New York State Court of Claims

New York State Court of Claims

SCHLEIDER v. THE STATE OF NEW YORK, #2002-013-521, Claim No. 96500


The State is liable for injuries suffered by a motorist whose car overturned after skidding on ice, when evidence established that the ice was present and known to an agent of the State some four hours earlier when it caused an almost identical 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:
Defendant's attorney:
Attorney General of the State of New York
BY: PATRICIA M. BORDONARO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 29, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Trial of this action was bifurcated, and this decision relates only to the issue of liability. Many of the facts relevant to this claim were established and set forth in the decision and order issued in response to Defendant's motion for summary judgment (M-61493). That motion was denied on the ground that there were unresolved issues of material fact with respect to whether Defendant had prior knowledge of the icy condition that gave rise to the accident in which Claimant was injured and, if there was such notice, whether Defendant failed to take reasonable steps to correct the condition.

The factual background as established in the earlier motion is as follows: On January 21, 1996, on State Route 173 in the Town of DeWitt, just east of Gates Road, a single-car accident involving a party unrelated to this action, John D'Addario, occurred at 7:30 a.m. His westbound vehicle had just turned on to Route 173 from Gates Road when he lost control. The vehicle then left the road on the right (north) side and rolled over. Onondaga County Sheriff's Deputy Daniel R. Fahey responded to the accident and subsequently determined that the conditions contributing to it were "snow/ice" and stating that "slippery pavement." This accident report was not relayed to anyone else immediately, but was retained by Deputy Fahey until the end of his shift at 6:00 p.m. He also did not notify County or State agencies of the condition of the road because, he subsequently stated, he did not feel that conditions warranted immediate corrective action. Four hours after the D'Addario accident, at approximately 12:25 p.m., Claimant was traveling in the same direction on the same stretch of State Route 173. She lost control of her vehicle when, after turning onto Route 173 from Gates Road, she hit a patch of ice. The vehicle spun around, rolled over, and struck a utility pole on the eastbound (south) side of the roadway.

In connection with Defendant's earlier motion, it was determined that the instant claim against the State was not barred by the outcome of a companion action commenced against the County of Onondaga because specific notice requirements applicable to the County do not apply to claims against the State. Also considered in the earlier motion was the State's responsibility for this portion of the State Route 173 in light of a contractual agreement that it had with the County of Onondaga. Pursuant to that agreement, the County was to act "as an adjunct of the State" in clearing highways. Because of this relationship, Defendant argued, knowledge on the part of County officials such as Deputy Fahey could not be attributed to the State, as he was not acting as an agent of the State. It was undisputed, however, that both patrolling State Troopers and patrolling Sheriff's Deputies have a duty to report all hazards that present imminent danger to users of the highway, to take steps to alert passing motorists and to remain on the scene until the situation is corrected (Onondaga County Sheriff's Department directive - December 1989). Because of this interconnected relationship between the County and the State, I declined to hold, as a matter of law, that the State lacked actual knowledge of the hazardous condition. I also rejected Defendant's argument that the State could not be liable, even if notice to Deputy Fahey were the equivalent of notice to the State, because the Deputy's decision about whether to report the condition was discretionary, rather than ministerial. In its operation of highways, maintenance activities such as road clearance are proprietary rather than governmental in nature.

The issues presented by this claim, therefore, are several: (1) whether the condition of the roadway at the time of the first accident presented a hazard and danger to other drivers; (2) whether Deputy Fahey's observation of the road's condition at that time constituted notice to the State; and (3) whether the State's failure (or the failure of the County, acting as an adjunct of the State) to take corrective measures with respect to the road's condition was negligent.

Dr. John A. D'Addario, the driver of the vehicle involved in the early morning accident, testified that he was traveling from home to his work at St. Joseph's Hospital along the route that he usually took. He stated that on the Friday before, when leaving work, he had been told that there was flooding along Route 173 and, although he observed no flooding, he did notice saw horses and other indications that there had been some work activity on the road. He had also driven the same route on Saturday on two occasions when he was called into work, encountering no difficulties on either occasion.

