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Triable Issues of Fact in Lawsuit Against Bus Company and Property Owner for Slip and Fall on a Speed Bump

In reversing Supreme Court and reinstating the complaint, the Second Department determined there were triable questions of fact whether plaintiff was negligently allowed to step off a bus onto a speed bump, causing her to fall, and whether the property owner (JQ) allowed a dangerous condition (speed bump) to exist:

The [bus company] defendants failed to establish, prima facie, that they fulfilled the duty to alighting passengers to stop at a place where they may safely disembark and leave the area … . Triable issues of fact exist as to whether the driver was aware, or reasonably should have been aware, of the presence of a speed bump in the subject location, whether the speed bump constituted a dangerous condition, and whether the driver should have stopped the bus at the designated stop or another location not adjacent to a speed bump … . There is also a triable issue of fact as to whether the driver failed to see that which should have been seen through the reasonable use of one’s senses and was, therefore, negligent… . The injured plaintiff’s failure to positively state whether sand on the speed bump contributed to her fall was not fatal to her cause of action, because the evidence was sufficient to permit a finding based on logical inferences from the record, and not speculation alone, that the placement of the bus was a proximate cause of the accident, regardless of whether there was sand on the speed bump … .

The JQ defendants, as owners and operators of the office complex, which was open to the public, had a nondelegable duty to provide the public with reasonably safe premises and a safe means of ingress and egress … . This duty may not be delegated by the owner to its agents or employees, or to an independent contractor … . The plaintiffs need not establish that the JQ defendants had notice of the alleged dangerous condition, as it was allegedly created by the JQ defendants or their agent … . The JQ defendants failed to establish, prima facie, that they did not create a dangerous condition on the premises in placing the speed bump, or causing it to be placed, in the subject location. There are triable issues of fact as to whether the speed bump constituted a dangerous condition or was readily visible to a disembarking bus passenger, given its location near the bus stop, and given the conflicting testimony as to whether the speed bump was painted yellow … . Furthermore, triable issues of fact exist as to whether the circumstances were such as to render the subject speed bump a trap for the unwary … . Some visible hazards, because of their nature or location, are likely to be overlooked. The facts here do not warrant concluding as a matter of law that the speed bump was so obvious that it would necessarily have been noticed by any careful observer, so as to make any warning superfluous… . Grizzell v JQ Assoc LLC, 2013 NY Slip Op 06544, 2nd Dept 10-9-13

 

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