Norton v. Canandaigua City School Dist.

• Decision Date: 03 February 1995
• Docket Number: No. 1,1
• Citation: 624 N.Y.S.2d 695,208 A.D.2d 282
• Parties: , 99 Ed. Law Rep. 564 Gary NORTON, as Parent and Natural Guardian of Michelle Norton, an Infant, Appellant, v. CANANDAIGUA CITY SCHOOL DISTRICT, et al., Defendants, Upstate Transport Consortium, Inc., Laidlaw Transit, Inc., and Jane Lynd, Respondents. Appeal
• Court: New York Supreme Court — Appellate Division

Page 695

624 N.Y.S.2d 695

208 A.D.2d 282, 99 Ed. Law Rep. 564

Gary NORTON, as Parent and Natural Guardian of Michelle Norton, an Infant, Appellant, v. CANANDAIGUA CITY SCHOOL DISTRICT, et al., Defendants Upstate Transport Consortium, Inc., Laidlaw Transit, Inc. and Jane Lynd, Respondents. Appeal No. 1.

Supreme Court, Appellate Division Fourth Department.

Feb. 3, 1995.

Fitzsimmons, Desmarteau, Beale and Nunn by Mark Nunn, Rochester, for appellant.

Bond & McDonald, P.C., Geneva (Kevin McDonald of counsel), for Canandaigua City School District, respondent.

O'Shea, Reynolds and Cummings by Erin Peradotto, Buffalo, for respondents Upstate Transport Consortium, Inc. & Laidlaw Transit, Inc.

Before PINE, J.P., and LAWTON, FALLON and WESLEY, JJ.

LAWTON, Justice.

Plaintiff seeks to recover damages for injuries sustained by his ten-year-old daughter when she was struck by a car while crossing a street to get to her school bus stop. Defendants are the Canandaigua City School District (School District), Upstate Transport Consortium, Inc., and Laidlaw Transit, Inc. (school bus owners), and Jane Lynd (school bus operator). The action against Sandra Clark, the car operator, has been settled.

In this consolidated action against defendants, plaintiff alleged that his daughter was a student in the School District and that in September 1988 she was required to cross Parish Street, where she lived, to reach her designated bus stop. Plaintiff alleged that defendants acted negligently and in violation of Vehicle and Traffic Law § 1174(b) by failing to instruct his daughter how to cross the street safely, including crossing the street in front of the bus, and by instructing his daughter to be ready and waiting at the bus stop when the bus arrived.

All parties moved for summary judgment. In support of their motions, defendants established that, prior to September 29, 1988, plaintiff's daughter was assigned to a cluster bus stop on the south side of Parish Street. On that date at 7:41 A.M., plaintiff's daughter was struck by the Clark vehicle while crossing Parish Street. At that time the school bus had not yet arrived at the stop and was not scheduled to arrive for another 10 minutes. Defendants asserted that Vehicle and Traffic Law § 1174(b) did not provide a basis for liability because the accident occurred before the school bus arrived. They further asserted that defendants had no duty to control the conduct of plaintiff's daughter before the school bus arrived at the bus stop and that their conduct was not a proximate cause of the accident.

Plaintiff in his cross motion asserted that Vehicle and Traffic Law § 1174(b) imposed a duty on defendants to instruct school children on the proper procedures for boarding and disembarking from the bus, including how and where to wait for the bus and how to cross the street safely. He alleged that the bus operator erroneously instructed his daughter to be at the bus stop on the south side of the street when the bus arrived. Plaintiff contended that, because defendants violated that statutory duty, they were absolutely liable.

Plaintiff also asserted that defendants' motion for summary judgment should be denied because of the School District's violations of Education Law § 3623 and the Regulations of the Commissioner of Education (8 NYCRR part 156). Pursuant to those regulations, the School District was required to conduct three bus drills per school year that were to include instructions about boarding and disembarking procedures. The first drill was required to be conducted the first week of the fall term. Plaintiff asserted that, contrary to those regulations, the School District's first drill dealt only with the evacuation of the bus in the event of an emergency and did not include boarding procedures. Plaintiff further alleged that the bus operator did not comply with regulations requiring her to attend refresher safety courses twice a year. Plaintiff also submitted an affidavit by a transportation expert asserting that defendants negligently advised his daughter on boarding procedures and were negligent in conducting drills and training drivers. Plaintiff did not allege, nor is there any claim raised on appeal, that the bus stop was located in an unsafe place (see, Gleich v. Volpe, 32 N.Y.2d 517, 346 N.Y.S.2d 806, 300 N.E.2d 148).

