New York State Court of Claims

New York State Court of Claims

KAVANA v. THE STATE OF NEW YORK, #2000-010-021, Claim No. 89731


Claimant failed to establish that roadway settlement and absence of a guiderail were the proximate cause of ner accident.

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):

Terry Jane Ruderman
Claimant's attorney:
GOLDBLATT & ASSOCIATESBy: Kenneth B. Goldblatt, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 16, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for the injuries she sustained on the afternoon of November 11, 1992 as she was driving eastbound on Route 301 near Jaycox Road in Cold Spring. Route 301 has one eastbound lane and one westbound lane divided by a double yellow line. It was a rainy day and the road was wet. Claimant was nearly 18 years old and had a junior license. Her 15 year old sister, Heather, was reclining in the front passenger seat. Claimant was familiar with the roadway, having traveled it daily. Claimant lost control of her car in the eastbound lane and proceeded toward oncoming westbound traffic. She turned back into the eastbound lane to avoid a collision and traveled toward a stone retaining wall adjacent to the eastbound lane. She again turned into the westbound lane and continued across the road. Claimant then hit a stone retaining wall adjacent to the westbound lane and came to rest in the embankment at mile marker 1017.[1]

Claimant alleges that her accident was caused by uneven pavement located in the eastbound lane within a foot of the white edge line. She asserts that the condition was due to the State's addition of approximately three feet of asphalt to widen the lane and create a shoulder. Claimant further asserts that the added section of asphalt settled lower than the original concrete lane, causing a drop-off. Claimant also alleges there should have been a guiderail adjacent to the westbound travel lane to prevent errant vehicles from going down the embankment.
The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Heather Kavana (hereinafter "Kavana") testified that she recalled that claimant was driving slowly as they proceeded to a shopping mall. Kavana was reclining in the front passenger seat as the car ascended the hill before Jaycox Road, when she felt the right side of the car drop down and the car began shaking. Kavana sat up and observed the car straddling the double yellow line. Claimant turned back into the eastbound lane to avoid a collision with an oncoming car in the westbound lane. Claimant's car then headed for a stone wall adjacent to the eastbound lane, so claimant turned back toward the westbound lane. The car fishtailed counterclockwise and hit the stone wall adjacent to the westbound lane. Kavana has no further recollection of the accident.

Stephanie Apuzzo, the driver of the oncoming car in the westbound lane, testified that she observed claimant's car straddling the double yellow line. Accordingly, Apuzzo proceeded ahead on the shoulder area until she passed claimant. Apuzzo continued to observe claimant in the rearview mirror. According to Apuzzo, claimant was not driving that fast. Apuzzo made a U-turn and found claimant's car beyond the stone wall, down the embankment. Emergency personnel later arrived and Apuzzo provided them with a statement (Ex. C). The statement was consistent with Apuzzo's trial testimony.

Marianne Apuzzo Sakowicz, Stephanie Apuzzo's daughter and front seat passenger on the date of the accident, testified that she observed claimant fishtailing out of control and moving toward her mother's car. Apuzzo avoided claimant. Sakowicz observed claimant through the rear window of her mother's car and saw claimant fishtailing across the road toward the stone wall. Sakowicz testified that claimant was not going that fast.

Sakowicz and Apuzzo went to aid claimant. Apuzzo climbed down the embankment and Sakowicz noted where claimant's car had struck a tree. There were marks on the tree above her own five foot four inch height. The police arrived at the scene and Sakowicz provided them with a written statement (Ex. D). The statement was consistent with Sakowicz's trial testimony.

Putnam County Deputy Sheriff Robert Ferris testified that he was dispatched to the scene. He prepared an accident report and took photographs (Exs. 5-24, A). A diagram with measurements was prepared by another police officer (Ex. A).

Colleen Tomlins, a bus driver who traveled Route 301 daily in 1991, testified that there was a drop-off of various widths along the eastbound lane, which was particularly prominent when traveling uphill. Tomlins explained that the busses had dual rear tires and that the right outside tire would get caught in the drop-off. In response, Tomlins would either ride it out and fear going off the roadway into a ditch or turn the steering wheel to the left and fear having a head on collision if she went too far left as she proceeded into the blind turn. Tomlins stated that the situation was worse under wet conditions. Tomlins discussed the problem with the other bus drivers and they decided to send a letter to DOT complaining of the condition. There was, however, no response to the letter.[2]
Therefore, Tomlins addressed the issue with her supervisor, John Ness.
Frances Mancari, another bus driver and signatory of the letter, provided testimony consistent with Tomlins' testimony. She also testified that the photologs accurately depicted the condition as it existed in 1992 (Exs. 25-26). Mancari further stated that, due to the drop-off, she had lost control of her bus and went into the oncoming lane, but did not have a collision.

