New York State Court of Claims

New York State Court of Claims

FISCELLA v. THE STATE OF NEW YORK, #2002-029-242, Claim No. 100773


Liability only; claimant fell while riding his bicycle over a temporary, wooden-decked bridge. Alleged that wheel caught in cap in wooden deck. Court finds claimant was unable to establish the existence of a gap or where the alleged dangerous condition existed on the bridge. Court also finds that bridge was constructed with adequate study. Claim dismissed.

Case Information

CHARLES FISCELLA, JR. and LAURA FISCELLA The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Rusk, Wadlin, Heppner & Martuscello, LLPBy: Daniel G. Heppner, Esq.
Defendant's attorney:
Phelan, Burke & Scolamiero, LLPBy: Kevin P. Burke, Esq.
Third-party defendant's attorney:

Signature date:
December 4, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for personal injuries sustained by Charles Fiscella[1]
. The trial of this claim was bifurcated and this decision deals only with the issue of liability.
The evidence established that on July 25, 1998 claimant was a member of the Newburgh, New York Police Department's Special Weapons and Tactics Team (hereinafter SWAT Team) and had been for two to three years at that time; that July 25, 1998 was a training day for the approximately 11 member SWAT Team commanded by Lieutenant Oscar Lopez; that claimant brought his bicycle to work with him that day because he was aware there would be bike training and the police department did not have enough bikes for the entire SWAT Team; that claimant was wearing a bicycle suit with spandex shorts, a bicycle helmet, gloves, glasses, socks and sneakers; that the team members were riding their bikes from Newburgh to Mount Beacon; that they crossed I-84 and the Newburgh-Beacon Bridge and proceeded onto Route 9D and traveled east through the City of Beacon; that the team members generally rode in a single file but there was no written or verbal order regarding this.

Mr. Fiscella testified that at the time of his accident, around 9:00 to 9:30 a.m., traffic was fairly light; that as he approached the bridge there was a slight decline toward the bridge (see Exhibit 9); the members of the team were in a single file as they approached the bridge and claimant was near the rear; that as he approached the area shown in Exhibit 13 he was traveling at about 10 MPH. Claimant stated that he was traveling in the right lane as he entered upon the bridge surface and that the wooden surface of the bridge took him by surprise (see Exhibit 15). Claimant stated that the road surface went from smooth blacktop to a rough, uneven wooden surface; that as he went into the turn on the wooden bridge he started to lose control of the bike because of the uneven surface – the gaps and spaces – of the wooden deck; that he lost control of the bike, was forced into the opposite lane of traffic and was slammed to the ground about where the bridge deck meets the pavement; that he and his bike slid down the road into oncoming traffic. Claimant stated that he doesn't know exactly where he lost control of the bike but believes it was on the first quarter of the bridge and he was out of control for two-thirds to three-quarters of the length of the bridge.

William Rose testified on behalf of claimant. The witness testified that he was a Sergeant (Sgt.) with the Newburgh Police Department, had known claimant about 12 years, was a member of the SWAT Team and was participating in the training exercise on July 25, 1998 during which claimant was injured; that the witness' bike began to bounce a little on the rough surface of the wooden bridge; that claimant was behind the witness as the team members were riding but while on the bridge claimant passed the witness on the left side and then fell down. Sgt. Rose stated that the team members were pretty much across the bridge when claimant fell. On cross-examination, the witness stated that as he entered the wooden section of the bridge, the road was uneven and he had a little less control of his bike, so he slowed down and stood up on the bike so his legs could absorb a bit more of the shock. Sgt. Rose further stated that when claimant passed him, he (the witness) had slowed down to about 5 MPH. He also stated that no other member of the team fell as the group proceeded over the bridge.

Paul Tirums, the New York State Department of Transportation (hereinafter DOT) Project Engineer for the bridge project was called as a witness by claimant. Mr. Tirums stated that the project was an intersection improvement and a bridge rehabilitation and replacement on Route 9D in Beacon which began in February 1998; that the contractor on the job was Barry, Bette & Led Duke (BB&L) and the plans for the project were generated by the State and called for a temporary bridge to be built. The witness identified Exhibit 17 as the temporary bridge plans as drawn up by BB&L and that the plans depict the bridge as it was built. He testified that there was a sidewalk on the temporary bridge but no bike path, that the temporary bridge was built in June 1998 and he believes it was opened to traffic the weekend before July 4, 1998 and it was anticipated that the bridge would be used until shortly after Labor Day; that between the date the bridge opened and July 25, 1998, he saw bicycle traffic on the bridge a couple of times a week.

Mr. Tirums testified that BB&L proposed the temporary bridge with the timber decking and DOT agreed to it; but he does not know who at DOT actually agreed to the timber decking. Mr. Tirums agreed that some of the timbers on the deck were not perfectly square but stated that there were no gaps in the bridge.

