New York State Court of Claims

New York State Court of Claims

BIFULCO v. NEW YORK STATE THRUWAY AUTHORITY, #2001-010-079, Claim No. 97566


Fall on highway shoulder. Liability 50/50. Defendant knew of wetness problem and claimant could have avoided it.

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):

Terry Jane Ruderman
Claimant's attorney:
GEOGHAN & COHENBy: Samantha Tiene, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Michael Rosas, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 13, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Anna Bifulco (hereinafter claimant)[1]
seeks damages for injuries she sustained on August 2, 1997 when she fell while walking on the shoulder of the exit 7 ramp of the New York State Thruway. Claimant contends that she fell because the New York State Thruway Authority (the "Authority") failed to correct a wet condition which permitted grass and moss to grow on the paved shoulder. Defendant maintains that, prior to claimant's accident, defendant exercised proper remedial measures to address the seepage of water from an underground spring and that claimant should not have been walking in that area. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that on August 2, 1997, her daughter Maryanne Bifulco was driving on the Thruway and claimant was a passenger. They were following Frank Bifulco, claimant's son, who was in a van with his wife and their two children, who were no more than 10 years old. They were all en route to a family vacation when Frank's car became disabled with a flat tire. He pulled over onto the shoulder adjacent to the Thruway and just beyond the exit 7 ramp. Maryanne pulled over behind Frank as he attempted to fix the flat. Maryanne then backed up and proceeded onto the exit 7 ramp. She stopped briefly to let her mother off on the ramp's shoulder where the children would later join claimant (T:90-91, 95-96).[2] Maryanne drove down to the bottom of the exit ramp to arrange the items in her car to make room for the children. She felt safer at this location rather than maneuvering on the shoulder of the Thruway given its width and the speeding traffic. Maryanne left her car at the bottom of the exit ramp and returned on foot to where claimant had been waiting.
Maryanne and the children walked ahead of
claimant as they all proceeded down the shoulder of the exit ramp toward Maryanne's car. Claimant testified, "I was walking down on the shoulder, and I saw a puddle of water there, but it went right across the roadway and cars can be coming down here" (T:13). When questioned on direct examination if she saw the water prior to stepping through it or on it, claimant replied, "[y]es I did" (T:19). She stated, "it was just a puddle of water" (T:19). Claimant was then asked, "[a]fter you observed the water, what did you do?" (T:20). She replied, "I continued to walk. *** I've stepped in puddles before. It was another puddle of water. *** Next thing I know, *** I slipped and I fell" (T:20-21). A photograph of the shoulder and the water was received into evidence as a fair and accurate depiction of the conditions as they appeared on the day of the accident (Ex. 5). Claimant testified that she slipped in the second puddle, closer to the end of the exit ramp (T:24). She stepped over the first puddle, but could not step over the second because of its width (T:49). She later testified that while she had testified to "puddles" of water, it was really a "wet spot" and not a lot of water (T:51).
Claimant conceded that she could have avoided the wet spot by turning around and crossing over to the other side of the ramp (T:55). She stated, however, "there's just a little water, you walk over the water. You don't have to walk around water" (T:55).

Maryanne testified that she had walked up the ramp, over the same area where
claimant would later fall (T:102). Maryanne then proceeded down the shoulder with the children and with claimant following behind. Maryanne began to slip on a wet spot. When she regained her balance, she turned to warn her mother, but it was too late. Maryanne then observed claimant slip and fall.
claimant fell, Maryanne went to her mother's assistance. As Maryanne bent down to render aid, she noted that the wet area was green and mossy and felt slimy, like mud (T:74-75). Photographs, taken on the day of the accident, depicting the wetness and the moss were received in evidence (Exs. 2-7). The following ensued during Maryanne's cross-examination.
Q: When you looked down, were you able to see that it was green or mossy?

A: Yes

Q: So if you had been looking down before you slipped, you would have been able to see that it was green and mossy?

A: If you -- just standing and walking and looking down, you would be able to see that it's wet. By looking down closer, which was when I got on the floor when she had fallen, at that time you could see the moss.

Q: Could you see the moss from a standing position?

A: No. You could see it's wet, but you couldn't see it was mossy.

Emanual Gallego testified that he has been employed by the Authority since 1995 and became a staff engineer in 1996. As part of his responsibilities, in August 1996, a year before claimant's accident, he conducted an investigation regarding wetness on the exit 7 ramp to determine whether the water was coming from sewage, a broken water main or an underground spring (Ex. 10). He concluded that the source of the water was a natural spring (Exs. 13, 16, 17).

