Testimony that Bus Company Held to Higher Standard Required Reversal

In an action based on the allegation a bus was traveling too close to the curb when it struck plaintiff, the First Department (over a dissent) determined testimony that bus drivers’ operating criteria “are much higher than anyone else’s, so I would look at the accident by our standards a lot different from anyone else” required a new trial on liability:

The admission of testimony that holds a defendant to a higher standard of care than required by common law is clearly erroneous…. Moreover, the admitted testimony cannot be considered harmless error because it concerns the ultimate issue to be decided and corroborates unsupported theories of liability proffered by plaintiff’s expert, thereby lending them an unwarranted air of authority. It is well settled that “the duty owed by one member of society to another is a legal issue for the courts”…. Only after the extent of a duty has been established as a matter of law may a jury resolve — as a question of fact — whether a particular defendant has breached that duty with respect to a particular plaintiff…. As this Court has noted numerous times, “Where the offered proof intrudes upon the exclusive prerogative of the court to render a ruling on a legal issue, the attempt by a plaintiff to arrogate to himself a judicial function under the guise of expert testimony will be rejected”….  Williams v NYC Tr Auth, 2013 NY Slip Op 04975, 1st Dept 7-2-13