Sewar v. Gagliardi Brothers Service

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: COOKE; FUCHSBERG, J., concurs in a concurring opinion in which MEYER
• Citation: Sewar v. Gagliardi Brothers Service, 432 N.Y.S.2d 367, 51 N.Y.2d 752, 411 N.E.2d 786 (N.Y. 1980)
• Decision Date: 09 September 1980
• Parties: , 411 N.E.2d 786 Brigette SEWAR, by Her Parent and Natural Guardian, Frances L. Barnes et al., Respondents, v. GAGLIARDI BROTHERS SERVICE et al., Defendants, and Ridge Road Express, Inc., et al., Appellants.

Page 367

432 N.Y.S.2d 367

51 N.Y.2d 752, 411 N.E.2d 786

Brigette SEWAR, by Her Parent and Natural Guardian, Frances L. Barnes et al., Respondents, v. GAGLIARDI BROTHERS SERVICE et al., Defendants and Ridge Road Express, Inc., et al., Appellants.

Court of Appeals of New York.

Sept. 9, 1980.

Sheldon Hurwitz, Buffalo, for appellants.

Stanley Grossman, Niagara Falls, James J. Sansone, Lockport, and Morree M. Levine, Niagara Falls, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 69 A.D.2d 281, 418 N.Y.S.2d 704, should be affirmed, with costs. It cannot be said that the evidence of each of the elements of negligence, the theory on which the case was tried, was insufficient to present a jury question. Nor were there any errors of law which would warrant reversal.

FUCHSBERG, J. (concurring). Posed for resolution on this appeal are questions of duty, negligence and legal causation in the context of a claim for damages against the owner and driver of a school bus, one of whose young charges was so seriously injured when she was struck by another vehicle shortly after her discharge from the bus that the jury evaluated her injuries at $2,000,000. At issue too is the applicability in the circumstances of this case of section 1174 of the Vehicle and Traffic Law, which, inter alia, speaks to safety in the transportation of children by school bus drivers.

In two extensive writings, the Appellate Division divided sharply. So now does this court. The dissenters, adopting so much of the minority opinion below "as concluded that appellants' actions did not proximately cause the accident", would dismiss. The plurality's contrary view is, to say the least, summary. Under these circumstances, I believe it would be useful to outline the rationale for the conclusions I have reached. All the more so because of the confusion which too often accompanies the application of the fundamental but overlapping principles of tort law on which the outcome here depends.

Many of the controlling facts are conceded. Plaintiff Brigette Sewar, then a 12-year-old junior high school student, boarded a school bus owned by defendant Ridge Road Express and driven by defendant Kirk for her regular homebound trip at the close of the school day. The route designated by the local board of education took the bus eastbound along Route 31, a heavily trafficked major highway linking the child's hometown of Lockport with the City of Rochester. As he neared the intersection closest to where the child's family lived, the driver made a right-hand turn from Route 31 on to Wilson Road, a north-south street on the west side of which was located the official school bus stop at which Brigette and other children were to disembark. When it came to a halt, the front of the bus, which then faced south, was approximately 50 feet from Route 31, its rear no more than 10 feet away.

Other things are in sharp dispute. The bus driver was to tell the jury that he informed the alighting pupils, who, as he was aware, lived east of Wilson Road and therefore at some point would have to cross that thoroughfare to reach their homes, to do so in front of the bus. He also testified that he did not drive off until they had complied and that, while he remained at the stop, the flashing red signals with which this "national school bus chrome"-colored vehicle was required to be equipped were in operation (Vehicle and Traffic Law, § 375, subds. 20, 21). The best recollection of the children, on the other hand, was that, having received no such cautions when they stepped out of the bus, they walked along its right side toward the rear, the nearest place from which those who, like Brigette, had to cross Route 31 could navigate it.

It is unquestioned that Brigette had advanced some 10 or 15 feet beyond her classmates when she made a beeline for her home, which lay diagonally across the intersection on Route 31, only a little east of where Wilson Road met the highway. Before she reached the halfway mark, however, she was struck by a motor vehicle owned by Gagliardi Brothers Service and operated by defendant Camillo Gagliardi heading east on Route 31. At the trial, he claimed that he never saw the school bus or its flashing lights as he approached the Wilson Road intersection. Our own examination of the photographic exhibits of the area which were put in evidence during trial reveals that the jury could have found that, had the brightly marked and lit bus still been at the stop, it would have been readily visible to one in Gagliardi's position as he drove towards his unintended meeting with the child that afternoon.

