Opinion
98-20337.
Decided June 28, 2004.
NIERODA ASSOCIATES. Attorneys for the Plaintiff, Bay Shore, New York.
CARTON EBERZ, P.C., Attorneys for Deft Middle Country, MEISELMAN, DENLEA, PACKMAN, White Plains, New York.
LONDON FISCHER, LLP, Attorneys for Deft United Bus Co., New York, New York, Uniondale, New York.
ORDERED that for the purposes of this decision the motion by defendant United Bus Company for summary judgment dismissing the complaint and cross claims against it and the motion by defendant Middle Country Central School District are consolidated, and it further
ORDERED that the motion by defendant United Bus Company is granted, and it is further
ORDERED that the motion by defendant Middle Country Central School District is also granted; and it is further
ORDERED that the action is severed and shall continue as against the remaining defendant.
This is an action to recover damages for the personal injuries allegedly sustained by the infant plaintiff, Anthony Squitire, when on March 4, 1998 he was struck by a car operated by defendant Janet L. Schwartz while crossing Hawkins Road, 50 feet east of Linwood Avenue in Selden, NY. At the time of the accident the infant plaintiff was approximately nine of years of age and in the third grade at an elementary school within defendant Middle Country Central School District (School District). Shortly before the accident the infant plaintiff had been discharged at his normal stop from a school bus operated by defendant United Bus Company. The bus stop was located on Linwood Avenue near its intersection with Hawkins Road. In order to reach his residence on the far side of Hawkins Road the infant plaintiff was required to cross Hawkins Road, a fairly busy roadway. A derivative cause of action is asserted on behalf of the infant plaintiff's mother, plaintiff Beverly Squitire.
Defendants United Bus Co. and School District now move for summary judgment on the basis that they bear no liability for the infant plaintiff's accident. Defendants contend that the infant plaintiff having been safely deposited at his bus stop was no longer in the custody and control of the defendants. Plaintiffs claim, however, that the bus stop was not situated in a safe place for the infant plaintiff and that defendants failed to take cognizance of the infant plaintiff's "special needs" in releasing him in the absence of his parents or other caretakers.
By order, dated June7, 2004 (Molia, J.), the Court adjourned these motions until June 15, 2004, in order to permit defendant School District to submit copies of certain exhibits which counsel had affirmed were attached to the School District's moving papers. The action is presently scheduled for jury selection on June 28, 2004. The adjourned date having passed and the exhibits not having been received by the Court, it is apparent that defendant School District has elected to stand on its papers as originally submitted without the missing exhibits. In determining the motions the Court has considered the deposition testimony of the plaintiffs, Beverly and Anthony Squitire; Deborah Hannon-Alleque, the bus driver, defendant Janet L. Schwartz; Roger Meyer, Transportation Supervisor for the School District; and Gary Jones, an eyewitness to the accident. The Court has also considered the personal affidavits of Ms. Hannon-Allende and Ellen Dellella, Manager of defendant United Bus Co.
Non party witness Gary Jones testified to the effect that he resides on Hawkins Road and that on the date of the accident he was walking with his own children on Hawkins Road approximately 20 to 25 feet behind Anthony Squitire. Mr. Jones stated that he saw Anthony Squitire dart out from in front of a parked car on Hawkins Road and run across the eastbound lane close to oncoming cars before stopping on the double yellow line in the center of Hawkins Road. Mr. Jones stated that the driver [defendant Schwartz] of a car approaching plaintiff in the westbound lane of Hawkins Road jammed on her brakes and "fishtailed" a little striking plaintiff with the back end of the car. Mr. Jones further stated that the Schwartz vehicle was not far from Anthony when he reached the center line and that if Mrs. Schwartz had not swerved she would have hit Anthony head on.
Defendant Schwartz testified to the effect that she first saw Anthony when he suddenly appeared in the middle of the road at the front driver's side of her car, that she stepped on the brakes, swerving away from him when he ran into the side of her car.
