New York State Court of Claims

New York State Court of Claims

FITCH v. THE STATE OF NEW YORK, #2001-017-613, Claim No. 94481


State held liable for inadequate response to reports of icy condition on State highway.
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):

Claimant's attorney:
FINZ & FINZ, Jay Feigenbaum, Esq.
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERALby: Nancy Hornstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 16, 2001
New City

Official citation:

Appellate results:

See also (multicaptioned case)

On January 20, 1996, at about 1:55 a.m., Andrea Fitch (hereinafter "claimant") was returning to her home in Washingtonville, New York when her vehicle left the roadway (Route 94) and collided with a tree. Claimant, who was alone in her vehicle at the time of the accident, alleges that the accident was caused by an accumulation of ice on the road and she attributes the presence of such ice to negligence on the part of the State of New York in (1) failing to properly maintain the road's drainage facilities, (2) failing to remedy the icy condition after having received notice of the same, and (3) failing to take precautionary measures when it was foreseeable that ice would accumulate. The trial was bifurcated and only the issue of liability will be considered.

Claimant had resided with her husband and two children in Washingtonville, about three miles from the accident site, for about two years prior to the accident, and she was very familiar with Route 94 having traveled it about five times per week. She testified that she had noticed, prior to the accident, that in rainy weather there would be "water running down the sides of the road, and puddling effects, and water crossing Route 94" in the accident area. (Vol. VII, 1087).[1]
On January 19, 1996, which claimant testified was a warm day with heavy rain that stopped at about four or five o'clock in the afternoon, claimant left her home at about 6:30 p.m. heading west[2] on Route 94 towards a friend's house in Wallkill. She turned onto Craigville Road and soon encountered flares and barrels in the road and then an area where the road was covered by water due to a flooded creek. She turned around and proceeded back to Route 94 and found another way to Wallkill. She arrived at her friend's house and they went out to dinner at a restaurant, after which she and her friend returned to Wallkill. By the time they left the restaurant, the weather had cooled sufficiently for her to wear a coat. Shortly after 1:00 a.m., she left Wallkill and proceeded to drive home. Claimant stated that at this time, Route 94 was dry. She passed Craigville Road and proceeded along Route 94, up an incline and curving to the right, came over the crest of the hill, and then noticed ice on the road. She described the ice as a "slushy, choppy ice mixture that was in front of me *** it was right there as I came over the hill[3] *** it was in the right-hand lane, and my wheels were in it, and I started to fishtail *** and then I spun 180 degrees, and at that point I went off the side of the road into this ravine" (id., 1100-1101). Claimant estimated her speed, prior to her losing control of her vehicle, at 35 to 40 m.p.h. After extricating herself from her vehicle, claimant flagged down an approaching vehicle, which turned out to be a Town of Blooming Grove patrol car. While waiting with the officer for assistance, claimant again noticed the icy mixture on the roadway. At that time, she did not notice any water running from the north side of the roadway to the south side (the lane in which claimant was driving, traveling east), although she testified that she had observed such runoff in the area in the past.
Richard Algarin was the town police officer who was out on patrol when he observed that an accident had taken place, at about 1:55 a.m., off of the eastbound lane of Route 94, about 2/10 of a mile east of Craigville Road. He saw the claimant's vehicle against some trees but he could not recall whether claimant was in or out of her vehicle when he arrived at the scene. He also saw "a patch of ice in the roadway" (Vol III, 328) a condition he memorialized on his Police Accident Report (Exhibit 2), on which he also noted "pavement slippery" as the apparent contributing cause of the accident.

Officer Algarin worked the 7 p.m. to 7 a.m shift on January 19-20. He indicated that the weather conditions were "bad throughout the whole night" (
id., 332) and that there was "flooding throughout the town at different locations" (id., 320), as well as "slippery parts of the roadway throughout the town (id., 333). He estimated that he passed the area of claimant's accident five or six times between 11 p.m. and the time of claimant's accident, driving both eastbound and westbound on Route 94, and that he did not have any recollection of having had any difficulty, driving "very slow *** due to the weather conditions" (id., 335). The temperature had "dropped significantly" (id., 344) between the time he first came on duty at 7 p.m. and 11 p.m. (when his patrol route was changed from another area to the area of Route 94 in question), and there was a state of emergency in effect as the result of heavy rain and snow melt that was creating flooding throughout the area (see, Court Exhibit 1, an executive order signed by Governor George Pataki declaring a disaster emergency in many counties in New York State, including Orange County, as the result of "a severe winter storm accompanied by heavy rains and high winds" that began on January 19, 1996).
The officer asserted that he was familiar with the conditions in the Route 94/Craigville Road area for four and one-half years prior to claimant's accident, that he drove Route 94 in both directions in all weather conditions, and he testified that he never observed any ponding, drainage, or icing problems in the area of claimant's accident.

