This claim arose on Thanksgiving Day, November 23, 1989, and involved a one
vehicle accident. At the time, claimant was driving her vehicle on Burning
Springs Road, located on the Seneca Nation Reservation of Native Americans in
Cattaragus County, New York. The accident site is approximately 15 miles from
the Village of Silver Creek, New York. Claimant was proceeding southeast on
Burning Springs Road when her vehicle struck a patch of ice on the snow covered
road, started to spin clockwise out of control, and struck the first of three
tree stumps located on the side of the roadway. When claimant's vehicle struck
the first tree stump, her vehicle flipped, overturned, and came to rest upside
down. Claimant's vehicle struck stumps one and two, but was caused to flip by
striking stump number one. The final resting position of claimant's vehicle was
between tree stumps one and two.
The two tree stumps involved in this accident were parallel to the road, and
approximately 6 feet from the edge. Tree stump one was 1.61 feet above the edge
of the paved roadway, while tree stump two rose 2.21 feet above the edge. There
was also a white pine tree 50 feet from the edge of the roadway. It was near
the white pine tree that claimant's vehicle began to skid on Burning Spring
At the accident site, Burning Springs Road is a two lane road running
southeast and northwest. Each lane of travel is 10 feet wide, bordered by a
gravel shoulder of approximately 3.75 feet. There was much testimony as to the
defendant's right-of-way for Burning Springs Road on the Seneca Nation
Reservation. Based upon this testimony, the court finds the defendant's
right-of-way on the Reservation for Burning Springs Road was 66 feet. The
defendant, through its Department of Transportation (DOT), was required to
maintain the roadways on the Seneca Nation Reservation in the same condition as
other comparable roads in the state highway system, and had authority to do so
(Exhibit 26, Memorandum of Understanding Between New York State Department of
Transportation and Seneca Nation of Indians, dated 7/25/76).
Claimant maintains the tree stumps adjacent to the roadway constituted an
unreasonable hazzard, and defendant's failure to remove them was negligent.
Claimant also alleges the defendant was negligent in permitting a dangerous
condition to exist on Burning Springs Road at the point where claimant's vehicle
began to skid and go out of control. According to claimant, this section of the
roadway was prone to icing due to the configuration of the roadway and the
adjacent shoulder area. Claimant asserts there was a dip in the roadway at this
location, with the shoulder area higher than the roadway surface, thereby
preventing water from draining from the roadway. Claimant theorizes this
particular area of Burning Springs Road, in a freeze/thaw situation, would tend
to icing before other areas of the roadway, because of the shadow cast across
the road by the white pine tree and the lack of drainage.
The trial of this claim was bifurcated, and this decision relates to
Claimant testified that, on the morning of November 23, 1989, Thanksgiving
Day, she resided in North Collins, New York, and was preparing for Thanksgiving
dinner at her mother's home in Angola, New York. At about 10:30 a.m., she
received a telephone call from her daughter, requesting claimant to pick up her
boyfriend, Todd Summers, in Silver Creek, New York. Shortly thereafter,
claimant left for Silver Creek to get Mr. Summers. When claimant left North
Collins, she stated the weather was fine, but as she proceeded to Silver Creek,
snowfall was increasing. It took claimant approximately 25 minutes to get to
Silver Creek. When claimant arrived at Silver Creek, Mr. Summers requested she
take two of his friends to their Thanksgiving dinner, which eventually took her
onto Burning Springs Road. At the time, claimant was driving a six-cylinder
1989 Chevrolet Camero, equipped with standard tires.
Claimant testified the plan that morning was for Todd Summers to ride with
William Pierce, and follow claimant with her two passengers to her destination
on Burning Springs Road, where her passengers would be left. From there, Mr.
Summers would ride with claimant to claimant's mother's home in Angola.
Claimant had never before been on Burning Springs Road, and was given directions
by one of her passengers. According to claimant, she was proceeding slowly, 20
to 25 miles per hour, because the roads were bad. She described Burning Springs
Road as snow covered to the extent claimant was unable to see the pavement.
