New York State Court of Claims

New York State Court of Claims

DE LITTA v.THE STATE OF NEW YORK, #2000-010-028, Claim No. 94383


State 50 percent liable for negligent roadway maintenance; motorcyclist 50 percent liable for failing to adjust his driving to roadway condition.

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:
MARTIN HIRSCH, ESQ.By: Bernard B. Schachne, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for the injuries he allegedly sustained at approximately 6:50 a.m. on June 6, 1996, when he lost control of his motorcycle on the Sprain Brook Parkway ("the Sprain") in Westchester County.
The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
The Sprain is a heavily traveled six lane highway with three northbound lanes and three southbound lanes. On the northbound side, there are two relief joints between the entrance way from Interstate 287 and the exit for Route 100C. The first joint is before the overpass traversing Payne Street and the second is after the overpass. The joints were covered with a three to four foot wide asphalt strip and provided room for expansion of the concrete road in the heat. Claimant contends that the pavement covering the second joint presented a roadway hazard of a four inch drop-off between the middle and right lanes and that this condition caused him to lose control of his motorcycle as he attempted to change lanes.[1]

Claimant testified that on June 6, 1996, he was traveling his usual route to work at the Westchester County Medical Center. He proceeded northbound on the Sprain. He recalled traveling at 50 mph in the middle lane. He usually traveled in the right lane, but had moved into the middle lane to pass a slow moving vehicle in the right lane. As he moved back into the right lane from the middle lane, he hit a bump causing his motorcycle to wobble. There was no warning sign before the bump. Drawing on his 20 years of experience driving motorcycles, claimant attempted to correct the wobble by first slowing down, then accelerating his speed. After eight to twelve seconds, he realized that he could not regain control, so he proceeded to lay the motorcycle down in a controlled manner, rather than risk being thrown from it. Claimant explained that this allowed the motorcycle to slide forward without risk of it hitting him. The motorcycle landed on the shoulder and claimant came to rest on the shoulder approximately one quarter mile south of Route 100C.[2]

Claimant was taken to the emergency room at Westchester County Medical Center. At the hospital, claimant told New York State Trooper Johnny B. Davis how the accident had occurred.

At trial, claimant stated that he had traveled the Sprain 40 to 50 times in the three month period prior to the accident, but he had not observed any defects on the road and had not had any problems traveling over the joint. He explained that it was difficult to see the drop-off while approaching it from the south, but that it was apparent from the shoulder, looking at it from the north.

Approximately one week after the accident, claimant returned to the scene with his attorney's investigator. Claimant observed a four inch drop from the joint to the roadway. Claimant and the investigator took photographs; however only the investigator's photographs were received into evidence (Exs. 1-16). Claimant's photographs were not offered.[3]

Trooper Johnny B. Davis responded to claimant's accident scene; however claimant had already been taken to the hospital. Davis observed claimant's motorcycle on the shoulder and proceeded to the hospital to interview claimant. Thereafter, Davis returned to the Sprain to find the alleged bump in the roadway. Based upon claimant's description, Davis had no difficulty ascertaining the specific location. Davis observed a slightly raised portion of the road covered with asphalt. He completed an accident report [4]
(Ex. 40). On his numerous patrols of the area, prior to claimant's accident, Davis had noticed the bump, but did not recall whether it presented a four inch drop-off. He never reported it to the New York State Department of Transportation ("DOT") as a dangerous condition.
Thomas Mason, a DOT Assistant Resident Engineer assigned to the Highway Maintenance Division in Valhalla, testified that the Sprain fell under his jurisdiction and that his responsibilities included looking for pavement defects. Using the photologs taken by DOT in 1992 (Ex. 35), 1986 (Ex. 36) and 1982 (Ex. 37), Mason identified the asphalt strip covering the relief joint. Mason conceded that in the 1986 photolog, the white skip line appeared distorted and slightly raised (Ex. 36, frame 56). Similarly, in the 1982 photolog, there appeared to be some difference in elevation (Ex. 37, frame 57).

Mason explained that when joints need attention because they are raised, DOT personnel either remove the top layer of the asphalt and replace the joint or use an infrared heater to strike off the top layer of asphalt and then restore the pavement. Mason reviewed a photograph of the joint taken a week after claimant's accident and noted: it had been patched; there appeared to be raveling between the right and center lines; and the surface was lower on the right. The last repair of the joint prior to claimant's accident was on May 19, 1994 (Ex. C). Mason searched DOT records for complaints regarding the joint, and found none.

Lawrence Levine, a professional engineer, offered expert testimony on behalf of claimant. Examining the three sets of photologs, he concluded that a height differential was evident between the relief joint and the road surface (Ex. 35, frames 60, 61; Ex. 36, frames 54, 56; Ex. 37, frames 56, 57). He noted that, on exhibit 1 and its enlargement, exhibit 9,[5]
there were areas of significant patching on the white skip line located between the middle and right lanes. In Levine's opinion, the patching appeared to have existed for at least six months prior to the photograph and had not been done in accordance with good and accepted practice. He maintained that a class A highway, over which 70,000 automobiles and motorcycles traveled daily, required the highest degree of care. The raveling and uneven condition evident in exhibit 9 presented a hazard to a motorcyclist changing lanes because the wheels of the motorcycle would leave the pavement. As demonstrated by exhibits 2 and 10, even an automobile's tires appeared to be lifting off the pavement. Levine explained that when a motorcyclist changed lanes, the motorcycle would be leaning, and the wheels would touch down at different times, aimed in different directions, resulting in instability and wobbling.
Levine examined the photographs (Exs. 8, 16) and, based upon a computer analysis known as photogramatry, determined that the highest point of the drop-off, in the area of the skip line, was at least four inches. He explained that photogramatry determined the height of an object by using the known dimensions of other objects in the photograph as a basis of comparison, such as the height of the guide rail, the width of the lanes and the thickness of the white striping.

