New York State Court of Claims

New York State Court of Claims

VAN SLEET v. New York, #2000-015-505, Claim No. 098242


Synopsis


Pursuant to section 46 of the Highway Law the State is only responsible for the travel portions of a State highway which passes through a village and for those areas designated in an official order by the Commissioner of Transportation or a part of drainage ditches and storm sewer facilities which are constructed primarily to serve the State highway facility. All other areas within the State's right of way are the maintenance responsibility of the village.

Case Information

UID:
2000-015-505
Claimant(s):
PATRICIA VAN SLEET and RICHARD VAN SLEET, Individually and as Husband and Wife
Claimant short name:
VAN SLEET
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
098242
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Capasso & Massaroni LLPBy: John R. Seebold, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Michael W. Friedman, Esquire
Third-party defendant's attorney:

Signature date:
April 18, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The trial of this claim to recover for personal injuries and derivative loss was bifurcated and this decision addresses the liability issue.

The claim alleges that Patricia Van Sleet was injured at approximately 9:00 a.m. on February 6, 1998 near the door of a building located at 2007 Doubleday Avenue (State Route 50) in the Village of Ballston Spa, New York when she tripped over a depression causing her to fall and her right knee to strike an iron rod protruding from a cement object located near the door. Mrs. Van Sleet testified that she is a Ballston Spa resident and from 1995 to 1999 was employed as the manager of the Dunkin Donuts restaurant occupying a portion of the building located at 2007 Doubleday Avenue. She had first been employed at this Dunkin Donuts during 1992 and returned to work there in 1995. The side door of the building leads to the area where the trash is located and Mrs. Van Sleet testified that she had been in and out of the door thousands of times prior to the accident either taking out trash or going outside to smoke cigarettes. A photograph received into evidence as Exhibit 1 depicts the area outside of the door which is paved, with a crack in the pavement approximately three feet from the door and running parallel to the building. Located approximately four feet from the door is a raised concrete marker with two protruding pieces of steel reinforcing bar. Mrs. Van Sleet testified that as she walked outside to dispose of trash she caught a toe in the crack in the pavement and fell, striking her right knee upon the concrete marker. Nineteen stitches were required to close the wound and Mrs. Van Sleet claims a permanent scar.

Mrs. Van Sleet described the weather on the day of the incident as cold and clear with no ice upon the ground outside of the door. She further stated that there was no debris in the area at the time of the incident and that the area where the marker was located was unchanged from 1992 to the date of her injury. Mrs. Van Sleet stated that the area where the incident occurred was not a walkway and was only used by employees to exit and enter the building in the course of loading and unloading trucks, disposing of trash, and going outside to smoke. Mrs. Van Sleet stated that she had complained to her boss, Jeremiah Burke, on prior occasions concerning the concrete marker and the potential for someone to trip upon it. There were no warning signs or barricades in the vicinity of the marker.

Jeremiah Burke testified that he owns six Dunkin Donuts stores, including the one at 2007 Doubleday Avenue which he leases from a Mr. Miles Brown. Burke was aware of the presence of the concrete marker from the time that he opened the store in 1992 and its condition remained unchanged until the time of the accident. The witness testified that he originally believed that the marker was located upon property owned by his landlord but learned following the incident that it was the right of way boundary marker for property owned by the State of New York. Mr. Burke testified that the landlord re-paved the area outside of the door during 1994 and that the area by the side entrance was not a parking lot but was attached to the parking lot. The area near the doorway was used by his employees and at no time were warning signs concerning the concrete marker posted. He first employed Mrs. Van Sleet as an assistant manager during 1992 and she was working as a manager at the time of the incident.

The next witness called by the claimants was James Reilly. Mr. Reilly testified that he has been employed by the New York State Department of Transportation for twenty-five years in the title of Civil Engineer I and for the last sixteen years has been the Assistant Resident Engineer for Saratoga County. His duties include maintaining all State highways in Saratoga County. Mr. Reilly testified that the concrete object was a State of New York right of way boundary marker. He reviewed Exhibit A, Department of Transportation plans for a 1948 construction project in the Village of Ballston Spa for the elimination of certain railroad crossings and the reconstruction of Route 50, and concluded that the right of way marker was constructed during that project. The plan called for the concrete right of way markers to be four inches in width and four feet in length. The concrete was to include two reinforcing bars one-half inch in diameter and three feet and ten inches in length. The right of way markers were to be imbedded vertically into the ground with six inches protruding above ground level.

The witness next examined Exhibit B, Department of Transportation plans for a resurfacing of Route 50 in the Village of Ballston Spa that occurred in the early 1970s. Mr. Reilly testified that the resurfacing work occurred in an area adjacent to the location of the right of way marker, but did not include the area where the marker itself was located. At page thirty-two of Exhibit B there is a chart set forth entitled "Jurisdiction of Maintenance (Existing State Highway)" which sets forth the respective maintenance responsibilities of the State of New York and the Village of Ballston Spa. Entry "3 E" sets forth that in the area where this incident occurred the State of New York was responsible for maintaining the pavement from curb face to curb face and that all of the other "remaining features in the highway boundary as maintained now or in the past" was the responsibility of the Village of Ballston Spa pursuant to section 46 of the Highway Law. Mr. Reilly testified that the right of way marker which caused the injury to Mrs. Van Sleet was located outside the curb to curb area maintained by the State of New York and was a maintenance responsibility of the Village of Ballston Spa.