Cheryl Weishaar was employed as a dispatcher for the Blooming Grove Police Department on the date on question and she was on duty between 4 p.m. and midnight. She identified the phone log for her shift (Exhibit 1, two-page excerpt introduced by claimant, and Exhibit Q, five-page phone log introduced by defendant). Referring to the log, Officer Weishaar testified that at 22:19 hours (10:19 p.m.), a passing motorist had advised the station of an icy condition at Route 94 and the "trestle" (Vol. III, 294). The log further indicated that Ms. Weishaar phoned this information to the State Department of Transportation (D.O.T.) at 10:21, and, although she could not actually remember whether the call was answered, she testified that if there had been no answer, she would have recorded that fact in the log. She estimated that the railroad trestle was about half a mile east of the Craigville Road intersection.

There were two entries in the log relative to the report from the motorist of the icy condition and Ms. Weishaar's subsequent call to D.O.T. The first entry, as noted, was at 10:19, indicating the report from the motorist. Then, there were five incoming calls and one outgoing call between 10:19 and 10:25. Then, at 10:29, there is an entry indicating another call to D.O.T. advising of the icy condition by the trestle. The officer could not explain why the second call was made. She testified that, going by the log, no additional report had been received.

Sharon Burns, who regularly traveled on Route 94 between her home in Cornwall and her job in Chester between 1993 and 1996, was questioned about the portion of Route 94 east of Craigville Road, depicted in the Exhibit 8 photographs (photos 10 through 15 looking west and photos 51 through 60 looking east). Asked what she recalled about the road during periods of rain, she stated: "I remember just having to take your time through that area. I do remember at some points, water flowing across the road" (Vol. II, 101). Ms. Burns indicated that in December 1993 she had an accident on Route 94, after she took her eyes off the road to reach for a tape while driving about two car lengths from the car in front of her, and when she returned her gaze to the road, the other car had its brake light on so she "hit" her brakes, lost control on a patch of "black ice" and drove into a tree (
id., 105-106). The location of this ice was east of the alleged icy area from which the instant claim arises, past the area shown on the easternmost photo of Exhibit 8 (photo no. 60), and she admitted that she did not recall what the conditions were in the area with which we are concerned here, nor did she recall having had any problems driving through that area. While she appeared to be an honest witness, Ms. Burns' testimony added little of probative value to the claim before the court.
Mary Anderson testified that she lives on Route 94, about 1000 feet east of Craigville Road (shown on Exhibit P-36) and that she drove along Route 94 daily for 21 years as a rural letter carrier. Ms. Anderson identified an area where she alleged that water would collect when it rained by marking a portion of Exhibit 5-c, a photograph that depicted generally the same area as Exhibit 8-54. The area marked by Ms. Anderson overlapped, but was not exactly coextensive with, the portion of Exhibit 8-54 identified by claimant as the location of the icy area that caused her accident, however the portion marked by Ms. Anderson was largely on the shoulder of the road, not the travel lane. She then testified that during "extreme, heavy rain" (Vol. II, 145), the water would expand into the travel lane. Claimant's counsel then directed the witness' attention to an elevated area of land, shown on Exhibit 5-c, that was just east of a house on the north side of the road, directly across from where claimant alleged she encountered the icy puddle and asked if she had ever made any observation with regard to rainfall in connection with that area of land. She stated that she had not. She did testify as to water coming down the hill from Rissetto Drive, which is farther east on Route 94, up a slight incline. Further into her testimony, she repeated that the water on Route 94 came from the Rissetto[4]
Drive area and flowed downhill along the south side of Route 94 (i.e., the eastbound lane) towards her house. In the winter months, according to Ms. Anderson, this water would sometimes freeze in the area that she marked on Exhibit 5-c.
Ms. Anderson was then asked about Exhibit 8-56, which depicts a more close-up view of the spot where claimant placed the offending patch of ice (on the right side of the photo) and the elevated land on the north side of the roadway (on the left side of the photo), specifically whether she had ever seen any ditches along the north side of the road in that area or anyone ever cleaning ditches in that area. She had not.

Ms. Anderson identified some of the landmarks that were referred to throughout this trial on Exhibit P, a series of photographs from a 1991 photolog of Route 94 (a different photolog than Exhibit 8, which was from 1996). Her house was on photo P-36, west of the accident site, and Rissetto Drive and the Alpine Restaurant were identified in the distance of P-49, east of the accident site, at the top of the slight incline to which she previously referred.

