Summary
In Diedrick, the appeal was from the grant of defendant's trial motion to dismiss, made after the close of plaintiff's case, not a motion for summary judgment, as here. Moreover, the cases are dissimilar on their facts.
Summary of this case from Malawer v. New York City Transit AuthorityOpinion
June 11, 1990
Appeal from the Supreme Court, Queens County (Katz, J.).
Ordered that the judgment is affirmed, with costs.
On July 21, 1979, the plaintiff Janice Diedrick, who was in her seventh month of pregnancy, stepped out from the rear door of a New York City Transit Authority bus, helped by her husband, took several steps on the grassy part of the sidewalk, and tripped and fell over a half-moon shaped hole. Two days after the accident, Mrs. Diedrick underwent a Caesarean section and gave birth to Amanda, who was diagnosed with cerebral palsy, and other severe permanent impairments. The plaintiffs commenced a negligence action against, inter alia, the defendant New York City Transit Authority (hereinafter the Transit Authority), and, after settling with the other defendants, proceeded to trial against the Transit Authority. At the close of the plaintiffs' case, the trial court granted the Transit Authority's motion to dismiss the complaint, and this appeal ensued.
The law is well established that the duty of care owed to an alighting passenger is to provide a reasonably safe point where the passenger can alight safely and "to exercise reasonable and commensurate care in view of the dangers to be apprehended" (Fagan v. Atlantic Coast Line R.R. Co., 220 N.Y. 301, 306; Blye v. Manhattan Bronx Surface Tr. Operating Auth., 124 A.D.2d 106, affd 72 N.Y.2d 888; Bundy v. City of New York, 18 A.D.2d 799, affd 13 N.Y.2d 1181). The carrier's duty terminates when it provides the passenger a safe alighting point (Blye v. Manhattan Bronx Surface Tr. Operating Auth., supra; Matter of Eisenberg v Village of Mamaroneck, 137 A.D.2d 817; Rodriguez v. Manhattan Bronx Surface Tr. Operating Auth., 117 A.D.2d 541).
Accepting the plaintiffs' evidence as true and according it the benefit of every favorable inference which can reasonably be drawn therefrom (see, Hylick v. Halweil, 112 A.D.2d 400; Dolitsky v. Bay Isle Oil Co., 111 A.D.2d 366), we conclude that the Transit Authority fulfilled its duty to provide a safe place to alight from the bus. Initially, we note that there is nothing in the record to indicate that the Transit Authority was aware, or reasonably should have been aware, of any defect in the grassy area near the bus stop (see, Pulka v. Edelman, 40 N.Y.2d 781, 782). Although there had been construction in that area, the plaintiffs' witnesses testified that the construction had been completed over a month before the accident occurred, and that no holes were discernable.
Even assuming, arguendo, that the accident was reasonably foreseeable, the duty owed by the Transit Authority to Mrs. Diedrick terminated when she alighted safely from the bus. As her testimony indicates, after descending from the exit door of the bus, Mrs. Diedrick took approximately three steps before she fell (see, Rodriguez v. Manhattan Bronx Surface Tr. Operating Auth., supra; Ortola v. Bouvier, 110 A.D.2d 1077). That testimony, in conjunction with that of her husband, also established that Mrs. Diedrick's decision to proceed as she did was a voluntary one, and that alternate safe paths were available to her (see, Blye v Manhattan Bronx Surface Tr. Operating Auth., 72 N.Y.2d 888, 890, supra; cf., Miller v. Fernan, 73 N.Y.2d 844). Thus, the trial court properly granted the Transit Authority's motion for judgment in its favor.
We have considered the plaintiffs' remaining contentions and find them to be without merit. Thompson, J.P., Brown, Lawrence and Eiber, JJ., concur.