Claimant Edlyn Hynes filed the instant Claim seeking damages individually and
as executrix of the estate of John G. Hynes for the wrongful death of her
husband who was killed by an avalanche as he tried to free his car from a snow
drift on Route 218 in Cornwall, New York on March 13, 1993 during a blizzard. A
bifurcated trial of the matter was held and this decision pertains solely to the
question of liability. The narrow issue of liability presented in this Claim is
whether, after the decision to close Route 218 was made, the State's response
was so dilatory as to constitute negligence (
, Hynes v State of New York
, Claim No. 88481, Motion No.
M-50746, Unreported Memorandum Decision and Order of Hanifin, J. [filed 6-1-95],
p. 9; Hynes v State of New York
, Claim No. 88481, Motion No. M-56423,
Unreported Decision and Order of Patti, J. [filed 3-4-98], pp. 4-5).
The following undisputed facts emerge from the testimony and proof elicited at
trial. On March 13, 1993, at approximately 2:30 p.m., the Orange County
Executive declared a County-wide state of emergency due to a winter storm,
thereby restricting use of all county roads to all but emergency and official
, Exhs. 7; B). At approximately 2:40 p.m., William Bain, the
Department of Transportation's (DOT) Resident Engineer for the Orange East
Residency, made the decision, after consulting with the Town of Cornwall Police
Department, to physically close all access to Route 218, a State highway which
runs adjacent to Storm King Mountain. At that time, Mr. Bain called Robert
Harris, a DOT Highway Maintenance Supervisor, and directed him to close the
highway. At approximately 2:50 p.m., Mr. Harris dispatched a DOT road crew to
accomplish the closure and the closure was completed at a time thereafter which
is the subject of dispute.
Claimant and the decedent left their home on Payson Road in Cornwall that
afternoon and were headed to West Point where claimant was employed as a
mechanical engineering technician. Claimant was scheduled to work the 4:00 p.m.
to 12:00 a.m. shift that day. The couple was traveling in Mr. Hynes' four-wheel
drive pick up truck and Mr. Hynes was driving. They drove along Route 218 until
they were confronted by a snow drift that immobilized their car. While Mr.
Hynes was outside the car attempting to dig it out from the snow, an avalanche
occurred, trapping and killing Mr. Hynes.
The time that the Hynes' left their home and entered Route 218 was the subject
of conflicting testimony at trial, as was the time that DOT actually effectuated
the road closing. The primary questions of liability for the Court to resolve
are whether, after making the decision to close the roadway, DOT was so dilatory
in physically closing the roadway that it was negligent, and whether the Hynes'
conduct was negligent and constituted a contributing cause of Mr. Hynes' demise.
The following evidence was elicited on these points at trial.
Sergeant Russell O'Dell testified that he has been employed by the Town of
Cornwall Police Department since 1983 and in March of 1993 was an investigator
for the Department. He testified that he is familiar with Storm King Mountain
and described it as running parallel to the Hudson River and in a southeasterly
direction from Route 9W to the West Point area. He explained that several
different routes may be taken from the Cornwall area to West Point: (1) Route
218, which runs along the side of Storm King Mountain; (2) Route 9W or (3) Route
32 to Route 6. He testified that Route 218 and Route 9W are the most direct
routes to West Point, and that they are both State-owned highways.
Sgt. O'Dell identified a red dot on Exhibit 10, a map of the Cornwall area, as
the DOT Orange East Residency which is located on Dixon Road in Newburgh. He
testified that a blue line on the map running down the middle of the exhibit was
Route 9W, which runs from Newburgh to West Point, and that a pink line on the
exhibit marked a portion of Route 218. He testified that the base of Storm King
Mountain was marked on the exhibit with a red dot that is encircled in
Sgt. O'Dell testified that he was the investigating officer in the death of Mr.
Hynes. A report of his investigative findings was admitted into evidence as
Exhibit 6. Sgt. O'Dell testified that during his investigation he learned that
the Hynes' lived on Payson Road, which directly intersects with Route 218
, Exh. 10). He explained that he did not visit the scene of the
accident that day, but did so some five days later. At that time, he determined
that the Hynes' accident occurred at mile marker 1067.
According to Sgt. O'Dell, a blizzard was raging on March 13, 1993. He testified
that a state of emergency was declared at 2:43 p.m. by Richard Randazzo, the
Town Supervisor, and that at that time a dispatcher was directed by the Chief of
Cornwall Police to send a New York State Police Information Network (NYSPIN)
message, which is transmitted to police agencies across the entire state, that
Route 218 was in a State of emergency and closed to vehicular traffic. He
testified that thereafter calls were made to radio stations regarding the
Sgt. O'Dell testified that Route 218 was a regular part of his patrol area and
that prior to March 13, 1993 he was familiar with closures of that roadway due
to excessive rain, rock slides, snow slides and ice slides. He also recalled
occasions when the Cornwall Police Department was called upon by DOT to assist
with closing that Route (TR, Vol. I, p. 31), but testified that the Cornwall
Police Department was not asked to assist with the closure on this occasion (TR,
Vol. I, p. 42).