Raymond Schiaroli, who lives on Route 94 in Washingtonville, about four miles east of the area that is the subject of this claim, testified that during 1994 and 1995 he drove to Middletown and back three times a week on Route 94, taking his wife to and from dialysis treatments, and in 1995 he also drove to Goshen on Route 94 seven days a week to feed and care for his race horses at the racetrack there. He testified that during periods of rain water would run across the road in the area where claimant located the puddle that caused her accident and he identified a specific area shown on Exhibit 8-15 (a photo taken looking west) where water would run from the north side of the road to the south side (generally, the location that claimant and Ms. Anderson had marked as the area where water would collect). Referred to a photo of the same general area looking east (Exhibit 8-56), Mr. Schiaroli identified an area slightly to the east as the area where water would run across the road. (Exhibit 8-54 shows both areas, and makes clear that the areas marked by Mr. Schiaroli on Exhibits 8-15 and 8-56 were not the same, with the former location being opposite the east end of the puddle identified by claimant and the latter location being opposite the west end of the puddle). The witness asserted that the water "comes out of those ditches where – because they're not being drained (Vol IV, 505)," a reference to his earlier statement that there was a "ditch" along the north side of the road that was supposed to drain towards Craigville Road (i.e., to the west) and that was clogged by leaves (
id., 502). He marked Exhibit 8-56 with a green line indicating what he thought was the location of a drainage ditch along the north side of the road, a ditch that he testified "runs all the way over to the [Alpine] Restaurant (id., 507-508)," which the court notes is to the east of the alleged ditch, a statement that contradicted his earlier testimony that the ditch ran to Craigville Road, which is to the west.
On cross-examination, counsel elicited that Mr. Schiaroli had signed a "sworn statement (Exhibit U) in which he stated that he was not aware of any icing problem on Route 94 2/10 of a mile east of Craigville Road, and his testimony confirmed that he never had a problem on Route 94 in this area.

Peter Teliska, a D.O.T. employee since 1993, was the Resident Engineer for eastern Orange County from March 1994 through November 1998. Asked what type of drainage facilities existed along the north side of Route 94 from Rissetto Drive to Craigville Road, Mr. Teliska responded: "I believe there's a ditch along the side of the road" (Vol. II, 208). Looking at Exhibit 8-56, and asked whether he saw a drainage ditch running west from the traffic sign shown on the photo (i.e., the area which Mr. Schiaroli drew a green line indicating where he thought there was a ditch, although Mr. Schiaroli had not yet testified when the photo was shown to Mr. Teliska), he responded: "It looks like there's a little off the edge of the shoulder, and a little depression near the driveway running through here" (
id., 210). He continued to testify that he would expect that when water ran into the "ditch line" that he identified, it would proceed westerly (towards Craigville Road) (id., 211). Interestingly, when Mr. Teliska was shown a photo (Exhibit P-54) from the 1991 photo log that depicted generally the same scene as Exhibit 8-56, but in which the sunlight was much brighter and the landscape features much clearer, he stated that there was not any identifiable drainage ditch in the area. A bit later, he stated that from looking at the photographs, he could not tell if there was ever a drainage ditch in the area that was the subject of counsel's questions.
Claimant's counsel referred Mr. Teliska to a portion of the State's Highway Maintenance Guidelines for Snow and Ice Control stating:
5.3307 Removal of Snow and Ice from Special Areas

E. Sags (Vertical Curves)

When Possible, drainage channels should be created in the snowbanks on both sides of the highway at the low point in sag vertical curves to minimize the risk of melt water accumulating on the pavement.
Mr. Teliska testified, in relation to this section of the guidelines, that it was the Department's practice to clear snow from drainage ditches and culverts in areas where they were aware of a problem.
Mr. Teliska identified a portion of the telephone log from the residency (located in Newburgh) for January 19-20. In addition to telephone calls, that document (Exhibit 4) recorded the prevailing weather conditions in the area as follows:
10:10 a.m. 50 degrees, rain high winds
1:25 p.m. 51 degrees, rain, high winds
6:40 p.m. 38 degrees, rain
7:10 p.m. 34 degrees
midnight 22 degrees

