New York State Court of Claims

New York State Court of Claims

CONIKER v. THE STATE OF NEW YORK, #2000-017-605, Claim No. 86901


Liability found for State's failure to remedy dangerous drainage condition on State highway.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Fuchsberg & Fuchsbergby: Bruce Goldstone, Esq. and Roger Lavinsky, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney Generalby: Michael Rosas, Esq. and John Healey, Esq.
Third-party defendant's attorney:

Signature date:
November 27, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for the serious injuries she suffered as a result of a two-car collision on Route 94 near its intersection with Station Road in Orange County on August 11, 1992. She alleges that the defendant was negligent in the design, construction and maintenance of the roadway and its associated drainage system, that the speed limit was excessive and that there was an absence of proper warning signs. A bifurcated trial was held and this decision relates solely to the issue of liability.

The following is a synopsis of the undisputed evidence elicited at the trial. On August 11, 1992, claimant, who was a sales merchandiser, which required her to traverse the area of Route 94 in question about once a week, was driving in the westbound lane of Route 94. She had left the parking lot of the Shoprite at Vails Gate and was driving in her Geo Metro. After crossing the bridge near the intersection of Route 94 and Station Road her car crossed into the eastbound lane and came into contact with a vehicle driven by Bennett Swain.

The parties stipulated that the claimant suffered from amnesia and therefore was unable to give testimony on her movements immediately prior to the accident. As a result of the claimant's disability, her attorney called witnesses to establish the facts surrounding the climate, road surface and general description of the area. The evidence was submitted in order to sustain claimant's burden of proof with respect to negligence and proximate cause (
see, Sawyer v Dreis & Krunp Mfg. Co. 67 NY 2d 328; Schechter v Klanfer 28 NY2d 228; Fasano v State of New York, 113 AD 2d 885).
Mr. Swain testified that he was traveling in the eastbound lane of Route 94 approaching the bridge near Route 94's intersection with Station Road. The weather was rainy and the roadway was wet (Vol I, p. 11). As he was nearing the bridge, a car in the westbound lane crossed into his lane of travel and collided with his vehicle.

Mr. Swain stated that he had lived in the area for approximately four years and had driven on Route 94 about twenty times per month. He testified that when he used the westbound lane of Route 94, he had seen grooves in the road, which filled with water when it rained (
id., p. 40), and that as a result he attempted to avoid these grooves, because they resulted in a slippery condition (id., p. 42). He avoided the grooves by moving his vehicle to the center of the road.
Claimant also called a number of witnesses who described similar problems while driving in the area of the bridge during wet conditions. Kelly Cronin testified that in 1991, her vehicle fishtailed and hydroplaned after crossing the bridge and that her car made contact with a guy wire affixed to a nearby telephone pole (
id., 66, 74). She stated that she had been traveling at about 45 miles per hour in moderate rain.
Shawn Johnsen, an assistant fleet mechanic for a local trucking company, testified that in June of 1992 he lost control of his vehicle when a car cut him off and he attempted to stop (
id., 107). It had been raining on the day of his accident and his vehicle hydroplaned when he applied his brakes ( id., 109). At the time he had been traveling at 55 miles per hour. After alighting from his vehicle he saw that puddles had formed in ruts within the roadway (id., 110).The hydroplaning he described occurred just after he had passed over the bridge (id., 124).
Tara Tiller testified that she was familiar with Route 94 at the intersection of Station Road, and had traveled over it many times. She indicated that on a prior occasion she had hydroplaned at the same area, but had not had an accident (
id., 146). She stated that she always went slowly in this area because the road was in bad condition and had poor drainage (id., 143).
Ms. Tiller, who at the time of the claimant's accident had been a resident of Orange County, had come upon the scene shortly after Ms. Coniker's accident. She testified that she got out of her car to see if she could render assistance, but when she saw the claimant in the roadway, she froze and instead helped Mr. Swain. She believed that the claimant was dead (
id., 139). On cross-examination, Ms. Tiller stated that she saw two-inch deep puddles in the ruts, an estimate that was based on where the water came up to on her shoes (id., 153).
Vanessa O'Gorman, who had lived in the area since 1985, testified that she had been involved in an accident in 1991 when, while driving eastbound on Route 94, the vehicle in front of her slowed to make a left turn onto Station Road, Ms. O'Gorman felt her vehicle hydroplane when she applied the brakes and it struck the vehicle in front of her. She stated that she got out of her car after the collision and noticed that the road surface was wet and that there were puddles in both the eastbound and westbound lanes.

