Key Takeaway
Court case analysis examining "use and operation" coverage when bus driver refused to activate lift device, comparing to Cividanes precedent and questioning the legal distinction.
Matter of New York City Tr. Auth. v Physical Medicine & Rehab of NY PC, 2018 NY Slip Op 01260 (1st Dept. 2018)
“Contrary to petitioner’s arguments, the facts of this case are distinguishable from those in Cividanes v City of New York (20 NY3d 925 ), in which the Court of Appeals found that benefits were not available under the no-fault Insurance Law because the plaintiff’s injury did not arise out of the “use or operation of a motor vehicle” (Insurance Law § 5104). In that case, the plaintiff exited a stopped bus and fell when she stepped into a hole in the street. The Court determined that the bus was neither a “proximate cause” nor an “instrumentality” that produced her injury (id. at 926 ; see also Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211 ).
Here, the bus driver activated the lift device of the bus to assist Valerie Mathis when she boarded the bus. Subsequently, when she was exiting the bus, the bus driver refused to activate the lift device or to lower the bus. As a result, she was forced to place her walker out in the street, and then fell over while attempting to exit the bus.”
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I do not buy this at all. The cited to case (civadenes) notes that when you step off a bus and get hurt, there is no coverage. Same facts here, except the lift device was not activated. As a college friend during a drinking game would say: “I call bull****”. I could not resist.
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