Opinion
No. CV02-0175182S
May 20, 2004
MEMORANDUM OF DECISION
FACTS
The court finds the following facts based on the credible evidence offered at trial. The plaintiff's daughter is a Pop Warner cheerleader for the Waterbury Knights. On Saturday, November 25, 2000, in Waterbury, the plaintiff, Carter, and about forty other parents, children and coaches boarded a Laidlaw bus bound for Rhode Island to attend a Pop Warner cheerleading competition that was held on Sunday, November 26, 2000. Wedderburn was the driver of this bus. After arriving in Rhode Island, Wedderburn parked the bus on the street in front of the hotel where the cheerleading squad and parents stayed Saturday night. On Sunday afternoon, before the competition, the cheerleading team and parents boarded the Laidlaw bus, which was still parked in the street in front of the hotel, to attend a meeting that lasted twenty-five minutes. The meeting concluded and as Carter was disembarking from the bus, she took hold of the handrail, slipped on a wet step, fell and suffered injuries.
On the date of the accident it rained steadily from about 8:00 a.m. to 8:00 p.m. and the bus was not protected by any type of shelter. Carter knew before she alighted and fell that it had been raining and the stairs were wet. There were no observable puddles of water on the steps; the steps simply were wet with rain water tracked in by meeting attendees. Wedderburn as well knew the steps were wet prior to the accident and did not warn the passengers of this fact, however, the bus was equipped with a sign warning passengers generally to watch their step. Additional facts will be set forth as necessary.
In lieu of closing arguments, the parties were to submit written memoranda of law to the court by April 12, 2004. In addition, the court advised both sides, in their memoranda of law, to brief the issue of what standard of care is applicable to the present facts. Carter argues that the appropriate standard of care is that of a common carrier as set forth in General Statutes § 52-557c. Laidlaw/Wedderburn contend that the standard of care is one of reasonableness. Laidlaw/Wedderburn submitted a reply memorandum on April 21, 2004.
DISCUSSION
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Citations omitted; internal quotation marks omitted.) Ryan Transportation, Inc. v. MG Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003).
General Statutes § 52-557c states: "Standard of care applicable to owners and operators of school buses. The standard of care applicable to the owners and operators of any school bus, as defined in section 14-275, or of any motor vehicle registered as a service bus transporting children to and from school or school activities, private or public campus or any other activities concerning the transportation of groups of children shall be the same as the standard of care applicable to common carriers of passengers for hire."
"Following the decision in Hunt v. Clifford, 152 Conn. 540, 545, 209 A.2d 182 [(1965)], in which [the Supreme Court] held that a school bus company was not a common carrier for purposes of determining the applicable standard of care, the legislature enacted Public Acts 1965, No. 303 2, codified in 52-557c of the General Statutes, which made the standard of care applicable to school bus operators the same as that applicable to common carriers of passengers for hire." Josephson v. Meyers, 180 Conn. 302, 305 n. 3, 429 A.2d 877 (1980).
The definition of "school bus' in General Statutes § 14-275 is detailed and extensive. Neither side has addressed in their memoranda whether the accident occurred on the stairs of a school bus as defined by § 14-275 and no motor vehicle registration has been produced. Carter did testify that the bus in question was a "Laidlaw yellow school bus." Laidlaw/Wedderburn did not challenge Carter's description of the bus. Carter, in her amended complaint, characterized Laidlaw as "a transportation company." Common experience would suggest that a Laidlaw yellow school bus carrying children, coaches and parents to a Pop Warner cheerleading competition is a service bus that transports children, and neither party raised this as an issue.
Statutes § 14-275 states, in relevant part:
(a) The term "school bus" means any motor bus painted, constructed, equipped and registered as hereinafter provided, which is regularly used for transporting school children to and from school or school activities whether or not for compensation or under contract to provide such service. No vehicle shall be registered as a school bus unless it complies with all requirements of sections 14-275 to 14-281, inclusive, as to color, markings, equipment and inspection, and each such vehicle shall be inspected prior to such registration in accordance with regulations prescribed by the Commissioner of Motor Vehicles . . .
b) Each school bus shall be painted a uniform yellow color known as "National School Bus Glossy Yellow," except for the fenders and trim which may be painted black and the roof which may be painted white, and shall have conspicuously painted on the rear and on the front thereof, in black lettering of a size to be determined by the Commissioner of Motor Vehicles, the words "School Bus-Stop on Signal," except that each school bus equipped with an eight-light warning system shall have the words "School Bus" painted on the rear and on the front thereof in such lettering.