Margaret Molloy, who had lived near the corner of Station Road and Route 94, testified that she always drove slowly in the area when it was raining because she had once hydroplaned on Route 94 while slowing to turn into her driveway and also because her husband, while walking on the bridge, had almost been hit by a hydroplaning vehicle. She stated that there were "travel grooves" caused by the road being worn by vehicles, extending far in both directions from her house, and that they were probably more than an inch deep in places (Vol XI, 1838).

Barbara Decker, the Town Clerk of Blooming Grove, testified that in 1984 the town board had requested that the State Department of Transportation ("D.O.T.") perform a speed study, in order to determine whether the 55 mile per hour posted speed was excessive (Vol II, 187). In 1992, D.O.T. indicated, in response to a second request from the town board, that a formal investigation would be undertaken (
id., 202). Mrs. Decker stated that the board's complaints had been about the speed limit, not about any "puddling" problem (id., 214).
Sean Giery, a former New York City police officer, who is presently a firefighter in that city as well as a registered nurse, testified that he had previously lived in the Town of Blooming Grove and that his father had been the chief of police there. At the time of the accident, Mr. Giery was driving in the eastbound lane of Route 94 (
id., 218). The road was wet and Mr. Giery stated that he was aware of the ruts in the westbound lane which had been there for a number of years (id., 221-222). He stated that these ruts were one to two inches deep and several car lengths long (id., 225) and that puddles formed in them when it rained (id., 224). Mr. Giery stated that he always attempted to avoid the ruts by riding on other areas of the road surface, in order to avoid hydroplaning (id., 256-257).
Claimant also called David Freund, a professor from Ramapo and a self-described "speed activist" for Route 94. Although he was aware of the ruts at the site of the accident, his concern was more with the excessive posted speed. As a result, his complaints to D.O.T. were aimed at getting the speed limit reduced (
id., 275). His concern with the speed limit arose initially after a car crashed into his house (id., p. 283).
William Bain, who was the resident engineer for the Orange East District of Orange County in 1992, testified that he was responsible for work done in the area prior to the accident. He stated that he was aware of the ruts at the accident site, but that he found them to be "minor" (Vol VII, 1171) and not a hazard (TR Vol II, p. 338). He acknowledged, however, that he never measured their depth (
id., 362). Mr. Bain testified that he did not fill minor ruts, because the material would not stay in them (id., 1171), although when questioned by claimant's attorney, he acknowledged that on June 4, 1991, he had noted in his diary that a rut, which he described as "minor," should be filled (id., 1168). Mr. Bain disagreed with other eyewitnesses who had described the ruts as one and one half inches to two inches deep (id., 1227), notwithstanding that he had never measured the depth of the ruts and only remembered viewing them from his moving car (id., 1200-1201). He explained that his estimate was based upon his experience, as opposed to the estimates of the other witnesses, who had actually stood in the ruts.
Peter Jankowski, an attorney who at the time of the accident had been a police lieutenant, arrived at the scene after the accident. Mr. Jankowski had lived in the area and had had an accident there in the mid-1980's (Vol IV, 542-547). He stated that his accident had been the result of hydroplaning caused by water accumulating in the ruts (
id., 549).
Glenn Snyder, a bridge inspector for the State, had inspected the bridge at the scene of the accident in 1989. His inspection revealed transverse cracks one to three inches wide, which he said could be a safety hazard (
id., 595-597). He also found settlement (id., 600-601) of one inch, which he noted could lead to the accumulation of water. When asked, he stated that the cracks were still there at the time of the accident, but he said the road was still functional.
Charles Vieni, a D.O.T. regional maintenance engineer testified that ruts could be a problem under certain conditions, mainly, when their depth was three to four inches (
id., 675-678). He acknowledged that many other factors could result in ruts being a problem, and that even a two-inch rut could be a problem (id., 692). He also stated that the only way to determine the accurate depth of a rut is to measure it (id., p. 699).
William Fitzpatrick, the Director of Traffic and Engineering and Safety for Region 8, was an assistant regional engineer at the time of the accident. He testified that although the Department had signs that cautioned that certain roads were slippery when wet, they were not needed at the accident site (TR Vol V, pp. 756-759). According to Mr. Fitzpatrick, the D.O.T. investigation that occurred after claimant's accident included checking the pavement surface, which was found to be "fine" (
id., 790). He opined that it generally required three-quarters of an inch of water in order to cause a car to hydroplane, but later he agreed that hydroplaning could take place in a depth of as little as one tenth of an inch. He also asserted that hydroplaning was a rare occurrence. Fitzpatrick's definition of a "rut" was a depression at least three eighths of an inch in depth.
Randy Harwood, a civil engineer with the D.O.T., conducted a number of speed studies in the area, resulting from letters and complaints D.O.T. had received from local residents and a state senator. He testified that about ten times a year he would go out and conduct such studies. In 1991, after a study that included a radar test, it was concluded that the speed limit should remain at 55 miles per hour (Vol X
, 1684), however a subsequent study in May of 1992, resulted in the recommendation that the speed limit be reduced to 50 m.p.h. (Vol XI, 1731-1733). No radar check was performed in connection with the 1992 study. Harwood's testimony was generally confusing and unimpressive in relation to what factors were or were not taken into account in making speed limit decisions, particularly his indication that ruts in the pavement, drainage and banking were not taken into consideration. It was nevertheless clear that the continual letters from citizens as well as elected officials complaining about the safety of the road, and particularly the speed limit, played a large part in the decision to reduce the speed limit.
James Spratt, a professional engineer, testified as an expert for the claimant. He was retained in 1998 and subsequently examined the accident report, photographs of the road, the road history and construction plans and deposition transcripts. He advised that the highway had been constructed in 1936 of concrete over rock and dirt fill, and that in 1972 a five-inch layer of asphalt blacktop was placed over the concrete. Spratt advised that ruts are longitudinal depressions in a highway surface caused by the continual pressure from the tires of vehicles, and that the constitution of the road's sub-surface can contribute to ruts being deeper than they would otherwise be. Based on examination of photographs, Spratt opined that the ruts in question on Route 94 constituted a dangerous condition (Vol VIII, 1327).