Claimant stated that, as she was driving on Burning Springs Road, she was aware
of icy spots on the roadway. Claimant testified she mistakenly passed the
driveway she was to turn into and continued on to the next intersecting road,
where she turned around to return in the opposite direction. The reason
claimant gave for not wanting to turn around in a driveway was that she did not
want to get stuck. Claimant testified she came around a curve on Burning
Springs Road, saw some ice, and then her car began to skid. According to
claimant, the last thing she remembers of the accident was hitting the ice
patch, the rear of her car starting to spin clockwise, and then hearing a noise.
Although claimant testified the ice patch on which her car skidded was located
on a curve, it actuality was on a straight-away, a short distance from a slight
curve in the road (Exhibit 30).
At the time of the accident on November 23, 1989, William J. Pierce was
driving a Dodge Dakota 4x4 pickup three to four car lengths behind claimant.
His passenger was Todd Summers. Mr. Pierce estimated he was proceeding at about
30 miles per hour, and claimant was going approximately 5 to 10 miles per hour
faster. According to Mr. Pierce, claimant's vehicle struck the ice in the
roadway, which caused the vehicle to go out of control. He witnessed claimant's
vehicle slide clockwise, hit a tree stump, and flip over.
John Tampio was a passenger in claimant's car on November 23, 1989 as it
proceeded on Burning Springs Road. He testified claimant was driving at about
25 to 30 miles per hour. He stated claimant hit a patch of ice in the roadway,
and lost control of her vehicle. He noted, on impact one of the tree stumps
went through the rear passenger window.
In 1989 Alfred L. Wheeler resided on Burning Springs Road about ¼ mile
from the accident site. He did not then know claimant. On the morning of
November 23, 1989, Mr. Wheeler was driving out of his driveway, when he observed
claimant's car pass by on Burning Springs Road. He estimated claimant's speed
to be approximately 20 miles per hour. After Mr. Wheeler pulled onto Burning
Springs Road, he observed a large puff of snow ahead of him. When he arrived at
the accident scene, Mr. Wheeler observed claimant's vehicle off the road and
upside down. Mr. Wheeler testified that, as he approached the accident scene,
he applied his brakes, and his car slid on the icy surface of the roadway. He
described the ice patch as covering about 20 feet of the road surface, and
taking the shape of trees shading the road in the area. According to Mr.
Wheeler, he had observed icing in this area before, which occurred when there
was a thaw and water flowed across the roadway, followed by freezing
temperatures. However, Mr. Wheeler never reported this icing condition to
anybody. He stated Burning Springs Road was very lightly traveled, with no more
then ten cars per day passing over it. Contrary to claimant's testimony, Mr.
Wheeler stated the morning of November 23, 1989 was a clear day, and the road
Between 1969 and 1996 Marvin D. Cummings was employed by the DOT as a highway
maintenance supervisor I. His duties included supervising crews and inspecting
highways. Mr. Cummings testified he and his crews were responsible for Burning
Springs Road. According to Mr. Cummings, when he inspected Burning Springs
Road, his practice was to inspect the pavement only. He believed he inspected
Burning Springs Road about once a week.
Mr. Cummings was shown Exhibits 7, 8, and 9, which purport to be photographs
taken in the fall of 1990 at or near the accident scene. Mr. Cummings looked at
Exhibit 7, and testified the photograph appeared to depict the shoulder of
Burning Springs Road higher than the roadway, and also showed a slight dip in
the road surface. The dip in the road surface observed by Mr. Cummings in the
photograph is of no significance because it is beyond the accident scene. Mr.
