Sewar v. Gagliardi Bros. Service

69 A.D.2d 281, 418 N.Y.S.2d 704, 1979 N.Y. App. Div. LEXIS 11353

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1979
• Docket: Appeal No. 1; Appeal No. 2
• Status: Published

Opinions

OPINION OF THE COURT

Simons, J.

These are appeals from two judgments of Supreme Court entered after jury verdicts of $2,000,000 in favor of the infant plaintiff, Brigette Sewar, for personal injuries, and $60,000 in favor of her mother in the mother’s derivative cause of action. Plaintiffs sought damages arising from injuries sustained by Brigette in an accident which occurred as she crossed the intersection of Route 31 and Wilson Road near Lockport, New York. While doing so, she was struck by a truck traveling east on Route 31, owned by defendant Gagliardi Brothers Service and operated be defendant Gamillo Gagliardi. Shortly before the accident Brigette had disembarked from a school bus which had stopped on Wilson Road. Plaintiffs alleged that the accident was caused by the negligence of the owner of a school bus, appellant Ridge Road Express, Inc., its driver, appellant Kirk, defendants Gagliardi Brothers Service and Gamillo Gagliardi and the Lockport Board of Education.

Plaintiffs settled their claims against the board of education before trial and the jury verdicts in favor of plaintiffs were against appellants Kirk and Ridge Road Express, Inc., alone. The jury found no cause for action against the owner and operator of the Gagliardi vehicle.¹

Appellants were operating the school bus under a contract with the Lockport Board of Education. They cross-claimed against the board and the Gagliardi defendants, seeking apportionment and contribution. The cross claim against the Gagliardis was dismissed on the jury’s verdict of no cause for action, and the cross claim against the board of education was dismissed after the apportionment issue was submitted separately to the jury and it found no cause for action on that cross claim.

The action against the Gagliardis involved only questions of fact and we affirm that judgment.

The judgments against appellants rest upon the claimed negligence of the bus driver, appellant Kirk, in discharging plaintiff on Wilson Road near the intersection of Route 31. The general rule is that a school board (and those acting for it) owe a duty of reasonable care to pupils in its custody. This common-law duty applies during the period the pupils are transported to and from school and it continues until the pupils have been safely discharged from the school bus (see Pratt v Robinson, 39 NY2d 554, 561; McDonald v Central School Dist. No. 3, 179 Misc 333, affd 264 App Div 943, affd 289 NY 800). The school bus must discharge its passengers at a safe bus stop, a "safe spot” (see Pratt v Robinson, supra, p 560; Gleich v Volpe, 32 NY2d 517). The responsibility for locating the bus stop in this case, however, rested upon the Lockport Board of Education and it was not an issue between plaintiffs and appellants. More important, insofar as these actions are concerned, was the continuing duty imposed on the bus driver to exercise reasonable care to insure that discharged pupils reached a position of safety before moving his vehicle (see Pratt v Robinson, supra; McDonald v Central School Dist. No. 3, supra; Machenheimer v Falknor, 144 Wash 27) and in addition to this common-law duty the statutory duty to instruct pupils required to cross the highway on which the bus was traveling to cross in front of the bus and also to keep the bus halted, with red lights flashing, until the pupils crossing had reached the opposite side of the highway (Vehicle and Traffic Law, § 1174, subd [b]). Failure to fulfill the statutory duty results in the imposition of absolute liability upon the operator if the violation is the proximate cause of injury to a pupil (Van Gaasbeck v Webatuck Cent. School Dist. No. 1, 21 NY2d 239).

On the day of the accident, November 1, 1974, Brigette Sewar was 12 years old. She lived on the north side of Route 31, east of the Wilson Road and was a passenger on appellants’ school bus returning home from school. As the bus proceeded on its regular run that afternoon, it traveled east on Route 31 and then made a right turn south onto Wilson Road² where it stopped and discharged Brigette and five other students. The students exited on the paved portion of Wilson Road, about 50 feet from the edge of Route 31, and then walked along the west side of the bus towards its rear. As they did so, the operator drove away leaving them in the road. Brigette, her sister, and one or two others continued walking toward Route 31 intending to cross the intersection diagonally, southwest to northeast. Brigette was ahead of the others and for some unexplained reason she ran into Route 31, looking to the east as she did. When Brigette started to run, the Gagliardi truck was close upon the intersection and traveling easterly towards it. Defendant Gagliardi tried to turn his truck north to avoid her but at about the time the front of the truck reached the center of the intersection, Brigette ran into its side. The mirror on the right hand door of the truck struck Brigette in the left rear of the head. After the impact, she lay in the southeast quadrant of the intersection.