(c) Each school bus shall be equipped with special automatic, electrically-operated flashing stop signals, which shall be independent and separate from the braking, stop and tail lights of standard equipment. Such flashing lights may include automatic traffic signaling devices showing red and amber lights and shall be so located that adequate warning will be afforded to both oncoming and overtaking traffic, except that each school bus manufactured on and after October 1, 1984, and registered for use in this state shall be equipped with an eight-light warning system, showing two red flashing stop signals and two amber flashing warning signals on the front and rear of the bus, and a stop semaphore . . .
On January 14, 2003, the defendants filed an answer to the plaintiff's original complaint, filed on November 19, 2002, in which they admit that Laidlaw is a transportation company. The defendants never submitted an answer to the plaintiff's amended complaint.
Section 52-557c dictates that the standard of care applicable to common carriers of passengers for hire applies to a service bus that is involved in the transportation of groups of children. Accordingly, § 52-557c is pertinent to the present facts and a common carrier standard of care will be applied.
"[A] common carrier of passengers for-hire has the duty to use the utmost care consistent with the nature of its business to guard its passengers against all dangers which might reasonably and naturally be expected to occur, in view of all the circumstances, and this high degree of care is required during the period of a passenger's alighting as well as during transportation." Parlato v. Connecticut Transit, 181 Conn. 66, 67, 434 A.2d 322 (1980); see also Roden v. Connecticut Co., 113 Con. 408, 410, 155 A. 721 (1931). "The duty [a common carrier owes] to its passengers may, under certain circumstances, include giving a warning of dangerous conditions or of impending peril . . . But it is unquestionably the duty of the carrier to provide its passengers with a reasonably safe place to alight." (Citations omitted.) Josephson v. Meyers, 180 Conn. 302, 305, 429 A.2d 877 (1980). "Fixing the boundaries of that duty with respect to any particular set of circumstances is the responsibility of the courts. This involves a very delicate balancing of such circumstances as logic, common sense, science and public policy." (Internal quotation marks omitted.) Garcia v. Connecticut Transit Co., Superior Court, judicial district of New Haven at New Haven, Docket No. 400885 (January 21, 1999, Levin, J.), quoting Blye v. Manhattan and Bronx Surface Transit Operating Authority, 124 App.Div.2d 106, 108-09, 511 N.Y.S.2d 612 (1987). Wint v. City of Bridgeport, No. CV98 035 66 25 S (Oct. 27, 2000) 2000 Ct. Sup. 13371, 28 Conn. L. Rptr. 511.
In her amended complaint and during oral argument, Carter argued that Laidlaw/Wedderburn were negligent in that they did not warn Carter of the dangerous condition, knew of the accumulating water on the stairs and failed to correct the defect and did not have a policy in effect on how to deal with wet steps.
"The general rule . . . is that the carrier is bound to warn passengers of a danger when the circumstances are such that the carrier ought reasonably to foresee that it exists and that a passenger would not, in the exercise of reasonable care, be likely to observe and apprehend it." Bowes v. New England Transportation Co., supra, 126 Conn. 205. In Bowes, the plaintiff was injured on a bus when she bumped her head against the luggage rack above her seat as she stood up prior to getting off. Id., 201. In that case, the Supreme Court stated that "the plaintiff had not only looked at [the] very rack when taking her seat but also was familiar with its position from previous use of racks similarly placed, it is apparent that the defendant's failure to warn was not a substantial factor in causing the plaintiff's injuries . . ." Id., 205. The Supreme Court further stated that "whatever danger there was, was so entirely obvious and apparent that any warning would have been superfluous and uncalled for." Id., 204. Nevertheless, a common carrier is not "an insurer of the plaintiff's safety." Bowes at 205.
