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A Hole in the Street Injures Plaintiff’s Ankle; A Hole in Defendant’s No-Fault Theory Saves her Case from Dismissal

A passenger steps off of a city bus and into a hole in the street, causing her to fall and sprain her ankle. She sues the bus company and the City of New York, both of whom move to dismiss the case on the grounds that the plaintiff did not establish a serious injury within the meaning of New York Insurance Law section 5102(d). The Supreme Court, Bronx County, refused to dismiss the case, and the defendants appealed to the Appellate Division, First Department. What should the Appeals Court do?

New York has a no-fault system of automobile insurance. If you are in an automobile accident, you can recover compensation for your basic economic loss from your insurance company without having to prove fault or negligence on the part of the other driver. Even if the other driver was negligent, you are prohibited by law from filing a personal injury civil lawsuit against the driver, unless you suffered a “serious injury” as that term is defined under New York Insurance Law section 5102(d).

In this case, Cividanes v. City of New York, the defendant wanted the case dismissed because the plaintiff’s sprained ankle was not a “serious injury” under 5102(d). The plaintiff argued that the accident occurred after she got off the bus, and so her injury does not fall under the no-fault law covering automobile accidents. The transit authority’s liability, she argued, did not come from the use and operation of the bus, but from the duty to provide a safe place to exit from the bus.

The court sided with the plaintiff. Citing the case of Walton v. Lumbermens Mut. Cas. Co., the court held that in order for the no-fault law to apply, the injury must arise out of the use or operation of the automobile. Stated differently, the vehicle must be the proximate (legal) cause of the injury; the vehicle itself must produce the injury, as opposed to an injury that happens to occur while one is an occupant in a vehicle or while entering or exiting the vehicle.

This decision was a victory for the plaintiff, but it was a complicated issue that could possibly have been decided either way. In fact, in another case, Manuel v. New York City Tr. Auth., a different court held that no-fault applied and that a bus driver was negligent in positioning the bus next to a hole in the street which was the proximate cause of plaintiff’s injuries. The Cividanes court held that the conduct in question may well have been negligent, but the bus was not the proximate cause of the injury, so the no-fault rule does not apply.

Where complex laws and motions are involved, your case is best handled by an experienced personal injury trial attorney dedicated to a successful outcome. If you have been injured in a New York City bus accident, including a trip and fall while entering or exiting the bus, contact Leandros A. Vrionedes, P.C. for a free consultation.

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