SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF...
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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF BRONX------------------------------------------x
SHAMICKA RAMIREZ, IN INFANT BY HER MOTHERAND NATURAL GUARDIAN ANNETTE SANTIAGO, ANDANNETTE SANTIAGO, INDIVIDUALLY,
Plaintiff(s),
- against -
THE CITY OF NEW YORK, NEW YORK CITYDEPARTMENT OF EDUCATION, NEW YORK CITYDEPARTMENT OF EDUCATION OFFICE OF PUPILTRANSPORTATION, IS 174 EUGENE T. MALESKACAMPUS SCHOOL, SHARON DELANEY, BARBARALIOTTA, JANET STURGIS, AND IESHA JONES,RAINBOW TRANSIT, INC.,
Defendant(s).----------------------------------------x
DECISION AND ORDER
Index No: 350312/08
In this action for, inter alia, the negligent supervision
of a student - such negligent supervision resulting in an
alleged accident - defendant RAINBOW TRANSIT, INC. (Rainbow)
moves seeking an order granting it summary judgment as to
plaintiffs’ claims and all cross-claims asserted by co-
defendants. Rainbow avers that summary judgment is warranted
inasmuch as it properly discharged all the obligations imposed
by law - namely safely transporting plaintiff SHAMICKA RAMIREZ
(Ramirez) to school, safely discharging her from its school bus
and transferring her custody to defendant the NEW YORK CITY
DEPARTMENT OF EDUCATION (DOE). Accordingly, Rainbow avers that
it was not negligent and that therefore it cannot be held liable
for Ramirez’ alleged accident, namely, her slip and fall on snow
and water within the premises owned, managed, and maintained by
DOE. Plaintiffs oppose Rainbow’s motion, averring that inasmuch
as a version of the facts borne out by the evidence submitted by
Rainbow establishes that Rainbow not only failed to provide
Ramirez with a safe place to alight from its school bus, but
that Rainbow also discharged her from its school bus despite the
absence of any DOE employees who could assume custody over her,
Rainbow breached the duty of care imposed upon it by law.
Accordingly, plaintiffs aver that Rainbow’s own evidence raises
several material issues of fact which, thus, preclude summary
judgment. DOE and the other defendants oppose Rainbow’s motion
for the very same reasons asserted by plaintiffs.
For the reasons that follow hereinafter, Rainbow’s motion
is hereby denied.
The instant action is for alleged personal injuries
sustained by Ramirez as a result of, inter alia, defendants’
negligence in failing to properly and adequately supervise her.
Specifically, the complaint alleges that on February 14, 2007, a
snowy day, Ramirez, a student at IS 174 - a public school owned,
operated, and maintained by DOE - slipped and fell on snow and
water just inside one of the entrances to IS 174. Plaintiffs
allege that shortly before her alleged fall, Ramirez, who was
afflicted with cerebral palsy and its resulting orthopedic
impairments - including the need to wear leg braces - had been
transported to IS 174 by Rainbow within its school bus, had been
discharged from the bus at a location other than the one
adjacent to the handicap ramp, and was allowed to walk to and
into IS 174 unaided. Thus, the complaint alleges that the
foregoing conduct by Rainbow as well as DOE’s failure provide
personnel to escort and aide Ramirez inside constitutes
negligence, which negligence caused Ramirez’ accident and the
injuries resulting therefrom. More specifically, as against
Rainbow, the complaint alleges that it had been retained by DOE
and defendant the CITY OF NEW YORK (the City) to provide
transportation services to DOE’s students with special needs
pursuant to a written agreement. Rainbow, was required, through
its personnel, to drop Ramirez off at the handicap ramp, aid her
in alighting from its school bus, and only discharge her to the
custody of DOE employees. Plaintiffs allege that on date of the
instant accident, Rainbow acted negligently in that it breached
the duties owed to Ramirez, such breach proximately causing her
accident. As against the DOE, the City, and defendants SHARON
DELANEY (Delaney) - principal at IS 174, BARBARA LIOTTA
(Lioatta) - vice principal at IS 174, JANET STURGIS (Sturgis) -
Ramirez’ teacher at IS 174, and IYESHA JONES (Jones) - Ramirez’
paraprofessional at IS 174, plaintiffs allege that they
negligently failed to abide by Ramirez’ individualized education
plan which required that due to her physical limitations, she be
escorted and aided when entering IS 174. Plaintiffs allege that
the foregoing negligence proximately caused Ramirez’ accident.
