My mother was involved in an accident exiting a bus. She is 79 years old and fell while she was walking down the steps out of the bus. I know that the bus driver did not lower the bus when she was exiting. Can I sue the bus driver for negligence?
The answer to this question is going to be long and complicated. You correctly point out that the bus driver does have a duty to make sure that he safely discharges his passengers. However, your question refers to an hydraulic system which physically lowers a bus step to allow disabled passengers to safely exit the bus. This is known as a kneeling bus.
Unfortunately, there is no simple answer to say under what circumstances a bus driver must activate the kneeling bus.
Industry Safety Standards
In a prior post, I noted that an injured party can offer evidence of generally accepted industry standard of safety. In your mother’s case, an expert would have to testify that the general industry standard was for a bus driver to activate the kneeling bus. Rubio v NYC Transit Authority, 99 A.D.3d 532 952 N.Y.S.2d 512 (1st Dept. 2012). Failure of the expert witness to make reference to generally accepted safety standards in the industry will lead to dismissal. Carlino v Tri Borough Coach Corp., 22 A.D.3d 624 803 N.Y.S.2d 105 (2d Dept. 2005).
Passenger’s Disability
In addition to industry safety standards, the injured party must prove that they either asked for the kneeling bus to be engaged or that the injured person appeared unable to exit the bus safely.
There is no clear guide from the courts about what a disabled passenger looks like which would necessitate the use of the kneeling bus. Each case takes one particular fact and emphasizes that particular element to justify either a dismissal or a successful conclusion of a case.
Survey of Cases
In Trainer v NYC Transit Authority, 41 A.D.3d 202, 838 N.Y.S.2d 512 (1st Dept. 2007), the court dismissed the case of a 77-year-old plaintiff who did not appear disabled when she was injured while exiting the bus. The Court’s decision relied on the fact that the plaintiff did not ask for assistance.
In another case, a court dismissed the case of an 87-year-old passenger when she was injured entering a bus. Kasper v Metropolitan Transit Authority, 90 A.D.3d 998, 935 N.Y.S.2d 645 (2d Dept. 2012). The Court emphasized that the plaintiff would take the bus every few weeks to attend a senior social dance. (There was no evidence that this 87-year-old actually danced. The opinion does not state if the plaintiff had just gone to these gatherings to socialize.) However, because the plaintiff was able to go to stores and social gatherings, the Court reasoned that the bus driver had no duty to engage the kneeling device because the plaintiff did not appear disabled and did not ask for assistance.
Finally, in Saidoff v New York City Transit Authority, 105 A.D.3d 726, 963 N.Y.S.2d 157 ( 2d Dept. 2013), the injured plaintiff was a 67-year-old woman who was injured entering a bus. She also did not ask for the bus driver to activate the kneeling device. However, she also testified in her deposition that she misjudged the height of the step when she was entering the vehicle.
Conclusion
The common theme in all of these cases is the passenger’s appearance of a disability and if the passenger asked the bus driver to engage the kneeling device. However, the courts do not say what the appearance of a disabled person actually looks like.
In response to your question, the only thing that I can say is that there are two elements to a claim against the bus driver for failing to engage a kneeling device. The first element is evidence that it was the industry safety standard to engage a kneeling device under the circumstances. Second, is that the passenger either asked for or appeared to need the assistance of a kneeling device.
By James Santner, Esq.
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