Appellants contended that before Kirk moved the bus, he crossed the children over in front of it to the east side of Wilson Road in the manner provided by statute and the rules of the board of education.³ There is convincing evidence, however, that after leaving the bus the children walked along its west side toward Route 31, that no direction to do otherwise was given to them by the operator that day (or, for that matter, at any time in the fall of 1971), that Brigette never reached either the west shoulder or the east shoulder of Wilson Road and that by the time the children reached a point about 20 feet south of Route 31 the bus had departed.

The bus driver’s obligation to exercise reasonable care in discharging his passengers included seeing them to the westerly shoulder of the highway, or if he knew that some of the pupils lived east of Wilson Road, crossing them over to the east side of the highway in front of the bus before departing. There was evidence that Kirk knew that Brigette and some of her companions lived east of Wilson Road and that, knowing that, he failed to halt his bus and instruct the children to cross in front of it thereby violating subdivision (b) of section 1174 of the Vehicle and Traffic Law.

Appellants contend that section 1174 of the Vehicle and Traffic Law does not apply in this case because the accident occurred on Route 31. We agree that absolute liability could not be imposed on defendant Gagliardi under subdivision (a) on these facts because his vehicle was traveling on a highway other than the highway the school bus was on (cf. Dean v Baumann, 39 AD2d 138, affd 32 NY2d 756).

The statutory duty stated in subdivision (b),⁴ however, is independent of that in subdivision (a), and it applies to the bus driver in all cases, whether the bus stops between intersections or at an intersection. The school bus is absolutely liable if the pupil is struck at an intersection by a vehicle proceeding on the same highway as the school bus (Van Gaasbeck v Webatuck Cent. School Dist. No. 1, supra) and nothing in the statute’s language suggests a different rule if the vehicle striking the child is proceeding on the intersecting highway. The Legislature’s obvious purpose was to protect school children crossing the highway and the enhanced safety provided by a halted school bus with flashing lights is even more necessary when pupils disembark at intersecting highways than it is when they exit a bus in the middle of a block. The flashing lights may not be visible from all directions but at least the bulk of the bus serves as a visual warning to other vehicles if it delays its departure until the passengers reach a place of safety and are left on their own. The statute should be construed to effectuate the intent of the Legislature, expressed in the report of its committee, that a bus shall remain stationary upon discharging pupils and the driver of the stopped bus "shall watch the highway for any indication of danger, and in the event any danger does arise, take proper precautions to warn the children” (see 7 NY Legis Doc, 1954, No. 36, p 99; emphasis added). Appellants’ bus had stopped on Wilson Road and at the time of the accident Brigette was crossing that same road, west to east, albeit she was crossing in the intersection of Route 31 and in a diagonal direction. She came within the terms of the statute and was entitled to its protective provisions until she left the custody of the school and the bus and reached a position of safety.

The court charged the jury on these common-law and statutory duties of care. To the extent that the charge failed to correctly state the law, the charge was more favorable than that to which appellants were entitled and the errors are not grounds for reversal (see Londa v Dougbay Estates, 40 NY2d 1001).

The critical issue is not so much the duty that appellants owed Brigette and their failure to fulfill their legal duty; that breach is fairly established on the record. The more serious issue is whether appellants’ negligence was a proximate cause of her injuries. The evidence of causation was sufficient if it established facts and conditions from which it may reasonably be inferred that appellants’ negligence was a substantial factor in producing plaintiff’s injuries (Wragge v Lizza Asphalt Constr. Co., 17 NY2d 313, 320), and where different reasonable inferences are possible, the question of proximate cause is for the jury (Pagan v Goldberger, 51 AD2d 508; cf. Ventricelli v Kinney System Rent A Car, 45 NY2d 950; Sheehan v City of New York, 40 NY2d 496). In this case the action of the school bus and its driver was not a neutral or passive factor in the accident which followed and the jury could reasonably consider the following points on the issue of causation. First, it is clear from the evidence that Brigette never completed crossing Wilson Road. She was struck by the Gagliardi truck in the center of that road. She was injured while crossing the highway that Kirk was obliged by statute to see her safely across. Second, Kirk’s failure to warn her and see her safely to the easterly side of Wilson Road increased the hazard because she then was obliged to cross two highways rather than one and she was obliged to do so without the benefit of the bus’ presence. Third, there was evidence that the southwest corner of the intersection was partially obstructed by trees and brush.

It was for the jury to weigh these relative hazards but it could find that if Brigette had properly crossed Wilson Road and then attempted to cross Route 31 from the southeast corner rather than from its pavement, (a) defendant Gagliardi would have had a better view of her and his time to react would have been fractionally longer, (b) Brigette would not have been required to cross the intersection diagonally and her view of vehicles approaching from the west would have been improved. These questions were sufficient to take the issue of causation to the jury and it was for them to say whether appellants’ negligence was the proximate cause of the accident.

