Opinion
# 2015-030-019 Claim No. 120665
11-19-2015
MICHAEL RODRIGUEZ and JANINE RODRIGUEZ v. THE STATE OF NEW YORK
GOLDSTEIN & HANDWERKER, LLP BY: STEVEN GOLDSTEIN, ESQ. HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: TERRANCE K. DEROSA ASSISTANT ATTORNEY GENERAL
Synopsis
State of New York 100% liable for defective maintenance on Sprain Brook Parkway. Failed to adequately assess hazards of roadway with regard to all foreseeable users, including motorcyclists. State had actual notice of defective condition, and failed to make appropriate repair.
Case information
| UID: | 2015-030-019 |
| Claimant(s): | MICHAEL RODRIGUEZ and JANINE RODRIGUEZ |
| Claimant short name: | RODRIGUEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption has been amended sua sponte to reflect the only properly named defendant. The NYSTA does not maintain the Sprain Brook Parkway. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120665 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | THOMAS H. SCUCCIMARRA |
| Claimant's attorney: | GOLDSTEIN & HANDWERKER, LLP BY: STEVEN GOLDSTEIN, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: TERRANCE K. DEROSA ASSISTANT ATTORNEY GENERAL |
| Third-party defendant's attorney: | |
| Signature date: | November 19, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Michael Rodriguez alleges that on September 26, 2011, at approximately 9:30 a.m., he suffered serious injury as a result of a defect in maintenance of the roadway paving on the Sprain Brook Parkway near mile post 11, causing him to be dislodged and flung from his motorcycle to the ground. Janine Rodriguez sues for the loss of consortium, companionship and society of her husband. This decision relates only to liability, after a bifurcated trial of the matter and submission of post-trial memoranda of law.
In addition to his own testimony, Mr. Rodriguez presented the testimony of State Trooper Darryl Burrell, who wrote the police accident report concerning the incident, Shahid Quadri, who was the Resident Engineer for the New York State Department of Transportation in Southern Westchester County at the time of the accident, and claimant's expert, Gregg Frazier, as well as documentary and photographic exhibits. [Exhibits 1 and 4]. Defendant cross-examined the claimant's witnesses, presented the testimony of its own expert witness, Nicholas Pucino, and documentary and photographic exhibits. [Exhibits A, D, G, H and J].
The claim of Ms. Rodriguez is derivative, thus references to the claimant herein are to claimant Michael Rodriguez.
On September 26, 2011, Michael Rodriguez, a sergeant in the New York City Police Department assigned to the Bronx command, was driving to work on his 2002 Harley Davidson wide glide motorcycle on the Sprain Brook Parkway. He had owned the motorcycle since 2006, and maintained it regularly. There were no mechanical issues with the bike. It was "a beautiful sunny fall day," with the temperature "in the 60s or 70s", "a perfect day for a ride." He estimated he had driven the same route on his motorcycle more than 100 times prior to September 26, 2011, and at least several hundred times overall, whether by car or motorcycle.
Quotations are to pages of the trial transcript from two days of trial unless otherwise indicated. The two transcripts were not paginated consecutively. This quotation is from the first day of trial, noted as [T1-59-60]. Any quotations from the second day will be noted as "T2" followed by the page number.
Claimant described himself as a cautious rider. He was expected to arrive at work anytime before noon, and would generally arrive between 10:00 a.m. and 11:30 a.m. He was traveling at a rate of 50 to 55 mph in the center lane of the three-lane parkway, southbound, in "moderate" traffic conditions at around 9:30 a.m. [T1-64]. Rush hour was over, he said, so the traffic was moving freely.
Shortly after passing the trooper barracks at Mount Pleasant, he noticed a chunk of concrete sticking up out of the ground on the left side of the center lane up ahead, that he noted he needed to avoid. He estimated that he was approximately 10 car lengths away when he noticed the concrete chunk. Realizing he needed to avoid that spot, he checked his mirrors to see if he could change lanes, but both the right and left lanes were blocked by cars. Accordingly, in order to avoid that road obstruction he "veered over to the right side of the center lane, but the pothole continued straight across from white lane to white lane." [T1-65].
