Opinion
# 2011-032-007 Claim No. 109377
08-22-2011
MICHELLE M. HILL v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2011-032-007 Claimant(s): MICHELLE M. HILL Claimant short name: HILL Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Caption amended to reflect the only properly named defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 109377 Motion number(s): Cross-motion number(s): Judge: JUDITH A. HARD Kelleher & Associates Claimant's attorney: By: Thomas K. O'Malley, Esq. Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Kent B. Sprotbery, Assistant Attorney General Of Counsel Third-party defendant's attorney: Signature date: August 22, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
FACTS
The instant claim, which was filed on May 20, 2004, concerns a motor vehicle accident in the County of Saratoga, State of New York on February 19, 2003. The claim alleges that at approximately 4:00 P.M. on said date, claimant was turning onto Route 9N, from Brookview Village Mobile Home Park, when her vehicle was struck by another vehicle. Claimant alleges that she sustained severe permanent physical and psychological injuries as a result of said accident that was caused by the negligence of defendant. Specifically, she alleges that defendant was negligent in maintaining the road "in that area of Route 9N where the accident occurred" in that the snowbanks were "piled so high as to obstruct the view of persons traveling onto Rte. 9N", thereby creating a trap and danger for an "unwary motorist" (Claim, ¶ 5 [a]-[c]). Claimant further alleges that defendant should have known of this condition and, in fact, had actual and constructive notice of such (Claim, ¶ 5 [d]-[e]). The trial of this claim was bifurcated and this Decision addresses only the issue of liability.
At trial, claimant testified that on the date of the subject accident, she lived at Brookview Village Mobile Home Park (Brookview), in Greenfield Center, New York. At approximately 4:00 P.M., she was driving her car on Pinewood Avenue, a road inside said mobile home park, which led to 9N. She had taken this route earlier in the day to grocery shop. As she approached 9N, she stopped at the stop sign on Pinewood Avenue. It was a clear and sunny day, but a major snowstorm had occurred on the previous day. Claimant alleged that as a result of said snowstorm, snowbanks hindered her sight distance of 9N in both directions. After stopping at the stop sign on Pinewood Avenue and looking both ways, she entered the intersection to make a left turn onto Route 9N in a southerly direction. Claimant has no recollection of events after this moment until she awoke in the ambulance and was told that she was involved in a motor vehicle accident.
During cross-examination, claimant testified that she has lived at Brookview since 1996. In the past, she observed the mobile home maintenance staff clear the roads within the trailer park after a snowstorm. Brookview has four streets that lead to 9N. When the Department of Transportation (DOT) trucks plow 9N, snow is left near those four entrances to Brookview. Maintenance staff clears the remaining snow with a snowplow and dumps this snow into other areas of Brookview. Claimant testified that she never complained to the management of Brookview about the high snowbanks at the entranceways to 9N.
Roxanna Whipple, who lives on the corner of Pinewood Avenue and 9N, witnessed the accident. She saw claimant stop at the stop sign on Pinewood Avenue, try to edge out onto the road and then get hit (T:67). Ms. Whipple called 911. She remembered the snowstorm on February 18, 2003 and testified that the maintenance staff from Brookview removed the snow from the intersection of Pinewood Avenue and 9N and deposited it on empty lots within the park. Ms. Whipple testified that on February18 and 19, 2003, the maintenance staff cleared the intersection completely. She testified that the high snowbanks along 9N, approximately 6 feet high, extended for at least a half mile down such road and inhibited the ability to see. She testified that the park property ends near the stop sign next to her house. She observed State trucks cutting down the snowbanks after February 19, 2003. Ms. Whipple spoke to the press about the same, which resulted in a newspaper article about the accident that quotes a New York State Trooper saying that claimant's view was obstructed by the snowbanks at the entrance to the mobile home park and that these snowbanks have "been a real problem around here" (Exhibit 6).Ms. Whipple testified that she never complained to the mobile home park staff about the snowbanks because she observed the removal of the banks by such staff. She complained to DOT but "[t]hey said it wasn't their problem" (T:73). After that response from the State, she informed one of the maintenance workers at the mobile home park. Looking at Exhibits 1 and 5, Ms. Whipple testified that she did not know who owned the median along the side of 9N and attributed the clear roadway to the plowing by the "City" trucks (T:78).
There was no objection to this statement at trial.
There was no objection to this article being admitted into evidence.
