Van Gaasbeck v. Webatuck Central School Dist. No. 1 of Towns of Amenia, et al.

• Decision Date: 28 December 1967
• Citation: 21 N.Y.2d 239,287 N.Y.S.2d 77,234 N.E.2d 243
• Parties: , 234 N.E.2d 243 Charles E. VAN GAASBECK, as Administrator of the Estate of Michael Van Gaasbeck, Deceased, Appellant, v. WEBATUCK CENTRAL SCHOOL DISTRICT NO. 1 OF the TOWNS OF AMENIA et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 77

287 N.Y.S.2d 77

21 N.Y.2d 239, 234 N.E.2d 243

Charles E. VAN GAASBECK, as Administrator of the Estate of Michael Van Gaasbeck, Deceased, Appellant, v. WEBATUCK CENTRAL SCHOOL DISTRICT NO. 1 OF the TOWNS OF AMENIA et al., Respondents.

Court of Appeals of New York.

Dec. 28, 1967.

Richard Michael Moran, Poughkeepsie, for Webatuck Central School District No. 1 and another, respondents.

Vernon Murphy and Robert A. MacKennan, Kingston, for Alvin B. Huehnel and another, respondents.

SCILEPPI, Judge.

The issue presented by this case is whether a violation of subdivision (b) of section 1174 of the Vehicle and Traffic Law, Consol.Laws, c. 71 gives rise to absolute liability or negligence per se. That section provides: 'The 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'. We hold today that the violation of subdivision (b) of section 1174 of the Vehicle and Traffic Law gives rise to absolute liability.

On the evening of November 17, 1961 the late Michael Van Gaasbeck, then 14 years of age, was discharged from a school bus on the east side of Route 22 between the intersection of Downey Road and McGhee Hill Road in the Town of Amenia, Dutchess County. After the boy alighted from the bus, the driver, with knowledge of the fact that the boy lived on the west side of the route and would, therefore, have to cross the highway, drove off. The driver of the bus testified that she did not instruct the decedent to cross in front of the bus nor did she flash her signal lights.

Michael and a friend, who was also left off at the same time, walked along Route 22 to McGhee Hill Road. As they reached the intersection, which was only a short distance from where they were dropped off, Michael's friend proceeded to cross Route 22 and Michael attempted to follow him, but in doing so was struck by an automobile owned by the defendant Alvin Huehnel. From the injuries received at that time, Michael died three days later.

This action for wrongful death was commenced against both the driver of the automobile that struck Michael as well as the owner of the school bus, claiming that the death of the boy was the result of the negligence of the drivers of the bus and automobile.

During the trial, the mother of Michael's friend, who was waiting across the street and witnessed and accident, testified that both boys in attempting to cross Route 22 were running. She also testified that 'the car seemed to be right there as (Michael) ran'. She further testified that the car stopped about two car lengths from where the boy was hit. No evidence was introduced to contradict the testimony of this witness and the testimony of the driver of the car that struck Michael tended to corroborate it.

The plaintiff contends that the testimony of the bus driver establishes the fact that she failed to comply with subdivision (b) of section 1174 of the Vehicle and Traffic Law. This failure to comply with the statute where the driver admitted both that she knew that Michael lived on the opposte side of the road and that she was advised of the provisions of the statute only two months earlier, the plaintiff asserts, gave rise to absolute liability and, therefore, the fact that Michael was negligent in crossing does not relieve the defendant school district of liability. The Trial Judge, however, charged that the violation of the statute was negligence per se and he refused to charge that, when such a statute is violated, the contributory negligence of the plaintiff does not bar recovery. Moreover, when the jury, during the course of its deliberations, asked the Judge the question: 'If the jury decides that Mike Van Gaasbeck's negligence in running in front of the car was the direct cause of the accident, will this resolve the entire case?', the Judge replied 'Yes'. The plaintiff duly excepted to both the refusal to charge and the answer to the question. Thereafter, the jury returned a verdict for all defendants. The Appellate Division unanimously affirmed.

A violation of a statute may constitute negligence per se or it may give rise to absolute liability (Utica Mut. Ins. Co. v. Paul Mancini & Sons, 9 A.D.2d 116, 120, 192 N.Y.S.2d 87, 91). With reference to the defense of contributory negligence, there is a distinction between a violation of a statute which amounts to negligence per se and the violation of a statute which gives rise to absolute liability. In the former case, the defense of contributory negligence is available while, inthe later case, it is not (Galbraith v. John B. Pike & Son, Inc., 18 A.D.2d 39, 238 N.Y.S.2d 263; Utica Mut. Ins. Co. v. Paul Mancini & Sons, supra).

