New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2002-005-011, Claim No. 95287


The evidence did not support the claim that a limited area with rainfall not exceeding an accumulation of 3/16th of an inch was a proximate cause of this one vehicle highway accident.

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:
Lacy, Katzen, Ryen & Mittleman, LLPBy: Peter T. Rodgers, Esq. and Jacqueline M. Thomas, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James L. Gelormini, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 19, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants[1] allege in the claim that the Defendant was multi-negligent in permitting a dangerous condition to exist, to wit, that water was permitted to pool in the northbound travel lane of Route 14-A (State Highway 638, hereinafter SH 638), as, inter alia: (1) the road was designed improperly; (2) the road was improperly reconstructed in 1991; (3) the road was negligently maintained and managed; (4) the road was not properly signed to warn of a dangerous condition, and (5) the speed limit as posted was too high. Claimants also allege that this dangerous condition of permitting water to pool was actually and constructively known to the Defendant and that Defendant did not act to remediate the pooling water.

Prior to the commencement of trial, counsel for the parties arrived at the following stipulations, which were adopted by the court: (1) that the trial of this claim is bifurcated; (2) that this is a no-fault claim and there is no need to prove serious personal injury in the liability phase; (3) no seat belt defense will be raised on the issue of liability; (4) that, as a result of the injuries sustained in this accident, Claimant Audra Harris suffers from a loss of memory that makes it impossible for her to recall events at or about the time of the accident, and (5) that Audra's body weight on the date of the accident was 125 pounds.

The nexus of this trial concerns the accumulation of water or lack thereof at a specific location on SH 638 on September 17, 1996. There has been considerable post-accident testimony, the presentation of post-accident induced testing procedures, and post-accident natural rainfalls, the results of which counsel have waived objection in this trial.[2] Videotapes, and still portions thereof, were presented, and different opinion witnesses were asked to interpret and to explain what each individually observed. All such conclusions are susceptible to different individual interpretation, speculation and observation. I find minimal creditable evidentiary value of this testimony.


On September 17, 1996, at approximately 7:00 p.m., Audra Harris was operating her mother's 1985 Ford Crown Victoria four-door sedan (Ford) in a generally northbound direction on SH 638 in the Town of Geneva. She was sixteen years old and had been driving a car for approximately six months.[3] She was accompanied by her nineteen year-old boy friend, Mark Klossner, who was a passenger in the right front seat. The road was wet, it was dark outside and there were no street lights. Suddenly, the Ford went out of control and struck utility pole #186 located on the east side of the road in front of an abandoned farm house. The car struck the pole at the driver's door area and then actually wrapped itself around the pole, and, at impact, was entirely off the traveled portion of the road and off the shoulder.[4] The impact caused the utility pole to shear in half, with the transformer and wires going across the top of the car roof and then making contact with the ground. Audra was unconscious and it took the emergency personnel an hour to an hour and a half to remove her from the car. She suffered severe personal injuries as the direct result of this accident.

State Highway 638 at the scene of this accident was a two-lane New York State highway and a 7.8 mile portion of it runs between the Hamlet of Hall and State Routes 5 & 20, and the road runs generally in a north-south direction. This accident occurred at a location just north of the town line between the Towns of Seneca and Geneva, approximately one mile south of Routes 5 & 20 in the vicinity of Mile Marker 1070. This 7.8 mile portion of the road is described as a "rural road, very windy with a lot of ninety degree turns in it."[5] There are no street lights and both the southbound and northbound lanes of traffic have a white edge line. At the accident location the lanes of traffic are separated by a solid yellow center dividing line which indicated a "no passing" zone for southbound traffic and a broken yellow line, which permitted passing for northbound traffic. There were no other traffic control devices. The speed limit is fifty-five miles per hour.

It had been raining that day and it was very dark outside: "dreary and it rained, not heavy, but steady all day long. It wasn't heavy, it wasn't light. It was just steady, and it was a gloomy, dark September day." It did not stop raining after the accident and rain continued during the time that the police and ambulance personnel were at the scene.

The only eye-witness testimony available was that of Mark Klossner, who was the front-seat passenger in the vehicle driven by Audra Harris. On September 17, 1996, he went to Audra's house and, at 5:30 p.m., accompanied her in the Ford to go to Penn Yan to take care of her horses. It was raining on and off all day and, as they left, it was raining, sometimes heavily. After taking care of the horses, they left in the Ford to return to Audra's house. The rain was falling a little heavier and it was getting dark as they left Penn Yan. As they proceeded north on SH 638, the Ford's headlights were on and the windshield wipers were working. Both Mark and Audra were aware of general water ‘puddling' on the road surface, and Audra slowed down as she approached and passed through these puddles. Mark stated that the car was traveling at 45 to 50 miles per hour.

Mark describes the accident: "We were headed northbound on Route 14A and we came around the last bend. And when we came around that last bend, I was switching the radio station, and then I felt the car - - we hit a puddle and I felt it just lift and the rear end - - the passenger side rear end of the car kicked out towards the shoulder of the road and it slid for a little ways. And Audra tried to counter steer, and tried to bring the car back in control when - - and then it whipped around and slid into the telephone pole." He continues, "It was almost - - it was like a whoosh when you heard the water hit - - hit the front. Like the inner center walls. You could hear it hit the bottom of the car . . . . The rear end of the car went to the right-hand side." The front of the car moved west. "Then Audra tried to counter steer to bring the rear of the car back straight, and when she tried that it completely turned sideways. It was then facing east, and slid into the pole."

To Mark's knowledge the vehicle never entered the southbound lane of travel. He states that, as the front of the car was rotating to the west, Audra turned the wheel hard and fast, which he describes as an over-steer or over-correction. He recalls that, as the car was traveling broadside down the road with the headlights facing east, the rear end bumper of the car would have been at the center line of the road, for just a second, until it slid off the road. He states that, as Audra turned the wheel hard and fast, she only had one hand on the steering wheel.

