Defense Verdict In Bus Accident Reversed on Appeal

Evans v New York City Transit Authority, 2019 NYSlipOp 07872 (App. Div, 2d Dept) (Decided November 6, 2019)

Plaintiff stepped out of the rear door of a city bus and directly into a deep pothole, injuring her leg. The plaintiff had missed her stop and called out for the bus driver to let her off; he did, a few car lengths past the bus stop.

At trial, plaintiff testified that as she lay on the ground with one leg still on the bottom step of the rear exit, the bus began to pull away. A Transit Authority witness testified that this was impossible because buses are built with an interlock that prevents the bus from moving if the rear door is open, and he verified that the interlock on this bus was working.

The Kings County Supreme Court jury came back and found that the bus driver was negligent but that his negligence was not a proximate cause of the accident. Plaintiff appealed.

In summation, the plaintiff's counsel clarified that the plaintiff was "not claiming that the defendants closed the door on her and drove off," but rather, that the alleged negligence occurred when the driver "opened the doors in an area where there was a pothole." The Supreme Court instructed the jury that a bus company has a duty to provide passengers with a reasonably safe place to get on and off the bus (see PJI 2:166).

After the verdict was announced, the plaintiff made no oral or written motion to set aside the verdict. A judgment was entered in favor of the defendants dismissing the complaint insofar as asserted against them.

First, held the Appellate Division, we hold that there is no preservation requirement for this Court to review a weight of the evidence contention." CPLR 5501, the current statute governing the Court's scope of review on an appeal from a final judgment, imbues the Court with broad authority to review the facts: "The appellate division shall review questions of law and questions of fact on an appeal from a judgment" (CPLR 5501[c]).

As to the weight of the evidence, "A verdict in favor of a defendant should not be set aside as contrary to the weight of the evidence unless the evidence so preponderated in favor of the plaintiff that the verdict could not have been reached on any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744). "It is for the jury to make determinations as to the credibility of the witnesses, and deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses" (Scarpulla v Williams, 147 AD3d 1101).

A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.

"Here, it was logically impossible for the jury to conclude that Hill was negligent in failing to provide the plaintiff with a safe location to alight from the bus but that such negligence was not a proximate cause of the accident. It was uncontradicted that the plaintiff stepped directly from the bus into the pothole, and immediately fell to the ground. The unbroken chain of events was witnessed by... a neutral witness with no relationship or prior affiliation with the parties, and corroborated by photographs of the scene taken immediately after the accident occurred. Assuming, as the jury found, that Hill was negligent, it is logically impossible under the circumstances to find that such negligence was not a substantial factor in causing the accident. Under these circumstances, the issues of reasonable care and proximate cause were so inextricably interwoven that the jury's verdict could not have been reached upon any fair interpretation of the evidence. Accordingly, the plaintiff is entitled to a new trial."