On Sunday, the day of the accident, the weather was colder and there was a very small amount of snow in the air, and he was able to see the pavement. Driving on Gates Road and approaching the intersection with Route 173, he was able to stop, or at least slow down, with no trouble. As he turned onto the westbound lane of Route 173 and straightened his vehicle, "I hit my accelerator pedal, and within seconds after, that my car started veering out of control toward a telephone pole on the left" (Transcript, pp. 64-65). He hit the brakes, pulling the car back, and it finally began rolling off to the right. Eventually the car rolled over twice, coming to rest just in front of a large tree. At trial he identified the telephone pole toward which his car was traveling as pole No. 40. He had already been placed in an ambulance when he spoke with the officer who arrived at the scene, describing what had happened: "I was very slow through the intersection, made the complete turn, accelerated minor, you know, a little bit, and the next thing I know, I'm heading towards the pole and I try to ride it and it rolled over a couple of times.... I believe I told him... I hit ice on the road and went off and I lost control of the car" (Transcript, p. 77). He could not recall if he used the term "black ice" in speaking with the officer.

On cross-examination Dr. D'Addario indicated that he had not been rushing to work and, in fact, had intended to stop at a diner on Route 173 for breakfast. He identified the accident site as a stretch where there is frequently a good bit of blowing snow, because of a clearing on the side of the road, but said that on the day in question there were only "little wisps" on the road (Transcript, p. 82). He observed no liquid water or ice that was thick enough for him to see. He also stated that he felt the slipperiness under his car's wheels as "definitely being on the left side of the vehicle" (Transcript, p. 85).

Deputy Sheriff Daniel R. Fahey testified regarding the accident report, DMV-104, that he completed after investigating Dr. D'Addario's accident. The accident had been called in to the Onondaga County 911 Center at 7:40 a.m., and he responded because he was already in the area. He noted on the report that it was already daylight and that the weather was "cloudy," which he said would imply that it was neither raining nor snowing. He did observe some snow on the ground when he arrived. He examined the vehicle and then spoke with the driver, who was already in the back of the ambulance, who told him that the vehicle hit a patch of ice and went out of control. After the ambulance left, Deputy Fahey notified a tow operator to come get the car, had some conversation with the fire personnel who had responded to the scene, and completed the accident report. He observed the scene, noting that the vehicle had come to rest in an area of flat, barren land and that there was some snow on the ground.

Deputy Fahey took no measurements and felt there was no need to call in a photographer. He did not recall seeing any conditions that he considered to be hazardous, and his notes reflected no such observation. He stated that he never saw the patch of ice on which the driver purportedly skidded, but also stated that he did not look for it. He did, however, walk on the pavement several times in the course of conducting his investigation and making sure that the tow truck driver was able to remove the vehicle, and he noted no slipperiness. When questioned by the Court about the slippery pavement notation on the accident report, he stated that it was made because that was what he had been told by the driver. He had no reason to doubt that account of the accident, even though he did not see any slippery pavement himself. "I didn't determine whether there was an icy condition. I determined that that's what Mr. D'Addario had told me and I didn't have any reason to doubt what he told me and, therefore, I put it down" (Transcript, p. 242).

With respect to the midday accident at this location, Claimant Edwina Schleider testified that she was aware of the unusual weather beginning on Friday when there was "torrential" rain and she became aware of flooding in the general area; however, she experienced no particular difficulty driving on Route 173, either Friday or Saturday. On Sunday she had already traveled the route in question, going eastward, after having breakfast with a friend. Shortly after noon, she left home again for her office. She observed no ice on Gates Road, stopped at the stop sign, and then turned left onto Route 173. The roadway appeared to be fine and she saw no ice. Then, "I felt my car slip on ice and I went out of control" (Transcript, p. 333). Her car swung to the left towards the eastbound lane, and she eased off the accelerator. After confirming that there were no oncoming cars, she steered further to the left, turning into the curve as she had been told she should do. For a brief moment, her car traveled sideways down the road and then simply started spinning. She has no clear memories after that until the moment when she came to lying face down on grass and snow in a field on the left (south) side of the road.