Deputy John R. Peck (Peck) of the Ontario County Sheriff's Department was called to the scene. He was a road patrol deputy and had been on patrol the day of this accident. He recalls that there was moderate to heavy rain that day and throughout the evening. He received a radio call at 7:07 p.m. of an accident on Route 14-A and arrived at the scene 10 to 15 minutes later (7:20 p.m.), and recalls that the weather conditions at the time of the call were moderate to heavy rain with the temperature between 55 and 60 degrees. He describes the road conditions he found at the scene as wet, and noted that the surrounding area had been soaked with rain.

Peck saw an "older model Ford, Crown Victoria . . . off the east side of the roadway, actually up against a utility pole [#186]. The utility pole was broken off approximately four feet above the ground and the remainder of the pole was laying partially across the vehicle. The point of impact on the vehicle was at the position between the front and rear door on the driver side, . . . and the portion of the pole that was still standing, that four-foot portion was actually partially into the driver side of the vehicle. As I recall, . . . there were two persons in the vehicle. A female in the operator's position and a male in the passenger's front position."

Deputy Peck walked in a southerly direction along the roadway and found an area of "pooling of water in the roadway. . . . [i]t was standing. As I said, it was not running from one side to the other." He found the water covering both travel lanes for a distance of eight to ten feet in length, hence an area of approximately 8 to 10 feet by 25 feet. He stated that "The majority of the water was located in the - - where the tire treads would go, and consequently, there were narrow spots, and then a spot in the center of each lane way that was shallower, . . . and then deeper spots again in the tire treads." In court, Peck prepared Exhibits CCCC and 14-A, which show his observation of the water.[6]

Peck recalls that Sergeant William J. Gallagher, an accident reconstruction specialist, arrived at about 7:55 p.m., and that Gallagher and Deputy Harrington took measurements, with Gallagher taking the actual measurements of the depth with a tape measure, and Harrington recording them.

Peck thereafter interviewed Mark Klossner in the emergency department of the Geneva Hospital and "he told me that the driver lost control on the wet roadway and started to travel into the southbound lane and tried to correct, and in doing so, traveled back off across the northbound lane and started to skid sideways and struck the utility pole." Peck was unable to interview Audra at the hospital or thereafter, due to the severity of her injuries.

Sergeant Gallagher, who oversees the Accident Reconstruction Division of the Ontario County Sheriff's Department, was called to the scene and stated that he arrived at 7:53 p.m. He recorded the temperature at 58 degrees and recalled it was "raining heavily all day . . . . When I first arrived at the accident scene, it was still raining what I would call a steady heavy rain, . . . probably within a half hour of my arrival, the rain had let up somewhat but it was still a steady rain." The longer he stayed at the scene, the lighter the rain got. He left the scene at 10:00 p.m. I find that during the period from 8:00 p.m. to 10:00 p.m., which is the duration of Gallagher's investigation, a total of .20 inches of rain fell.

Gallagher located the Ford's left and right front tire marks leaving the paved portion of the east shoulder and the marks continued to the vehicle at rest, a distance of 40 feet, from which he concluded that the Ford was facing east as it traveled northerly. He described the marks as "a yaw mark that would show a vehicle traveling in a side slip skid." Gallagher could not locate any physical evidence of tire skid marks on the pavement.

He observed a spot on the road that caught his attention. "There was water that was standing in the road and it was not just in the northbound lane, but I also found it in the southbound lane in the same area, and this water was just sitting there, it was not going anyplace. It - - I looked around, I could not find the source for the water, I couldn't find it running down the driveway, I couldn't find it overflowing from a ditch, it was just sitting in Route 14A, right in the travel lanes."

With the assistance of a flashlight, Sgt. Gallagher took several measurements of the depth of the water. "I always took several measurements, and I was able to receive or record several measurements of a half-inch deep water. I was also able to find less water, which I did not record the depth of that water, and in some spots I was not even able to measure the depth of the water. There was standing water, but it wouldn't even measure on the tape measure." Gallagher disagrees with Peck about the water area on Exhibit CCCC: "There was water in both lanes, but he shows it in his drawing as going across the center line of the highway. . . And I only remember water in both lanes. . . . [n]ot crossing. . . . [n]ot connected."

Gallagher observed other pools of standing water, but he indicates that the ½ inch of water "in some spots" is what he refers to. His pool of water is within Peck's diagram, and he adds: "The pooled water that I was able to find more than one measurement of a half-inch deep would probably be approximately two foot from north to south, and I'm talking strictly to the northbound lane. . . . And that puddle would be no more than a total distance of four foot from east to west. . . . No more than a two foot circle [½ inch depth]." The water accumulated in a flat section of the road. The center of the ½ inch pool of water was measured at 191 feet 10 inches south of Utility Pole #187 along the white edge line of Route14-A, and six feet west of the white edge line, at which point Gallagher found the center of the pool of water that measured ½ inch in depth. Gallagher's measurements were accomplished under very difficult conditions, the rain was still falling and it was dark, necessitating the use of a flashlight to read the gradations on his metal tape measure. The exactitude of those measures, compromised by these difficult conditions, do not support a ½ inch elevation difference.

Gallagher examined the tires on the Ford and noted that the front tires were Classic premium: the left front tire was flat and off the rim, with 3/32" of tread depth, and the right front tire had 4/32" of tread depth with 27 pounds of air pressure. The rear tires were Hercules: the left rear tire had 3/32" of tread depth with 32 pounds of air pressure, and the right rear had 3/32" of tread depth with 30 pounds of air pressure. Sgt. Gallagher concluded that all tires had legal tread depth. The odometer showed 123,108 miles with a then current New York State inspection sticker. He found the brakes were operative.

Gallagher's measurements indicated the average crush depth was 42" from six measurements that he took, and he opined that the indicated speed of the vehicle at impact to be 42 miles per hour or one mile per hour for each inch of crush.

