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.
ANNA BIFULCO AND FRANK BIFULCO
Footnote (claimant name)
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name)
Terry Jane Ruderman
GEOGHAN & COHENBy: Samantha Tiene, Esq.
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Michael Rosas, Assistant Attorney General
December 13, 2001
See also (multicaptioned
Anna Bifulco (hereinafter claimant)
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
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
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?
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.
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
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
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 - -
Q: - - 1997.
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
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
" (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
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
Pucino opined that the steps taken by the Authority maintenance workers were
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
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
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
, 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
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
, 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
, 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.
; Valentino v State of New York
, 62 AD2d
Here, it is undisputed that, approximately one year prior to claimant's
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
, Friedman v State of New York
Weiss v Fote
; 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
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
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
Upon filing of this Decision, the Court will set the matter down for a trial
on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
December 13, 2001
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of
The claim of Frank Bifulco, Claimant's
husband, is derivative.
References to the trial transcript are
preceded by the letter "T."