New York State Court of Claims

New York State Court of Claims

SULLIVAN v. THE STATE OF NEW YORK, #2000-012-722, Claim No. 95725


Personal injury claim based on allegation of defective manhole cover dismissed.

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):

John P. Lane
Claimant's attorney:
Law Office of Louis H. SiegelBy: Margot S. Bennett, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Leslie A. Stroth Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 2, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

The claim alleges that Anne Sullivan was injured on July 4, 1996 when the cover on a shallow traffic signal pullbox or manhole near the corner of Sheridan Drive (State route 324) and Elmwood Avenue in the Town of Tonawanda tipped when she stepped on it. The trial of this action was bifurcated and this decision addresses liability issues only.
Mrs. Sullivan testified that she and her six-year-old daughter Sheila were returning home from a visit to her parents' home, Mrs. Sullivan walking and Sheila riding her bike on the sidewalk. When they approached the intersection, Mrs. Sullivan walked across a grassy area between the sidewalk and the curb to catch up with Sheila, who was ahead of her. As she placed her foot on the pullbox cover, it tipped. Both of her feet and the lower part of her legs slipped into the opening, and the broken edge of the cover hit her legs below the knees.[1]
After Mrs. Sullivan pulled herself out of the pullbox opening, she and Sheila returned to their home three blocks south of Sheridan Drive. When she told her husband what had happened, the police were called and an officer came to their home. The officer and Mr. Sullivan then went to the scene of the accident. Mrs. Sullivan acknowledged that she walked to her parents house about once a week, weather permitting. However, she had never noticed the pullbox cover before the accident. She did not look at the cover before stepping on it as she was looking toward the intersection and watching her daughter.
Joseph Salvaggio, the Town of Tonawanda police officer who accompanied Mr. Sullivan to the accident scene, testified that not long before the accident a new sidewalk and sod had been installed in front of a Wilson Farms store being opened near the intersection. He was assigned to patrol in the area, but he had never noticed the condition of the pullbox cover before the day of the accident.

David Johnston, a town building inspector, testified that the Wilson Farms project consisted of the conversion of an existing building as well as site work. He performed a final inspection of the project on June 10, 1996 and found that all work, including installation of a new sidewalk and new sod in the right-of-way, had been completed. He did not recall seeing a manhole cover in the area. The Town issued a certificate of occupancy to Wilson Farms the next day.

A number of DOT employees testified about inspection and maintenance of signal locations in general and at the Sheridan Drive/Elmwood Avenue intersection in particular. From them we learned that there are 1000 signals in DOT's Region 5 that must be maintained by a team consisting of a foreman and ten mechanics; that each two-person signal crew visits 5 to 10 locations a day; and that crews inspect signals and perform routine preventative maintenance at all signal locations twice a year and also respond to complaints concerning malfunctions and other problems. While servicing signals from an elevated platform on top of a truck, a crew member inspects the area; another crew member checks control boxes from the ground but does not inspect pullbox covers. Each steel pullbox cover weighs 50 to 75 pounds, is 2 inches thick and has a diameter of about 19 inches; a special tool is required to pry a cover from the top of the pullbox; it takes two people to lift a cover; if a signal crew member notices or DOT is informed of a broken or missing cover, it is replaced promptly or the site is protected.