Onondaga County Deputy Sheriff Terrence H. Freel was the officer who responded to the scene following Claimant's accident, and he completed the official report of that accident (Exhibit 13). He approached the accident site from the east, and when he arrived was informed that the driver had already managed to crawl out of the vehicle herself and was in the ambulance. He was told that the injury was serious and therefore did not attempt to talk to her at that time. The vehicle was totally damaged and had come to rest at the bottom of telephone pole No. 40. As shown on Exhibits 17, 17A and 17B, pole No. 40 is roughly across the road from the tree under which the D'Addario vehicle came to rest.

Following his normal procedure, Deputy Freel would have called for a tow truck and then checked the area for anything that might have flown off the car and could create a hazard. He also walked to the nearest intersection, the one with Gates Road, and in doing so observed a large patch of ice on the pavement of the westbound lane of Route 173. He estimated that it was approximately 20 feet long and about three inches thick, a measurement that he made with his fingers. He concluded that this ice patch had been the cause of the accident. Deputy Freel estimated that the location of the ice patch was less than one-tenth of a mile from the Gates Road intersection, just before Pole No. 41 (Exhibit 17-A). This location corresponds to the estimated location of the ice patch reported by Dr. D'Addario (Exhibit 17).

He did not see any salt or sand on the ice patch and did not recall that there was any pitting. He saw no other areas of ice and stated that there was no accumulated snow on the road. He called the 911 center and requested that County trucks be dispatched to take care of the ice. Some trucks arrived and "worked on the ice for a... short time" (Transcript, p. 269) and then put in a call for a grader. With the grader, the ice was scraped down as far as possible and then salt and sand were applied. Deputy Freel remained on the site for several hours, while the road was cleared and then reopened. The following day, Deputy Freel returned to the scene with an accident investigation technician, primarily in an effort to determine how the vehicle had ended up at the bottom of the telephone pole.

David Law, Onondaga County (East) Resident Engineer for the Department of Transportation (DOT), testified that he was familiar with the stretch of road on which the accident occurred and that he was also familiar with the contract between DOT and the County of Onondaga (Exhibit 1-A - previously identified by Ray McDougall, DOT's Assistant Regional Traffic Engineer and Records Officer for the Central Region of the State). He stated that the contract was actually handled by DOT's Onondaga (West) residency, and his residency's primary involvement in carrying out the contract would be to "get involved if there was a problem within our territory and we would either contact the County and/or contact the Onondaga West residency" (Transcript, p. 98). He explained that, with respect to the roads covered by the contract, if he or one of his foremen saw something on the road that needed attention, they would probably call the County general foreman and direct the County's attention to it.

Law recalled the weekend in question because there was very severe weather and a number of emergencies occurred. None of these involved Route 173, and to his knowledge there was no flooding on that road. Route 173 was not closed, because if it had been, the State would have been notified, and there were no records indicating this in the files of the residency. He also stated that if there had been flooding, as opposed to problems with ice and snow, he would have been notified, because flooding damage was not covered by the contract with the County.

When Mr. Law was shown two entries in a printout of calls made to Onondaga County (Exhibit 2) indicating that on January 20 and 21 representatives of DOT reported icy conditions on, respectively, Route 173 and 92, and Route 173 and Southwood, he could only conclude that some DOT employees noted the conditions and contacted the County without making any notation in records kept by DOT. In any event, the primary DOT records are for recording incoming calls, not those made to give notice to other parties who would be responsible for the condition in question (Transcript, p. 149). The two locations referenced in the exhibit, however, were some distance, at least several miles, away from the intersection of Route 173 and Gates Road.

