Opinion
# 2015-018-660 Claim No. 121694 Motion No. M-86917
12-08-2015
JASMINE A. OSBORNE v. STATE OF NEW YORK
ALEXANDER & CATALANO, LLC BY: James L. Alexander, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General
Synopsis
Court grants Defendant's motion for summary judgment. Defendant did not breach its duty to keep roadway and shoulder reasonably safe for traveling public by accumulation of water in adjacent privately owned parking lot despite its prior actions in attending to drain inlet.
Case information
| UID: | 2015-018-660 |
| Claimant(s): | JASMINE A. OSBORNE |
| Claimant short name: | OSBORNE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121694 |
| Motion number(s): | M-86917 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | ALEXANDER & CATALANO, LLC BY: James L. Alexander, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 8, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a timely motion seeking summary judgment. Claimant opposes the motion.
Claimant served a claim on the Attorney General on August 27, 2012, and filed a copy with the Clerk of the Court on September 4, 2012, seeking damages for injuries she received in a car accident. The claim alleges that on June 4, 2012, at approximately 5:11 p.m., Claimant was driving on New York State Route 298, 500 feet south of the intersection with East Taft Road, in the Town of Cicero, when her vehicle left the roadway and struck a tree. Claimant alleges that the State was the owner or manager of the premises "along the roadway" located on State Route 298, and the accident was the result of the State's negligence, carelessness, and culpable conduct in failing to warn Claimant of the dangerous condition, and in failing to properly maintain the road, failing to maintain a drain, in permitting a flooding condition to exist, and failing to unplug the drain to remove the flooding, or properly mark the area or warn of the condition. It was alleged that the State had actual written notice, constructive notice, or it caused the defective condition on its property.
In her verified bill of particulars, Claimant describes the Defendant's negligence as causing her to exit her lane of travel on State Route 298, and lose control of her vehicle due to a flooding condition where a drain existed on the roadway and strike a tree. She asserts that the State "designed, constructed, reconstructed, resurfaced, repaired, owned, managed, maintained, operated and/or controlled the aforementioned roadway." She further alleges that "the State of New York, had a nondelegable duty to maintain its roadways including any flooding condition of the roadway in a reasonable and safe condition for all users of the roadway including the claimant and that the defendant was negligent in the design, construction, reconstruction, maintenance and repair of the drain which was causing flooding to exist on the roadway." No allegation was made about the condition of the adjacent parking lot. Claimant has not amended or supplemented her bill of particulars and a note of issue was filed on March 2, 2015.
Defendant's Exhibit E, Claimant's verified bill of particulars ¶ 5.
Claimant attached a police report to her claim and referred to the description of the accident in her verified bill of particulars. The police report indicates Claimant stated that while she was traveling south on State Route 298, she drove off of the roadway to avoid a vehicle that was heading north in her lane. There is no reference to any flooding or water accumulation.
Claimant's verified bill of particulars ¶ 4.
Defendant argues that it is entitled to summary judgment dismissing the claim because the State did not breach its duty to maintain its roadway in a reasonably safe condition, as a matter of law, and the proximate cause of Claimant's accident was not any negligence of the State.
"Since summary judgment deprives the litigants of their day in court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues." (Matter of Skelly v Carma Realty, 78 AD2d 1005 [4th Dept 1980]).
The movant bears the burden to establish its right to judgment as a matter of law by proof in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence submitted on the motion must be viewed in the light most favorable to the nonmoving party, giving that party the benefit of any favorable inference (Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]). The motion should not be granted where there are questions of fact, or where an issue is "arguable." (Sillman v Twentieth Century-Fox Film Corp. 3 NY2d 395, 404 [1957], quoting Barrett v Jacobs, 255 NY 520, 522 [1931]). If the movant fails to make a prima facie showing that it is entitled to judgment as a matter of law, the motion must be denied "regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr. 64 NY2d 851, 853 [1985]). Only after the moving party has shown sufficient proof to support judgment, as a matter of law, must the opposing party come forward with evidentiary proof to establish the existence of a material fact which would require a trial (Id.; Zuckerman, 49 NY2d at 557).
The attachments to Defendant's motion establish, without dispute, certain facts. Route 298 is a State roadway and the speed limit is 45 mph. On June 4, 2012, a large area of water collected around a drainage inlet (DI) in the parking lot of Williams Restaurant adjacent to Route 298. In the winter and early spring, water had previously collected in that location usually due to ice and snow buildup. When this had occurred on other occasions, the owner of Williams Restaurant or her son, Edward R. Biel, Jr., called the Department of Transportation (DOT) to come and clear out the drain. DOT had cleared out the drain on these prior occasions, approximately once per year. Never before had water collected at this location in the summer months.
