Summary
finding defendant bus company was not negligent since "the wet stairs were the result of the weather conditions outside at the time of the accident"
Summary of this case from COTO v. HYANNIS AIR SERVICE, INC.Opinion
00 Civ. 5317 (AJP).
November 5, 2001
OPINION AND ORDER
Plaintiff Ruth Hammer slipped down the wet stairs as she was getting off a bus run by defendant Academy Bus Tours, Inc. and driven by defendant Michael Crossley (sued as Michael Crosby). Accidents happen, and too often today people sue, even when no one is at fault. Here, the bus was stopped, and neither plaintiff nor her counsel has advanced any theory as to why defendant Crossley should have any liability. Nor has plaintiff any reason to hold the bus company liable, except that the step was wet. The weather was inclement, and New York law is clear that there is no liability i n that situation. For these reasons, as more fully set forth below, the Court grants defendants' summary judgment motion.
The parties consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 9.)
FACTS
The only two witnesses to the incident are plaintiff Hammer and defendant Crossley, and the facts are not in dispute.Ruth Hammer's Deposition Testimony
Ms. Hammer's accident occurred on Sunday, January 23, 2000, between 6-7 P.M. (Dkt. No. 12: Dashe Aff. Ex. F: Hammer Dep. at 7.) Hammer was on an Academy courtesy shuttle bus, traveling from the gift show at the Jacob Javits Center, to the subway. (Id. at 7-8.)
It was "snowing lightly" when Hammer got on the bus (Hammer Dep. at 12-13, 32-34, 57), and still snowing when she was getting off the bus (id. at 53). Also, there had been a big snow storm a few days before and snow was still on the ground. (Id.)
Some passengers got off the bus at stops prior to Hammer's stop. (Hammer Dep. at 15-16, 35.) When the bus got to 57th Street between Seventh and Eighth Avenues, Hammer was the first passenger getting off. (Id. at 17-19, 23, 43.)
Hammer described the step area: there were approximately three to four steep steps with handrails along the sides of the steps; the steps were carpeted with a rubber mat or carpeting with a "metal cap like on each step." (Hammer Dep. at 30-32, 50.) Other than that the steps looked "worn or treaded upon," Hammer did not notice any problems with the steps. (Id. at 31-32, 34.) Neither Hammer nor any other passenger complained to the bus driver about the condition of the steps. (Id. at 34-35, 59.)
As the bus approached Hammer's stop, she got out of her seat. (Hammer Dep. at 36-37.) The bus came to a complete stop before she reached the stairs. (Id. at 37.) The driver opened the door, Hammer "began to walk down the steps," and her "right foot totally slid off the first step," causing her to fall down the stairs and out of the bus. (Id. at 38-40.) When asked if she knew what caused her right foot to slip, she responded that she "think[s] it slipped on the metal." (Id. at 51; see also id. at 52.) Hammer conceded that she did not see water on the steps, but "it had to have been" wet from the snow. (Id. at 51, 57-58.)
According to Ms. Hammer, after she fell, another passenger "said the steps were slippery." (Id. at 56.) Hammer said she "knew people were being careful walking on those steps. I know I was careful going up, I mean." (Id.)
Driver Michael Crossley's Deposition Testimony
Defendant Michael Crossley has been a "motor coach operator" — in street parl ance, a bus driver — for Academy since November 1999. (Dkt. No. 12: Dashe Aff. Ex. G: Crossley Dep. at 5.) On January 23, 2000, Crossley was the driver of the Academy bus on which plaintiff Hammer fell. (Id. at 9.) He was operating the bus as a courtesy shuttle, taking people from the Javits Center to midtown hotels. (Id. at 11-13.)
When Crossley picked the bus up that morning, he did a "pretrip inspection that's mandated by [the] Department of Transportation." (Crossley Dep. at 14.) That inspection included "checking the inside of the bus, meaning make sure the seats are not broken, there is no carpeting or anything or floor mats sticking up, protruding out . . . ." (Id.)