According to Sgt. O'Dell, as a result of his investigation he determined that
the Hynes' vehicle entered Route 218 between 3:45 and 3:50 p.m. On March 18,
1993, he physically located the Hynes' vehicle where it had come to rest on
Route 218. He identified Exhibits 4A through 4X as photographs of the Hynes'
vehicle taken in his presence on that date. He was also shown Exhibits 2A-2J
which he identified as aerial photographs of Route 218 along Storm King
Mountain. He identified Exhibit 2G as best depicting the area where the Hynes'
vehicle came to rest.
Referring to Police Records
, Sgt. O'Dell testified that a call was received by the Cornwall Police
Department from the Hynes' vehicle at 4:01 p.m. and Officer John Bunt, who was
dispatched to the scene, arrived at the base of the mountain at 4:03 p.m. and at
the Hynes' vehicle at 4:05 p.m. On cross-examination, Sgt. O'Dell conceded
that he did not observe the Hynes' vehicle enter Route 218 at 3:45 p.m.
Referring to a map (see
, Exh. 10), he also testified that the Newburgh
residency of DOT is three miles "at most" from where Route 218 enters Cornwall
(TR, Vol. I, p. 49). On redirect, Sgt. O'Dell was asked to identify where the
State posts road closure signs in the Village of Cornwall when Route 218 is
closed. He testified that a sign which indicates that the road is closed ahead
is stationed in a triangle located about thirty feet from the Cumberland Farms
Store. He explained that a person who wanted to check if Route 218 is closed
without driving to the base of the mountain could travel about four blocks from
Payson Road and see whether the sign was posted (TR, Vol. I, p. 56). He noted
that a car traveling from Payson Road towards the sign would have to turn around
because it would be approaching from the rear of the sign.
Upon questioning by the Court, Sgt. O'Dell testified that he heard the dispatch
of Officer Sinagra to the scene. He recalled that weather conditions at the
time were near blizzard, with very low visibility and high winds.
Philip J. Sinagra, Jr. testified that he is presently a Detective with the Town
of Cornwall Police Department and that on March 13, 1993 he was a patrol
officer. He described the map admitted into evidence as Exhibit 10 as depicting
the area of Newburgh, Cornwall and West Point. He recalled that on the date in
question he worked the 8 a.m. to 4 p.m. shift as scheduled and stayed on until
midnight that day because it was snowing. Officer Sinagra testified that Route
218 is a road that he would normally patrol in the course of his daily duties.
He testified that he was called to respond to Route 218 on March 13, 1993, and
after referring to Exhibits 11 and 12, recalled that he received that call at
2:50 in the afternoon to investigate a possible snow slide. His testimony
revealed that this call was unrelated to the snow slide involved in claimant's
accident. Officer Sinagra testified that after traveling to the area, he
advised the Cornwall Police that he had driven just into the beginning of Route
218 and was confronted with very large snow slides and drifts of up to
four-to-five feet (TR, Vol. I, p. 69).
Officer Sinagra's attention was called to the map admitted as Exhibit 10 and
the location of the red dot indicating the base of the Storm King Mountain,
which he recognized. He testified that mile marker 1067 was some distance
further south than the place where he first encountered snow slides on Route
218. He testified that at 3:15 p.m. he reported back to the base and advised
the dispatcher to notify DOT for purposes of having the road closed because he
found it to be impassable. According to Officer Sinagra, the dispatcher advised
him that she had advised DOT as he requested, but had been informed by DOT
personnel that they would be unable to have the road closed until about 3:30
p.m. He testified that he was never requested through the dispatcher by DOT to
remain at that location (TR, Vol. I, p 72).
Officer Sinagra testified that prior to the date in question he was aware of
other instances of closure of Route 218. (TR, Vol. I, p. 72). He explained that
normally his Department would notify DOT of the need for closure and he would
return there on patrol to make sure DOT was there. He testified that normally
DOT would close the road by placing two large reflective barriers on the highway
and would put up signs on Route 9W. He testified that he imagined that there
would be barricades closing the west point side, although he had never traveled
there to observe them. Officer Sinagra recognized the location depicted in 9A
and 9B as the base of the mountain on the Cornwall side and stated that that
location is consistent with the red dot shown on Exhibit 10 which marks Route
218 at the base of the mountain (TR, Vol. I, p. 75). He was shown photographs
admitted as Exhibits 9A and 9B and testified that they fairly and accurately
depict the signs and equipment used by DOT to indicate that the road was closed
on the Cornwall side.
