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VOLUME 8 April 2005 | ||||||
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ACTION DISMISSED FOR BUS PASSENGER'S FAILURE TO PROVE HE WAS OWED A HIGHER STANDARD OF CARE Peter A. Fruccione, Esq. and Lawrence S. Sarowitz, Esq.
In Morgan v. Academy, Peter A. Frucchione successfully moved for summary judgment on the issue of Academy Bus and its driver’s liability, and the action was dismissed by Supreme Court, Queens County Justice Arnold Price.
Plaintiff, an 80-year-old male, alleged that on August 25, 2000, he was a paying passenger on an Academy motor coach when the bus reached its destination in Atlantic City, New Jersey. While the plaintiff was in the act of exiting the bus, he claims he was caused to trip and fall to the ground as a result of Academy and its driver’s negligence. Before plaintiff started to descend the three steps of the bus to exit, the Academy driver stepped outside of the bus and stood outside of the exit. The plaintiff was using a cane with his right hand to assist himself in walking down the steps. The plaintiff admitted that he was not prescribed the cane but was utilizing a cane that his wife had previously used. As plaintiff was moving his right foot off of the second step onto the third step “his cane slipped off the step” and he fell out of the bus onto the ground. He was unable to grab the handrail on the bus and fell onto the sidewalk fracturing his hip.
Plaintiff admitted that he did not notice any debris on the steps and readily admitted that he did not know what caused the cane to slip off of the bus step. It was the plaintiff’s contention that Academy and its driver discharged the plaintiff in a dangerous manner and failed to use such additional care or render reasonable aid for the safety and welfare required by plaintiff’s disability. Plaintiff claimed that the Academy driver never extended his hand or offered to assist him while plaintiff was exiting the bus. The Academy driver testified that if a disabled person was going to board the bus, he would have to notify the company in advance and they would inform the bus driver that a disabled person was going to be a passenger on the bus. The driver also did not observe plaintiff exiting the bus and did not observe him carrying a cane. The driver also testified that the plaintiff never asked him for assistance at any point in entering or exiting the bus.
In the motion for summary judgment, we noted that there were three New York State Pattern Jury Instructions that governed this particular case. The first Pattern Jury Instruction was PJI 2:161- Common Carrier- Duty to Passenger- Operation which states that a bus company owes its passengers a duty to use reasonable care in operating its bus for their safety. Reasonable care means that care which a reasonably prudent bus company would use under the same circumstances, in keeping with the dangers and risks known to the bus company or which it should reasonably have foreseen.
The third and final PJI instruction was PJI 2:166- Common Carrier - Duty to Passenger - to provide a safe place to get on or get off. PJI 2:166 states that a carrier owes a duty to its passenger to provide a reasonably safe place to get on and off its vehicle.
In our motion for summary judgment, we cited the case of Gallin v. Delta Air Lines Inc.. In that case, plaintiff Marilyn Gallin, used a single crutch known as a Canadian or elbow crutch as she made her way to her seat. After the plane had landed, Mrs. Gallin received her crutch from a flight attendant. Mrs. Gallin and her husband left their seats and proceeded toward the door. She neither requested, nor was she offered, assistance by defendant's employees. The testimony further disclosed that Mrs. Gallin not only failed to seek aid from defendant's employees but, other than to take his arm, accepted no assistance from her husband. As a matter of fact, plaintiff, Charles Gallin, left the aircraft first, did not assist his wife, saw no reason to do so, and only heard her fall some few seconds after he deplaned.
The Court noted in its decision that it “would seem that plaintiffs seek to impose upon defendant some omniscient sense of what reasonable employees should have foreseen under the facts testified to herein. Without repeating all of the above, the plaintiffs' testimony clearly described an occurrence that was not foreseeable. The specific nature of the accident and exactly how it happened remains a matter of conjecture up to this moment. What is clear, however, is that no evidence has been disclosed which would place defendant on notice that plaintiff had a physical disability requiring it, in the exercise of reasonable discretion to provide an added degree of care, tantamount to the imposition upon it, of this ‘special duty.’”
In granting our motion for summary judgment, Judge Price agreed with our argument that the plaintiff was unable to state what it was that caused his cane to slip off the step at his deposition. Judge Price reasoned that it was mere speculation that a defect or hazardous condition caused him to fall. Additionally, Judge Price also agreed with our argument that plaintiff's allegation that he was owed a higher duty of care because he was disabled was without merit and pointed out that plaintiff failed to demonstrate that he was disabled. Judge Price agreed that the use of a cane does not demonstrate that plaintiff was disabled since he did not produce any medical evidence of his disability, and plaintiff was, therefore, not owed a higher standard of care. |
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