Opinion
# 2017-018-800 Claim No. 117094 Motion No. M-88590
01-10-2017
MICHAEL T. WALSH, Individually and as the Administrator of the Estate of MELISSA A. WALSH v. STATE OF NEW YORK
POWELL TRACHTMAN LOGAN CARRLE & LOMBARDO, P.C. By: Paul A. Logan, Esquire Frank S. Nofer, Esquire COLUCCI & GALLAGHER, P.C. By: Ryan L. Gellman, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General
Synopsis
Several issues of fact remain, accordingly, Claimants' motion for partial summary judgment is DENIED.
Case information
| UID: | 2017-018-800 |
| Claimant(s): | MICHAEL T. WALSH, Individually and as the Administrator of the Estate of MELISSA A. WALSH |
| Claimant short name: | Walsh |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117094 |
| Motion number(s): | M-88590 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | POWELL TRACHTMAN LOGAN CARRLE & LOMBARDO, P.C. By: Paul A. Logan, Esquire Frank S. Nofer, Esquire COLUCCI & GALLAGHER, P.C. By: Ryan L. Gellman, 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: | January 10, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claimant moves for partial summary judgment on the issue of the State's liability in this pain and suffering and wrongful death case. Defendant opposes the motion.
The claim stems from a one-vehicle accident which occurred on eastbound I-690, approximately three-tenths (3/10) of a mile east of Thompson Road in the Village of East Syracuse, Town of Dewitt, on Thursday, July 26, 2007, around 4:30 a.m. The facts surrounding the accident are not in dispute. I-690 is a three-lane roadway, both east and westbound, divided by guide rail and a grassy median. A City of Syracuse Police Officer, William Galvin, was traveling eastbound, home to Manlius, when he came upon Decedent, Melissa A. Walsh's 2007 gray Nissan Altima positioned perpendicular to, and in the northern-most traveling lane, closest to the median. The roadway was dark and unlit, and the weather was dry with a temperature of 67 degrees Fahrenheit. Officer Galvin activated the lights on his police vehicle and called in the accident at 4:33 a.m. Police, fire, and the ambulance were dispatched. Decedent was pronounced dead at the scene.
At the northern edge of the roadway, 21-feet east of the point which Decedent's vehicle's initially impacted the "W" beam guide rail, the guide rail separated mid-section, approximately 7-feet 8-inches east from its connecting post. The guide rail separated 43-feet total - leaving four guide rail post supports standing but bent in an easterly direction. Deputy Jonathan C. Anna of the Onondaga County Sheriff's Office, who prepared the accident report, noted that the asphalt around the posts showed cracks which appeared to be recent because they were free of silt or debris. At the point of initial impact, 21-feet west of the guide rail break that separated support post, appeared to show pre-existing damage because of the accumulated silt and grass growing in the cracks. At that initial contact point with the guide rail, Deputy Anna noted approximately 3.5- feet of light scuff marks, before a black mark appears along the rail, 13-feet long, ending 4.5-feet before the break in the rail. Deputy Anna considered these marks to be from Decedent's vehicle. He noted that there was also a transfer of blue paint at the point of initial impact, underlying the black scuff mark, but he considered this to be pre-existing.
Approximately 34-feet of the separated guide rail entered the vehicle's driver's front wheel well. As the rail impaled the vehicle and Decedent, the vehicle was caused to rotate before coming to rest with the guide rail through the vehicle and trunk, extending approximately 19-feet out of the trunk. Deputy Anna noted what he considered to be rust on the broken edge of the western section of the remaining attached guide rail. Approximately 2-inches at the top of the broken edge appeared "rust-free." The portion of the broken rail that went through the vehicle was curled at the end.
Claimant's Exhibit 7, Accident Supplement page 4.
The claim, filed on July 9, 2007, alleges the following:
The claim was originally brought against the State of New York and the New York State Thruway Authority. The parties, by stipulation, approved and ordered by the Court on April 3, 2015, discontinued the action against the New York State Thruway Authority. The stipulation was filed on April 9, 2015.
Claimant alleges that he served a timely notice of intention, and no untimeliness defense has been raised. --------
The negligent or reckless conduct of the State of New York, consists of failing to properly install and maintain the guide rail as designed, resulting in the guide rail having a pre-existing almost complete fracture of the mid-section of the steel "W" beam defeating the deflection and channeling design of the guide rail. During the accident, this pre-existing fracture or partial separation of the "W" beam causing the westerly end of the fractured guide rail to travel leftward, away from the driving lane, allowing decedent's vehicle to travel further from the driving lane, leading to the easterly fractured guide rail to snap toward the roadway and within decedent's vehicle's frontal width. The fractured rail and condition of the posts, instead of deflecting decedent's vehicle as designed, allowed decedent's vehicle to travel further away from the traveling lane toward the median, opening a north/south gap in the guide rail between the rail along which decedent's vehicle was riding and the separated rail. Claimant alleges that the damaged condition of the rail and posts was caused by a prior accident which defendant failed to repair, or repaired incorrectly or improperly. Claimant alleges that the State had actual or constructive notice of the dangerous condition of the guide rail. Claimant alleges that the State has a duty to inspect and maintain its roadways in a safe condition and to provide drivers with a safe recovery area if they leave the roadway to recover control, and the State acted negligently, recklessly or knowingly conducted their operations and maintained their facilities in violations of applicable safety regulations, laws regulations, standards and requirements. Claimant alleges the State deliberately disregarded the condition of the posts and guide rails creating a hazardous and unreasonably dangerous condition with knowledge of the same would place persons at great risk and peril. It is alleged that the State's negligence, reckless and knowing conduct proximately caused decedent's personal injuries and death. Decedent's spouse, Michael T. Walsh, claimant, interposed a derivative cause of action.