Claimant's front tire struck the pothole. He saw the tire "lock into that hole," and "[felt] the back of [his] bike just coming up over [him], and it just literally catapulted [him] down the highway." [T1-67]. "Eventually" he "struck the ground." [T1-68]. He recalled sliding on his back down the highway. He came to a stop in the grass past the right shoulder of the road, and remembers being surrounded by people assuring him that an ambulance was on its way. He did not lose consciousness. When State Trooper Burrell arrived at the scene, claimant was able to recount to him how the accident occurred, including telling him that he struck a pothole that extended across the entire middle lane, a pothole he had observed for seconds prior to the accident.
Claimant said that generally the Sprain is "a bumpy ride, because there's a lot of patchwork on that road." [T1-76]. The Taconic State Parkway, in contrast, "is nice and smooth blacktop, and then once the Taconic ends and it becomes the Sprain, that's where the roadway changes to concrete, and that's what's patchy." [T1-76].
Shown a series of photographs of the southbound Sprain Brook Parkway, taken in May 2011 by NYSDOT personnel, Mr. Rodriguez pointed out where the protrusion was and the pothole, and circled the area. [Exhibit G, 1.540, 1.545]. A green, mile marker sign can be seen south of the pothole on the right-hand side of the photographs. [Id.]. The number on the sign is 11. [Exhibit G, 1.545].
State Trooper Darryl Burrell responded to the accident scene on September 26, 2011. On the day of the accident, the trooper had been employed as a trooper for 5 years, and estimated he had investigated and prepared reports on 300 accidents. He described himself as careful in the preparation of reports and as conscious of his training.
When Trooper Burrell arrived at the scene, Mr. Rodriguez was lying on the ground, but was conscious, and told the trooper that he hit a pothole which caused him to fall off his motorcycle. The trooper investigated the accident, but not as a reconstruction, and prepared his report based on his observations. [Exhibit 1]. He said that while Mr. Rodriguez "didn't stand over it," claimant was nonetheless able to convey to the trooper the location of the pothole by pointing to it. [T1-48]. Trooper Burrell found the pothole. Trooper Burrell attributed the cause of the accident to "defective pavement" and did not find any other cause for the accident - such as speed or inattention on the driver's part - based upon the information he gathered. [T1-39].
Shahid Quadri became the NYSDOT Resident Engineer for Southern Westchester County in charge of maintenance, including the Sprain Brook Parkway, in February 2011, having been employed by the agency since 1993 in the design area ("construction manager for construction jobs, squad leader for in-house design jobs, and regional estimating engineer" [T1-101]) in Long Island.
In his position as Resident Engineer, Mr. Quadri was responsible for maintenance operations over 900 lane miles. The Sprain Brook Parkway is a "12.6 mile" six lane parkway running in a generally north/south direction between the Bronx River Parkway to the south and the Taconic State Parkway to the north. [T1-103]. It is "an old parkway." [T1-103]. There are three lanes of travel in each direction, separated by a grassy median. Within that 12.6 mile span, there is a 9.5 mile area of "flexible pavement, which is a black top surface" toward the south, and a 3.25 mile area to the north that "is a concrete pavement, which is a rigid pavement." [T1-103]. Shown the NYSDOT photographs viewed by other witnesses, Mr. Quadri confirmed that the photographs show the northern tier of the parkway containing concrete pavement. [See Exhibit G].
Maintenance responsibilities for the area include pavement repairs, mowing, snow and ice removal, and other roadside elements such as guide rails.
A pothole is formed by "disintegration" for "various reasons; temperature variations, snowing and freezing, age, usage." [T1-106]. "[D]epend[ing] on the pothole," they can create a dangerous condition for motorists. [T1-107]. He said "if it's a sudden condition that the motorist comes across . . . it would be dangerous," agreeing that a motorist should not expect potholes on the roadway surface. [T1-108-109]. Because he is "not a motorcyclist," Mr. Quadri rather unconvincingly said he could not answer the question as to whether a pothole generally would propose a greater danger to a motorcycle rider than a driver of a four-wheeled vehicle. [T1- 109]. He acknowledged that motorcycles are permitted on the Sprain Brook Parkway.
