Bracco v. MABSTOA

OPINION OF THE COURT Milonas, J. This action involves a claim for damages arising out of personal injuries suffered by plaintiff Denise Braceo as a result of the alleged negligence of defendant Manhattan and Bronx Surface Transit Operating Authority (MABSTOA). At approximately 9:00 a.m. on December 20, 1979, plaintiff, accompanied by her young son, boarded one of defendant’s buses at Williamsbridge Road and Morris Park Avenue in The Bronx. It had snowed the previous day, leaving an accumulation of some 3 to 2>Vi inches. The weather report for the morning of the accident indicated that the temperature was in the low 20’s. As plaintiff got onto the bus, she noticed that there was slush present on all of the front steps. The vehicle was not crowded, and it made about 4 or 5 stops before it reached plaintiffs intended destination. She then pulled on the signal cord, and the bus halted at the intersection of Bogart and Morris Avenues. She walked back to the front with her son, again observing the slush on the stairs. Standing on the platform leading to the stairwell, she uneventfully assisted her child off the vehicle. Thereafter, she stood up and, — 275 — holding one hand on the railing, she descended the first step and fell backward onto the stairs, striking against them with her back, left arm and left shoulder, her knees in the slush and her legs bent under her body. At the trial held in connection with the instant matter, plaintiff called two passengers who were on the bus at the same time as she. They both described the incident in much the same manner as recounted by plaintiff and remembered seeing snow on the front steps. Police Officer Donald Sorbía, who arrived at the scene shortly after the accident, testified with the aid of notes made on the scene that he spoke to both the bus driver and plaintiff. He stated that there was slush on the front stairs of the bus. Moreover, the vehicle was resting at a steep incline at the bus stop, causing it to lean excessively. Although several pages of the officer’s memo book were marked for identification and read to the jury, the portion relating to the slant of the bus was ordered stricken. According to the officer, the steps were more than just wet, there being a buildup of snow. The aided report and the accident report which he had filled out were both admitted into evidence with redactions as to the nature of plaintiff’s injuries. The bus driver also took the stand, asserting that while there has been some slush on the steps, the other people on the bus had gotten on and off without any difficulty. Following the accident, he had informed the bus company by telephone, and one of its dispatchers had arrived at the scene. The driver had then advised the dispatcher that the lady was leaving the bus when she slipped and fell on the second step. The driver conceded that he had not cleaned the stairs or placed any salt or other material on them nor had he been instructed to do so by the bus company. The written report of the accident prepared by the dispatcher was also entered into evidence. However, the court excised a section containing a notion that: "On inspection of bus, I found the steps of stairwell covered with slush. Slush removed and bus returned to service”. In its charge, the court instructed the jury that the standard of care applicable to a situation such as the one herein is that: "A common carrier, such as the defendant here, has the duty to exercise reasonable care and diligence to keep its bus steps reasonably clear of snow and ice. The fact that a passenger falls on snow or ice and is injured does not, of itself, make the common carrier liable. Before a passenger may — 276 — recover from the common carrier, he or she must establish that the condition of the bus steps upon which she fell were so different in character from the condition ordinarily prevailing during winter in that locality, that is in the Bronx, as to constitute an unusual danger to passengers, that the common carrier, through its employees, in this case the bus operator, Mr. Simon, knew of the unusually dangerous condition or that it had existed for so long prior to the passenger’s fall that the common carrier, in the exercise of reasonable care, should have known of it, and that after the common carrier knew or should have known of the condition and before the passenger’s fall, there was sufficient time for the common carrier, using reasonable methods and in the exercise of reasonable care, to have corrected the condition, but that it failed to do so. "The first questions for you to determine are whether the condition of the bus steps at the point where plaintiff fell were such that the common carrier, through its employee, the bus driver, should have reasonably anticipated unusual danger to passengers from its continued use, and, secondly, whether the common carrier, through its bus driver, knew or, in the exercise of reasonable care, should have known of the condition. "If you find that the condition of the bus steps was not unusually dangerous, or that though it was unusually dangerous, the common carrier, through its employee, the bus driver, did not know of it and that it had not existed for a sufficient period of time prior to plaintiff’s fall, that the common carrier, in the exercise of reasonable care, should have known about it, your verdict will be for the defendant and you will proceed no further. "If you find that the condition of the bus steps was unusually dangerous and that the common carrier either knew that it was or that it had existed for sufficient time prior to plaintiff’s fall, that the common carrier, in the exercise of reasonable care, should have known of it, you will consider whether the common carrier had reasonable time thereafter to correct the condition but failed to exercise reasonable care and diligence to do so.” (Emphasis added.) Despite being asked to do so by defendant’s attorney (and, following delivery of the charge, by plaintiff’s attorney in his exceptions), the court refused to charge that "a carrier owes a duty to its passengers to provide a reasonably safe place to alight from its vehicle”. The court also declined to deliver plaintiff’s written request stating, in part: — 277 — It is for the jury to determine: "1) Whether under these circumstances the defendant bus company could have foreseen that slush and snow