Bruce v. Hasbrouk ( 1994 )

OPINION OF THE COURT

White, J.

When Lisa Bruce boarded her school bus on June 15, 1990, at the designated stop located at Tom’s Taxidermy on the east side of U.S. Route 209 in the Town of Wawarsing, Ulster County, she told the school bus driver, defendant Lisa Mulford, that her sister Jennifer, then age nine, was not ready and was going to catch the bus at an undesignated stop on the west side of Route 209 across from Tom’s Taxidermy. After Lisa boarded the bus, Mulford continued northward on Route 209 for one-half mile, then turned around and proceeded south. As she did so, she noticed that cars were backed up on the roadway. She soon learned that there had been an accident involving Jennifer who, while attempting to cross Route 209, was struck by a northbound vehicle operated by defendant Roslyn R. Hasbrouk.

Thereafter, plaintiffs commenced this personal injury action against defendant Ellenville Central School District No. 2 (hereinafter the School District), Mulford and defendant Shawanga Bus Company (hereinafter collectively referred to as Shawanga), the assignee of a contract to provide school bus transportation for the School District’s students. Following discovery, the School District and Shawanga moved for summary judgment. Supreme Court granted the motions, finding, in essence, that these defendants did not breach the duty of care they owed to Jennifer. Plaintiffs appeal.

The seminal case defining the extent of a school district’s duty to the students it transports on its school buses is Pratt v Robinson (39 NY2d 554). The duty established therein is that a school district must transport its students in a careful and prudent manner, which duty continues until the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child’s protection (supra, at 561).

Despite our observation in Di Cerbo v Raab (132 AD2d 763) that a school district’s duty does not begin and end when a student approaches and leaves the assigned bus stop, a school district’s duty has not been extended to situations where the student was not in its physical custody. This is illustrated by Fornaro v Kerry (139 AD2d 561), where it was held that a school district did not owe a duty to prevent older students from mingling with younger ones at the same bus stop (see also, Bodaness v Staten Is. Aid, 170 AD2d 637). Likewise, a duty was not found when a student, contrary to school rules, left the school bus with the driver’s knowledge and was subsequently injured while riding in a fellow student’s car (see, Bushnell v Berne-Knox-Westerlo School Dist., Sup Ct, Albany County, Dec. 17, 1985, Hughes, J., affd 125 AD2d 859, lv denied 69 NY2d 609; see also, Hurlburt v Noxon, 149 Misc 2d 374).

As it is undisputed that Jennifer was never within the School District’s physical custody nor within its orbit of authority, we find that it did not breach the duty of care it owed Jennifer particularly since it appears that the School District was unaware that students were boarding the bus at this undesignated stop.

When a school district designates a particular location as a bus stop it performs a governmental function (see, Miller v State of New York, 62 NY2d 506, 512). It is firmly established that public entities are immune from tort claims arising out of the performance of their governmental functions unless the plaintiff establishes a special relationship with the public entity (see, Bonner v City of New York, 73 NY2d 930, 932; Brady v Board of Educ., 197 AD2d 655; Perry v Board of Educ., 189 AD2d 939). Plaintiffs have not established such a relationship as they have not shown that the School District affirmatively took some action on their behalf which it communicated to them and upon which they relied to their detriment (see, Cuffy v City of New York, 69 NY2d 255, 260). For the same reason, plaintiffs’ argument that the School District is liable in light of its failure to promulgate or enforce no-cross safety rules with respect to Route 209 lacks merit. Thus, we conclude that there is no basis to impose liability upon the School District for its alleged negligence in performing a governmental function. In short, a balance must be maintained between providing a remedy to every injured party and extending exposure to tort liability almost without limitation (see, De Angelis v Lutheran Med. Ctr., 58 NY2d 1053).

Turning to Shawanga, the record shows that for two years prior to the accident in issue, it was common practice for it to pick up students who had crossed Route 209 after missing the bus at the designated stop in front of Tom’s Taxidermy. Shawanga contends that this conduct did not breach the duty of reasonable care it owed Jennifer (see, Nichter v Hartley, 192 AD2d 842; Sewar v Gagliardi Bros. Serv., 69 AD2d 281, affd 51 NY2d 752). We disagree since a trier of fact could find that a reasonably prudent school bus operator would not have engaged in such practice because of the obvious risk it presented to children attempting to cross Route 209, a heavily traveled highway with a 55-mile-per-hour speed limit (see, Palsgraf v Long Is. R. R. Co., 248 NY 339). Accordingly, Supreme Court erred in granting its motion for summary judgment.

The fact that liability may be imposed upon Shawanga does not render the School District vicariously liable since it is undisputed that Shawanga was an independent contractor (see, Chainani v Board of Educ., 201 AD2d 693).