According to Officer Sinagra, the State also placed "road closed" signs in the
Village of Cornwall near Village Square and would place signs against the
roadway signs for route 218 for the north and southbound lanes where Routes 9W
and 218 meet. He testified that that location is depicted on the map (Exh. 10)
where the pink line intersects the blue line. He also testified that a sign is
normally placed a few blocks from Payson Road in the "triangle" area in Town.
He explained that if a vehicle coming off Payson Road wanted to determine if
Route 218 was open or closed, it could make a left and go down about four blocks
and see if the sign was up. He also testified that it would be a shorter
distance to go to that triangle to see if the sign was up than to go to the base
of the mountain to see if it was closed (TR, Vol. I, p. 77).
Officer Sinagra testified that after being advised by the dispatcher that it
would take DOT 15 minutes to close Route 218, he set up eight 30-minute road
flares -- four in the northbound lane and four in the southbound lane -- to
indicate that the road was closed. He testified that he placed them in the area
depicted in exhibits 9A and 9B. He recalled that at that time, the snow was
"quite high" (TR, Vol. I, p. 78) since it had not been plowed yet, and he used
metal tripods for the flares which he set in the snow across the roadway. He
testified that at no time after that was he asked by DOT to remain in that
vicinity until their forces could get there to physically close the road. He
testified that the times he wrote in Exhibit 11 were not written
contemporaneously with his patrol but were written some time later. According
to Officer Sinagra, he left the area after he set up the flares and did not
return and thus does not have any personal knowledge of the condition of the
flares after that. Officer Sinagra recalled hearing a dispatch about a vehicle
trapped on route 218 some minutes after 4. He knew that the Fire Department
responded, the Village of Cornwall on Hudson, and the Military Police. He
testified that Military Police are called on for assistance from time to time as
are the New York State Police. (TR, Vol. I, pp. 80-81). He also testified that
he never requested assistance from the New York State Police after placing the
flares on the roadway and never heard any such dispatch for State Police.
On cross-examination, Officer Sinagra testified that he could not drive far on
218 and recalled finding four cars ahead of him that could not pass and telling
them to turn around and return the way they came. He recalled that all
vehicles complied. He testified that he placed flares on the roadway because he
felt it was important to keep motorists from traveling on Route 218, and
conceded that he never returned to check them. Officer Sinagra also testified
that since he has been employed by the Cornwall Police Department he has been
aware that the Police Department has closed Route 218. However, he testified
that he knows from his policies and procedures manual that the Cornwall Police
Department does not have the authority to close Route 218, a State road.
Waymond Lamar testified that he has been employed by DOT for 19 years. He
testified that he is assigned to the Newburgh Residency, which is located off
Route 9W in Newburgh. He testified that trucks and plowing equipment are stored
there and that the State also has a sub-residency in an area on Route 218 near
West Point where it keeps trucks and equipment.
Mr. Lamar testified that he was working in that Newburgh Residency in March of
1993 and remembers the events at issue. He recalled that he worked the 12 noon
to 8 p.m. shift on the day of the Hynes' accident. He testified that he is a
DOT heavy equipment operator and is able to operate wintertime plowing
equipment. Mr. Lamar recalled that when he arrived at work that day it was
snowing heavily. He testified that he was assigned to get the barricades and
close Route 218. He testified that when he first arrived on his shift, he was
engaged in preparing the plowing equipment. He also testified that he believed
that he was told to close Route 218 about an hour or so after he arrived at
work, meaning 1 p.m.
Mr. Lamar testified that he had personally closed Route 218 on five or six
prior occasions and that there was a procedure in place to do so (TR, Vol. I, p.
92). He testified that he had to start in Newburgh, where he collected
barricades and cones and road closure signs. He testified that DOT would never
use flares to close the road, but sometimes the police would place them there
until DOT could get there. He testified that DOT workers would travel to the
locations where road-closure signs were to be posted and would hang the road
closure signs over signs that were already there. He testified that the road
closure signs were already at those fixed locations and just needed to be lifted
from the ground where they were kept and placed on top of the permanent road
With respect to the specific road-closure procedure, Mr. Lamar testified that
he would travel from the Newburgh residency to the intersection of Routes 9 and
218 and would put up the sign that was already there. He would then travel to
the intersection of Routes 9W and 107, also known as Quaker Road, and put that
sign up and then would travel from Route 107 into the Village of Cornwall.
According to Mr. Lamar, they would then travel to the "triangle" and put up a
sign that would be on the truck, and then go to Hudson Street and place another
sign there, and then continue to the base of the mountain. He testified that
the materials needed to close the road at the base of the mountain would be on
the truck and identified them as the items depicted in Exhibits 9A and 9B.