According to Mr. Teliska, the log indicated that it had stopped raining between 6:40 p.m. and 7:10 p.m.
The phone log indicated that 25 calls were recorded between noon and 9:20 p.m., most of which related to problems caused by flooding. There were no calls logged between 9:20 p.m. and midnight, three calls between midnight and 12:00 a.m. (All of which related to icy or slippery spots), one call at 2:30 a.m. reporting Route 208 slippery in the Village of Walden, and a report at 2:05 a.m. stating "Washingtonville police request sand at scene of accident Rt. 94 by R.R. trestle" (
id., 4). Mr. Teliska testified that the log was not necessarily a complete record of all calls received at the residency, and that calls could have been received but not recorded because "it could be something that – that would consider minor, and get it right off to the general foreman right away – that they can handle. It might be something – just the pure volume of calls coming in, they might not be physically able to – to write them all down as they came in" (Vol II, 236).
In addition to becoming alerted of road conditions via phone calls, the residency also had crews out on patrol. Mr. Teliska assumed that there were four such crews on patrol during the hours in question on January 19-20, looking for patches of ice to spot sand, work that would be reflected on the Supervisor's Daily Report. The Report for January 19
th (Exhibit D) indicated that there was one truck that was on duty on the area of Route 94 in question between noon and midnight on January 19th and that such crew (consisting of R.L. Rose, supervisor, and G. VanVliet and J. Bilyou, crew members) applied two tons of salt. Counsel then pointed out to Mr. Teliska that the Snow and Ice Control guidelines cautioned against the use of salt in the afternoon "as temperatures will usually fall after sundown and the roads may re-freeze" (Exhibit 3, 22), and also cautioned against the use of salt on lightly traveled roads, because "traffic may only rut the slush [as opposed to whipping it off the road completely on roads with heavy traffic], leaving it to freeze as temperatures drop at night" (id.). The witness agreed with both of these concerns. When asked if he agreed that a slushy condition on a lightly traveled road at 22 degrees would likely lead to the re-freezing of the slush, Mr. Teliska first responded that if there was slush on the road, it would be plowed off, but he then agreed that if it was not plowed off, it would re-freeze.
On cross-examination (by State's counsel), Mr. Teliska stated that he had driven on the portion of Route 94 in question, during the rain, and that he had never seen any drainage, ponding, icing or flooding problems there, and he asserted that D.O.T. records did not reveal any complaint of such conditions there. He testified that when he reported to work at 6:45 p.m. on January 19
th, there were numerous instances of flooding on the State highways in the residency, flooding that was more severe than any he had previously experienced. Examining the Snow and Ice Control Operations Report for January 19th (Exhibit F), Mr. Teliska testified that Mr. Bilyou's crew was on spot ice patrol on Route 94 between Washingtonville and Chester (which encompasses the area in question) between 11 p.m. and 11:35 p.m., during which time one ton of salt was used. He also testified that in the early morning hours of January 20th a crew covered 32 miles of Route 94 doing spot ice treatments and that there had been an ice spot reported on Route 94 near the Alpine Restaurant. This information was gleaned by the witness from a page of the Supervisor's Daily Report for January 20th (Exhibit E), which did not contain any information as to when the report of the ice spot was received or when the spot treatment was made.
Based on the assumption that Mr. Bilyou's crew applied salt to a patch of ice on Route 94 in the Craigville Road area when he was out with his truck between 11 p.m. and 11:35 p.m., Mr. Teliska was asked what effect that would have and he responded that it would "create a brine with the water that was there and prevent it from freezing"
(Vol III, 458). He did not address the issues that claimant's counsel had raised earlier, and that were raised in the Snow and Ice Guidelines, about using salt when temperatures were declining and on areas with low traffic volumes; i.e., the probability that the ice would form slush and then re-freeze.
John Bilyou, a long-time D.O.T. employee engaged in road maintenance and bridge repair, testified that he worked from noon to midnight on January 19
th, four hours longer than his usual shift as the result of the "floods and stuff" (Vol. IX, 1509). He stated that there had been a blizzard earlier in the month and that on January 19th there was approximately two feet of snow piled on the shoulders of the local roads, including Route 94 (he later said that there was probably one to one and one-half feet of snow on Route 94 between Craigville Road and the Alpine Restaurant). Mr. Bilyou received a call while in his truck at about 9:30 p.m. and was told to "take the sand truck and do 208 south and 94" (id., 1511) and that he went back to the shop, loaded the truck and was on the road by 10 or 10:15 p.m. On direct examination, Mr. Bilyou testified that he started sanding Route 94, in Washingtonville, at about 11 p.m., drove to Chester and then back on Route 94 to Washingtonville, checking for icy spots and, when he found one, sanding it. He did not recall noticing a slushy or icy condition on Route 94 near Craigville Road.
On cross-examination, Mr. Bilyou first stated that he had loaded his truck with a half-and-half mixture of salt and sand, but when he was confronted with the Snow and Ice Control Operations Report (Exhibit F), which he signed, which shows a round trip on Route 94 from Washingtonville to Chester and back, from 11 p.m. through 11:35 p.m., and which also shows that he used one ton of salt, and no sand, between 10:00 p.m. and 11:35 p.m., he conceded that he used no sand, only salt, on Route 94 that evening, and that he did not in fact load the truck when he reported to the shop for the run but used a truck that had already been loaded with salt.