Sgt. Gallagher's opinion of the cause of the crash was that the vehicle was traveling north when he assumed the Ford's right front tire entered standing water of ½ inch in depth, and hydroplaned and then regripped the pavement, which caused the vehicle to pivot to the right, where it went into a yaw and then impacted with Utility Pole #186. He opines that the speed of the vehicle as it entered the standing water was 54 miles per hour.[7]

On Exhibit Y-14-A, Gallagher used a green marker to draw an oblong circle where he found water: an area two feet in a north-south direction and four feet in a east-west direction, with the depth of the water varying from a depth too small to be measurable to a reading of ½ inch. This area, the center of the puddle, was six feet west of the edge line at a point 191' 10" south of Pole #187. Gallagher stated that closer to the center line, the water would measure less than ½ inch in depth. He opines that it was the right front tire which hydroplaned and thus the front of the car would have pivoted clockwise. The chance of finding yaw marks on the asphalt surface were very slim due to the fact the road was so wet from the rain that day. He opines that Audra was traveling at a minimum of 54 miles per hour.


Claimant produced thirteen relevant constructive notice witnesses who testified to actual experiences in operating their vehicles on SH 638 during rainy or wet conditions.

Matthew Berke has lived and worked on Route 14-A since 1992 and testified that "[w]hen it rains, there's a puddle that gathers right in front of the abandoned house. . . it covers the entire northbound lane. . . . the worst case scenario it's probably ten feet long, and it's probably a good four to five feet wide. . . . [that the condition occurs] at least a dozen times a year . . . [and that the accumulated water] would be at least an inch and a half deep on the white hand line." With a good, steady and heavy rain, water will accumulate in the entire northbound lane. He never notified any public authority about the water accumulation condition. He actually heard this crash and saw that a car had hit a utility pole; it was dark out and it was raining.

Kristina Francisco stated that in1994 she encountered a two car length stretch of water on the northbound lane in front of the abandoned house. She never notified any public authority about a purported water accumulation problem.

Mark DeMaria travels this road daily. He estimates the accumulated water in front of the abandoned house in the northbound lane to be thirty feet if it is raining "cats and dogs" and otherwise from ten feet, if raining lightly. He finds this area to be a "sneaky spot." He never notified any public authority about a purported water accumulation problem.

William Fordon is a daily driver of Route 14-A and, when it is raining, water accumulates for a distance of two car lengths, and on occasion covers the entire northbound lane to a depth of three to four inches. He never notified any public authority about a purported water accumulation problem.

Donald Cook used to live on Route 14-A and drives this road two to three times a day. When a good solid rain occurs, water accumulates in front of the abandoned farmhouse in the northbound lane about a car length long and a car width wide, to a depth that would cover your shoes. He never notified any public authority about a purported water accumulation problem.

Heath Strassburg drove this road daily and testified that when there is a light rain, water accumulates in tire ruts and, if a steady rain, water would form across entire lane for a length of 75 feet to a depth of one inch. There was no accumulation in the southbound lane. She never notified any public authority about a purported water accumulation problem.

Richard Comeau drove this road daily and on rainy days he observed water in the two tire ruts in the northbound lane which generally puddles two inches deep for 100 feet or so, and noted that sometimes the entire northbound lane is covered with water. He never notified any public authority about a purported water accumulation problem.

Brian and Rebecca McCarthy stated that on rainy days there is standing water about three car lengths long across the entire northbound lane, but they thought that both lanes were bad. They first noticed the water accumulation condition in 1995, but Rebecca testified that she never notified any public authority about a purported water accumulation problem.

Ronald Larson states that he travels this road two to four times a week and "since the repaving about 10 years ago, the road has settled where the tires go through there a lot and it collects rainwater like a trough." He finds the water is 75 feet long in the northbound lane and sometimes the entire northbound lane is covered. He never notified any public authority about a purported water accumulation problem.

Kirk Reynolds stated that he drove the road daily from 1995 to 1996 and he finds "standing water if it rained for any period of time" and if it rained hard, the water is across the whole road for a distance of 35-45 yards.

Carolina Bush traveled this road two to three times a week for nine years and finds a car and a half length of water occasionally across the entire northbound lane. She never notified any public authority about a purported water accumulation problem.

Ann Minns states that she has traveled this road two to four times a day for 20 years and when it rains she noted pools of standing water in the driving lane where the tire groove is, and when it is a heavy rain it encompasses the entire northbound driving lane for a width of four feet. She first noticed the condition in 1993. She finds the depth of the water to be six inches deep. She never notified any public authority about a purported water accumulation problem.

Clifford Townley testified that he has lived on Route 14-A all his life and he is offered both as an actual notice witness and as a constructive notice witness. He is currently employed by the New York State Department of Transportation (DOT) and has worked since 1988 at the Canandaigua residency as a Highway Maintenance Worker I. He drives SH 638 daily and states that during heavy periods of rain at mile marker 1070 there is a ‘ponding' area in the northbound lane in the left driving tract near the center line which is two to three feet wide, 30 to 40 feet long and two inches deep, and he states that "the blacktop, I believe, is a couple inches low there." He also states that during a heavy rain the water covers both lanes, basically the whole road surface; a condition that he observed between 10 and 20 times a year since 1991.

He states that he orally reported the water ponding condition to Mark Hainey, his supervisor, in a conversation during 1991 - 1992: "we were all just standing around on the shop floor talking about different things, . . . and nothing has been done to [correct the problem]." He never reported this problem to anyone else at DOT but maintains that he told Hainey two or three times about it.

Townley had made other reports of road conditions as part of his daily duties with DOT, "More than once a week . . . [hundreds of times] . . ." to his supervisor, Hainey, and to the Resident Engineer and to Ray T. Wood. Townley purportedly voiced numerous concerns over the quality of work that the contractor performed during the 1991 repaving project on Route 14-A and he alleges that he discussed these concerns with the Resident Engineer, Wood, Hainey and "I voiced them to about anybody I could voice them to as to why they were done the way they were."

Townley has previously gone to the Resident Engineer to express concerns, but he did not bring his concerns over Route 14-A and in particular mile post 1070 to his attention. He did not telephone his concerns to the residency to institute a formal complaint process about mile marker 1070, even though he was familiar with that procedure: "I knew to call in when there was a problem." He had used the call-in system to report dead deer, signs down and potholes.

Townley's alleged characterization of reporting the conditions that he had observed on SH 638, at mile post 1070 were made in the context of casual conversations with his co-workers and supervisors who did not respond or reply to him, basically saying and doing nothing. There was no formal specific complaint made, orally or in writing. He alleges that he had three separate meetings with Hainey, and each time he alleges that Hainey said nothing. Townley then just dropped the entire matter, bringing it up again only after the accident. For a long time employee of the DOT who was used to reporting dangerous and hazardous conditions to his superiors, I find his allegations incredible and I do not credit his testimony.