John Ness testified that in 1991 he was the Director of Maintenance and Transportation for Haldane Central School District and the supervisor for the school bus drivers. He declined Tomlins' invitation to sign the bus drivers' letter because he did not travel on Route 301 regularly and was not aware of any drop-off. Subsequently, the bus drivers informed Ness that there had not been any response to their letter and they requested Ness telephone DOT to register a complaint about the condition. Ness complied. A DOT Complaint/Work Order dated November 13, 1991 indicated that Ness had made a complaint, i.e., "Route 301- between Nelsonville & Rt 9-cracks in road-center of both lanes-school buses are catching tires in them" (Ex. 2). In response to the complaint, DOT cold patched[3]
the roadway (Ex. 2). Cold patches are used for repairs of potholes in the winter when hot asphalt is not available. The work was completed on January 8, 1992 (Ex. 2).
Gianni DiLello, who knows claimant from high school, testified that on October 5, 1991, he was 17 years old and was driving eastbound on Route 301 in the area of claimant's accident, when his right tire got pulled into a groove and his car spun out of control and flipped onto its side. He described the condition as a lip in the road which caught his tire. He maintained that he had had difficulty in the same area on prior occasions and had tried to avoid the road, especially when it was wet. DiLello conceded, however, that he never reported any roadway problems to the State. The police report from DiLello's accident was received into evidence (Ex. 35). The report did not make any reference to a drop-off or lip, nor were the boxes checked indicating defective pavement or shoulder. Rather, the report listed unsafe speed as a contributing factor.

A police report for an accident that occurred on August 4, 1991 when Andreas Ebert was traveling eastbound on Route 301, was also received into evidence (Ex. 33). The report indicated that Ebert's vehicle traveled the same route as claimant and crossed over into the oncoming westbound lane, hit the stone wall and landed in the embankment. There is, however, no indication of defective pavement or shoulder as a contributing cause of the accident.

The EBT testimony of Laura Barger and the police accident report regarding her accident on August 21, 1991 were received into evidence (Exs. 38, 34). Barger testified that her accident occurred when she felt her right tire fall into a drop-off in the westbound lane. She could not regain control of her car as it proceeded across the roadway and into the woods.

The Court finds that the aforenoted accident reports failed to give the State notice of any alleged defect in the eastbound lane (Exs. 33-35). Notably, exhibit 34 refers to an alleged defect in the westbound lane and not the eastbound lane, which is the subject of this claim, and neither exhibit 33 nor exhibit 35 list defective pavement or shoulder as a contributing cause of the accident. In fact, exhibit 35 lists unsafe speed as a contributing factor. It is also noted that these accidents occurred prior to the January 8, 1992 repair to the roadway and there was no evidence of any accidents, other than claimant's, after that repair.

Roger Griemsmann, DOT's resident Engineer in Putnam County, testified that in 1991, Route 301, in the vicinity of claimant's accident, came under his jurisdiction. At that time, he had been a resident engineer for seven years. In April 1991, he inspected the roadway to determine what maintenance, if any, was necessary. He observed that a settling had occurred in both lanes within a foot of the white edge line. It appeared that the original concrete had been widened with three feet of asphalt, providing an additional foot in the travel lane and a two foot shoulder. Griemsmann did not know the date of the widening, but opined that the asphalt had settled lower than the concrete roadway because its base was different from the concrete base.

Griemsmann did not measure the depth of the settlement; rather he estimated it to be two to three inches. He stated that this condition did not present a scrubbing problem which occurs when there is a sharp, almost vertical drop-off, and a tire catches in it, causing the driver difficulty in steering the vehicle back onto the roadway. Griemsmann did not have any trouble traversing the area. Griemsmann referred to the DOT Highway Maintenance Guidelines § 2.110, and stated that the drop-off was the type described as "reasonably safe," i.e., "that a prudent driver of a reasonably maintained vehicle would experience no significant problem in traversing the pavement edge" (Ex. 29, p. 4). He concluded that DOT needed to do some shimming work to even the elevation disparity, but that it was not urgent. He defined urgent as a condition which would present difficulty to a normal driver. Griemsmann had seen settlements on other roadways throughout his career. He was familiar with the condition and was aware of the rate at which it could worsen. Therefore, based upon his engineering judgment, he believed that it would be at least a year before the condition necessitated repair.

