(dissenting).I would hold that on these facts the school district owed plaintiff’s daughter a duty of reasonable *404care, and that there is a triable issue as to whether her injury was proximately caused by a breach of that duty.
I
A school’s duty to its students arises because the school “in assuming physical custody and control over its students, effectively takes the place of parents and guardians” (Mirand v City of New York, 84 NY2d 44, 49 [1994]). In Pratt v Robinson (39 NY2d 554, 560 [1976]), we explained that when the school district’s custody of a child “ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child’s protection, the school’s custodial duty also ceases.” Cases in which school buses are picking up or discharging children are at the borderline between the school’s custody and the parents’ control, and it can be difficult in such cases to decide when the school district’s duty of care begins or ends.
I find two school-bus cases especially relevant here, Pratt and one of the decisions it relies on, McDonald v Central School Dist. No. 3 of Towns of Romulus, Varick & Fayette, Seneca County (179 Misc 333 [Sup Ct, Seneca County 1941], affd 264 App Div 943 [4th Dept 1942], affd 289 NY 800 [1943]). In McDonald, a child was injured while crossing the street immediately after getting off her school bus. The bus driver, in compliance with a school district rule, had waited at the stop after letting the children off, allowing them to cross in front of the bus. The driver saw, but failed to warn the child about, the car that hit her. A jury returned a verdict against the school district, and the trial judge, Justice Van Voorhis (later a Judge of this Court), denied a motion for a new trial. He said that “[t]he presence of the bus necessarily created some hazard,” because it obstructed the view of children and drivers, and he found evidence to support a finding that the school district “assumed a duty to protect [the child] against the special danger which it had created by its own rule” (id. at 336). The Appellate Division and this Court affirmed without opinion.
In Pratt, a child was dropped off by a school bus, walked three blocks toward her home, and then was hit by a truck while crossing a street. The school district was sued on the theory that it was negligent for failing to locate its bus stop at a place nearer to the child’s home. We held that the school district owed the child no duty, because the child had left the school *405district’s custody, and her parents could have resumed control. We distinguished McDonald as a case in which “the injury occurred during the act of busing itself, broadly construed,” and referred to Justice Van Voorhis’s observation that “when children must cross the street where the bus stops, the bus itself acts as an obstacle to their clear view of oncoming traffic” (id. at 561). We expressed a similar view of McDonald in Ernest v Red Cr. Cent. School Dist. (93 NY2d 664, 671 [1999]), where we summarized it as holding that
“although a school district’s duty of care toward a student generally ends when it relinquishes custody of the student, the duty continues when the student is released into a potentially hazardous situation, particularly when the hazard is partly of the school district’s own making.”
This case involves a child being picked up, not dropped off, by a school bus, but that distinction seems to me of little significance. I would hold that the case is within the rule established by McDonald and restated in Pratt and Ernest: A school district’s duty to use due care exists where an injury occurs during “the act of busing itself, broadly construed” and where the child is exposed to a hazard “partly of the school district’s own making.” Here, the school district’s bus had gone to the child’s house to pick her up, had mistakenly driven past and was returning to complete the pick up. This was the act of busing, broadly construed. And the hazard here was, accepting the facts as plaintiff claims them to be, of the school district’s own making. Plaintiffs daughter went into the street in direct response to the bus driver’s allegedly negligent maneuver. Imagine a case like this one, except with stronger proof of the bus driver’s fault: suppose for example, that the driver had negligently stopped the bus across the street from the child’s house, causing her to think she had to cross. In such a case, the school district surely should be liable for the resulting injury — and, on the duty issue, the hypothetical case is indistinguishable from this one.
The majority acknowledges that the logic of the school-bus drop-off cases might be extended to a pick-up case, but would find a duty, if at all, only where the child is “within the area of embarkation or transition” and only after the bus “stops to pick up passengers and engages its red flashing lights and stop sign to halt motorists” (majority op at 400). This limitation, for *406which the majority offers no rationale, seems wholly arbitrary to me. What logic justifies excluding a case like this one, where, because of the driver’s negligence, the bus failed “to stop to pick up a passenger” and then, according to plaintiff’s claim, made an ill-judged turn that lured the child out of “the area of embarkation and transition”? I think our precedents, fairly read, compel the conclusion that a duty existed here.
II
For me, the issue of whether the child’s injuries were proximately caused by a breach of the school district’s duty of care is more troublesome than the issue of whether there was such a duty. I do not find this a strong case against the school district. Indeed, I wonder whether plaintiff might have had more success on the duty issue if she had a stronger case on negligence and proximate cause. But I conclude that plaintiff has presented enough evidence on those issues to get to a jury.
Plaintiffs theory is, in essence, that the school district should have told its driver that plaintiffs daughter was a special needs child; that the driver, after he missed his stop, should either have taken her special needs into account or called in for instructions on what to do; and that the driver or his supervisor, knowing that the child’s mental disability could impair her judgment, should have foreseen that the returning bus would lead her to put herself in danger. This theory, while debatable, is not plainly wrong. It was endorsed by plaintiffs expert witness, a specialist in the transportation of students and of passengers with special needs, and it found further support in the testimony of the school district’s transportation supervisor. The supervisor testified that, had he known that the child “had some issues with her capabilities to understand what to do and not to do,” and had he been asked by the bus driver whether to turn the bus around, he would not have advised him to do so, because the turn could create confusion and danger. He would, he testified, have told the driver to go on his way and sent another bus; there was evidence that another bus was in the area. A jury could find that what the supervisor said he would have done is what due care required, and that the failure to exercise due care proximately caused the child’s injuries. I would therefore affirm the order of the Appellate Division.
Judges Graffeo, Rivera and Abdus-Salaam concur with Judge Read; Judge Smith dissents in an opinion in which Chief Judge Lippman and Judge Pigott concur.*407Order, insofar as appealed from, reversed, with costs, defendant Jordan-Elbridge Central School District’s motion for summary judgment dismissing the complaint and cross claims against it granted, and certified question answered in the negative.