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General Municipal Law § 50–h…cont

The Second Department, however, ordered a new trial, because the issue of whether the plaintiff sustained a serious personal injury within the meaning of the No–Fault Law should have been submitted to jury. In the court’s view, the No–Fault Law applied because the negligent operation of the bus was the proximate cause of plaintiff’s injuries, where, like here, the plaintiff’s theory of liability was that the accident resulted from the bus driver’s positioning of the bus next to a hole in the street when he pulled into the bus stop. The Court also found it significant that the plaintiff was not completely outside of the bus when the accident occurred.

Although is unclear what the Court meant when it stated that the plaintiff was not completely outside of the bus when the accident occurred, to the extent the decision in Manuel reaches a contrary conclusion under seemingly similar circumstances to this case, we decline to follow it as inconsistent with Walton. In Manuel, the Court seems to be conflating negligence during the use of a vehicle with the additional requirement of the No–Fault Law that the vehicle itself be the proximate cause of the victims’s injuries. The terms, however, are not synonymous. Indeed, in Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 693 N.Y.S.2d 493, 715 N.E.2d 495 (1999), the Court of Appeals highlighted the differences, in distinguishing Vehicle and Traffic Law § 388(1), which imposes liability on all vehicle owners for accidents resulting from negligence in the permissive use or operation of their vehicles, with the No–Fault Law. In Argentina, the Court held that under Vehicle and Traffic Law § 388 (1) the vehicle need not be the proximate cause of the victim’s injury before the vehicle’s owner may be held liable, thereby distinguishing Walton, which requires that the vehicle be the proximate cause of the victim’s injuries to trigger the No–Fault Law.

In Argentina, the plaintiff suffered injuries when a steel plate fell on him while he was unloading cargo from a truck owned by the defendants. He and his spouse sued the defendants in the United States District Court for the Southern District of New York, claiming that the defendant vehicle owner was liable for their damages under Vehicle and Traffic Law § 388(1), which, as noted above, imposes liability on all vehicle owners for accidents resulting from negligence in the permissive use or operation of their vehicles. Relying on Walton, the District Court granted the defendants’ motions for summary judgment on the ground that the vehicle itself was not a proximate cause of the injury. After plaintiffs appealed, the United States Court of Appeals for the Second Circuit certified several questions to the New York State Court of Appeals, including whether, under Vehicle and Traffic Law § 388(1), the vehicle must have been the proximate cause of the injury before the vehicle’s owner could be held vicariously liable.

As to this question-whether liability under Vehicle and Traffic Law 388(1) is predicated upon the vehicle being a proximate cause of the injury-the Argentina Court held in the negative. The Court held that the district court had erroneously relied upon Walton when it interpreted use or operation pursuant to Insurance Law 5103(a)(1) synonymous to the standard under VTL § 388(1). The Court explained that the two laws are distinct, with different purposes. The Court therefore held that in light of the differing purposes, the No–Fault Law and section 388(1) of the Vehicle and Traffic Law should not be interpreted identically. Accordingly, the Court concluded:

The touchstone of no-fault liability is loss from the use or operation of a vehicle regardless of fault. It was enacted to compensate for injuries without proving negligence. On the other hand, the touchstone of section 388(1) is injury resulting from the negligence in the use or operation of a vehicle. To read an additional limitation into section 388(1) and require that the vehicle itself be the instrumentality or a proximate cause of plaintiff’s injury would tend to circumvent the statute’s negligence requirement and unduly limit its intended beneficial purpose. Thus, in Argentina, the Court of Appeals held that the liability of an owner pursuant to section 388(1) does not require that the vehicle be a proximate cause of the injury. Rather, the Court stated that the standard under which vicarious liability attaches under the statute is narrower: Negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury.

In Manuel, however, the Second Department considered the bus driver’s positioning of the bus next to a hole in the street, when he pulled over at the bus stop, to be a sufficient predicate to trigger the No–Fault Insurance Law. Of course, that conduct would be sufficient to trigger section 388(1), which imposes liability on all vehicle owners for accidents resulting from negligence in the permissive use of their vehicles. But under Walton, this is not sufficient to trigger the No–Fault Law, which contains the additional requirement that the vehicle be the proximate cause of the injur. We thus hold, that liability for the injuries sustained from a fall in a hole after alighting from a bus are more properly addressed outside the area of the No–Fault Law.

Accordingly, the order of the Supreme Court, Bronx County, entered May 26, 2010, which, to the extent appealed from as limited by the briefs, denied defendants Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority’s cross motion for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), should be affirmed, without costs.

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