Claim for damages resulting from fall on State-owned bridge. State found liable
in negligence for failing to repair deteriorated sidewalk.
On May 29, 1995 at approximately 8:00 p.m., Claimant Richard Wiggins accidently
stepped into a hole in a paved pedestrian walkway, breaking his left ankle and
injuring his right knee. The walkway was located on the south side of an
east-west bridge that spanned Scriba Creek in Oswego County. The bridge, which
also served to carry traffic traveling along New York State Route 49 across the
creek, was, and is, owned by Defendant, the State of New York.
In this timely-filed claim, Claimant maintains that Defendant is legally
responsible for his injuries because it negligently failed to maintain the
pedestrian walkway and to repair numerous defects in that walkway, including the
hole into which Claimant stepped. Defendant concedes that the walkway was in
need of some repair at the time of Claimant's accident, but argues that its
repair and maintenance program was adequate and that Claimant's own negligence
was the cause of his mishap.
A trial limited to the issue of liability occurred on December 15, 1999 in the
City of Syracuse. Claimant testified on his own behalf and called his wife who
was walking with him at the time of the fall. Claimant also called Mr. Bruce
Opalka, a Department of Transportation (DOT) bridge inspector and Mr. David
Isbell, the supervisor in charge of the subject bridge. Defendant relied upon
its examination of Mr. Opalka and Mr. Isbell.
Claimant testified that he had crossed the bridge on foot about 20 to 30 times
prior to his accident to travel from a camp he owned on the east side of the
creek to a fish hatchery located on the west side. He always used the paved
concrete walkway located on the south side of the bridge. Claimant said he knew
at the time of his accident that the walkway was in poor condition. It had
deteriorated badly and had many holes, including the one that was involved in
That hole, according to Claimant, was located about six to eight feet from the
west end of the bridge. On direct, Claimant said that the hole was ten inches
long, six inches wide and four inches deep -- deep enough so that he could see
steel reinforcement bar (rebar) protruding into the cavity. On
cross-examination, he testified that it was six to eight inches in
Claimant explained that he was walking west in the direction of the fish
hatchery when the mishap took place. The weather conditions were clear and dry
and the sun had not set. After he passed the midpoint of the bridge, he
inadvertently stepped into the hole, lost his balance and fell. He landed on
his right knee, which he scraped, his right hand, and fractured his left ankle.
On cross-examination, Claimant testified that he did not recall where he was
looking at the time that he stepped into the hole, but said that he was probably
looking straight ahead and not at the sidewalk. He also candidly admitted that
he was not paying particular attention to the condition of the sidewalk or to
where he was walking.
Claimant admitted that he had previously seen the deteriorated area where the
hole was located. In fact, he said that he had seen it every time he had
crossed the bridge over the preceding two-year period. He never reported the
hole or the general deterioration of the walkway to anyone, however, and never
considered using the north side walkway to avoid the poor pavement conditions.
June Wiggins, Claimant's spouse, testified that she was walking slightly in
front of Claimant at the critical time and did not see Claimant step into the
hole or fall. She did, however, corroborate Claimant's testimony as to the
generally poor condition of the walkway, the presence of numerous holes, and the
location where Claimant landed. She also confirmed that Claimant was wearing
sunglasses at the time in question.
The DOT bridge inspector, Mr. Opalka, inspected the bridge on September 1,
1994. His Bridge Inspection and Condition Report gave the sidewalks on each
side of the bridge a "3" rating, which, according to Mr. Opalka meant that the
sidewalks showed signs of "serious deterioration." The sidewalks earned that
rating, according to Mr. Opalka, because there was extensive "spalling" of the
Mr. Opalka explained that spalling is the loss of concrete over a period of
time on an incremental basis caused by water and salt infiltrating the concrete
and breaking it down. His notes regarding the sidewalk, which he read at trial,
indicated that "both sides [of sidewalk] spalling heavily along outside edges,
in some areas to full thickness. Other areas have spalls to ±2" deep..."
(see, Exhibit 1, p. 5). According to Mr. Opalka, Exhibits 9 and
15, which the parties stipulated into evidence, were representative of the
condition of the walkway on both sides of the road at the time of his
inspection. Portions of the photographs depict conditions similar to those
described by Claimant.
