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Cheeseboro v. Little Richie Bus Service, Inc.

United States District Court, E.D. New York

May 30, 2017

CHAN CHEESEBORO, Plaintiff,
v.
LITTLE RICHIE BUS SERVICE, INC., JOSEPH RISITENEAU, BUS DRIVER, and "JOHN COE" MOTOR VEHICLE DRIVER, Defendants.

          MEMORANDUM & ORDER

          SANDRA L. TOWNES United States District Judge.

         Plaintiff Chan Cheeseboro ("Plaintiff) brings this negligence suit for injuries she sustained in a motor vehicle accident while riding in a school bus operated by Defendant Little Richie Bus Service, Inc. ("Defendant")[1]. Before the Court are Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, and Plaintiffs cross motion in limine to exclude the report and testimony of Defendant's psychological expert. Because the undisputed facts establish without question that Defendant violated no duty owed to Plaintiff, and because the Defendant is in any event immune under state law to Plaintiffs claim, Defendant's motion for summary judgment (Doc. 50), is GRANTED, Plaintiffs motion in limine (Doc. 53) is DENIED, and the case is hereby DISMISSED.

         I. BACKGROUND

         A. Facts

         The following facts are undisputed unless otherwise noted. On or about November 15, 2000, Joseph Risiteneau was operating a school bus owned by Defendant. The school bus was equipped with seat belts. Defendant's employee, Subrattran Corchado, was riding on the bus in her capacity as a "bus matron". Ms. Corchado testified that, when picking up a child on route, she will routinely "get out of the bus and the kid will come in, I walk after the kid, take them to the seat, make sure they put the seat belt on, some cannot do it, I have to do it for them." (Deposition of Subrattran Corchado ("Corchado Dep."), Feb. 12, 2014, Doc. 50, Ex. H, 10:14-18.) At approximately 7:30 a.m. on November 15, 2000, Mr. Risiteneau picked up Plaintiff in front of her home. Plaintiff was eight years old at the time.

         At approximately 8:00 a.m., while the school bus was travelling northbound in the service lane of Woodhaven Boulevard, a vehicle attempted to enter the service lane of Woodhaven Boulevard from the main lanes at 101st Avenue, causing an accident with the school bus. The parties dispute whether or not Plaintiff was wearing a seat belt at the time of the accident. Plaintiff asserts that as a result of the collision, she "was thrown around in [her] seat, and was thrown out of the seat into [sic] the aisle, injuring [her] neck and back." (Pl.'s Mem. of L. in Opp'n to Def.'s Mot. For Summary Judgment, Doc. 51, Exhibit 2, ¶ 5.) She further asserts that she "could not have been thrown out of [the] seat into the aisle if [she] had been wearing a seat belt that was properly fastened." (Id. at ¶ 6.) Ms. Corchado testified that following the accident she unbuckled the children's seatbelts and escorted them to Jamaica Hospital on another bus. (Corchado Dep., Feb. 12, 2014, Doc. 50, Ex. H, 16:10-17:7.)

         Plaintiff was evaluated at both Jamaica Hospital and Peninsula Hospital on the date of the accident, and was released. Plaintiff was in pain and missed school for a few days, but sought no further medical treatment until more than a year later after she moved to North Carolina. (Pl.'s Resp. to Discovery Demands by Defs. Little Richie Bus Service, Inc. And Joseph Risiteneau, Bus Driver ("Pl.'s Resp. to Defs.' Interrogatories"); Doc. 50, Ex. C, ¶ 6; Deposition of Chan Cheeseboro ("Cheeseboro Dep."); Nov. 11, 2013, Doc. 50, Exhibit D, 41:8-16; 42:3-15.) Plaintiff alleges that as a result of the accident she "sustained an injury to her spine which has resulted in scoliosis, " a permanent condition. (Pl.'s Resp. to Defs.' Interrogatories, ¶ 17.) She also alleges that she suffers from a potentially permanent post-traumatic stress disorder. (Id.)

