Thursday, January 12, 2017

A runaway bus.

The Appellate Division affirmed the order granting plaintiff's motion for summary judgment on  liability and dismissing the affirmative defenses alleging plaintiff's culpable conduct. The evidence showed that the owner-defendants' unoccupied bus, which the driver-defendant had parked on a sloping street, began to roll down the street after its brakes made an alleged "hissing" sound, and struck the rear of plaintiff's taxi, which was waiting at a red light about 100 feet from where the bus had been parked.  The injured plaintiff testified at his deposition that he was stopped at a red light at the intersection for 10 to 15 seconds, and that he did not hear or see the bus until it struck the back of his taxi. The bus pushed plaintiff's taxi into the crosswalk where it hit a pedestrian.

A prima facie inference of defendants' negligence is inescapable, and there is no evidence of culpable conduct on plaintiff's part.. Defendants' evidence, including the bus driver's testimony about his usual custom and practice, does not raise a triable issue of fact as to defendants' alleged lack of negligence or plaintiff's alleged culpable conduct.

Case:  Fofana v. New Jersey Tr. Corp., NY Slip Op 00073 (1st Dep't January 5, 2016)

Here is the decision.

Tomorrow's issue:  The presumption of proper service.