Even in cases involving horrific injuries or death, the plaintiff must still prove negligence – that is, a deviation from the relevant standard of care – in order to win. That’s the lesson of Clark v. Amboy Bus Co., decided by the Appellate Division, Second Department on May 21, 2014.
In this tragic case of bus vs. bicyclist, the bicyclist – as one might predict, based on the laws of physics – lost. The facts, according to the decision:
The decedent was killed when the right rear wheel of a school bus owned by the defendant Amboy Bus Company … ran over him after he fell off a bicycle he was riding in the intersection of 8th Avenue and President Street in Brooklyn. The bus was traveling north on 8th Avenue approaching President Street at the same time as the decedent was traveling west on President Street approaching the intersection with 8th Avenue. The bus proceeded north through the intersection and had nearly cleared the intersection when the driver heard an impact at the right rear of the vehicle, brought the bus to an abrupt stop, exited the vehicle, and discovered the decedent injured on the street.
Following discovery, defendants moved for summary judgment dismissing the complaint. The trial court denied the motion, and the Second Department reversed:
The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the bus was operated in a prudent and reasonable manner and the driver acted with due care under the circumstances. The evidence established that the bus entered the intersection with a green light in its favor and had nearly completed exiting the intersection when the decedent, against the traffic control device for President Street, entered the intersection and attempted to ride in the vicinity of the bus, but lost his balance and fell to the pavement within the path of the bus’s rear tire.
The plaintiffs’ conclusory and speculative assertions in opposition to the defendants’ motion concerning the defendants’ possible negligence in failing to avoid the accident were unsupported by any competent evidence and, therefore, did not raise a triable issue of fact.
Finally, since plaintiffs failed to make some showing of defendants’ negligence, plaintiffs were not entitled to invoke the “Noseworthy doctrine”. Where it applies, that doctrine (named after Noseworthy v. City of New York, 298 NY 76) a plaintiff suffering from amnesia resulting from an accident is held to a lesser standard of proof.