On Sunday, the day before this accident, Mr. Biel noticed water accumulating at this location in the parking lot, and his mother called DOT on the day of the accident to report the problem. DOT employees came to the parking lot that day and tried to clear out the drain. Some water was partly on the shoulder of the roadway but not in the traveling lanes. Frank W. Mullholland, a Highway Maintenance Supervisor with DOT, testified at his deposition that he received the complaint about the water and went out to the location. Mr. Mullholland tried to clean the drain using a shovel. He moved some dirt away from the drain, and when he saw the water draining slowly, Mr. Mullholland left.
Later, Claimant was proceeding southbound on Route 298, just south of the intersection with East Taft Road, when a vehicle driven by Frank Fowler proceeding north on Route 298, began turning left into Williams' parking lot. When he noticed all of the water, he pulled back into his lane and stopped, although, he acknowledged he was probably on the yellow, center dividing line. Claimant saw the Fowler vehicle and moved off of the roadway into the parking lot. Mr. Fowler testified that he estimated Claimant's vehicle was traveling about 45-50 miles per hour, and when her vehicle hit the water "her car just shot, like a slingshot" up and over the grass line, up a little slope and into a tree in the Biel's front yard. Except for remembering she saw Mr. Fowler's car, Claimant has no recollection of the accident due to her injuries.
Defendant's Exhibit H, page 16, lines 13-15.
Defendant also submitted the deposition of two other nonparty witnesses, Deborah and John Landers, who were proceeding north on Route 298 at the time of Claimant's accident. Mrs. Landers was driving behind Mr. Fowler's vehicle. She testified that she saw Claimant's vehicle proceeding south on Route 298 very fast and "not in control," and then it ended up in the parking lot. Mrs. Landers testified that when she saw the car coming, even before the accident, she told her husband to call 911. She noted that the car was traveling fast through the parking lot, hit the water, hit the bump in the property and went into the tree.
In addition, Defendant submits the depositions of Randall C. Daratt, a Highway Supervisor II for DOT, and Jeffery D. Church, Assistant Resident Engineer, for DOT in the Onondaga East Residency, and the affidavit of Steven Kokkoris. Mr. Kokkoris is DOT's Regional Director for Region 7, which covers the 3,650 lane miles of State roadway in a five-county region between Lake Ontario and Lake Champlain. Mr. Kokkoris states that he reviewed various plans and designs of the construction and resurfacing of Route 298, and there is no indication that the State ever installed the drain or DI in the parking lot of Williams Restaurant. He asserts that by personal observation he observed the drain or DI, and it was not on the highway travel lane or the shoulder of Route 298. He points to the New York State Design Manual section 5A.3.6, which makes property owners having access to a State roadway "responsible for the 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 curb." This section makes the property owner responsible for the maintenance of "ditches, pipes, catch basins, grates, detention ponds, and other drainage structures constructed in connection with providing access to the property" unless other agreements acceptable to DOT are made. The testimony from these three witnesses reflect the DI was attended to by the State because of concern that the accumulation of water would affect the road.
Exhibit P, page 2, ¶¶ 8-10 and Exhibit 1.
Claimant's verified bill of particulars ¶ 4.
The analysis must begin with the State's duty. Although whether a duty has been breached and is a proximate cause of injury or damages are typically questions of fact, whether a duty is owed in the first instance is a question of law (Eiseman v State of New York, 70 NY2d 175, 189 [1987]; Padula v County of Tompkins, 303 AD2d 804, 806 [3d Dept 2003]).
The State, as the owner of Route 298, owes the duty to keep and maintain the roadway in a reasonably safe condition for the traveling public (Friedman v State of New York, 67 NY2d 271, 286 [1986]; Gutelle v City of New York, 55 NY2d 794 [1981]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Where a shoulder is provided adjacent to the roadway, the State must also maintain the shoulder in a reasonably safe condition for those who may foreseeably use it due to negligence or an emergency (Stiuso v City of New York, 87 NY2d 889, 891 [1995]; Bottalico v State of New York, 59 NY2d 302, 305 [1983]). Typically, a municipality's duty "begins and ends with the fulfillment of its duty to construct and maintain its highways in a reasonably safe condition . . ." (Tomassi, 46 NY2d at 97). The State's duty can extend beyond the shoulder, but only if a condition exists that could reasonably be expected to result in injury or will interfere with safe travel on the roadway (Preston v State of New York, 6 AD3d 835, 836 [3d Dept 2004]; Sherman v County of Cortland, 18 AD3d 908, 910 [3d Dept 2005]).