would accumulate on the steps of its bus; and "2) Whether the defendant bus company took reasonable means to correct a potential danger to its passengers.” In urging reversal of the jury’s verdict in favor of defendant, plaintiff contends that the redaction of the observations of the bus steps by the police officer and the dispatcher, made in the regular course of business, was erroneous and prejudicial to plaintiff. She also argues that the court improperly charged that before the jury could find negligence on the part of the defendant, it first had to determine that the steps were "unusually dangerous”. Some of the pages of Officer Serbia’s memo book were marked for identification and read to the jury. In addition, the aided report and accident report prepared by him were admitted into evidence, as well as the report of defendant’s dispatcher. These reports were clearly made in the regular course of business and were admissible as a business record under CPLR 4518. Yet the trial court, while properly allowing the jury to examine these reports, nonetheless excised from the officer’s accident report the statement that "Aided was passenger on bus. Upon leaving the bus, which was at the bus stop, she fell down three exit steps that had slush on them. Also, the incline of road caused bus to lean excessively”. The court also redacted from the officer’s memo book the comment that "Bus on incline at Bus Stop causing steps to be steep”. The dispatcher’s notation that "[o]n inspection of bus, I found steps of stairwell covered with slush. Slush removed and bus returned to service” was similarly redacted. All of these entries were made in the regular course of business, and it was the duty of both the police officer and the dispatcher to include them in their reports. The references with respect to both the slush present on the steps and the position of the bus were, furthermore, derived from the personal observations of the dispatcher and the police officer and were not hearsay elicited from some unknown informant. Therefore, the court was not warranted in directing that the foregoing statements be redacted. (See, Flynn v Manhattan & Bronx Surface Tr. Operating Auth., 94 AD2d 617, affd 61 NY2d 769; Galanek v New York City Tr. Auth., 53 AD2d 586; Toll v State of New York, 32 AD2d 47; Yeargans v Yeargans, — 278 — 24 AD2d 280.) Nor can it be held that any error in redacting them was harmless since the dispute in this case specifically involves the condition of the stairwell, the amount of snow and slush thereon and the degree of defendant’s responsibility for the accident. Certainly, there is no question that plaintiff did, in fact, fall on the front steps as she was in the process of disembarking from the bus. As for the jury charge challenged by plaintiff, it appears to have been adapted from PJI 2:225A relating to the standard of care which a municipality has to keep its streets and sidewalks reasonably clear of snow and ice. However, the standard applicable to a common carrier in securing the safety of its passengers is not equivalent to the duty which a municipality has with regard to snow and ice removal from its public ways. The fact that a common carrier is operated by a governmental entity does not mean it has a lesser responsibility toward the public than one which is under private ownership. In that connection, there is simply no legal basis for imposing the additional burden of proof that plaintiff demonstrate the existence of an "unusually dangerous” condition before she be permitted to recover. Indeed, even if defendant’s obligation herein was only to exercise ordinary and reasonable care to persons boarding or disembarking from its buses (see, Skelka v Metropolitan Tr. Auth., 76 AD2d 492), the same duty which a carrier has in maintaining approaches and station platforms (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, affd 64 NY2d 670), the imposition of the added requirement that plaintiff show "unusual danger” dilutes even the lesser ordinary case standard. According to PJI 2:161: "A common carrier does not guarantee its passengers against accident or injury. It is required to exercise reasonable care for their safety. Reasonable care means that care which a reasonably prudent carrier of passengers would exercise under the same circumstances, in keeping with the dangers and risks known to the carrier or which it should reasonably have anticipated.” While this court’s decision in Lewis v Metropolitan Transp. Auth. (supra) suggests that a common carrier may owe a higher degree of care than ordinary and reasonable, the appropriate standard is at least that pertaining to common carriers and not that of a municipality engaged in snow and ice removal from its streets and highways. PJI 2:161 is clearly the preferred charge under the circumstances of this case. — 279 — Defendant cites Barnwell v New York, New Haven & Hartford R. R. Co. (13 AD2d 542, 543, affd 11 NY2d 847) for the proposition that a carrier is not obligated "to remove snow and ice from the exposed places on the steps of a moving train while it is traveling between many commuter stations”. The situation before us, however, concerns a snowfall which occurred on the day preceding the accident. Further, involved here is not a commuter train with exterior steps exposed to falling snow while the carrier is in transit. Thus, the crucial question is whether defendant’s failure to clear the stairwell of an accumulation of slush constituted a deviation from the standard of care which a common carrier customarily owes to its passenger. Despite defendant’s contention that plaintiff failed to object to the court’s jury instructions and thus may not raise that issue on appeal, the record clearly indicates that both sides asked that the Judge charge that a common carrier "owes a duty to its passengers to provide a reasonably safe place to alight from its vehicle” and that plaintiff, in addition to specifically submitting requests to charge (albeit in handwritten form), took exception to the court’s refusal to deliver the requested instructions. Consequently, the judgment of the Supreme Court, Bronx County (Irma Vidal Santaella, J.), entered on June 27, 1984, which, following a jury trial, found in favor of defendant Manhattan and Bronx Surface Transit Operating Authority, should be reversed, on the law, and the matter remanded for a new trial.