A car struck my son when he was crossing the street. My son takes the school bus home. When he was discharged from the school bus, he had crossed in front of the school bus and before he finished crossing the street, the school bus driver had turned off the flashing red light and retracted the stop sign on the bus and began to drive away. A car going in the opposite direction of the bus hit my son. What claims does my son have?
No Fault Claim
The first claim that your son has is for medical expenses. You should notify the no-fault carrier of your son’s pending claim. In this particular case, the no fault carrier would be the carrier insuring the vehicle that struck your son. The no-fault carrier has an obligation to send you a no fault application. You should fill out this application and submit it to the insurance company within 30 days of the date of your son’s accident.
Personal injury claim
You have two potential defendants for your son’s case for personal injuries. The first defendant would be the driver who was driving the vehicle that struck your son. As mentioned in a prior post, drivers have a statutory duty to see what there is to be seen and avoid pedestrians. NY Vehicle and Traffic Law § 1146. In this case, even though your son may not have been crossing in a crosswalk to get home, the driver that struck him had a duty to keep a lookout and avoid pedestrians in the roadway. This is especially true where there is a school bus discharging children.
Duty of School Bus Driver
School bus drivers have a particular duty to their student passengers: “Whether such passengers are crossing such highway street or private road or discharging to the same side of such highway, street or private road, the driver of such bus shall keep such school bus halted with red signal lights flashing until such passengers are at least fifteen feet from the bus and either off the highway, street or private road or on a sidewalk.” NY Vehicle and Traffic Law § 1174(b).
From what you described, as soon as your son crossed in front of the bus, the bus driver took off without waiting for your son to cross the street to the opposite sidewalk. This is a violation of the Vehicle and Traffic Law. NY Vehicle and Traffic Law § 1174(b).
Furthermore, since the bus driver failed to leave the flashing red lights on and the stop sign visible to drivers until your son had completely crossed the street, your son is not liable for this accident. Violation of section 1174(b) of the NY Vehicle and Traffic Law results in absolute liability for the student pedestrian. The court may aportion some responsibility for the accident to the driver that struck your son. But your son will not be found responsible for this accident. Chainani by Chainani v. Board of Educ. of City of New York, 87 N.Y.2d 370, 639 N.Y.S.2d 971 (1995).
Duty of School
You may possibly have a claim against the school. However, if your son is a student of the New York City Public School system, he will not have a claim against the City of New York. The public school system contracts out transportation of students to and from school to private bus companies. Actions of an employee of a private bus company cannot be imputed to the City of New York. However, some private schools have their own school buses and provide transportation to and from their institution. You possibly could have a claim against a private school if they provide transportation.
However, if the school contracts for student transportation with a private bus company, the school would not be responsible for the actions of the school bus driver unless it has notice of ongoing safety violations. See Chainani by Chainani v. Board of Educ. of City of New York, 87 N.Y.2d 370, 639 N.Y.S.2d 971 (1995).
By James Santner, Esq.
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