Other problems with the road, according to Spratt, were that the crown in the center was not as high as it should have been, creating difficulty in drainage, and that the super-elevation of the curve in the road approaching Station Road was at least five inches less than it should have been, given the degree of curvature and the 55 m.p.h. speed limit. He noted that the 1972 plans called for a flattening and lengthening of the curve, which would have lessened the required super-elevation, but that this was not carried out in the field and was crossed off the plans. With the curve radius and the super-elevation of the curve, Mr. Spratt's opinion was that the speed limit should have been 30 m.p.h., although on cross-examination he acknowledged that speed limits are set based on optimal driving conditions, not based on rainy weather and a wet pavement surface.

Mr. Spratt testified that the drainage and super-elevation problems acted to exacerbate the problem created by the ruts because both factors had the effect of preventing water from draining as fast as it should. Thus, a two-inch rut on a highway with proper drainage and proper super-elevation creates less of a problem than a two-inch rut on a highway with inadequate drainage and super-elevation. He also noted that a transverse crack in the highway further contributed to the problem because vehicles would bump into the air when passing over the crack, thus increasing the likelihood that hydroplaning, which results from a layer of water between the tires and the road surface, would occur.

Mr. Spratt advised that a "shim" coat could have been used as a temporary means of filling ruts that were greater than one-quarter of an inch in depth. He also noted that a "Slippery When Wet" sign would have been another way of addressing the problem with Route 94..

Mr. Spratt stated that he was unable to determine the depth of the ruts, but that since they held water, they had to be at least one half inch deep. He also testified that the claimant's car, which was small and light, had exacerbated the problem of hydroplaning, because it produced less contact with the road surface.

James Mearns, a former D.O.T. employee, testified that Route 94 had been widened in 1972, but that a planned extension of the curve radius from 1146 feet to 1663 feet was never built (Vol IX, 1531-1556).