Plaintiff ANNETTE SANTIAGO (Santiago) alleges a derivative loss
of services claim, alleging that as Ramirez’ mother, she
sustained damages as a result of defendants’ negligence.
The proponent of a motion for summary judgment carries the
initial burden of tendering sufficient admissible evidence to
demonstrate the absence of a material issue of fact as a matter
of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986];
Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a
defendant seeking summary judgment must establish prima facie
entitlement to such relief as a matter of law by affirmatively
demonstrating, with evidence, the merits of the claim or
defense, and not merely by pointing to gaps in plaintiff’s proof
(Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v
New York City Transit Authority, 304 AD2d 634, 634 [2d Dept
2003]). There is no requirement that the proof be submitted by
affidavit, but rather that all evidence proffered be in
admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept
2001], revd on other grounds Ortiz v City of New York, 67 AD3d
21, 25 [1st Dept 2009]).
Once movant meets his initial burden on summary judgment,
the burden shifts to the opponent who must then produce
sufficient evidence, generally also in admissible form, to
establish the existence of a triable issue of fact (Zuckerman at
562). It is worth noting, however, that while the movant’s
burden to proffer evidence in admissible form is absolute, the
opponent’s burden is not. As noted by the Court of Appeals,
[t]o obtain summary judgment it isnecessary that the movant establish hiscause of action or defense sufficientlyto warrant the court as a matter of lawin directing summary judgment in hisfavor, and he must do so by the tenderof evidentiary proof in admissibleform. On the other hand, to defeat amotion for summary judgment theopposing party must show factssufficient to require a trial of anyissue of fact. Normally if theopponent is to succeed in defeating asummary judgment motion, he too, mustmake his showing by producingevidentiary proof in admissible form.The rule with respect to defeating amotion for summary judgment, however,is more flexible, for the opposingparty, as contrasted with the movant,may be permitted to demonstrateacceptable excuse for his failure tomeet strict requirement of tender inadmissible form. Whether the excuseoffered will be acceptable must dependon the circumstances in the particularcase
(Friends of Animals v Associated Fur Manufacturers, Inc., 46
NY2d 1065, 1067-1068 [1979] [internal citations omitted]).
Accordingly, generally, if the opponent of a motion for summary
judgment seeks to have the court consider inadmissible evidence,
he must proffer an excuse for failing to submit evidence in
inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st
Dept 1999]).
Moreover, when deciding a summary judgment motion the role
of the Court is to make determinations as to the existence of
bonafide issues of fact and not to delve into or resolve issues
of credibility. As the Court stated in Knepka v Talman (278
AD2d 811, 811 [4th Dept 2000]),
Supreme Court erred in resolving issuesof credibility in granting defendants’motion for summary judgment dismissingthe complaint. Any inconsistenciesbetween the deposition testimony ofplaintiffs and their affidavitssubmitted in opposition to the motionpresent issues for trial
(see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept
1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st
Dept 2001]). Accordingly, the Court’s function when determining
a motion for summary judgment is issue finding not issue
determination (Sillman v Twentieth Century Fox Film Corp., 3
NY2d 395, 404 [1957]). When the proponent of a motion for
summary judgment fails to establish prima facie entititlment to
summary judgment, denial of the motion is required “regardless
of the sufficiency of the opposing papers” (Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Rainbow’s motion is hereby denied insofar as it fails to
establish prima facie entitlement to summary judgment. Contrary
to Rainbow’s assertion, the very evidence it submits in support
of its motion, if credited, establishes that, and could lead a
jury to conclude that Rainbow breached the heightened common law
duty of care it owed Ramirez, such breach proximately causing
her injuries and, thus, establishing Rainbow’s liability.
