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.
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
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
Therefore, Tomlins addressed the issue with her supervisor, John
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
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
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
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,
, 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
, 73 NY2d 724; Friedman v State of New York
, 67 NY2d
271; Weiss v Fote
, 7 NY2d 579; Zalewski v State of New York
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
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
, 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
, 211 AD2d 778 quoting Agius v State of New York
, 50 AD2d
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
, 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,
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
, 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
, 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
, 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
"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 (
, Schwartz v New York State Thruway Auth.
, 95 AD2d 928, 929,
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
. 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
, 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
, 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.
LET JUDGMENT BE ENTERED ACCORDINGLY.