Opinion
# 2017-029-051 Claim No. 108576
08-25-2017
ALFREDO ARAGONA, et al. v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY
LIPPES & LIPPES By: Richard J. Lippes, Esq. BY: LYNCH, TRAUB, KEEFE and ERRANTE, P.C. By: Daniel P. Scholfield, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General
Synopsis
The claim by 105 claimants residing in households near Interstate 84 and Route 6 in the Town of Greenville, Orange County, pleads negligence, nuisance and trespass arising from alleged contamination of domestic well water with road salt used by New York State and the New York State Thruway Authority ("NYSTA"). The claim was filed in 2003, dismissed for lack of prosecution in 2014, then restored to the calendar in 2015 with 42 remaining claimants. A bifurcated trial on liability was held on February 21-24, 2017. The parties stipulated that claimants would not assert negligence based on the amount of salt used or its application, and would limit their grounds to NYSTA's failure to correct the salt contamination. The court found defendants not liable based on claimants' failure to establish a prima facie case that defendants' actions were unreasonable or unjustifiable as a matter of law.
Case information
| UID: | 2017-029-051 |
| Claimant(s): | ALFREDO ARAGONA, et al. |
| Claimant short name: | ARAGONA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 108576 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | LIPPES & LIPPES By: Richard J. Lippes, Esq. BY: LYNCH, TRAUB, KEEFE and ERRANTE, P.C. By: Daniel P. Scholfield, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 25, 2017 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim pleads causes of action for negligence, nuisance and trespass arising from alleged contamination of domestic well water with salt used by defendants on Interstate 84 ("I-84") and State Route 6 ("Route 6") to control ice and snow. The 42 remaining claimants own, possess or occupy eighteen households in the Town of Greenville, Orange County in the vicinity of I-84 and Route 6. They seek $250,000 in damages per claimant, and an injunction against further contamination.
When the claim was filed in November, 2003, there were 105 claimants. Many of the claimants abandoned the claim over the years, and by order filed October 24, 2014, the court dismissed it for lack of prosecution. By decision and order filed April 15, 2015, the court granted claimants' motion to vacate the dismissal, conditioned on claimants' counsel filing a note of issue and certificate of readiness by a date certain. The conditions were met and by order filed July 23, 2015, the court restored the claim to the calendar for the remaining 42 claimants.
The court issued a decision and order dated January 24, 2005, granting in part defendants' motion in limine and limiting the claim to damages sustained after August 31, 2002, which was 90 days before the notice of intention was served. The court denied, without prejudice, the request in defendants' motion for an order precluding any claims accruing after November 26, 2003, the date the claim was filed. The court based its denial on defendants' failure "to disprove that a 'continuing tort' exists." A bifurcated trial on liability was held on February 21-24, 2017.
In the same decision and order, the court denied defendants' motion to dismiss the claim for failing to comply with the pleading requirements of Court of Claims Act § 11(b).
Only four of the claimants testified, two from each side of I-84 - William Walker, James Sullivan, Freddy Conklin and Edwin Sierra. Defendants objected, arguing that proof of liability for nuisance and trespass required testimony from a representative of each property (T: 773-774). Also testifying for claimants were David Curtis, an environmental engineer employed by the New York State Thruway Authority ("NYSTA") and Thomas Cusack, a hydrogeologist testifying as an expert in the field of hydrogeology. Experts' C.V.s, disclosure and notes were admitted as court exhibits 1-4.
In its April 27, 2016 decision and order, the court determined that if liability is found, "the court will consider whether to schedule either a consolidated damages trial or seriatim trials, at which time each of the remaining claimants shall present evidence of their actual damages and/or injuries, and proximate cause thereof."
References to trial transcript are indicated herein (T: ).
The following claimants' exhibits were admitted into evidence: 1 (test results); 6 (12/6/93 letter); 8 (4/29/94 letter); 9 (12/22/94 letter and test results); 10 (11/19/94 letter); 13 (4/6/95 memo); 15 (4/18/95 letter and test results); 18 (2/5/96 letter); 20-21 (5/5/97 and 7/7/97 letters); 27 (5/4/01 letter); 28 (2001-2002 test results); 29 (1997-1998 meeting attendance sheets and minutes); and 31 (maps).