John White, a former resident of Brookview and former painting contractor for Brookview, testified on behalf of claimant. He took photographs in the afternoon of February 20, 2003 which were admitted into evidence as Exhibits 1-5. He testified that the maintenance staff at Brookview used snowplows to remove snow from the entrances. He went to the accident scene on February 19, 2003, after visiting claimant in the hospital. He testified that the snowbanks were as high as depicted in Exhibit 1, but they extended towards the fog line or shoulder line on 9N. He marked the location of the snowbanks on Exhibit 1-C. As he approached Pinewood Avenue from 9N on the day of the accident, he could not see the entranceway to the mobile home park. In the past, he saw State trucks plow the roadway and take snow away in trucks. He witnessed the snowbanks being cut down in this area by the State DOT. He drew a green line on Exhibit C-2 to indicate where he saw DOT trucks use a "wing" to clean the snow from the median along the side of 9N. He testified that DOT would push the snow back into Brookview, to the edge of the road, and Brookview would take care of the snow inside the park. Mr. White placed a blue dot on Exhibit C-2 to indicate the point where Brookview would remove the snow and disperse it into the mobile home park (T:127). After reviewing Exhibit 3, he admitted that the snowbank to the right of the stop sign in such Exhibit was piled almost as high as the stop sign and that it was on the mobile home property.
Dominick Gabriel, the resident engineer for Saratoga County for DOT, testified on behalf of defendant. Mr. Gabriel is responsible for the management of resources for the maintenance of State roads in such county, including snow removal. Ordinarily, the State does not plow snow from non-State roads, but if a County requests assistance for the removal of snow from an intersection where State and County roads intersect, the State will assist with such removal (T:146). When DOT is notified of an impending snowstorm, the employees come in a few hours earlier, then start plowing when the snow starts to fall. 9N is plowed by one truck that plows the snow to the right side of the road. The continual plowing to the right creates high snowbanks. A shift supervisor checks the snowbanks and determines whether the snow could be pushed to the right side of the road during the next snowstorm (T:149). The rule is when the wing of the truck cannot cast the snow, then the supervisor would make the decision to do the "shelving or wing back" (T:151). He did not know if the supervisor did so prior to the snowstorm on February18, 2003. It is not the shift supervisor's job to check for blind spots from private driveways (T:165). Mr. Gabriel is not advised of these decisions by the supervisors, as they are made in their routine work duties.
Prior to the accident, Mr. Gabriel was informed of a complaint about the height of snowbanks on 9N outside a mobile home park, but the person was notified that it was a private entrance and they should speak to the management. It is not the practice of DOT to contact private landowners if DOT receives calls about the height of the snowbanks near the private property. He testified that a private driveway is the property owner's responsibility. DOT will lower snowbanks along 9N if requested by a public entity (T:154). He then testified that it was the responsibility of the private landowner to ensure that individuals leaving the mobile home park had the proper sight distance. He did not know who made the decision to cut the snowbanks the day after the accident (T:167). On cross-examination, Mr. Gabriel testified there were 500 driveways along 9N over the course of the 30 miles.
The New York State Department of Transportation's publication "Policy and Standards for Entrances to State Highways", Chapter 3, §3.6 states:
"Property owners having access to a state highway shall be fully responsible for maintenance of their driveway and channelization including the portion from the highway right-of-way line to the outside edge of the highway shoulder or curbline. This maintenance responsibility includes removal of snow and ice and keeping the portion within the highway right-of-way in a safe condition for the general public...." Exhibit A.
Mr. Gabriel testified that he interpreted this provision as meaning that DOT had no responsibility for the removing of snow that DOT casts into a driveway entrance. He indicated that the private landowner is responsible for removing such snow. He stated that the snowberm shown in Exhibit 1, with a tire track along the edge, was not DOT's responsibility to remove and the tire track would not have been left by any of the equipment owned by DOT (T:185). Looking at Exhibit 3, Mr. Gabriel believed that the large pile of snow in front of the stop sign exiting from the mobile home park was placed there by the property owner. The stop sign was not one placed by DOT, as it was not on a DOT pole. It would have been placed there by the property owner who was required to do so under §3.6 of the Policy and Standards for Entrances to State Highways. He testified that DOT did not have the equipment or blades to cast snow as high as shown in Exhibits 3, 3-A and 3-B (T:196). DOT uses a funnel plow that casts out the snow to the right of the truck. The snow shown in Exhibit 3-A was pushed up by a plow that was flat or straight across (T:207).
The Court considered the arguments presented in defendant's post trial brief. The Court did not receive a post trial brief from claimant.
Snow removal operations constitute a maintenance activity, traditionally regarded as a proprietary function, rather than a governmental function (McGowan v State of New York, 41 AD3d 670 [2d Dept 2007]). Proprietary functions subject a municipality to non-governmental tort liability (Sebastian v State of New York, 93 NY2d 790 [1999]; Metz v State of New York, 86 AD3d 748 [3d Dept 2011]). When engaged in proprietary endeavors the governmental entity is generally subject "to the same duty of care as private individuals and institutions engaging in the same activity" (Schrempf v State of New York, 66 NY2d 289, 294 [1985], citing Miller v State of New York, 62 NY2d 506, 511 [1984]).