Mr. Lamar testified that on the date in question he was working on the road
closure with three or four others. Referring to Exhibit 8, a page from a DOT
log book, he testified that at 4:05 p.m. a member of his crew called DOT to
advise that a private vehicle was trapped under an avalanche. When asked
whether they had completed the road closure by that time, Mr. Lamar testified
that he thought it was completed at 3:30 p.m., but was "not sure," and "couldn't
guarantee it" (TR, Vol. I, p. 105). He also testified that his testimony at
trial was based on what he used to do and not based on his particular
recollection of what was done on March 13, 1993 (TR, Vol. I, p. 106).
Mr. Lamar recalled that when he arrived to close the road, the police were
already there and told them that an emergency vehicle was due to arrive and not
to allow anyone else on the roadway (TR, Vol. I, p. 108). He testified that the
police had flares there and he saw one police car at the base of Route 218. He
also testified that he believed the police were there approximately ten or
fifteen minutes before he arrived and that when they arrived to close the road
the police already knew that they needed to get emergency vehicles up that road
"before we put [barricades] to close it up" (TR, Vol. I, p. 109).
On cross-examination, Mr. Lamar testified that when they arrived at the base of
the mountain on Route 218 they were only permitted by the police to close one
lane because they wanted an emergency vehicle to be able to pass through. On
redirect examination, he explained that they were told by police that a car was
Claimant, Edlyn R. Hynes, testified that on the date of this accident she
resided at 11 Payson Road in Cornwall-on-Hudson and had lived there since 1970
or 1971. She testified that she was married to the decedent in 1953 and has
five children. Mrs. Hynes testified that she was employed on the date of the
accident at the United States Military Academy at West Point and had been so
employed since 1975. Her husband had also been employed at West Point since
1968. Claimant testified that she held the title of Mechanical Engineer
Technician and in that capacity controlled the heating and air-conditioning and
ventilation of all the buildings at West Point through a computer.
Mrs. Hynes testified that she was classified as an "essential" employee at West
Point which meant that she "had to go to work" even in bad weather and even if
West Point was closed (TR, Vol. I, p. 116). She testified that her usual route
from her home to West Point was to back out of the driveway, go to the end of
Payson Road and make a right turn onto Route 218 toward the mountain. She
testified that she traveled on that roadway prior to the accident on a daily
Mrs. Hynes was then questioned about the date of the accident. She testified
that she woke in the morning and recalled that it had been snowing all night.
She was scheduled to work the 4p.m. to 12 a.m. shift that day. She testified
that her husband was running errands that day and that she called "Gail" at her
office to advise her that she would arrive at work after her scheduled start
time of 4 p.m.
Concerning the time that she left her home on the accident date, Mrs. Hynes
testified "I think possibly after talking to people I had to have left the
house, I would say around 3:30 or a little after" (TR, Vol. I, pp. 121-122).
She recalled that she had already called Gail at West Point by that time.
Mrs. Hynes also testified that she recalled seeing signs on other occasions
advising that Route 218 was closed on Route 9W and another in the triangle area
near Cumberland Farms in the Village of Cornwall. She testified that in bad
weather her husband would drive into the Village of Cornwall before going up to
Route 218 to see if the signs were up in the Village. She testified that it was
a shorter drive to the Village than to the base of the mountain. When asked if
they drove into the Village to check the sign on March 13, 1993, Mrs. Hynes
testified: "We could have possibly, yes, you know, because there was no signs up
that, you know -- really sure of it now but we did go up that way and turn
around in Cumberland Farms and there was no signs at the end of the road" (TR,
Vol. I, pp. 123-124).
Claimant testified that they proceeded to the mountain where the road was snow
covered. She recalled that they did not see any flares or barricades such as
those depicted in Exhibits 9A and 9B and they just kept going (TR, Vol. I, pp.
125, 127). She testified that her husband had to drive around snow drifts on
the passenger side of the truck and that at some point they hit a snow bank and
became stuck.. She estimated that they were approximately a mile and a half
from the base of the mountain when that occurred. She recalled that when the
car got stuck, her husband could not open the driver's side door because the
snow was so high, so he climbed out through the window. He then helped Mrs.
Hynes out of the car and they both began digging the snow out around the truck
with their hands because they did not have a shovel. She testified that they
did that for some period of time, although she was unsure "how long it really
took" (TR, Vol. I, p. 131). Claimant recalled that they both got back in the
truck because her husband was hoping to rock the car to force it out of the snow
bank. According to claimant, when that proved unsuccessful, her husband exited
the vehicle again to try and free it and thereafter she saw him in front of the
truck and then saw nothing but snow. She recalled that she exited the truck and
tried to find her husband. She had a mobile phone and called the towing place
where her daughter works, but could not get through. She finally reached Gail
at West Point and asked her to send the Military Police and tell them that it
was an emergency. She then called the towing place and advised them of the
problem and finally called the Cornwall Police Department, which she since
learned was at 4:01 p.m. Working backwards from that point in time, she
estimated that 35 minutes had passed from the time they left their home to the
time she phoned the Cornwall Police Department (TR, Vol. I, p. 135).
