Last month the Appellate Division Second Department set aside a jury verdict in favor of a pedestrian who claimed that she suffered a crush injury to her foot caused by a New York City Transit Authority (NYCTA) bus in an accident that occurred late at night in Brooklyn. The plaintiff testified that she was waiting for a bus on a sidewalk and walked a couple of feet toward the bus when she saw it approaching. The last thing she could recall before finding herself on the ground, as the bus pulled away, was walking toward the bus. The plaintiff believed "that she was hit by the bus but could not say  whether she was hit by any particular part of the bus." Worse, the plaintiff couldn't recall - but could only assume - that she had stepped down into the street as the bus approached. There were no witnesses and no incident report filed by the bus driver.

Clearly, given the crushed foot injury diagnosed at a hospital shortly after the incident, there was (likely) sufficient circumstantial evidence to prove the bus ran over the plaintiffs foot. However, as noted by the appellate court, "the mere fact that the plaintiff was struck by a bus did not prove the defendants' negligence." The court explained that "there was no rational process by which the jury could find in favor of the plaintiff" because plaintiff failed to meet her burden of proof to show that the bus driver was negligent and that such negligence was a proximate cause of the accident.