Dr. James Pugh, a consulting engineer and an expert in the area of accident reconstruction, also testified as an expert for the claimant. His opinion was that the claimant had been traveling at between 44 and 46 miles per hour (with a plus or minus four margin of error) when she came off the bridge and between 50 and 52 m.p.h. when she began hydroplaning and lost control due to her vehicle's right side wheels riding in standing water. His conclusion as to speed was based upon a crush calculation, essentially based upon the damage to the two vehicles and their respective locations following the collision. Dr. Pugh described his conclusion that claimant's vehicle had hydroplaned as having been made with "a very high degree of certainty (Vol X, 1631). He stated that he had ruled out human error – improper steering or the like – as part of the cause of the accident because in such cases the "yaw" or spin of the car was not as developed (
id., 1589-1600). He noted, however, that inattentiveness as a possible cause could not be ruled out.
Dr. Pugh also asserted that the cracks in the roadway, rutting and improper banking (based on Mr. Spratt's conclusions) all acted as contributory factors – "you add them all up, and you've got a big problem here" (
id., 1619). He testified that speed did not appear to be a problem, since Mr. Swain testified that the claimant had been traveling at a normal speed. He stated that he knew of no mechanical problems with the Geo Metro vehicle. Finally, he discounted the lack of "spraying" by the claimant's vehicle, that Mr. Swain said he hadn't seen, because he said the right wheels of the claimant's car were hydroplaning, and that the driver of an oncoming vehicle would have his vision obscured by the claimant's car (id., 1633).
Nicholas Pucino, a licensed professional engineer with 30+ years of experience with the D.O.T., testified as an expert witness for the defendant. Mr. Pucino was retained by the State in November, 1998, and he subsequently visited the accident scene on approximately four occasions. He testified, based on both analysis of the standards set forth in the Manual of Uniform Traffic Control Devices and ball bank testing that he performed, that the speed limit of 55 m.p.h. at the accident location was appropriate. He opined that the banking, specifically the lack of super-elevation, on the highway was not deficient, although he did state that if the whole road were being rebuilt from scratch, some super-elevation would probably be added, based on standards for new consrtuction that had evolved since Route 94 was constructed.

Looking at the series of photographs taken immediately after the subject accident (Exhibits 54A through 54MM), Mr. Pucino testified that there was "no way" that the depressions in the roadway depicted thereon could have resulted in water with a depth of two inches (Vol XII, 2001). He then testified, with respect to three specific photographs, that the ruts had to have been less than one inch, because that was the depth of the top course of the pavement, and if the ruts approached the layer below the top course, it would have been visible. Based upon his analysis of the photographic evidence, Mr. Pucino concluded that the depressions in the roadway were indicative of "pretty normal type of wear and rutting," would not cause any problems for vehicles, even in wet conditions, and were not a dangerous condition (
id., 2057). His opinion was that the conditions on the subject area of Route 94 were "pretty much the norm on many, many roadways as they start to reach the end of their paving life" (id.) He advised that he would not define a depression as a "rut" unless it was at least one-half inch deep, and he testified that while the depressions in the westbound roadway at the accident location might well have met that definition, the depressions on the bridge were not quite that deep. He indicated that the ruts in the westbound lanes were deeper than those in the eastbound lanes, as the result of some longitudinal patching that had been done in the eastbound lanes.
Mr. Pucino's opinion was that a "Slippery When Wet" sign was not needed, notwithstanding his agreement with the statement that this area of the road was in fact "slippery when wet" (Vol XIII,
2161). He advised that such a sign was appropriate only where the pavement was "extraordinarily slippery" (id., 2294).
Finally, he stated that all of the witnesses who stated they had "hydroplaned" were wrong and that he was better able to make such a determination (
id., 2177-2178), notwithstanding the obvious fact that he had not been there when their mishaps occurred.
The State also called two police officers who had responded to the scene. Nicholas Solfaro indicated that his main concerns were to provide first aid to the claimant and to preserve the scene for the accident investigator, whom he knew was on the way, and had not taken notice of the puddles in the westbound lane until after the photographs were taken(Vol XIV, 2362-2379), but he acknowledged that he later saw them when the photographer arrived. Sergeant Alfred Smith, a photographer and an accident investigator, stated that the road was slippery and wet. He opined that the slipperiness was due to oil from the blacktop which comes out after a hot day, and claimed that he did not notice "any substantial puddles or anything like that" (
id., 2389). He also asserted that he was not aware of any problem arising from excessive water on the pavement during his 19-year tenure with the police department. Sergeant Smith was shown one of the photographs taken at the accident scene (Exhibit 54LL) and when asked if he saw standing water on the road, he answered "I see some wetness in here. It's not substantial" (Vol XIV, 2398-2399). As this photograph clearly shows the parallel ruts in the tire tracks of the westbound roadway filled with water, with more extensive puddles where the ruts intersect with crosswise cracks in the pavement, the Sergeant's credibility on this issue was substantially impaired by his answer. Similarly, his testimony that he did not notice any ruts was belied by the very photographs that he took (e.g., Exhibits 54 B, J, Q, R, S, X, DD, LL).
The State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (
see, Gomez v New York State Thruway Auth, 73 NY2d 724; Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). However, the mere happening of an accident does not render a defendant liable for negligence (see, Tomassi v Town of Union, 46 NY2d 91). The claimant must prove negligence on the part of a defendant and that the negligence was a substantial factor in producing the accident (Bernstein v City of New York, 69 NY2d 1020). Similarly, the claimant must also establish that a defendant had actual or constructive notice of the dangerous condition and failed to give a proper warning or take corrective measures (see, Rinaldi v State of New York, 49 AD2d 361).
The court finds that the claimant has met her burden of proof in all repsects. After reviewing the photographs as well as documentary evidence and having heard and reviewed the testimony of the witnesses, the Court finds that the credible evidence indicates that the road surface in question contained dangerous ruts, which when filled with rainwater could, and did, result in drivers losing control of their vehicles, and that such was the cause of the subject collision. The Court also finds that the dangerous condition was exacerbated by the less than adequate drainage existing in the area, resulting from the relative flatness of the road surface as testified to by Mr. Spratt, as well as by the speed limit of 55 miles per hour in this two or three mile stretch of highway, which was preceded and succeeded by limits of 40 miles per hour. Moreover, these conditions were known to the State and had existed for a number of years prior to the claimant's accident. The Court accepts the testimony of the eyewitnesses who had been at the accident scene as to the existence of ruts and, generally, as to their depth. The various testimonial disagreements as to whether the ruts were two inches deep, one inch deep, one half inch, or whatever, on various portions of the road and bridge surface traversed by claimant just before she lost control have no effect on the court's conclusion that the ruts created an unreasonably dangerous condition. The court rejects the opinions of the State's engineer that (1) the ruts were not a hazard and (2) that temporary filling was not possible, opinions that the court finds were not grounded in facts but were based upon estimates, without accurate measurement. The record indicates that the "shim coat" method of addressing the problem caused by the ruts would have been an appropriate and warranted way to proceed, albeit a temporary solution pending a repaving of the highway.