Defendant interposed a verified answer to the claim. Discovery is now complete and a note of issue was filed on January 22, 2016. The claim is scheduled for a bifurcated trial on liability beginning on January 30, 2017.
To be successful on a motion for summary judgment the proponent must first present a prima facie showing of entitlement to judgment as a matter of law and, if so, the other party must then present evidentiary proof to establish the existence of a material fact which would require a trial (Zuckerman v City of New York, 49 NY2d 557; Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395). The evidence submitted on the motion for summary judgment must be viewed in the light most favorable to the non-moving 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"; issue finding, not issue determination, is the Court's task (Sillman, 3 NY2d at 404, quoting Barrett v Jacobs, 255 NY 520, 522 [1931]). Negligence actions are classically embedded with factual issues even when it appears the primary facts are not in dispute because often whether the parties' conduct was reasonable under the circumstances is, itself, a question of fact (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]; Chilberg v Chilberg, 13 AD3d 1089, 1090 [4th Dept 2004]). Only where there is no disputed substantive evidence, or where there is no question that Defendant's conduct fell well below the standard of care, is it a question only of law as to whether the Defendant was negligent (Andre v Pomeroy, 35 NY2d 361, 365 [1974]; St. Andrew v O'Brien, 45 AD3d 1024, 1025 [3d Dept 2007]).
Claimant provided substantial documentation, deposition testimony, expert affidavits, pictures, guidelines, and articles. These submissions establish that the State has a duty to inspect, maintain, and repair the guide rail at the location of Decedent's accident. A guide rail, based upon some of the testimony of various DOT personnel, is used to shield vehicles from a roadside hazard, prevent vehicles from going down a slope, into opposing traffic or into a dangerous area, and to redirect errant vehicles back into the lane of traffic. Steven Kokkoris, the Resident Engineer of the Onondaga East Residency of the New York State Department of Transportation (DOT), testified that depending upon the speed and angle of a vehicle, the guide rail would redirect or capture the vehicle. At a shallow angle the guide rail should deflect, or may allow the driver whose vehicle is sliding along the rail, time to correct. Mr. Kokkoris opined that a tear in a "W" beam guide rail could compromise the guide rail and be a safety hazard. Such a defect, he acknowledged, should be repaired. The fractured guide rail, in this case, was a proximate cause of Decedent's injuries and death.
Yet, issues of fact remain, based upon the conflicting testimony and expert positions as to whether Defendant breached its duty of care, including:
•Whether the State regularly and reasonably performed inspections of the guide rails on I-690 prior to Decedent's accident;
•Whether there was a pre-existing tear in the guide rail that was visible and/or apparent and existed for a sufficient period of time to have placed the State on constructive notice of the condition in time for it to inspect, correct, replace or repair it before Decedent's accident;
•Whether a 2004 prior accident, in the vicinity of Decedent's accident, and/or the 2005 photo log placed the State on constructive notice of a partially fractured guide rail at the location of Decedent's accident;
•Whether what appears to be rust on the torn end of the remaining rail formed over a period of time sufficient to support a finding that the State knew or should have known that the guide rail at this location was fractured before Decedent's accident;
•Whether the State failed to properly inspect, replace or repair the guide rail before Decedent's accident; and
•Whether Decedent had any comparative negligence attributable to her injuries and death as a result of her blood-alcohol level at the time of the accident, or cell phone usage prior to or at the time of the accident.
Accordingly, Claimant's motion for summary judgment is DENIED. The trial on the issue of the liability of the State will proceed as scheduled on January 30, 2017.
January 10, 2017
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) Affidavit of Frank S. Nofer, Esquire, sworn to May 16, 2016, in support, with exhibits attached thereto. 3) Memorandum of Law in support of Claimant's motion for partial summary judgment. 4) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in opposition with exhibits attached thereto. 5) Affidavit of Frank S. Nofer, Esquire, sworn to October 3, 2016, in support, and in opposition to Defendant's affirmation in opposition, with exhibits attached thereto. 6) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in opposition to Claimant's Reply Affirmation, with exhibits attached thereto.