Cummings also observed Exhibit 9, and he noted a crack in the road pavement. He
testified this would indicate a water problem. However, he also testified the
crack in the roadway could be attributed to black top deterioration, and an
inferior sub-base of the roadway. According to Mr. Cummings, the first time he
observed any of these conditions on Burning Springs Road was when he looked at
the exhibits. He had never observed the conditions during his road inspections,
including during November, 1989. Mr. Cummings would consider the conditions of
Burning Springs Road depicted in Exhibits 7, 8 and 9 a "dangerous
The measurements taken where
claimant's car skidded off the roadway establish the shoulder and adjacent area
are lower than the centerline and roadway surface of Burning Springs Road.
Mr. Cummings was also questioned about the tree stumps near the shoulder of
the road at the accident site. He stated he had never observed the tree stumps
during any of his road inspections. He testified the normal procedure for tree
stumps such as these would be to have them removed out with a stump grinder. He
stated this would be a typical local maintenance procedure.
Charles Kuell has been a land surveyor since 1949 and is licensed by the State
of New York. Between 1945 and 1976 he was employed by the New York State
Department of Transportation (NYSDOT), and ended his career as an engineer in
charge. He currently is self employed. He was retained by claimant in 1995,
and that same year prepared a survey of the accident site (Exhibit 30), a
geographic location of survey points and their elevations (Exhibit 31), and a
centerline profile of Burning Springs Road in the area of the accident (Exhibit
Mr. Kuell testified the centerline profile of Burning Springs Road shows a low
spot in the roadway where the pine tree was situated. This was the location
where claimant began to skid and lost control of her vehicle. Mr. Kuell
acknowledged that roads settle over time.
The only measurements before the court of the slope of Burning Springs Road
and its shoulder at the pine tree location are those of Mr. Kuell. He testified
that, at this location, the edge of the pavement was 2 inches below the
centerline, and the edge of the roadway shoulder was 5½ inches below the
George J. Triepel testified on behalf of claimant as an expert in highway
engineering. Mr. Triepel graduated with a bachelors degree from Alfred
University in January, 1955. He majored in psychology, with a minor in history
and government. His engineering education at Alfred University was a few
courses when he spent some time studying metallurgical technology. He also had
taken some traffic engineering courses through the United States Department of
Transportation. Mr. Triepel has never been a licensed engineer in New York
State. From 1968 through 1994 Mr. Triepel worked in the Erie County Highway
Department. He started full-time in January, 1955 as a senior engineer
assistant. In 1968 he was appointed Erie County Traffic Engineer. It appears
Mr. Triepel's highway engineering knowledge comes basically from on-the-job
training. In the court's view Mr. Triepel's qualifications and experience as a
highway design and engineering expert are limited.
Mr. Triepel testified that providing drainage for a roadway was critical in
highway design. Mr. Triepel was shown Exhibits 4, 7, and 8, photographs at or
near the accident scene taken in 1990. He believed the photographs appeared to
show the shoulder and ground adjacent to the roadway higher than the roadway and
sloping toward it. He also stated the shoulder of the road shown in the
photographs was not a porous material, and would be unable to provide
substantial drainage of water. He reaches this conclusion from merely looking
at the photographs, because he had never been to the accident scene. The court
has viewed these photographs, and is of the opinion it would be most difficult,
if not impossible, to determine the porosity of the roadway shoulder without a
physical examination of the material. This would be especially so for a person,
such as Mr. Triepel, without experience in the porosity of various ground
materials. Mr. Triepel also stated, based upon Mr. Kuell's survey, that a low
point exists on Burning Springs Road in the westbound lane at the pine tree.
This is the location where claimant began her skid. According to Mr. Triepel,
surface drainage of the roadway would flow toward the low point. He also
stated, the crack in Burning Springs Road, depicted in Exhibits 9 and 10,
indicated a freeze/thaw problem under the pavement.
It was Mr. Triepel's opinion the area where this accident occurred constituted
a dangerous condition. The basis of this opinion was that water would not flow
from the roadway surface, because the shoulder of Burning Springs Road and the
ground adjacent to it at the accident site were higher than the roadway surface.
He also stated water would tend to flow into this area because of the low point.
