Defendant New York City Transit Authority appeals from an order of the Supreme Court, New York County (Donna M. Mills, J.), entered September 26, 2008, which denied its motion for summary judgment dismissing the complaint.
The opinion of the court was delivered by: Saxe, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Angela M. Mazzarelli, J.P., David B. Saxe, Rolando T. Acosta, Leland G. DeGrasse, Sallie Manzanet-Daniels, JJ.
On September 14, 2005, a clear, sunny morning, plaintiff Rolf Ohlhausen, a 73-year-old architect, left his apartment on the Upper West Side of Manhattan, and drove his Suzuki motorcycle downtown, headed for the New School in Greenwich Village, where he was enrolled in a philosophy course.
Shortly before 10:00 a.m. on that date, Police Officer Keith Murray, in pursuit of a robber, was driving his patrol cruiser on West 4th Street. The officer came to a stop at a red light at the intersection of West 10th Street and West 4th Street, with lights and siren on, ready to continue north on West 4th Street.
A third participant in the incident yet to occur, New York City Transit Authority bus driver Jeffrey Whaley, was at the same time driving his bus eastbound on West 10th Street. Although the bus had the green light in its favor, the driver stopped at the intersection of West 4th and West 10th, in order to allow Officer Murray's patrol car to proceed. When Whaley's and Officer Murray's eyes met, Whaley signaled to the officer that the officer could proceed by "waving" him through the intersection. Before doing so, Whaley testified, he had turned his head and checked in his left and right mirrors to ascertain whether there was any traffic traveling alongside his bus on West 10th Street, and had seen none. He could see the full length of his bus, and back to the end of the block, although the side of the bus was his main concern.
Officer Murray drove his police car into the intersection after the bus driver waved him through, but did not immediately go through the intersection; instead, he testified, he stopped in front of the bus for what he thought was about 15 to 20 seconds, so that the bus served as a partial shield, blocking his view of traffic flowing across West 10th Street. He waited there, with his siren off, in the hope that the perpetrator he was looking for would run in front of the patrol car or run southbound on Seventh Avenue South toward the subway entrance, which would place him in the officer's view. After the 15- or 20-second pause, the police car proceeded forward, without first re-activating the siren. Officer Murray testified that by the time he proceeded past the bus through the intersection, the bus driver's earlier hand gesture had no further effect on his driving decisions.
At this time, plaintiff was riding his motorcycle at a speed of 20 to 25 miles per hour eastbound on West 10th Street with the light at the West 4th Street intersection in his favor; with the bus obstructing his view of the police car on West 4th Street, he saw nothing to concern him, and he heard no siren. As he proceeded into the intersection, he collided with Officer Murray's police car as it continued further into the intersection.
The Transit Authority moved for summary judgment dismissing plaintiff's complaint as against it. Thus, we are concerned not with plaintiff's claim of liability against the City of New York based on the actions of the police car, but only his claim based on the conduct of the bus driver. The motion court denied the Transit Authority's motion, relying on a common-law rule that "[u]nder certain circumstances, a driver of a motor vehicle may be liable to a pedestrian where that driver undertakes to direct a pedestrian safely across the road in front of his vehicle, and negligently carries out that duty" (Valdez v Bernard, 123 AD2d 351, 351 ; see also Yau v New York City Tr. Auth., 10 AD3d 654 , lv denied 4 NY3d 701 ; Robbins v New York City Tr. Auth., 105 AD2d 616 ; Riley v Board of Educ. of Cent. School Dist. No. 1, 15 AD2d 303, 305 ).
On appeal, the Transit Authority challenges this rule, suggesting that as a matter of policy, the law should not turn drivers into traffic guards by virtue of a simple, ambiguous movement of the hand (see generally Joseph B. Conder, Annotation, Motorist's Liability for Signaling Other Vehicle or Pedestrian To Proceed, or To Pass Signaling Vehicle, 14 ALR5th 193). It protests that a driver yielding the right of way to another should be able to gesture to the other simply to confirm his or her intention to yield, without incurring liability for another motorist's actions. In addition, the Transit Authority suggests that, even accepting the correctness and viability of this rule, the duty imposed by such cases as Yau (10 AD3d at 654) does not extend beyond the person to whom the gesture was made, so that where the plaintiff did not personally rely on the gesture, proximate cause cannot be established. Finally, the Transit Authority contends that, in any event, under the circumstances here, the actions of its bus driver cannot be considered a proximate cause of the accident.
To determine whether there are circumstances in which a city bus driver with the right of way who yields to a police car with lights and siren activated may be liable to a third motorist who, in passing the stopped bus and proceeding properly through the intersection, is struck by the police cruiser, we must analyze the intersecting issues of duty, proximate cause and public policy.
There has long been an ongoing debate concerning the elements of tort liability, particularly the element of duty. That issue was the focus of both Judge Cardozo's majority decision and Judge Andrews's dissent in Palsgraf v Long Is. R.R. Co. (248 NY 339, 344, 350 ), and it is a debate that continues today (see Weinrib, The Passing of Palsgraf?, 54 Vand L Rev 803 ), particularly in the context of a new proposed revision of the Restatement of Torts (see Twerski, The Cleaver, the Violin, and the Scalpel: Duty and the Restatement [Third] of Torts, 60 Hastings LJ 1 ). Judge Cardozo's classic formulation in Palsgraf, that "[t]he risk reasonably to be perceived defines the duty to be obeyed" (Palsgraf at 344), emphasizing the link between duty and the foreseeability of harm to a particular person, may have undergone some adjustment in the more recent formulation that "[f]oreseeability of injury does not determine the existence of duty" (Eiseman v State of New York, 70 NY2d 175, 187 ). Nevertheless, it remains true that a defendant will be held liable in tort only where that defendant can be said to have breached a legal duty to the plaintiff "to conform to a certain standard of conduct, for the ...