He elaborated:
Q. As part of the pretrip inspection, does it also entail looking [at] or inspecting the steps leading to the entrances on the bus?
A. Yes, that's part of making sure that there is no floor placement protruding out, make sure the steps are not cracked, dented, warped or in any way defective.
Q. On the day of the accident, did you, in fact, make these inspections?
A. Yes, I d[id], as I do every day.
(Id. at 15.) In addition, before going to the Javits Center to begin his afternoon runs (i.e., before the trip on which Ms. Hammer was a passenger), Crossley swept and visually inspected the bus. (Id. at 19-20.) He testified: "When I swept down the bus, of course, there was nothing protruding on the steps, they were in perfect condition." (Id. at 20.)
As had Hammer, Crossley testified that on the day of the accident, "the ground was wet" since "it had snowed a day or two before" and there still was snow on the ground. (Crossley Dep. at 17; see also id. at 31.) Crossley did not recall if it was snowing that day (Hammer said it was), but "there was snow on the ground. The inside of the bus was wet and the ground was wet from the snow that had previously fallen." (Id. at 34.) The steps "were wet from the bus being used, people getting on and off." (Id. at 42-43.)
Hammer was sitting in the seat opposite Crossley, by the door. (Crossley Dep. at 36-37.) As the bus was nearing its second stop, at 57th Street and Seventh Avenue, Hammer stood up before the bus had completely stopped, and as soon as the bus stopped and the door opened, "she was zooming down the steps." (Id. at 37; see also id. at 38-39, 41, 43-44.) Crossley looked up and saw her slip down the stairs. (Id. at 43, 45, 50-51.)
ANALYSIS
For a discussion of the standards applicable to a summary judgment motion, see, e.g., Williams v. New York City Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *8-9 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.) ( cases cited therein); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *6 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Abbud v. City of New York, 96 Civ. 0521, 1997 WL 633463 at * 3-4 (S.D.N.Y. Oct. 10, 1997) (Peck, M.J.), aff'd, No. 97-6396, 159 F.3d 1345 (table), 1998 WL 433012 at * 1-2 (2d Cir. May 20, 1998).
The legal standard applicable to Academy was clarified just a few years ago by the New York Court of Appeals:
We thus realign the standard of care required of common carriers with the traditional, basic negligence standard of reasonable care under the circumstances. Under that standard, there is no stratification of degrees of care as a matter of law. Rather, "there are only different amounts of care, as a matter of fact."
Bethel v. New York City Transit Auth., 92 N.Y.2d 348, 351, 681 N.Y.S.2d 201, 202 (1998) (citation omitted).
Plaintiff's counsel conceded at a conference with the Court that there was no claim here of defective design or maintenance. (10/18/01 Conf. Tr. at 12.) Rather, plaintiff hopes to get to the jury on the simple (undisputed) fact that she slipped on wet stairs on the bus, on a day when it was snowing and there was snow on the ground from a prior snowfall. That is insufficient to defeat defendants' summary judgment motion.
In her opposition papers, Hammer asserts that her claim is not based solely on the fact the steps were wet, but that "the stairs were worn and had metal cappings which became slippery when wet," thus creating a "dangerous condition." (Dkt. No. 16: Krishnamurthy 11/1/01 Aff. ¶ 3.) That argument, however, is precluded by Hammer's counsel's concession at the October 18, 2001 conference that she was not making a claim of defective design or maintenance. (10/18/01 Conf. Tr. at 12.) Moreover, Hammer has presented no testimony that the condition of the stairs led to her fall, or that Academy had notice as to the condition of the stairs. In the absence of expert or other testimony about how the condition of the stairs caused Hammer's fall, the claim comes down to one that because of the condition of the stairs and that they were wet, Hammer fell. But as shown by the cases discussed in text above, because the wetness was tracked into the bus by its passengers, Hammer has not shown that Academy was negligent in any way.
