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JERK & JOLT CASES IN NEW YORK
Peter Frucchione, Esquire and Richard Gash, Esquire
In New York, we have had a number of opportunities to defend bus companies against so called "Jerk & Jolt" cases. In these cases, a plaintiff is a passenger on a bus when he or she falls as a result of the negligent operation of the bus. Typically, these cases do not involve contact between the bus and another vehicle but rather involve a passenger falling from a standing or sitting position as a result of the movement of the bus. The movement can be a sudden halting of the bus or an acceleration of the bus from a stopped position. These cases are often the subject of summary judgment motions.
The standard of care for a common carrier is that of reasonable care under the circumstances. The Court of Appeals in Bethel v. New York City Transit Authority, held that a common carrier does not owe a duty of extraordinary care, but rather is subject to the same duty of reasonable care as any other potential tortfeasor, that of reasonable care under all of the circumstances.
A mere allegation that a bus driver operated the bus in a negligent manner, standing alone, is never enough to sustain a negligence claim. In order to make out a prima facie case, plaintiff must establish that the movement of the bus caused a jerk or lurch that was "unusual and violent." Urquhart v. New York City Tr. Auth.
In Urquhart, plaintiff was a passenger on a New York City Transit Authority bus traveling down Court Street in Brooklyn. Plaintiff testified that he was walking toward the rear of the bus when without warning the bus braked violently and the force of the stop caused plaintiff to be propelled from one end of the bus to the other, causing him injuries. The Appellate Division dismissed the suit, but the Court of Appeals reinstated the suit holding that:
"To establish a prima facie case of negligence against a common
carrier for injuries sustained by a passenger when the vehicle comes
to a halt, the plaintiff must establish that the stop caused a jerk
or lurch that was "unusual and violent" (see, Trudell v New York R.
T. Corp.). Proof that the stop was unusual or violent must consist
of more than a mere characterization of the stop in those terms by
the plaintiff."
In Urquhart, the Court of Appeals found that plaintiff's testimony that the swiftly moving bus stopped so suddenly and violently as to propel his body down its entire length provided more than a mere characterization of the stop and was sufficient to satisfy that requirement.
The Court of Appeals in Urquhart relied on another New York "jerk and lurch" case, Taylor v. Westchester Street Transportation Co., where the Appellate Division, Second Department, held that the testimony of the plaintiff that a bus 'lurched forward' and that it 'snatched forward,' without other tangible proof that the bus was propelled forward with unusual or unnecessary force, and without other evidence of acts or of physical facts to warrant such a finding, was insufficient to establish negligence upon the bus company's part. Passengers assume such risks as an incident of their travel and for that reason recovery must be denied unless it is shown that the "jerk" or "sudden start" was of such unusual and extraordinary force that it could not reasonably be said to have happened in the ordinary operation of the vehicle. See Taylor.
These types of cases are very fact specific. In Trudell v. New York Rapid Transit Corporation, the Court of Appeals found that where a passenger was thrown from the rear platform of a train there was evidence regarding an unusual and violent jerk of the car sufficient to create a question of fact for a jury, a situation obviously far different from the case at hand and clearly not a holding based upon a mere allegation of negligence. In Jenkins v. Westchester County, there was evidence that the plaintiff was propelled from the front of the bus head first into the rear stairwell shortly after boarding the bus plaintiff. The Appellate Division ruled that there was a triable issue of fact for a jury to resolve. In Miller v. Inter City Transportation Co. Inc., evidence that a passenger was thrown to the floor of defendant's bus by sudden stop with a force sufficient to tear his grip from the back of the seat and propel him flat on his face on the floor was sufficient to create a question of fact. The holdings in these cases were not based upon an allegation. They were based upon tangible proof and objective evidence that the bus was operated unusually and violently. See also Lombardi v. New York State Railways, (evidence raised jury question where the force of a sudden stop was violent enough to throw a seated passenger from his seat and cause him severe traumatic injuries, two broken ribs, and a severe concussion).
On the other hand, the Second Department in Curley-Concepcion v. New York City Transit Authority, affirmed a decision of Justice William J. Mastro of the Supreme Court, Richmond County holding that the plaintiff failed to satisfy the standard of care in the case in establishing that the stop caused a "jerk or lurch that was 'unusual and violent.' In Curley-Concepcion, plaintiff was riding as a passenger on the Transit Authority's express bus on the route from Manhattan to Staten Island. Plaintiff was seated when the bus was approaching plaintiff's stop, she turned around to ring the bell signaling her wish to leave, when the bus came to a stop. Plaintiff was thrown from her seat and wound up kneeling in the center of the bus.
In granting summary judgment to the Transit Authority, Justice Mastro noted that although the plaintiff claimed "to have been thrown to the center aisle floor of the bus and onto her knees as a result of a 'short stop', there is no indication that the other standing passengers were similarly thrown to the floor of the bus." Citing Urquhart, Justice Mastro held that plaintiff failed "to submit evidence that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel."
The Curley-Concepcion decision clearly establishes that even a situation where the plaintiff was thrown from her seat onto the floor of the bus is not sufficient to create a triable issue of fact that the movement of a bus was "violent" or "unusual." Plaintiff still must offer other proof of acts or physical facts to warrant a finding that the bus was propelled forward with "unusual or unnecessary" force. (See also Taylor, supra.)
Arguments that plaintiffs typically make are that the standard of care for the bus operator is established by their own rules, regulations and driver's training manual, such as a rule that buses not leave until all passengers are seated. However, the law is clear that a defendant's internal rule book or manual which imposes a higher standard of care on a defendant than that imposed by law is inadmissible. (See Rivera v. New York City Transit Authority. and Lesser v. Manhattan & Bronx Surface Transit Operating Authority).
Plaintiffs will also attempt to make out a prima facie case by supplementing their claims from the deposition testimony with an affidavit. However, it is well settled that a self-serving affidavit, contradicting prior deposition testimony, cannot be relied upon to defeat a summary judgment motion and is insufficient to raise a genuine, as opposed to feigned, issue of fact. (See Capraro v. Staten Island University Hospital; Fontana v. Fortunoff; Levin v. D'Agostino's Supermarket's Inc.; Kistoo v. City of New York; Cheung v. G & M Hardware & Electric, Inc.; and Joe v. Orbit Industries, Ltd.)
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