State of New York
Supreme Court : County of Monroe

Plaintiff,

- against -

Index No. 2000/9835

Defendants.

_______________________________
Churchville-Chili Central School District
and Barbara L. Hurley,

Third-party plaintiffs,

- against -

Michael Brandenburg,

Third-party Defendants.
_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

All parties have moved for summary judgment in this case, which arises from an accident involving a student, a parked school bus, and a passing motorist. Paul Gray, the plaintiff, was a student at Churchville Chili High School. On the day of the accident a school bus driven by defendant Barbara Hurley drove to the house of another student, Jermaine Kelly, to pick the two students up. Gray was not at the house, but Kelly was.

Kelly asked to bring a young relative along to the school and Hurley refused. In addition, Kelly was smoking, and while she waited for him to finish and for Gray to show up Hurley moved the bus as far as she could over to the curb and turned off the flashers.

Soon after this Gray came out of Kelly's house and down the sidewalk along the bus, carrying a supersoaker water gun. He sprayed Kelly and Kelly wrestled the water gun away from him, spraying Gray in turn. Trying to get away, Gray ran in front of the bus into the road, where he was struck by a vehicle driven by third-party defendant Brandenburg, who appears otherwise to have been driving in a safe and reasonable manner. At no time did either student indicate he was ready to board the bus.

Plaintiff argues strenuously that he is entitled to the protection of the Vehicle and Traffic Law, which mandates that school buses show flashing red lights and a hinged stop sign when stopped to pick students up or drop them off. His papers contain a detailed account of how, at every moment in his progress out of the house, defendant Hurley failed to turn on the flashers.

In a well-argued response, defendants' counsel points out that the statute is designed to protect students who are boarding or leaving a bus. At the time of the accident Gray was in neither category. He was injured during horseplay, when it was clear he had no present intention of boarding the bus. The statute, he asserts, does not protect students simply because they are in the vicinity of a school bus.

The defendants are correct. The relevant part of Vehicle and Traffic Law § 1174 reads:

(b) The driver of such school bus, when receiving or discharging passengers who must cross a public highway, street or private road, shall instruct such passengers to cross in front of the bus and the driver thereof shall keep such school bus halted with red signal lights flashing until such passengers have reached the opposite side of such highway, street or private road. Whether such passengers are crossing such highway street or private road or discharging to the same side of such highway, street or private road, the driver of such bus shall keep such school bus halted with red signal lights flashing until such passengers are at least fifteen feet from the bus and either off the highway, street or private road or on a sidewalk.

The court finds these cases persuasive as well as binding, but they support the defendants' argument, not the plaintiff's. The bus driver was not engaged in receiving either student. She had made it clear she was not planning to do so until Kelly had finished smoking, at the earliest. Even more relevant is the fact that the plaintiff himself showed no indication of an intention to board the bus. Instead, he was engaged in a water fight with his friend up until the moment when he darted in front of the bus into traffic.

The facts of this case are close enough to those of Karchere for the court to adopt the Appellate division's summary as its own:

Here, liability cannot be imposed based on violations of Vehicle and Traffic Law §§ 1174(b) and 375(20)(a) because, under the circumstances of this case, the plaintiff is not within the class of persons sought to be protected by the statutes. The plaintiff was not a passenger boarding or leaving the bus. The plaintiff merely passed the rear of the bus as she crossed the street and had not been proceeding toward the bus when she was injured. Thus, Belger owed no statutory duty to the plaintiff. In addition, there is no evidence that Belger otherwise operated the bus in a negligent manner (213 AD2d, at 701).

The complaint should be dismissed, without costs, and the third party complaint must follow. Mr. Riordan may prepare the order.

DATED: Rochester, New York

April 17, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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