Chainani by Chainani v. Board of Educ. of City of New York

• Decision Date: 01 November 1995
• Docket Number: R,No. 2,2
• Citation: Chainani by Chainani v. Board of Educ. of City of New York, 639 N.Y.S.2d 971, 87 N.Y.2d 370, 663 N.E.2d 283 (N.Y. 1995)
• Parties: , 663 N.E.2d 283, 108 Ed. Law Rep. 828 Monica CHAINANI, an Infant, by Her Father and Natural Guardian, Suresh CHAINANI, et al., Appellants-Respondents, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Respondent, and Amboy Bus Co., Inc., et al., Respondents-Appellants. Gloria BRUCE, Individually and as Parent and Natural Guardian of Jennifer Bruce, an Infant, et al., Appellants, v. Roslyn R. HASBROUCK et al., Defendants, and Ellenville Central School Districtespondent.
• Court: New York Court of Appeals Court of Appeals

Page 971

639 N.Y.S.2d 971

87 N.Y.2d 370, 663 N.E.2d 283, 108

Ed. Law Rep. 828

Monica CHAINANI, an Infant, by Her Father and Natural Guardian, Suresh CHAINANI, et al., Appellants-Respondents, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Respondent, and Amboy Bus Co., Inc., et al., Respondents-Appellants.

Gloria BRUCE, Individually and as Parent and Natural Guardian of Jennifer Bruce, an Infant, et al., Appellants, v. Roslyn R. HASBROUCK et al., Defendants, and Ellenville

Central School District No. 2, Respondent.

Court of Appeals of New York.

Nov. 1, 1995.

Sullivan & Liapakis, P.C., New York City (Cheryl Eisberg Moin, of counsel), for appellants-respondents in the first above-entitled action.

L. Kevin Sheridan, Smithtown, and Silverman, Collura & Chernis, P.C., New York City, for respondents-appellants in the first above-entitled action.

Paul A. Crotty, Corporation Counsel, New York City (Alan G. Krams and Kristin M. Helmers, of counsel), for respondent in the first above-entitled action.

Jay Worona, Albany, and Katherine Gaffney, Glens Falls, for New York State School Boards Association, Inc., amicus curiae in the first above-entitled action.

Sichol & Hicks, P.C., Suffern (William R. Sichol, Jr., of counsel), for appellants in the second above-entitled action.

Cook, Tucker, Netter & Cloonan, P.C., Kingston (Robert D. Cook, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

KAYE, Chief Judge.

The common issues in these combined appeals center on whether public schools that have contracted for transportation services with independent bus companies should be liable for injuries to students which occur between a child's home and the bus stop. In each case, we resolve these issues in favor of the school defendant, as did the Appellate Division.

Chainani v. Board of Educ., 201 A.D.2d 693, 608 N.Y.S.2d 283. Eight-year-old Monica Chainani rode home from her New York City school on February 3, 1987, and left the school bus at her designated stop, the last stop on the route. Monica had to cross the street to reach her house, which her regular bus driver knew. On that day, however, the bus was driven by defendant Edward Acuti, an employee of defendant Amboy Bus Company, who had driven that route only once previously. Acuti did not know that Monica had to cross the street and, after she stepped in front of the bus to cross, he pulled away from the curb and ran over her.

Monica's father, on her behalf and his own, brought suit against the Board of Education, Amboy and Acuti. A jury found both that Acuti was negligent and that his negligence was the proximate cause of the accident. The jury also found Monica negligent and apportioned responsibility 75% to Acuti and 25% to Monica. Additionally, the jury found that Acuti had violated Vehicle and Traffic Law § 1174(b), but that the violation was not the proximate cause of the accident. The Trial Judge nonetheless directed a verdict for the plaintiffs against all three defendants. The Appellate Division affirmed as to Amboy and Acuti, but reversed as to the Board of Education, holding that the Board was not vicariously liable for Acuti's violation of the statute. Plaintiffs appeal the reversal as to the Board; Amboy and Acuti appeal the affirmance as to them. We now affirm.

Bruce v. Hasbrouk, 207 A.D.2d 10, 620 N.Y.S.2d 562. Nine-year-old Jennifer Bruce was seriously injured when she was struck by a car while trying to cross a highway to catch her bus at an undesignated stop. Jennifer's designated stop--Tom's Taxidermy--was on the same side of the highway as her home, the east side, and was unquestionably safe. The school bus was routed to travel north on the highway, Route 209, picking up students on the east side, and then turn around and travel south on Route 209 to pick up students on the west side. The Ellenville School District set up the loop route, with authorized stops on both sides, so that students would avoid having to cross Route 209. According to plaintiffs, however, when students on the east side were late they often crossed Route 209 to catch the bus at undesignated stops on the west side, a practice that had occurred as much as two or three times per week over a two-year period. The district denied knowledge of such a practice.

