EVIDENCE SUFFICIENT TO DEMONSTRATE BUS DRIVER SHOULD HAVE SEEN DECEDENT.

The First Department, over an extensive two-justice dissent, determined there was sufficient evidence to support the jury's conclusion the defendant bus driver was negligent. Plaintiff's decedent was crushed by the bus as the bus pulled out of a bus stop. The driver never saw the decedent. The majority held that the location of the body indicated the decedent should have been seen by the bus driver. The dissent argued the evidence of negligence on the driver's part was speculative and the complaint should have been dismissed. The majority wrote:

Decedent … was found dead under one of defendant Transit Authority's buses. While the bus driver had no explanation for how her body came to be there, plaintiffs' evidence, including DNA evidence matching samples recovered from the bus, was sufficient to support the jury's finding that the bus driver was negligent in operating the bus. The evidence showed facts and conditions from which negligence and causation could “be reasonably inferred” … . In particular, plaintiffs showed that decedent's body had been crushed by the bus at such an angle that the bus driver, pulling out of the bus stop, should have, with the proper use of his senses, seen decedent … . Oates v New York City Tr. Auth., 2016 NY Slip Op 02729, 1st Dept 4-12-16