New York State Court of Claims

New York State Court of Claims

ROCHE v. THE STATE OF NEW YORK, #2001-005-007, Claim No. 85963


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:
Eugene C. Tenney, Esq.By: Laura C. Doolittle, Esq., Of Counsel
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Reynolds E. Hahn, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 29, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Robert E. Roche[1]
was injured in a two vehicle accident on November 11, 1991, near the intersection of State Route 5 and Lowery Road in the Town of Caledonia, County of Livingston and State of New York. Route 5 is a two lane highway which runs in a generally east - west direction and is classified as a Class C highway. Claimant alleges that the Defendant was negligent in failing to properly maintain Route 5 in a safe condition by the use of proper equipment and procedures to clear the roadway of snow and ice. This trial was bifurcated and this decision addresses the issues of liability only.
On November 11, 1991, Claimant was operating an Econoline van as he performed his duties in making pickups and deliveries for Biel's Microfilm Corp. He was driving the van in a westerly direction on Route 5 in the Town of Caledonia approximately 100 feet west of its intersection with Lowery Road when, at approximately 1:32 p.m., he was struck by a 1989 Oldsmobile operated by one George Nemoto, heading in an easterly direction. The Nemoto vehicle had entered the west bound lane of Route 5 and collided head-on with the van.

Nemoto stated that, after he left Batavia on Route 5 traveling in an easterly direction, it started to snow, and that he had his headlights on with the windshield wipers operating. He was driving his vehicle at or under 50 miles per hour when he felt his car start to skid. He then lost control and entered the westbound traffic lane, whereupon he struck the Claimant's van, headed in the opposite direction. He stated that "It had started snowing just a little bit. I mean road conditions were wet." He did not observe any ice on the road and was able to see black pavement and roadway markings. He did not see any snow plows between Batavia and the accident location. There were a number of weather related accidents that day,[2]
but none in the Town of Caledonia, until this accident. Investigator Ellis, a deputy on road patrol for the Livingston County Sheriff's Department at the time of the accident, found the conditions to be terrible and very slippery in the area of the accident. He further noted that he thought it was snowing when he arrived at the scene.
The Defendant State of New York had entered into an "Agreement To Extend Municipal Snow and Ice Control Agreement" with the County of Livingston which then entered into an assignment of its obligations (in essence a subcontract) with the Town of Caledonia.[3]
The Town of Caledonia provided ice and snow control procedures under its "Operational Plan Municipal Snow and Ice Agreement, Town of Caledonia, 1991."[4]
The Town of Caledonia divided its responsibilities under its agreement into two zones, designated as ‘Beat One' and ‘Beat Two' with each ‘beat' or zone to be completed in a specified manner. The jurisdiction for ice and snow control on Route 5 at the location of this accident was Beat Two. For the day of the accident, the following table reflects relevant snow and ice control activities:
November 11, 1991
6 a.m. - 7 a.m. SNYDER PATROL
8 a.m. - 9 a.m. SNYDER PATROL
9 a.m. - 10 a.m. CHAPMAN SALT / SAND [5]