It was clear from Mr. Bilyou's testimony that he did not recall whether he saw any icy spots on Route 94 or whether he applied any of the salt that was on his truck on Route 94. His report indicated that he used a total of one ton of salt, but that was for the entire trip, from 10 p.m. to 11:35 p.m., which included Route 208 from Maybrook to Monroe and Route 208 from Washingtonville to Maybrook, in addition to the Washingtonville-Chester round trip on Route 94 (
id.). Although he could not specifically recall where, if anywhere, on Route 94 he applied salt from his truck, he asserted that if he had seen an icy condition like what was testified to at this trial "I would have sanded it (Vol. IX, 1552)," although he could not have "sanded" it because he had salt, not sand, on his truck. At other points in his testimony, he stated that he would have plowed such a condition off the road.
David Coleman, a shift supervisor with the D.O.T. who came on duty at midnight the morning of January 20th
, testified that he had no knowledge of any complaint of an icy condition on Route 94, two-tenths of a mile east of Craigville Road, nor was he aware of any reports of any ponding, icing or flooding conditions in this area generally. He stated that he was aware that there was a problem regarding water running out of the driveway at the Alpine Restaurant and flowing down Route 94 (generally, not on any particular date) but he did not believe that such water would end up accumulating or ponding at the site of claimant's accident. When he was initially questioned concerning the distance between Craigville Road and the railroad trestle that was the location of the town police department's report of an icy condition, he testified that it was about a mile and a half, but when claimant's counsel showed him a map of the area, he advised that the route marker at the trestle was 1194, the route marker at the accident site was 1187, seven markers or 3,500 feet away, and that the Alpine Restaurant was at marker 1189, or 1,000 feet from the accident site.
Michael Iwuchukwu, a D.O.T. Project Engineer, testified with respect to a "3R" project (resurfacing, restoration and rehabilitation) project on Route 94 from Washingtonville to Chester that was initiated in late 1993, prior to his becoming employed by the State of New York and being assigned to this project in March 1994. The draft of the Initial Project Proposal dated July 6, 1993 (Exhibit 12) stated, under the heading "Describe the Problem":
The existing overlay pavement has experienced faulting, spalling and alligator cracking for years. The predominant surface scores are 5 and 6 with ongoing and recurring maintenance problems. The drainage facilities are clogged with silt and debris, and roadside ditches are overgrown with vegetation *** (emphasis supplied).
This draft developed into the final Initial Project Proposal, completed in August 1993, in which the above language was slightly modified to indicate that the pavement deterioration was being experienced "at some locations," but the emphasized portion of the quoted language was unchanged (Exhibit 14). Mr. Iwuchukwu agreed that when he viewed Route 94, he found that the proposal's description of the highway's drainage facilities was correct. Since the final plans for this project were approved in June 1996, subsequent to the subject accident, the condition of the drainage facilities extant on Route 94 as described in the project plans, prior to any improvements being made, is what we are concerned with. The design plans for the area of Route 94 just east of Craigville Road were completed in October 1995 (Exhibit 15). The plans called for the removal of the dirt mound that was just to the west or route marker 1187 (across from where claimant identified as the location of the patch of slushy ice) and the construction of a new drainage ditch in front of the dirt mound and the route marker, and for the cleaning and reshaping of an existing drainage ditch that began east of route marker 1187 and ran east from there, all of this along the north shoulder of Route 94.
Nicholas Bellizzi, a licensed professional engineer with a background in the design and rehabilitation of highways, testified as an expert witness for the claimant. In preparation for his testimony at this trial, he reviewed the photo logs of Route 94 as well as various documents including weather reports, the D.O.T. Design Manual, the accident report, design plans, reports and memoranda, maintenance reports, highway maintenance guidelines and the road history. He advised that there are generally two types of highway drainage systems, closed and open. The open drainage system, consisting basically of roadside ditches, is what was present on Route 94 in the area with which we are concerned. Mr. Bellizzi testified that open drainage systems require maintenance so they don't become filled in with soil and particulate matter (branches, leaves, etc.) and that if such materials, as well as vegetation growing in the ditch, are not removed, the system would gradually lose its effectiveness, resulting in water overrunning the boundaries of the ditch instead of being carried away. He stated that open drainage ditches need to be at least examined, if not cleaned, once a year. According to the witness, Route 94 was classified as a minor arterial roadway and the State's drainage standard for such roadways is that they should be able to handle a ten-year storm (meaning the level of storm that is expected once every ten years), which is equivalent to between five and six inches of rain in a 24-hour period. After examining the weather reports from three reporting stations (Walden, Middletown and West Point) that surround the area in question which provided the amount of precipitation that fell on January 19, 1996 as well as the reduction of snow cover resulting from the warm spell, and converting the melting snow into water, Mr. Bellizzi concluded that the amount of water that was created both by the falling rain and the melting snow was well within the criteria for a ten-year storm.

