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
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
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
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
, 46 NY2d 91; Brooks v New York State Thruway Auth.
, 73 AD2d
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
, 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
, 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
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
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
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
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
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.
LET JUDGMENT BE ENTERED ACCORDINGLY.