New York State Court of Claims

New York State Court of Claims

WIGGINS v. THE STATE OF NEW YORK #2000-013-507, Claim No. 92569


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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: LOUIS J. TRIPOLI, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 29, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


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 his accident.

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 diameter.[1]

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 sidewalk.

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 tripping hazard.

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 Report.

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 presented.

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.


June 29, 2000
Rochester, New York

Judge of the Court of Claims

Because of subsequent repairs that Defendant made to the walkway, Claimant was not able to provide a photograph of the hole at trial; however, he marked the approximate location of the hole with an "X" on a photograph taken of the walkway in 1997 (Exhibit 18). I received that exhibit solely for that purpose.