Looking at the October 1995 3R plans, Mr. Bellizzi identified a culvert consisting of a diameter cast iron pipe under the roadway just to the east of route marker 1187 (
see also, Exhibit 18, original 1928 construction plans)[5]. The two drainage ditches shown on the 1995 plans – one running from the east (the existing ditch) with the legend "clean and reshape ditch" and one running from the west (the planned new ditch) with the legend "build new ditch" – both were intended to drain into this culvert in order to drain water from the north side of the roadway (which was the side at the higher elevation) to the south side. In view of the statements in the project proposals about the silting up of drainage ditches along Route 94, and the testimony of other witnesses concerning water flowing downhill (to the west) in this area and across the road from north to south, Mr. Bellizzi was of the opinion that the drainage system was not properly functioning due to obstruction by silt, vegetation and debris and that such was the cause of the water on the road. Since the area identified by claimant was a low spot on the road, his opinion that the water that flowed onto the road because of the improperly-functioning drainage system would naturally collect there, and he also claimed that the condition of the pavement was consistent with such frequent accumulation of water.
Robert Balkind, who acquired his professional engineer's license in 1998 and was employed by the D.O.T. as a Junior Engineer (August 1993 - August 1994) and later as a Civil Engineer I, testified on behalf of the defendant. He was involved in the formulation of the 3R project for Route 94 between Chester and Washingtonville as part of a "design squad" under the direction of Mr. Iwuchukwu (Vol. VII, 1201). Mr. Balkind, who emphasized that his testimony was based entirely from memory and that he did not have access to his field notes, testified that the culvert that is depicted on the Exhibit 15, passing under Route 94 just to the east of the site of the subject accident, was "in no significant state of being clogged or in disrepair" and that "it would only need to be cleaned, because the condition of the culvert looked fine structurally" (
id., 1209-1210). He also stated that the "ditches that were present *** seemed to be functioning properly" (id., 1213), but he then carefully noted that he was not there while it was raining, which he later indicated would be "prudent" if there was a suspicion of a problem (Vol. VIII, 1327).
Mr. Balkind was clear that when he was at the site in connection with preparing the plans for the 3R project, there was one ditch that fed into the culvert and that was the ditch that ran from the east and which was identified on the plans (Exhibit 15) with the legend "clean and reshape ditch." The ditch that was identified with the legend "build new ditch" in front of the dirt mound that was to be removed, running from the west, in front of the dirt mound, past route marker 1187, and feeding into the culvert, was "a new ditch that I had specified to be built. There was no ditch to inspect at that location" (Vol. VII, 1239).[6]

On cross-examination, Mr. Balkind was asked if his recollection of his field observations conflicted with the statements in the project proposals which stated that the drainage facilities were clogged with silt and debris and overgrown with vegetation and with the statement in the June 1995 Draft Design Report prepared by Mr. Iwuchukwu that the "existing drainage system within the project limits are mostly in poor condition" (Exhibit 13, 16). He testified that he disagreed with those statements and that he disagreed with the testimony of Mr. Iwuchukwu that those descriptions of the drainage facilities were correct. He did not believe that he had seen these reports prior to their being finalized, but he testified that if he had, he would not have requested that the descriptions with which he disagreed be removed because "the purpose of this report, in addition to documenting the conditions and needs of the facility, is also used to program funding for the construction of the project. And if the conditions aren't identified as needing repair, funding is not given for *** that particular work to be done" (Vol. VIII, 1292). In other words, according to this formerly State-employed engineer, statements in D.O.T. documents regarding highway conditions are not to be believed because they are written to support funding for projects that are not really necessary and would not otherwise be approved if the existence or extent of problem conditions were not falsified. For a number of reasons, not the least of which is that the descriptions of the condition of the road's drainage system as described in the drafts was consistent with the credible testimony at this trial, as well as with the photographic evidence, the court rejects this testimony as it pertains to these specific documents. Insofar as the witness intended to portray general D.O.T. policy, the testimony was even more unworthy of belief.

Vincent Lu, a licensed professional engineer employed by the D.O.T since 1973, testified as an expert witness for the defendant. Mr. Lu was Mr. Iwuchukwu's superior at the time that the plans for the 3R project on Route 94 were being developed. With reference to the characterizations of the drainage facilities on Route 94 that were contained in the various drafts of the project proposals and design reports – the descriptions that Mr. Balkind testified were not accurate and were included for the purpose of obtaining funding for the project – Mr. Lu, who indicated that he was ultimately responsible for those statements in view of the applicable chain of command, testified that sometimes statements in such projects are "slight exaggerations" of the prevailing conditions (Vol. VIII, 1358). He also testified that the statements did not mean that the ditches were "necessarily clogged and not functioning" (Vol. VIII, 1372-1373), but merely that they needed to be cleaned to be restored to their original depth, and he ultimately admitted that he agreed with the characterizations of the road's drainage system that were contained in the drafts and reports in evidence.