Mr. Reilly reviewed Exhibit C, Department of Transportation Plans for the Rehabilitation of a Portion of Route 50 within the Village of Ballston Spa that occurred during the 1980s, and testified that this work was conducted in an area adjacent to where the marker was located, but did not include the marker. The witness further testified that the Department of Transportation never paved around the marker.

During August of 1999, Mr. Reilly conducted an investigation of the accident area on behalf of the State of New York. He determined that the area on the side of the Dunkin Donuts building was approximately eight feet in width and sixty-eight feet in length. An examination of the right of way monument disclosed that the concrete was "eroded"[1]
and that the rebar was exposed above ground level. At the close of the evidence, the parties stipulated that the right of way marker was located upon State property and the crack upon which Mrs. Van Sleet tripped was owned by a third party. The State did not concede any responsibility for maintaining the right of way marker. The Court reserved decision upon the defendant's motion to dismiss the claim for failure to establish a prima facie case. That motion will now be addressed.
Section 46 of the Highway Law was amended pursuant to chapter 628 of the Laws of 1970 to read in pertinent part, as follows:
After the completion and acceptance of the work of constructing, reconstructing or improving of a state highway passing through a village, the state shall maintain and have jurisdiction over the pavement area of such highway and may assume maintenance responsibility and have jurisdiction over such other highway right of way areas as the commissioner of transportation shall determine, by official order, are necessary for the maintenance and protection of such highway facility. No additional points of access to, or exit from, such highway facility shall be made without prior written approval by the commissioner of transportation. Any sidewalks, sewers, water mains, curbs, paved gutters, conduits, facilities and appurtenances that are provided pursuant to this section, shall be maintained or shall be continued to be maintained, as the case may be, by the village in which they are located, or by the agency or other unit owning or having control and jurisdiction thereof except the state shall maintain any drainage ditches and storm sewer facilities which are constructed primarily to service the state highway facility.
There is no question upon the facts of this case that the right of way marker in question was not located within a "pavement area of such highway" and it was not a part of "any drainage ditches and storm sewer facilities which are constructed primarily to serve the state highway facility". Furthermore, there is no evidence that the Commissioner of Transportation issued an official order determining that the right of way marker was "necessary for the maintenance and protection of such highway facility". The issue before the Court is whether pursuant to the above quoted statutory language the State of New York or the Village of Ballston Spa had maintenance responsibility for the marker. Claimants' counsel argues that the Village of Ballston Spa did not have maintenance responsibility for the marker because the marker is not a sidewalk, sewer, water main, curb, paved gutter, conduit, facility or appurtenance. The construction of Highway Law § 46 urged by claimants was rejected by the Third Department in the case of
Mason v State of New York, 180 AD2d 63.
In
Mason, the claimant was injured when he fell "over uneven and broken pavement around a storm drain located in a paved culvert adjacent to State Route 150 in the Village of Castleton-on-Hudson". It was established at trial that the culvert and the pavement around it were within the State's right of way and were originally constructed by the State. That construction work took place prior to the 1970 amendment of Highway Law § 46. Thereafter, there was a re-paving of the culvert in 1991. At the conclusion of the evidence, the State moved to dismiss the claim upon the basis that liability was precluded by operation of section 46 of the Highway Law. The Court of Claims denied the motion, holding that the State was liable for the maintenance of the gutter. The Appellate Division reversed holding that the 1970 amendment to Highway Law § 46 applied only prospectively and, since the gutter in question was constructed prior thereto, the State was not responsible for its maintenance. The Appellate Division ordered that the claim be dismissed and in language directly impacting upon this claim stated at page 65 as follows:
Accordingly, prior to 1971 the responsibility for maintaining drainage facilities and areas outside the traveled or commonly used portions of the highway fell upon the village wherein the roadway was located.
Thus, the Third Department has specifically held that prior to 1971 villages had the responsibility for maintaining all "areas outside the traveled or commonly used portions of the highway". The 1970 amendment only altered the foregoing statement of the law with respect to "drainage ditches and storm sewer facilities" and "areas as the commissioner of transportation shall determine, by official order, are necessary for the maintenance and protection of such highway facility". The marker involved in this litigation is located in an area "outside the traveled or commonly used portions of the highway" and is not a part of a drainage ditch or storm sewer facility, and has not been placed under State maintenance responsibility by an official order of the Commissioner of Transportation. Consequently, pursuant to the
Mason holding, the responsibility for the maintenance of the right of way marker rests with the Village of Ballston Spa and applying the Mason holding to the facts of our case requires the granting of the dismissal motion.
LET JUDGMENT BE ENTERED ACCORDINGLY.

April 18, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1]All quotations are from the Court's trial notes.