In terms of monitoring the roadway, and repair of any potholes, Mr. Quadri said that there is a routine maintenance program for all the roads. Highway Maintenance Supervisors patrol the roads daily looking for conditions that need repair. He said he also "patrol[ed] the parkways." [T1-110]. Additionally, the department would receive complaints concerning potholes from the public through faxes from the regional office in Poughkeepsie, or through the traffic management center.
Mr. Quadri described three different ways of repairing concrete pavement, as constrained seasonally, by repair method, and by the cost of repair. What his maintenance crew could do as a matter of routine maintenance was use hot mix or cold patch asphalt resulting in either case in a temporary repair. The hot asphalt is obtained from a plant - usually open only "from April through third week of November" - and loaded on DOT trucks. [T1-120]. It is not available in the winter months. In the winter, cold patch is used.
From Mr. Quadri's testimony, and that of both experts, the only truly permanent repair is replacing the damaged concrete slabs, or engaging in a total paving over with asphalt, however those tasks are performed by outside contractors who bid for the job, not directly by DOT maintenance. For the permanent concrete replacement solution, concrete slabs are cut out in sections that are the width of a lane, and are replaced with new concrete.
How long temporary repairs utilizing hot or cold asphalt patching last depends on the number of cars traveling over the road, how well the material is tamped in and, given the inherent incompatibility between concrete and asphalt, such repairs must be monitored as they already serve as notice of a suspect condition on the pavement. Mr. Quadri claimed that a hot asphalt repair "[has] gone up to two years or even more." [T1-119]. He also acknowledged, however, that such repairs can last for a far shorter period of time.
All of the repair methods, whether temporary or permanent, require that a lane or lanes of the highway be closed for varying periods of time. For the temporary asphalt patching, whether hot or cold, the hole must be cleaned out, the loose parts are removed, "emulsion" is put in, "a tack coat," and then asphalt is put in and compacted. [T1-120]. Closure of a lane is for "a very short time." [T1-126].
Permanent repairs are generally performed at night. Degraded materials are removed. The contractor "saw cut[s]" the slab, lifts it out and puts it on a truck to be taken away. [T1-124]. Accelerated concrete is poured from another truck, and then takes "less than three hours" to set. [T1-125]. If the concrete is not ready for traffic the next morning, the contractor may have to "plate it." [Ibid.]. Even concrete repairs will not last, he said, because "the bond between concrete to concrete" when a concrete accelerator agent is present, can result in cracking. [T1-170].
Routine maintenance records shown to Mr. Quadri use a reference marker system to identify the location of the crews' activities, rather than the mile marker system. [Exhibit D]. Mile Marker 11 is equivalent to a reference marker between 7.1 and 7.4 ("7.4 . . . correspond[s] to 11.3 Mile Marker." [T1-135]). Reference markers from 7.4 to 7.6 would be an area north of Mile Marker 11, Mr. Quadri said.
A July 28, 2011 entry shows that crews were doing work on the Sprain between reference markers .1 to 8.6, which would encompass the area of the accident. [Exhibit D]. Mr. Quadri testified that the crews were using hot patch material making pavement repairs on the left lane on that date. [T1-136]. Using hot asphalt, pothole repairs were performed on May 26, 2011 and May 11, 2011, over the same reference marker area (3.8 to 8.6), and more potholes were repaired between reference markers 6.6 and 8 on April 27, 2011. [Exhibit D]. Cold patch was used on March 25, 2011 between reference markers 3.8 and 8.6, and on March 24, 2011 between reference markers .1 to 8.6 in the left lane of the southbound Sprain Brook Parkway. [Ibid.]. On that same date, crews were plowing snow and spreading salt from reference markers .0 to 8.6. [Ibid.].
