Blye v. Manhattan & Bronx Surface Transit Operating Authority

Ellerin, J.

(dissenting). While we are all in agreement that defendant Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) was under a duty to provide the prospective passenger, Ms. Blye, with a reasonably safe place from which to board the bus, I cannot acquiesce in the majority’s finding that the defendant here cannot be found negligent because it properly fulfilled that duty as a matter of law. On the contrary, based on the record before us, that issue is a question of fact which the trial court properly submitted to the jury, together with the issues of proximate cause and contributory negligence, and there is ample support for the jury’s verdict in favor of the plaintiff. Accordingly, I would affirm.

As the Court of Appeals stated in Sadowski v Long Is. R. R. Co. ( 292 NY 448, 455 ): "Essentially, what is negligence in a given case is a question of fact. Each case depends upon its own peculiar circumstances * * * Negligence arises from breach of duty and is relative to time, place and circumstance (Mink v. Keim, 291 N. Y. 300, 304 ). Ordinary care must be in *115 proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect”.

More recently, in Havas v Victory Paper Stock Co. ( 49 NY2d 381 ), that court addressed the roles of Judge and jury in a negligence suit and concluded that determination of the question of whether or not a party has breached a particular duty of care imposed upon it is one which is uniquely appropriate for determination by a jury rather than the court even where, as in that case, the facts are "essentially undisputed”. In terms particularly relevant to the case here in issue, the court stated (at p 388): "This brings us to the question as to whether defendant breached this duty by negligence on its part. It was particularly appropriate to leave this issue to the jury, not only because of the idiosyncratic nature of most tort cases (Pound, Introduction to the Philosophy of Law [rev ed, 1954], p 71), or because there was room for a difference in view as to whether Victory’s conduct in the particular circumstances of this case did or did not evidence a lack of due care, but, perhaps above all, because, in the determination of issues revolving about the reasonableness of conduct, the values inherent in the jury system are rightfully believed an important instrument in the adjudicative process (see Fleming, Torts [3d ed, 1965], p 271; Weiner, Civil Jury Trial and the Law-Fact Distinction, 54 Cal L Rev 1867, 1887-1891, 1938).”

Submission of the breach of duty issue to the jury was particularly appropriate in the instant case. Here, the bus in question pulled to a stop some three feet away from the curb, with the front of the bus, at best, two feet in front of a tree well with raised cobblestones and there was testimony that approaching the entrance of the bus by the most direct route took plaintiff through the tree well that was located in such close proximity to the entry door. There was also testimony that the length of the bus stop was such that the bus could have been brought to a stop with its doors well away from the tree well. The majority takes the position that in stopping the bus, as it did, the defendant fully met its duty of providing the prospective passenger with a safe place to board the bus, as a matter of law, because it did not "dictate that the passenger board the bus via a treacherous path”. That, however, is not the test. It is foreseeability of harm which is the touchstone and admeasurement of both the existence of a duty in the first instance, and whether such duty has been fulfilled.

While the majority opinion alludes to "[t]he concept of foreseeability [as] a critical factor in defining the boundaries *116 of [the] duty” upon defendant, it wholly ignores that concept by determining, as a matter of law, that because it was possible to approach the bus without stepping into the tree well, the defendant completely fulfilled its obligation to provide plaintiff, as a prospective passenger, with a safe place to board the bus. It reaches this conclusion without in any way considering the critical issue of what risks or hazards were reasonably foreseeable by virtue of bringing the bus to a stop in the manner here done. As Judge Fuchsberg observed in Havas v Victory Paper Stock Co. (49 NY2d, at pp 385-386), "[I]n a case which raises such traditional negligence law queries as does the one before us the answers are still to be found in the principle so pungently phrased by Cardozo that '[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation’ (Palsgraf v Long Is. R. R. Co., 248 NY 339, 344 ).”

In considering the risks to be perceived here, can it really be gainsaid, as a matter of law, that in light of the known propensities of urban passengers it was reasonably foreseeable that stopping a bus away from the curb and in close proximity to a tree well, with protruding stones and in a direct path to the bus entrance door, would give rise to the potential danger of a prospective passenger tripping over such obstruction in the course of approaching the bus for purposes of boarding. I submit that common sense and common experience, the hallmarks of our jury system, indicate to the contrary and that under the circumstances here present it could properly be found that such a risk could, and should have, been apprehended by a bus operator charged with the duty of providing prospective passengers with a reasonably safe place to board. At the very least, the facts here can be said to be subject to varying inferences which were properly the province of a jury determination.

"Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ; Heffler v State of New York, 96 AD2d 926 ).

That plaintiff herself could have chosen another, safer path is, of course, of great significance on the issue of contributory negligence but it would not, as the majority appears to indicate, have a conclusive impact on the issue of defendant’s negligence. The dispositive issue on the latter is whether or not defendant should have reasonably foreseen that stopping *117 the bus as it did would give rise to the danger that prospective passengers might be exposed to harm by virtue of the proximity of the entrance door of the bus to the tree well’s protruding stone, notwithstanding the availability of a safer means of approaching the bus.

