Negligent Bus Discharge and Pick Ups

I fell and injured myself when I was trying to enter a bus. The bus driver did not pull up to the curb where the bus stop was located. Instead, he stopped in the lane of travel near the bus stop, approximately five to ten feet from the curb. When I left the curb to walk to the bus stop, I tripped and fell in a street pothole between the curb and the bus door. Can I sue the bus for my injuries?

Unfortunately, the best answer you can get at this point is probably. The law in this area is developed only in the Common Law. Common law is not a statute passed by the legislature and signed by the governor. The Common Law regarding buses in New York City has developed over decades with judicial decisions decided by the Supreme Court and the Appellate Courts. As explained in prior blogs, there is a legal principle of stare decisis which states that similar cases should yield similar results. This means each case is a little different and each case requires research to find a similar case.

First, there is a long line of cases which state that bus drivers have a duty to drop off and pick up passengers in a safe place. The next question would be if the bus driver discharged his duty by stopping so far away from the curb near a street pothole? The closest case to your facts is found in Defay v City of New York, et al, 174 AD3d 406, 101 NYS3d 603 (1st Dept. 2019). In that case, a gentleman fell in a Manhattan street pothole while walking from the bus stop curb to the bus. The pothole was in the pedestrian’s path walking from the curb to board the bus, approximately seven or eight feet away. This seems similar to your case. But ultimately it would be up to a jury to decide whether the bus driver was acting “reasonably” under the circumstances.

The careful attorney would not stop by suing the New York City Transit Authority. Because the City of New York, not the New York City Transit Authority, has the duty to maintain bus stops, streets, sidewalks and curbs. Therefore, the real issue might be whether the pedestrian entering the bus took the most direct route from the curb to the bus. The New York City Transit Authority may argue that there was no causal relationship between the street pothole and the place where the bus stopped. The Transit Authority may argue that the pedestrian did not take the most direct route from the curb to the bus door. Thus, The Transit Authority could argue that there was no causal relationship between the place where the bus driver stopped to pick up the pedestrian and the bus stop because the pothole was not in the most direct route.

So that is why the answer to the question is that you probably do have a claim against the bus; but your careful attorney will also sue the City of New York as well.

Accidents on Undeveloped Land

I was injured when I was driving an all-terrain vehicle (ATV) upstate. Can I bring a claim for my injuries?

You probably will not a claim for your injuries. Although, as explained later, there may be certain circumstances in which you can bring a claim, using ATVs generally exclude you from any claim against the landowner.

Although all landowners have the common law duty to all people on their land of “reasonable care.” (As mentioned in some of the prior blogs, a common law duty is imposed by Courts on certain people based on many Courts’ decisions over decades. These decisions over time become duties imposed on people subject to the Court’s jurisdiction.) The exception to the common law duties imposed by Courts can be found in statues enacted by the legislature and governor.

In this case, a private land owner has no obligation to keep a premises safe when the person on the land is engaging in certain recreational activities. General Obligations Law § 9-103. So if a person is injured on property while hunting, fishing, canoeing, trapping, hiking, boating, canoeing, horseback riding, bicycle riding, hang gliding, snowmobile operation and ATV riding, then the owner of the property has no obligation to make the land safe for any of these purposes. Thus, the property owner has no obligation to clear paths (and possible pave them) so an individual can safely ride an ATV.

There are exceptions to this rule. One exception would be if the landowner charged for people to ride ATVs on the land. But your question did not mention any fee was paid for permission to ride an ATV on the land. A second exception would be for some willful or malicious condition. Again, the question did not mention any concealed malicious trap set on the land to disrupt the ATV rider and cause injuries. It was just typical wooded upstate property.

This case becomes even more complicated if the accident occurred on New York State land. If the State of New York is a possible defendant, all claims must be brought in the Court of Claims (a separate Court different than the Supreme Court, the Court of Claims handles only cases against the State of New York). There are also short statute of limitations to bring claims against the State. All claims against the State must present a “Claim for Damages” followed by a filing of the lawsuit in the Court of Claims. The State also has certain defenses that an ordinary citizen or company does not have.

Exculpatory Clauses

My son was injured at a birthday party while rock wall climbing. Before he began to climb, I signed a waiver which said I would not sue the party venue. But, my son appers to have injured his shoulder badly when he fell. Can I sue the party venue anyway?

The short answer is probably. General Obligations Law section 5-326 voids any agreement purporting to prevent lawsuits against venues that offer public amusement. Assuming that you paid a fee for your son to rock wall climb and you signed that waiver at the time you paid a fee, you can bring a claim against the owner of the facility.

But just because you can sue does not mean you will win a settlement. You still must show the rock wall climbing facility was at fault for your son’s accident. For example, if your son was hurt because the spotters holding the safety rope for your son was negligent, then you would have a claim. Similarly, you would have a claim if there was a malfunction with the safety rope or any other circumstance within the control of the rock wall climbing facility.

There may be other considerations for young children and high schoolers playing organized sports. The legal doctrine of assumption of risk may affect the ability to bring a successful claim. This issue was briefly addressed in a prior post concerning injuries at school and will be addressed in a future post in more detail.

Notice to Insurance Carrier

“I received a letter from an attorney notifying me that someone fell outside my home when I wasn’t there. The letter is asking me to turn it over to my homeowner’s insurance carrier.  But why should I do that if I don’t even know if the accident really took place? Won’t my homeowner’s insurance rate go up?”

Yes, you should turn the letter over to your homeowner’s insurance carrier. The whole point of having homeowner’s insurance is to cover you for losses that arise on your property, even if you are not there. The insurance carrier has an entire claims department, eager to investigate the claim against you. The carrier also have attorneys that they are paying that will defend if the case against you goes to court. And, if you have a damages judgment entered against you, the carrier will indmenify you for your loss.

You should not worry about your insurance rate, you should worry about giving your insurance carrier timely notice of the claim against you. If you do not turn the letter over to your insurance carrier, you may lose the right to have the carrier investigate and defend the claim against you. All policies insist that the carrier receive timely notice of any potential claims against you covered by the policy. If you fail to turn over that letter from the attorney to your insurance company, and then, you receive a summons a year later, you could be facing a disclaimer.  A disclaimer means, you pay for your own lawyer and investigator and you pay any judgments against you.

The risk is not worth it.  It is much easier to fight a rate hike assesed against you for a bogus claim, than it is to fight the insurane carrier to defend you in a lawsuit because you failed to give it timely notice.

Worn Steps

“I fell inside my building on interior stairs while I was walking to my apartment. There was nothing on the stairs, but the building is old and the steps are quite worn. Do I have a case?”

You might have a case, depending upon how worn are the steps and and if that wear created a hazzardous condition on which to walk.  This is the type of defect of which our office would make a personal inspection and possibly hire an expert to examine the steps and take measurements.

Even though you may have walked up these stairs many hundreds or thousands of times, if the stairs are in such a condition so as to create a hazardous condition, then your landlord would be responsible for maintaining the stairs in a safe and passable condition.  Whatever your injuries are, we advise all of clients to go to the doctor and follow your trusted physician’s instructions so you can recover from your injuries.