Shown the photographs taken on May 22, 2011 on which Mr. Rodriguez had circled where his accident occurred, Mr. Quadri could identify patching within the circled areas, but could not say how old the repair was, or whether it was made with hot or cold patch. [Exhibit G]. He could say, however, that the patching was "not very recent. It's not fresh." [T1-196]. He thought a site visit would more accurately show what the condition was, and noted that site visits whether by routine inspections or as directed by complaints were the DOT norm.
Although only guidelines, ("not a standard, . . . not a policy" [T1-164]), and subject to engineering judgment determinations, Mr. Quadri agreed that the DOT Highway Maintenance Guidelines concerning rigid pavement such as concrete note that cold patch is a temporary repair, and that rapid setting concrete is a permanent repair. He said "the way . . . [the residency] address[es] repairs needed, maintenance needed, in different areas of maintenance, we are better equipped with our experience and our familiarity with the areas that we can address it better [than the statewide DOT Highway Maintenance Guidelines]." [T1-166].
Mr. Quadri said that when a concrete repair to two potholes was undertaken on Route 120 - which has an average annual traffic count of 8,000 to 10,000 vehicles per day versus the Sprain's average annual traffic count of 80,000 to 110,000 vehicles per day - it took 6 to 8 hours. Mr. Quadri said that with respect to the Sprain Brook Parkway, there are a very limited number of hours his crew of 70 people, who are responsible for the entire residency, can work ("between ten [p.m.] and two [a.m.]"). [T1-180].
Mr. Quadri acknowledged that on the day of the accident, a repair crew was pulled off another job and sent to the accident location within minutes of learning of the accident.
Gregg Frazier, a professional engineer licensed in Alaska, Washington and Pennsylvania, but not in the State of New York, who possessed considerable public and private sector experience, testified as claimant's expert based upon his examination of the DOT photographs [Exhibit G], other evidence including depositions, and a Google Earth photograph dated June 17, 2010, depicting the area Mr. Rodriguez indicated as the site of his accident. [Exhibit 4]. He reviewed the national American Association of State Highway and Transportation Officials [AASHTO] construction manual standards, the New York State DOT Comprehensive Pavement Design Manual, the New York State DOT Highway Maintenance Guidelines, and similar manuals for Pennsylvania and Washington.
Mr. Frazier said that the photographs show an asphalt patch across three lanes of the parkway, covering a transverse crack across all three lanes. A transverse crack forms "when pavements expand and contract . . . particularly, in concrete . . . if the expansion and contraction isn't taken up in the preformed joints at either end of the panel, then the stress is built up in the middle of the pavement and tends to buckle the pavement up, which makes it crack." [T2-37]. He opined that the transverse crack had been repaired with cold mix asphalt (versus hot asphalt), and further opined that this was in contravention of the NYSDOT guidelines, wherein it is indicated that concrete pavement should be repaired with plain cement concrete, unless it is an emergency repair.
In an emergency circumstance, a "cold mix asphalt [repair] is acceptable for a temporary fix." [T2-38]. Mr. Frazier said that this temporary fix, whether with hot or cold asphalt, is destined to break apart, because "asphalt doesn't stick to the sides of the concrete very well, so that tends to start breaking apart fairly quickly when wheel loads are going over it." [T2-40]. The repair will not stand up, he said, "[i]t's eventually going to have to come back and be replaced with some more asphalt or fixed properly with Portland cement concrete." [T2-41].
In Mr. Frazier's view, while the temporary patches are initially less expensive, they will inevitably need to be redone, whereas fixing the pavement with cement results in a better long term cost.
In terms of time, a repair of a lane or two could be performed over a period of one or two nights, depending on whether one lane or two lanes of traffic is closed.
Mr. Frazier said the defects shown in the June 2010 photograph, and in the May 2011 photographs, show an area that was repeatedly patched, but that there was ample time from the DOT's awareness of the defect to the date of the accident to perform a more permanent repair without weather constraints. He said, "[t]o do a [Portland cement concrete] patch or repair . . . anything above 50 degrees is acceptable." [T2-51].
Mr. Frazier opined within a reasonable degree of engineering certainty that the cause of the accident was a defect in the center lane of the southbound Sprain Brook Parkway that was allowed to develop such that it was a danger to motorcycling members of the traveling public. He also opined that a warning sign would have been appropriate to warn motorcyclists about the condition of the road. Mr. Frazier noted that he did not review accident history because such review was, in his opinion, more relevant to a highway design case than a maintenance one.
