All buses are not created equal.

At least that's what New York State's highest court held in Smith v. Sherwood, in an opinion that was handed down just over one month ago.

In Smith, a 12 year-old child was hit by a passing car after disembarking from a public bus, and crossing in front of the bus into the adjoining lane of traffic. Apparently, the child was unable to see the passing car because his view of the oncoming car was obstructed by the bus.

At first blush, you might be inclined to think that the driver of the car - as well as the bus - should have been held liable for the accident because the bus didn't signal the other driver to stop while the child was still crossing in the street.

But you'd be wrong.

In reversing the lower appellate court's ruling that allowed the claim to proceed, the Court of Appeals stated as follows:

"In allowing the negligence claim to proceed, the Appellate Division relied, in part, on Sewar v Gagliardi Bros. Serv. (51 NY2d 752 [1980]). Sewar, however, involved a yellow school bus subject to the mandated use of specific safety equipment under Vehicle & Traffic Law § 375 (20). Such specially-equipped school buses are statutorily required to stop "with red signal lights flashing" until a passenger needing to cross a street does so (id. § 1174 [b]). Furthermore, a violation of Vehicle & Traffic Law § 1174 (b) may serve as the basis for a viable cause of action (see Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 382-383 [1995]; Van Gaasbeck v Webatuck Cent. School Dist. No. 1, 21 NY2d 239, 244-245 [1967]). Concomitantly, the Vehicle & Traffic Law provides that all operators of motor vehicles must stop when approaching a school bus with red flashing lights (see Vehicle & Traffic Law § 1174 [a]). The public bus that Derek rode, however, was not subject to these rules (see Vehicle & Traffic Law § 375 [20]) and its driver therefore did not have the legal authority (or the necessary safety equipment) to make other vehicles stop while Derek crossed the street. In the absence of the special duty that applies to yellow school buses, Centro and Gray are entitled to summary judgment dismissing the complaint against them."

In other words, yellow school buses have a special duty to their student riders to make other vehicles stop while the students cross the street; and if they fail to discharge that duty, the school bus can be held liable in negligence.

Public buses, on the other hand, have no such special duty. And that's why they aren't given the same safety equipment, including the fold-out stop sign and flashing lights.

(For additional information on this topic, please see "When the Duties of a Bus Operator to His Passengers End Under New York Law.")
Jonathan Cooper
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Non-Compete, Trade Secret, Unfair Competition and School Negligence Lawyer
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