The first element of a negligence claim is a question of duty.  If the plaintiff cannot first establish that he was owed a duty of care, the claim will fail.  Many cases are built around creative theories of duty.  Whether the courts will find a duty often depends on a myriad of factors such as the relationship of the parties, nature of the risk, and the impact of the imposition of the duty on public policy.

In Arroyo v. We Transp., Inc., the infant plaintiff, a 3-year-old special needs child was left unattended on a school bus owned and operated by defendant We Transport. He remained on the bus for six hours after failing to exit upon arrival at the defendant school.

The plaintiff asserted two theories of liability: One, that the school had a duty to remove the special needs plaintiff from the bus, and two, that the school assumed a duty to ensure the plaintiff’s safe arrival at school. To impose liability for an assumed obligation, the plaintiff must show not only that defendant undertook to provide a service and did so negligently, but also that the conduct in undertaking the service somehow placed the plaintiff in a more vulnerable position than he would have been in had the defendant never taken any action at all. To support the assumed duty theory, the plaintiff pointed to the school’s policy and practice to ascertain and confirm the whereabouts of students who are absent from class.

The school moved for summary judgment, asserting that it did not have a common law duty to remove the plaintiff from the bus because its duty did not arise until it took physical custody of the plaintiff and that even if it assumed a duty of care through its policy to ascertain the whereabouts of students, the plaintiff could not show that he relied on this duty or that he was placed in a more vulnerable position because of the school’s failure to follow its procedures.

The Second Department agreed and drew the line on the school’s duty at the door. Since the plaintiff never exited the bus, the school did not owe the plaintiff a common-law duty.

Thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at .