At the close of claimants' case, the parties' attorneys stipulated that claimants would not be basing their claim of negligence on either the amount of salt used or the manner of its application. Rather, the grounds for negligence claimants intended to pursue would be limited to NYSTA's failure to correct the salt contamination and their general "course of conduct" (T: 584-585). Defendants also moved to dismiss the case as to claimants Sullivan and Walker, arguing lack of proof "as to salt contamination in the relevant period since August 2002" (T: 776). The court reserved decision on the motion (T: 777).
Defendants called Nicholas Pucino, an engineer employed by the New York State Department of Transportation ("NYSDOT"). Pucino testified as an expert in highway design, construction, maintenance and drainage. The following defendants' exhibits were admitted into evidence: C (I-84 record plans); D (State Route 6 record plans); E1 (photo - I-84); E2 (tax map); F ("Hawthorne Lake 5" contour plan); G (I-84 drainage and runoff study); H (photos - Firehouse Road); I (photos - gutters, CO Rd 35); J (County of Orange communications); K (meeting minutes summary); L and N (topographic maps); and O ("Manner of Construction of In-Ground Drains").
There is no dispute that NYSTA maintained I-84 from 1991 until 2010, when NYSDOT resumed its former maintenance obligations, and that NYSDOT has maintained Route 6 since its opening in 1928. There is also no dispute that road salt is used to deice I-84, Route 6 and town and county roads in the vicinity of households on Firehouse Road and the Hawthorne Lake area, that well water used by some residents is salty, and tests of their well water have shown elevated chloride levels.
Claimant William Walker testified that he has lived in the area his entire life. Walker moved into his house at 43 Firehouse Road around 1979 to 1981. He identified the location of his house on maps, showing his property is in the Exit 2 area of I-84 (T: 15-17; Exh. 31 [pages stamped as depo. exhs. 152 and 158]). Firehouse Road is a town road, and I-84 comes off onto Mountain Road, which is a county road (T: 20-21). When Walker moved in to his house, there was a well behind it (T: 35-37). He had a new 255 foot well drilled about 50 feet west of the house around 1983. It had about 19 feet of casing. Their septic tank is about 50 feet east of the house and 100 feet from the well cap (T: 41-44). I-84 is about 50-75 feet above his house (T: 47). He started tasting salt in the water around 1990, first in water from a spring at the Fowler residence north of the bend in Firehouse Road (Exh. 31 [depo. exh. 152]; T: 48-53). Around 1992, water from his well started to taste salty, and then they started seeing a white substance on fixtures. After that, dishes were spotty after washing and a white cake formed around the drain in the dishwasher. They had to replace the dishwasher a few times and had to replace corroded fixtures "quite often" (T: 54-56, 64-65). The water has remained salty, worsening in the winter when the roads are salted and improving in the summer (T: 61-63). Salting is done on I-84, Route 6 and Firehouse Road (T: 64).
Walker's wife, Ann, started writing letters to agencies about the salty water. She wrote the Environmental Protection Agency ("EPA"), NYSDOT, then NYSTA after that agency took over salting the roads in the early 1990's (T: 73-75). In 1992 they had a water softener system, but they disconnected it after being told it could be causing the saltiness (T: 71-72). The Walkers had the water tested in 1993, and the results indicated 2060 milligrams of chloride per liter, with "250" in parentheses (T: 88-89, Exh. 2). His wife again wrote letters to the EPA, NYSDOT, NYSTA and Congressman Benjamin Gilman (T: 89-90). NYSTA offered and began providing bottled water. They get six five-gallon bottles every three weeks, which continues (T: 92-95). In an April 29, 1994 letter to Ann Walker (Exh. 8), Robert C. Donnaruma, Chief Engineer of NYSTA's Department of Maintenance Engineering, stated:
"As you are aware the Authority has the obligation to maintain I-84 in the safest possible condition. Use of deicing materials, including salt, during winter storm events is an integral part of this operation.