We do not find it controlling that the accident happened at a point more or less removed from the bus stop or after the bus had departed. The accident happened while Brigette was crossing Wilson Road and before appellants fulfilled their obligation to see that she had reached a position of safety. The facts differ from those in the Van Gaasbeck case (supra) only insofar as the vehicle involved there was traveling on the same highway as the bus. In Van Gaasbeck, the infant plaintiff was discharged at the edge of the highway between two intersections. The driver knew that he had to cross to the other side but he drove off, leaving plaintiff walking along the shoulder to the nearest intersection. When he attempted to cross the highway at the intersection, he was struck by a motorist proceeding on the same highway the bus had traveled. The Court of Appeals imposed absolute liability on the school bus and found, as we do here, that proximate cause was a question of fact for the jury.

Appellants contend that the court erred in refusing its request that the jury should not consider whether there might have been a "safer” bus stop. Although there is no duty on a school board to select the safer of two safe stops (see Pratt v Robinson, 39 NY2d 554, supra), there is a good deal of testimony in the record suggesting that it might have been wiser to locate the stop on Route 31 rather than Wilson Road. As noted, the obligation to establish the bus stop rested with the school district, not appellants. The court correctly submitted to the jury only two theories of liability against appellants, the first grounded upon common-law negligence in discharging the pupils on the pavement, and the second resting on the statutory obligation to cross the children to the east side of the highway in front of the bus. It instructed the jury that if it failed to find a liability under either of those two theories, it should return a verdict of no cause for action. It might well have charged that appellants had no duty to select a safer bus stop, but its refusal to do so is not grounds for reversal under the circumstances.

The establishment of the bus stop was relevant to appellants’ cross claim for contribution from the board of education and for apportionment based upon plaintiffs’ prior settlement with the board (see General Obligations Law, § 15-108). Appellants contend that the court’s charge to the jury when submitting the question of apportionment was inadequate because it failed to marshal the facts or the contentions of the parties and the legal principles involved (see Green v Downs, 27 NY2d 205, 208; Zipay v Benson, 47 AD2d 233, 235). These errors, however, are not grounds for reversal. There were only two suggested theories of liability against the school board, its failure to establish a safe bus stop (see Pratt v Robinson, 39 NY2d 554, 560, supra; Gleich v Volpe, 32 NY2d 517, supra.), or its failure to exercise reasonable care in instructing the bus operator, Kirk. There was no proof that the bus stop on Wilson Road was unsafe and there was no basis for liability against the board of education for locating it there. As for the second theory, assuming that such a duty of instruction exists, it is clear that Kirk knew the board’s rules and knew his responsibility to cross the children in front of the bus at Wilson Road. He claimed that he had done so and no failure by the board in this respect could result in liability (see Aridas v Caserta, 41 NY2d 1059). Based upon the evidence, there was no basis for contribution or apportionment and the errors in the court’s charge are not grounds for reversal.

Finally, appellants contend that the verdict is excessive. The infant plaintiff was 12 years old at the time of the accident, a junior high school student of average intelligence and prospects. She sustained multiple injuries in the accident, the most serious a fractured skull resulting in permanent brain damage. She is mentally retarded, restricted in her ability to see and hear and she has some spasticity in her limbs. After the accident she returned to school and she has advanced through classes for the mentally retarded to the high school level. She remains educated at the third grade level, however, with I.Q. scores between 57 and 63. Her future both socially and occupationally is extremely limited. Notwithstanding the severity of her damages, we believe the verdict for the infant plaintiff for pain and suffering and permanent disability is excessive and should be reduced to $750,000. The verdict in the mother’s derivative cause of action is supported by the evidence.

Plaintiff’s judgment against appellants and the order denying appellants’ motion to set aside the verdicts should be reversed on the grounds of excessiveness and a new trial granted unless the plaintiffs agree in writing within 20 days of the entry of the order herein to modify the judgment by reducing the verdict in the infant’s cause of action to the sum of $750,000. In the event that plaintiffs so stipulate, the judgment, as modified, is affirmed. The judgment of no cause for action in favor of defendant Gagliardi Brothers Service and defendant Gamillo Gagliardi should be affirmed.

1 . There is always the possibility in trials involving difficult issues of liability, as this did, that the jury’s verdicts may be inconsistent. That possibility is present here, although because of the absolute liability imposed upon appellants, we find the verdicts could not be inconsistent. Any doubt could have been removed and the jury aided in reaching its verdicts if the court had submitted interrogatories to it (see Bolm v Triumph Corp., 58 AD2d 1014).

2 . The intersecting roadway north of Route 31 was known as Sandpit Road but counsel concede it is an extension of Wilson Road.

3 . Kirk testified that he did instruct the children to cross in front of the bus and that they did so.

4 . "The driver of such school bus, when discharging pupils who must cross the highway, shall instruct such pupils to cross in front of the bus and the driver thereof shall keep such school bus halted with red signal lights flashing until such pupils have reached the opposite side of the highway.” (Vehicle and Traffic Law, § 1174, subd M.)