Here, Claimant alleges in her pleadings that the State failed to maintain Route 298 in a reasonably safe condition. Yet, the undisputed facts do not support any issue with the condition of the roadway. There was no flooding or accumulation of water on the traveling portion of the roadway or substantially on the shoulder. Despite Claimant's description of the accident in the bill of particulars involving the accumulation of water on the roadway, all witnesses agree that the accumulated water was at the edge of the shoulder and almost exclusively in the Williams Restaurant's parking lot at the edge, before a grassy area. All of the witnesses testified that Claimant was in the parking lot traveling between 45-to-50 mph when she encountered the water, the grassy area, and then, ultimately, the tree. Although Claimant emphasizes that the location of the water was near the white line of the roadway, Claimant was not on the shoulder of the roadway when she lost control of her vehicle; she was entirely in the parking lot traveling at a high rate of speed so, as a matter of law, any water on the shoulder of the roadway was not a proximate cause of her accident.
See pictures attached to Exhibits I and J.
There is no duty to keep an area adjacent to the roadway that is not intended to be traversed free of hazards where the roadway provided is reasonably safe for travel (see Hay v State of New York, 60 AD3d 1190, 1192 [3d Dept 2009]; see also Cave v Town of Galen, 23 AD3d 1108 [4th Dept 2005] [town had no duty to motorist for injuries suffered when vehicle struck a post placed by landowner in town's right-of-way]; Owens v Campbell, 16 AD3d 1000 [3d Dept 2005][affirmed grant of summary judgment to town for drainage ditch placed close to shoulder of roadway on unimproved area]; Sherman,18 AD3d at 908 [ditch, culvert and utility pole placed in close proximity to roadway did not breach duty where plaintiff's travel beyond roadway was unforeseeable]).
Here, the evidence supports that the State did not install the drain and did not cause or contribute to the accumulation of water. In fact, the reason the State attended to the drain was to keep the road and shoulder clear and safe for the traveling public, which they did in this instance. "[T]here is no real dispute that the paved roadway itself was more than adequate for safe public passage." (Owens,16 AD3d at 1000). Even the State's established exercise of control and maintenance over the DI (Hughes v Cold Spring Const. Co., 26 AD3d 858, 859 [4th Dept 2006]; Klatz v Armor El. Co., 93 AD2d 633, 637 [2d Dept 1983]) does not support a duty to remove the water in the parking lot or to warn of the accumulation because there is no question that the roadway provided was reasonably safe for travel (see Cave, 23 AD3d at 1108; Clark v City of Lockport, 280 AD2d 901 [4th Dept 2001]; Adamy v Ziriakus,199 AD2d 1018 [4th Dept 1993]; Guy v Rochester Gas & Elec. Corp.,168 AD2d 965 [4th Dept 1990] app denied 77 NY2d 808 [1991]; Mallon v County of Orange, 45 AD3d 816 [2d Dept 2007]). Although many cases, such as Tomassi, 46 NY2d 91, hold that a municipality's duty does not extend to maintain unimproved land for public travel where travel beyond the limits of the paved roadway are not contemplated nor foreseeable, here, we have an area that is intended for vehicular traffic. However, a prudent driver entering a parking lot would not be driving 45-50 mph parallel to the road in the direction of a grassy area and line of trees.
It is not clear from the submissions whether the drain was on the State's right-of-way.
Defendant's evidence of the State's post-accident conduct and repairs shows the State's control and maintenance. After Mr. Mullholland responded to the location of the water at Williams Restaurant and shoveled the DI, he told his DOT supervisor about the water. A few days later, after the supervisor visited the site, DOT sent a crew with the "catch vac" to clean out the drain. Ultimately, DOT replaced the drain. --------
Mr. Biel indicated that there were no recent accidents at this location and no proof to support that the State should have foreseen a vehicle leaving the roadway from the direction of Claimant's car, much less traversing across the parking lot at or above the posted speed limit toward a grassy area and line of trees. Route 298 was, as a matter of law, safe for travel and the State did not breach an affirmative duty to Claimant to remove or warn of the accumulation of water because it did not present a foreseeable hazard and was not so inherently dangerous that the State was obligated to cure or warn of the condition. Nor did the State's duty require it to anticipate the need for and provide an emergency escape route beyond that provided by the paved shoulder (Owens, 16 AD3d at 1001).
The State also did not affirmatively assume a duty to maintain the Williams Restaurant's parking lot by clearing the clogged drain when notified by the owners of the condition. DOT acted only to keep the roadway reasonably safe, not to maintain the parking lot for vehicular traffic. The puddle of water at the edge of this parking lot before a grassy area and line of trees did not pose an unreasonable hazard to motorists on Route 298, and thus, Defendant was under no duty to remove the water or warn motorists of the condition (see Clark, 280 AD2d at 902; Guy,168 AD2d at 965).
Accordingly, based upon the foregoing, Defendant is GRANTED summary judgment and the claim is DISMISSED.
December 8, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support with exhibits attached thereto. 3) Memorandum of Law in Support of Defendant's Motion for Summary Judgment. 4) Affirmation of James L. Alexander, Esquire, in opposition.