Dennis Reynolds testified for the Defendant that he drives Route14-A to Geneva daily and, prior to 1996, for a period of one year drove in rainy and wet conditions and does not recall any problems on the road relating to water.

Merton Edwards has been the Resident Engineer for Ontario County for DOT since 1998. He testified about the road history and stated that in 1947 this section of highway was built under Contract RC-46149 and, other than normal maintenance, this section was overlaid with two and one-half inches of blacktop in 1969; in 1984 there was a shoulder project for ‘double treatment' to the four-foot shoulder on both sides of the road surface; again in 1988 the shoulders were repaired between mile markers 1069 and 1078, and then in 1991 this entire section was reconstructed.

Ray T. Wood is the Highway Supervisor II assigned to Ontario County since 1992 and estimates that in a typical year he would travel SH 638 two times each week, and he noticed no irregularity of the road surface during rain. He specifically denies that Townley ever expressed any concerns to him about water accumulating on the pavement in the area of mile marker 1070.

Mark Hainey has been a Highway Maintenance Supervisor II since 1991 and was assigned to Ontario County. He stated that he would drive SH 638 northbound on a weekly basis and that during rainy or wet conditions "everything seemed to be fine." He specifically states that Townley never complained or stated to him that water was accumulating at mile marker 1070 or the area near M&B Auto at SH 638 prior to 1996.

Claimant's licensed land surveyor, James Glogowski, produced a series of detailed surveys[8] of that portion of SH 638 where the water was allegedly allowed to accumulate and most particularly at the area at the point 191' 10" south of Utility Pole #187. To show the road elevation profile, he commenced at Station 45+00 and continued to Station 47+00, and created 38 individual cross-section stations. At each station he took a total of 13 readings or points, which included the southbound as well as the northbound lanes of traffic. The field survey was accomplished with a transit and a reading rod. The rod used was a Chicago rod which has black demarcation lines which represent precise and visible gradations of 1/100th of a foot. The space between each marked black line of that rod is an area which can represent ten invisible gradations, each of which represents 1/1000th of a foot. The 1/1000th of a foot measurements are estimated by the surveyor in the field using the scope, and they represent not actual precise readings, but subjectively the best estimate of the then transit operator. Glogowski stated in preparing the blow-up drawing (Exhibit 27-B) that "We shot directly to a 1/100th and then we estimated to the 1/1000th." I do not credit the 1/1000th readings as exact measurements as they represent purely subjective individual estimates of invisible markings, but I will use them in comparing the surveyor's elevation to elevation readings.

Glogowski also created an enlarged drawing showing Stations 45+00 to 46+50 [9] to describe that there was an area where there was a depression (hatched area) and he alleged that he discovered therein one reading of a ½ inch depression at Station 45+70, but most of them were "just a little bit over 1/100th of a foot" (approximately 1/8th of an inch).

Daniel Suave, the Defendant's land surveyor, testified that he prepared the vertical cross section elevation survey maps[10] laid out along the center line of SH 638 with the 1/100th of a foot scale. He states that to measure to within 1/1000th of a foot "was implying more accuracy than was actually possible shooting blacktop pavement" because "it's made up of stones and - - aggregate and stones and tar and then there are small variations within it that you can't - - you can't recreate the shot within that - - that amount." At each ten foot station he also took five readings in each lane of traffic between the edge of pavement (white line) and the centerline of the highway. He recorded the exact positions of his survey and he specifically marked with an "X" the cross points at each station, while the Glogowski survey does not.

Suave located the position of 191' 10" south of Utility Pole #187 to be between Stations 45+80 and 45+90, and it actually is at Station 45+83.6. There is no edge of shoulder data between Stations 45+50 and 46+00. The Glogowski and Suave surveys accurately depict the location of the alleged ponding but with different stationing.

I find that both surveyors prepared their surveys of SH 638 with one hundred foot distances between whole number stations in a north-south direction, and with increments between each whole number station. Both agree that the pooling of water found by Gallagher corresponds to a point 191 feet 10 inches south of Utility Pole #187. The Claimant's surveyor was not present on site when his measurements were taken; used 1/1000th of a foot elevations, and he testified on direct that there was one ½ inch depression which was at Station 45+70. However, on cross examination Claimant's surveyor admitted that he was incorrect and the actual depression was 3/16th of a inch. He also admitted numerous errors between his field notes and the maps.[11]

In contrast, the Defendant's surveyor was on site when the measurements were taken; used 1/100th foot elevations; rounded up to the nearest even number, and did not show elevations for edge of shoulder between Stations 45+50 and 46+00 which is the area of the ponding water. Defendant's surveyor specifically marked his elevations with an "X" on his drawings, and he committed eight errors between his field notes and map between Stations 44+30 and 46+00, of which the closest to the pooling site was at Station 45+70, and those errors were of a maximum difference of 1/8 of an inch.

The Glogowski surveys, as prepared and admitted into evidence, proffered a single ½ inch depression reading at Station 45+70. The measurement of elevation difference did not withstand cross examination. Glogowski admitted that the center line readings on the maps read 36.251, but the field notes recorded 36.255, and the field notes control; at Point 6 (left tire track) where the maps read 36.2 but the field notes recorded 36.240, and the field notes control, and finally at Point 5, where the maps read 36.251, but the field notes recorded 36.250, and again the field notes control. Thus, the elevation differences were 36.250 minus 36.240 which equals 10/1000th of a foot or 1/8th of an inch, and 36.255 minus 36.240 which equals 15/1000th of a foot or 3/16th of an inch. This difference, with the corrected figures, supports the greatest elevation difference in the northbound lane as 15/1000th of a foot, or 3/16th of an inch, which is a 62% difference, a 62% decrease from Claimant's surveyor's initial incorrect finding of the ½ inch difference.[12]

It is clear that the single survey point at which the Claimant alleged a ½ inch depression was incorrectly recorded, and then relied upon by the other opinion witnesses presented by Claimant. Indeed, it also appeared to initially support the investigation of Sgt. Gallagher at the scene.

