## Facts

- A five-year-old child rode a city bus with her mother.
- A man repeatedly boarded and exited the bus and, on his last exit, left a large orange bag behind.
- The bag began ticking; passengers became alarmed, and one passenger shouted that there was a bomb and demanded the driver stop.
- Passengers panicked and moved toward the doors; the mother grabbed the child and moved forward.
- The driver made a sudden stop in the street and opened the doors; passengers exited quickly.
- The child allegedly stumbled during the stop and suffered a head injury.
- The child, by her mother, sued the Transit Authority and the driver for negligence based on the sudden stop.
- Defendants denied negligence and pleaded comparative negligence, but did not plead the emergency doctrine; they later moved for summary judgment based on the emergency doctrine.

## Issues

1. Must a defendant plead the emergency doctrine as an affirmative defense to rely on it on summary judgment in a negligence action?
2. Do the undisputed facts establish, as a matter of law, that the driver faced an emergency and responded reasonably, requiring dismissal of the negligence claim?

## Decision

- The Appellate Division affirmed summary judgment for defendants and dismissed the complaint.
- The court held the emergency doctrine need not be pleaded as an affirmative defense because it is part of the ordinary negligence reasonableness inquiry.
- The court held the ticking bag, bomb warning, and passenger panic created a sudden and unexpected emergency not of the driver’s making.
- The court concluded the driver’s sudden stop and opening the doors to allow passengers to exit was reasonable under the circumstances, leaving no triable issue of negligence.

## Legal Principles

- Negligence is the failure to exercise the care a reasonably prudent person would exercise in the same situation.
- Under New York’s emergency doctrine, when a person confronts a sudden and unexpected circumstance leaving little or no time for deliberation, the person is not negligent if the response is reasonable in the emergency context.
- The emergency doctrine is not a distinct avoidance; it refines the reasonable-person standard and may be raised to show no breach of duty as a matter of law.
- Summary judgment is proper where undisputed facts show an emergency and a reasonable response, eliminating any triable issue of negligence.

## Conclusion

The court held that the emergency doctrine may be invoked on summary judgment without being pleaded as an affirmative defense and that the bus driver’s abrupt stop in response to a perceived bomb threat was reasonable as a matter of law, warranting dismissal of the negligence claim.


Bello v. Transit Auth. of N.Y.C., 12 A.D.3d 58, 783 N.Y.S.2d 648 (N.Y. App. Div. 2d Dep’t 2004)