Walter Vogt, a long-time employee of the Onondaga County Highway Department, identified Exhibit 3 as some of his activity logs (referred to as DEPARs) for January 1996. These records showed that he plowed and sanded Route 173 with a heavy salt and sand mix on January 20, 1996 and that on the following day, January 21, he was assigned to a sander and was again on Route 173 from 1:30 p.m. to 2:00 p.m. He was aware of a winter storm during which there was some flooding at the intersection of Route 173 and Gates Road, but he was not able to place the year that had occurred. He also recalled an accident in that area but, again, could not recall when it had occurred. When asked about road maintenance equipment, he distinguished between a dump truck (such as No. 94),which is used to haul things, a sander (such as No. 142) used to plow snow and apply sand or other substances to the roadway, and a grader (such as No. 212) used in road construction, to cut shoulders and to take mud, dirt and other debris off the road by pushing it to the side.

John Barry, another Onondaga County Highway Department employee, was a truck driver in 1996. He recalled the 1996 storm, which he described as having "just about all four seasons in one day" (Transcript, p. 165), beginning with something like a spring thaw, with heavy rain, and then freezing over. There was considerable flooding during the rain. On January 21 he was driving a truck which had both a snow plow and a sand/salt dispenser on the back. He was covering Gates Road, ending at Route 183, but had no recollection of any accident on that date.

Major Paul C. Zemenz, of the Onondaga County Sheriff's Department, stated that he was in charge of all uniformed services and operations for the department. He reviewed Exhibit 7, a directive titled "Reporting Hazardous Highway Conditions," and observed that while snow and ice, even a small patch of ice, could constitute a highway hazard, it was not always so. Similarly, the directive contemplates that some hazardous conditions require immediate correction, while others do not, the criteria being whether they constitute "an eminent danger to use of the highway" (Transcript, p. 188). An officer who reported to an accident scene would be responsible for determining the cause of the accident and also by determining whether there was any condition of the roadway that required an immediate report. Relevant guidelines (Exhibit 15) also call for areas likely to develop slippery spots to be patrolled regularly and treated as necessary. He stated that the area where Route 173 intersects with Gates Road is under the jurisdiction of three police agencies: The State Police, the Onondaga County Sheriff's Department, and the Town of DeWitt Police. When a 911 call is received, it goes out to all units and the one that is the closest responds.

Gary Foster, a labor crew leader with the Onondaga County Highway Department, confirmed that a road grader, rather than a plow, would ordinarily be used to scrape off ice that has built up on a road. Referring to Department records, he stated that the equipment sent to the accident site on the afternoon of January 21 was No. 212, a grader. Foster also stated that the intersection of Route 173 and Gates Road forms something of a "low point" on Route 173, with the road going up hill both to the east and west, recalling that water would collect in the area, particularly on the north side of the road, and sometimes flood. On a review of the relevant records, he also stated that there were no notations of any complaints of ice conditions or flooding at the Route 173 and Gates Road location earlier in the day of January 21.

With respect to the area in question, the State and the County of Onondaga entered into a contract, pursuant to Highway Law §12, by which the State delegated some of its responsibility for maintenance and management of the road to the County (Exhibit 1A). A portion of that contract provided that the County, "as an adjunct of the State," shall clear the highways of snow and ice "to the extent that the COMMISSIONER [of DOT] may deem necessary to provide reasonable passage and movement of vehicles over such highways" (¶4). The County Superintendent of Highways of the County was designated as the person "who shall be in responsible charge and shall have supervision of the performance of the work under this Agreement" (¶6). If the County's work on snow and ice removal was determined to be inadequate, DOT had the option of canceling the agreement (¶2).