Levine testified that the 1981 New York State Highway Maintenance Guidelines, Pavement Maintenance,
Section 1.130, mandated that on a class A highway, a hole or bump should not exceed one inch and that a surface grade and slope distortion should not exceed three quarters of an inch in a 10 foot length (Ex. 21). Here, the bump was four inches in a three foot length. According to Levine, the 1990 revision to the guidelines was essentially the same, as it mandated that "the driver should not be confronted with a condition that cannot be identified by normal cautious and attentive vehicle operation" (Ex. 20, Section 1.130).
Levine opined that the defendant had violated the mandated standard because the drop -off was not clearly visible by a driver traveling northbound. The difficulty was compounded by the patching and raveling of the asphalt. Levine further opined that the road surface needed permanent repair and that, in the interim, a bump warning sign was warranted (Ex. 29). The defect, he said, was severe and surprising. Levine also opined that the DOT resident engineer had failed in his duties and since the joint had obviously been patched, DOT knew or should have known of the drop-off (Ex. 23)
. Based upon the photologs in evidence, Levine concluded that the four inch drop-off had existed for many years.
It is well settled that the State
has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (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).
Upon review of the photographs and the photologs in evidence and upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that defendant had notice of the drop-off for more than six months prior to claimant's accident and that defendant failed to properly address the condition (
see, Fasano v State of New York, 113 AD2d 885 [failure to address rut, of which State had notice, was negligent]). The Court further finds that defendant's negligent maintenance was a proximate cause of claimant's accident (see, 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); Coss v State of New York, 11 Misc 2d 856, affd 8 AD2d 682 [three eighths of an inch to two inch difference in elevation between edge of the original road and the two foot strip added thereto presented a dangerous condition which caused motorcyclist to lose control of his vehicle]).
Claimant, however, was admittedly familiar with the roadway, having traveled it daily on his commute to work, and he was bound to see that which should have been seen with the proper use of his senses (
see, Weigand v United Traction Co., 221 NY 39; Sappleton v Metropolitan Suburban Bus Auth., 140 AD2d 684). The photologs and photographs in evidence indicate that an approaching motorist could clearly see the asphalt patching. Claimant was obligated to operate his vehicle at a rate of speed and in such a manner of control as to avoid an accident (see, Oberman v Alexander's Rent-A-Car, 56 AD2d 814, 815). Thus, the Court finds that, while claimant may not have been able to see the drop-off in a timely manner so as to adjust his manner of driving, he certainly saw the patching and should have adjusted his driving so that he did not change lanes at that particular point. Rather, claimant, an experienced motorcyclist, should have been aware of the differences in texture from a concrete road to an asphalt patch and should have proceeded straight over the patched area before attempting to change lanes. Thus, the Court finds that claimant must bear an equal share of the liability in the cause of his accident (see, Schwartz v New York State Thruway Auth., 95 AD2d 928, affd 61 NY2d 955).
Accordingly, the Court apportions liability 50 percent attributable to defendant and 50 percent attributable to claimant and will set the matter down for a trial on the issue of damages as soon as practicable.


June 28, 2000
White Plains , New York

Judge of the Court of Claims

[1] Hereinafter, the relief joint shall refer to the second one.
[2]Defendant moved to dismiss the claim on the ground that it did not specifically identify the location of the accident. The claim stated, "[t]hat the location of the occurrence is the center lane of the northbound lanes of the Sprain Brook Parkway approximately one-quarter mile south of its intersection with ST-100C" (Verified Claim ¶ 3). Claimant landed approximately one quarter mile south of Route 100C; defendant argued, however, that the accident occurred at the relief joint which is farther than one quarter mile south. The Court denied the motion. Notably, the claim refers to a "defective roadway condition" and that defendant was negligent "in causing and permitting the construction and maintenance of a relief joint upon said roadway which failed to conform to the slope and configuration of the roadway abutting said relief joint; in causing and permitting said relief joint to be and exist in a state of disrepair at and about the location of the occurrence; in causing and permitting said relief joint to be constructed of materials which were defective in quality and unfit for their intended purpose; and in failing to warn motorists of the existence of a dangerous and defective condition upon the roadway" (Verified Claim, ¶ 4). It is also noted that the relief joint in issue was the one closest to the location one quarter mile south of Route 100C.
[3] Claimant testified that he had hard copies, negatives, a computer disk, and hard drive copies of the photographs; yet, none of these were available as they could not be found and his computer had crashed. Defendant requested that an adverse inference be drawn from claimant's failure to produce the photographs. In light of the other photographs in evidence and the testimony of Davis, Mason and Levine, claimant's failure to produce the photographs is inconsequential to the Court's final determination
[4] The accident report was received into evidence; although the Court did not consider Davis' conclusion in the report that a roadway defect was the contributing cause of the accident.
Exhibits 9 through 16 are corresponding enlargements of the photographs received into evidence as exhibits 1 through 8.