"The maintenance of state highways shall include the control of snow and ice on such highways or any parts thereof, as the commissioner of transportation may deem to be necessary to provide reasonable passage and movement of vehicles over such highways" (Highway Law §12 [2]). Under common law, the State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579 [1960]). The duty to maintain the highways in a reasonably safe condition, includes the shoulder of the road (Boyle v State of New York, 94 AD2d 901 [3d Dept 1983], citing Boulos v State of New York, 82 AD2d 930 [3d Dept 1981], affd 56 NY2d 714 [1982]).
However, the State is not an insurer of the safety of its roadways and the mere happening of an accident on its roadways does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978], Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). The presence of ice, snow or water on a roadway at the time of an accident, by itself, does not establish that the State was negligent (Timcoe v State of New York, 267 AD2d 375 [2d Dept 1999]). Liability will not attach unless the State created the dangerous condition or had actual or constructive notice of the condition and then failed to take reasonable measures to remedy it (Hynes v State of New York, 301 AD2d 628 [2d Dept 2003]; Brooks v New York State Thruway Auth., supra; Valentino v State of New York, 62 AD2d 1086 [3d Dept 1978]).
It is claimant's burden to establish that the State was negligent and that such negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]; Demesmin v Town of Islip, 147 AD2d 519 [2d Dept 1989]). "If 'there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which the defendant was responsible' " (Bernstein v City of New York, 69 NY2d 1020 [1987], supra at 1022, citing, Digelormo v Weil, 260 NY 192 [1932]). Claimant has the burden of proving her case by a fair preponderance of the credible evidence (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191 [1976]).
A claimant who suffers from amnesia as the result of defendant's acts is not held to as high a degree of proof in establishing her right to recovery for injury as a claimant who can describe the events (see Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328 [1986], citing Schechter v Klanfer, 28 NY2d 228 [1971]). However, such an amnesiac claimant must make some showing of defendant's fault, and, further, must prove that she has such amnesia by clear and convincing evidence (Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328 [1986], supra). Expert evidence is required to prove amnesia by clear and convincing evidence, because it is beyond the understanding of laymen (id.).
ANALYSIS
It is clear that the State is not immune from liability as snow removal is a proprietary function. Although claimant alleges that she has no memory of the accident, the Court cannot afford her the lighter burden of persuasion, as she did not provide the Court any expert testimony that she indeed suffered from such amnesia. Therefore, claimant had to prove, by a fair preponderance of the credible evidence, that defendant breached a duty owed to her and that the breach of such duty proximately caused the accident. This claimant has failed to do.
Assuming that the snowbanks on the private property near the entranceway to the mobile home park and/or the snowbanks along 9N within the sight distance of that private entrance caused the accident, claimant has failed to prove, either under statutory or common law, that defendant breached a duty owed to her, that the snow created a dangerous condition and that defendant failed to take reasonable measures to remedy it. Under Highway Law §12, the Legislature gave the Commissioner the discretion to deem what are reasonable measures for the removal of snow and ice on State highways. Clearly, the Commissioner has done so with the issuance of the Policy and Standards for Entrances to State Highways manual.
Mr. Gabriel's straightforward testimony, regarding defendant's snow removal procedures, provided the Court with a reasonable outline of actions taken by defendant during and in the wake of a snowstorm. Mr. Gabriel was clear that under the policy adopted pursuant to Highway Law §12, private landowners are responsible for the driveways and the sight distances from such when it comes to snow and ice removal.
Under common law, while the State has a nondelegable duty to maintain its roadways, liability will not attach unless the State created the dangerous condition or had actual or constructive notice of it and failed to remedy the problem. While Mr. Gabriel admitted that the State received the phone call about the high snowbanks at or around the mobile home park, defendant maintains and the Court credits the testimony of Mr. Gabriel, that the snowbanks were not created by the State. Claimant did not produce any witness or document that delineated State or private property in the area of the accident. Claimant did not produce an employee from the mobile home park to testify about the snow removal procedures there. Ms. Whipple's and Mr. White's testimony, while earnest, were not sufficient to persuade the Court that defendant breached a duty owed to claimant. It is unclear to the Court what entity owned which property in the photographic exhibits presented to the Court.
Even if claimant could have proved a breach of duty in the maintenance of the snowbanks along 9N, it is unclear whether the height of the snowbanks caused the accident. Ms. Whipple's non-expert testimony simply is not enough to prove that the height of the snowbanks caused this accident. Claimant did not produce an accident reconstructionist or a police accident report. The Court is left with nothing more than speculation as to how this accident occurred.
In view of the foregoing, the Court, upon review of the documentary evidence, oral testimony and the observance of the demeanor of the witnesses, dismisses the claim. All motions not heretofore addressed are denied.
Let judgment be entered accordingly.
August 22, 2011
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims