is so closely related to that owed to a departing passenger as to merit a review of the case law defining the scope of the duty of care of a common carrier to a passenger alighting from a public car. Certainly logic, common sense and public policy would dictate not imposing a greater duty of care on a common carrier towards prospective passengers than is owed to actual passengers.

In this regard, the law is well established that 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." Fagan v. Atlantic Coast Line R.R. Co., 220 N.Y. 301, 306, 115 N.E. 704; Bundy v. City of New York, 18 A.D.2d 799, 237 N.Y.S.2d 138, affd. 13 N.Y.2d 1181, 248 N.Y.S.2d 220, 197 N.E.2d 618; See also Rodriguez v. MABSTOA, 117 A.D.2d 541, 542, 498 N.Y.S.2d 826. Once a safe alighting point is provided, the operator's duty is completed. Id. Further, even when the operator of the vehicle is in violation of a traffic regulation, but a passenger makes an independent and voluntary choice of departing from a safe alighting point onto a hazardous road condition, caused by the improper placement of the vehicle, courts will not impose liability on the common carrier.

In Rodriguez v. MABSTOA, supra, for example plaintiff Rodriguez was safely discharged from the bus onto a designated bus stop. Even though the bus driver improperly blocked the pedestrian crosswalk with the bus, making it hazardous for anyone to cross the intersection, this court refused to hold MABSTOA liable for the injuries plaintiff sustained upon being hit by a car as she crossed the intersection from behind the bus. This court determined both that plaintiff's injuries were caused by her own voluntary and independent decision to cross the intersection from an unsafe vantage point, and thus, were not proximately caused by the placement of the bus, and that MABSTOA, having safely discharged Rodriguez onto the bus stop had fullfilled its duty to her. Accord, Ortola v. Bouvier, 110 A.D.2d 1077, 488 N.Y.S.2d 934.

Even when the bus has come to a stop within steps of a hazardous sidewalk condition, as long as the passenger has safely alighted, the duty of care owed that passenger has been fulfilled, and liability will not extend to the passenger's act of stepping into the structurally defective or perilous spot. In Douglas v. New York City Transit Authority, 19 A.D.2d 707, 241 N.Y.S.2d 472, the passenger safely stepped off the bus onto the sidewalk, but was injured when, after taking only a few steps, she tripped over a defect in the sidewalk. The court found that the case had been properly dismissed as against the Transit Authority for failure to make out a prima facie case. Id. at 707, 241 N.Y.S.2d 472. Thus, because a safe passage was provided, it was held, as a matter of law, that there was no breach of duty manifested by the bus driver's placement of the bus near the defective sidewalk. Similarly, in Goldberg v. Interurban St. Ry. Co., 90 N.Y.S. 347, no liability was attached to the bus driver's act of placing the bus near an unguarded excavation into which plaintiff fell after she alighted from the bus and took two or three steps. Plaintiff herself chose her path after safely alighting from the bus.

To be contrasted is Keener v. Tilton, 283 N.Y. 454, 28 N.E.2d 912. There the Court of Appeals ruled that a question of fact existed as to the negligence of a trolley car car driver under facts revealing that in alighting from the trolley car, the plaintiff stepped directly into a hole in the street. Id. at 455-456, 28 N.E.2d 912. Similarly in Schwartz v. Brooklyn and Queens Transit Corp., 264...