Lesser v. Manhattan and Bronx Surface Transit Operating Authority

• Decision Date: 24 May 1990
• Citation: 556 N.Y.S.2d 274,157 A.D.2d 352
• Parties: , 176 A.D.2d 463 Arthur LESSER, Plaintiff-Respondent, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 274

556 N.Y.S.2d 274

157 A.D.2d 352, 176 A.D.2d 463

Arthur LESSER, Plaintiff-Respondent, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 24, 1990.

As Amended Oct. 1, 1991.

Lawrence Epstein, of counsel (John Corcos Levy, New York City, attorney), for plaintiff-respondent.

Steve S. Efron, Long Beach, of counsel (Albert C. Cosenza, Brooklyn, attorney), for defendant-appellant.

Before SULLIVAN, J.P., and CARRO, MILONAS, ROSENBERGER and SMITH, JJ.

SMITH, Justice.

This is an action for negligence growing out of the plaintiff's fall on the steps of a bus as he was getting off during a snowstorm. Because the trial court permitted the introduction into evidence and consideration by the jury of an operation manual used by the defendant and because the court failed to give an adequate charge on constructive notice, we reverse and direct a new trial.

The eighty-one year old plaintiff broke his left leg when he slipped and fell to the ground while descending the stairs of a 42nd Street cross-town bus operated by the defendant. The accident occurred on February 7, 1986 at about 2:30 in the afternoon.

The undisputed evidence was that it snowed continuously from six o'clock in the morning on the date of the accident, that by 2:30 P.M. several inches of snow had fallen and that the temperature that day was between nineteen and twenty-five degrees Fahrenheit.

Plaintiff testified that when getting onto the bus, he felt packed slush on the stairs under his foot, but boarded the bus without incident. About ten minutes later, after the bus had made several stops, he proceeded to disembark using the same stairs and holding the railing to his left.

Plaintiff admitted that while disembarking he did not look down at the steps but looked instead at the back of a police officer in front of him so as to avoid bumping into her. That police officer, Cynthia Kleppel, who witnessed the accident, testified, as did plaintiff, that she observed both steps covered with dirty packed slush about one inch in depth.

James Scott, who had been a bus operator for the defendant Authority for seventeen years, had no independent recollection of the occurrence, of the weather conditions, or of the condition of the steps. So far as he could recall, he had not cleared snow or slush from the steps of the bus at any time that day prior to the accident and in fact had not been supplied by the Authority with any tools for snow removal. He indicated that buses are outfitted with mirrors which allow drivers to see the steps and that it was his practice during inclement weather to advise passengers to watch their step when getting off the bus. However, both Lesser and Kleppel denied hearing any such warning. Scott indicated that if he had been aware of any accumulation of snow on the front or rear steps of the bus, he would have reported the condition to a dispatcher stationed along the bus route.

Over the objection of the Authority, plaintiff's counsel was permitted to introduce in evidence and to read to the jury the following portions of a document entitled "New Bus Operator Information Manual," first used by the Authority in 1980:

"GENERAL INFORMATION DUTIES OF SERVICE LINE OPERATORS.

1. They are responsible for the safe operation, regularity and proper care and condition of their buses.

2. They must take every precaution for the safety of passengers and pedestrians."

. . . . .

"SAFE OPERATION OF BUSES. Bus operators are reminded that the safe operation of buses is their primary duty."

. . . . .

"BOARDING AND ALIGHTING DURING SNOWSTORMS.

Operators must give special attention to potential safety hazards when persons are boarding and alighting during snowstorms. In particular, operators should:

Warn persons boarding and alighting to watch their step, ... make every effort to keep front and rear steps clear of accumulated snow."

Thereafter, a transportation safety expert called by plaintifftestified that the Authority's rules and regulations relating to the operation of buses in snowy conditions are consistent with the standard of practice, custom and usage in the transportation industry. He offered his opinion that industry practices require drivers to inspect the bus at the end of each run for hazardous conditions, including the removal of accumulated snow from stairwells, that a driver has a duty to continuously monitor the steps for snow and to report such findings to road dispatchers along the route and to caution passengers, and that failure to do so is a deviation from good and accepted standards as practiced in the transportation industry.