Paul Margiotta, who has been employed by the Authority as a Division Highway Engineer for six years, testified that he had been in charge of maintenance for the New York Division. He acknowledged that on September 4, 1996
he became aware, via e-mail from Gallego, of the wetness on the ramp (Ex. 17). He recalled directing Gallego to determine if there was a sewage leak. Upon learning that it was neither a water main break nor sewage, Margiotta spoke to a maintenance supervisor and visited the site where he observed water percolating on the road. He did not know when this conversation or visit had taken place. Margiotta admitted receiving an interoffice memorandum dated October 10, 1996, which makes reference to the work to be performed (Ex. 13).
Margiotta recalled discussing the work needed, which was completed before claimant's accident. The project consisted of installing a series of pipes beneath the road's surface
in what was described as underdrainage. The process involved: 1) cutting the pavement with a veneer saw to create an open trench into which a perforated pipe was installed; 2) backfilling the area with stone to the elevation of the existing asphalt; and 3) filling the space with hot asphalt. In addition to underdrainage, ditching was also performed. This procedure entailed deepening the ditch on the side of the road to prevent surface water from flowing onto the pavement. The project was completed prior to claimant's accident.
Margiotta testified that it was the responsibility of the maintenance supervisor to inspect the finished project; however, there was no documentation indicating that an inspection had been performed nor did Margiotta know if an inspection had been performed (T:201-02, 204-05). He testified that:
I recall an under drain being installed at the approximate location of where the water was percolating up through the pavement, and I recall that it did function as designed, but sometime subsequent to that, water started to percolate up through the pavement at a different location, and that's what prompted us to install at least a second under drain at a different location on the ramp.

(T:181-82). There was no documentation, nor did Margiotta recall the exact location of the seepage. When Margiotta was asked if he had inspected the finished project prior to the date of claimant's accident, he responded:
A: [i]t was working when we finished. It stayed working for a while and then it started bleeding up, ***

Q: - - prior to August 2nd - -

A: Right.

Q: - - 1997.

A: Right

Bernard P. Lorenz, a professional engineer licensed in New York and New Jersey, offered expert testimony on behalf of claimant. He maintained that an underground spring discharged water on the road's surface, thereby creating a hazard to vehicles and pedestrians. This spring could lead to deterioration and rutting of the road as well as provide a potential for the growth of algae and moss, which was slippery.
There was no documentation detailing the drainage plan and a final inspection after the plan had been implemented (T:283-85). Lorenz opined that this was a violation of good engineering standards because, without a detailed plan, it was difficult to evaluate the installation and further, "it's important to inspect what you've designed and what you've constructed to make sure that it works" (T:285). Lorenz further opined that, had the Authority inspected the completed work and discovered it was not functioning adequately, they could have made corrections.
criticized the Authority's use of PVC pipes because of their size and strength. He maintained that they were not strong enough to withstand the weight of the traffic. He also stated that once the wetness was discovered, the Authority should have posted signs warning of the dangerous condition. For example, the Authority could have used a slippery when wet sign, a wet pavement ahead sign, cones, or an arrow board. Additionally, the Authority could have totally rerouted traffic away from the hazard or used arrows or a barrier curb to prevent travel on the ramp.
Lorenz also testified that it would have been dangerous for Maryanne to park on the shoulder of the Thruway and rearrange things in her car. He maintained that the available space was inadequate and it would have necessitated her stepping into the travel lane to maneuver.

