117 A.D.2d 541 | N.Y. App. Div. | 1986
—Judgment and amended judgment of the Supreme Court, Bronx County (Alfred J. Callahan, J.), entered respectively on November 20, 1984 and June 7, 1985, upon a jury verdict in favor of plaintiff and against defendant Manhattan and Bronx Surface Transit Operating Authorty (MABSTOA) in the amount of $301,467.07, and in favor of defendant Genaro Toro dismissing the complaint and cross complaint against him, unanimously reversed, to the extent appealed from, on the law, without costs, and the complaint against MABSTOA is dismissed.
Plaintiff-respondent Josefina Rodriguez was injured on September 23, 1977 when she was struck by an automobile driven by defendant-respondent Genaro Toro. The accident occurred just north of the intersection of Westchester Avenue and 163rd Street. Moments before the accident Ms. Rodriguez alighted from a number 42 bus operated by defendant-appellant MABSTOA. The bus had been traveling south on Westchester Avenue under the elevated IRT line. The 163rd Street bus stop, like the other stops along the number 42 route
Although it is undisputed that the bus on which Ms. Rodriguez rode stopped at the 163rd Street stop with its forward end extending beyond the bus stop into the intersection, thus blocking the crosswalk to the east side of Westchester Avenue in violation of New York City Traffic Regulations § 81, it is also undisputed that Ms. Rodriguez was discharged from the bus’s rear door into the bus stop. The record indicates that, once discharged, Ms. Rodriguez chose to follow other passengers around the rear of the bus rather than wait for the bus to move from the crosswalk it momentarily blocked while letting off passengers. The record further indicates that as she left the bus stop and stepped out from behind the bus Ms. Rodriguez was aware that the light had changed to green for northbound traffic. Nevertheless, Ms. Rodriguez attempted to finish crossing to the east side of the street. The car driven by Genaro Toro hit her just as she emerged from behind the bus into Westchester Avenue’s northbound lane.
It is by now well established that common carriers must exercise reasonable care in affording passengers a safe place to alight. (Bundy v City of New York, 18 AD2d 799 [1st Dept 1963], affd 13 NY2d 1181 [1964].) Plaintiff’s recovery was based on the theory developed during trial that the bus stop at which plaintiff was discharged was not a safe place to alight. Plaintiff’s expert, a pedestrian traffic engineering consultant, testified that the placement of the stop produced a tendency for passengers to cross Westchester Avenue by the path plaintiff attempted to take rather than by means of the crosswalk. This tendency was supposedly heightened by the bus’s temporary blockage of the crosswalk to the point where the bus’s improper placement could be considered the proximate cause of plaintiff’s injury. Plaintiff urged that since she had been denied a safe place to alight, MABSTOA’s duty to her continued until she reached the safety of the curb. The jury found that the driver’s placement of the MABSTOA bus so that it blocked the crosswalk constituted a negligent failure to provide plaintiff a reasonably safe place to alight, and on that ground proceeded to find MABSTOA wholly responsible for plaintiff’s injuries.
We find that the jury verdict for plaintiff was erroneous as a
It is very basic that for a defendant to be found liable for damages grounded in negligence there must be a duty owed the plaintiff and a negligent breach of that duty proximately causing plaintiffs injury (Pulka v Edelman, 40 NY2d 781, 782 [1976]). In this case, neither condition of liability is satisfied. As a matter of law, MABSTOA’s duty to plaintiff was terminated once plaintiff was deposited within the safety of the bus stop, and no reasonable view of the facts supports the conclusion that MABSTOA’s placement of the bus proximately caused plaintiffs injury.
Accordingly, the judgment upon the jury verdict holding MABSTOA liable for the harm suffered by plaintiff must be reversed. Concur—Murphy, P. J., Ross, Asch, Lynch and Ellerin, JJ.