“Serious Injury” Threshold of No-Fault Law Held Not to Apply to Passenger Negligently Left Overnight Seat-Belted in School Bus
In Rivera v. Outstanding Transp., Inc., a handicapped person who was supposed to be transported to his home from F.E.G.S. Manhattan Day Habilitation Program in lower Manhattan was, instead of being returned home, remained in the bus as it was taken to a depot in Brooklyn where he remained overnight, unattended and unsupervised, in frigid temperatures. The bus driver subsequently pled guilty to Endangering the Welfare of an Incompetent or Physically Disabled Person. The bus driver and owner moved for summary judgment dismissing the complaint, and the motion was denied by Justice David I. Schmidt of Supreme Court, Kings County. 39 Misc. 3d 1228(A) (N.Y. Sup. Ct. 2013).
The defendants moved for dismissal on the ground that the plaintiff did not sustain a “serious injury” as defined in the New York Motor Vehicle No-Fault Insurance Law. Under the law, if a “serious injury” is not sustained, there can be no recovery for non-economic loss, better known as pain and suffering. The plaintiff alleged that he suffered the following injuries: Hypothermia; low body temperature; shivering with cold extremities; dehydration; rhabdomyolysis; hunger causing plaintiff to eat pieces of vinyl seating; difficulty urinating; fecal impaction and constipation, severe psychological trauma, manifested by extreme agitation, emotional anxiety, upset, nervousness, apprehension, tension, fear and nightmares.
Justice Schmidt denied summary judgment on the basis that the injuries were not proximately caused by the use or operation of the school bus. Although the incident occurred on a bus, Justice Schmidt found that the no-fault serious injury threshold did not apply because the motor vehicle itself must be the instrumentality which produces the injuries:
Ed's injuries did not occur as the result of a collision or movement of the vehicle, nor were they caused by a defect in or failure of the vehicle or any of its parts. Rather, the injuries were the result of defendants' abandonment of Ed and his exposure to cold temperatures for an extensive period. Such injuries would have occurred if Ed was left outside of the vehicle.
The court also noted that the bus had completed its route and was parked presumably with the engine no longer running, and that the injuries did not occur as the result of a collision or movement of the vehicle, nor by a defect in or failure of the vehicle or any of its parts.