On this evidence the trial court sent the case to the jury under instructions that it apply principles of common-law negligence to all the defendants and that, as to the bus driver and his employer, it additionally consider his alleged violation of subdivision (b) of section 1174 of the Vehicle and Traffic Law as "some evidence of negligence". This subdivision requires that "(t)he driver of (a) school bus, when discharging pupils who must cross the highway, shall instruct such pupils to cross in front of the bus and the driver thereof shall keep such school bus halted with red signal lights flashing until such pupils have reached the opposite side of the highway." ¹ The court went on, inter alia, to charge the jury that it was for it to determine whether a violation of any common-law or statutory duties owed by the defendants proximately caused the injuries. ² In this connection, he also advised the jurors, it was for them to say whether it was reasonably foreseeable that such violations might lead to the child's being struck and whether plaintiff was free from contributory negligence. ³

The jury's deliberations ended in a finding in favor of Brigette and her mother against the bus company and its driver. At the same time, it brought in a no cause as to the Gagliardis, whose defense had been that their vehicle had come upon the child too unexpectedly to escape the impact. A sharply divided Appellate Division has since upheld the judgment entered on these verdicts.

In their quest for a reversal of the order of affirmance, the appellants first urge that it was error for the trial court to charge subdivision (b) of section 1174. As their reasoning runs, that statute guards only against injuries sustained by pupils struck by motor vehicles traveling on the very highway on which a bus is stopped and therefore was inapplicable here, where Gagliardi was driving on Route 31 and the bus had dropped off the children on Wilson Road. On that premise, they erect a second contention: that, under a charge which presented an admixture of statutory and common-law theories of negligence, it was impossible to tell whether the jury reached its conclusions on common-law or statutory grounds, the impermissible statutory theory thus tainting the verdict irreparably. And, most sweepingly, in an argument which, though cast primarily in terms of proximate cause, commingles that concept with related considerations of duty and negligence, they insist the plaintiffs did not make out a prima facie case and that the complaint should therefore have been dismissed. ⁴ For the reasons which follow I disagree on all counts.

At the outset, it may be well to make clear that while, under 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, a violation of subdivision (b) of section 1174 of the Vehicle and Traffic Law may give rise to absolute liability, the case before us now was not decided on such a theory. Instead, as already indicated, the jury was plainly instructed that the driver's violation of the statute was merely "some evidence" of negligence and any contributing fault on Brigette's part would be an absolute bar to her recovery. Since there was no objection, no cognizance is to be taken of the clear error in so charging (see Martin v. City of Cohoes, 37 N.Y.2d 162, 371 N.Y.S.2d 687, 332 N.E.2d 867).

Turning then at once to the question whether subdivision (b) provides protection only against motor vehicles traveling on the identical highway, the short answer is that there is nothing in its language which so confines the scope of the duty it defines. Appellant's opposing view-that, since the companion subdivision (a) protects children only against vehicles which are on the same street as a stopped school bus, a so-called "logic of concomitant duties", whatever that entrancing phrase may mean, dictates that the same limitation apply to subdivision (b)-does not withstand analysis. Unlike subdivision (a), which focuses on the duty of a driver of a second vehicle "meeting or overtaking" a stopped school bus "from either direction", subdivision (b) describes the bus driver's far different obligations alone. And, while the single duty subdivision (a) imposes can only be triggered by "meeting or overtaking" a stopped bus, the many duties which are placed with the bus driver by subdivision (b) are in no way made to depend on the presence or absence of another vehicle. In fine, our task being to find, not to alter, the legislative intent, I take subdivision (b) at its word (see Nanuet Nat. Bank v. Eckerson Terrace, 47 N.Y.2d 243, 417 N.Y.S.2d 901, 391 N.E.2d 983).

Thus, in ordering the bus driver to direct his charges to cross in front of the bus, subdivision (b)'s unqualified command makes no distinction among such diverse circumstances as, for instance, whether a yet unseen and unseeing vehicle is about to arrive at the scene from around a blind corner, or whether one oncoming in plain view is about to pass the bus, or whether there is no other vehicle to be reckoned with at all. Similarly self-standing is the clear-cut requirement that, until the pupils have reached the opposite side of the street on which they have alighted, the bus continue at rest, its flashers going. And the same thing is to be said of the at...