Although the doctrine of absolute liability is generally applied only to violations of statutes designed for the safety of employees (see Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 83 N.E.2d 133, 10 A.L.R.2d 848), we see no reason why we should not apply the doctrine to a violation of a statute involved in the case at bar. In Koenig (supra) we had occasion to discuss a question similar to that presented here, and we stated at page 317, 83 N.E.2d at page 134: 'Firmly established is the principle of law that a plaintiff's carelessness is no bar to his recovery under a statute which imposes liability 'regardless of negligence'. * * * Obviously, not every statute which commands or prohibits particular conduct is within this principle. Only when the statute is designed to protect a definite class of persons from a hazard of definable orbit, which they themselves are incapable of avoiding, is it deemed to create a statutory cause of action and to impose a liability unrelated to questions of negligence. This rule is based upon the view that, not being dependent upon proof of specific acts of negligence on defendant's part, the cause of action may not be defeated by proof of plaintiff's want of care. Thus, it has been said, 'If the defendant's negligence consists in the violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovery for bodily harm caused by the violation of such statute'. Restatement, Torts, § 483.'

We further stated at page 318, 83 N.E.2d ag page 135: 'By its (the statute's) force, certain safeguards have been legislatively commanded for the safety of those engaged in the work described. Instead of simply defining the general standard of care required and then providing that violation of that standard evidences negligence, the legislature imposed upon employers of those directing the particular work to be done, a Flat and unvarying duty. This the language of the statute makes crystal clear: the employer or one directing the work 'shall furnish' or cause to be furnished equipment or devices 'which shall be so constructed, placed and operated as To give proper protection' to the one doing the work'. In Major v. Waverly & Ogden, Inc., 7 N.Y.2d 332, 335, 197 N.Y.S.2d 165, 167, 165 N.E.2d 181, 183, we reiterated that the elements of unavoidable hazards, lack of choice and the occupational context of plying a livelihood figure prominently in imposing absolute liability when a statute designed for the protection of employees is violated.

Applying these criteria to the statute involved in the case at bar, we hold that absolute liability should be imposed for a violation thereof. The language of subdivision (b) of section 1174 is clear and unequivocal. It provides: 'The driver * * * Shall instruct * * * pupils to cross in front of the bus * * * and * * * Shall keep the school bus halted with red signal lights flashing'. There can be no doubt that the statute was designed for the protection of a definite class-school children who ride school buses. Its passage was obviously motivated by a legislative finding that children alighting from a school bus on a highway over which they would have to cross are not capable of taking proper precaution to negotiate a safe crossing. That children are often unaware of and disregard dangers which are apparent to adults is a matter of common knowledge. It is illustrated by the case at bar. Furthermore, every child must attend school until he is at least 16 years of age and, for many children, the only way that they can get to school is to meet a school bus alongside a highway. The explicit purpose of this statute was to see to it that children would cross the highway under the careful supervision of the driver who whould not only watch them cross the street in front of him but would flash his red lights to warn oncoming traffic to stop.

The School District contends that the plaintiff's complaint stated a cause of action for common-law negligence and was not based on the violation of a statute. In Diemer v. Diemer, 8 N.Y.2d 206, 203 N.Y.S.2d 829, 168 N.E.2d 654, the plaintiff husband commenced an action for separation charging 'cruel and inhuman treatment'. Both the trial court and the Appellate Division found that the facts were insufficient to make out such a cause of action for cruelty. This court in reversing held that the plaintiff was entitled to a separation on the grounds of abandonment, despite the fact that the complaint did not ask for relief on that basis. 'It is enough now that a pleader state the facts making out a cause of action, and it matters not whether he gives a name to the cause of action at all or even that he gives it a wrong name. If this be true of the cause of action itself, it is certainly true of the ground underlying it.' (Diemer v. Diemer, supra, [234 N.E.2d 247] p. 212, 203 N.Y.S.2d p. 834, 168 N.E.2d p. 658.)

The propriety of the conclusion reached by us in the above-quoted decision 'is buttressed by the long-standing...