The Authority is concerned with the elevated levels of chloride in your well water. In the spirit of being a good neighbor we are offering to arrange for you to receive bottled water for drinking and cooking at our expense until a resolution is found. Please be assured that we are working toward a long term solution and will urge other local and State agencies to join us in the search."
Walker recognized a November 4, 1994 letter from NYSTA advising they were going to do testing of the water. NYSTA began testing and continued up to about a year or a couple of years ago (T: 99-100; Exh. 9 at p. 23). In another letter (Exh. 15 at pp. 58-60), NYSTA advised the Walkers of the chloride test results. For the test taken on February 21, 1995, the result was 598 milligrams of chloride per liter, and for the test taken on March 24, 1995, the result was 906 (T: 103-105). Officials from the Town of Greenville, NYSDOT and NYSTA held a meeting in the mid-1990's to come up with a solution, but other than the bottled water, nothing has been done (T: 105-108).
On cross-examination, Walker testified that he did not notice saltiness in his water right after he dug the new well (T: 139). A 1986 letter from the Department of Health, County of Orange, notified them of a test result for aromatics in their well water (Exh. J). Walker did not recall contacting the county about problems with the water (T: 140-142). Their water is hard, reducing suds, which could explain spots on washed cars and problems with the dishwasher (T: 145). The test done by NYSTA for salt also found that hardness "greatly exceed[s] suggested limits" (Exh. 1). The hardness fluctuates. (T: 146-149).
Claimant James Sullivan testified that he has lived at 55 Firehouse Road for 24 or 25 years. They had a 440 foot deep well dug behind the house after it was completed in 1992. The well is about 30 feet from the house and 50-75 feet from I-84 (T: 189-197). The water did not taste peculiar when he first moved into the house in September 1992. He noticed it was salty around February 1993. They developed scaling and white caking on the faucet fixtures and the dishwasher stopped working. He tasted salt in the shower. There was a white film on his black truck after washing it (T: 199-202). The saltiness is worse in the winter (T: 204). He got rid of the dishwasher, which was caked with white, and the shutoff valves for the pipes are also caked. The problem is continuing (T: 205-207). Route 6 and Firehouse Road are salted (T: 208-209). His water tested for chloride at 1560 milligrams per liter and hardness at 2060 (Exh. 1 [document #3]; T: 212-215). NYSTA notified them by letter they would be supplied with drinking water. Water is delivered every Tuesday (Exh. 8). This is continuing (T: 215-217). Tests in 1995 showed chloride levels of 1220 and 1350 milligrams per liter (Exh. 15 [pages stamped as depo. exhs. 61-63]; T: 219-221). Around 1996, NYSTA tried to ameliorate the problem by putting up a snow fence, widening the shoulder and putting up a berm to divert the water, but the salt problem remained. They have not done anything else (T: 222-224).
On cross-examination, Sullivan testified that in bad weather, vehicles on the highway throw up a salty brine. Other than a well cap, he has not taken precautions to protect his water. The water was heated by running a coil through the furnace, but that got clogged so a hot water heater had to be installed. He tasted the white cake and it was salty (T: 228- 235). NYSTA paved the gutter behind his house, running a couple of hundred feet along the highway across to his other neighbor, the Gowans, diverting water into them. The Gowans constructed their house after him. The paving does not run all the way to Route 35, but there is a steep slope, riprap and a channel leading down from the end of the paving and a cattle-way going under I-84. Water is discharged down toward Route 35 (T: 236-238).
Claimant Freddy Conklin testified that he has lived at 8 Ash Street, Port Jervis for eight and a half years, and before that he lived at 39 Raymond Drive from 1997 (T: 258-259, 263). Water tested at the bank's request before they moved into the Raymond Drive property was not tested for chlorides (T: 263). The water became salty within the first two years. After he moved out, he continued to own the Raymond Drive property. He could not sell it and renters stopped paying, so it was foreclosed on in 2016 (T: 264-270). The salt was worse in winter. They stopped drinking the water but it continued to dry skin and stain faucets and drains (T: 272-273). I-84 and Route 6 are about an eighth of a mile away. There is a septic tank on the property (T: 273-274). They bought their own bottled water. There were discussions, but no State agency provided them water. They worked collaboratively with their neighbor, Dawn Hulse Sierra, to take action, with her leading the charge (T: 276-278). Exh. 28 [page stamped depo exh 113] is a report of results from a test of his water done in October 2001. It shows 1025 milligrams of chloride per liter (T: 280-284). There is no salt problem at his Ash Street home. He was not contacted personally by a State agency about the salt problem, and he does not know if his wife was contacted (T: 287-288).