On cross-examination, Mrs. Hynes testified that she did not remember that her
husband had slid into a ditch on the morning of their accident while doing his
errands. She recalled having previously so testified, however, when confronted
with her prior deposition testimony given on February 1, 1995 in connection with
an action in Supreme Court against the Town of Cornwall during which she stated
that her husband called her and advised her he had slid into a ditch on Route
107 and hoped to catch their daughter before she left for work to get her to
avoid taking that route. She also conceded on cross-examination that she would
have been charged annual leave if she did not appear at work.
Mrs. Hynes was reminded on cross-examination that she testified on direct
examination that she believed she had left the house at 3:30 p.m. on March 13,
1993. And, she admitted that in good weather it took between 10 and 20 minutes
to drive from her home to West Point. She was confronted with testimony she
gave (1) at a hearing in connection with a lawsuit against the Town of Cornwall
on June 9, 1993, during which she testified that she left her home that day at
approximately 3 p.m. (TR, Vol. I, p. 139): (2) at a deposition in connection
with that lawsuit held on February 1, 1995, during which she testified that she
left her home that day before 3 o'clock (TR, Vol. I, p. 140); (3) during that
same deposition during which she testified that she left her home between twenty
and ten minutes to 3 p.m. (TR, Vol. I, p. 141), and (4) at a deposition held on
January 10, 1997 in connection with this claim during which she testified that
she left her home that day between ten minutes to 3 and 3 p.m. (TR, Vol. I, p.
Mrs. Hynes also conceded on cross-examination that there were other routes
available to drive to West Point and that she and her husband did not consider
taking those other routes on the date of her husband's accident. Mrs. Hynes
repeated on cross-examination that she believed that she and her husband
traveled into Town to determine if the road closure signs were posted before
heading to Route 218. However, when asked, she did not recall giving prior
testimony: (1) at a hearing in connection with the lawsuit against the Town on
June 9, 1993 during which she testified that she and her husband traveled down
Payson Road and made a right directly onto Route 218 (TR, Vol. I, p. 144); (2)
at a deposition in connection with that action held on February 1, 1995, during
which she testified that when they left their driveway they entered Payson Road
and turned right onto 218 heading toward West Point without making any stops
(TR, Vol. I, p. 145), and (3) during a deposition held in connection with this
matter on January 10, 1997 during which she testified that they took Payson Road
to the Stop sign, made a right onto Route 218 and "started up the hill until we
got stuck in the snow" (TR, Vol. I, p, 146).
Mrs. Hynes also did not remember testifying on June 9, 1993 in connection with
the Town of Cornwall action that she and her husband were digging for
approximately ten or fifteen minutes (TR, Vol. I, p. 147). On
cross-examination, she also testified that she thought the avalanche occurred
between 3:45 and 3:55 p.m. She did not recall testifying at a hearing held on
June 9, 1993 that the avalanche had occurred at about 3:30 p.m. (TR, Vol. I, p.
149). She also conceded during cross-examination that before she left the house
on March 13, 1993, she had heard weather advisories that the roads were bad and
she was aware that the storm had been forecast for several days.
On redirect, Mrs. Hynes testified that at the time that she testified at the
various depositions she did not know the time that she made the call to the
Cornwall Police Department and that it was not until after the depositions that
she learned that a neighbor had seen her in the Village of Cornwall before they
headed to the mountain. Mrs. Hynes also testified that during bad weather Route
218 was a better route than Route 9W because it was more protected and there was
less snow there and because it was always plowed first (TR, Vol. I, p. 154). On
re-cross, Mrs. Hynes could not remember if the neighbor told her that she had
seen her in Town prior to or after the depositions.
Claimant also called Jacqueline Taormina, who testified that on March 13, 1993,
she lived at 101 Bayview Avenue in Cornwall on Hudson. She explained that
Bayview Avenue is also known as Route 218 and that it is called Bayview Avenue
when it runs through the Village of Cornwall. Mrs. Taormina testified that her
house was approximately one quarter of a mile from the base of Storm King
Mountain on the Cornwall side and that it faced the road. If standing on her
driveway and facing Route 218, Payson Road would be to the right. She testified
that she lived across the street from the Hynes when growing up.
According to Mrs. Taormina, she recalled that it was snowing on March 13, 1993.