In response, defendants' counsel again asserted that Vehicle and Traffic Law § 1174(b) did not apply and that the regulations cited by plaintiff were inapplicable because they dealt with emergency boarding and disembarking procedures.

Supreme Court granted defendants' motions and denied plaintiff's cross motion. The court concluded that Vehicle and Traffic Law § 1174(b) was not applicable because the accident occurred before the school bus arrived to pick up plaintiff's daughter. It further concluded that the regulations alleged to have been violated by defendants were not the proximate cause of the accident or injuries sustained by plaintiff's daughter. The present appeals ensued.

A school district owes its students a duty to exercise the same degree of care toward them as a reasonably prudent parent would exercise under similar circumstances (Lawes v. Board of Educ., 16 N.Y.2d 302, 305, 266 N.Y.S.2d 364, 213 N.E.2d 667; Ohman v. Board of Educ., 300 N.Y. 306, 309, 90 N.E.2d 474, rearg. denied 301 N.Y. 662, 93 N.E.2d 927; Merkley v. Palmyra-Macedon Cent. School Dist., 130 A.D.2d 937, 938, 515 N.Y.S.2d 932). The "relationship" between a school district and its students has also been likened to the relationship between a carrier and its passengers or an innkeeper and his guests (Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849). The latter analogies are more apt because a school district's duty to a student, unlike a parent's duty to a child, is strictly limited by time and space. Indeed, it is the school district's unique relationship as a substitute for a student's parent that causes the school district's duty to be a limited one. It has been repeatedly stated that the duty of a school district exists only so long as a student is in its care and custody during school hours, and terminates when the child has departed from the school's custody (Pratt v. Robinson, supra, at 560, 384 N.Y.S.2d 749, 349 N.E.2d 849; Greiner v. Whitesboro School Dist., 167 A.D.2d 853, 562 N.Y.S.2d 255; Griffith v. City of New York, 123 A.D.2d 830, 832, 507 N.Y.S.2d 445, lv. denied 69 N.Y.2d 729, 512 N.Y.S.2d 368, 504 N.E.2d 695; Lauricella v. Board of Educ., 52 A.D.2d 710, 711, 381 N.Y.S.2d 566). The Court of Appeals has described the school district's duty in the following way:

"The duty owed by a school to its students, however, stems from the fact of its physical custody over them. As the Restatement puts it, by taking custody of the child, the school has 'deprived (the child) of the protection of his parents or guardian. Therefore, the actor who takes custody of * * * a child is properly required to give him the protection which the custody or the manner in which it is taken has deprived him' (Restatement, Torts 2d, § 320, comment b). The school's duty is thus coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases [citations omitted]"

(Pratt v. Robinson, supra, 39 N.Y.2d at 560, 384 N.Y.S.2d 749, 349 N.E.2d 849).

The liability of a school district with respect to the transportation of students is strict but limited. Vehicle and Traffic Law § 1174(b) provides:

"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. Whether such passengers are crossing such highway street or private road or discharging to the same side of such highway, street or private road, the driver of such bus shall keep such school bus halted with red signal lights flashing until such passengers are at least fifteen feet from the bus and either off the highway, street or private road or on a sidewalk."

A violation of the provisions of Vehicle and Traffic Law § 1174(b) results in strict liability without regard to the contributory negligence of the student (Van Gaasbeck v. Webatuck Cent. School Dist. No. 1, 21 N.Y.2d 239, 287 N.Y.S.2d 77, 234 N.E.2d 243; Sewar v. Gagliardi Bros. Serv., 69 A.D.2d 281, 418 N.Y.S.2d 704, affd. 51 N.Y.2d 752, 432 N.Y.S.2d 367, 411 N.E.2d 786). On the other hand, the courts have refused to hold a school district liable for injuries incurred by students while traveling between home and the bus stop (Pratt v. Robinson, supra ). The determining factor in those cases is that of control. The Court in Pratt stated that, in certain situations, school districts have been held liable when school children were injured after they were technically discharged from the bus, but that

"the liability in those cases stemmed either from the fact that the injury occurred during the act of busing itself,...