New York State Court of Claims

New York State Court of Claims

HERON v. THE STATE OF NEW YORK, #2002-005-009, Claim No. 99615


Synopsis


The different coefficients of frictions between road pavement and crosswalk delineating tape do not create a dangerous condition and the Defendant is not liable to a pedestrian who slips and falls while walking on the cross walk tape.

Case Information

UID:
2002-005-009
Claimant(s):
GAYLE HERON AND WILLIAM HERON
Claimant short name:
HERON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99615
Motion number(s):

Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Siben & Siben, LLP.By: Andrew J. Schaber, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Alan Berkowitz, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 13, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On August 29, 1997, Claimant[1]
was standing at the intersection of Carll Avenue[2] and West Main Street in the Village of Babylon waiting to cross West Main Street. There was a designated crosswalk at that intersection which was delineated by white marking tape affixed to the road surface.[3] Claimant was a pedestrian who was wearing flat-heeled shoes as she stepped off the curb and began crossing on the designated crosswalk. When she was eight feet into the crosswalk, her right foot stepped on the white delineating ‘crosswalk' tape that designated the boundary of the crosswalk, both feet went out from under her and she fell, sustaining personal injury. I took judicial notice that the Defendant State of New York owns and maintains West Main Street in the Village of Babylon. This trial of this claim was bifurcated and this decision addresses issues of liability only.
Claimant's expert, a forensic engineer with a law degree who is admitted to practice in New York State, opines that the marker (crosswalk) tape was twelve inches wide, made of plastic and cemented to the roadway. In August 1998, approximately one year after the incident in question, he measured the static coefficient of friction for a leather-soled shoe on the same marker tape at .51 (point five-one), and the dynamic coefficient of friction at .39 (point three-nine). He compared these findings with the static coefficient of friction of the road surface which he measured at .80 (point eight-zero). Claimant's expert theorizes that the difference in the coefficients of friction between the road surface and the marker tape created an "abrupt transition" at which a pedestrian, if unwary, "would slip and fall." He concluded that the proximate cause of Claimant's fall was "the transition from an area where the coefficient of friction was high to that where it was low, that is, the tape itself."

Claimant's expert opines that the tape markings as they existed on August 29, 1997, created a "dangerous or hazardous condition." He suggests that non-skid paint applied to the road surface works better to minimize the difference in the coefficient of friction between the surfaces that the crosswalk marker tape utilized here. He does not cite any other authority, besides his own opinion, in support of his opinions, nor does he allege that the marking tape does not meet the New York State Design Manual specifications.

The Defendant's expert testified that in the mid 1980's New York State issued an ‘engineering instruction' directing the use of pre-formed reflectorized tape at crosswalks and intersections, that such tape is in wide use throughout New York State and is supplied at the current time to the State by the 3-M Corporation. He testified that the use of such tape is specified in the State's Design Manual specifications, and is measured using a BPM (British Pendulum Machine) method to determine the static coefficient of friction of marking tape, while for pavements a DFT (Drag Force Trailer) is used to measure the coefficient of friction of pavement in wet conditions.

Interestingly, Defendant's expert opined that he was unaware of any safety concerns for adjacent asphalt pavement surfaces or any two surfaces which might have differing friction coefficients, as long as both surfaces meet the respective design standards, as then each surface independently should be able to handle the demands placed upon it in terms of friction. Defendant's expert testified that he relied on ASHTO[4]
design guidelines, ASTM[5] test methods and ADA (Americans with Disabilities Act) guidelines, as well as the New York State guidelines in the formation of his opinion that the different coefficients of dynamic friction between pavement and marking tape did not constitute a safety concern and also met the standards of New York State. I credit his testimony.
The issue before me is simply phrased: Did the application of the pre-formed marking tape on West Main Street create a dangerous and hazardous condition in that its surface had a higher co-efficient of friction than the surrounding road surface?

I find that the Claimant has not met her burden of proof in showing that a dangerous or hazardous condition existed at the intersection of West Main Street which caused the injury to Claimant. The mere existence of a different coefficient of friction between the 12-inch wide pre-formed marking tape used to define the crosswalk area and the surrounding pavement is not sufficient to sustain a finding of negligence with the proof presented in this trial. There has been no proof that any recognized engineering standard was violated by the Defendant, and indeed, to the contrary, the Defendant has relied on recognized standards in the publication of its standard of use of the tape.

Claimant's reliance upon her expert's novel but totally unsupported theory predicating liability on the differentiation of friction coefficients is misplaced. Even if it had been demonstrated, which it was not, Claimant would then have to overcome the seemingly precedential ruling by the Court of Appeals that absent proof other than the inherent slipperiness of the floor (albeit not a crosswalk on a road), no cause of action for negligence can properly be maintained (
Murphy v Conner, 84 NY2d 969), a principle affirmed by the Second Department less than one year ago in Conry v Avellino, 287 AD2d 478, holding that there is no recovery in negligence for a slip and fall on a walking surface due to smoothness (citing Lindeman v Vecchione Constr. Corp., 275 AD2d 392). While Claimant's theory relies upon a differentiation of coefficients of friction, to wit, differing degrees of slipperiness between two surfaces, absent a showing of negligence, slipperiness on a walking surface in and of itself cannot form the basis of liability.
The claim must be and hereby is dismissed.

All motions not heretofore ruled upon are now denied. Let judgment be entered accordingly.






August 13, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




  1. [1]The claim of William Heron is derivative only, and thus for ease of reference, the term Claimant shall mean Gayle Heron only, unless otherwise specified.
  2. [2]The spelling of the crossroad in the claim was ‘Carll,' while in the Bill of Particulars it was spelled ‘Carl.'
  3. [3]See Exhibit 1.
  4. [4]Testimony only used the initials ASHTO, which stands for American Society of Highway Transportation Operation (see, Ball v State of New York, UID No. 2000-004-534, Claim No. 96658, Motion No. M-61806, published in the Court of Claims website at www.nyscourtofclaims.state.ny.us).
  5. [5]American Society for Testing and Materials (adopted by the American National Standard Institute) (see, Stockwell v State of New York, UID No. 2001-018-062, Claim No. 99052 available at the Court of Claims website).