Griemsmann continued to keep the area under observation to determine whether the repair would be needed soon or later than anticipated. The DOT Traffic and Safety Unit tracks roadway accidents and Griemsmann also gathered accident information from newspapers and claims. Griemsmann, however, was not aware of the three accidents which were reported to the New York State Department of Motor Vehicles ("DMV") in 1991 (Exs. 33-35).

Griemsmann testified that priorities for road work are updated constantly and that plans are discussed with supervisors at bi-weekly meetings. He explained that priorities are assigned according to the hazardous nature of the condition, in light of other existing hazards, and the amount of available financial and staffing resources. Griemsmann, however, did not provide any details as to the specific ordering of priorities done in 1991-1992 and he conceded that, prior to claimant's accident, the settlement condition was never assigned a priority.

Claimant's accident occurred 17 months after Griemsmann's initial observation in April 1991. Griemsmann acknowledged that the condition may have worsened during the time prior to claimant's accident, but only minimally, and that the photologs accurately depicted the condition as it existed in 1992 (Exs. 25, 26). The cold patching, completed on January 8, 1992, in Griemsmann's opinion, was not the preferred method of addressing the settlement condition. Cold patching was a temporary measure to address a small area and not a long stretch of roadway.

Domingo Isasi, a civil engineer, offered expert testimony on behalf of claimant. He opined that, had defendant followed good engineering practices, then the asphalt would not have settled lower then the concrete roadway. In 1994, Isasi measured the drop-off in the eastbound lane at four points, i.e., 0, 2, 2
, and 4 inches. He did not specify the location of these measurements and stated that the condition had probably worsened since claimant's accident in 1992. He did not know where, or if, claimant had encountered the drop-off. He conceded that, based upon the marks on the trees at heights of 55, 60, 66, and 71 inches, claimant's car was airborne when it struck the trees. Isasi did not perform a vaulting analysis, which would have revealed claimant's speed at the time of the accident, nor did he perform an accident reconstruction.

It is well settled that the State
has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition and that duty encompasses the guiderails and the area adjacent to its roadways (see, Gomez v New York State Thruway Auth., 73 NY2d 724; Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579; Zalewski v State of New York, 53 AD2d 781). Defendant, 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 defendant 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 defendant 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). Liability will not attach unless defendant had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (see, Rinaldi v State of New York, 49 AD2d 361).
As noted
supra, claimant is not held to as high a degree of proof as an injured claimant who can describe the occurrence (Noseworthy v City of New York, 298 NY 76). "Speculation, guess and surmise, however, may not be substituted for competent evidence, and where * * * there are several possible causes of an accident, one or more of which a defendant is not responsible for, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible" (Scheer v City of New York, 211 AD2d 778 quoting Agius v State of New York, 50 AD2d 1049, 1050).
The Court finds that defendant had notice of the settlement from Ness' telephone call of November 13, 1991 and Griemsmann inspected the roadway in April of 1991. The fact that Griemsmann was unaware of the three accidents reported to DMV prior to the January 8, 1992 repair to the roadway is inconsequential. As explained
supra, the prior accidents would not have given the State notice of a defective condition in the eastbound lane and there was no evidence of any accidents, other than claimant's, after the repair. The Court credits Griemsmann's testimony that, in his engineering judgment, the condition in April of 1991 was reasonably safe and would not necessitate repair for at least a year. Significantly, Griemsmann had been a resident engineer for seven years and was familiar with roadway settlement. The Court found his testimony most credible. The Court accepts Griemsmann's estimate that the drop-off was two to three inches deep,[4] that it was not vertical, and that a prudent driver would not experience any significant problem in traversing the area. Thus, the Court finds that claimant failed to establish that the settlement posed an unreasonably dangerous condition which should have been remedied prior to claimant's accident (cf., Fasano v State of New York, 113 AD2d 885 [failure to address eight inch rut of which State had notice was negligent]; Sevilla v State of New York, 111 AD2d 1046 [four to eight inch drop-off was excessive and represented a dangerous condition which was a proximate cause of claimant's accident]; Bottalico v State of New York, 87 AD2d 807, affd 59 NY2d 302 [four to six inch drop-off was a substantial hazard). Further, claimant failed to establish that the settlement was a proximate cause of her accident (see, Van De Bogart v State of New York, 133 AD2d 974 [claimant did not establish that drop-off or culvert played any role in causing vehicle to go out of control or in preventing it from reentering the roadway]). Notably, neither claimant's expert, nor any other evidence, established the point at which claimant had encountered the settlement and claimant's expert failed to specify the locations of his 1994 measurements. Thus, whether claimant encountered a drop-off of 0, 2, 2 χ, or 4 inches, would require the Court to engage in impermissible guesswork or speculation and, without an accident reconstruction or a vaulting analysis, the Court is unable to determine whether the drop-off was a proximate cause of claimant's accident.
"Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury" (
Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7). Here, it is possible that, after claimant traversed the settlement area and swerved into oncoming westbound traffic, she regained control of her vehicle as evidenced by her deliberate act of turning back into the eastbound lane. Thus, any effect that traversing the settlement had on claimant's ability to control her vehicle, dissipated the moment she regained control and deliberately steered her car back onto the eastbound lane. Therefore, the settlement was not a proximate cause of claimant's accident. Rather, it was just as reasonable and probable that claimant's own negligence, in swerving westbound to avoid hitting the eastbound retaining wall, caused her to fishtail and lose control of her car before it struck the westbound retaining wall and landed in the embankment.
In sum, there is no basis for finding that defendant was negligent or that any negligence attributed to defendant was a proximate cause of claimant's accident. Rather, it appears that the sole proximate cause of the accident was claimant's inability to maintain control of her vehicle (
see, Schwartz v New York State Thruway Auth., 95 AD2d 928, 929, aff'd 61 NY2d 955).
Claimant's contention that defendant was negligent in its failure to erect a guiderail adjacent to the westbound lane is unsupported by the record and, in any event, was not a contributing cause of claimant's accident, as explained
supra. Additionally, it is noted that claimant's own expert conceded that guiderails are designed to redirect errant vehicles back onto the roadway when hit at an angle of 25 degrees or less and a guiderail would not be effective in claimant's accident where the guiderail was struck at a 90 degree angle. Accordingly, claimant cannot prevail on its claim regarding the absence of a guiderail adjacent to the westbound lane (see, Galvin v State of New York, 245 AD2d 418 [no proof of prior similar accidents nor evidence of precise location where claimant's car left roadway; thus no basis for finding proximate cause due to absence of guiderail]; Sherwood v State of New York, 238 AD2d 396 [guiderail would not be effective in stopping out of control car hitting at an angle of more than 25 degrees; therefore absence of guiderail was not a proximate cause of claimant's accident]; Sangirardi v State of New York, 205 AD2d 603 [guiderail could not have prevented accident given the speed and angle at which it was hit]).
The defendant's motion to dismiss, upon which decision was reserved, is now GRANTED and Claim No. 89731 is dismissed. All other motions, not heretofore ruled upon, are DENIED.