On cross-examination, Mr. Frazier acknowledged that all the guidelines are just that, guidelines, and are not statutes or policy. He also acknowledged that the use of asphalt to make repairs to a concrete roadway is consistent with the State's maintenance guidelines. Although generally Mr. Frazier would make an onsite inspection before rendering an opinion, he did not do so with respect to this claim, saying that the changed condition of the site made an in-person examination unnecessary.
Nicholas Pucino, a professional engineer licensed in the State of New York since 1964, with vast experience as an engineer with the NYSDOT and its earlier incarnations over 30 years, and private, forensic work taken on full time after his 1991 retirement, testified as defendant's expert. He based his opinions on review of the pleadings, the documentary exhibits including the police accident report, photographs, construction plans, the daily work reports, prior accident history, depositions, and an onsite inspection.
North of Mile Marker 11 Mr. Pucino also noted problems in the surface related to transverse cracking and shrinkage cracking in the pavement. While he observed cracks and repairs made, he did not measure the width of cracks. He said that he did not find that there was "reliable evidence" as to the pothole's location, "because there were several locations it could have been." [T2-135]. Most of the slabs were "cracked at somewhere around the midpoint." [T2-134]. Some slabs had been repaired and some did not, in his view, require repair. With changes in temperature the concrete shrinks and there is transverse cracking.
In Mr. Pucino's view, the DOT photo logs from May 2011 [Exhibit G] best captured what the State employees would see on the road upon reasonable inspection of the pavement surface. In his view, what is depicted does not constitute a dangerous condition.
In terms of asphalt repairs generally to distressed areas of concrete surfaces, Mr. Pucino said that "[t]he normal and accepted practice going back 50 years is [to] use asphalt hot mix . . . when the weather permits to repair concrete pavements," and to use a cold mix in the winter months. [T2-146]. He acknowledged that cold patch, even if it is rolled, "can never be dead flush with the pavement if you're on top of some problem." [Ibid.].
Mr. Pucino did not characterize the asphalt patching depicted in the photologs [Exhibit G] as either hot or cold patch, nor would he opine as to the age of the patching. He said asphalt patching "in terms of efficiency, economy and safety" is the "only practical way" to make repairs. [T2-148]. These are the repairs that the maintenance department of the DOT can accomplish with their limited manpower and equipment and resources. To repair "long[er] swaths," the work must be contracted out. [T2-148].
Mr. Pucino examined the pavement condition report maintained by the DOT for the five years prior to this accident. This annual evaluation, he said, for the period from 2008 through 2011, rated the pavement for the Sprain Brook Parkway in the accident section as "fair," which category, in Mr. Pucino's estimation, does not connote a hazardous condition, nor necessarily warrant a contracted-for repaving project. [T2-161]. He said that from 2003 to 2007, 33.2% of the State's roadways were rated fair and 5% were rated poor.
When Mr. Pucino reviewed a five year accident history for a mile around the accident site he noted that there were 145 accidents, but that none noted a defective pavement condition as a contributing factor, although he acknowledged that does not mean that there were no potholes, rather he opined that it is "really stretching it to call it a hazardous roadway, because you had a pothole." [T2-166].
Mr. Pucino opined that the State properly maintained this section of the roadway, using its DOT pavement management program where annual reviews of the condition of the roadway, including physical observations, were made and determinations to let contracts with respect to one area over another were made. They did pothole repairs as observed and needed with materials that were practical to use and allowed by maintenance practice and the suggested regulations.
On cross-examination, Mr. Pucino agreed that if a dangerous condition were present - which he would not concede based upon the photographs and his observations (despite not having measured the transverse cracks) - and the asphalt repair was one to three years old, "there would have been enough time" to get a contractor in to make a more complete repair. [T2-177]. He repeated that the guidelines are comparing the two types of materials, "but they do not tell you what is the best thing to do as an engineer in a particular situation." [T2-179].