There is no claim as to the Ash Street property.
On cross-examination, Conklin stated he first noticed the salty taste shortly after moving to Raymond Drive (T: 291). He does not recall if chloride was one of the things tested for when the test required by the bank was done before he moved into Raymond Drive (T: 293-294). They still tasted salt when they put in a new well in 1998 but it was a little better (T: 294). Raymond Drive is salted sparingly by the town (T: 295). Route 6 is lower than his house in elevation (T: 297).
Edwin Sierra testified that he owns 43 Raymond Drive, Port Jervis and has lived there since 1997 (Exh. E-1 [map], T: 299-305). He was married to Dawn Hulse (T: 305). He has a well about ten feet in front of the house and a septic tank in the back. I-84 is located to the right of his house about an eighth of a mile away, and Route 6 is in between (T: 307-309). When he moved in, the water tasted like ocean water and there were white, dry, flaky stains around the faucets and drains. He has had to replace leaking pipes. He does not drink the tap water, he drinks Poland Spring that he gets from Walmart (T: 309-311). There was testing in 2002, showing 270 milligrams of chloride per liter. No governmental entity has offered to pay for the bottled water, and the problem persists (Exh. 28, pg. 117, T: 313-316). Raymond Road itself is in the Town of Greenville, which controls ice removal (T: 316-317).
David Curtis testified that he is an environmental engineer who has been working with NYSTA since 1996. He became involved in NYSTA's response to complaints of increased sodium chloride levels in the well water of residents neighboring I-84 and Route 6. Testing was done and bottled water provided to residents who complained of increased levels. He attended meetings convened at the request of legislators. There were representatives from NYSDOT, the county and the town. NYSTA received complaints, but did not "investigate." They all wanted to work together and come up with a solution (T: 328, 342-345).
NYSTA disagreed with the opinion of the Regional Director for the New York State Department of Environmental Conservation ("NYSDEC"), that "the Thruway Authority is the logical source of these instances of groundwater contamination" (T: 360; Exh. 27 [2001 letter to NYSTA]). Curtis testified he thought the Regional Director was expressing a "personal opinion" (T: 360). Curtis would have liked to have the water tested to determine the type of chloride, but he did not say this to any of his superiors. The test was NYSDEC's responsibility to perform (T: 400-401).
NYSTA agreed to test for chlorides in the water of households on Firehouse Road and of a few further up on Route 6. Before he started at NYSTA, they requested that testing be done upstream of water softening units, which add brine to the water (Exh. 10 [11/29/1994 letter]; T: 364-370).
Thomas Cusack was accepted as an expert in the field of hydrogeology (T: 475; Court Exhs. 1-3 [CV, notes, disclosure]). In Cusack's opinion, elevated levels of salt in the Firehouse Road and Hawthorne Lake areas were caused by water containing dissolved road salt, primarily from I-84 and Route 6, that traveled through fissures in the bedrock and into the affected wells. Chloride concentrations increased in the winter, with a lag time between brine entering the bedrock fissure system, then traveling through, becoming more diluted with distance (T: 532-547). Cusack concluded that paving the entire swale area "would not mitigate the solution [. . .] the concentrations are high enough that even if it's mitigated, or even if they stopped applying road salt, we're still going to see sodium and chloride historically over the long term" (T:567-568). In his opinion, "the most viable alternative would be the development of a small public water supply source" (T: 563-565).
Several of claimants' exhibits show the remedial efforts undertaken by NYSTA after receiving residents' complaints, beginning in 1993, and the involved agencies' (town, county and state) attempts to agree on a joint solution to the water problem.
