Moshier v. Phoenix Central School District

Appellate Division of the Supreme Court of New York

Moshier v. Phoenix Central School District

199 A.D.2d 1019, 605 N.Y.S.2d 581

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 1993

StatusPublished

Cited by12 cases

This text of 199 A.D.2d 1019 (Moshier v. Phoenix Central School District) 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.

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Moshier v. Phoenix Central School District, 199 A.D.2d 1019, 605 N.Y.S.2d 581 (N.Y. Ct. App. 1993).

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Order reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court should have granted defendants’ motion for summary judgment dismissing plaintiffs’ complaint. Plaintiff Debra S. Moshier (plaintiff) was seriously injured on February 26, 1990, when the vehicle she was driving collided with a school bus owned by defendant Phoenix Central School District (the District) and driven by defendant Brenda L. Karpinko (Karpinko). It is undisputed that Karpinko was halfway up a hill covered by light snow when plaintiff came over the top of a hill from the opposite direction, tried to stop, lost control of her car, crossed the center line, and struck the school bus. Karpinko attempted to avoid the collision by driving the bus as far as she could to the shoulder of the road.

Karpinko established a complete defense to plaintiffs’ action by submitting proof in admissible form that the collision was caused by plaintiff’s cross over into her lane of travel; plaintiffs failed to offer proof in admissible form that Karpinko could have done something to avoid the collision (see, Gouchie v Gill, 198 AD2d 862; Viegas v Esposito, 135 AD2d 708, lv denied 72 NY2d 801; Tenenbaum v Martin, 131 AD2d 660).

Plaintiffs’ argument that the District was negligent in its placement of the bus stop lacks merit. The District submitted an expert’s affidavit stating that the placement of the school bus stop was not unreasonably dangerous; plaintiffs failed to offer proof in admissible form raising an issue of fact in response (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Plaintiffs also failed to suggest a safe alternative to the District’s placement of the bus stop (see, Gleich v Volpe, 32 NY2d 517, 523).

[1020]*1020Plaintiffs’ argument that thé District was required to post an adequate warning sign in the vicinity of the bus stop and negligently failed to do so lacks merit. The District has no authority to regulate traffic - or place traffic signs on any highway (see, Gleich v Volpe, supra, at 522) and thus had no authority, much less a duty, to post a warning sign. Plaintiffs cite no authority for their further argument that the District had a duty to inform the municipality in charge of the area of the allegedly dangerous situation and "to see” that proper warning signs were posted. We find that argument to be without merit.

All concur except Callahan and Doerr, JJ., who dissent in part and vote to modify in the following Memorandum:

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Order reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court should have granted defendants’ motion for summary judgment dismissing plaintiffs’ complaint. Plaintiff Debra S. Moshier (plaintiff) was seriously injured on February 26, 1990, when the vehicle she was driving collided with a school bus owned by defendant Phoenix Central School District (the District) and driven by defendant Brenda L. Karpinko (Karpinko). It is undisputed that Karpinko was halfway up a hill covered by light snow when plaintiff came over the top of a hill from the opposite direction, tried to stop, lost control of her car, crossed the center line, and struck the school bus. Karpinko attempted to avoid the collision by driving the bus as far as she could to the shoulder of the road.

Karpinko established a complete defense to plaintiffs’ action by submitting proof in admissible form that the collision was caused by plaintiff’s cross over into her lane of travel; plaintiffs failed to offer proof in admissible form that Karpinko could have done something to avoid the collision (see, Gouchie v Gill, 198 AD2d 862; Viegas v Esposito, 135 AD2d 708, lv denied 72 NY2d 801; Tenenbaum v Martin, 131 AD2d 660).

Plaintiffs’ argument that the District was negligent in its placement of the bus stop lacks merit. The District submitted an expert’s affidavit stating that the placement of the school bus stop was not unreasonably dangerous; plaintiffs failed to offer proof in admissible form raising an issue of fact in response (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Plaintiffs also failed to suggest a safe alternative to the District’s placement of the bus stop (see, Gleich v Volpe, 32 NY2d 517, 523).

[1020]*1020Plaintiffs’ argument that thé District was required to post an adequate warning sign in the vicinity of the bus stop and negligently failed to do so lacks merit. The District has no authority to regulate traffic - or place traffic signs on any highway (see, Gleich v Volpe, supra, at 522) and thus had no authority, much less a duty, to post a warning sign. Plaintiffs cite no authority for their further argument that the District had a duty to inform the municipality in charge of the area of the allegedly dangerous situation and "to see” that proper warning signs were posted. We find that argument to be without merit.

All concur except Callahan and Doerr, JJ., who dissent in part and vote to modify in the following Memorandum:

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199 A.D.2d 1019, 605 N.Y.S.2d 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moshier-v-phoenix-central-school-district-nyappdiv-1993.

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