Bus Driver Arrested After Forgetting Toddler; Emotional Distress? - The New York Personal Injury Law Blog

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Bus Driver Arrested After Forgetting Toddler; Emotional Distress?

A Queens Bus Driver was taken into custody after a Con Edison worker called 911 to report that a two-year-old girl was left on the parked bus, reports CBS New York. The police were alerted and responded to the call, rescuing the girl from a locked bus. EMTs examined her and determined that she was in good condition before reuniting her with her mother at the 110th Precinct in Queens.

The driver, Ana Garcia, 62, was arrested and charged with failure to exercise control over a minor. The child was supposed to be dropped off at Kathy’s Day Care in Queens.

In addition to criminal charges, civil liability could be legally possible if the child was harmed in any way. If she was harmed physically, there are negligence torts to work with, but the tough question is whether there can be liability if the child was harmed emotionally.

New York has reluctantly been expanding its field of emotional distress recovery, from intentional to negligent. For a while, resulting physical harm was required and still mostly is. However, a landmark case in 2001 expanded negligent infliction of emotional distress to cover situations in which the distressor had a duty to the distressee.

In that case, a doctor mistakenly implanted a woman's embryo into the fetus of another woman. The court allowed a case to proceed under the theory of negligent infliction of emotional distress "when there is a duty owed by defendant to plaintiff, [and a] breach of that duty result[s] directly in emotional harm."

With this bus driver, there clearly was a duty to keep the child safe and to deliver her to the day care. In fact, the criminal charge of failure to exercise control over a minor pretty much establishes that there was a duty possibly set by law, so recovering under a theory of negligent infliction of emotional distress is a real possibility.

As a bonus for the lawyers, because Ana Garcia was an employee of Anita Bus, and was working at the time, Anita Bus would also be liable for Garcia's failure. That means deeper pockets and more money.

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