New York State Court of Claims

New York State Court of Claims

HYNES v. THE STATE OF NEW YORK, #2000-017-006, Claim No. 88481


Synopsis


Claimant sought damages 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. The narrow issue of liability addressed in this Decision is whether, after the after the decision to close Route 218 was made, the State's response was so dilatory as to constitute negligence. The Court found that the State's response was dilatory and that the State was liable for the decedent's death. However, the Court also found that claimant and decedent were contributorily negligent and apportioned liability 50-50.

Case Information

UID:
2000-017-006
Claimant(s):
EDLYN R. HYNES, Individually and as Executrix of the Estate of JOHN G. HYNES, Deceased
Claimant short name:
HYNES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
88481
Motion number(s):

Cross-motion number(s):

Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
Finkelstein, Levine, Gittelsohn and PartnersBy: George M. Levy, Esq.
Defendant's attorney:
Hon. Eliot L. Spitzer
Attorney General of the State of New YorkBy: Grace Brannigan, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 15, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 (
see, 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 vehicles (
see, 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 black.

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 (
see, 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 same.

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 signs.

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 trapped.

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 basis.

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. 141).

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 incident.

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' vehicle pass.

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 closed.

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 (
see, 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" (id., 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.


June 15, 2000
White Plains, New York

HON. ANDREW P. O'ROURKE
Judge of the Court of Claims