New York State Court of Claims

New York State Court of Claims

BAIM v. THE STATE OF NEW YORK, #2002-013-511, Claim No. 94632


Claimant failed to prove that her single-vehicle highway accident was the result of negligence on the part of the State. The testimony Claimant's expert is not credible because it was based on two critical assumptions which were proven to be inaccurate.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: NANCY HORNSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 2, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Helene G. Baim[1]
sustained personal injuries in a single-vehicle automobile accident that occurred on September 12, 1994, at approximately 8:30 p.m., on State Route 107 in Old Brookville, New York. At the time of the accident, she was driving southbound on a two-lane highway when she lost control of her vehicle and it collided with a Long Island Lighting Company (LILCO) light pole. Trial of this action was bifurcated, and this decision relates only to the issue of liability.
At trial, Claimant testified that the roadway was "moist"[2]
and "slippery" at the point where she lost control. She was driving a 1993 Lexus sedan and had just left the Brookville Diner, where she had just had dinner with her husband. She did not consume any intoxicating beverages at that dinner. Claimant then proceeded toward her home over a roadway that she had driven over approximately once a week during the 21 years she had lived in the area. She testified that immediately after she had traversed a right-hand curve, her car "suddenly" and "without warning" began to slide. She slammed on her brakes, but the car continued to the right, going off the roadway and then colliding with the utility pole. There were no witnesses to the accident. The posted speed limit on the curve was 35 miles per hour, while the rest of the roadway in this area had a posted speed limit of 40 miles per hour. Claimant testified that she was driving at the speed limit for the curve or slightly slower.
On cross-examination, Claimant acknowledged that she had observed no moisture on the pavement in the diner's parking lot or along the roadway before she entered the curve. She also acknowledged that the weather that day had been "beautiful" and there had been no rain. Claimant had no explanation as to the source of the "moisture" that she observed near the accident site. A weather report for the relevant area (Exhibit G) indicates that there had been no rain on September 10, 11 or 12.

Officer William Dodd of the Old Brookville Police Department was called to testify by Claimant. He stated that he travels along this portion of Route 107 at least once a day when he is working. Although he had no independent recollection of the accident, he identified the police report that he completed (Exhibit 1). On this report, he indicated that the roadway surface was "dry," the weather was clear; and the roadway was lighted. Officer Dodd testified that it was the policy of his department not to issue traffic summons, such as a summons for speeding, unless the offense was actually observed and, further, that police officers were instructed not to fill out the portion of the form entitled "apparent contributing factors" unless an accident had been witnessed. Officer Dodd did not conduct any investigation to determine the cause of the accident, made no measurements, and took no photographs.

This portion of State Route 107 had been resurfaced with asphalt concrete pursuant to a contract (No. D 254507) that was awarded in March 1993 and completed in August 1994. Repavement of the southbound lane in the area of the accident was completed in November 1993. The product used to pave this area was Rut Avoidance Asphalt Concrete Type 6F RA (Exhibit E, F).

Claimant's expert, Joseph S. Champagne, a professional engineer, testified that the asphalt concrete mix that had been applied to this area of the roadway during the resurfacing project contained an excess amount of asphalt emulsion. This prevented exposure of the granite stone aggregate that would ordinarily have provided a skid-resistant surface and prevented Claimant's loss of control of her vehicle. At a minimum, according to Mr. Champagne, the area should have been marked with "slippery when wet" warning signs. On cross-examination, he acknowledged that his opinion regarding the cause of Claimant's accident was based on the assumption that the pavement was wet, or at least "moist" (Transcript pp. 44, 81, 90). He also based his opinion, in part, on his conclusion that during the one-month period between completion of the resurfacing work, August 1994, and Claimant's accident, there had not been sufficient time for the excessive amount of asphalt emulsion to wear away (Transcript p. 48). This, of course, overlooks the undisputed fact that the southbound lane on which Claimant was traveling had been completed many months earlier in November 1993. Upon questioning, Mr. Champagne stated that excess emulsion would "probably" have worn off within six months after application (Transcript p. 50). He also acknowledged that he examined accident reports for this portion of the roadway, spanning a period from three years prior to well after the accident, and that despite the fact that this was considered to be a high volume road, he did not identify any accidents that appeared to be similar to the one in which Claimant was involved.

The State rested without calling any witnesses.

The State, and other governmental entities which operate public roads, owe a duty to the public to construct and keep their streets and highways in a reasonably safe condition (
Friedman v State of New York, 67 NY2d 271, 283; Carroll v State of New York, 157 AD2d 697, 698). The State is not, however, an insurer of the safety of its roadways, and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91) or allow the inference of negligence (Koester v State of New York, 90 AD2d 357). Liability will attach only where it is established that the municipality's planning decisions were made without due care or are inherently unreasonable (Weiss v Fote, 7 NY2d 579, rearg denied 8 NY2d 934; Schuls v State of New York, 92 AD2d 721), or when there is actual or constructive notice of a dangerous condition (Harris v Village of East Hills, 41 NY2d 446; Rinaldi v State of New York, 49 AD2d 361). If there is such a notice, failure to either correct or warn motorists of known hazards can be a breach of this duty (Wingerter v State of New York, 79 AD2d 817, 818, affd 58 NY2d 848). In addition to proof of negligence, an injured party must also establish that the defendant's negligence was the proximate cause of the accident (Applebee v State of New York, 308 NY 502, 506; Plantikow v City of New York, 189 AD2d 805, 806; Hearn v State of New York, 157 AD2d 883, lv denied 75 NY2d 710). The inference of a causal relationship "must be the only one which can be reasonably drawn from the facts" (Lyle v State of New York, 44 AD2d 239, 244, affd sub nom. Murray v State of New York, 38 NY2d 782), and speculation may not be substituted for proof. If there are several possible causes for an accident, liability may be imposed only upon credible evidence that the injuries resulted, in whole or in part, from the cause for which the defendant was responsible (Pontello v County of Onondaga, 94 AD2d 427).
Claimant has failed to sustain her burden of proving, by a preponderance of the credible evidence, that the State was negligent in its maintenance of this stretch of roadway or in the signage placed in the area. There was absolutely no proof that the State had either actual or constructive notice that the pavement in this area created a hazardous condition. In fact, the absence of any history of accidents similar to Claimant's would suggest that there was no defect contributing to sliding or loss of control. There was also no credible evidence that the roadway was, in fact, unduly slippery on the night in question. Claimant's unsupported impression that the road was moist, based on an observation made prior to the accident, is refuted by all factual evidence and testimony, including her own. The opinion of Claimant's expert cannot be credited because it was based on two critical assumptions -- that the roadway was wet and that the portion of the road on which Claimant was driving had been resurfaced only a month prior to the accident -- that were proven to be incorrect by other undisputed evidence.

At the close of Claimant's evidence, which was also the close of trial, Defendant moved to dismiss the claim on the ground that Claimant had failed to make a
prima facie case either that the State was negligent or that any negligence on the part of the State was the proximate cause of Claimant's injuries. That motion, on which decision was reserved, is now granted and the claim is dismissed.
All other motions not heretofore ruled upon are now denied.


April 2, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]The claim of Sheldon Baim is derivative in nature and, unless otherwise indicated or required by context, the term "Claimant" shall refer to Helene G. Baim.
  2. [2]All quotations are from the trial notes or the audiotape of the trial or, where so indicated, the trial transcript.