New York State Court of Claims

New York State Court of Claims

ZWEIG v. THE STATE OF NEW YORK, #2001-010-073, Claim No. 98111


Synopsis


No liability found when rock from pot hole, flew up and hit claimant's windshield. No evidence establishing defendant was put on notice of the existence of the defect and that it was the proximate cause of claimant's accident.

Case Information

UID:
2001-010-073
Claimant(s):
KAREN ZWEIG
Claimant short name:
ZWEIG
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98111
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
GREENE & ZINNERBy: Steven C. Bagwin, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Michael Zeytoonian, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 11, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for the injuries she sustained on January 7, 1998 at approximately 5:15 p.m. as she drove her car southbound on Route 22 in Westchester County. A 15 pound rock, six to eight inches in diameter, crashed through claimant's windshield and struck her in the face. Claimant contends that the rock dislodged from a pothole and the rock was propelled at claimant's car. Accordingly, claimant alleges that defendant's negligent maintenance of the roadway was a proximate cause of her accident. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that on the date of the accident she had just left her children at her ex-husband's home in Armonk and was proceeding to her parents' home in Chappaqua. She had traveled this route once or twice a week for five to six years. In the area of the accident, Route 22 had two northbound and two southbound lanes. During the last week of December 1997, claimant had observed potholes in both southbound lanes of Route 22 between the intersections of Old Route 22 and Route 120. She described the road as rough with rocks around the median and the curb as split in a few places. Claimant, however, did not report her observations to the New York State Department of Transportation ("DOT") or anyone else.
Claimant testified that on January 7, 1998, she was traveling at a speed of 50 mph in the right lane of Route 22. After she passed the traffic light at Old Route 22, she observed a car in her rearview mirror at a distance of three to four car lengths. The car then moved to the left lane and passed claimant. Suddenly, the rock crashed through the driver's side of claimant's windshield and hit her in the face. The rock landed in her lap. Claimant steered to the right and stopped her car. Bleeding from the face, she walked along the road to seek assistance. Police Officer Regan Hufnagel was dispatched to the scene; he called an ambulance and claimant was transported to the hospital.
Claimant testified that, when the rock struck her car, she could see the Route 120 traffic signal ahead at a distance of seven to eight car lengths.[1] Significantly, the claim describes the accident location as "approximately four (4) miles north of Route 122 North" (Claim, ¶¶ 4, 6 ) and the Verified Bill of Particulars states that the accident occurred, "approximately four (4) miles north of Route 120" (Claimant's Response to Demand for Verified Bill of Particulars, ¶ 5).[2] Claimant never sought to amend either the claim or the bill of particulars. At trial, claimant was questioned about the discrepancies regarding the location of the accident. Claimant merely stated that she was not good at estimating distances and that she did not know the difference between seven or eight car lengths and four miles. She testified that the claim and the Bill of Particulars should have stated four tenths of a mile north of Route 120.
Town of North Castle Police Officer Regan Hufnagel, who responded to the scene, testified that he observed claimant's car parked on the shoulder, four to five tenths of a mile north of Route 120.
Claimant had blood on her face and clothing and appeared distraught. The rock was on the floor of claimant's car.
After
claimant was transported to the hospital, Hufnagel returned to the scene. He observed a pothole two to three feet in diameter with a one to three inch depth and some smaller potholes in the right lane, where claimant had traveled, approximately 200 feet north of where her car was parked. The rock and the road surface seemed to be composed of the same material so Hufnagel assumed that the rock came from the larger pothole. Hufnagel did not measure the pothole nor chemically test the rock.
Hufnagel testified that prior to claimant's accident, he had not observed the pothole in issue nor was he aware of any complaints about potholes or debris in that area. He further stated that if he had observed the pothole or the rock, he would have notified the DOT and, he would have picked up the rock and disposed of it.

