On May 24, 1997, Claimant was riding his bicycle easterly on Browncroft
Boulevard in the Town of Brighton as he approached a steep grade in the road
known as the "dugway."
His friend, also riding a bicycle, was directly in front of him. Claimant was
an experienced bicyclist and had ridden down this grade many times. The
pavement was dry, the temperature was mild, and the weather cloudy. As he
started his descent down the hill, his speed reached 30 miles per hour and
suddenly he saw a crack
in the road surface
just in front of him and, "[b]efore I realized it I was in it. I was tumbling.
It happened so fast, I had no time to react." He was traveling not on the
shoulder, but just inside the edge line on the travel surface of the
As the result of his fall, he alleges
personal injury due to the negligence of the Defendant State of New York. The
trial of this claim was bifurcated and this decision only addresses the issue of
Claimant alleges that the Defendant was aware of this road surface defect as it
had actual notice as well as constructive notice of the existence of this long
crack. I find that the crack existed as early as 1994 when it was photographed
by the Defendant's "photolog" survey.
I credit the testimony of both Claimant's and Defendant's experts that the crack
as shown in the photolog in 1994 should have been filled with an asphalt crack
filler applied with a wand, and also their testimony that, if it were not so
treated, the crack would continue to degrade, widen and get deeper with the
passage of even normal weather conditions. I further find that the Defendant
was on actual notice of this long and deep crack in the winter of 1997, as its
own work forces (State employees) treated this "dugway" part of the highway many
times previously, but had never patched or repaired this
, at least not in the intervening period
of approximately 2½ years between the photolog survey in September 1994,
and the date of this accident on May 24, 1997. Hence, what was a small and
manageable crack in 1994, became the large, dangerous crack which Claimant
encountered in 1997. Defendant characterizes the depression as a pothole, while
the Claimant utilizes the words crack and occasionally crevice, both terms which
I find more descriptive. At the time of the accident, the dimensions of the
crack were approximately 20 feet long, 6 to 8 inches wide, and 3 inches deep.
Browncroft Boulevard at the scene of this accident is rated by the Defendant as
a Class B Highway, and the New York State Highway Maintenance Guidelines
Standard of Section 1.130 was exceeded.
The guideline suggests that roadway patching should commence when the depth
exceeds 1½ inches. Thus it should come as no surprise that I find that the
three inch depth of this crack created a dangerous condition which warranted an
immediate, rapid response.
Moreover, I specifically do not find that the crack suddenly became deeper
only in 1997 during the immediately preceding winter, as proffered by the
Defendant in an unsuccessful attempt to defeat the notice implicated by the
noticeable cracks visible in the September 1994 photolog. Of course, notice,
whether denominated as actual or constructive, also exists as a result of the
numerous inspections and pothole repairs performed in this very area of the
roadway on some five occasions by Defendant's work crews in the five month
period immediately preceding this
It is well established that the State has a nondelegable duty to maintain its
roadways in a reasonably safe condition and that liability will be imposed for
injuries proximately caused by a breach of that duty (
Friedman v State of New York
, 67 NY2d 271; Lopes v Rostad
, 45 NY2d
617). The State, however, is not an insurer of the safety of its roadways and
the mere happening of an accident does not render the State liable (see,
Tomassi v Town of Union
, 46 NY2d 91; Brooks v New York State Thruway
, 73 AD2d 767, affd
51 NY2d 892). Generally, 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
, Brooks v New York State Thruway Auth.
Rinaldi v State of New York
, 49 AD2d 361, 363).
To succeed upon a theory of constructive notice, a claimant must establish that
the crack existed for a sufficient length of time before the accident to permit
defendant's employees to discover and repair it (
see, Gordon v American Museum of Natural History
, 67 NY2d 836). A
negligent failure to discover a condition that should have been discovered can
be no less a breach of due care than a failure to respond to actual notice
(Blake v City of Albany
, 48 NY2d 875). Constructive notice of a
hazardous condition exists when it is visible and has been present for such a
period of time that it should have been noticed and corrected (Tanner W. v
County of Onondaga
, 225 AD2d 1074).
Claimant's reliance on
Hamilton v State of New York
, 184 Misc 2d 224, is misguided, as that
decision was reversed and the claim dismissed, 277 AD2d 982, appeal
, 96 NY2d 704, with a holding that the State's negligence relating to
the removal of foliage was not the proximate cause of that accident.
Waddingham v State of New York
, 90 AD2d 855, provides greater support, at
least to the extent that liability was affirmed due to the complete failure to
have qualified personnel undertake a reasonable inspection. Furthermore,
neither Palumbo v State of New York,
Ct Cl, Feb. 28, 2001 (Claim No.
90713), Ruderman, J. (UID No. 2001-010-016) nor Kavana v State of New
, Ct Cl, June 16, 2000 (Claim No. 89731), Ruderman, J. (UID No.
are sufficiently comparable to
dissuade me. In Palumbo, supra
, a witness had a severe credibility
problem, and there were blatant conflicts between written statements and trial
testimony as to the existence of any potholes, let alone any measurements
thereof, and the testimony describing the prior ‘patching' of the roadway.
In Kavana, supra
, the claim was dismissed because of questions relating
to the location of the accident, and the need for the Court's impermissible
speculation whether the drop-off was a proximate cause of that accident. The
proof in this claim suffers from none of those dilemmas, as the basic elements
have been established here.
I find that the Defendant had a duty to maintain the road surface in this
situation for this crack, that it breached this duty, and that such breach was
the proximate cause of Claimant's fall. The Defendant's argument that the
Claimant was riding on the traveled portion of the roadway as opposed to the
shoulder and, for that reason bears responsibility for a portion of the
liability, is not persuasive. The shoulder adjacent to the area of the measured
crack is also alligatored and appears
However, the high speed of 30 miles per hour at which Claimant was riding his
bicycle, on a hill where "the road disappears beneath you" as one starts the
descent and on a route with which Claimant had extensive prior personal
familiarity, places responsibility upon the bicycle operator to proceed at a
speed that permits stopping when a dangerous condition is encountered, more so
on a non-marked bicycle route. In New York State bicyclists have the right to
use the road system (with few exceptions not relevant here) and also have the
corresponding duty to operate their bicycles
Accordingly, Claimant must bear partial responsibility for the injuries he
sustained, not because he was riding in the roadway, but because of the speed at
which he was riding.
Accordingly, based upon the above, and in consideration of all the evidence, I
find Claimant 25% responsible for this accident and the Defendant 75% liable.
All motions not heretofore ruled upon are now denied. A Trial Scheduling Order
on the issue of damages will be forwarded to the parties under separate cover.
The Clerk is directed to enter an Interlocutory Judgment consistent