An Onondaga County Sheriff's Department Directive G-D-1039-89.04 (Exhibit 7) provides that if an officer discovers, either during normal inspection or during the investigation of a traffic accident, a highway or roadside hazard that presents an imminent danger to those using the highway, the officer is to call the Data Clerk in Control Center, describe the problem, direct that the appropriate agency be notified, and remain on the scene to provide direction and control until relieved or until the situation is corrected.


Jerome J. Thomas, a civil engineer, testified on behalf of Claimant and stated that he had reviewed the accident report and EBT transcripts and made a physical inspection of the accident site. He found the pavement and shoulders on the south side (eastbound lane) to be proper, with no indication that water would accumulate on the surface of the road. On the north side, however, he observed that the westbound lane showed more "alligator" cracking and degeneration on the shoulder. This, he felt, was the result of an elevation of the terrain on the north and the existence of an earthen berm, 10 to 15 feet high, about 50 feet away from the highway. The berm is about 1,500 feet long and would cause water from rains to run toward the road, creating a ponding effect and wearing away at the shoulder and pavement. (Other than the berm, the area on both sides of the road at this location was open, grassy fields.) He stated that a comparison of DOT photo logs from 1993 to 1998, with pictures taken by Mr. Thomas this year, show a deterioration of the westbound (northern) shoulder and pavement (Exhibit 23). The photographs also showed signs that more traffic was beginning to go around on the right side of the road, apparently because of traffic waiting to turn into the adjacent housing development from Gates Road. "So you have a combination there of the water, and you have the action of traffic that, of course, is part of the reason it's -- the pavement, the shoulder area is broken at that point" (Transcript, p. 366).

When questioned about the weather related events of the weekend of January 19-21, 1996, Mr. Thomas stated that the extensive rain could create problems with flooding and that the maintenance crews would need to be particularly vigilant in areas where water collected to keep them free of accumulation. The westbound lane of route 173 just beyond Gates Road would, in his opinion, be one of those places that should receive frequent clearing. In answer to a hypothetical question, he stated that a large three-inch thick area of hard, smooth, clear ice would take "many hours" to form (Transcript, p. 413) and might even have started the evening before. It would definitely have existed five or six hours before it was observed. If, as he had in the past, he held a position in which he was responsible for highway safety and had come upon a patch of ice such as that described, he would have immediately called for assistance and stayed on the scene to slow traffic until the situation could be remedied.

The State and other governmental entities which operate public roads owe a nondelegable 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; 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 NY446; Rinaldi v State of New York, 49 AD2d 361). If there is such 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, affd 58 NY2d 848). In addition, in order to establish the State's liability for negligent maintenance of roadways, it must be shown that such negligence was the proximate cause of the accident (Applebee v State of New York, 308 NY 502; Plantikow v City of New York, 189 AD2d 805; Hearn v State of New York, 157 AD2d 883, lv denied 75 NY2d 710) or, stated another way, that the accident was a "natural and probable consequence of the State's negligence" (Schichler v State of New York, 110 AD2d 959, 961, affd 66 NY2d 954).
Because the State's duty to maintain its roads in a reasonably safe condition is nondelegable, the County's actions carrying out its contractual duty to clear ice and snow from roads in this area must be attributed to the State. In addition, because there was an agreement that the closest unit of any of three police agencies was designated to respond to any emergency calls, the actions of those officers investigating a reported or apparent hazard must likewise ultimately be attributed to the State. Giving notification to the proper authorities of a hazardous snow or ice condition so that remedial action could be taken is not, as defense counsel would argue, a strictly governmental "police" function of traffic regulation, but rather a proprietary function related to the duty to maintain reasonably safe highways. Accordingly, if the condition of the road at the time of the D'Addario accident constituted a danger or hazard and Deputy Fahey was negligent in failing to report that hazard
and if there was sufficient time for the hazard to be corrected or for motorists to be properly warned before Claimant was injured, then the State must ultimately bear the responsibility for such negligence.
The critical question of fact on which the outcome of this claim depends is whether there was a large, significantly deep and dangerous patch of ice on the westbound lane of Route 173 at approximately 7:30 a.m. on the morning of January 21. Deputy Fahey says that he saw nothing that constituted a hazard, but he also admits that he didn't look very hard. Deputy Freel testified that there was such an ice patch several hours later, one that he walked along and measured. This testimony is buttressed by his actions in notifying County road crews and staying on the scene until the condition was resolved. Most significantly, Freel's testimony is buttressed by the fact that the original road crews sent in trucks that were unable to clear the ice or otherwise make it safe and, instead, a grader had to be summoned to the scene. It is simply impossible for me to accept that an ice condition could have developed and become that serious in the hours after 7:30 a.m., when in the absence of any testimony as to unusual weather conditions, it is reasonable to assume that the temperature would have become at least slightly warmer. It is also difficult to accept that two such similar accidents would occur at precisely the same spot within hours of each other without some common factors in their cause. If the two drivers had not reacted in different ways - one steering away from the direction of the skid and other steering in that direction - the vehicles might well have come to rest in precisely the same location. Up until the point that the driver reacted, the behavior of the vehicles did not vary.