Claimant next produced its Professional Engineer (also a teacher and licensed land surveyor) Roger Park, who defined several terms including his definition of hydroplaning as the "parting of water between the tires and the pavement and the contact pressure or area there is less than necessary. . . it's . . . a loss of friction."

Park visited the scene in the fall of 1998, and in his examination of SH 638, he opined that the road was "[i]rregular non-uniform and inconsistent pavement section that was irregular to the point of it not being consistent with anything that would be a typical or standard or were acceptable." He stated that he visually located a portion of the road surface with a birdbath or depressed area that would hold water and further that at the point approximately 190 feet south of Pole #187, water can accumulate in the northbound lane. He determined that the surveys of both Claimant and Defendant showed "some deformation, [as] the manner in which the surveys were conducted was a little different." His analysis of the Claimant's surveys "showed water depths up to a ½ inch in this water surface" and Defendant's survey showed that "there would be water accumulation of at least an 1/8 of an inch present in those pavements." He found this accumulation area to be twenty feet long across the width of the pavement. Based on these assumptions, he determined that water can accumulate in the northbound lane 190 feet from Pole #187. Since Park assumed that this condition existed in 1996, he opined that the project in 1991 "as constructed failed to meet the objectives of this report and the project." He thus concluded that the presence of standing water would be a dangerous condition or hazardous area for motorists using the roadway.

Park states that his basis for these findings is the review of "all the documents; the police report, the surveys, the site visit, and 40 years worth of training and experience and training in this work," and states that the survey data would be more accurate than his ‘eyeballing the area.'

I find that Park's allegations of 1991 work concerning "the project as constructed failed to meet the objectives of this report and the project" and the existence of a "birdbath" must be rejected as pure speculation and, at best, his "birdbath" area is essentially a flat area. He also opines that as little as 1/10th of an inch of accumulated standing water on a highway would "be a dangerous condition or hazardous area for the motorists using the roadway."

Park further opines that in 1991, the Defendant, in the construction of Route 14-A at a point 191 feet from Pole #187 intended to place either a superelevation, a roof crown or a transition from superelevation to roof crown. I find his testimony to be speculative at best and not of any assistance in supporting a breach of some duty in the construction of 1991. I do not credit his testimony or conclusions that the plans, drawings or specifications were not within accepted engineering standards for the placement of the transition as actually placed by the Engineer-in-Charge (EIC).

I also decline to credit his conclusion that the EIC in 1991 had a duty to review the 1946 as-built drawings to assist him in determining the position of the transition point. He finds a violation of standards in that "the transition out of the superelevation of the curve was made coincident with the low point of the sag vertical, which is against good practices, . . . was ignored by placing the transition in the low point of the sag vertical . . . ." concluding that this created a hazardous condition.

He also claims that the alleged notification by Townley to his supervisors created a duty to investigate and verify, and if sustained, to then correct the condition. He also opines that warning signs were warranted due to the notice of the dangerous condition by one of its employees. Park accepts Townley's statements as true, a conclusion which I address below.

Park admits that the greatest deviation of elevations is 5/1000th's of a foot or approximately 1/16th of an inch within the shaded areas of Exhibits 27-A, 27-B and 28-A, that is in the left tire track of the northbound lane, and he states that "A 1/16th might be reasonable, you know, it can happen. I don't know that it's reasonable, but it can happen[,]" and admits that a 1/16th of an inch difference in asphalt concrete is not unexpected five years after it was overlaid.

Park admits that New York State adopted its own 3-R[13] standards and thus were not bound by the Special Report 214 for 100% State funded projects, and that the 1946 plans do not indicate or require any degree of superelevation or banking in the curve at issue here.

In general, Park expects a perfect road surface for all roads in all years after construction, and, in his opinion, imposes upon the Defendant a duty to insure perfection in its entire State-wide roadway system, an unobtainable and unfathomable threshold.

Claimant's consulting engineer and accident reconstructionist, Michael Pepe, defined two kinds of hydroplaning: (1) Dynamic hydroplaning is "basically, as the tire is going down the road, a wall of water builds up in front of it. The tire no longer maintains contact with the surface of the road, and it's basically riding on a film - - fluid film"[14] and (2) Viscous hydroplaning as "it tends to lower the coefficient of friction or the drag factor" where the fluid creates a reduced friction level between the tire and the road surface, even though the tire is still on the roadway. Pepe finds four factors which bear on whether or not a vehicle will hydroplane: (1) depth of the water; (2) condition of the tires; (3) depth of the tire tread, and (4) tire pressure. He finds that hydroplaning can occur with 1/10th of an inch of water.

Pepe visited the site in 1998 and visually did not see a crown or grade associated with that particular area of the accident. He measured the Ford tire tread depth to be: left front - 5/32"; left rear - 3/32" and at the edge - 2/32"; right rear - 3/32", and right front - 4/32" to 5/32". He measured the crush factor to be 33 inches. He did not use the Crash III Algorithm methodology and he found some discrepancies in the Glogowski survey (Exhibit 27-B), but none in the cross hatched (Exhibit 27-B) area. However he stated that in the cross hatched area water could accumulate.

Pepe opines that there is a location on Route 14-A that constitutes a dangerous condition to motorists during periods of rain and locates that position as 191 feet south of Pole #187. He finds an area of standing water where depths can accumulate sufficient to cause hydroplaning, of either viscous or dynamic hydroplaning, which presents a hazard to motorists. He concludes that the cause of the accident involving Audra Harris was "loss of control . . . by encountering the standing water." Pepe opines that the speed of the Harris vehicle at impact with the pole was 25 to 30 miles per hour and that the speed of the Harris vehicle when it entered the standing water was 50 to 55 miles per hour.

Pepe concludes that the standing water as described in the police report was the factor that caused this accident. He vacillates and does not support his methodology in measuring crush from which he determines speed at pole impact, such as considering other measuring protocols, front end collisions, low speed frontal impacts, smaller and compact vehicles, the use of the coefficient of friction the same on pavement and ground; the depth and size of the water; and he assumed both front tires hydroplaned.