For example, in Hussein v. New York City Transit Auth., 266 A.D.2d 146, 699 N.Y.S.2d 27 (1st Dep't 1999), the plaintiff fell on a wet floor in a subway station. It was "undisputed that it had been sleeting throughout the day, and that sleet was continuing to fall at the time of the accident." Id. at 146, 699 N.Y.S.2d at 28. The lower court denied summary judgment, and the First Department reversed and entered judgment for defendant, stating:
Plaintiff's first theory of liability is precluded as a matter of law by the undisputed fact that the sleet was still falling at the time of plaintiff's accident. Just as landowners have no duty to clear outdoor public spaces while precipitation is still falling, they are not required to provide a constant, ongoing remedy when an alleged slippery condition is said to be caused by moisture trapped indoors during a storm. And, just as it is unreasonable to require the Transit Authority to keep the floors of subway cars clean and dry during ongoing storms, when the subway cars are continuously filled with wet commuters, similarly a station floor cannot be effectively kept dry in such circumstances.
Id. at 146-47, 699 N.Y.S. 2d at 28 (citations omitted); see also, e.g., Harper v. United States, 949 F. Supp. 130, 131-33 (E.D.N.Y. 1996) (applying N Y negligence law, summary judgment for defendant where plaintiff slipped on wet floor in Post Office when it was raining outside; "New York law recognizes that a [property] owner `cannot prevent some water . . . being brought into an entranceway on a rainy day and he is not responsible for injuries caused thereby . . . .'") (emphasis deleted); Marte v. New York City Transit Auth., 276 A.D.2d 755, 755-56, 715 N.Y.S.2d 704, 705-06 (2d Dep't 2000) (summary judgment for defendant where plaintiff slipped on puddle of water in train when it was raining; "The puddle could have occurred as a result of water dripping from the clothing or umbrellas of other passengers who had boarded the subway car immediately before [plaintiff] boarded it."); King v. New York City Transit Auth., 266 A.D.2d 354, 354, 698 N.Y.S.2d 328, 329 (1st Dep't 1999) (summary judgment for defendant; "The mere fact that the exposed staircase was wet from the rain is insufficient to establish a dangerous condition."); Taylor v. New York City Transit Auth., 266 A.D.2d 384, 384, 698 N.Y.S.2d 52, 53 (2d Dep't 1999) (summary judgment for defendant where plaintiff injured by slipping on ice and snow covered stairway to a subway station; "A defendant cannot be held liable for an injury caused by a storm which was in progress at the time of the injury."); Duncan v. New York City Transit Auth., 260 A.D.2d 213, 213, 686 N.Y.S.2d 702, 703 (1st Dep't 1999) (affirms summary judgment for defendant where plaintiff slipped in puddle in subway car; "Since the storm was ongoing, `the accumulation could have occurred as a result of water dripping from the clothing or umbrellas of other passengers who had boarded the subway car immediately prior to' plaintiff's attempted exit. It would be unreasonable to expect defendant to constantly clean the floors in all the subway cars during an ongoing storm.") (citations omitted); Sagges v. Long Island R.R., 259 A.D.2d 537, 537-38, 686 N.Y.S.2d 467, 468 (2d Dep't 1999) (summary judgment for defendant where plaintiff slipped on "accumulated snow" on platform after it had snowed); Alatief v. New York City Transit Auth., 256 A.D.2d 371, 371-72, 681 N.Y.S.2d 562, 563 (2d Dep't 1998) (affirms summary judgment for defendant where plaintiff slipped on "accumulation of water" on subway train, since "the accumulation could have occurred as a result of water dripping from the clothing or umbrellas of other passengers who had boarded the subway car immediately prior to the boarding by the injured plaintiff."); Low v. New York City Transit Auth., 237 A.D.2d 493, 493, 655 N.Y.S.2d 983, 984 (2d Dep't 1997) (same); Rosario v. New York City Transit Auth., 215 A.D.2d 364, 365, 626 N.Y.S.2d 242, 243 (2d Dep't 1995) (summary judgment for defendant where plaintiff slipped on wet stairway when it had rained); Yedinak v. City of New York, 91 N.Y.S.2d 195, 196 (Sup.Ct. Kings Co. 1948) (complaint dismissed where plaintiff claimed she slipped on "mud and slime . . . on the exit step of the bus," where it had been raining earlier that day), aff'd, 275 A.D. 953, 90 N.Y.S.2d 678 (2d Dep't 1949); Byrne v. Connecticut Co., 123 Conn. 304, 306-07, 195 A. 184, 185 (Conn. 1937) (judgment for defendant where plaintiff slipped on ice on bus step while exiting the bus; "The only basis of negligence would be that the driver in the course of the operation of the bus should have taken the precaution to examine the step just before she alighted and to see if there was ice upon it. Translated into terms of duty, this would mean that the driver was under an obligation at every stop the bus made to examine the step. Under the existing conditions this was too high a measure of care to impose upon the defendant.").