A July 22, 1993 letter from NYSDEC to NYSTA references "salt contamination complaints," "Route 6 and I-84," and "(T) Greenville, Orange County," notes an attached table summarizing the results of chloride samples collected at "local homes" on June 10, 1993, and summarizes remedial actions NYSTA will undertake (Exh. 6). In letters to households dated April 29, 1994, NYSTA's Chief Engineer Robert C. Donnaruma offers to provide bottled water to the following households: on Firehouse Road - Eva and Bev Walker, K. Fowler/Walker; and on Route 6 - Simone/Grygus and Cavanaugh. Donnaruma explains in the letters that NYSTA "has the obligation to maintain I-84 in the safest possible condition," and they do so in part by using salt to deice (Exh. 8).
April 18, 1995 letters from NYSTA Environmental Engineer Donald R. Bell to the following residences reference and enclose test results analyses: on Firehouse Road - Eva and Bev Walker, Karen Fowler and George Elston; and on Route 6 - Simone/Grygus and Cavanaugh (Exh. 15). In response to a January 11, 1996 letter from the district's Member of Congress Representative Benjamin A. Gilman, NYSTA's Division Director Ramesh Mehta addresses the elevated salt problem that Gilman's constituents have been complaining about. Mehta states that NYSDOT maintained I-84 from 1966 until 1991, when NYSTA took over, and that NYSDOT maintains Route 6 in the relevant vicinity. Mehta explains that both agencies deice in winter, as do Orange County and the Town of Greenville for local streets in the area. As to addressing the elevated salt problem:
"The combined run-off from I-84, Route 6, and other local streets over the past many years may have contributed to the high chloride levels in the well water of some of the dwellings in this area. We, therefore, believe that it may not be appropriate to request that the Authority solely find and implement solution(s) to this problem. Participation by the NYSDOT, Orange County, Town of Greenville, homeowners, and the Authority is considered prudent in evaluating the test results, deciding on a solution, and implementing the retrofit by sharing costs."
(Exh. 18).
In a May 5, 1997 letter, NYSTA's Executive Director John Platt responds in the affirmative to a query from State Senator Charles Cook regarding whether salt use on I-84 could be decreased:
"We are taking several steps to exercise greater control to reduce the volume of salt spread and make the amount that is spread more effective [. . .] On the section of I-84 from Port Jervis to Newburgh, about 40% less road salt was applied during the winter of 1996-1997 than applied during the winter of 1995-1996. In addition, the highway drainage improvements made in the vicinity of Firehouse Road also provided some reductions in well water salt levels" (Exh. 20).
In a July 7, 1997 letter to Timothy McDonald, the Supervisor for the Town of Greenville, Mehta refers to salt contamination complaints NYSTA received in 1993 from the homeowners on Firehouse Road, and complaints from some households on Route 6 in Greenville (Exh. 21). He mentions the Authority's remedial actions, and two meetings attended by representatives of the involved government agencies, and the affected residents' Congressional representatives. At the second meeting, on June 27, 1997, attendees discussed programs to resolve the water problems, and funding programs. It was determined that any of the funding options would require local sponsorship. McDonald states, "We felt, finding a permanent solution to the problem should not be the Authority's sole responsibility as I-84 has been salted by the NYSDOT for 25 years, and other roads in the area are still being salted by the NYSDOT and other local municipalities."
At an August 14, 2001 meeting, representatives from NYSDOT, NYSDEC and NYSTA, along with the regional water engineer, discussed the elevated chloride levels (T: 445-447). Minutes of the meeting (Exh. K) show that in the summer of 1998, NYSTA, NYSDOT, the Town of Greenville and the County of Orange reached an agreement, without admitting guilt, as to affected households on Firehouse Road: (1) to provide under-the-counter "Reversed Osmosis" treatment units to affected households; (2) to provide the town "with the ability to develop a study that would be used to seek funds for an area wide public water supply/system," the operation and maintenance of which is a local issue; (3) the town would take the lead in providing engineering required to identify a possible source of public water; and (4) to share jointly in the provision of $34,000 to implement the agreement, with NYSTA and NYSDOT each providing $10,000. A written agreement they prepared had been sent to the town for execution, but the town had not executed the agreement or notified NYSTA "as to specifics." The meeting attendees also discussed elevated chloride levels at several Hawthorne Lake homes "near NYS Rte 6," "quite a distance" away from Firehouse Road. DEC Regional Director Moran indicated there was not enough information "to point at either I-84 or NYS Route 6 maintenance."