She remembered that she was standing outside her opened garage door because she
was smoking and speaking to her husband who was snow-blowing the driveway. She
recalled that she saw the Hynes' vehicle pass her home going south or to the
left and she testified that the time that they passed was about 3:45 p.m. She
testified that she was aware of the time because she had just looked at her
microwave clock to determine if it was time to make dinner and realized that it
was not. Mrs. Taormina testified that she had told Sgt. O'Dell that she had
seen the Hynes' vehicle pass her home at 3:45 p.m. on the date of the
On cross-examination, Mrs. Taormina testified that she was friendly with the
Hynes' "for quite some time" (TR, Vol. II, pp. 164). She admitted that she had
told Mrs. Hynes after the accident that she had seen them drive past her home on
the date of the blizzard, but could not remember the year that that conversation
took place. She also acknowledged that her microwave is located in her kitchen,
which is next to her garage, and that she did not verify the time that she saw
the Hynes' vehicle pass with any other clock. Mrs. Taormina also testified that
she had been standing in her garage about 15 minutes before she saw the Hynes'
Mrs. Taormina also testified on cross-examination that she had phoned Sgt.
O'Dell at his home about an insurance matter because he was working as an
insurance agent at the time and had discussed the Hynes' incident with him
during that conversation. She testified that she has known Sgt. O'Dell since
she was a teen.
Robert Harris testified that he has been employed by DOT for 30 years and is
stationed at the Newburgh Residency as a Highway Maintenance Supervisor I, a
position which he held on March 13, 1993. In that position, he is responsible
for dispatching crews engaged in paving, railing and plowing the roads and is
responsible for Routes 9W and 218. Mr. Harris agreed that an avalanche on a
State road would be an emergency. He was also aware of closures by the State of
New York on prior occasions of Route 218 as it passes Storm King Mountain for
heavy rains, snows, and rock slides. He testified that there was a procedure
that his crews were to follow on those occasions. He also testified that
trucks, plows, loaders and graders were available at the Newburgh Residency and
the same equipment and crews were available at the West Point substation.
Mr. Harris recalled that he was on duty on March 13, 1993 and had arrived at
4:30 a.m. for his shift. After referring to Exhibit 8, a copy of log entries,
he recalled that he received a call from the Cornwall Police Department which he
logged in at 2:20 p.m., that small avalanches had occurred on Route 218 and that
two cars were almost buried (TR, Vol. II, p. 184). The next log entry indicates
that he phoned the Resident Engineer, William Bain, at 2:30 p.m., ten minutes
later, to advise him of the road conditions. He explained that during that
ten-minute period, he was answering phones, dispatching trucks or speaking with
the Cornwall Police Department. He testified that at 2:40 p.m., Mr. Bain called
him back and advised him to close Route 218.
Mr. Harris agreed that he had a working relationship with the Cornwall Police
Department, the New York State Police and the Military Police. He testified
that he did not request assistance from the police to stop motorists from
entering Route 218 that day, although he had called upon police agencies in the
past. He testified that he did not call upon the police for assistance when
notified at 2:20 p.m. of the small avalanches because he had assumed "that they
were already there" (TR, Vol. II, p. 191).
Mr. Harris testified that he made a record of his notification of police
agencies and the media, which was admitted into evidence as Exhibit 8. He
testified that he was told by Mr. Bain to close the road at 2:40 p.m. and that
the first documentation of a telephone call notifying an agency was logged at
2:55 p.m. when he called DOT's regional office in Poughkeepsie. Thereafter he
called the Cornwall Police Department, the State Police at 2:57 p.m. and the
Military Police at 2:58 p.m. He noted in the log that he had notified the
police agencies at 3:10 p.m. He also called a number of radio stations after
that. According to Mr. Harris, the DOT trucks and plows that were plowing the
roads that afternoon were all equipped with radios and DOT had the ability to
contact crew members out on the roadways.
With respect to the procedure for closing Route 218, Mr. Harris testified that
the crews would first load the barricades and signs onto the trucks and then
would proceed to the intersection of Routes 9W and 218 and uncover a sign that
was already there. When asked if they would proceed to Routes 9W and 107, Mr.
Harris testified that the process would vary because "[s]ometimes we would go
right to the base, and sometimes we would go to 107 or we would send another
vehicle to * * * put up the sign [at 107]" (TR, Vol. II, pp. 204-205). He
reiterated that there were occasions when they would erect the sign at the
intersection of Routes 9W and 218 and "then proceed directly to the base of the
mountain" (TR, Vol. II, p. 205). He also testified that flares would not be a
suitable obstruction to close the road because they would not last long (TR,
Vol. II, p. 206).
Based on notations contained in Exhibit 1, a snow and ice maintenance log for
March 13, 1993, Mr. Harris testified that a DOT truck left the Newburgh
Residency at 2 p.m., plowed from Route 9W to West Point and completed the trip
by returning to Newburgh at 4 p.m. Mr. Harris does not recall whether he
attempted to contact the person operating that plow to direct him to physically
obstruct Route 218 with the plow.