         The record contains medical records from Jamaica Hospital on the date of the accident and from various medical services providers in North Carolina. The parties have also submitted the following expert reports: Plaintiffs Expert Disclosure of orthopedist Dr. Michael Roback, M.D., Defendant's Expert Disclosure of orthopedist Dr. Edward Crane, M.D., Defendant's Expert Disclosure of psychologist Dr. David Masur, Ph.D., and Plaintiffs Expert Report of Dr. Stephen S. Teich, M.D.. None of the reports are in affidavit form.[2]

         B. Defendant's Motion for Summary Judgment

         Plaintiffs Complaint asserts negligence as her sole cause of action, but both her legal and factual theories have apparently shifted during the course of discovery. Initially, Plaintiff alleged in her Complaint that Defendant was negligent for failing to equip the school bus transporting Plaintiff with seat belts. (See Amended Complaint ("Am. Compl."), Aug. 1, 2012, Doc. 4 at ¶ l2("As a result of the negligence of LITTLE RICHIE BUS SERVICE, INC. in failing to equip the bus in which Plaintiff was traveling with seat belts, [Plaintiffs] injuries were much more severe than they otherwise would have been.")) Likewise, and in response to Defendant's discovery demands, Plaintiff reiterated her position that "the defendant's] negligence consisted of failing to equip the passenger seats with seat belts." (Pl.'s Resp. to Defs.' Interrogatories, ¶ 12.) After discovery disclosed that Defendant's bus was in fact equipped with seatbelts and Defendant moved for summary judgment on those grounds, Plaintiff asserted a new theory of negligence in opposing that motion: that Defendant was negligent because Ms. Corchado, the bus matron, should have ensured that Plaintiff was belted at the time of the accident. (Pl.'s Mem. of L. in Opp'n to Def.'s Mot. For Summary Judgment, Doc. 51, at 7-10).

         Although the parties also dispute whether Plaintiff sustained a "serious injury" and therefore satisfied threshold damages requirements imposed under New York Insurance Law Section 5102(d), (see, e.g., Id. at 2-6), the Court only addresses the negligence issue because, even while assuming the presence of a genuine issue of material fact as to whether Plaintiffs injury was "serious, " Defendant is not liable as a matter of law under the doctrines of duty and immunity for reasons explained below. The Court nevertheless notes that the parties' filings on whether Plaintiff sustained a "serious injury" are deficient. When a defendant moves for summary judgment for lack of "serious injury, " as Defendants have done here, the Second Circuit has set forth a burden-shifting scheme that requires defendants to provide evidence in the form of sworn affidavits from its own physicians, and also requires a plaintiff to produce the same in response. See Yong Qin Luo v Mikel, 625 F.3d 772, 776 (2d Cir. 2010). The parties here have not provided the appropriate affidavits to permit the Court to conduct this analysis. See, supra, n. 2.

         II. ANALYSIS

         A. Standard of Review

         Summary judgment is appropriate only when "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.RXiv.P. 56(a); Celotex Corp. v. Carett, 477 U.S. 317, 322 (1986); see also Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). The moving party bears the burden of showing that there is no genuine issue of fact. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986). If the movant meets this burden, the non-movant must set out specific facts showing a genuine issue for trial. Parks Real Estate Purchasing Group v. St. Paul Fire and Marine Ins., 472 F.3d 33, 41 (2d Cir. 2006). The non-mo vant cannot avoid summary judgment "through mere speculation or conjecture" or "by vaguely asserting the existence of some unspecified disputed material facts." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (internal quotations and citations omitted). Moreover, "[t]he 'mere existence of a scintilla of evidence' supporting the nonmovant's case is also insufficient to defeat summary judgment." Nigara Mohawk Power Corp. v. Jones Chemical, Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252). Where the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can "point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found, 51 F.3d 14, 18 (2d Cir. 1995).

         B. Negligence

         As noted above, Plaintiff alleged in her Complaint and repeated in her responses to Defendant's interrogatories that Defendant was negligent for failing to equip the school bus with seat belts. (Am. Compl., Aug. 1, 2012, Doc. 4; PL's Resp. to Defs.' Interrogatories, ¶ 12.) Plaintiff abandoned that theory in briefs and, for the first time in her opposition to Defendant's motion for summary judgment, asserts a new theory of negligence-that Defendant is liable for Ms. Corchado's failure to ensure Plaintiff was properly belted at the time of the accident. As a preliminary matter, this new argument need not be considered. Lyman v. CSX Tramp., Inc., 364 F.App'x 699, 700 (2d Cir. 2010) (summary order) (district court did not abuse discretion by refusing to consider plaintiffs new theories of negligence raised in opposition to summary judgment) ...


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