Nicholas Pucino testified on defendants' behalf. He was accepted by the court as an expert in highway design, construction, maintenance and drainage (T: 790-792, 802; Court Exh. 4 [C.V.] ).
In Pucino's opinion, an incursion of salt-tainted surface water from I-84 to claimants' properties could have occurred if snow or melt-water was incidentally sprayed or blown by traffic on the highway beyond the constructed drainage features (T: 907-908). He explained that a closed sewer system, culverts, gutters and drainage swales directed most surface waters to surface streams that discharge into the lake or wetland adjacent to County Road 55. Only a small segment of I-84 did not flow into streams, but its drainage was controlled by earthen swales and a paved gutter directing runoff into a pond and wetland area (T: 854-859, 866-878).
Case In Chief
At the outset, the court notes that this case is significantly different than other salt contamination cases. In most other cases, the defendant had incorrectly stockpiled road salt in so called "salt dumps" and allowed leachate from those salt dumps to contaminate ground water. To the contrary, all parties in the instant matter concede that both NYSTA and NYSDOT have performed their nondelegable duty to keep the highways safe in a correct and reasonable manner. Further, in this specific case, there is a substantial public policy question implicated in balancing potential harm to 42 homeowners against the safety of thousands of motorists using I-84 and, to a lesser but substantial amount, Route 6. While the court is not unsympathetic to the circumstances in which these homeowners find themselves, both the public policy question and the case law to be discussed, infra, clearly militate against a finding of liability on the part of either the Thruway Authority or the State.
The problem facing claimants is a difficult one. Based on the record, it is more likely than not that the well infiltration is from road salt applied by NYSTA, NYSDOT, county and local municipalities. It is well documented in the record that the saltiness of the water increases in winter and decreases in summer, which is circumstantial evidence that road salt is the culprit. Claimants' expert's testimony regarding subsurface fracture patterns and aquifer connection is also persuasive but not in any way dispositive. For the most part, his testimony is inferential, though extremely well-educated. Mr. Cusack is basing his observation of bedrock conditions at the surface and chloride levels shown in the water tests. He postulates that the fracture patterns in the deep subsurface rock formations are the pathways for the road salt to infiltrate the wells. In addition to the defendants, there are at least two other municipalities that salt the roads in the area surrounding the claimants' homes and no expert in this case can, with any certainty, ascertain whether or not that salt is the contaminant factor.
Mr. Pucino is an engineer who deals in such matters as surface topography, but not sub-surface matters such as hydrogeology, except tangentially in highway design and maintenance. In this matter, claimants' expert appears more qualified to opine on subsurface conditions. However, claimants have not met their burden to prove the elements of negligence, which are (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) a showing that the breach of that duty constituted a proximate cause of the injury (see Akins v Glens Falls City School Dist, 53 NY2d 325 [1981]; see also Ingrassia v Lividikos, 54 AD3d 721, 724 [2d Dept 2008]). The duty owed by the defendant is to use reasonable care under the circumstances (see Basso v Miller, 40 NY2d 233, 241 [1976]), and the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived (see Sanchez v State of New York, 99 NY2d 247, 252 [2002]).
Claimants failed to submit evidence of any unreasonable actions by defendants causing an unreasonable risk of harm. Claimants have abandoned their assertion that defendants were negligent in their use of salt for deicing the roads. Claimants have not identified or provided evidence of what additional remedial measures defendants could have undertaken to stop salt water runoff from traveling through cracks in the bedrock and entering the aquifer. In fact, their own expert testified that paving the entire swale would not mitigate the solution in the bedrock, and even if defendants stopped applying road salt there would still be high concentrations in the aquifer system. Nor have they suggested that defendants stop salting the roads entirely, an untenable solution in breach of the State's duty to keep the public safe on highways and roads.
