| Rayford v County of Westchester |
| 2009 NY Slip Op 01095 [59 AD3d 508] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Linda D. Rayford, Respondent, v County of Westchester etal., Appellants. |
—[*1]
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Westchester County (Lefkowitz, J.), dated November 19, 2007, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The plaintiff allegedly sustained personal injuries when the bus in which she was ridingmade a jerking motion. The plaintiff testified at her deposition that, as a result of the movementof the bus, she fell from where she had been standing, next to the steps leading to the front doorof the vehicle, and landed on the steps, with her legs partially hanging out of the opened frontdoor. She further testified that several days earlier, there had been a significant snowfall in thearea where the accident occurred.
To establish a prima facie case of negligence against a common carrier for injuries sustainedby a passenger as a result of the movement of the vehicle, the plaintiff must establish that themovement consisted of a jerk or lurch that was " 'unusual or violent' " (Urquhart v New YorkCity Tr. Auth., 85 NY2d 828, 830 [1995], quoting Trudell v New York R.T. Corp.,281 NY 82, 85 [1939]; see Golub vNew York City Tr. Auth., 40 AD3d 581, 582 [2007]). The nature of the incident, inwhich the plaintiff, according to her deposition testimony, was merely caused to land on thesteps next to where she had been standing, was not, in itself, sufficient to provide the objectivesupport necessary to demonstrate that the movement of the bus was "unusual or violent," and ofa "different class than the jerks and jolts commonly experienced in city bus travel" (Urquhartv New York City Tr. Auth., 85 NY2d at 830).[*2]
As an additional basis for liability, the plaintiff claimsthat her accident was proximately caused by the defendants' negligence in allowing an inordinateamount of water to accumulate on the aisle and steps of the bus. However, the evidencesubmitted by the defendants established that any such failure on their part did not breach a dutyowed to the plaintiff, since, under the weather conditions which existed at the time of theaccident, it would be unreasonable to expect the defendants to constantly clean the floor of theirbuses (see McKenzie v County ofWestchester, 38 AD3d 855, 856 [2007]).
In opposition to the defendants' submissions establishing, prima facie, their entitlement tojudgment as matter of law, the plaintiff failed to raise a triable issue of fact with regard to eitherclaim of negligence (see CPLR 3212 [b]; Zuckerman v City of New York, 49NY2d 557, 562 [1980]). Accordingly, the Supreme Court should have granted the defendants'motion for summary judgment dismissing the complaint. Prudenti, P.J., Dillon, Eng andLeventhal, JJ., concur.