Notice of Motion, Affirmation, with Exhibits (including Affidavit of Raymond T.
Letter dated October 4, 2000 from Peter N. Littman, Esq. 3
The facts of this claim are not in dispute. On September 3, 1996, claimant's
decedent was operating a motor vehicle and proceeding northbound on Interstate
Route 81 in the Town of Hastings, Oswego County. As he approached the Oswego
County Route 12 overpass bridge, a cinder block was thrown by third parties from
the overpass, striking his vehicle and causing his death.
The County Route 12 overpass bridge is owned by the State and maintained by the
New York State Department of Transportation.
This claim was subsequently filed, alleging negligence against the State in the
design, construction, maintenance, inspection, and repair of the overpass.
Specifically, claimant alleged that the State should have installed protective
screening on the overpass which would have prevented third parties from throwing
objects from the bridge at vehicles proceeding below on Route 81.
As there are no material issues of fact, the Court must therefore determine
whether defendant is entitled to summary judgment as a matter of law.
In support of its motion, the State has submitted the affirmation of Raymond T.
McDougall, a civil engineer employed by the New York State Department of
Transportation in Region Three, which encompasses the area in which this
incident occurred. In his affidavit, Mr. McDougall states that he has examined
the records of the Department of Transportation and has found no reported
instance where objects had been thrown from this bridge by third parties prior
to the death of claimant's decedent. Since there had been no prior reported
incidents, Mr. McDougall further stated that the addition of fencing to this
bridge was not considered a priority by the Department of Transportation in the
determination of maintenance, repair, and improvement projects in this region.
On the basis of this affidavit, defendant asserts the doctrine of qualified
immunity (as enunciated in Weiss v Fote, 7 NY2d 579). In support of its
application, defendant specifically refers to the claim of Zentner v New York
State Thruway Authority, 247 AD2d 679. In Zentner, the Appellate
Division, Third Department affirmed the decision of my esteemed colleague, Hon.
Thomas J. McNamara, in a similar claim for wrongful death. The Zentner claim
was based upon facts similar to the claim herein, in that it also involved an
object thrown from a bridge onto a vehicle proceeding on the underlying roadway.
In Zentner, no protective screening had been installed on this overpass,
even though there had been a record of objects being thrown from this bridge
prior to the incident. The Court found in that case that the reported
incidents, in which no serious injuries had occurred, did not mandate "the
placement of protective screening on the overpass" (Zentner v New York State
Thruway Authority, supra, at 681). The failure of the New York State
Thruway Authority to take any action in response to these incidents did not
In this Court's view, the principle of law set forth in Zentner applies
squarely to the facts of this claim. The State is entitled to the defense of
qualified immunity, and no liability can attach on the basis of the State's
failure to install fencing or protective screening on the Route 12 overpass,
especially in light of the fact that there had been no prior reported incidents
of objects being thrown from this bridge.
Accordingly, for the reasons set forth above, it is
ORDERED, that Motion No. M-62352 is hereby GRANTED; and it is further
ORDERED, that Claim No. 96909 is hereby DISMISSED.