Plaintiff Anthony Squitire testified to the effect that when he got off the bus each day either one of his parents or his grandmother waited for him outside the family residence while he crossed Hawkins Road. He also testified that he had been instructed to go to his mother's friend's house on the same side of Hawkins Road as the bus stop when no one was waiting for him, to help him cross the road when the bus left him off. When no one was waiting for him outside his house on the day of the accident he decided not to go to the neighbor's house, and instead, to cross the road on his own.
Plaintiff Beverly Squitire testified to the effect that a family member waited on the front lawn or in the driveway each day when Anthony got off the bus and directed him across the street, that Anthony had been instructed not to cross the street by himself and that if a family member was not waiting for him outside their house that he was to go to her friend's house and wait. She testified that she was home on the date of the accident, that she was not waiting outside for Anthony because the bus arrived five to ten minutes early and that Anthony should not have been allowed to leave the school bus in the absence of an adult. She also testified that she complained to the school district on numerous occasions that the bus stop was not safe and should be moved to Hawkins Road so that the bus driver could ensure that the children were able to cross that road safely. She further testified that the school district had been advised that Anthony had "special needs" since he suffered from suicidal ideation and myopia to the extent that he could not see well enough to safely cross the road.
At his deposition, Roger Meyer testified that he was Transportation Supervisor for the School District. He said that he had no written records of complaints regarding the subject bus stop.
By her personal affidavit, the driver of Anthony's bus averred that she had no knowledge of Anthony's suicidal ideation or his myopia.
By her personal affidavit, the Manager of defendant United Bus Company averred that the bus company had no knowledge of Anthony's suicidal ideation or his myopia and that the bus company had no control over the location of the school bus stops.
It is well settled that schools owe a duty to their students to exercise such supervision over them as a parent of ordinary prudence would observe, placed in the identical situation and armed with the same information ( Lawes v. Board of Education of the City of New York, 16 NY2d 302, 266 NYS2d 364). This duty is derived from the fact that school assumes physical custody of, and control over, its students, effectively taking the place of parents and guardians ( Mirand v. City of New York, 84 NY2d 44, 614 NYS2d 372). Thus, the duty of care owed to the students is present while they are in the school's physical custody or orbit of authority, or when a specific statutory duty has been imposed ( Chainani v. Board of Education of the City of New York, 87 NY2d 370, 639 NYS2d 971). In addition, when a school district provides transportation services it must do so in a careful and prudent manner, including the designation of safe bus stops ( id.; Pratt v. Robinson, 39 NY2d 554, 384 NYS2d 749). However, the school district's obligation to provide safe bus stops does not extend beyond the location of the stop ( Womack v. Duvernay, 229 AD2d 488, 645 NYS2d 831). A school district does not insure the safety of the children as they travel to and from the place where the school bus picks up or discharges them ( see, Pratt v. Robinson, supra; Di Cerbo v. Raab, 132 AD2d 763, 516 NYS2d 995). In addition, the school district is not obligated to provide transportation which, with respect to any particular child, will prevent that child from encountering traffic hazards ( Pratt v. Robinson, supra; Womack v. Duveray, supra).
Plaintiffs have failed to submit evidence to support their assertion that the location of the bus stop was inherently dangerous. Even if the plaintiffs raised an issue of fact as to whether the School District was negligent in its designation of the bus stop, any such negligence was not a proximate cause of the infant plaintiff's injuries. Rather, the spontaneous act of the infant plaintiff in suddenly and inexplicably running into the street superseded any negligence of the School District as a proximate cause of the accident ( Hanley v. East Moriches Union Free School District, 275 AD2d 389, 712 NYS2d 617 app den 95 NY2d 769, 722 NYS2d 472). Nor did plaintiffs establish that the School District owed the infant plaintiff any special duty of protection ( see, Bowers v. City of New York, 294 AD2d 526, 742 NYS2d 659 app den 98 NY2d 613,751 NYS2d 168).
It is clear that the bus company cannot be liable to the plaintiff since it exercised no control over the infant plaintiff or the location of the bus stops ( Hanley v. East Moriches Union Free School District, supra).
Accordingly, the motions for summary judgment are granted and the complaint and cross claims as against defendants School District and United Bus Company are dismissed.