A freeze/thaw cycle on the roadway at the pine tree location, would cause an
icing condition, according to Mr. Triepel.
In the face of these conclusions Mr. Triepel conceded if there was a drop in
Burning Springs Road from its centerline to the edge of the shoulder of 5½
inches, water would flow off the road. Mr. Kuell's measurements establish
there was such a drop on Burning Springs Road at the pine tree location. Mr.
Triepel also stated it would be important for him to know the weather conditions
at the accident site to determine if there had been a freeze/thaw cycle to
create a snow melt and water on the roadway. He acknowledged the temperature
would have had to have been above freezing for any snow plowed along the side of
the road to have melted and ponded in the area. However, Mr. Triepel stated he
never checked any weather records for November 23, 1989 and the days before it
in reaching his opinions. He acknowledged his theory of water ponding would
require a volume of water. Mr. Triepel further acknowledged, in reaching his
conclusion that the area of the accident scene constituted a dangerous
condition, he did not review any accident rate studies or traffic volume studies
for Burning Springs Road.
It was also Mr. Triepel's opinion, an icy pavement control sign should have
been located before the accident site. He referred to Section 234.9 of the
Manual of Uniform Traffic Control Devices. This section describes the "Icy
Pavement Zone" sign uses. The sign is to be used, as necessary, to warn of
roadway sections "subject to unusual or unexpected pavement icing." As will be
discussed later, unexpected pavement icing was not a condition for claimant's
concern on Burning Springs Road the morning of November 23, 1989. The section
further states the sign is not intended for use with normal winter highway snow
or ice conditions.
Finally, Mr. Triepel opined the tree stumps at the accident site constituted a
dangerous condition. He stated they were a fixed object, which should not
remain within 6 feet of the paved surface of the roadway. According to Mr.
Triepel, the tree stumps created a snag point for any vehicle going off the
David Liske is an accident reconstructionist, and testified as an expert on
behalf of claimant. Mr. Liske founded the company of Liske Consulting Group,
which investigates and reconstructs accidents in the State of New York and
Province of Ontario. According to Mr. Liske, his speciality is kinesiology,
which is the study of the principles of mechanics and anatomy in relation to
human movement. Mr. Liske received a bachelor and master's degree from the
University of Western Ontario, Canada. In 1986 he completed his course work for
a doctorate degree from the University of Waterloo. Mr. Liske is not a licensed
engineer, and does not hold any certifications in the engineering field. From
1990 to 1995 Mr. Liske was employed by Sierra Research in a position titled,
"Senior Engineer." He eventually became head of his department at Sierra
Exhibit 42 is a diagram of the accident scene prepared by Mr. Liske. It shows
claimant's vehicle began to skid on Burning Springs Road at a spot adjacent to
the pine tree. According to Mr. Liske, when claimant's vehicle started to slide
on the ice, it was proceeding between 27 and 33 miles per hour. He stated the
impact speed of claimant's vehicle with the stump was 22 to 24 miles per hour.
As claimant's vehicle rolled onto tree stump one it was traveling approximately
15 miles per hour. Mr. Liske testified, if the tree stumps were not present
when claimant was sliding into this area at 22 miles per hour, there would have
been no accident. He stated claimant's vehicle would have come to rest upright
48 feet away on a mowed lawn off the roadway. In Mr. Liske's words all that
would then have been necessary would be to "call a tow truck and go home." Mr
Liske stated, with the tree stumps removed, there was nothing for claimant's
vehicle to impact. Based upon this testimony, it appears Mr. Liske attributes
the proximate cause of this accident and claimant's injuries to the presence of
the tree stumps. Mr. Liske opined that the substantial factors in the cause of
this accident were the condition of the roadway and the presence of the tree
stumps. He described the tree stumps as a "snag point", which caught claimant's
vehicle and caused it to flip.
Karl E. Stadler has been employed by the NYSDOT for the past 37 years. He is
currently a Civil Engineer I and assigned to the traffic engineering department.
In November 1989 he was an Assistant Resident Engineer at the South Erie
Maintenance Residency. This territory included maintenance on the Seneca Nation
Mr. Stadler testified that, in 1987, the entire length of Burning Springs Road
was repaved by the NYSDOT. The repaving covered 1.7 miles for the entire width
of the roadway. The project also included establishing a 3 foot wide shoulder
of gravel from the edge of the pavement on each side of the road. The driving
surface was repaved with 1½ inches of asphalt binder and 1 inch of asphalt
Mr. Stadler testified he reviewed NYSDOT records, and could find no record of
trees being removed on Burning Springs Road prior to November 23, 1989. He
stated, if tree stumps were located adjacent to a reservation road, the stumps
would be removed by DOT. The procedure to be followed in removing trees and
tree stumps would be for a DOT tree crew to cut trees as close to the ground as
possible, usually 2 to 3 inches from the ground. The tree crew would then
return when a stump grinder was available, and grind the stumps out.
Mr. Stadler testified that, on November 23, 1989, Thanksgiving Day, a crew
would not normally have been scheduled to work because of the holiday. However,
he stated, if there was a need, a crew would have been directed to report to
work. Mr. Stadler referred to Exhibit 20, Dispatcher's Daily Log, for the
Collins, New York subheadquarters. This subheadquarters would have encompassed
the area of Burning Springs Road. It appears to be approximately 2 to 4 miles
from the accident site. This daily log indicated crews were called to work, and
were loading trucks at 8:00 a.m. on November 23, 1989. The roads covered by the
crews encompassed all of the reservation roads, including Burning Spring Road.
The crews started at 8:00 a.m. and ended at 12:00 noon on November 23, 1989. At
9:30 a.m. that day, the Dispatcher's Daily Log indicated all roads in the
subheadquarters needed plowing and sanding. At 10:30 a.m. on November 23, 1989
a notation in the daily log stated it was "still snowing", and the roads
continued to be sanded and plowed. The daily log further indicated that, at
1:00 p.m. on November 23, 1989, two additional crews were going to be called in
for work. Mr. Stadler pointed out Exhibit 20 also described the weather at 8:00
a.m. on November 23, 1989 as "snowing", and at 10:30 a.m. that same day as
"light snow." The temperature fluctuations from the Dispatcher's Daily Log on
November 23, 1989 range from 19 degrees at 8:00 a.m., 22 degrees at 10:30 a.m.,
and 24 degrees at noon, when the shift ended.
Dennis Logan is currently a Highway Maintenance Worker I for the NYSDOT. He
has been with the DOT for 13 years. In 1989 Mr. Logan was classified as a
laborer. His duties included manual work, and acting as a wing man on a plow
truck during winter months. Exhibit 19 is the DOT's Operator's Daily Report for
November 23, 1989, prepared by Mr. Logan. Referring to this report, Mr. Logan
testified he worked from 8:00 a.m. to 12:00 noon on that date. Mr. Logan was
the helper on a large plow truck, operated by Ed Stevens, which was engaged in
snow and ice removal by plowing and salting/sanding roads in the residency. Mr.
Logan testified they covered 57 miles of roadway on November 23, 1989 between
8:00 a.m. and 12 noon. According to Mr. Logan, his truck spread seven tons of a
salt/sand mixture on the roadways. Burning Springs Road was one of the roads
covered by Mr. Logan's truck. Mr. Logan testified he would spread material
constantly, but would turn off the spreader if the roadway did not need it.
Mr. Logan recalled plowing and spreading the salt/sand mixture on the morning
of November 23, 1989, because he used Burning Springs Road that morning to
return home. He stated he resided on a road just off Burning Springs Road. Mr.
Logan testified he returned home on November 23, 1989 at around 12:10 p.m. He
stated Burning Springs Road was covered with about ½ inch of snow at the
time. According to Mr. Logan , he did not observe any ice patch on Burning
Springs Road on November 23, 1989. When returning home, Mr. Logan observed
claimant's vehicle flipped over at the accident scene. He was in the opposite
lane of travel of where the accident occurred. Mr. Logan testified he was
unaware of any icing problem in the accident area, but had testified at his
deposition the area of the accident could sometimes ice up as temperatures rose
Roy R. Bailey testified as an expert for the defendant. Mr. Bailey has a
bachelor's and master's degree in civil engineering from the City College of New
York. He worked for the DOT for 30 years and retired in 1996. Mr. Bailey is a
licensed engineer in New York and Florida. He was retained by the defendant to
do an accident reconstruction. Mr. Bailey testified he reviewed the accident
report, various depositions, Mr. Liske's report, and surveys prepared by Mr.
Based on his calculations, Mr. Bailey testified claimant was driving at 69 to
74 miles per hour just prior to the accident. He stated claimant struck the
tree stump at 63.2 miles per hour. Mr. Bailey opined the sole cause of this
accident was claimant's excessive speed. He is also of the opinion there was no
drainage problem in the area of the accident.
Although Mr. Bailey was qualified as an engineering expert to testify as to
the cause of this accident, the court cannot accept his finding that excessive
speed was the proximate cause. It seems inconceivable to the court, in light of
all the testimony and evidence, that claimant was traveling at 69 to 74 miles
per hour when her car began to skid. The court is in agreement with claimant's
expert, David Liske, that, if claimant struck the tree stump at 63.2 miles per
hour, this would have been a fatal accident. Claimant's passengers suffered
little, if any, injury as a result of this accident. The evidence indicates Mr.
Liske's estimate of claimant's speed when she began to skid, 27 to 33 miles per
hour, and when she impacted the stump, 22 to 24 miles per hour, is probably
The defendant has a duty to adequately design, construct, and maintain its
highways in a reasonably safe condition, and if it fails to do so liability will
be imposed upon it for injuries sustained as a result of this breach of duty.
Friedman v State of New York, 67 NY2d 271; Lopes v
Rostad, 45 NY2d 617.
This duty also extends to conditions adjacent to the roadway that could
reasonably be considered a dangerous hazard to the traveling public. The tree
stumps involved in this accident would fall into this category. Nevertheless,
the defendant is not the insurer of the safety of their highways, and the mere
happening of an accident on the highway does not necessarily render the
defendant liable. Tomassi v Town of Union, 46 NY2d 91; Epstein v
State of New York, 124 AD2d 544; lv denied, 69 NY2d 605. The mere
fact an accident occurred because a vehicle skidded on ice on a highway does
not, in and of itself, establish negligence. Timcoe v State of New
York, 267 AD2d 375; Johnson v State of New York, 265 AD2d 652;
Valentino v State of New York, 62 AD2d 1086. It is claimant's burden to
establish defendant was negligent and such negligence was the proximate cause of
the accident. Bernstein v City of New York, 69 NY2d 1020; Travalino v
State of New York, 203 AD2d 276. Negligence will only lead to
liability when the defendant has actual or constructive notice of a dangerous
condition and fails to take reasonable measures to correct the condition.
Brooks v New York State Thruway Authority, 73 AD2d 767, affd 51
NY2d 892; Rinaldi v State of New York, 49 AD2d 361; Tomassi v
Town of Union, supra.
Claimant's expert, David Liske, stated there would have been no accident and
injuries to claimant if the stumps adjacent to Burning Springs Road at the
accident site were not present. According to Mr. Liske, claimant's vehicle
would merely have come to rest 48 feet away, off the road, on a mowed lawn. All
that would have been necessary then to remedy this problem was for a tow truck
to pull the upright vehicle back on to the road surface. Therefore, as
previously stated, it appears to the court, the proximate cause of this accident
was the presence of the tree stumps adjacent to Burning Springs Road. The court
acknowledges the defendant had a duty to maintain this area adjacent to Burning
Springs Road. The duty would encompass a condition which would be considered a
dangerous hazard, if the defendant had actual or constructive notice of it.
The first issue to be considered is whether the tree stumps at the accident
site constituted a dangerous and unreasonable hazard. If they did not, the
defendant did not have a duty to remove them. The answer to this question has
already been resolved by the Supreme Court, Appellate Division: Fourth
Department. Claimant had commenced an action in New York State Supreme Court
against the New York Telephone Company and Niagara Mohawk Power Corporation,
Warren v New York Telephone Company and Niagara Mohawk Power Corporation.
The theory upon which claimant pursued Niagara Mohawk Power Corporation was that
Niagara Mohawk Power Corporation negligently cut the trees under its power lines
at the accident site, and permitted the tree stumps to remain, thereby creating
a dangerous condition. These are the same tree stumps involved in this claim.
Niagara Mohawk Power Corporation brought a summary judgment motion seeking
dismissal of the claim, which was denied by Supreme Court. On appeal the
Supreme Court trial term order and judgment was unanimously reversed on the law,
the summary judgment motion granted, and the complaint against defendant,
Niagara Mohawk Power Corporation dismissed. The court held "[t]he tree stumps
did not present an unreasonable hazard and, thus, defendant was under no duty to
remove them (see, Adamy v Ziriakus, 199 AD2d 1018, lv denied 83
NY2d 755; McKenna v Garcia, 189 AD2d 756; Guy v Rochester Gas
& Elec. Corp., 168 AD2d 965, lv denied 77 NY2d 808)." Warren
v New York Telephone Company, 238 AD2d 961. Since the tree stumps here, as
found by the Appellate Division: Fourth Department, did not pose an unreasonable
hazard, the defendant, State of New York did not have a duty to remove them.
Consequently, the failure to remove the tree stumps did not constitute
negligence on the part of the defendant.
Furthermore, there is no proof to establish the defendant had actual or
constructive notice of the presence of the tree stumps. Claimant presented no
proof as to who or what entity removed the trees and created the tree stumps, or
when the trees were removed. The uncontroverted proof before the court is that
defendant has no record or knowledge of these three trees, adjacent to Burning
Springs Road, being removed. Furthermore, there is no proof the presence of the
tree stumps were ever reported to the defendant. Mr. Cummings viewed a
photograph of the tree stumps, and testified they did not appear to be freshly
cut. The court has given no weight to this testimony, because Mr. Cummings has
no expertise in forestry. Additionally, the court has viewed the photographs of
the tree stumps, and concludes there is no way from the photographs to establish
when the trees were cut.
Although the court has determined the proximate cause of the accident was the
presence of the tree stumps, which were not a dangerous hazard giving rise to a
duty on the part of the defendant to remove them, for the sake of completeness,
the court will address the condition of Burning Springs Road at the time of the
accident. It is claimant's position Burning Springs Road was clear except for
an icy spot at the pine tree, where claimant's vehicle began to skid. Claimant
maintains this icy spot was created by a dip in the road, and the inability of
the roadway to drain water from melting snow.
In the first instance, the proof does not support claimant's position Burning
Springs Road did not properly drain water from the pavement in the area of the
pine tree, the point where claimant's vehicle began to skid. Claimant's expert,
George J. Triepel, opined this particular area of Burning Springs Road lacked
proper drainage, and therefore would be subject to a freeze/thaw cycle which
would create an icy patch. The basis of his opinion was that this would occur
because the shoulder of Burning Springs Road and the adjacent area to it was
higher than the roadway and its centerline. At the same time, Mr. Triepel
conceded, if there was an elevation drop from the centerline of Burning Springs
Road to the edge of the shoulder of 5½ inches, water would flow off the
roadway. Claimant's proof, through its surveyor, Charles Kuell, established the
edge of the pavement at the pine tree on Burning Springs Road was 2 inches below
the centerline, and the edge of the shoulder was 5½ inches below the
centerline. These were the only measurements presented to the court for this
area of Burning Springs Road . Consequently, the court finds there was no
roadway drainage problem on Burning Springs Road at the pine tree location.
Even though there may have been a low point at this area, Burning Springs Road
had sufficient downslope to adequately drain water from it. Mr. Triepel's
opinion, that water ponded in this area, is not logical and defies the law of
physics for the road at this location.
Claimant's position that the area of Burning Springs Road at the pine tree was
covered with an isolated patch of ice, causing claimant's vehicle to skid, is
also not supported by the credible proof. Although Mr. Wheeler testified
November 23, 1989 was a sunny day, and Burning Springs Road was clear of any
snow and ice, the court believes he was simply mistaken. Claimant testified it
was snowing on November 23, 1989 when she reached Burning Springs Road, and the
road was "bad." She stated Burning Springs Road was snow covered, and she was
unable to see the pavement because of the snow. She also stated she was
proceeding slowly because of the road condition. Exhibits 19, Operator's Daily
Report, and 20, Dispatcher's Daily Log, further establish snow was falling on
Burning Springs Road and other nearby areas the morning of November 23, 1989,
and DOT crews were out plowing and sanding/salting the roadways, including
Burning Springs Road. Dennis Logan, a DOT employee, confirmed this, since he
was a helper on one of the plow trucks in use that morning. He further stated
he passed the accident scene on Burning Springs Road at approximately 12:10 p.m.
on November 23, 1989, and noted the roadway was covered with about ½ inch
of snow. He did not observe any ice patch in this area. In the court's view,
the proof establishes the cause of claimant's skid was the snow covered roadway,
and not an isolated ice patch caused by freezing and thawing. It is worth
noting Exhibit DD, Climatological Data from the National Oceanic and Atmospheric
Administration for November, 1989 for Gowanda, New York, an area near the
accident site, established temperatures for November 22, 1989 and November 23,
1989 were well below freezing all of both days. Also, the Dispatcher's Daily
Log, Exhibit 20, recorded a temperature range in the accident area of 19 to 24
degrees between 8:00 a.m. and 12:00 noon on November 23, 1989. Since
temperatures were below freezing on November 23, 1989, there would not have been
any freeze/thaw cycle. What occurred here was that claimant encountered normal
winter driving conditions, which are a usual occurrence in the area of this
accident. Burning Springs Road had been tended to on the morning of November
23, 1989 for snow and ice control, and continued to be, as evidenced by Exhibits
19 and 20. No negligence can be attributed to the defendant for the condition
of Burning Springs Road on November 23, 1989 at the accident site.
Claimant also maintains an "Icy Pavement Zone" sign should have been installed
adjacent to Burning Springs Road, a short distance before the accident site.
Such a sign would have been of no use to claimant, because it would not have
told her anything she did not already know. Claimant's own testimony
established she was aware it was snowing, and Burning Springs Road was snow
covered and slippery. According to claimant, she had encountered other slippery
areas on Burning Springs Road prior to the area where her car began to skid.
Furthermore, the court does not find an "Icy Pavement Zone" sign for this area
of Burning Springs Road was mandated by the Manual of Uniform Traffic Control
Devices. Such a sign is not intended for use in conjunction with normal winter
storm-related snow or ice conditions.
Claimant's argument defendant was further negligent because the snow and ice
removal plan in existence for Burning Springs Road and other area roadways was
poorly executed, has no merit. No proof was presented the snow and ice removal
plan of the DOT in existence on November 23, 1989 was inadequate or that it was
improperly executed. Quite the opposite, the proof established the DOT had an
effective snow and ice removal plan in existence on November 23, 1989, and
adequately executed it (Exhibits 19 and 20). The defendant "is not obligated to
employ a constant vigilance over its highway network, but only to pursue
reasonably plausible measures." Freund v State of New York, 137
AD2d 908, 910 - 911.
Based upon all of the foregoing, the court finds claimant has failed to prove
defendant was negligent by a fair preponderance of the credible evidence, and
the claim is therefore dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.