Hammer tries to distinguish these cases on three bases. First, Hammer says that this case, unlike those cited above, did not involve an "ongoing downpour." (Dkt. No. 16: Krishnamurthy 11/1/01 Aff. ¶ 4.) But the testimony is undisputed that there was snow on the ground from a prior snowfall and, according to Hammer's own testimony, it also was snowing lightly. (See pages 2, 4 above.) And it is undisputed that the steps were wet from passengers trailing that snow onto the bus. (Crossley Dep. at 34, 42-43; see also Hammer Dep. at 51, 57-58.) Thus, the wet stairs were the result of the weather conditions outside at the time of the accident, just like in the cases Hammer tries to distinguish.
Second, Hammer argues that because the bus was a "shuttle" bus as opposed to a commuter bus, there is "no reason to lower the standard of care that is required of these defendants to their passengers." (Dkt. No. 16: Krishnamurthy 11/1/01 Aff. ¶ 5.) This is pure surmise. Plaintiff's counsel did not call any expert witness to suggest that a "shuttle" bus has any greater opportunity or obligation to keep steps dry during inclement weather than does a commuter bus. Plaintiff's counsel would appear to be suggesting that Academy should have required its drivers to dry the steps after each passenger got on or off the bus. New York law does not support imposing such a duty on a bus merely because it is a shuttle rather than a commuter bus.
Third, Hammer's reliance (Dkt. No. 16: Krishnamurthy 11/1/01 Aff. ¶ 6) on Lesser v. Manhattan Bronx Surface Transit Operating Auth., 157 A.D.2d 352, 556 N.Y.S.2d 274 (1st Dep't 1990), aff'd, 79 N.Y.2d 1031, 584 N.Y.S.2d 439 (1992), is misplaced. While the First Department noted the difference between overhead railroad platforms (or steps) open to the elements and steps inside a bus, the bus steps in that case were not just wet but "covered with dirty packed slush about one inch in depth." Lesser v. Manhattan Bronx Surface Transit Auth., 157 A.D.2d at 354, 556 N.Y.S.2d at 275. More importantly, perhaps, in Lesser the plaintiff introduced testimony from a transportation safety expert that industry practice required the driver to remove accumulated snow from stairs and to caution passengers. Id. at 355, 556 N.Y.S.2d at 275-76. Hammer's counsel here, however, presented no expert testimony, and the New York cases cited above distinguish snow accumulations from wet floors or stairs in subways or buses.
Crossley cautioned his bus passengers to "remain seated while the coach is in motion [and] use the handrails when exiting the coach." (Crossley Dep. at 31.)
In the present case, it is undisputed that passengers tracked moisture onto the bus from the snow that was on the ground outside and/or from the snow that was then "lightly" falling, and Hammer slipped on the wet stairs. Her accident is unfortunate, but it is not defendants' fault, i.e., not the result of any proven negligence on defendants' part. Under New York case law, defendants are entitled to summary judgment.
CONCLUSION
For the reasons set forth above, defendants' summary judgment motion is GRANTED. The Clerk of Court is to enter judgment for defendants dismissing the complaint.
SO ORDERED.