It has been extremely frustrating that no witnesses, other than the two Deputies, were able to attest to the conditions present either earlier in the morning or at the time of Claimant's accident. Between the ambulance crew, tow truck operators and road crews, one could hope for firsthand information, in addition to the essentially contradictory testimony of Deputy Fahey and Deputy Freel. Nevertheless, based on the far greater detail of Deputy Freel's account and the supporting circumstantial evidence provided by the two accidents themselves, and the need for a grader to remove the ice he identified, I am satisfied that the same patch of ice was present at the time of the earlier accident, could have been discovered with reasonable investigation and would have been recognized as posing a clear danger if discovered.

The standard imposed by the rule of ordinary negligence is "due care under the circumstances" (
Saarinen v Kerr, 84 NY2d 494, 501), and "conduct which involves an unreasonably great risk of causing" harm to others is negligence (Prosser and Keeton, Torts §31, at 169 [5th ed]). In light of the harm that had already resulted from the road conditions at this location on the morning of January 21, as well as Deputy Fahey's duty to report and help correct dangerous conditions on the highway, his failure to carry out a more detailed investigation of the road conditions can only be considered negligent. The ice patch that was later observed, measured, and with some difficulty removed was undoubtedly there to be seen if only he had looked.
I have considered the argument put forth by defense counsel that if there were such an accumulation of hazardous ice then, surely other accidents would have occurred in the time between these two events. As Claimant's counsel notes, however, the 21st was a Sunday, and for a good portion of the time following Dr. D'Addario's accident, the westbound lane of Route 173 at this location would have been occupied by police, ambulance, and towing vehicles. Drivers who were following the route taken by Dr. D'Addario, coming up Gates Road and intending to turn onto Route 173, would have been redirected or, just as likely, have simply continued on Gates Road and turned at another location. In addition, there is nothing to suggest that the ice patch posed the same hazard to vehicles traveling straight on Route 173. Without some evidence of the volume of traffic that would have turned from Gates Road onto the westbound lane of Route 173 at this location during the portion of the day in question, I cannot place great weight on the absence of any similar accidents.

I hold that Deputy Fahey was negligent in failing to discover, and then to report to the appropriate authorities, the presence of a thick, relatively long patch of smooth ice on the westbound lane of Route 173 when he investigated Dr. D'Addario's accident. I further hold that there would have been adequate time for the State, or its designated agent Onondaga County, to carry out some effective remediation of that hazardous condition. Although road crews were dealing with significant weather conditions all that weekend, there was no evidence that they were unable to respond appropriately when notified of a dangerous condition and, indeed, they did respond promptly when given such notice several hours later.

All motions not heretofore ruled upon are now denied.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. This claim will be scheduled for a trial on the issue of damages as soon as practicable.


November 29, 2002
Rochester, New York

Judge of the Court of Claims