The only "wrong" claimants have articulated and sought to prove is defendants' claimed failure to remediate the salt contamination problem. However, NYSTA did what it could to remediate the problem, without admitting fault. As claimants and their expert concede, there was nothing else that could be done and even the total cessation of road salt use would not solve the problem. The most viable solution, according to claimants' expert, is development of a small community water supply system, which is exactly what the state, county and town agencies attempted to undertake jointly in 2007, four years after the claim was filed, and five years after the notice of intention was served. Regretfully, this solution was never implemented. Claimants have not argued or proven that it was the State's or NYSTA's obligation to pursue a governmental function to the public benefit of an entire local community, and that the decision not to was anything but discretionary.
Likewise claimants are not entitled to damages for nuisance or for trespass. Both causes of action also suffer from a lack of proof. The elements of a private nuisance cause of action are: "(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act" (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977], citing Restatement of Torts § 822; see Massaro v Jaina Network Sys., Inc., 106 AD3d 701, 703 [2d Dept 2013], lv dismissed 21 NY3d 1057 [2013]). For the reasons already discussed, claimants failed to establish a prima facie case that defendants' actions or omissions were "unreasonable."
As to the claim for nuisance, claimants seek injunctive relief which is an equitable remedy. The Court of Claims has no such jurisdiction to grant this remedy.
The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission (see Ivancic v Olmstead, 66 NY2d 349, 352-353 [1985], cert denied 476 US 1117 [1986]). Intent is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act (see Phillips v Sun Oil Co., 307 NY 328, 331 [1954]). First, claimants have not shown it is more likely than not that salt contamination in these claimants' wells was "an immediate or inevitable consequence" of deicing I-84 and Route 6 with road salt. Their expert testified that the process by which salt infused water runoff entered the bedrock fissure system, eventually finding its way in varying states of dilution into the aquifer system, takes time, and the salt can remain in the bedrock for long periods. There was no showing that defendants knew it was inevitable that the salt being used to keep the traveling public safe in winter would enter claimants' wells through a circuitous and unpredictable subsurface route.
After reviewing the record and conducting the trial, it is clear to this court that the solution to the unfortunate circumstances affecting claimants herein is technological in nature. Claimants' expert, NYSDEC, the other state agencies, and apparently the county, all appear to have agreed upon that course and have identified potential solutions, but they have been unable to act upon them. Further, even were this court inclined to order such a technological solution, the Court of Claims does not have such authority and does not have jurisdiction over the county or the town.
Given the totality of the circumstances in this matter, as discussed previously, it would be unjustifiable as a matter of law for the court to find NYSDOT or NYSTA liable for properly and reasonably discharging their nondelegable duty to maintain the safety of the State's highways and roadways. It could also potentially subject the defendants to liability on a statewide basis. Clearly, a permanent solution, if attainable, lies with the executive and legislative branches.
Motion to Dismiss
In view of the decision on the merits, the defendants' motion to dismiss is denied as moot. However, it appears that the grounds cited for the motion merit further analysis. Defendants argue that the entire claim should be dismissed because the claims of all four representative claimants are untimely under the 90-day deadline in Court of Claims Act § 10, and the court's 2005 order precluding claims for damages sustained more than 90 days before the notice of intention was served. Defendants also argue that the claims of representative claimants William Walker and James Sullivan are barred by the three-year statute of limitations, CPLR 214-c (the "Toxic Tort Statute"). Under both statutes the court must first determine when the claim accrued, which triggers the running of the clock.
In the same decision and order, the court denied defendants' motion to dismiss the claim for failing to comply with the pleading requirements of Court of Claims Act § 11(b).
The verified answer pleads affirmative defenses that the claim is barred under the three-year statute of limitations, and the 90-day time limit under Court of Claims § 10.