Mr. Harris' best estimate of the time that it would take from the time he
received a call to close Route 218 until the time that DOT would be physically
able to block the road was 20 to 25 minutes (TR. Vol. II, p. 211). He had no
personal knowledge of the actual time that Route 218 was physically closed on
March 13, 1993. Mr. Harris testified that he received a call from his crew that
was assigned to close Route 218 at 4:05 p.m. advising him that they had arrived
at Route 218 and were confronted with police who asked them to leave one lane
open for emergency vehicles (TR, Vol. II, p. 218). He stated that "that would
be an extraordinary amount of time for them to arrive there and then proceed to
close a road" and added that "[t]hey may have been there for some time" before
they called (TR, Vol. II, p. 218). He agreed that if, in fact, his crew did not
get to the area to physically close Route 218 until 4:00 or 4:05 p.m., that
would be an extraordinary amount of time to complete the closure from the time
the crew was dispatched.
On cross-examination, Mr. Harris testified that he has no reason to believe
that his crew failed to leave the yard to close Route 218 after he directed them
to do so.
William Bain testified that he has been employed by DOT since 1973 and became
Resident Engineer for the Orange East Residency in 1988, which includes the area
depicted on the map admitted into evidence as Exhibit 10. He recalled the
events on March 13, 1993, including some small avalanches on Route 218 and the
avalanche that led to the fatality in this claim. He testified that when
advised of the small avalanches on Route 218, he considered it an emergency
situation (Tr, Vol. II, p. 226). He testified that after learning about the
small avalanches, he consulted with the Town Police and then determined that
Route 218 should be closed. He testified that, to that end, he phoned the
Newburgh Residency at 2:40 and spoke with Robert Harris and had no personal
knowledge of the events in question after that point.
Michael D'Elia, a Highway Maintenance Supervisor I who was so employed on March
13, 1993, testified that he was working that day and has some recollection of
the events in question. He testified that he was instructed to close Route 218
on that day, was familiar with the procedure for road closure, and was aware
that Route 218 had been closed on numerous occasions before that date. He
agreed that by March of 1993, the State had erected permanent signs that were
kept covered at various locations until needed to advise that Route 218 was
He recalled that on March 13, 1993, he was given the assignment to close Route
218 "a little bit before 3 o'clock in the afternoon" (TR, Vol. II, p. 234). He
testified that he did not contact any plowers on the road to ask them to
physically use their plows to obstruct access to Route 218, nor did he ask for
assistance from State Police, the Cornwall Police or the Military Police. He
testified that he was aware at the time he was instructed to close the roadway
that there had already been some small avalanches and that that was an emergency
event (TR, Vol. II, p 236).
Mr. D'Elia testified that it would normally take approximately five to ten
minutes for his crew to physically load the truck with barricades and prepare
the truck for the trip, although he did not know how long this part of the
road-closure process took on March 13, 1993. He recalled that he observed the
DOT crew assigned to close Route 218 on that day leave the Newburgh residency at
3:00 p.m. He testified that he has no personal knowledge of any of the events
after he saw the crew leave the residency.
On cross-examination, Mr. D'Elia explained that the reason that the signs are
uncovered first before the barricades are placed at 218 is for the safety of
motorists (TR, Vol. II, p. 245). Referring to Exhibit 10, a map, he testified
that to complete the road-closure procedure, the crew would travel approximately
four or five miles from the Newburgh residency to the first stop for the
placement of signs at the intersection of Routes 9W and 218, one mile to the
next stop at the intersection of Routes 9W and 107, a mile and a half to the
intersection of Routes 207 and 218 and then another mile or mile and a half to
the base of the mountain. He testified that as soon as he was notified that
Route 218 was to be closed, he communicated that to his crew who began to load
the truck without delay. In fact, he testified that he helped the men load the
truck. He testified that he received a call from that crew concerning the
road-closure assignment at 3:30 p.m., but the contents of that call were not
elicited at trial.
On redirect examination, Mr. D'Elia conceded that he does not know whether his
crew took any kind of break after they left the yard. On re-cross examination,
he testified that the entire road-closure assignment at issue would take from
twenty minutes to a half hour under ordinary weather conditions. (TR, Vol. II,
pp. 262-263). He also testified that, assuming that the log book indicated that
the crew had reached the base of the mountain at 4:05p.m., that that would be an
"extraordinary" amount of time to get from the residency to the base of the
mountain "[b]ecause it never takes us that long to do it" (TR, Vol. II, p. 263).
And again, on re-redirect, Mr. D'Elia agreed that if his crew left at 3 p.m. and
did not close the road until 4 p.m. or 4:05 p.m., it would have been an
extraordinarily long amount of time.