Mr. Opalka testified that he prepared an Inspector's Routine Bridge Maintenance
Report to alert the maintenance department to the need to address the problem
and that the report was delivered to maintenance approximately a week or two
after the 1994 inspection. In the report, he noted that "sidewalks are readily
used," to make clear to the maintenance department that this was a sidewalk that
was located in an area where it was accessible to and likely to be used by
pedestrians. Mr. Opalka, did this so that the maintenance department would
place a higher priority upon repairing this bridge than it would if the bridge
was one that was infrequently used by pedestrians.
September 1994 was not the first time that the bridge inspectors noted
deteriorated conditions on the bridge's sidewalks. On August 13, 1984, Mr.
Opalka noted that "both sidewalks are spalled 2" deep for apx 50% of their
surface area, and offer a rough surface . . ." (Exhibit 19, p. 2). He made
similar observations in his inspection in 1986 (see, Exhibit 20,
p. 3). Mr. Opalka's July 31, 1990 report indicated that "sidewalks are spalled
to ±2" deep on LT side ±80% & RT side ±50%" (Exhibit A, p.4)
and "sidewalk spalled, leaving very uneven surface" (Exhibit 17, p. 4). The
July 21, 1992 inspection report, which was prepared by an inspector named Peter
Riehlman, observed that the sidewalks were "spalled both sides up to 2" deep
over 60% of sidewalk area" (Exhibit 16, p. 4).
A color photograph that was affixed to the 1990 report appeared to show that
one area of the sidewalk had been patched but that there was significant
deterioration in other areas (Exhibit 17, p. 4). A 1992 color photograph,
though taken from farther away and from a different direction than the 1990
photograph, revealed that the conditions photographed in 1990 had not been
repaired (Exhibit 16, p. 2). The same conditions are also observable in the
photographs taken at the time of the 1994 report (Exhibits 9 and 15).
Up until Mr. Opalka's inspection in 1994, all of the inspections gave the
sidewalks a rating of "4," which, according to Mr. Opalka, meant that the
sidewalk deterioration was somewhere between "minor" and "serious." Mr.
Opalka testified that the decision as to how to rate a particular deterioration
was basically a judgment call. According to Mr. Opalka, DOT procedures provide
for safety flagging of conditions that pose a clear and present danger of injury
to pedestrians and bicyclists. Mr. Opalka did not safety flag the sidewalks on
the bridge. He testified that the decision as to when to issue a safety flag
was primarily in the inspector's discretion and that there were no guidelines
for deciding whether or not to issue a safety flag. However, there was a
written manual that the inspectors used in their work which gave examples of
when safety flags might be issued. One such situation, according to Mr. Opalka,
was when there was a hole in the sidewalk. In the past, he had issued flags
when a sidewalk slab had sunken lower than an adjoining slab and had created a
David Isbell is an Assistant Bridge Maintenance Engineer in the region that
includes the bridge in question. He explained that an Inspector's Routine
Bridge Maintenance Report, like the one that Mr. Opalka issued in September
1994, was a means that inspectors could use to highlight certain conditions for
the maintenance department. The maintenance department was not required to
address the condition identified in the Maintenance Report by the inspector.
Nor was its authority to make repairs limited to those conditions that were
contained in the inspector's reports.
Mr. Isbell recalled Mr. Opalka's 1994 Maintenance Report but was not sure
exactly when Defendant received it. He also remembered going to see the bridge
in the fall of 1994 in response to the report. He explained that there is
often a delay between deciding to undertake a repair and actually starting the
repair process. The availability of funds, materials and workers and the
relative importance of the project all would affect the timing. Where, as in
this case, concrete has to be poured, the weather must be at least 50 degrees.
While it was possible that the temperature would have been warm enough during
the fall of 1994 to undertake the project, Mr. Opalka said that his workforce
could not complete the resurfacing at that time because it was already committed
to other projects.
Mr. Isbell also testified that the conditions identified in Mr. Opalka's report
were not serious enough to require immediate repair. He recalled that the
spalling was shallow and there were no abrupt edges or drop-offs that would have
posed a hazard for pedestrians. In his opinion, there was no reason to issue a
safety flag for the observed conditions or to close the sidewalk until repairs
could be completed. However, the sidewalks would require attention before 1998
when the bridge was scheduled for replacement.
Mr. Isbell calendared the repairs for the following spring. It was one of
approximately 150 to 200 bridges that were slated for repair during 1995. He
estimated that the patching job would take about 200 to 250 man hours to
complete and would involve a crew of three to six people. Taking into account
travel time for the crew, preparation time, concrete curing time and other
factors, the project could take two to three weeks.
