September 26, 2019
In the recent case of Salas v. Adirondack Tr. Lines, Inc. (172 A.D.3d 775 [2d Dept. May 1, 2019]) the Appellate Division, Second Department ruled that a bus operator was not required to provide assistance to a disembarking passenger who neither requested assistance, nor was she visibly disabled. In doing so, the Second Department reinforces a trend of judicial skepticism towards the increasingly popular “failure-to-assist” claim.
To provide context for this decision, it is worth remembering the general scope of a common carrier’s duty. A “common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area. ”Smith v. Sherwood, 16 N.Y.3d 130, 133 (2011). “Once that occurs,” that is, once a carrier stops at a place where the passenger can disembark, “no further duty exists.”Id.
In Salas, the plaintiff fell while stepping off a charter bus.She claimed the bus driver didn’t offer her any assistance as she stepped off. The Second Department found the defendant met its burden for summary judgment by showing the plaintiff was not disabled and did not request assistance.Salas, 172 A.D.3d at 775. In ruling for the defendant, the Second Department noted insufficient evidence for an industry practice to assist passengers on or off a bus.
The Salas case is the latest of several rulings dismissing “failure to-assist” claims. In Saidoff v. New York City Tr. Auth. (105 A.D.3d 726 [2d Dept. 2013]), a 67 year old passenger tripped while trying to climb aboard a New York City local bus. She claimed the city was negligent for failing to “kneel” the bus entrance. The First Department dismissed the claim, noting that the plaintiff “did not ask the driver to engage the kneeling device to lower the steps leading onto the bus.” Id. at 727.Similarly, in Trainer v. City of New York (41 A.D.3d 202 [1st Dept. 2007]) the 77 year old “plaintiff did not request that the bus be lowered, even though she perceived that it looked too far for her to step. ”The First Department held that “in the absence of any evidence that plaintiff appeared incapable of negotiating the distance, there was no duty to lower the steps, and the stop away from the curb under these circumstances was not negligent.”Id.
Salas, Trainer and Saidoff indicate that a common carrier has no automatic duty to assist disembarking passengers. Thus, common carriers do not have a legal duty to assist boarding or disembarking passengers unless they are disabled or specifically request assistance.
For more information on this topic, please contact MKC&I’s Finney Raju at (315) 473-9648 or at fraju@mcgivneyandkluger.com.