Specifically, while the evidence does paint diverging facts, one
version establishes that Rainbow, through its employees,
discharged Ramirez, who was physically disabled and had trouble
ambulating, from its bus, on a snowy day, at or near IS 174,
despite the absence of any school personnel willing to assume
custody over her and escort her inside. Despite the foregoing,
the evidence establishes that Rainbow nevertheless discharged
Ramirez from its bus, left her there, divesting itself of
custody over her.
It is well settled, that “[a] common carrier owes a duty to
an alighting passenger to stop at a place where the passenger
may safely disembark and leave the area” (Miller v Fernan,73
NY2d 844, 846 [1988]; Smith v Sherwood, 16 NY3d 130, 133 [2011];
Fagan v Atlantic Coast Line R.R. Co., 220 NY 301, 306 [1917];
Kasper v Metropolitan Transp. Authority Long Island Bus, 90 AD3d
998, 999 [2d Dept 2011]). Thus, any duty owed by a common
carrier to its passengers generally ends upon that passenger’s
exit from the common carrier’s vehicle (Wisoff v County of
Westchester, 296 AD2d 402, 402 [2d Dept 2002] [“duty to the
infant plaintiff as a passenger terminated when the infant
plaintiff alighted safely onto the sidewalk”]; Sigmond v Liberty
Lines Transit, Inc., 261 AD2d 385. 387 [2d Dept 1999]).
However, because it is well settled that the duty of a common
carrier with respect to its passengers also requires it to
exercise “reasonable and commensurate care in view of the
dangers to be apprehended” (Shahzaman by Shahzaman v Green Bus
Lines Co., 214 AD2d 722, 723 [2d Dept 1995]; Fagan at 306; Blye
v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106,
109 [1st Dept 1987]), when the common carrier is aware that a
passenger has limitations, the duty of care is heightened,
requiring that the common carrier exercise “special care and
attention beyond that given to the ordinary passenger [and]
which reasonable prudence and care demand[] for his exemption
from injury” Fagan at 307; Kasper at 999 [“To a disabled
passenger, a common carrier has a duty to use such additional
care or to render such aid for his or her safety and welfare as
is reasonably required by the passenger’s disability and the
existing circumstances, provided that the common carrier’s
employees knew or should reasonably have known of the
passenger’s disability.”]; Kelleher v F.M.E. Auto Leasing Corp.,
192 AD2d 581, 582 [2d Dept 1993] [“The evidence clearly
established the decedent’s intoxication at the time he was
pulled from the cab, and as such, the defendant common carrier
was under a special duty, with regard to the decedent by reason
of his insensible condition of exercising such care, precaution
and aid as were reasonably necessary for his safety, and of
bestowing upon him any special care and attention beyond that
given to the ordinary passenger” (internal quotation marks
omitted).]).
The foregoing distinction is aptly illustrated by
contrasting the facts and holding in Smith to those in Fagan.
In Smith, the Court of Appeals granted the motion by defendants,
the owner and operator of a bus, which sought summary judgment
over the claims asserted by plaintiffs (Smith at 134). In that
case, the infant plaintiff was injured when he was struck by a
car while attempting to cross the street in front of the bus
from which he had just alighted (id. at 133). In granting
summary judgment in favor of defendants, the court held that
under the common law, generally, the only duty owed to a
passenger by a common carrier when a passenger disembarks from
its bus is to provide him/her with a safe place to alight.
Specifically, the court stated that
It has long been the rule that a common
carrier owes a duty to an alightingpassenger to stop at a place where thepassenger may safely disembark andleave the area. Once that occurs, nofurther duty exists, even if thedisembarking passenger is a schoolchildwho attempts to cross a street bypassing in front of a stopped busAlthough plaintiff correctly notes thatthere is a question of fact regardingthe reason why Derek [the plaintiff]was dropped off on the east side ofSouth Salina Street instead of the westside, it is unnecessary to resolve thatfactual issue because Derek exited thebus at a safe location, terminating theduty owed to him by Centro [thedefendant-owner] and Gray [thedefendant-operator]
(id. at 133-134 [internal citations and quotation marks
omitted]). Contrariwise, in Fagan the Court of Appeals upheld a
jury verdict in favor of plaintiffs, which found defendant, a
railroad company, liable for the death of deceased plaintiff
(Fagan at 313). In that case, deceased plaintiff was visibly
intoxicated when he boarded defendant’s train and asked that he
be dropped off at a stop near his home (id. at 305). Upon
reaching his stop, defendant’s employee escorted deceased
plaintiff off the train, sat him down at the train depot and
left him there (id.). The next morning, deceased plaintiff was
found dead on the tracks near the depot and it appeared that he
had been run over by several trains (id.). In rendering
judgment in plaintiff’s favor, the court noted that a common
carrier’s obligation is not limited to providing a passenger
with a safe place to alight its vehicle, but that additionaly,
[t]he defendant [a common carrier] wasunder the special duty, with regard tothe intestate by reason of hisinsensible condition, known to theconductor, of exercising such care,precaution and aid as were reasonablynecessary for his safety, and ofbestowing upon him any special care andattention beyond that given to theordinary passenger which reasonableprudence and care demanded for hisexemption from injury. The care whichit was bound to exercise with respectto his safety would have reference tohis known condition and the situationas a whole
(id. at 307). Thus the court reasoned that by reason of
deceased plaintiff’s apparent intoxication defendant had
additional responsibilities to a disembarking passenger and in
addition to the
the general duty to stop at Carson[deceased plaintiff’s stop] for a timereasonably sufficient to enable thepassenger to alight, at a place so thathe could, using reasonable care, alightsafely and pass by a way reasonablyapparent, accessible and safe to thedepot at Carson, or a designated andproper place, and thence from theproperty of the defendant; or, in theabsence of such a way, to takereasonable and proper precautions toprotect him and make safe his passingfrom the place of alighting to thedepot or an appointed exit from itsproperty. It was [also] bound toexercise reasonable and commensuratecare in view of the dangers to beapprehended. The relation of passenger
and carrier does not, under ordinaryconditions, terminate until thepassenger has had a reasonableopportunity to safely alight and passfrom the station premises of the carrier
(id. at 306-307 [internal citations omitted]). Essentially, the
court held that deceased plaintiff’s intoxication gave rise to
heightened duty of care requiring the common carrier to guard
against foreseeable injury to it passenger. In Fagan, deceased
plaintiff’s resulting demise was, in the court’s view, readily
foreseeable inasmuch as
The depot was a small, one-story framebuilding and was open that night untilmidnight. In it was a telegraph officein which two small oil lamps wereburning. Outside of it no lamp or lightwas burning. The evidence does notdisclose that a person sitting wherethe intestate was could see any windowor light within it. Between theintestate and the depot was noplatform, walk, road or pathway. Therewas the siding track, so filled in, inparts, that wagons could pass over oralong it. Carson was a hamlet,scarcely more than a clearing inwoodland with a few scatteredbuildings, or the crossing of arailroad by a country highway. Theintestate had lived there through theseven or eight months last prior to hisdeath. There was no evidence that aperson seated as he was could seeanywhere a light or a lighted window.After the intestate was assisted fromthe train and before he was discovered,defendant's trains had passed upon thetrack as follows: South-bound trains atnine o'clock and thirty-five minutes
and eleven o'clock and thirty-fiveminutes P.M., and two o'clock and tenminutes, two o'clock and forty-threeminutes and seven o'clock and twenty-two minutes A.M.; north-bound trains,three o'clock and forty-two minutes,four o'clock and thirty-eight minutes,six o'clock and thirty-three minutesA.M.