With respect to the speed limit, while testing in dry weather may well have indicated that a 55 m.p.h. speed was not inappropriate given the geometrics of the roadway, this testing did not take into account the problems that would result in wet weather from the ruts in the pavement, the less than adequate drainage, the settling of the pavement on the bridge and the transverse cracks in the road surface. It appears that the question of the speed limit was viewed in a vacuum, without appropriate consideration of all of the extant circumstances.

And finally, even given the 55 m.p.h. speed limit, and given the sorry state of the pavement – even the State's expert indicated that the road surface in this area was at the end of its useful life – the simple task of placing a "Slippery When Wet" sign, a sign intended to be used "where there is evidence of unusual wet pavement skidding" (17 NYCRR § 234.7[a][ii]), could and should have been employed to reduce the problem and increase safety, perhaps on a temporary basis until the repaving and the speed limit reduction, both of which were in at least the planning stages at the time of claimant's accident, could have been completed. The record of this trial indicates that even a slight reduction in claimant's speed might well have meant that the accident would not have happened.

The Court has placed a greater emphasis on the testimony of the people who had actually been at the scene of the accident, either on the date of claimant's accident or at some prior point in time when they had their own mishaps. Such testimony was at least as valuable as the expert testimony. In addition, the State employees' testimony often seemed evasive and obfuscatory. In fact, the court must note that the defendant exhibited a pattern, throughout the preparation of this claim, of an unwarranted failure to disclose available and known documents duly requested by claimant. These failures on the part of the Department of Transportation were blatant and inexcusable but in no way were they attributable to the attorneys representing the defendant, who were often as surprised as the court at the last-minute appearance of requested and relevant documentation during the course of the trial.

On the issue of culpable conduct, the Court finds that the State has failed to sustain its burden of proof. The testimony of Mr. Swain indicated that the claimant's car was traveling at normal speed prior to the accident (Vol I, 12-20). Officer Solfaro also indicated that his examination of the tires of the vehicle revealed no problem. The claimant's undisputed amnesia and the complete absence of any evidence or testimony that claimant's vehicle was being operated at an excessive speed or in an otherwise negligent manner require the conclusion that the claimant was operating her vehicle reasonably and safely. Accordingly, the Court finds no culpable conduct on the part of the claimant and finds the defendant 100 percent liable.

All motions not heretofore ruled upon are deemed denied.

Upon a filing of this decision and completion of disclosure relating to damages, the Court will set this matter down for a trial on the issue of damages, as soon as practicable.


November 27, 2000
White Plains, New York

Judge of the Court of Claims