CPLR 214-c requires that an action be commenced within three years from "the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff." The Second Department explained that, under CPLR 214-c, "discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, 'the injured party discovers the primary condition on which the claim is based.' " (Suffolk County Water Auth. v Dow Chem. Co., 121 AD3d 50 [2d Dept 2014]). The Suffolk County case involved multiple releases of a dry cleaning chemical at separate times that contaminated many of Suffolk County's wells providing drinking water to residents and businesses. In granting summary judgment and dismissing the claims for, inter alia, negligence, nuisance and trespass, the Second Department found, as a matter of law, "that the claims relating to the 151 wells where PCE contamination was discovered more than three years prior to the commencement of the action were time-barred" (id. at 58).
In its Suffolk County decision, the Second Department relied on a 2007 water contamination case involving the use of salt by the Town of Pound Ridge to deice roads and the plowing of salt-laden snow onto adjacent private property (see D'Agostino v Town of Pound Ridge, 41 AD3d 760 [2d Dept 2007]). In D'Agostino, the court held that the town established the claim was untimely under CPLR 214-c by proving "the plaintiffs became aware of a problem with their well water [. . .] when they first discovered that it had a high salt concentration, and were advised that the likely cause of the contamination was the town's use of salt to deice roadways" (id. at 762).
Here, the evidence clearly established that all four claimants who testified made a similar discovery in the early to mid-1990's. William Walker and James Sullivan knew or reasonably should have known in 1993 that their Firehouse Road households' water was contaminated with high levels of salt, and the contamination was likely being caused by the use of salt to deice nearby State, County and Town roadways, individually or in combination. Freddy Conklin and Edwin Sierra made the same discovery in 1997 when they moved into their homes in the Hawthorne Lake area. Based upon the testimony in the record, their claims accrued significantly more than three years before they served the notice of intention on November 29, 2002 and filed the claim on November 26, 2003.
The jurisdictional bar resulting from the claim's untimeliness under the Court of Claims Act would also be dispositive. Pursuant to Court of Claims Act § 10,
"No judgment shall be granted in favor of any claimant for personal injuries due to negligence, unintentional tort, or intentional tort of a State employee, unless a claim is filed and served upon the Attorney General within 90 days after the accrual of the claim, or the claimant, within 90 days after the accrual of the claim, serves upon the Attorney General a written notice of intention to file a claim therefor, and thereafter files and serves the claim upon the Attorney General within two years after the accrual of the claim."
As a condition of the State's limited waiver of sovereign immunity, those requirements are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim (see Williams v State of New York, 38 AD3d 646 [2d Dept 2007]; see also Welch v State of New York, 286 AD2d 496, 497 [2d Dept 2001]; Alston v State of New York, 281 AD2d 741 [3d Dept 2001], affd 97 NY2d 159 [2001]). As to the four claimants who testified, the State's immunity appears to remain intact. The remaining 38 claimants could possibly have timely claims, but at this point there is no evidence for the court to make that determination.
Claimants argue that tortious activity causing their injuries, i.e. road salting, is "recurring," so a new claim accrues whenever defendants salt the roads. Claimants base their theory on the rule that new wrongful conduct can give rise to new causes of action (and accrual dates) (see Suffolk County Water Auth. v Dow Chem. Co., 121 AD3d at 61). Claimants are correct about the rule, but erroneous in applying it to the facts here. Road salting is not a "wrong," and claimants have not submitted evidence that defendants otherwise acted tortiously or did so within 90 days, or even within three years, prior to service of the notice of intention. Unlike virtually all "salt infiltrate" cases, this case is not negligently storing or staging salt. Here, NYSDOT and NYSTA were doing their exact job in the correct way to protect public safety in furtherance of the State's "nondelegable duty to maintain its roads in a reasonably safe condition" (Friedman v State of New York, 67 NY2d 271, 286 [1986]; see Jeffries v State of New York, 148 AD3d 1125 [2d Dept 2017]). Even if the court were to find defendants liable for the salt contamination, the claim might very well be barred as untimely as to the claimants who testified, and to most, if not all, of the remaining 38 claimants. However, the decision on the merits obviates the need for the court to so rule at this juncture.
Accordingly, the court finds defendants not liable for negligence, trespass and nuisance and Claim No. 108576 is dismissed. The Clerk of the Court shall enter judgment accordingly.
August 25, 2017
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims