New York State Court of Claims

New York State Court of Claims

GROVER v. THE STATE OF NEW YORK, #2000-009-014, Claim No. 97757


Claimant sought damages arising from a fall as he attempted to cross NYS Rt. 13 in the City of Ithaca, alleging improper maintenance. The Court dismissed the claim finding that the defect alleged by claimant was not a sufficiently dangerous condition so as to establish negligence against the State.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Nicholas V. Midey, Jr.
Claimant's attorney:
BY: William S. Friedlander, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
December 19, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose out of an incident which occurred on December 26, 1996, when claimant was injured in a fall as he was crossing New York State Route 13 (Meadow Street) in Ithaca, New York. The trial of this claim was bifurcated and this decision relates to liability only.

The facts of this case are straightforward and essentially uncontroverted. On December 26, 1996, at approximately 9:15 p.m., claimant tripped and fell while crossing New York State Route 13 in Ithaca, New York. The fall occurred in the easternmost lane of Route 13, approximately 10 to 15 feet south of the southern perimeter of the intersection of Route 13 and Seneca Street, in a commercial area of the city. Claimant had parked his vehicle in a lot on the southwest corner of the intersection and was attempting to cross Route 13, proceeding towards a cigar store located at the southeast corner of the intersection. It was claimant's testimony that he had crossed two of the three lanes of Route 13, but as he crossed the third lane, he caught his right foot on an asphalt hump in the lane and fell to his knees. Claimant testified that the hump was approximately two inches higher than the adjacent road surface. After falling, claimant got back up, proceeded to the cigar store, purchased his cigar, returned to his car over the same section of roadway, and then left the area. Claimant also testified that he is six feet, three inches tall and walks with an uneven gait due to the use of a prosthesis, compensating for the fact that his right leg had been amputated above the right knee a number of years prior to the incident.

At the time of the incident, Route 13 in the area of this intersection was included in a multi-year State highway construction project commonly known as the "Octopus Reconstruction Project". As part of this project, Route 13 in this area had recently been converted from a four-lane, two-way highway to a three-lane, one-way, northbound highway. The road, however, had not yet been repaved.

At the time of the incident, this intersection remained within the construction zone of the project. Traffic warning signals, barrels and barriers marked the construction zone. Traffic at the intersection of Route 13 and Seneca Street was controlled by an overhead signal light, and there were street lights illuminating the intersection. However, there were no painted lines on the pavement delineating the east-west crosswalk at the southern edge of the intersection. There was consistent testimony from both claimant and the defendant's witnesses that orange construction barrels had been placed near the corner of this intersection. Claimant had traveled through this area on numerous occasions in the past and was fully aware of the fact that this area was a construction zone and had been such for some time.

Claimant testified that the barrels in place at the intersection interfered with his use of the crosswalk, and therefore he attempted to cross Route 13 at a point approximately 10 to 15 feet south of the intersection, where the incident occurred.

It is well settled that the State has a duty to maintain its roads in a reasonably safe condition (
Friedman v State of New York, 67 NY2d 271). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on a State roadway does not render the State liable (see, Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Claimant has the burden of establishing that the State was negligent and that such negligence was a proximate cause of the accident (see, Bernstein v City of New York, 69 NY2d 1020, 1021-1022; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519).
Testimony established that at the point where claimant fell, an asphalt hump existed in the roadway. The top of this hump was approximately two inches higher than the adjacent road surface. There was no sharp drop-off associated with this hump. Rather, the hump sloped approximately one to one and one-half feet from the roadway surface to the top of the hump, and it ran at least 100 feet along Route 13. Because of this gradual incline, the hump was difficult to see without a close examination.

Claimant's engineering expert, Kevin O'Conner, P.E., spent a considerable amount of time testifying as to federal and State guidelines and regulations pertaining to road surface standards. He concluded that an elevation of approximately two inches, such as the one testified to by claimant, constituted a tripping hazard and should give rise to liability against the State.

Mr. O'Conner further testified that this hump in the roadway resulting from "rutting"[1]
, a process by which the repeated weight of vehicles in a lane of traffic displaces the asphalt or undersurface of the roadway, resulting in hollows with ridges or humps along the sides of the hollows. It was his opinion that at this site, the rutting resulted form either an improper mix design or an improper application of the surface mix at the time the road was repaved, and that it would take a substantial period of time for the rutting (and resulting hump) to occur. Testimony established that Route 13 in this area had last been resurfaced by the State in 1989.
Claimant maintains, based on the above testimony, that the hump in the roadway resulted from an improper asphalt mix or application during the State's repaving project in 1989, and that the State, with either actual or constructive notice of the condition, did not take reasonable steps to correct it. Furthermore, claimant maintains that the State inadequately marked the crosswalk at the Seneca Street intersection, and impeded claimant's access to the regular crosswalk area by the placement of the orange construction barrels at this intersection.

Defendant's expert, Raymond T. McDougall, Assistant Regional Traffic Engineer with the State Department of Transportation, agreed with claimant's expert that the hump or ridge in the roadway resulted from the "rutting" process. Based upon his observations, however, Mr. McDougall testified that in his opinion, the rutting which occurred in Route 13 did not constitute a hazard for pedestrians.

He based his conclusion upon a consideration of the difference in height from the top of the hump to the roadway surface, and the fact that there was a gradual incline, and not a sudden or abrupt drop-off in elevation.

Furthermore, Mr. McDougall testified that based on his review of the plans for the 1989 repaving project, the State had complied with all specifications applicable to type of materials, aggregates and asphalt, and that the project had been built in accordance with all specifications in effect at that time.

Based upon his review of the plans, photo logs, and the New York State Manual of Uniform Traffic Control Devices, Mr. McDougall also concluded that the State complied with all applicable standards regarding the construction warnings provided at the Octopus Project, and that these warnings and signs were adequate.

Based upon the testimony presented, it is apparent to the Court that the rutting condition in the roadway, and the hump which was the product of this condition, had existed for a considerable period of time. This fact, together with the on-going construction project in the immediate area, is quite sufficient to establish notice, either actual or constructive, of this condition. The essential question to be determined, therefore, is whether this condition is of such a nature to be considered a hazardous defect that would cast liability against the State.

From the substantial case law in this State dealing with pedestrian trip and fall claims, one thing is clear. There is no specific or arbitrary height differential at which liability attaches to a landowner (see,
Trincere v County of Suffolk, 90 NY2d 976). Liability in a particular claim must be determined after an examination of such factors as depth, elevation, irregularity, and appearance, while also taking into consideration the time, place and circumstances surrounding the incident (Trincere v County of Suffolk, supra).
In this claim, the alleged defect consisted of a hump or ridge, approximately two inches higher than the roadway, which had been created over the course of time by the process known as rutting. The rise in elevation, however, was not sudden or sharp, but rather occurred by a gradual incline of the pavement. Furthermore, this hump was located in the roadway, where it did not affect vehicular traffic, and not in a portion of the roadway designated as or intended for a pedestrian crossing. Furthermore, as evidenced by the placement of signs, barriers and barrels, it was evident that this area was in the midst of construction, which should have raised the awareness of claimant. Based on the above, the Court finds that the difference in elevation in the roadway cannot be considered a dangerous condition sufficient to establish negligence against the State.

Furthermore, claimant did not refute the testimony of Raymond McDougall, the State's expert witness, that the barriers and warning signs utilized in the Octopus Project were placed and situated as designated by a highway safety plan developed for the project, which plan was in effect at the time of the incident.

It is well established that "liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis." (
Weiss v Fote, 7 NY2d 579, 589).
Claimant has failed to show that this plan was adopted without an adequate study or that it lacked a reasonable basis.

As set forth above, claimant also attempted to establish that the hump or ridge, created through the rutting process, resulted from a defective repaving project made by the State in 1989. Defendant established, however, that the 1989 project was completed in accordance with all applicable specifications in effect at that time, and therefore liability cannot attach.

The Court has reviewed claimant's proposed Findings of Fact and Conclusions of Law and has incorporated into this decision those Findings of Fact and Conclusions of Law it deems essential to this decision in compliance with CPLR 4213(b).

Accordingly, after due consideration of all the testimony presented and exhibits admitted, the Court finds that the claimant has failed to establish negligence against the State and the claim therefore must be and is DISMISSED.


December 19, 2000
Syracuse, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.