Philip Falconer, a meteorologist, testified about post-accident rainfalls. I credit his testimony that on the date of this accident, September 17, 1996, there was a total rainfall of .90 inches, and that as of 7:00 p.m., at the time of this accident, a total of .70 inches of rain had fallen since 8:00 a.m. For the five days preceding the day of the accident, there was .50 inches of rainfall on the 12th; 1.50 inches on the 13th, no rain measured on the 14th or 15th, and .10 inches on the 16th, for a total of 2.10 inches of rainfall.

The prime contractor, Chemung Contracting Corporation (Chemung), which was awarded the contract for the concrete resurfacing of the 7.8 mile portion of SH 638, established through the testimony of its vice president that the contract was awarded in the spring of 1991 for asphalt concrete resurfacing on Route14-A in the Towns of Geneva and Seneca, known as State Highway Nos. 5323, 635 and 638.[15] The Chemung Officer testified that it was a resurfacing project with a slight amount of reconstruction of a box culvert and plate arch area, and a basic resurfacing of the highway with several lifts of blacktop to accomplish a true and leveling course first, then a binder course, and finally a top course. The State of New York Engineer-in-Charge (EIC), Frederick Nelson, and various other inspectors were on the job site to monitor the work performed and to ensure that the work was done in accordance with the plans and specifications.[16] These documents include the general design of the road elevation tables at road curves which show the length of each curve, the bank or superelevation of the curve, and the transition links entering and leaving the curve.

The calculation of the curve geometry is done by the EIC in the field under existing conditions.[17] In the area of Milepost Marker 1070, the existing surface of the road was resurfaced with a true and leveling course, and an intermediate minor course and a top course. The work was physically completed in December 1991 and formally accepted on March 25, 1992.[18] I find that there were no changes made to the superelevation tables in the resurfacing project in 1991, and I also find that the record drawings of the prior construction job in 1946 were available to both the contractor and the EIC.[19]

Frederick Nelson was the former DOT Engineer-in-Charge (EIC) on the 1991 7.8 mile construction project, designated Contract 253686 for SH 638, which was a 3-R project. This was the resurfacing of an existing highway with drainage, and Nelson had no intention to change the road profile (alignment in elevation) or alignment (flattening a curve or removing a curve). There were three courses of asphalt concrete which were applied under the 1991 project, to wit, the truing and leveling course (in such depths as ordered by the EIC to meet field conditions), the binder course (1½ inches of Item 403.13) and the top course (1 ¼ inches of Item 403.1901).[20]

Nelson did not use or refer to the record plans of the 1946 original construction as he knew that during the intervening forty-five year period maintenance work including overlays, shoulder widening and surface treatments had been performed and additionally the 1947 plans show one long curve of 1600 feet, while the 1991 plans called for two curves at the same location. The necessity of referring back to the 1946 as-built plans of the reconstruction of the road to determine where the superelevation points were then established as a basis of where the 1991 start and endings should occur is impossible, as the 1946 plans do not contain mile post markings and there was only one curve reconstruction. The Claimant's assumption that the sag existed in 1946 and continued to exist in 1991 is belied by the Road History Card (Exhibit CC, p 2) which reflects extensive pavement patching and treatment together with general maintenance from 1951 to 1990. I find that there is no requirement or standard that a EIC needs to be familiar with 44 year old record plans when an EIC commences a project as is in issue here.

Nelson laid out the curves with a transition-in and transition-out process which is the method of changing the road surface from a normal crown center to a superelevated curve and then back to a normal crown center. The effect provides a drainage pattern for the road as it enters and leaves a curve. Usually increments of change occur every 25 - 40 feet, which are the locations where the EIC sets out the change in a highway as he plans to apply road asphalt to accomplish a change from a straight road with a normal crown center to a curve. He starts by plotting in the field the start of the curve (transition-in) and, in increments, changes the elevation until the center of the curve (full bank) and then plots the return to normal crown center. Transition-in is the start of going from a normal crown center to a curve; full bank is the center of the actual superelevation, and transition-out is from full bank returning to normal crown center. To lay out the transition increments, one needs to locate the point of curvature and the point of tangent. The EIC considering the field conditions "had the discretion to vary the length of the transition, and I have the discretion to vary the beginning and the ending point of a transition which is directly relative to the point of PC, point of curvature and point of tangency." There are usually six increments of change in this process and Nelson used increments of approximately 40 feet in 1991 and stated that one of these increments would essentially be flat.

Nelson states that the post-accident 1998 surveys show that between Stations 45+50 to 46+20 the profile shows an essentially flat area 70 feet in length, prior to the road returning to normal crown elevation. However, he states that his practice when constructing the 1991 project was not to exceed one increment of flat or 40 feet, a standard he believes he followed.

The sag vertical curve (a low point in a vertical curve) which is the spot where the water was found by Sgt. Gallagher, was 80 feet south of Mile Marker 1070 (Station 47+00) and is within the flat area of the transition. This area is roughly that area that Sgt. Gallagher located as the center of the pool of standing water immediately after the accident.

Nelson opines that "asphalt concrete is referred to as a flexible pavement versus a cement concrete which is a rigid pavement." He continues: "Environmental conditions such as freeze/thaw, use of salts, heavy axle loads, traffic volumes, studded snow tires. . . . all tend to deteriorate [asphalt concrete]."

Kenneth Passero, a Professional Engineer, testified that the 1991 project was a 100% State funded 3-R project in accordance with New York State Standards for non-freeway 100% state-funded resurfacing, restoration and rehabilitation project dated August 10, 1988.[21] Passero defines "sag vertical curve" as a low point in a vertical curve and states that this sag was within the flat area in a transition from superelevation to full crown. However in this case the flat area was longer than usual, but created no problem if the area drained properly after construction. Passero opines that based upon Exhibits B and C, it would be physically impossible for water to accumulate in the northbound lane between Stations 45 and 46 to a depth of ½ inch.