June 16, 2000
White Plains, New York

Judge of the Court of Claims

[1]Claimant has no recollection of the accident and the parties stipulated to the applicability of the lesser burden of proof as set forth in Noseworthy v City of New York, 298 NY 76.
[2]Tomlins testified that she typed a letter dated September 14, 1991 complaining of, inter alia, the roadway settlement on Route 301 in the area of claimant's accident. Tomlins, Frances Mancari and seven other bus drivers signed the letter. Tomlins addressed the letter to New York State Highway Department and placed in an envelope bearing her return address. She mailed the letter, with proper postage, at the Cold Spring post office. The letter was received into evidence as claimant's exhibit 1. As an evidentiary rule, a letter properly mailed is presumed received by the addressee (News Syndicate Co. v Gatti Paper Stock Corp., 256 NY 211; St. Clare's Hosp. V Allcity Ins. Co., 201 AD2d 718). The presumption, however, is a rebuttable one (Sport-O-Rama Health & Fitness Center v Centennial Leasing Corp., 100 AD2d 584; Vita v Heller, 97 AD2d 464). The EBT testimony of Thomas P. Lee, New York State Department of Transportation ("DOT") Highway Maintenance Supervisor (Ex. 39) and the trial testimony of Thomas Weiner, DOT Supervising Engineer, set forth DOT's routine practices regarding the receipt of complaints from the public and, while there was evidence that the telephone complaint made by Robert Ness was received, there was no evidence that the letter was ever received by DOT. The Court finds that defendant presented sufficient evidence to rebut the presumption of receipt (see, Nassau Ins. Co. v Murray, 46 NY2d 828). In any event, it is undisputed that defendant had notice from Ness' telephone call on November 13, 1991.
[3] It was established at trial that cold patching is a temporary measure used to repair potholes in the winter. Packaged asphalt is placed in the pothole because hot asphalt is not available in the cold weather.
[4] This is not inconsistent with the testimony of claimant's expert, who stated that the condition probably had worsened since claimant's accident on November 11, 1992 until 1994, when claimant's expert found measurements of 0, 2, 2
, and 4 inches.