10 a.m. -11 a.m. CHAPMAN PLOW
11 a.m. - 12 noon CHAPMAN PLOW
12:30 p.m. - 1:30 p.m. SNYDER PATROL
1 p.m. - 2 p.m. CHAPMAN PLOW
2 p.m. - 3 p.m. CHAPMAN PLOW
4 p.m. - 5 p.m. CHAPMAN PLOW
5 p.m. - 6 p.m. CHAPMAN PLOW
5 p.m. - 6 p.m. SNYDER PATROL
6 p.m. - 7 p.m. CHAPMAN SALT / SAND 10 TONS
At 5:00 a.m. that morning, Snyder (then the Superintendent of the Town of Caledonia Highway Department) noted that the weather conditions were: "36 degrees, roads ok, rain and sleet." On the 8:00 a.m. patrol, he noted: "32 degrees, snow and sleet." At 12:30 p.m., he noted "31 degrees, 1" snow."[6]
Claimant alleges that the negligence of the Defendant consisted,
inter alia, of the actions of Chapman[7] in having first applied a salt/sand run over the roads between 9:00 a.m. and 10:00 a.m. Thereafter, between 10:00 a.m. and 12:00 noon, Chapman, acting as an agent of the State and purportedly with knowledge of a dangerous condition, "turned around and immediately began plowing off the very sand [he] had applied to remedy the dangerous condition," using the very same equipment. Claimant also contends that the sanding and plowing were not promptly commenced in light of the storm conditions then prevailing and that the plowing and salt/sand application should have been performed simultaneously rather then separately. Claimant concedes that there was adequate manpower and equipment but alleges that there was poor utilization of the available resources.
I find that the Defendant acted responsibly, reasonably and without liability. This claim provides a representative example of a "storm in progress," for which the Defendant cannot be held answerable in damages. My review starts with well-known black letter law that the State has a non-delegable duty to maintain its highways in a reasonably-safe condition. It is similarly beyond debate that the State of New York is not an insurer of the safety of its highways under all conditions, but must exercise reasonable care and diligence in their maintenance, and is liable, after notice, for a failure to do so (
Rinaldi v State of New York, 49 AD2d 361). The Defendant's arguments mirror my findings in a somewhat similar, albeit unpublished, claim decided a few years ago, Basinait v State of New York, Claim No. 79164, filed on September 30, 1996. It bears reiterating that road conditions, affected by snow and ice, like the one in question, will occur in upstate climes during the winter season, even in November before the official start of winter. Merely because a State highway is icy, and vehicles skid thereon, does not establish negligence (Valentino v State of New York, 62 AD2d 1086, 1087, appeal dismissed 46 NY2d 1072; Quigley v State of New York, 281 App Div 185, affd 308 NY 846).
The amount and degree of snow falling was contested during trial. Nemoto, while stating that his vehicle slipped on ice, also testified that he did not see any ice and that the roadway was wet. Claimant would have me find that part of his testimony to be incredible and characterizes it as defying logic. It seems incongruous to discount that testimony since it appears to be detrimental to the interests of Nemoto. That testimony accentuates his personal liability while diminishing that of a putative co-tortfeasor, the State of New York. Indeed, to the contrary, Nemoto's testimony appears more worthy of credibility as it further implicates and isolates his own negligence.

Investigator Ellis also testified that he believed that it was snowing when he arrived at the scene of the accident, perhaps one hour after the accident. Ellis also took photographs at the accident scene, which the Defendant believes were taken between one to two hours after the accident, but, in any event, were at least one hour after the accident. Those photographs were admitted into evidence, and of particular interest to me were Exhibits 44 and 45 of Claimant's van, and Exhibits 47, 48, 52 and 53 of the Nemoto vehicle, inasmuch as they reveal a modest accumulation of snow on the vehicles, at least one hour after the accident. In that regard I looked at the roof of the Nemoto vehicle, with a thin layer of snow, and its trunk, which had some minimal accumulation, and the hoods of both vehicles, which, despite allowing for ambient heat resulting from their operation prior to the accident that would have melted some of the falling snow, still had modest accumulations on the hoods. I did not examine those photographs for road conditions, because of the lapse of time since the accident, and intervening plowing (see the Beat Two table above), but solely to observe snow accumulation.

What becomes clear to me is that snow was falling during the interim period between the accident and the taking of the photographs. Thus it can be said, without fear of contradiction, that this was a storm in progress. The storm in progress doctrine affords a reasonable time after the cessation of the storm to take corrective actions (
LaDue v G & A Group, 241 AD2d 791; Freund v State of New York, 137 AD2d 908, lv denied, 72 NY2d 802). "It is well settled that ‘"[Responsibility] for ice conditions arises, at the most, only after the lapse of a reasonable time for taking protective measures and never while a storm is in progress"' (Valentine v City of New York, 86 AD2d 381, 384, affd 57 NY2d 932, quoting Valentine v State of New York, 197 Misc 972, 975, affd 277 App Div 1069, lv denied 302 NY 952)" (Rothrock v Cottom, 115 AD2d 242, lv denied 68 NY2d 601).
Of course, if the Defendant is aware of a dangerous condition, then it must act in a diligent manner. Here there is a paucity of evidence that a dangerous condition existed, let alone that the Defendant (or its agents) were on notice thereof. At the least, there was undisputed testimony that this was the first accident in Caledonia during the storm. As the Beat Two Table above reflects, it is not a question of whether the State did nothing, but whether the responses were adequate and sufficient. Total vigilance over all its roadways during the winter period is not expected, but the State must exercise reasonable diligence in road maintenance (
Tromblee v State of New York, 52 AD2d 666). It is clear to me that this standard was met.
When the State is accused of failing to timely respond to weather conditions, in some respects, the burden shifts, and the State must demonstrate that it was reasonably responsive to the demands of the weather. Here, a storm was ongoing, and the State has presented evidence that it responded by providing the sanding and plowing noted above. Claimant argues that by taking the initial step of sanding the road at about 9:00 a.m. that day, the State, through its agent, impliedly acknowledged the existence or notice of a dangerous condition, thereby imposing the duty. I specifically decline the invitation to impose such a duty. If I did so, the State could simply decline to do anything until all storms totally abated, for fear that merely starting snow and ice sanding, salting or plowing provides the trigger of actual notice of a dangerous condition. This would have a chilling effect on any and all snow and ice control procedures.

Claimant also suggests that since the purported dangerous condition existed since 9:00 a.m. and since the accident occurred at 1:32 p.m., the passage of time alone implicates the State's liability, citing
Citta v State of New York, 35 AD2d 288, which held that a 2½ to 4 hour delay in sanding following notice of an icy condition constituted negligence (accord, Slaughter v State of New York, 238 AD2d 770, addressing a three hour and ten minute delay). There are telling distinctions between the claim at bar and the cited matters. First, unlike Citta, supra, where there was actual notice of a dangerous condition in the form of a telephone call from a State Trooper, and Slaughter, supra, where the testimony of a State employee that the roadway was okay following his patrol was contradicted by three disinterested witnesses, here there is a question of whether a dangerous condition existed. This question is buttressed by the absence of any prior accidents in Caledonia that day, and my rejection of the invitation to infer notice at 9:00 a.m., when the sanding commenced on Beat Two. The conflicting testimony of Nemoto and Ellis regarding road conditions, albeit at the time of the accident and perhaps one hour thereafter, fails to provide the clarity of notice found in Citta and Slaughter. Even if I were to have found such notice, the time periods are not comparable. Sand was spread between 9:00 a.m. and 10:00 a.m., followed by a plowing run that ran from 10:00 a.m. to 12 noon, with the accident occurring at about 1:30 p.m. This also ignores testimony that after another patrol at 12:30 p.m., another plowing run was ordered and was about to commence at the time of the accident.
I also find that the decision to separately salt/sand and then plow was reasonable given the prevailing weather conditions for this Class C road. Claimant focuses upon the separate sanding and plowing runs utilized at that time, rather than the simultaneous plowing and sanding that was thereafter utilized to make better use of the equipment. Claimant also challenges the westbound plowing immediately after the eastbound sanding, described by Chapman as "slopping it off." To demonstrate the unreasonableness of the sanding and plowing operations, Claimant relies upon the Highway Maintenance Quality Guidelines promulgated by the Defendant's Department of Transportation (Exhibit 62), urging that the State, through its agents, failed to follow its own guidelines.

But these are merely guidelines and not mandates, and, most significantly, fail to account for the basic premise that this was a storm in progress. In the absence of notice of a dangerous condition, the Defendant is entitled to exercise its reasoned discretion to cope with the ongoing effects of a storm, and must be given a reasonable period of time after its abatement to clear the roads. To that extent, while it is not necessary to reach the issue of immunities to which the State is entitled (
Weiss v Fote, 7 NY2d 579) for highway maintenance guidelines as addressed to snow and ice control matters, I would find it to be a proper defense in these conditions.
Without any evidence that a dangerous condition existed and the Defendant was on notice thereof, the "storm in progress" principles apply. Accordingly, the claim must be, and hereby is, dismissed. The Court has reviewed the parties' proposed Finding of Fact and Conclusions of Law and has incorporated into this decision those Finding of Fact and Conclusions of Law it deems essential for this decision in compliance with CPLR 4213(b). All motions heretofore not ruled upon are now denied. Let judgment be entered accordingly.

October 29, 2001
Rochester, New York

Judge of the Court of Claims

[1] The claim of Gladys M. Roche is a derivative action alleging the loss of services, society and consortium due to the injuries of her spouse Robert E. Roche. Unless otherwise specified, use of the word Claimant in this decision refers solely to Claimant Robert E. Roche.
[2] Exhibit 60.
[3] Exhibit 54.
[4] Exhibit 55.
[5] Testimony at trial established that it took one hour to salt/sand and two hours to plow the route in question. For ease of reference, use of the term sand hereinafter shall refer to the actual salt/sand mixture used on the road surface. The formulation of the salt/sand mixture utilized is not at issue.
[6] Exhibits 56 and 57.
[7] Chapman was the Superintendent of the Town of Caledonia Highway Department at the time of trial, but was the operator of the snowplow vehicle on the day of the accident.