Pointing to defendant's responses to their second set of interrogatories, claimants contend that the signal crew's last visit to the intersection before the accident was on June 20
, 1996. Responses 21-29 certainly support this contention. The State challenges its own responses, which it characterizes as mistaken. These responses are not binding admissions and may be met with conflicting proof at trial, as has happened here. See United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, rearg denied 41 NY2d 901; Siegel, Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR C3131:1, at 828). Based on DOT's work records (Exhibits 7A, E and F-1[A-F]) and the testimony of Craig Walek, Charles Privitera and other DOT employees, I find that the signal crew last visited this location before the accident on May 20, 1996.
Walek, a DOT technician, also testified that no permit for work within the State right-of-way had been issued by DOT in connection with the Wilson Farms project; that landscaping between the sidewalk and the curb would have been the responsibility of the contractor; and that DOT had received no complaints about the pullbox cover before the accident. Privitera, the traffic signal mechanic who inspected the signal on May 20
th, testified that he did not notice anything about the cover that day. Joseph Kaleta, who had been a signal mechanic since 1973, testified that this accident was the first time he had encountered a broken pullbox cover.
The State is not an insurer of the safety of its highways.
Tomassi v Town of Union, 46 NY2d 91; Zecca v State of New York, 247 AD2d 776. It is, however, well settled law that the State is under a nondelegable duty to maintain its highways in a reasonably safe condition and that liability will be imposed for injuries proximately caused by a breach of that duty. Friedman v State of New York, 67 NY2d 271; Lopes v Rostad, 45 NY2d 617. The State's duty to maintain its highways is no less than that owed by any other property owner, i. e., to maintain its property in a safe condition, exercising reasonable care under the circumstances. See Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233; Bowers v State of New York, 241 AD2d 760. However, negligence must be proven and cannot be presumed from the mere happening of an accident. Mochen v State of New York, 57 AD2d 719. The State will not be held liable unless it is demonstrated that its negligence was a proximate cause of the accident. Marshall v State of New York, 252 AD2d 852; accord Edwards v State of New York, AD2d , 703 NYS2d 643. Claimants do not contend that defendant caused or had actual notice of the condition of the pullbox cover. Rather, they allege that the State had constructive notice that it was broken. To succeed upon a theory of constructive notice, claimants needed to establish that the cover had been damaged for a sufficient length of time before the accident to permit defendant's employees to discover it and have it replaced. See Gordon v American Museum of Natural History, 67 NY2d 836. A negligent failure to discover a condition that should have been discovered can be no less a breach of due care than a failure to respond to actual notice. Blake v City of Albany, 48 NY2d 875. Constructive notice of a hazardous condition exists when it is visible and has been present for such a period of time that it should have been noticed and corrected. Tanner v County of Onondaga, 225 AD2d 1074; Gillooly v County of Onondaga, 168 AD2d 921.
Denis Sullivan, Mrs. Sullivan's father-in-law, who lives in the Sheridan Drive/Elmwood Avenue neighborhood, testified that he had noticed the broken pullbox cover 4 to 7 days before the Olympic torch passed through Erie County. Although he had watched the torch being carried through the Sheridan Drive/Elmwood Avenue intersection, he could not recall the date. The Olympic Torch Relay was a memorable event widely reported by the media. The Court takes judicial notice that the relay passed the intersection on June 11, 1996 and finds that Mr. Sullivan made his observation of the pullbox cover between June 4
th and 7th, or about 4 weeks before the accident.
The lapse of that period of time is not enough to put the State on notice of the damaged cover and make it responsible for Mrs. Sullivan's injury. Mr. Sullivan Sr. admitted that he did not report the condition of the cover to anyone. The Wilson Farms project was under the control of the Town, not the State. The State was not aware that the project involved installation of a new sidewalk and sod within its right-of-way; the contractor had not applied to DOT for a work permit; and DOT had no inspectors on the job.[2]
Compare Blake v City of Albany, 63 AD2d 1075, affd 48 NY2d 875, supra (defendant, which had issued a permit for work in a city street and had inspectors in the area practically every day, had constructive notice that a catch basin in the street had been 6 to 8 inches below grade for a month and a half before the accident). If we assume that heavy equipment used by the Wilson Farms contractor damaged the pullbox cover, that event and the absence of a work permit that would have triggered a final inspection by DOT shortly after the Town issued its certificate of occupancy were the proximate cause of Mrs. Sullivan's injuries, not DOT's maintenance and inspection program.
Claimants also contend that the State breached its duty to make reasonable inspections to locate and correct dangerous conditions on and near its highways. See
Waddingham v State of New York, 90 AD2d 855. Where the defendant has a duty to conduct reasonable inspections, the absence of actual or constructive notice is irrelevant. Weller v Colleges of the Senecas, 217 AD2d 280, 285; Watson v City of New York, 184 AD2d 690. The existence of a long-standing readily observable dangerous condition and the absence of any program for inspection will support a liability finding. See Harris v Village of East Hills, 41 NY2d 446, 449; Adam v Town of Oneonta, 217 AD2d 894.
While the duty of a landowner to reasonably inspect and maintain its property is well established, it is not limitless.
Di Ponzio v Riordan, 89 NY2d 578, 583. To hold the State liable, claimants needed to prove that the event causing the injury was foreseeable and that, in the exercise of reasonable care, the State could have protected against it. See Epstein v State of New York, 124 AD2d 544, 549, lv denied 69 NY2d 605. Failure to guard against a remote possibility of an accident, one which in the exercise of ordinary care could not be foreseen, will not constitute negligence. See Payne v City of New York, 277 NY 393, 396.
"Whether a breach of duty has occurred, of course, depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendants' conduct. . . . Whether hindsight reveals that greater precautions could have been taken to avoid the harm that eventuated is irrelevant if the injury could not reasonably have been foreseen . . . ." Danielenko v Kinney Rent A Car, 57 NY2d 198, 204. Given the nature of traffic signal equipment, the number of signals in Region 5 and the size of the signal crew, DOT's plan for routine preventative maintenance visits to signal locations on a semi-annual basis was reasonable, as was its decision to inspect pullboxes from elevated platforms. Compare Harris v Village of East Hills, 41 NY2d 446,450, supra (inspection of roadside conditions from a moving vehicle is not unreasonable). Due to their weight and the manner in which they fit into the pullbox rim, the steel covers are rarely broken or dislodged. Except for occasional damage caused by snowplows or by contractors working in the right-of-way, there is no history of damage to pullbox covers in Region 5. There is no record of any problems with the pullbox in question prior to this accident. While the age of the cover in question has not been established,[3] the photographs in evidence do not support the inference suggested by claimants that it was at the end of its period of usefulness or was deteriorated. The town building inspector who made his inspection on June 10th and the police officer who patrolled the area did not notice the damaged cover, which suggests that its condition was not readily visible. The remote possibility that a pedestrian would leave the sidewalk and walk across the grass area without looking down and be injured by a broken pullbox cover was not a foreseeable consequence of the frequency[4] of the State's inspections and the manner in which they were conducted even though the risk may be readily perceived through hindsight. See Di Ponzio v Riordan, 89 NY2d 578, supra; Danielenko v Kinney Rent A Car, 57 NY2d 198, supra.
As claimants have failed to prove that any negligence by the State contributed to the happening of the accident, the claim must be dismissed. To rule otherwise would cast the State in the role of an insurer of the safety of its property.


May 2, 2000
Buffalo, New York

Judge of the Court of Claims

[1]Exhibit 6, photographs taken at the scene, show that a large piece of the round pullbox cover had been broken off leaving a jagged, pointed edge.
[2]DOT requires contractors to obtain a permit to install sidewalks and landscaping and do other work within the bounds of a State highway right-of-way. The contractor is required to provide insurance to protect the State and to give notice of the completion of the work so that DOT can perform an inspection. See 17 NYCRR part 126.
[3]DOT does not keep records of such information.
[4]In their post trial submission claimants suggest that signal inspections should be scheduled six times a year. Even if that plan had been adopted by DOT, the accident location would not have been visited again by the signal crew until July 20th.