In order to justify letting a contract for a concrete repair, or a complete asphalt resurfacing, it was Mr. Pucino's view that more than an isolated pothole must be present. He said "the best procedure is to get asphalt material in there as soon as you can. You will have dozens and literally hundreds of those along the Sprain Brook Parkway. If you're going to deal with them with a concrete repair, you're going to do all of them under a contract that's practical, economical, that uses outside contractors. The best procedure in that case may be not even do the concrete repair. It may be to resurface the roadway. It may be to crack and seat. You can't compare the maintenance activity to the ultimate reconstruction activity or rehabilitation." [T2-182].
Finally, he opined that no rough road sign was necessary, as the road is not rough but rather it is similar in condition to one-third of the State's highways. Placement of such sign is a matter of engineering judgment in any case.
No other witnesses testified. DISCUSSION AND CONCLUSION
While the State of New York has a non-delegable duty to maintain its highways in reasonably safe condition for the use of the traveling public, it is not an insurer. Friedman v State of New York, 67 NY2d 271, 283 (1986). What is required are reasonable precautions, which safeguards would arguably adjust as known conditions warrant such adjustment. Because the State is not an insurer of the safety of its roadways, the mere happening of an accident on a State roadway does not render defendant 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).
Claimant has the burden of establishing that defendant was negligent and that such negligence was a proximate cause of the accident. Marchetto v State of New York, 179 AD2d 947 (3d Dept 1992), lv denied 80 NY2d 751 (1992). Liability will not attach unless defendant had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition. See e.g. Rinaldi v State of New York, 49 AD2d 361 (3d Dept 1975). A hazard must have existed for enough of a period of time that the defendant knew or should have known of its existence but failed to properly address it. Fasano v State of New York, 113 AD2d 885, 888-889 (2d Dept 1985); Gaines v Long Is. State Park Commn. of State of N.Y., 60 AD2d 724, 725 (3d Dept 1977); see also Adamo v State of New York, UID No. 2005-029-534 (Ct Cl, Mignano, J., Dec. 1, 2005).
Reasonable inspection would have revealed diseased condition of tree on roadway.
Uncontroverted testimony of claimant's expert that rutted condition in roadway shoulder had been present long enough that State knew or should have known about it, and failed to repair it.
Constructive notice of pothole on major highway where defect existed for 34 hour period.
Photographs taken by State employees two years before accident showed, at a minimum, the start of a separation in concrete roadway that was 6 to 8 inches wide and approximately 3 inches deep at the time claimant motorcyclist encountered a separation in the roadway as he was changing lanes. Cold patch material had been applied along the roadway near mile marker of accident one month before the accident.
Foreseeable users of the roadway - including motorcyclists - should be considered in assessing hazards, and in reasonable maintenance of the roadway. Coss v State of New York, 11 Misc 2d 856, 858 (Ct Cl 1958), affd 8 AD2d 682 (4th Dept 1959); see also Fister v State of New York, UID No. 2012-040-006 (Ct Cl, McCarthy, J., Jan. 31, 2012).
"The stability of a motorcycle on two wheels is much less than that of an automobile on four wheels -- yet each has equal rights and privileges in the use of the highway. The State, in constructing and maintaining its highways must consider the safety of all users."
Defendant was negligent in failing to maintain the concrete pavement on the bridge approach in a reasonably safe condition. The record establishes that the condition of the State road deteriorated markedly after the asphalt pavement gave way to the concrete surface of the bridge approach, which was pock-marked with potholes and defects of various sizes. The Court credited claimant's identification of the pothole and determined that the front tire of her motorcycle struck that pothole.
Creation of a dangerous condition proximately causing a claimant's injuries is "deemed to be actual notice . . ." ( citations omitted). Dispenza v State of New York, 28 Misc 3d 1205(A) (Ct Cl 2010) ; see also Stearns v New York State Thruway Auth., UID No. 2014-031-504 (Ct Cl, Minarik, J., Aug. 12, 2014) ; Maldonado v New York State Thruway Auth., UID No. 2010-040-025 (Ct Cl, McCarthy, J., May 5, 2010) ; Witko v State of New York, UID No. 2009-039-154 (Ct Cl, Ferreira, J., Nov. 25, 2009).