(id. at 305). In sum, the court in Fagan held that given
deceased plaintiff’s intoxication, the complete absence of
anyone at the depot to aid him - or more specifically, to
prevent him from doing anything to hurt himself, and the absence
of light, his death, and particularly one occasioned by trains
who defendant knew would pass through the depot, was foreseeable
and such death against which, defendant should have guarded.
Here, a review of Rainbow’s evidence, namely, plaintiff
Santiago’s deposition testimony, a copy of the same’s transcript
which Rainbow submits, establishes that Ramirez was born with
cerebral palsy and as a result, her mobility, particularly from
the waist-down was severely limited. After many surgeries, the
last of which was in 2005, Ramirez was able to ambulate
unassisted, but still required braces to help her with her
balance. Because of her cerebral palsy, while a student at IS
174, Ramirez required transportation to and from her home and IS
174, such transportation was accomplished via a specially
equipped bus; namely, one that had a ramp so as to accommodate
handicapped individuals. Because, Ramirez also had difficulty
walking, even with her braces, she also required the assistance
of a paraprofessional to aid her and meet her needs. Prior to
attending IS 174, it was Santiago’s understanding that Ramirez
would be dropped off by the bus at the school’s main entrance,
which had a handicap ramp. On February 14, 2007, Santiago
walked Ramirez down from her apartment and to the bus operated
by Rainbow where she handed Ramirez off to the bus matrons on
the bus. The bus matrons assisted Ramirez on to the bus and
drove her to school. Thereafter, Santiago received a call from
the school and learned that Ramirez had been involved in an
accident. When Santiago escorted Ramirez down to the bus it was
snowing heavily.
Ramirez’ testimony at both her deposition and 50-h hearing
- the transcripts of which, Rainbow submits - establishes that
on February 14, 2007, she was escorted by her mother down from
her apartment and down to Rainbow’s bus, which bus, would
transport her to school. Ramirez was helped on to the bus by
one of the matrons and was, thereafter, transported to school.
The weather was inclement in that it was snowing and sleeting.
Upon arriving at IS 174, Ramirez, as always, was dropped off at
an entrance a block away from the main entrance, which had a
handicap ramp. As was often the case, Jones, her
paraprofessional was not there to help off the bus, and she was,
thus, dropped off near the sidewalk, on the road, and in between
two cars and left alone. While Gathers, another
paraprofessional, was at or near the area where Ramirez had been
or was being dropped off, she denied Ramirez’ request that she
help her into the school From that point, the nearest entrance
providing access to IS 174, required Ramirez to walk down two
steps and then climb another. Accessing the school from this
entrance “proved difficult for Ramirez, who testified that she
“had to hold on to stuff, but it wasn’t really securing me, so
like, I’d like, I would walk stairs by myself, and, like, I was
afraid [sic].” Once she alighted from the bus, Ramirez
proceeded to walk through snow, up the sidewalk and into the
school. Shortly, thereafter, once inside, she slipped and fell
on snow and water. On the date of this accident, Ramirez was
wearing her leg braces, since they improved her balance.
Acela Perez (Perez), whose deposition transcript is also
submitted by Rainbow, testified that on February 14, 2007, she
was employed by Rainbow and transported handicapped students to
and from schools via buses. Perez testified that prior to
February 17, 2007, she had been transporting Ramirez to and from
school. She recalled that Ramirez had difficulty walking
insofar as she lacked balance. Perez was aware that she could
never leave Ramirez alone, that once at IS 174, Ramirez had to
be left with a paraprofessional, and that Ramirez required
assistance getting on and off the bus. Once at school, Perez
and/or the other Rainbow employee “wouldn’t bring [Ramirez] down
until the para is there, until she comes out [sic],” who would
then escort Ramirez inside. While acknowledging that it would
have been better practice to drop Ramirez off at the school’s
main entrance, Perez testified that they would drop her off at
the rear of the school insofar as she was told by someone she
thought was a school employee that she couldn’t drop Ramirez off
at the main entrance. On February 14, 2007, Perez, upon
arriving at IS 174 helped Ramirez off the bus and handed her to
a paraprofessional present thereat.
Myra Gathers (Gathers), a paraprofessional at IS 174 and
whose deposition transcript Rainbow submits, testified that on
the date Ramirez’ accident she was outside when Ramirez was
dropped off by Rainbow’s bus. Gathers testified that Ramirez
was helped off the bus by the bus matron, at which point,
because there was ice on the sidewalk between the bus and the
school’s entrance, asked the matron to escort Ramirez to the
door. The matron did not help Ramirez to the door and instead
got back on the bus and drove off. Ramirez then proceeded to
walk inside the school. Gather’s was never asked to help or
escort Ramirez inside the school.
While Rainbow submits several other deposition transcripts
and documentary evidence, it is clear from the foregoing
testimony that Rainbow fails to meet its burden of establishing
prima facie entitlement to summary judgment. Specifically, the
foregoing version of Rainbow’s evidence, when read together,
raises material issues of fact sufficient to preclude summary
judgment. More importantly, this version, if credited, could
lead a jury, at trial, to conclude that Rainbow was negligent
and that its negligence was a, if not the proximate cause of
Ramirez’ accident.
As noted above, generally, the only duty owed by Rainbow, a
common carrier, to a passenger alighting from its bus is to stop
at a place where the passenger may safely disembark (Miller at
846; Smith at 133; Fagan at 306; Kasper at 999). However, the
duty of a common carrier with respect to its passengers also
requires it to exercise reasonable and commensurate care in view
of the dangers to be apprehended (Shahzaman at 723; Fagan at
306; Blye at 109), such that when the common carrier is aware
that a passenger has limitations, the duty of care is
heightened, requiring that the common carrier exercise “special
care and attention beyond that given to the ordinary passenger
[and] which reasonable prudence and care demand[] for his
exemption from injury” (Fagan at 307; Kasper at 999). Here,
while Perez’ testimony, if credited, evinces that Rainbow
fulfilled its heightened duty of care to Ramirez by discharging
her at her school and to the custody of a paraprofessional, the
testimony proffered by Ramirez and Gathers is sharply at odds
with Perez’ testimony. Specifically, their testimony establishes
that despite Ramirez’ obvious handicap, namely cerebral palsy,
which caused difficulty with her balance and ambulation, she was
nevertheless dropped off at IS 174 by Rainbow’s bus on a very
snowy day and a block away from the school’s handicap entrance.
She was then left there either despite the refusal by Gathers -
the only paraprofessional present - to assume custody over her
or despite Gathers’ request that Rainbow’s employees help and
escort Ramirez to the school’s entrance and said employess’
refusal. Portions of Perez’ testimony further establishes that
the foregoing occurred despite Rainbow’s knowledge that Ramirez
had difficulty ambulating, such that she not only needed help
getting on and off the bus, but was never to be left alone. In
fact, Perez testified that she would only discharge Ramirez from
Rainbow’s bus to the custody of a paraprofessional.
The evidence, thus, establishes that because Ramirez was
visibly handicapped with balance and ambulation issues,
Rainbow’s duty to her was heightened, requiring that it exercise
reasonable and commensurate care in view of the dangers to be
apprehended. The foregoing facts, therefore, establish
liability against Rainbow under this heightened duty of care
because they demonstrate that (1) despite Rainbow’s knowledge
that Ramirez had difficulty ambulating, Ramirez was nevertheless
discharged from Rainbow’s bus without a paraprofessional present
who could and did assume her custody; and (2) Rainbow discharged
her in an area in inclement weather where she would have to
traverse both snow and steps to enter the school. Given these
facts, Rainbow can hardly nor credibly argue that it did not
reasonably apprehend - in other words, that is was unforeseeable
- that its actions would result Ramirez’ fall - the likes of
which did occur and which precipitated the instant suit.
Accordingly, because Rainbow’s own evidence establishes
liability against it, questions of fact exist, precluding
summary judgment in its favor.
Since Rainbow fails to meet its burden, the Court need not
address the sufficiency of the opposition papers submitted by
the other parties (Winegrad at 853).
Notably, whether by design or neglect, Rainbow fails to
discuss any of the law relevant to its liability. Instead, its
submission is replete with the law governing the liability of
the other defendants, namely the school and its employees. It
is certainly true, as noted by Rainbow, that “[s]chools are
under a duty to adequately supervise the students in their
charge and they will be held liable for foreseeable injuries
proximately related to the absence of adequate supervision”
(Mirand v City of New York, 84 NY2d 44, 49 [1994]; Doe v Rohan,
17 AD3d 509, 511 [2d Dept 2005]; Doe v Orange-Ulster Bd. of
Coop. Educ. Servs., 4 AD3d 387, 388 [2004]), and that such duty
derives from the simple fact that a school, in assuming physical
custody and control over its students, effectively takes the
place of parents and guardians (Mirand at 49; Pratt v Robinson,
39 NY2d 554, 560 [1976] [“The duty owed by a school to its
students, however, stems from the fact of its physical custody
over them. As the Restatement puts it, by taking custody of the
child, the school has deprived the child of the protection of
his parents or guardian. Therefore, the actor who takes custody
of a child is properly required to give him the protection which
the custody or the manner in which it is taken has deprived him.
The school's duty is thus coextensive with and concomitant to
its physical custody of and control over the child. When that
custody ceases because 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, the school's
custodial duty also ceases.” (internal citation and quotation
marks omitted)]). However, while the school’s liability, if
any, hinges on the foregoing body of law, Rainbow’s liability
does not. Moreover, and more importantly, here, whether the
other defendants are liable to plaintiffs is not dispositive,
doesn’t preclude Rainbow’s joint and severable liability, and,
therefore, certainly doesn’t avail Rainbow.
It is well settled that there can be more than one
proximate cause to an accident (Rodriguez v Klein, 116 AD3d 939,
939 [2d Dept 2014; Hagensen v Ferro, Kuba, Mangano, Skylar,
Gacovino & Lake, P.C., 108 AD3d 410, 411 [1st Dept 2013]). Thus,
a defendant seeking summary judgment on grounds that it did not
proximately cause an accident must establish that its negligence
did not cause the accident (Avina v Verburg, 47 AD3d 1188, 1189
[3d Dept 2008]). However, where varying inferences as to
causation are possible, resolution of the issue of proximate
cause is a question for the jury (Ernest v Red Creek Cent.
School Dist., 93 NY2d 664, 674 [1999]). Here, rather than
exclude Rainbow’s negligence as the proximate cause of Ramirez’
accident, the evidence does just the opposite. Accordingly on
the issue of proximate causation, the evidence is far from
undisputed such that this Court will not endeavor to resolve
that issue as a matter of law (Rivera v City of New York, 11
NY2d 856, 857 [1962] [“Where the evidence as to the cause of the
accident which injured plaintiff is undisputed, the question as
to whether any act or omission of the defendant was a proximate
cause thereof is one for the court and not for the jury.”]). It
is hereby
ORDERED that Rainbow serve a copy of this Decision and
Order with Notice of Entry upon all parties within thirty (30)
days hereof.
This constitutes this Court’s decision and Order.
Dated : June 10, 2014
Bronx, New York
_________________________
Mitchell J. Danziger,ASCJ