This claim seeks to recover damages for the unfortunate death of James T. Scott
as a result of a two-vehicle accident which occurred on January 23, 1997, on
State Route 104B in the Town of Mexico, New York. The trial of this claim was
bifurcated and this decision pertains solely to the issue of liability.
The uncontroverted facts adduced at trial established that James Scott was 17
years of age at the time of this accident. He had attended classes at Oswego
County BOCES on the morning of January 23, 1997, and then proceeded to Sandy
Creek High School for a lunch period and one class. He was operating his
mother's automobile and was returning home when the accident occurred.
was proceeding eastbound on Route 104B at approximately 4:45 p.m. and was at a
point approximately one-half mile east of the intersection with County Route 43
when the accident occurred.
Mr. Scott's vehicle was the third car in a line of traffic traveling eastbound.
John Cooper, III, testified at trial that he was operating the second vehicle in
that line of traffic, immediately ahead of claimant. The lead vehicle suddenly
splashed water and ice onto Mr. Cooper's vehicle, and he immediately pulled over
to the right-hand shoulder of the road to clean his windshield. From this
position, he was able to view the collision which then occurred. He observed
claimant lose control of his vehicle in the ice and water on the roadway, and
the vehicle fish-tailed and then skidded across the highway into the westbound
lane of traffic. Claimant spun sideways and collided broadside with a westbound
vehicle operated by Brian Clifford. Tragically, claimant was pronounced dead at
the scene of this accident.
State Route 104B, near the location where the accident occurred, is a two-lane
highway which generally proceeds in an east-west direction. At the site of the
accident, the road was fairly straight, with a slight uphill grade in the
easterly direction. On the date of the accident, the temperature had risen
above the freezing point and there was considerable sunshine throughout the day.
As a result, a substantial thawing had occurred. As a result of the thaw, snow
which had accumulated in a field on the south side of the highway began to melt
and run from the field into a drainage ditch adjacent to Route 104B, which was
designed to accommodate water running off the field. Water which accumulated in
the ditch would then run under a 15" culvert installed under a driveway leading
to a residence owned by a family named Cline, and continued in the ditch along
the roadway through another culvert 12" in diameter, under a driveway which
provided access to a field approximately 200 feet west of the Cline property.
Eventually, the water was directed into a deep swale from which water could run
through a culvert which crossed the highway, leading to its northerly side.
On the day of the accident, water began to accumulate in the eastbound lane of
Route 104B, near the 12" culvert located west of the Cline property. As the
temperature dropped during the late afternoon, the water started to turn to
slush and ice, and it was this mixture that existed on the highway when the
It is the position of claimant that the State, through the Department of
Transportation, failed to adequately maintain the culvert and ditch area which
adjoined the highway, and as a result the ditch and culvert could not
adequately contain the runoff water resulting from the thaw. Claimant maintains
that the water then spilled onto the roadway, creating a hazardous condition,
and this condition was the competent factor causing claimant to lose control of
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). The existence of a hazardous condition on a highway,
of which the State had actual or constructive notice, as well as a duty to
repair, can constitute actionable negligence upon the State's failure to
properly discharge its duty (see, Nelson v State of New York
, 105 Misc 2d
107; Retzel v State of New York
, 94 Misc 2d 562).
While a great deal of testimony was elicited at trial and numerous witnesses
were presented, claimant must first satisfy the threshold issue of notice. In
order for claimant to be successful, it must be established that the State had
adequate notice of the dangerous condition before it can be held liable for acts
of omission or commission (see,
Rinaldi v State of New York
, 49 AD2d 361). Furthermore, negligence
cannot be inferred from the mere happening of an accident (see, Koester v
State of New York
, 90 AD2d 357; Mochen v State of New York
, 57 AD2d
Mary E. Woolson, who lives approximately one to one and one-half miles from
State Route 104B, testified on behalf of claimant. She testified that she
drives over this highway on a regular basis. It is her testimony that she
called the Mexico office of the New York State Department of Transportation in
the spring of 1996 to complain about water running across the road. It was her
further testimony that employees of the Department went to the area and cleared
the roadway. Representatives of the Department testified, however, that there
were no records of any complaints regarding flooding of the roadway in this
vicinity, nor was there any record of remedial efforts having been undertaken by
any Department of Transportation work crews. Other than this one witness
testifying that she had made a complaint and that the State had attempted to
correct the problem, the record is void of any other evidence of notice having
been received by the defendant State of New York.
Among the witnesses presented by the State were several employees of the New
York State Department of Transportation, including Richard T. McLaughlin,
Highway Maintenance Supervisor; Myron A. Shirley, Resident Engineer; Raymond T.
McDougall, Assistant Regional Traffic Engineer; Brian A. Elphick, Highway
Maintenance Supervisor; and Ronald J. Hadcock, Highway Maintenance Supervisor.
These witnesses uniformly and consistently testified that they had never seen
water flowing over the road, or accumulating on the road, in the immediate
vicinity of the accident, nor did they have knowledge of any reports, either
written or verbal, of such an occurrence having been made to the Department of
Some of these employees were charged with the responsibilities of traveling and
inspecting the State roads in this area on a regular basis. In particular,
Ronald Hadcock, one of the maintenance supervisors who testified, stated that he
has resided on Route 104B, near the site of the accident, for several years and
during these years, he testified that he has never observed any water on the
roadway in this area, nor has he ever received any complaints, or even heard any
remarks from his neighbors, about such a condition.
In addition to these Department of Transportation employees, New York State
Trooper Timothy G. Siddall admitted in the course of cross-examination that he
had traveled the area of the accident on numerous prior occasions and never
observed water accumulated on the road at this location, nor had he ever heard
of water accumulating on the road from other New York State Troopers. Finally,
claimant's expert witness, Alan T. Gonseth, P.E, testifying on the subject of
highway design and maintenance, admitted that he personally inspected the
records of the New York State Department of Transportation Oswego County
Residency, and did not find any reports on file of any complaints about water
accumulating on the road in the subject area.
In order for the Court to find that claimant's burden of establishing notice to
the State has been satisfied, the Court would have to disregard and discredit
the testimony of all of the above named witnesses, and rely exclusively on the
testimony of Mary E. Woolson. The Court is well aware that it must consider the
quality and content of each and every witness, and cannot simply count the
number of witnesses in making its determination. In this claim, however, the
Court must consider the fact that all of the witnesses who testified on behalf
of the State uniformly indicated that they had not received any type of notice
in connection with water accumulation at the subject area. As such, the Court
finds that claimant has failed to meet the threshold burden of establishing
either actual or constructive notice to the State of a potentially dangerous,
Testimony also established that the accumulation of water at the accident site
occurred shortly before the time of the accident. Water started to accumulate
on the low spot in the road approximately an hour and a half, at most, prior to
the accident, as the temperature dropped in the late afternoon. The Court finds
this time frame insufficient to impute constructive notice of a hazardous
condition to the State. Furthermore, representatives of the Department of
Transportation in Oswego County did not receive actual notification of the
condition until after the accident occurred. Accordingly, the Court finds that
the State did not have notice, either actual or constructive, of the hazardous
condition which existed that day.
Having made the determination that the State had no notice of a possible
defective or dangerous condition, nor notice of the actual condition on the day
of the accident, this claim must fail. All other issues raised at trial are
thereby rendered moot.
Accordingly, after careful consideration of all evidence before the Court, the
Court finds that the defendant State of New York is not liable in connection
with this claim and the claim is hereby DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.