Bracco v. MABSTOA

117 A.D.2d 273, 502 N.Y.S.2d 158, 1986 N.Y. App. Div. LEXIS 52483
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 13, 1986
StatusPublished
Cited by8 cases

This text of 117 A.D.2d 273 (Bracco v. MABSTOA) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bracco v. MABSTOA, 117 A.D.2d 273, 502 N.Y.S.2d 158, 1986 N.Y. App. Div. LEXIS 52483 (N.Y. Ct. App. 1986).

Opinions

OPINION OF THE COURT

Milonas, J.

This action involves a claim for damages arising out of personal injuries suffered by plaintiff Denise Braceo as a result of the alleged negligence of defendant Manhattan and Bronx Surface Transit Operating Authority (MABSTOA). At approximately 9:00 a.m. on December 20, 1979, plaintiff, accompanied by her young son, boarded one of defendant’s buses at Williamsbridge Road and Morris Park Avenue in The Bronx. It had snowed the previous day, leaving an accumulation of some 3 to 2>Vi inches. The weather report for the morning of the accident indicated that the temperature was in the low 20’s. As plaintiff got onto the bus, she noticed that there was slush present on all of the front steps. The vehicle was not crowded, and it made about 4 or 5 stops before it reached plaintiffs intended destination. She then pulled on the signal cord, and the bus halted at the intersection of Bogart and Morris Avenues. She walked back to the front with her son, again observing the slush on the stairs. Standing on the platform leading to the stairwell, she uneventfully assisted her child off the vehicle. Thereafter, she stood up and, [275]*275holding one hand on the railing, she descended the first step and fell backward onto the stairs, striking against them with her back, left arm and left shoulder, her knees in the slush and her legs bent under her body.

At the trial held in connection with the instant matter, plaintiff called two passengers who were on the bus at the same time as she. They both described the incident in much the same manner as recounted by plaintiff and remembered seeing snow on the front steps. Police Officer Donald Sorbía, who arrived at the scene shortly after the accident, testified with the aid of notes made on the scene that he spoke to both the bus driver and plaintiff. He stated that there was slush on the front stairs of the bus. Moreover, the vehicle was resting at a steep incline at the bus stop, causing it to lean excessively. Although several pages of the officer’s memo book were marked for identification and read to the jury, the portion relating to the slant of the bus was ordered stricken. According to the officer, the steps were more than just wet, there being a buildup of snow. The aided report and the accident report which he had filled out were both admitted into evidence with redactions as to the nature of plaintiff’s injuries.

The bus driver also took the stand, asserting that while there has been some slush on the steps, the other people on the bus had gotten on and off without any difficulty. Following the accident, he had informed the bus company by telephone, and one of its dispatchers had arrived at the scene. The driver had then advised the dispatcher that the lady was leaving the bus when she slipped and fell on the second step. The driver conceded that he had not cleaned the stairs or placed any salt or other material on them nor had he been instructed to do so by the bus company. The written report of the accident prepared by the dispatcher was also entered into evidence. However, the court excised a section containing a notion that: "On inspection of bus, I found the steps of stairwell covered with slush. Slush removed and bus returned to service”.

In its charge, the court instructed the jury that the standard of care applicable to a situation such as the one herein is that:

"A common carrier, such as the defendant here, has the duty to exercise reasonable care and diligence to keep its bus steps reasonably clear of snow and ice. The fact that a passenger falls on snow or ice and is injured does not, of itself, make the common carrier liable. Before a passenger may [276]*276recover from the common carrier, he or she must establish that the condition of the bus steps upon which she fell were so different in character from the condition ordinarily prevailing during winter in that locality, that is in the Bronx, as to constitute an unusual danger to passengers, that the common carrier, through its employees, in this case the bus operator, Mr. Simon, knew of the unusually dangerous condition or that it had existed for so long prior to the passenger’s fall that the common carrier, in the exercise of reasonable care, should have known of it, and that after the common carrier knew or should have known of the condition and before the passenger’s fall, there was sufficient time for the common carrier, using reasonable methods and in the exercise of reasonable care, to have corrected the condition, but that it failed to do so.
"The first questions for you to determine are whether the condition of the bus steps at the point where plaintiff fell were such that the common carrier, through its employee, the bus driver, should have reasonably anticipated unusual danger to passengers from its continued use, and, secondly, whether the common carrier, through its bus driver, knew or, in the exercise of reasonable care, should have known of the condition.
"If you find that the condition of the bus steps was not unusually dangerous, or that though it was unusually dangerous, the common carrier, through its employee, the bus driver, did not know of it and that it had not existed for a sufficient period of time prior to plaintiff’s fall, that the common carrier, in the exercise of reasonable care, should have known about it, your verdict will be for the defendant and you will proceed no further.
"If you find that the condition of the bus steps was unusually dangerous and that the common carrier either knew that it was or that it had existed for sufficient time prior to plaintiff’s fall, that the common carrier, in the exercise of reasonable care, should have known of it, you will consider whether the common carrier had reasonable time thereafter to correct the condition but failed to exercise reasonable care and diligence to do so.” (Emphasis added.)

Despite being asked to do so by defendant’s attorney (and, following delivery of the charge, by plaintiff’s attorney in his exceptions), the court refused to charge that "a carrier owes a duty to its passengers to provide a reasonably safe place to alight from its vehicle”. The court also declined to deliver plaintiff’s written request stating, in part:

[277]*277It is for the jury to determine:
"1) Whether under these circumstances the defendant bus company could have foreseen that slush and snow would accumulate on the steps of its bus; and
"2) Whether the defendant bus company took reasonable means to correct a potential danger to its passengers.”

In urging reversal of the jury’s verdict in favor of defendant, plaintiff contends that the redaction of the observations of the bus steps by the police officer and the dispatcher, made in the regular course of business, was erroneous and prejudicial to plaintiff. She also argues that the court improperly charged that before the jury could find negligence on the part of the defendant, it first had to determine that the steps were "unusually dangerous”.

Some of the pages of Officer Serbia’s memo book were marked for identification and read to the jury. In addition, the aided report and accident report prepared by him were admitted into evidence, as well as the report of defendant’s dispatcher.

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Cite This Page — Counsel Stack

Bluebook (online)
117 A.D.2d 273, 502 N.Y.S.2d 158, 1986 N.Y. App. Div. LEXIS 52483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bracco-v-mabstoa-nyappdiv-1986.