Claimant seeks damages for injuries he allegedly sustained on November 8, 1997
at approximately 11:25 a.m., when he was driving southbound on the Sprain Brook
Parkway ("Sprain") in Westchester County. Claimant lost control of his vehicle,
went off the roadway and hit a tree. Claimant contends that defendant
negligently maintained a cable guiderail, which was down and should have
prevented him from entering the embankment. The trial of this claim was
bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that on November 8, 1997 it was raining lightly and the road
was wet. Claimant was very familiar with the Sprain because he used it daily to
commute to work. The speed limit was 55 mph and claimant testified that he
proceeded in the center lane at a speed of 40 to 45 mph. Approximately one half
mile north of Jackson Avenue, another vehicle passed claimant on the right.
Claimant applied his brakes and his car veered to the left. Claimant lost
control of his car and it went off the roadway and down the embankment before
hitting a tree.
The accident report dated December 3, 1997 and signed by
claimant, stated, "I *** hit the side rail, I went through the guard rail, down
the hill and into a tree" (Ex. B). At trial, claimant acknowledged his
signature on the report; however he stated that he had not reviewed the report
before signing it. He further testified that he did not recall hitting
anything. This is consistent with claimant's examination before trial testimony
that he could not tell whether there was cabling at the accident site or whether
it was up or down and he did not recall striking a guiderail. However, it is
not consistent with claimant's trial testimony identifying exhibit 2, a
photograph taken two weeks after the accident, as an accurate depiction of the
scene of the accident (Ex. 2).
showed a cable guiderail laying partially on the ground. Subsequently at trial
claimant was asked whether the guiderail was up or down at the time of the
accident and he replied, "I don't know."
New York State Trooper Rene Cardona, a 15 year veteran of the force, responded
to claimant's accident. Cardona testified that he was certain that the
guiderail was in place at that time. In any event, its position is irrelevant
to the cause of claimant's accident because, according to Cardona's observations
and his interview of
claimant, the car left the roadway prior to reaching the posted guiderail.
Cardona noted that the guiderail was posted only in certain areas and was not
continuous. Cardona explained that there was only one set of tire marks on the
wet grass and that they led directly from the roadway, before the guiderail, to
claimant's car at the tree. Cardona prepared an accident report (Ex. 1) with a
diagram tracking the path of claimant's car from a point before the guiderail
began, onto the embankment, and to the tree. Cardona also stated that exhibit 2
did not accurately depict the conditions at the time of claimant's
Thomas Mason, Assistant Resident Engineer for Northern Westchester, has been
employed by the New York State Department of Transportation for 30 years and is
responsible for the maintenance of the Sprain. He testified that he searched
his records for complaints in the area of claimant's accident and found
It is well settled that the State has a nondelegable duty to adequately design,
construct and maintain its roadways in a reasonably safe condition and that duty
encompasses the guiderails and the area adjacent to its roadways (see
Gomez v New York State Thruway Auth.
, 73 NY2d 724; Friedman v State of
, 67 NY2d 271; Weiss v Fote
, 7 NY2d 579; Zalewski v State
of New York
, 53 AD2d 781). 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
, Tomassi v Town of Union
NY2d 91; Brooks v New York State Thruway Auth.
, 73 AD2d 767, aff'd
51 NY2d 892). Claimant has the burden of establishing that defendant was
negligent and that such negligence was a proximate cause of the accident
, Bernstein v City of New York
, 69 NY2d 1020, 1021-1022;
Marchetto v State of New York
, 179 AD2d 947; Demesmin v Town of
, 147 AD2d 519). Liability will not attach unless defendant had actual
or constructive notice of a dangerous condition and then failed to take
reasonable measures to correct the condition (see
, Rinaldi v State of
, 49 AD2d 361).
Upon listening to the witnesses testify and observing their demeanor as they
did so, the Court finds a lack of credible evidence establishing that the
guiderail either caused or contributed to claimant's accident. Most
claimant was unclear and contradictory in his testimony regarding the guiderail,
its position, and whether he struck it. By contrast, Cardona was certain that
the guiderail was in place at the time of claimant's accident and that claimant
had left the roadway prior to reaching the posted guiderail. "Where 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). In the instant case, there was insufficient evidence to establish that
any negligence attributable to the State was a cause of claimant's accident.
Rather, it was just as reasonable and probable that the claimant's own
negligence in losing control of his vehicle on the wet pavement was the cause of
his accident. It is also noted that there was an absence of proof of any
complaints, prior to claimant's accident, regarding this area of roadway
, Galvin v State of New York
, 245 AD2d 418 [no proof of prior
similar accidents nor evidence of precise location where claimant's car left
roadway; thus no basis for finding proximate cause due to absence of
Accordingly, defendant's motion to dismiss, upon which decision was reserved,
is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 98517.