Lieutenant Robert Lascari of the Town of New Castle Police Department testified that he responded to the scene and
observed some potholes in the southbound lane, four tenths of a mile north of Route 120. He described the largest pothole as one by two feet in diameter and four inches deep with small pieces of concrete in and around the hole. The largest piece was one by two inches.
Lascari had not received any complaints about potholes in that area during the week prior to claimant's accident. He further stated that there had not been any accidents in that vicinity during the month before claimant's accident. Lascari did not know how long the road had been cracked.

Frank Palmentiero, a Highway Maintenance Supervisor II for 23 years, who has been
employed by DOT for 35 years, testified on behalf of defendant. Palmentiero was responsible for the maintenance of 200 miles of roadway, including Route 22. Palmentiero did a drive-by inspection of these roads at least once a week. Additionally, two Highway Maintenance Supervisors and 16 workers did similar weekly inspections. Palmentiero stated that, if he or any DOT employees had observed any rock or debris in the roadway, they would have picked it up and placed it in their trucks. Palmentiero was not aware of any complaints about potholes or roadway debris prior to January 7, 1998, on the southbound side of Route 22 between the intersection of Old Route 22 and Route 120; nor was he aware of any accidents or any crews doing construction projects in that area at that time.
It is well established 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; McDevitt v State of New York, 1 NY2d 540). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on a State roadway does not render the State liable (see, Brooks v New York State Thruway Auth., 73 AD2d 767; affd 51 NY2d 892; Tomassi v Town of Union, 46 NY2d 91).
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, 1021-1022; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519). Liability will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (see, Brooks v New York State Thruway Auth., supra; Harris v Village of East Hills, 41 NY2d 446,450; Rinaldi v State of New York, 49 AD2d 361, 363). Proof of prior accidents at the same place under substantially similar circumstances, or the absence of prior accidents, may be offered on the issues of foreseeability of danger and notice (see,e.g., Brady v Manhattan R. Co., 127 NY 46; Lafflin v Buffalo & Southwestern R.R. Co., 106 NY 136; Goldstein v C.W. Post Center of Long Is. Univ., 122 AD2d 196; Hyde v County of Rensselaer, 73 AD2d 1021, affd 51 NY2d 927; 1 NY PJI 2d 2:12, 2:90). Additionally, "[p]hotographs may be used to prove constructive notice of an alleged defect shown in the photographs if they are taken reasonably close to the time of the accident and there is testimony that the condition at the time of the accident was substantially as shown in the photographs" (Ferlito v Great S. Bay Assocs., 140 AD2d 408, 408-09).
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).
This Court finds that, upon review of all the evidence, including listening to the witnesses testify and observing their demeanor, there is a lack of credible evidence that the alleged defect, which supposedly caused claimant's accident, existed for such a period of time that defendant either knew or should have known of it, and that such defect was a proximate cause of claimant's accident. Notably,
in addition to claimant's contradictory description of the accident location, there were no photographs of the alleged pothole from which the Court could infer from its appearance the duration of its existence (Ferlito v Great S. Bay Assocs., supra). Further, Town of North Castle Police Officer Hufnagel testified that he had not observed the pothole, nor was he aware of any complaints about potholes or debris in that area. Lieutenant Lascari of the Town of North Castle Police Department also testified that he had not received any complaints about potholes in that area during the week prior to claimant's accident, nor had there been any accidents in that area during the month before claimant's accident. Finally, the 23 year veteran Highway Maintenance Supervisor II, who has been employed by DOT for 35 years, was most credible in his testimony regarding his and his staff's roadway inspections and he maintained that there had been no complaints nor accidents in that area at the relevant time period. Thus, the weight of the credible evidence established that defendant did not have notice of the pothole (see, Ciccarella v Graf, 116 AD2d 615).
Accordingly,
claimant failed to establish that there was a significant roadway defect of which defendant had either actual or constructive notice. Therefore, there is no basis for finding defendant negligent.
Defendant's motion to dismiss, upon which decision was reserved, is now granted.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 98111.


October 11, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] Contrary to claimant's testimony, Town of North Castle Police Officer Regan Hufnagel stated that Route 22 curves left so that you cannot see the traffic signal at Route 120 from four tenths of a mile north of Route 120.
[2] The Bill of Particulars is signed by claimant.