The Authority maintained that pedestrians are not permitted to walk on the shoulder and that
claimant should have been aware of this prohibition. Defendant submitted the following exhibits: a Thruway toll ticket which states, "[d]o not walk along highway" (Ex. K); a Thruway map sometimes available at rest stops which states that pedestrians are prohibited (Ex. N); a disabled vehicle tag given to motorists by the police after they arrive at the scene and a Thruway Driving and Breakdown Brochure, comment card, distributed by a towing company to patrons needing service which state, "walking *** on the Thruway is prohibited because of the dangers associated with walking along a highspeed superhighway" (Exs. L, M). Donald Monchino, a Traffic Safety Supervisor for the Authority since 1988, testified for the defendant regarding these exhibits. He conceded that, despite such alleged warnings, he heard about pedestrians, on a daily basis, walking along the shoulder (T:360). When asked whether it was foreseeable for someone to leave a vehicle to summon help, he replied, "it happens all the time" (T:362). It is also noted that Monchino spent almost four minutes locating the pertinent warning on the map. Monchino testified that the Thruway does not oppose motorists repairing their cars on the shoulder and he acknowledged that making repairs would necessitate walking on the shoulder (T:358-59).
Patrick Dunnigan, a Thruway Maintenance Supervisor assigned to the Nyack Sections, testified that he is not an engineer, but has worked in construction. In November 1996, he was dispatched to the area and observed the water problem. He had previously installed underdrainage in another location with a similar problem and thought that it would be appropriate in this area. He suggested the idea to his supervisor.
Dunnigan explained the procedure and maintained that the PVC could withstand the pressure. In February 1997, he returned with a crew to reshape the ditch for a better floor. At that time, there was no indication that the water was not draining properly. However, sometime prior to claimant's accident, the water, "started popping out again" (T:374). He testified that, "there was water coming down the ditch line. It would get to the bottom and it would pool out near the catch basin at the bottom of the ramp"(T:374). He further stated that this had nothing to do with water accumulating on the road's surface; it was a problem on the ditch off the shoulder (T:375).
Nicholas Pucino, a Professional Engineer who had been employed by the New York State Department of Transportation and the East Hudson Parkway Authority from 1958 to 1991, provided expert testimony on behalf of defendant. Pucino was the Regional Consulting Engineer in Region 8
from 1989 to 1991. He opined that the water on the exit ramp was the result of a subsurface condition where water seeping out of the seams in the road under the pavement bled through due to a high water table. He maintained that the water was trapped under the pavement and there was no way to calculate its flow. Pucino concluded that the week prior to claimant's accident there was a heavy rain and the ground was saturated. Additionally, the flowing water moves beneath the surface and can emerge in different locations.
Pucino opined that the steps taken by the Authority maintenance workers were appropriate.
He considered it unreasonable to reroute traffic for a little water and maintained that signs are not erected for every problem. He stated that maintenance personnel do not ordinarily put remedial actions on paper; rather, verbal directions are issued and a freelance sketch may be prepared.
According to Pucino, water on a shoulder is a concern because of icing.
Pucino conceded that shoulders are designed for disabled vehicles and that people walk on roads and shoulders. He further opined that the nine foot paved shoulder provided ample room for Maryanne to open the doors to her car and the trunk.
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). This duty extends to conditions adjacent to the roadway. Once the State undertakes to provide a shoulder alongside the roadway, it must maintain that shoulder in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver's negligence or an emergency (see, Stiuso v City of New York, 87 NY2d 889; Bottalico v State of New York, 59 NY2d 302, 305). The State, however, is not an insurer of the safety of its roadways and the mere happing of an accident on State property 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). Moreover, merely because water is present on the roadway at the time of an accident does not, by itself, establish that the State was negligent (see, Sellitto v State of New York, 250 AD2d 754). It is claimant's burden to establish 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). 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 remedy it (see, Brooks v New York State Thruway Auth., supra; Valentino v State of New York, 62 AD2d 1086).
Here, it is undisputed that, approximately one year prior to claimant's accident,
defendant had notice of a wetness problem in the area of claimant's fall. There was testimony regarding an investigation of the source of the water and the Authority's attempts to address the condition. However, there was no documentation of the specific plan implemented nor was there any evidence establishing that defendant conducted an inspection of the finished project. Indeed, there was testimony from several Authority employees that the project had failed to the extent that there was water seepage after the project's completion and prior to claimant's accident. There was no testimony regarding the ordering of priorities or available funding which could impact on the Authority's planning decision to address this known problem. Thus, the State cannot avail itself of the qualified immunity accorded to a highway planning decision (see, Friedman v State of New York, supra; Weiss v Fote, supra; Deringer v City of New York, 260 AD2d 305). Defendant was negligent in its failure to ascertain whether the measures undertaken had adequately addressed the condition and this negligence was a proximate cause of claimant's accident.
Defendant conceded the foreseeability of pedestrians on the shoulder in conjunction with a disabled vehicle.
Monchino testified that, despite the Authority's warnings that pedestrians were prohibited from walking along the highway, "it happens all the time" (T:362). Monchino further testified that the Thruway does not oppose motorists repairing their cars on the shoulder and he acknowledged that making repairs would necessitate walking on the shoulder (T:358-59).
Claimant, however, is not without fault, as she was bound to see that which should have been seen with the proper use of her senses (see, Weigand v United Traction Co., 221 NY 39; Doyle v State of New York, 271 AD2d 394; Sappleton v Metropolitan Suburban Bus. Auth., 140 AD2d 684). While the moss may not have been readily observable from a standing position, claimant admittedly saw the wetness and walked through it without any regard for the possibility that the wetness could present a slippery condition. This was negligent. Moreover, she conceded that she could have avoided the water by turning around and crossing over to the other side of the ramp (T:55).
Accordingly, the Clerk shall enter an interlocutory judgment in favor of
claimant and against defendant, apportioning liability as 50 percent attributable to defendant and 50 percent attributable to claimant.
Upon filing of this Decision, the Court will set the matter down for a trial on the issue of damages as soon as practicable.


December 13, 2001
White Plains, New York

Judge of the Court of Claims

[1] The claim of Frank Bifulco, Claimant's husband, is derivative.
[2] References to the trial transcript are preceded by the letter "T."