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Miller v. Fernan

73 N.Y.2d 844 Court N.Y. Decision date 1988-12-22 English

Contents

Majority

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Gary Miller, Appellant, v David Fernan et al., Appellants, and William Rebmann et al., Respondents.
Argued November 17, 1988;
decided December 22, 1988
p. 845
APPEARANCES OF COUNSEL
John P. Cox and Jane C. Hettrick for defendants-appellants.
p. 846
Neil E. Garvey for plaintiff-appellant.
Linda L. Kaumeyer for respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendants-respondents’ motion for summary judgment denied.

A common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area (see, Fagan v Atlantic Coast Line R. R. Co., 220 NY 301 , 306-307; Blye v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106 , 109, 111, affd 72 NY2d 888 ). On a review of the record, questions of fact exist as to whether respondents breached this duty, whether the breach was a proximate cause of plaintiff’s injuries, and whether plaintiff was comparatively negligent (see, Keener v Tilton, 283 NY 454 , 455-456). Contrary to respondents’ contention, plaintiff’s conduct was not an intervening and superseding cause as a matter of law, since there is a factual dispute over whether there was any safe alternative route which plaintiff could have taken (cf., Blye v Manhattan & Bronx Surface Tr. Operating Auth., 72 NY2d 888 , supra; Rodriguez v Manhattan & Bronx Surface Tr. Operating Auth., 117 AD2d 541 , lv denied 68 NY2d 602 ).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.

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