Mr. Isbell testified that when all else was equal, sidewalks that experienced
greater pedestrian traffic might be given a higher priority than ones that
experienced normal traffic. He was not aware that the bridge had high levels of
pedestrian traffic. He agreed that the spring and summer months were a busy
period at the fish hatchery that was near the bridge, but said he was not aware
of whether the presence of visitors to the hatchery actually affected pedestrian
traffic over the bridge.
Mr. Isbell also pointed out that he had reviewed Defendant's files and had
found that, with the exception of the 1994 Inspector's Routine Bridge
Maintenance Report, there was no record that anyone had complained about the
condition of the sidewalk between 1984 and the date of Claimant's accident.
According to Mr. Isbell, neither the 1992 nor the 1990 bridge inspections had
resulted in the generation of an Inspector's Routine Bridge Maintenance
Mr. Isbell testified that concrete patching repair work began on the north side
sidewalk on May 23, 1995 -- six days before Claimant's May 29th accident. The
repair process moved to the south side sidewalk on May 30, 1995. This was,
according to Mr. Isbell, the first time that the State had done any patching to
the sidewalks of that bridge.
As a landowner, the State has a duty to maintain its premises and facilities in
a reasonably safe condition (Preston v State of New York, 59 NY2d 997;
Basso v Miller, 40 NY2d 233; McMullen v State of New York, 199
AD2d 603). The State is not, however, an insurer of the safety of all persons
who use its premises and facilities (McMullen v State of New York,
supra; Tripoli v State of New York, 72 AD2d 823), and the
mere fact that an accident occurs in a State-owned facility does not ipso
facto cast the State in liability (Preston v State of New York,
supra). The burden rests with the Claimant to prove (1) that a
hazardous condition existed; (2) that the State had actual or constructive
notice of the hazardous condition but failed to remedy it; and (3) that the
hazardous condition was the proximate cause of the Claimant's injury
(see, Gordon v American Museum of Natural History, 67 NY2d
836; Lewis v Metropolitan Transportation Auth., 99 AD2d 246,
affd 64 NY2d 670).
After considering the evidence carefully, I find that Claimant's fall was
caused by the defective and dangerous condition of the sidewalk located on the
south side of the Route 49 Scriba Creek Bridge. The bridge inspectors'
biennial reports and the inspectors' photographs persuade me that Defendant had
actual knowledge of this hazardous condition no later than July 1990. In
failing to make any repairs to the bridge sidewalk between 1990 and 1994,
Defendant breached its duty of due care. The fall that Claimant experienced was
a natural, probable and foreseeable consequence of the dangerous and defective
sidewalk condition and of Defendant's failure to eliminate the hazard it
Defendant has not argued that it is entitled to the qualified immunity from
liability arising out of highway planning decisions (see,
Friedman v State of New York, 67 NY2d 271, 283; Weiss v Fote, 7
NY2d 579, 585-586) or, more specifically, that this is a situation in which it
studied the dangerous sidewalk condition in the 1984-1994 time period and
determined as part of a reasonable plan of government services that remedial
action did not need to be taken (Friedman v State of New York,
supra, at 286). Indeed, there was no proof that anyone made any
judgments as to how to address the conditions that Mr. Opalka or the other
bridge inspectors noted during that 1984-1994 time period. Accordingly, I
conclude that principles of qualified immunity are inapplicable in this case.
Since Claimant has proven by a preponderance of the evidence that Defendant's
negligence was a proximate cause of its injuries, I find in favor of Claimant on
the issue of liability.
Defendant should not, however, shoulder all of the blame for Claimant's
accident. Claimant's testimony showed that the condition that caused his fall
was open and obvious and that he was aware of it from his prior sojourns across
the bridge. By his own admission, Claimant was not paying particular attention
to the condition of the sidewalk or to where he was walking at the time of his
accident. Claimant's negligence, while not an absolute bar to his recovery of
damages in this case, is a factor that I must take into account in evaluating
the comparative fault of the parties (see, Lolik v Big V
Supermarkets, 210 AD2d 703, revd on other grounds, 86 NY2d
744; CPLR 1411).
Based upon the evidence presented, I find that the negligence of both Defendant
and Claimant caused Claimant's injuries and that each party is 50% responsible
for those injuries. The damages portion of the claim will be tried at a date to
be determined as soon as practicable.
All motions not heretofore ruled upon are hereby denied.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.