Francisca Annery Filion (hereinafter claimant) and her young daughter Essteicy
were passengers in a car driven by Jose Camilo on the morning of September 20,
1992 when, as Camilo drove westbound on Interstate 95 ("I-95") in Mamaroneck, a
piece of metal, approximately two feet long, crashed through the windshield and
struck claimant in the face. Claimant and Camilo testified that they observed
the metal object fall from New York State Thruway Authority ("Thruway
Authority") dump truck 148, that was part of a five truck caravan traveling in
the westbound center lane. Defendants maintain that the object did not come
from their truck and presented the testimony of the driver of the Thruway
Authority truck that was following behind truck 148, who stated that he observed
the metal object propelled from the other side of the highway. Claimant seeks
damages for the injuries sustained.
The trial of this claim was bifurcated and this Decision pertains solely to the
issue of liability. Resolution of the issue of liability rests principally upon
the Court's credibility determinations.
Jose Camilo testified that at approximately 9:00 a.m. he was driving westbound
in the right lane of I-95 with claimant seated next to him and her daughter in
the back seat. There were five Thruway Authority trucks in the center lane.
Camilo passed the last truck in the line and noticed that the penultimate truck,
truck 148, did not have a covered load and was filled with a mound of metal and
wood that reached approximately two feet above the sides of the dump truck
According to Camilo, as he tried to pass truck 148, a metal object from the top
of the mound fell and crashed through Camilo's windshield, striking claimant in
the face (T:50-51). Camilo described the object as: "a piece of spring, one of
those that the trucks use on the suspension system, more or less. It was two
feet in length" (T:44). Camilo testified that the driver of the last truck
honked his horn and, "[i]t seems that he saw everything" (T:19). The two trucks
and Camilo pulled over to the side of the road. Camilo told a responding police
officer what he had witnessed. New York State Trooper Jorge Ortiz arrived at
the scene and prepared an accident report (Ex.
Claimant testified that she and Camilo have been friends for 25 years and, on
September 20, 1992, they were traveling from Massachusetts to New York.
Claimant testified that they had nearly passed the last Thruway Authority truck
in the line and were about to pass truck 148 when claimant noticed a piece of
metal among the visible wood, iron and cement-like debris loaded in truck 148.
Claimant stated that there was a piece of metal that looked as if it might fall
from the top of a mound of debris and, within seconds, the object came crashing
through the windshield and hit claimant in her face
Jack Schroeder, a Thruway Authority mechanic for 25 years, testified that on
the afternoon of September 20, 1992, he inspected truck 148 and found all of the
springs to be in working order and that none of them were missing.
Keith Thomsen, a New York State Thruway Authority equipment operator from 1989
to June 1994, testified that on September 20, 1992, he was part of a crew
assigned to clean the center median on
Prior to leaving the Thruway Authority yard, Thomsen's dump truck and truck 148
were each filled with one ton of gravel. Thomsen testified that, because he had
been a safety inspector, it was his practice to inspect the load of his truck
and the truck that he would be following. This was his personal practice rather
than a departmental practice. Thomsen testified that, because the gravel was at
a lower height than the sides of the dump truck, he had to physically climb onto
the dump trucks to confirm that the gravel was in place. In truck 148, Thomsen
observed a two foot mound of gravel that sloped downward to a height of one
inch. He maintained that there was nothing except gravel in truck
Thomsen's truck followed directly behind truck 148 in a five truck caravan.
After traveling approximately two miles, Thomsen noticed Camilo's car to the
right of truck 148. At that time, to Thomsen's amazement, he observed a piece
of metal moving in the air, from the eastbound lanes of traffic, over the
guiderail, across the left lane, and over the center lane, before disappearing
from sight. He noticed Camilo's car slow down and move to the right. Thomsen
pulled over to the shoulder, called the Thruway Authority and waited for a State
trooper to arrive.
Thomsen specifically recalled the incident in detail because of its unusual
nature. On cross-examination, Thomsen conceded that the dump truck's load was
not covered as required by the New York State Commercial Drivers' Manual;
however he maintained that it was common to forego the cover when, as here, the
load was below the height of the dump truck's side walls.
It is well settled that the State has a nondelegable duty to adequately
design, construct and maintain its roadways in a reasonably safe condition
, Friedman v State of New York
, 67 NY2d 271; Weiss v
, 7 NY2d 579, 584). The State, however, is not an insurer of the safety
of its roadways and the mere happening of an accident on the roadway does not
render the State liable (see
, Tomassi v Town of Union
, 46 NY2d 91;
Brooks v New York State Thruway Auth.
, 73 AD2d 767, affd
892). Claimant has the burden of establishing that the State was negligent and
that such negligence was a proximate cause of the accident (see
Bernstein v City of New York
, 69 NY2d 1020, 1021-22; Marchetto v State
of New York
, 179 AD2d 947; Demesmin v Town of Islip
, 147 AD2d 519).
Moreover, "[w]here the facts proven show that there are several possible causes
of an injury, for one or more of which the defendant was not responsible, and it
is just as reasonable and probable that the injury was the result of one cause
as the other, plaintiff cannot have a recovery, since he has failed to prove
that the negligence of the defendant caused the injury" (Ingersoll v Liberty
Bank of Buffalo
, 278 NY 1, 7).
Upon listening to the witnesses testify and observing their demeanor as they
did so, the Court finds a lack of credible evidence that the piece of metal came
from defendants' dump truck. Rather, the Court finds that the testimony of
Thomsen was most credible. Thomsen, who is no longer a State employee, was
candid and forthright. He admitted that the required cover was not in place and
that it was his personal practice, due to his prior position as a safety
inspector, to visibly check the load of his truck and the one he was following,
i.e., truck 148. The Court credits his testimony that truck 148 was loaded with
a two foot mound of only gravel. Most significantly, the Court found Thomsen's
testimony, as to the details of his specific recollection of a piece of metal
that he observed travel through the air from the eastbound lanes, over the
guiderail and into Camilo's lane of traffic, to be believable and true.
Accordingly, claimant has failed to establish that any negligence attributable
to the State was a cause of the accident.
Accordingly, defendants' motion to dismiss the claim upon which Decision was
reserved, is hereby GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.