Ross v. Ching
| Decision Date | 10 March 1989 |
| Citation | 539 N.Y.S.2d 181,146 A.D.2d 55 |
| Parties | Dorothy ROSS and David Ross, as Administrators of the Estate of Mickey Ross, Appellants, v. Robert CHING, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Rossi, Kehoe, Murnane & Hughes by Vincent Rossi, Utica, for appellants.
Petrone & Petrone, P.C. by John Cirando, Utica (Daniel J. and John A. Cirando, Syracuse, of counsel), for respondent.
Before DILLON, P.J., and GREEN, PINE, BALIO and LAWTON, JJ.
On the rainy morning of June 13, 1985 defendant, age 41, offered 16-year-old Mickey Ross a ride to a job interview at McDonalds restaurant on Oriskany Boulevard in the Village of Yorkville. Defendant was a friend of the Ross family and was living with them. Defendant asked Mickey if he could drop him off across the highway from McDonalds and Mickey agreed. This location was not governed by any traffic control device. While Mickey was crossing this busy four-lane highway, he was struck by a vehicle and sustained personal injuries that resulted in his death.
Plaintiffs, as Administrators of the Estate of Mickey Ross, commenced the present action against defendant. The trial court, at the conclusion of plaintiffs' case, directed a verdict for defendant, holding as a matter of law that defendant breached no legal duty owed to the plaintiff, and that, even if a duty were breached, it was not a proximate cause of the accident that caused decedent's death. In so holding, the trial court relied upon Jezerski v. White, 29 Misc.2d 342, 209 N.Y.S.2d 666. In Jezerski the court held that defendant driver was not liable for injuries sustained by an adult plaintiff when she crossed the street after alighting from defendant's vehicle, stating:
The complaint does not allege any knowledge by defendant Godfrey that the defendant White was operating his vehicle in a negligent manner on the highway prior to the accident; nor does it set forth any circumstances by which Godfrey might be charged with notice that White would fail to exercise due care for plaintiff's safety at the time of the accident. It is inconceivable that such foresight could be attributed to this defendant. On the other hand, this defendant surely knew that pedestrians cross travelled highways in safety day after day and that a multitude of vehicles are operated on the highways in a manner which does not result in accident or injury. In these circumstances, and absent any allegation of actual knowledge of the impending negligence by White, Godfrey was not bound to anticipate that plaintiff would be injured in the middle of the public way. If the converse were true, it would follow that a driver could never, in the exercise of due care, deposit a passenger at any location where it was necessary for the latter to cross a travelled highway since, being bound to anticipate that some negligent driver might be approaching on the road, he would be liable for any accident which might befall his passenger in the crossing. This of course is not the law in this, or any, jurisdiction, to the knowledge of the court. (Jezerski v. White, supra, at 344-345, 209 N.Y.S.2d 666)
Whatever validity the court's holding in Jezerski had at that time, it is no longer valid where infants are involved (see, Annotation, Liability of Driver of Private Automobile for Injury to Occupant Struck by Another Vehicle After Alighting, 20 A.L.R.2d 789). This annotation recognizes the general rule that a driver has a duty upon discharging an occupant to warn the occupant of apparent dangers and also that "the driver seems to have the duty to stop at a safe place before permitting the occupant to alight" ( Id. at 790). The annotation cited Harrison v. Gamatero, 52 Cal.App.2d 178, 125 P.2d 904, wherein the court held that a cause of action was stated on behalf of a seven-year-old child who was struck by a vehicle when crossing the street after being dropped off to mail a letter at a point across the street from the mail box.
Also directly on point is Colson v. Shaw, 301 N.C. 677, 273 S.E.2d 243. In Colson, defendant discharged the infant plaintiff across the street from his destination and, in the process of crossing the street, the child was struck by another vehicle. At the close of plaintiff's case, defendant's motion to dismiss as a matter of law was granted by the trial court and the intermediate appellate court affirmed. The Supreme Court of North Carolina reversed and remanded the matter to trial, holding that:
* * * the operator of an automobile has a duty to exercise that degree of care which a person of ordinary prudence would exercise under similar circumstances to prevent injury to the invited occupants of his vehicle. * * * It is generally established that the operator must at least allow his passengers to unload in a safe place and may not stop his car in a manner likely to create a hazard to those alighting. * * * *
Our determination in the case is also influenced by the rule that where the actions of children are at issue, the duty to exercise due care should be proportioned to the child's incapacity to adequately protect himself. * * * *
(Colson v. Shaw, 301 N.C. at 680-681, 273 S.E.2d at 246 [citations omitted] )
The Court went on to note that it was influenced by the decision of the Minnesota Supreme Court in Nelson v. Williams, 300 Minn. 143, 218 N.W.2d 471, where the defendant motorist:
* * * was towing a boat on a four-lane highway when an object flew out of the boat and landed in the median separati the north and south bound lanes. He pulled his vehicle onto the right-hand shoulder of the road and allowed his eight year old son to cross two lanes of traffic to retrieve the object. The child was struck by a passing vehicle as he attempted to recross the highway. The Court held that the jury could reasonably find that the father failed to exercise the degree of car [sic] expected of a reasonably prudent person in operation of his automobile * * * * [s]ince defendant could have easily driven a short distance farther and stopped his vehicle in a place from which the plaintiff could have reached the median without crossing the highway, the Court held that the issue of defendant's negligence was properly submitted to the jury. * * * *
(Colson v. Shaw, 301 N.C. at 682, 273 S.E.2d at 247)
No New York case directly on point has been submitted by the parties or has been found by this court. One cannot seriously dispute, however, that an operator of a vehicle owes to all his passengers, adults and infants alike, the duty to exercise...
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