New York State Court of Claims

New York State Court of Claims

FILION v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY, #2001-010-036, Claim No. 86486


Synopsis


Metal, allegedly form a State vehicle, crashed through a car, injuring claimant. The evidence did not establish that the metal came from defendant's vehicle. Claim dismissed.

Case Information

UID:
2001-010-036
Claimant(s):
FRANCISCA ANNERY FILION, as Mother and Natural Guardian of ESSTEICY FILION, and FRANCISCA ANNERY FILION, Individually
Claimant short name:
FILION
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
86486
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
SONIN & GENISBy: Robert Genis, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 3, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 (T:56).[1]
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. A).[2]
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 I-95.[3]
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 148.
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 (
see, Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 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 51 NY2d 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.

July 3, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] References to the trial transcript are preceded by the letter "T."
[2]Defendants offered Ortiz's accident report as a prior inconsistent statement of Camilo because the report stated that Camilo was in the westbound, right lane when, "[a]n unknown vehicle traveling E/B [eastbound] on I-95 kicks up a 1 foot long metal beam which goes through the windshield" of Camilo's car (Ex. A). While the report was received into evidence, the Court did not accord it any weight because, inter alia, the statement was not a quote attributed to Camilo and Ortiz had no independent recollection of who had made what statements to him. Rather, Ortiz maintained that Camilo had to be the source of the statement because it was Ortiz's practice to include only statements of drivers, and not witnesses, and Camilo was the only listed driver. The Court finds that Ortiz's testimony was vague and insufficient to permit the accident report to be accepted as a prior inconsistent statement of Camilo.
[3]Thomsen left State employment in 1994 and remained in Utah until he returned to New York in 1998.