There is no question that the potential for an avalanche on Route 218 was a
dangerous condition of which the State had actual notice on March 13, 1993 and
that the State was required to take reasonable measures to remedy the hazard
, Tromblee v State of New York
, 52 AD2d 666). Manifestly,
"[w]hat constitutes reasonable diligence in reacting to a particular condition
on a particular highway depends, of course, upon the circumstances of each case"
, p. 667). Based on the foregoing proof, claimant seeks to establish
that the State's delay in physically closing off access to Route 218 after its
decision to do so was unreasonable, rendering the State liable for the wrongful
death of Mr. Hynes.
The Court finds, as a preliminary matter, that the possibility of an avalanche
on a cliff side roadway where motorists could become trapped inside or outside
of their vehicles constituted an emergency situation that required, in the
exercise of reasonable diligence, a prompt response. The Court finds from the
evidence elicited at trial that the State did not arrive at the base of the
mountain to physically barricade Route 218 until 4:00 p.m. or after. This
finding is based upon the unrefuted testimony at trial that establishes that the
police arrived at Route 218 at 4:05 p.m. in response to a call that a person was
trapped by an avalanche coupled with the unrefuted testimony of one of the crew
members dispatched to close the road that day -- Waymond Lamar -- that when they
arrived at the base of the mountain the police had already arrived at the scene
in response to that call, which undoubtedly concerned Mr. Hynes. This proof
together establishes that DOT could not have arrived at the base of the mountain
to close Route 218 until some time after 4:00 p.m.
The Court also finds that the State's response time in closing off access to
Route 218 was unreasonable under what the Court finds were emergent
circumstances. The Court has based this finding of unreasonableness upon the
testimony of two DOT Supervisors, Mr. Harris and Mr. D'Elia, that their own
crew, which left the Newburgh Residency at 3:00 p.m., took an "extraordinary"
amount of time to effectuate the road-closure if it was not completed until 4:00
p.m. The proof elicited at trial established that the Newburgh Residency was
approximately five miles from the base of the mountain where the closure
apparatus was to be placed, and according to Mr. Harris' testimony, DOT could
have traveled directly to the base of the mountain and erected barricades and
erected signs in Town and at the other specified locations thereafter. Even
according deference to the decision of DOT to follow its usual route and erect
or uncover the signs before traveling to the base of the mountain, the testimony
of Mr. D'Elia establishes that to make all of the above-referenced stops, the
route would involve traveling over approximately nine miles of roadway and could
have been completed under ordinary conditions within twenty to thirty minutes.
In finding that DOT's response time in barricading Route 218 was unreasonable,
the Court has also placed some degree of weight on the fact that Mr. Harris
informed the Cornwall Police that the road could be physically closed by
approximately 3:30 p.m that day -- an estimate that he made while the blizzard
was raging -- as well as on the fact that DOT could have requested one of a
number of police personnel to physically barricade the highway, as it had done
on prior occasions, until its crew was able to bar motorists from entering this
stretch of roadway at their peril.
The Court also finds that claimant and decedent entered Route 218 between 3:30
p.m. and 3:45 p.m. on March 13, 1993. In so finding, the Court has credited the
testimony of Sgt. O'Dell, who investigated the incident, that the couple entered
Route 218 at approximately 3:45 p.m. and that of claimant, who testified that
her call to the Cornwall Police after the accident was made approximately thirty
five minutes after she and her husband had departed from their home. The Court
also finds that had the closure been completed by 3:30 p.m., the decedent would
not have been able to gain access to the roadway and thus that the delay in
closing the roadway was a proximate cause of Mr. Hynes' demise.
The Court also finds, however, that claimant and decedent were contributorily
negligent. Claimant and the decedent were aware that a blizzard was in progress
on March 13, 1993 and that the roads were treacherous, given Mr. Hynes' earlier
incident during which he slid into a ditch. The Court doubts the necessity of
claimant's travel, given her testimony that she could take annual leave if she
did not attend work. The proof elicited at trial establishes that the Hynes'
were aware that Route 218 was subject to closure in bad weather, that other
routes to West Point were available, and that they could check to see if a
road-closure sign had been posted only four blocks from their home. The Court
finds that Mrs. Hynes' trial testimony that they drove into Town to determine if
road-closure sign had been posted is incredible, given her prior sworn testimony
on three occasions that they departed from their home and drove directly to the
base of the mountain. Finally, the Court finds that the couple should have
remained in their vehicle and immediately called for emergency assistance when
their vehicle became immobilized by a snow drift that reached the windows of
their pick-up truck. Based on the foregoing, the Court apportions liability 50%
to the State and 50% to the decedent.
All trial motions not heretofore decided are deemed denied. A trial on damages
will be scheduled forthwith.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.