The accident history from January 1, 1987 to December 31, 1995 (Exhibit Z), and the accident history from January 1, 1995 to December 31, 1996 (Exhibit AA), reveal no accidents attributable to wet weather conditions after the 1991 project but one accident in the southbound lane in 1987. I find that there was no warrant mandating signage at or near Mile Marker 1070 prior to 1996, considering the lack of accident history of SH 638, the absence of actual complaints that a wet pavement condition existed, or any actual notice of a water pooling area. I note that 2/10ths of an inch of rain fell in the hour before the accident; that the northbound lane was flat at 191 feet 10 inches, and that it was flat between Stations 45+50 and 46+20 with the lowest elevation being 744.83 at Station 45+80 in the tire mark with the center line elevation of 744.84 at Stations 45+80 and 45+90. This flat area extended for approximately 70 feet between Stations 45+50 to 46+20, and, within that area, the road passes over a sag vertical curve or low spot.

Raymond McHenry, a Professional Engineer, first examined the Ford and measured the tread depths of all four tires, and found, to a small degree, different depths from the Gallagher and Pepe measurements, but concluded that while he used a representative number, they all substantially agree. McHenry reconstructs pole impact speed, using different situations and computations as 43.9, 40.7, 39.4 and 36.5, (ranging between 36.5 and 43.9 miles per hour) and then opines that the speed of the Harris vehicle at pole impact was 41.4 miles per hour. He then reconstructs the initial speed at 65.6 miles per hour (see Exhibit M), but if he reduces the speed at pole impact to 35 miles per hour, accounting for margins of error and using the lower percent in favor of the lower speed, it would reduce the initial speed to 59.6 miles per hour, while if the higher margins of error are calculated, the initial speed could have been 81.5 miles per hour.

McHenry states that for full hydroplaning to occur, "The water depth would have to be sufficient to exceed the tread depth on the individual tires and the condition would have to persist for approximately 30 feet [in the direction of vehicle travel] in order for full hydroplaning to fully develop." Assuming Sgt. Gallagher's findings on the evening of this accident, McHenry concludes that hydroplaning did not produce this accident as "The front wheel at any speed above 30 miles an hour clears the path for the rear wheels, so the only wheel that would be potentially able to hydroplane would be the front wheel, and it doesn't persist long enough to have hydroplaned."

McHenry opines, based upon his reconstruction of the accident, that the cause of the crash was a combination of excess speed and excessive steering corrections. And he also states that " the presence of water [on the road] had nothing to do with the control loss as compared with the very large evasive steer inputs." In short, Audra overcorrected to the left and then to the right, and the loss of control followed the evasive turn to the left. McHenry disagrees with the Gallagher opinion that the right front tire hydroplaned and that there was sufficient water on the road to cause hydroplaning.

He agrees that a highway "should not have a significant area and depth of standing water. When rain is coming down, there are areas that drain more slowly, but there should not be a large area of significant depth accumulate." He states that it takes a minimum of 40 miles per hour for a vehicle to hydroplane and agrees that if you have an sufficient accumulation of water on a highway for a sufficient distance and you combine that with worn tires and speed, loss of control could occur. It is his opinion that the wet pavement played a distinct part in Audra's loss of control, because the friction coefficient is lower than it would be on dry pavement – in short the water made the road slippery. It is his opinion that when Audra turned her vehicle sharply to the left, that action started the maneuver that ended in a loss of control but it was the following sharp steer to the right that ultimately caused the loss of control. He specifically finds that there was no loss of control until the steer to the right.

I credit McHenry's procedures used in measuring crush and his parameters in determining road speed and speed just prior to utility pole impact. I also credit fully his opinion that there was not sufficient water depth and accumulation to cause the Ford to hydroplane.

In sum, I do not credit Townley's testimony regarding his putative oral notice to Hainey or Wood. He alleges a fuzzy and uncertain memory of a casual conversation on the floor of his workplace. Given his history of reporting dangerous conditions to the DOT,[22] I cannot reconcile his casual attitude of not continuing his complaints or creating a written complaint when the "dangerous conditions" were not corrected after his alleged oral complaints. The perceptions of the depth and size of alleged accumulations of water by other constructive notice witnesses varied widely, only showed a perception of water accumulation and slow drainage, and were not of sufficient soundness and had inadequate probative value individually or collectively to allow any inference of constructive notice. While I do not doubt their sincerity or intend to impugn their veracity, not one of these witnesses ever notified any town, county or state official of their concerns. To infer from their gossamer and incompatible testimonies that the State was on constructive notice of the conditions putatively extant would open a Pandora's box.

It is well established that the State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (see, 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 Auth., 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 (see, Brooks v New York State Thruway Auth., supra; Rinaldi v State of New York, 49 AD2d 361, 363). Just because water or snow and ice is present on the roadway at the time of an accident does not, by itself, establish that the State was negligent (see, Timcoe v State of New York, 267 AD2d 375; Sellitto v State of New York, 250 AD2d 754; and see, Fiege v State of New York, 189 AD2d 748, where the claimant failed to show that a recurrent dangerous condition existed in a specific area). If negligence is established, then it is Claimant's burden to establish that such negligence was a proximate cause of the accident (see, Bernstein v City of New York, 69 NY2d 1020), an issue I need not review here.

Although the proof did not sustain the accumulation of water argument and thus there was no dangerous condition, it is not necessary to distinguish those cases cited by Claimant which impose a duty and liability for a breach thereof. However, in the interest of judicial economy particularly in the event of appellate review, I will briefly address the same. The circumstances here differ from those in Kelly v Town of Islip, 141 AD2d 611, where it was conceded by the Town that they were on notice of flooding conditions, and in Nelson v State of New York, 105 Misc 2d 107, 111,where there was a record of previously filed complaints about standing water covering the northbound lanes over a distance of some 200 feet and where the late Judge Thomas Lowery held, "there is no doubt that the standing water constituted an unreasonably dangerous condition . . . [that] this condition was recurrent, and had existed for many years." In sharp contrast, here there are no prior complaints, no actual or constructive notice, and no finding that the accumulations of water could be considered ‘standing water' or constituting a dangerous condition (also see, Green v County of Niagara, 184 AD2d 1044). Reliance upon Stern v State of New York, 32 Misc 2d 357, affd, 18 AD2d 1115, is misplaced as there the court found that the road surface became abnormally slippery when wet from rain due to oil having been deposited from motor vehicles during traffic congestion, and of course there was a history of some six prior accidents at the same location in the past year, with corroborating testimony about slipperiness by police officers who investigated the accident in question.