Mr. Lu testified that Route 94 had a continuous downward slope from the top of the hill near Rissetto Drive and the Alpine Restaurant proceeding west towards Craigville Road: "So, it's not a low point. The grade of the road is continuously going down towards Craigville Road, so there is really no low point there. The road just continues to drop off as it goes towards Craigville Road" (Vol. VIII, 1366). This testimony was contradicted by the photographic evidence (
e.g., Exhibits 8-51, P-47, both looking east) which clearly shows, notwithstanding Mr. Lu's unconvincing protestations that photographs can be deceiving in this regard, that an eastbound driver would come over the crest of a slight hill, enter a relatively flat area and then proceed uphill towards Rissetto Drive, exactly as testified to by the claimant. And indeed, Mr. Lu later stated that "if there was any depressions or any areas there that was [sic] not graded perfectly to that .85 grade, you would tend to get water just ponding in that location" (Vol. VIII, 1376), and he agreed with the court's characterization that "it's a fair statement, isn't it, that it's a general downhill grade that levels out or fairly much levels out in one little spot around where this marker is [route marker 1187] and then continues down the road" (id., 1432).
Mr. Lu recalled that he drove on Route 94 prior to the approval of the 3R plans and he stated that he did not see any obvious drainage problems on his drive-by inspection, although he conceded that the observations of people who had actually viewed the area during the rain would be more reliable in this regard.

Mr, Lu did not believe that the patch of icy slush that claimant testified was the cause of her accident was the result of water runoff. He asserted that any runoff resulting from the day's weather conditions – warm weather with heavy rain accompanied by large accumulations of snow from an earlier storm that were melting – would have started within an hour or two after the storm started and would have stopped within a few hours after the rain stopped, which was shortly after 6 p.m. He testified that the drainage system in this area was working properly and that even had it not been working properly, an icy puddle on the road 8 hours after the rain stopped would not have resulted. The question then posed to him was how he accounted for claimant's accident and her testimony that such an icy puddle was the cause. He responded :
The only thing that would – might come to mind is a truck went by there that somehow the snow blew off the back or some – somehow the water would have to come from somewhere, but as to where it would come from, I really don't have an explanation as to how a patch of ice could have formed there unless maybe a tractor trailer that came through a snowy area that had snow on it blew off or some other situation that occurred right at that moment might have occurred, especially if there was no evidence that was there prior to the time the accident occurred.
Mr. Lu did not explain how the report of the icy patch to the Blooming Grove police department, and the relaying of that report to D.O.T., about three and one-half hours prior to claimant's accident, would fit into his phantom tractor/trailer theory. He then claimed, alternatively, that the water could have come from people shoveling snow from their driveways onto the roadway, a seemingly curious activity since the weather reports show that it hadn't snowed, except for a trace, since January 13th and since the ostensibly record-breaking rainstorm, accompanied by 50+ degree temperatures, would seemed to have obviated the need for such shoveling in the late-evening and early-morning hours immediately preceding claimant's accident.
In the final analysis, it does not much matter whether the patch of ice that the court finds was present on Route 94 on January 19, 1996 had its origin in the poorly-functioning drainage system (the only explanation that is consistent with the evidence), as the court also finds, or in some other speculated manner, the limits of which are set only by the boundaries of a particular witness' creativity. The facts are clear that at 10:19 p.m., a motorist reported an icy condition on Route 94 to the local police department, a condition apparently serious enough for the motorist to make the report, and that the report was immediately relayed to the D.O.T. That the location of that condition – described in the police department log (Exhibit 1) as "Rt. 94/tressel [sic]" – referred to the same place where claimant encountered an icy puddle three and one-half hours later is established beyond peradventure by the notation in the D.O.T. diary (Exhibit 4) at 2:25 a.m. on January 20
th (10 minutes after claimant's accident) stating: "Washingtonville Police request sand at scene of accident Rt. 94 by R.R. trestle," a clear reference to claimant's accident, and to the same patch of ice that had earlier been reported by the passing motorist and that was described at trial by claimant and Officer Algarin. With respect to any postulated issue as to whether the two locations – the scene of the accident and the "icy rd. conditions Rt. 94/tressel [sic]" referred to in the police log – were in fact one and the same location, the entry in the D.O.T. diary was the proverbial smoking gun.
Nevertheless, proof of negligence requires more than findings that: (1) a dangerous condition existed on Route 94; (2) the D.O.T. had notice of the dangerous condition; and (3) claimant's accident was caused by her encounter with the dangerous condition, all of which were amply demonstrated by the evidence. The remaining inquiry is "whether the State exercised reasonable diligence in maintaining [the highway] under the prevailing circumstances (
see, Freund v State of New York, [137 AD2d 908], at 909; Valentino v State of New York, [62 AD2d 1086, 1087]; Tromblee v State of New York, 52 AD2d 666, 667). ‘What constitutes reasonable diligence in reacting to a particular condition on a particular highway depends, of course, upon the circumstances of each case' (Tromblee v State of New York, supra, at 667; see, Citta v State of New York, 35 AD2d 288) (Slaughter v State of New York, 238 AD2d 770).
That the defendant's response to the report of the icy condition on Route 94 fell short of the "reasonable diligence" standard was established by the testimony of Mr. Bilyou, part of the crew that was assigned to address that highway in the evening of January 19
th. Whether the specific report of the condition near the trestle was communicated to him or not was immaterial; the evidence indicated that he was patrolling that road at the very time the report was made. He could not recall whether he saw that particular patch of ice, which was certainly understandable, but the only reasonable inference is that if a passing motorist had seen it and been sufficiently impressed to report it to the police, then a D.O.T. crew who was out specifically looking for such patches would also have seen it and, having seen it would have treated it. The problem was that Mr. Bilyou was, inexplicably, driving a truck loaded with salt rather than sand (or a salt/sand mixture) notwithstanding that the prevailing conditions were exactly those that the Snow and Ice Maintenance Guidelines warned would contraindicate the use of salt; i.e., falling temperatures, at night, on a lightly-traveled rural highway. When Mr. Bilyou testified on direct examination that he loaded his truck with sand and then went out and spot "sanded" icy spots, he was not lying but rather was testifying from general memory of what he usually does – what he is supposed to do – in such situations. When he was confronted with the written evidence that he had used salt, he remembered that there had been a truck already loaded with salt and that he used that truck instead of, properly, applying sand, or a mixture. Unfortunately, the particular confluence of circumstances – climactic conditions that resulted in a large amount of rain and melting snow, a drainage system that was not functioning up to par, rapidly falling temperatures and light traffic – added up to a recipe for disaster unless the ice on the highway was properly treated, and the application of salt had essentially the same effect as if nothing at all was done, at least over the interval between 10:30 p.m. and 1:55 a.m. The descriptions of the ice given by claimant and Officer Algarin were entirely consistent with it having been melted briefly by the salt and then having re-frozen.
There were a number of issues that were raised at trial, and briefed by counsel, that were really not present in this case. There was no proof that the drainage system extant on Route 94 was improperly designed or maintained, merely that it was no longer functioning properly and needed to be upgraded. There was no proof that the State did not act properly or timely in studying the problem and recommending and implementing improvements. The only relevance of such study to this case was that the D.O.T. maintenance forces should have been aware that there was a potential problem along Route 94 on the evening in question because of the large amount of water on the roads generally and because Route 94 had been slated for a 3R project, in part because of the poor functioning of its drainage system. The evidence of problems in the subject area, both testimonial and photographic, was overwhelming. It was particularly likely that patches of ice would develop on this road and particularly important that they be treated properly. Considered in this light, the defendant's response – applying salt – must be judged to have fallen considerably short of "reasonable diligence."