The facts of McCarthy v. The Connecticut Co., 13 Conn. Sup. 35 (1944), are similar to the facts in the present action. In McCarthy the plaintiff, while boarding a bus, saw snow and ice on the step, then, prior to alighting, she looked at the step, saw that it was still covered in snow and ice and knew that the step was slippery and dangerous. Id., 37. The plaintiff subsequently slipped on the snow and ice-covered step, fell and suffered injuries. Id. There was no evidence that the driver knew the step was slippery. Id. The McCarthy court stated that "negligence cannot be predicated on the part of the defendant because of any failure to give a warning since [the] plaintiff herself testified that she knew of the condition of the step and that it was slippery and dangerous." Id., 38. The court continued stating that if the plaintiff "knew of the condition of the step when she boarded the bus and before she alighted she again noticed its slippery and dangerous condition, she might in the exercise of reasonable care have called upon the driver to assist her or request that the slippery condition be remedied, but she chose voluntarily to make the adventure." Id. See also Hammer v. Academy Bus Tours, Inc., United States District Court, 2001 U.S. Dist. LEXIS 17931, * 14 (S.D.N.Y. November 5, 2001) (stating that passengers tracked moisture onto the bus from the snow that was on the ground outside and/or from the snow that was falling, and the plaintiff's slip on the wet stairs, while unfortunate, was not the result of any negligence on the defendants' part); Byrne v. Connecticut Co., 123 Conn. 304, 305-06, 195 A. 184 (1937) (stating that negligence could net be predicated on the bus driver's failure to warn the plaintiff, because the plaintiff saw the ice on the step before she stepped on it and fell).
It is submitted that even though Wedderburn knew the steps were wet and did not warn the passengers, Carter, in exercising reasonable care, would have had to observe and apprehend the steady rainy weather and wet steps, and in fact testified that she had. Carter saw the stairs were wet prior to walking down them and claims that this wetness caused her to fall. Carter did not request assistance from the bus driver or that the steps be wiped down, however, she did testify that she used the right handrail while attempting to alight. The bus was equipped with a sign generally warning passengers to watch their step and that sign was visible as passengers exited the bus. Carter, furthermore, failed to submit any evidence that suggests there was more water on the steps of the bus than would ordinarily be brought in by forty passengers on a rainy day. Carter testified that after she fell her clothes were "a little wet" but not damp or soaked through. During cross examination, Carter was asked if she noticed an accumulation of water or a puddle on the steps and her response was that the "stairs were wet." For the foregoing reasons, "whatever danger there was, was so entirely obvious and apparent that any warning would have been superfluous and uncalled for." Bowes v. New England Transportation Co., supra, 126 Conn. 204.
Carter avers that Wedderburn should have wiped down the wet stairs prior to her exiting the bus. Translated into terms of duty, this would mean that Wedderburn was under an obligation to wipe down the stairs every time they became wet and a passenger was about to exit. On a rainy day, this alleged duty could extrapolate into constant drying activity on the part of the bus driver. A bus is designed, of course, to accept boarding and alighting passengers while it is raining. Wedderburn testified that the metal steps of the bus were outfitted with rubber "gripping" and lights. On the day of the accident, it was raining and Wedderburn opened and closed the bus door as people sporadically boarded to attend the twenty-five minute meeting. The boarding passengers were inevitably going to track rainwater onto the steps and into the bus, then, alighting passengers would track some of that same water back through the bus and down the stairs. Under these conditions, a duty to wipe down the steps as they became wet is too high a measure of care to impose upon the defendants. See Byrne v. Connecticut Co., supra, 123 Conn. 307.
As for Carter's contention that Laidlaw should have had a policy in place to deal with wet steps, Wedderburn testified that according to Laidlaw policy, she was required to remove any obstruction on the steps, and on the date of the accident there was nothing to remove because there was no pooling of water, the "steps were just wet from people getting on and off" the bus. Carter never testified that there was a pool of water on the steps, only that they were wet. Carter did not inform the court on what the specifics of a policy on wet steps should include or how not having one breached a duty owed to her. Consequently, it is submitted that after applying the common carrier's higher standard of care to the defendants, the defendants did not breach any duty owed to the plaintiff on the date of the accident.
Wedderburn also testified that the bus always receives a pre-trip inspection, which she conducted prior to leaving Waterbury on Saturday, November 25, 2000. Wedderburn did not conduct the inspection on Sunday afternoon prior to the accident because the bus was not going anywhere.
ALVORD, J.