In conclusion, I find that on SH 638 on September 17, 1996, in the northbound lane of traffic at the accident scene that: (1) there is no creditable evidence that any tire on the Harris vehicle entered any specific accumulation of water; (2) there was only one spot where water depth could approximate 3/16ths of an inch, and that the immediate surrounding depths read from nil to 1/8th of an inch; (3) there was not sufficient water depth and length to produce hydroplaning; (4) the basic opinions of both Park and Pepe relied upon flawed assumptions that the Glogowski surveys were accurate and that there actually was a location where there was a ½ inch differential in elevation; (5) the Harris vehicle, prior to the loss of control, was traveling between 60 and 70 miles per hour; (6) a flat area of some 70 feet of road surface existed in 1996, but that water would not pool or accumulate, but would drain, albeit slowly, in this flat area; (7) there was no actual or constructive notice to the Defendant; (8) there was no notice of a dangerous condition by reference to the road accident history; (9) there was no duty or warrant to sign or limit speed on the road; (10) the accumulation of water found by elevation differences occurred in tire rut areas of limited length of the road surface, and (11) there was no deviation from the plans and specifications in the resurfacing project of 1991, and the project was not negligently constructed.

Claimant urges that the State created the dangerous condition during the 1991 construction, a finding that would obviate the need for a showing of notice since it alleges a condition created by the Defendant itself. But since I have found that no dangerous condition existed, it undermines Claimant's theory that the road was negligently reconstructed. In any event, I find that there was no credible proof that SH 638 was defectively constructed in 1991. Furthermore, since the proof did not demonstrate the existence of a dangerous condition, it inherently preempts liability, since there is no duty to give notice of a non-existent condition.

The Claimant and Defendant produced numerous surveys to support their positions and, even with their microscopic examination of SH 638 at the area of this accident, they found only one location where the road surface elevation deviation approached 3/16ths of an inch, and that was within a tire rut. The remaining areas were 1/8th of an inch or less. I decline Claimant's invitation to impose upon the Defendant here, and by extrapolation on any of the roads encompassing the massive state highway system maintained by the Defendant, the duty to remove water from its road surfaces, including tire ruts, where the surface elevation deviates as little as 1/8th to 3/16ths of an inch.[23] Imposing such a duty for such a minimal accumulation of water in so small an area, would convert the State to the role of an insurer of the safety of its roads, clearly an untenable result (Tomassi v Town of Union, supra, 46 NY2d 91).

What I do find is that the proximate cause of this tragic accident was a combination of a young driver, some 2 ½ months shy of her 17th birthday, whose driver's license was issued on April 19, 1996, about five months prior to the day in question, who was operating the Ford at an excessive rate of speed on a dark wet road surface, who suddenly encountered a perception of either water noise or found her vehicle in the center of the roadway, and then, with one hand on the wheel, turned hard and fast in an oversteer and lost control. The emergency doctrine is not applicable here.

The parties have stipulated that, as a result of the injuries sustained in this accident, Claimant suffers from a loss of memory that makes it impossible for her to recall events at or about the time of the accident. While the Defendant argues that the relaxed burden contemplated under the Noseworthy doctrine (Noseworthy v City of New York, 298 NY 76; also see, Schechter v Klanfer, 28 NY2d 228), should not apply because the parties are similarly situated with respect to the accessibility to the facts (citing Ether v State of New York, 235 AD2d 685), even allowing for the diminished burden of proof contemplated under a Noseworthy scenario does not benefit Claimant. The proof here devolved to questions relating to notice and expert opinion, neither of which is affected by Claimant's memory loss or any lessened burden of proof (see, Freund v State of New York, 137 AD2d 908 lv denied 72 NY2d 802). My conclusion as to the cause of this accident, excessive speed under the conditions, was determined by the expert evidence before me, and even assuming Claimant's unavailable but putative testimony in a light most favorable to her, would not have served to alter that assessment.

Like the Defendant, Claimant had the benefit of outstanding and dedicated lawyering, and her arguments could not have been more ably presented. Of course, no monetary award could ever compensate for the stolen youth and health of a young adult like Audra Harris. But while we might all wishfully point a finger when tragedy befalls us, to improvidently ascribe culpability to the State when the proof showed none would merely compound the tragedy by temporarily providing a measure of compensatory damages, only to have such a finding reversed on appeal.

The claim must be and therefore is dismissed. All motions heretofore not decided, including Motion Nos. M-60749, CM-60847 and M-60955, are now denied.

Let judgment be entered accordingly.

September 19, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]For syntactical ease, any reference to Claimant in the singular shall mean Audra Harris.
  2. [2]Trial Transcript (TT) pp1258 - 1265.
  3. [3]Exhibit VV-1.
  4. [4]See Exhibit 22-E.
  1. [5]Bold type indicates Trial Transcript testimony.
  2. [6]Peck also created Exhibits 6 and 7.
  3. [7]This calculation is derived from the square root of the right front tire pressure (5+) multiplied by 10.34. See Exhibits 8 and 8-A.
  4. [8]Exhibits 5, 27-A, 27-B, 28-A and 28-B.
  5. [9]Exhibit 27-B.
  6. [10]Exhibits A, A-1, B, C, D, E and F.
  7. [11]Trial transcript, pp 682 - 716.
  8. [12]TT, pp 683 - 695.
  9. [13]3-R projects involve Resurfacing, Restoration and Rehabilitation.
  10. [14]Exhibit 48.
  11. [15]Exhibit 15.
  12. [16]Exhibits 3, 4, 11, 12 and 14.
  13. [17]Exhibit 14 for contract drawings.
  14. [18]Exhibit 16.
  15. [19]Exhibit 15, p. 33.
  16. [20]Exhibit 19.
  17. [21]Exhibit 10.
  18. [22]See Exhibit DD, e.g., pp 10-11.
  19. [23]A single isolated reading of 3/16ths of an inch was of infinitesimal significance.