Claimants' motorcycle slipped on wet paint on the roadway from a DOT line-painting project. The State thus created a dangerous condition that posed an unacceptable risk of harm to motorists and it failed to correct or warn of the danger when the paint failed to properly dry, and is fully liable for proximately caused damages.
Defendant's negligent placement of unnecessarily wide strips of tar on the Thruway created a dangerous condition that was the most likely cause of claimants' decedent's motorcycle accident and subsequent death.
Defendant had actual notice because its own agent created the dangerous condition by failing to remove the debris from roadway, as well as constructive notice because the condition had existed for two weeks without being cleaned or swept. Defendant failed to take reasonable steps to alleviate the condition. Defendant agrees that no signs were erected to warn approaching motorists. The defendant's has a nondelegable obligation to take reasonable steps either to alleviate the dangerous condition or to warn against it. Sole cause of claimant's accident was the accumulation of pebbles, gravel, and rocks on the roadway, which caused his motorcycle to skid and fall.
Court concluded that defendant liable to claimant for injuries she sustained when her motorcycle struck a raised and uneven asphalt patch while traveling on State highway causing her to fall off her motorcycle. Sufficient evidence was offered to establish that a dangerous condition existed, that defendant was aware of the condition and that defendant's negligence was a proximate cause of claimant's accident. The patch maintenance created the condition. "The collective weight of [witnesses'] testimony, along with numerous photographs of the patch taken on the day of claimant's accident, indicates that the left-hand lane area of the patch was cracked, uneven, settling and crumbling, and created a significant bump for motorists."
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Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the claimant has established a sufficient basis for the State's liability by a preponderance of the credible evidence. More specifically, the Court finds that the State had actual notice of the defective condition at issue north of Mile Marker 11 across the southbound lanes of travel, addressed the deteriorating concrete condition in the 3 mile stretch of the road and in the area of the accident by the use of asphalt materials which, given the volume of use of the roadway was bound to break apart, did so, and thus created a dangerous condition proximately causing the claimant's accident and any causally related injuries. The area credibly identified by claimant as the location of his accident on photographs, clearly shows a condition that while not necessarily dangerous to a four-wheeled vehicle, would present a hazard to a two-wheeled one. As described by claimant, the hole was big enough to cause his tire to lock into it.
The portion of the highway where the accident occurred was repaired and patched repeatedly, but only through measures which even defendant's expert conceded were essentially temporary. The Court does not find credible the repeated assertion that performing a concrete repair was so far out of the role of the maintenance department of the DOT, and that such an onerous task could only be performed by letting a contract (or that the letting of a contract in any event was such a forbidding task). All highway repairs necessitate lane closures and disruption. In this Court's view, the evidence shows that the 3 mile stretch of remaining concrete material along the Sprain was undergoing maintenance more than a year before this accident [see Exhibit 4] and that the maintenance approach generally appears to be one of repatching the problem rather than fixing it. [See Exhibit D]. Notably, the individual responsible for maintaining the integrity of this 12.5 stretch of roadway - and particularly the oldest, 3 mile concrete portion - did not appear cognizant of the need to assess the surface in terms of all types of vehicles that might use the travel way. Indeed, Mr. Quadri and Mr. Pucino stated that the best way to assess the surface is via an onsite visit, yet there was no evidence that personnel did more than drive along the roadway - in four-wheeled vehicles - and perform patchwork which was of varying efficacy, and which all acknowledged would break apart.
The Court does not find that there is any evidence that the claimant was himself negligent, as he was unable to evade an obstruction that he had a mere few seconds to avoid, and was surrounded by other vehicles.
Based on the foregoing, the Court finds that the State was 100% responsible for the happening of this accident.
The Chief Clerk is directed to enter interlocutory judgment on the issue of liability as set forth herein. A trial on the issue of damages will be scheduled as soon as practicable.
Let Interlocutory Judgment be entered accordingly.
November 19, 2015
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims