Opinion
April 5, 1985
Appeal from the Supreme Court, Erie County, Ricotta, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Denman and O'Donnell, JJ.
Order unanimously reversed, on the law, without costs, and defendant Niagara Frontier Transit Metro System's motion granted. Memorandum: Plaintiff was a passenger on a bus owned and operated by defendant Niagara Frontier Transit System, Inc. (NFT) which was traveling in a southerly direction on Bailey Avenue. Plaintiff got off the bus at Minnesota Avenue where the intersection is controlled by a traffic signal and proceeded to cross Bailey Avenue, passing in front of the stationary bus. As she neared the center of the street, she was struck by a car driven by defendant Bouvier in a southerly direction on Bailey Avenue. Special Term denied NFT's motion for summary judgment against plaintiff and the cross-claiming defendant, Bouvier. We reverse.
Before a defendant may be held liable for negligence, it must be demonstrated that defendant owes a duty to plaintiff. "In the absence of a duty, there is no breach and without a breach there is no liability" ( Pulka v. Edelman, 40 N.Y.2d 781, 782). The question of the existence of a duty in any particular set of circumstances is entirely one of law to be determined by the courts ( Donohoe v. Copiague Union Free School Dist., 64 A.D.2d 29, 33, affd 47 N.Y.2d 440). Here, plaintiff was afforded a safe place to alight from the bus and, in fact, did leave the bus and proceed safely to the curb of the sidewalk and thence the crosswalk. By then the passenger-carrier relationship between plaintiff and NFT had terminated.
The only act of negligence on the part of NFT asserted by plaintiff is that the bus driver may have stopped the bus partly in the crosswalk. Upon any view of the facts, however, it cannot be concluded that such conduct proximately caused the accident. Plaintiff made an independent decision to pass in front of the standing bus into Bailey Avenue where she was struck by another vehicle. These were intervening acts which preclude a finding that the action of the bus driver was a proximate cause of the accident ( see, Brooks v. Manhattan Bronx Surface Tr. Operating Auth., 94 A.D.2d 656).