There was also no issue of the extreme weather conditions preventing a proper response to the conditions on Route 94. The personnel were present and they were there with a truck, at the right time. It was just the wrong truck. The fact that a later road crew, which came on duty after midnight, was prevented from reaching Route 94 by flooding in another location was irrelevant, as that crew would not have reached the scene prior to claimant's accident in any event. The State's negligence occurred earlier in the evening, when it had the duty, as well as the opportunity, to properly address the problem and it failed to do so.

Finally, the court notes that there was no indication that claimant drove her vehicle with anything less that reasonable care, and the court therefore finds that the subject accident was the result solely of the negligence of the defendant. All trial motions upon which decision was reserved are now denied, and the Chief Clerk is directed to enter interlocutory judgment in favor of the claimant.

May 16, 2001
New City, New York

Judge of the Court of Claims

[1]All such references are to the trial transcript.
[2]Route 94 runs generally northeast/southwest, but the witnesses mostly referred to it as running east/west, a convention the court will adopt in this decision.
[3]Claimant identified the area where the icy mixture was on Exhibit 8-54, which was photograph no. 54 in a sequence of photographs that were part of a State photolog of Route 94, collectively received as Exhibit 8.
[4]Subsequent witnesses sometimes referred to this road as "Rossetti Drive" For the sake of uniformity and accuracy, the court will utilize only the correct appellation – Rissetto Drive.
[5]The 1928 plans describe a 24-inch diameter pipe while the 1995 plans describe an 18-inch diameter pipe.
[6]Mr. Iwuchukwu, Mr. Sciaroli and Mr. Teliska were all in error in testifying that there was a ditch in front of the dirt mound prior to the 3R project, although Mr. Teliska apparently realized his initial error and later stated that there did not appear to be anything there. The photos all confirm Mr. Balkind's testimony in this regard.