The jury found the Authority to be ninety percent negligent and the plaintiff contributorily negligent to the extent of ten percent. After a separate trial as to damages, judgment was entered in favor of plaintiff.

Defendant argues that because embarking passengers track snow onto the bus at every stop during a snowstorm, it would have been futile and well beyond what the law requires to attempt to keep the steps clear of all slush. Analogizing this case to those involving a municipality's duty to clear snow from sidewalks and roadways, the Authority contends that imposition of an obligation to remove snow, slush and ice even while a snowstorm is in progress is an onerous burden and that its duty to clear slush, snow and ice does not arise until a reasonable time after cessation of the storm. Valentine v. City of New York, 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488 (1982).

However, the duty of a common carrier to provide safe passage is not akin to that of a municipal landowner to clear snow. A common carrier is required to exercise that care " 'which a reasonably prudent carrier of passengers would exercise under the same circumstances, in keeping with the dangers and risks known to the carrier or which it should reasonably have anticipated.' " Bracco v. Manhattan and Bronx Surface Transit Operating Authority, 117 A.D.2d 273, 278, 502 N.Y.S.2d 158 (1st Dept.1986) (citing PJI2:161).

Moreover, this case is not comparable to those involving platforms exposed to the elements (Palmer v. Pennsylvania Co., 111 N.Y. 488, 18 N.E. 859 (1888)) or uninclosed stairways (Kelly v. Manhattan Railway Co., 112 N.Y. 443, 20 N.E. 383 (1889)) wherein exposure to the elements would necessitate constant and most likely futile clearing of snow as it fell. Here, the steps were located inside the bus and were open to the elements only as passengers entered and alighted.

Accordingly, the trial court properly denied theAuthority's motion to dismiss the complaint for failure to prove a prima facie case. The court erred, however, in allowing in evidence portions of defendant's "rules" which provide that a bus operator "make every effort to keep front and rear steps clear of accumulated snow" and "take every precaution for the safety of passengers and pedestrians."

While internal operating rules may provide some evidence of whether reasonable care has been taken and thus some evidence of the defendant's negligence or absence thereof, such rules must be excluded, as a matter of law, if they require a standard of care which transcends the area of reasonable care. Danbois v. New York Central Railroad Company, 12 N.Y.2d 234, 238, 239, 238 N.Y.S.2d 921, 189 N.E.2d 468 (1963).

In Caputo v. New York City Transit Authority, 86 A.D.2d 883, 447 N.Y.S.2d 535 (2nd Dept.1982) the Second Department ordered a new trial where parts of Rule 85 of the Transit Authority's rules and regulations were improperly submitted in an action for damages allegedly sustained by a passenger on a bus. Similar to the Authority training manual, Rule 85 required that operators "take every precaution" to prevent injuries to passengers and "use every effort to guard passengers against accidents or annoyances." Citing Danbois v. New York Central Railroad Company, supra, the court in Caputo stated:

The rule is couched in language similar to that of a legal standard, and, as a matter of law, contains provisions which constitute a higher than reasonable standard of care. By submitting the provisions to the jury for consideration, the jury may have been confused as to the proper standard notwithstanding the limiting instructions as to the rule's applicability. 86 A.D.2d at 883 .

Thereafter, in Crosland v. New York City Transit Authority, 68 N.Y.2d 165, 168-169, 506 N.Y.S.2d 670, 498 N.E.2d 143

(1986) the Court of Appeals observed that liability for the death of plaintiff's decedent could not be based upon the alleged breach of Transit Authority Rule 85 which, by requiring employees to "take every precaution to prevent ... injuries to persons," imposed a duty higher than that which the carrier actually owed--ordinary care commensurate with the existing circumstances. Indeed, the court in Crosland noted that the rule would have been inadmissible at trial for this reason.

The language of the training manual herein, as with Rule 85 involved in Caputo and Crosland, required a standard of care higher than that required by law. Thus, the trial court was in error when it charged the jury that:

The defendant's own rules may be considered as evidence of what constitutes reasonable care, so long as they are not stricter than...