This distinction is demonstrated very clearly in the case of Schwartz v Brooklyn & Queens Tr. Corp. ( 264 App Div 905 ) which has many parallels to the case before us. The plaintiff in that case, as she was preparing to board the defendant’s trolley car, fell upon some ice that extended from the car tracks to the curb. There were other places along the track nearby which were free of ice. The trial court dismissed the complaint at the close of plaintiff’s case "on the ground that the cause of action alleged in the complaint was not proved and that plaintiff was guilty of contributory negligence as a matter of law”. The Appellate Division reversed, finding that the mere fact that plaintiff knew of the existence of the ice was not sufficient to charge her with contributory negligence as a matter of law and, further, that the issue of defendant’s negligence vis-á-vis its duty "to furnish plaintiff with a reasonably safe place from which to board the trolley car” was a question of fact.

Among the cases relied upon by the majority in Schwartz (supra) is Keener v Tilton ( 283 NY 454 ), also similar in many respects to this case. There, a passenger was injured at night after alighting from a trolley car when she stepped into a depression caused by one brick in the pavement being an inch and a half to two inches below the surface of the other bricks. Notwithstanding that such hole or depression "was outside the defendant’s right of way” (supra, p 455), the Court of Appeals reversed the Appellate Division’s rejection of a jury verdict in favor of plaintiff and held that the question of whether the carrier’s conduct constituted negligence was a jury question, noting in its opinion that "[t]he essential duty of a carrier may call upon it to safeguard a passenger against inconspicuous dangers of the road that should be known to it” (supra, at p 456).

Similarly, in Young v Jamaica Buses ( 262 App Div 860 ), where the trial court had dismissed the complaint of a prospective passenger who was injured when she fell on ice in the street while attempting to reach and board defendant’s bus which had stopped and opened its door 10 feet from the curb, the Appellate Division reversed and held that "a question of *118 fact as to the exercise of due care upon the part of the operator of the bus was presented.”

Other cases which have held the issue to be a question of fact include the following: Barcellos v Triboro Coach Corp. ( 11 NY2d 702 , affg 11 AD2d 1045 [upholding a jury verdict finding defendant bus company liable for injuries to plaintiff suffered when after alighting from a bus which was stopped at an angle with its back end four feet from the sidewalk she caught her foot in a hole in the street]); Hall v Triboro Coach Corp. ( 274 App Div 808, 809 ["(a) question of fact as to the negligence of the defendant bus company was presented by the testimony of plaintiff wife to the effect that the bus stopped in such a position that the exit door was near a deep hole in the roadway”]); Welch v Triple Cities Traction Corp. ( 265 App Div 984, 985 [evidence that plaintiff upon alighting from defendant’s bus fell upon ice and snow, was held sufficient “to sustain the finding of the jury that defendant was negligent in failing to provide a reasonably safe place for plaintiff to alight from the bus”]); Engel v Brooklyn & Queens Tr. Corp. ( 252 App Div 792 [evidence that passenger after exiting from a trolley stepped into a depression located some 24 to 25 inches from the defendant’s outside rail was held to present a question of fact for the jury as to defendant’s alleged negligence in failing to furnish to the plaintiff a reasonably safe place to alight and was ample to support a verdict in favor of plaintiff]); Cordes v Surface Transp. Corp. ( 40 NYS2d 878 [evidence that passenger exited from side door of bus, which was some distance from the sidewalk curb, with an intervening pile of snow between the exit steps and the sidewalk curb, and that she slipped on ice and snow as she put her foot on the curb was held to present an issue of fact for the jury as to whether defendant was negligent in the performance of its duty to furnish her with a reasonably safe place at which to disembark]).

In distinction, the case of Rodriguez v Manhattan & Bronx Surface Tr. Operating Auth. ( 117 AD2d 541 ) so heavily relied upon by the majority deals with a different issue. There, the passenger was already safely discharged from the bus and onto a designated bus stop so that the obligation to provide the passenger with a safe place to alight had already been completed and the passenger-carrier relationship and the duty arising therefrom had been terminated by the time plaintiff chose to cross the roadway. The instant case, on the other hand, directly relates to the carrier’s duty to provide plaintiff with a safe place to board the bus and the physical circum *119 stances involved are directly and proximately related to the prospective passenger’s attempt to board the bus. Whether or not the manner in which the bus was stopped constituted a failure of defendant to fulfill its duty in light of "dangers to be apprehended” is the kind of qualitative factual judgment that should properly be made by a jury.

It has long been accepted that in all but the most extraordinary or egregious instances, the issue of whether a defendant has conformed to the standard of conduct required by law is a question of fact. (Andre v Pomeroy, 35 NY2d 361 , dissenting opn of Breitel, Ch. J., at pp 365-367, and authorities therein cited.) The instant case is clearly not of such extraordinary instance but falls squarely within the ambit of the cases previously discussed and involve an evaluation of the kind of every day conduct and experiences which jurors are particularly well equipped to judge.

Accordingly, I dissent and would affirm the judgment entered on the jury’s verdict in favor of the plaintiff.

Sandler, J. P., and Kassal, J., concur with Carro, J.; Fein and Ellerin, JJ., dissent in an opinion by Ellerin, J.

Judgment, Supreme Court, New York County, entered on July 9, 1985, modified, on the law, to the extent of vacating the jury’s verdict of liability against MABSTOA, and the judgment is otherwise affirmed, without costs and without disbursements.