On the morning of June 15, 1990, Jennifer missed the bus at her designated stop on the east side of Route 209 and crossed the highway to catch the bus on its return trip along the west side of the highway. The bus driver, defendant Lisa Mulford, an employee of defendant Shawanga Bus Company, was travelling south on the highway when she noticed that traffic was backed up due to an accident. A car driven by Roslyn Hasbrouck had struck Jennifer as she crossed the road.

Jennifer's parents, on her behalf and their own, brought suit against the Ellenville Central School District, Shawanga Bus Company, Mulford and Hasbrouck. The Trial Judge granted summary judgment to the school district, holding that it was not directly liable for the accident in that the child's designated bus stop was safe, there was no evidence that the school district knew that children boarded the bus at undesignated stops on Route 209, and the district had no obligation to establish rules prohibiting students from crossing the highway. The Appellate Division affirmed as to the school district, holding that the district did not owe a duty to the child because she was not in its custody or control and that the district's decision to impose "no-cross" rules was a governmental function immune from tort liability. Additionally, the court concluded that the district was not vicariously liable for the acts of the independent contractor Shawanga. As to Shawanga and Mulford, the Appellate Division reversed, holding that there was a question of fact regarding whether the act of picking up students who had crossed the highway was reasonable in light of the risk to the students. Plaintiffs appeal the order as to the school district, which we now affirm.

Direct Liability of the Schools

Advancing various theories of direct liability, plaintiffs argue first that the schools should be held responsible because the students were in their custody at the time of injury while on their way to and from the bus stop. Plainly, a school has a duty of care while children are in its physical custody or orbit of authority, or if a specific statutory duty has been imposed, and if the school chooses to provide transportation services it must do so in a careful and prudent manner including establishing safe bus stops (Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849; see also, Education Law § 3635[1][d] [relieving schools of responsibility of providing transportation to children directly to or from their homes]. Whatever the precise boundaries of the duty however, here the schools had contracted-out responsibility for transportation, and therefore cannot be held liable on a theory that the children were in their physical custody at the time of injury.

Alternatively plaintiffs argue that the Legislature has imposed a specific statutory duty on the schools by virtue of Vehicle and Traffic Law § 1174(b), which reads:

"The driver of such school bus, when receiving or discharging passengers who must cross a public highway, street or private road, shall instruct such passengers to cross in front of the bus and the driver thereof shall keep such school bus halted with red signal lights flashing until such passengers have reached the opposite side of such highway, street or private road." ¹

The words of the subdivision, however, clearly place the affirmative obligation on bus drivers, not schools. That no specific statutory duty was imposed on the schools is made evident by the web of detailed statutes and regulations concerning independent contractors engaged to provide student transportation services (see, Education Law § 305[14]; § 3623[1]; § 3627[10]; § 3635; 8 NYCRR part 156). The statutes, for example, require contracts for transportation to be in writing and approved by each school superintendent, who is charged with conducting an investigation into the drivers, routes, time schedules and other matters involving student safety (Education Law § 3635[3]; § 3625; 8 NYCRR 156.2, 156.3). Transportation contracts must be awarded pursuant to competitive bidding and are subject to approval by the Commissioner of Education (Education Law § 305; 8 NYCRR 156.1). The Legislature obviously contemplated that schools would contract out transportation services yet nowhere specified the sort of direct responsibility it imposed on drivers under Vehicle and Traffic Law § 1174(b) (compare, Labor Law §§ 240, 241 [placing liability for injury to workers upon owners who employ independent contractors].

The Bruce plaintiffs, as yet another basis for the school's direct liability, suggest that the school was itself negligent in the operation of its transportation system when it set up a loop bus route and failed to establish "no-cross" rules, specifically instructing students not to cross the highway and bus drivers not to pick up students who had crossed the highway. Plaintiffs argue that, although it delegated the task of transporting students, the school retained control over safety issues and was thus responsible for promulgating no-cross rules (Restatement [Second] of Torts § 414 [one who employs an independent contractor but retains control over any part of the work remains liable for failing to exercise its control with reasonable care]; Education Law § 3622; see also, 8 NYCRR 156.2, 156.3[d][2] ).

Although the school was active in some areas involving safety--including conducting safety training sessions for bus drivers--it did not retain control over every safety aspect of the manner in which the independent contractor picked up and discharged students along Route 209. As both Supreme Court and Appellate Division noted,...