Claimant called Wilfred Rohde, a licensed Professional Engineer in New York, Colorado and Vermont, as an expert witness. The witness reviewed the Standard Specifications (hereinafter Specs) for the temporary bridge contract prepared by DOT and dated January 2, 1990 and amended in 1993. The witness stated that § 619-1.02 of the Specs required the bridge surface to be reasonably smooth and that in this opinion the bridge deck appeared to be rough and had open joints and irregular timbers. The witness further stated that § 700 of the Specs required the decking timbers to be square edged, sound and free from loose knots or decay and that based upon his review of the photographs of the bridge, the timber used for the temporary bridge does not comply with this provision of the Specs. The witness also opined that Specs § 619-2.04 dealing with temporary structures and approaches was not followed as it was his belief the bridge was not safe for bicycle use and Specs § 619-3.01 regarding Basic Maintenance and Protection of Traffic was violated as the provision calls for the bridge to be free from bumps and irregularities and in his opinion it was not.

Mr. Rohde also referred to Part 300 of the Manual of Uniform Traffic Control Devices (hereinafter MUTCD) dealing with highway work and traffic zone control. It was the witness' opinion that a "Rough Road" sign would have been appropriate before the bridge, that § 300.8 (3) was violated because the shift from a paved road to a rough, uneven timber deck constituted an unexpected obstacle or hazard, particularly for a bicyclist. It was Mr. Rohde's opinion that the timber bridge deck and the lack of signs warning of the changing road surface was a producing cause of claimant's accident.

On cross-examination, Mr. Rohde stated he had traveled over the temporary bridge when it was standing and he did not report the existence of any dangerous condition or improper signage; that he is a member of both the National and New York Society of Professional Engineers and that both societies place ethical obligations upon their members to advise a public authority if a member observes a dangerous condition on a bridge or roadway. The witness admitted that he is not aware of the number of motor vehicles, bicycles or pedestrians that traveled over this temporary bridge which was in use for approximately six months. He also admitted he did not know how many accidents occurred on the bridge and that the subject accident is the only one he has identified.

At the conclusion of Mr. Rohde's testimony, claimant rested and the State moved to strike Mr. Rohde's testimony as outside the scope of the claimant's responses to the State's demand for a bill of particulars. In addition, the State moved to dismiss based upon claimant's alleged failure to establish a prima facie claim of negligence. The Court reserved decision on both motions.

The State called Ernest Gailor as its expert witness. Mr. Gailor is a licensed Professional Engineer in New York, New Jersey, Connecticut, Vermont and New Hampshire and he provides engineering services in all five states. The witness stated that he previously worked for the United States Department of Transportation and was responsible for federally funded highway projects. He opined that none of the DOT Specs were violated in the building of the temporary bridge; that the bridge met all the requirements for bicycle use at the time of the accident. He further testified that the signs in place by the bridge were appropriate and that it would not have been appropriate to place a "Rough Road" sign in the area of the bridge as none of the elements contained in MUTCD § 234.3 were met in this instance. He stated that there was no broken pavement or the need to identify any surface irregularities as the timber bridge deck which was used was a standard type for a temporary bridge.

Mr. Gailor also disagreed with Mr. Rohde regarding the latter's opinion that certain provisions of the DOT Specs were violated in the construction of the subject bridge. Mr. Gailor stated that Specs § 619-1.01 and § 619-1.02 were not violated and that traffic was properly maintained and protected. He disagreed with Mr. Rohde's opinion that all roads in New York State need to be completely smooth and, in his opinion, the State provided adequate and safe structures and approaches and § 619-2.04 was not violated. The witness further stated that Specs § 712-13 is applicable to the use of timber on the subject temporary bridge and that the provision allows the head engineer to use his judgment in determining if the timber to be used is safe. It was Mr. Gailor's opinion that the temporary bridge was adequately designed and installed and that the signs in the area of the bridge met all the requirements of the MUTCD.

Mr. Tirums was also called as a witness by the State. The witness testified that there were a few bicyclists, mostly children, on the bridge every day. He further stated that there were no reported motor vehicle or pedestrian accident on the temporary bridge and this was the only bicycle accident.

The witness also testified that the timbers that were used were in accord with good engineering practice as were the signs that were posted. He also asserted that no DOT specifications were violated on the project.

It is well settled that the State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (see,
Gomez v New York State Thruway Auth., 73 NY2d 724; Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579; Zalewski v State of New York, 53 AD2d 781). Defendant, however, is not an insurer of the safety of its roadways and the mere happening of an accident on a State roadway does not render defendant liable (see, Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Claimant has the burden of establishing that defendant was negligent and that such negligence was a proximate cause of the accident (see, Bernstein v City of New York, 69 NY2d 1020, 1021-1022; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519). Liability will not attach unless defendant had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (see, Rinaldi v State of New York, 49 AD2d 361).
Here, claimant asserts that his accident was caused by the rough, uneven surface of the temporary bridge. He testified that there were gaps and spaces in the wood which caused him to lose control of his bicycle and caused his accident. At trial, claimant testified that he began to lose control of his bike on the first quarter of the bridge, however, at his deposition he testified that he was about halfway across the bridge when he began to have problems controlling the bicycle (Trial Transcript, Volume 1, Page 131). Claimant never established by a preponderance of the credible evidence the actual cause of the accident or the reasonably approximate spot on the bridge where he began to lose control. The evidence established that there were eight to ten members of the SWAT Team riding bikes across the temporary bridge on the date of claimant's accident and claimant was the only one to lose control. There was also testimony adduced at trial from Mr. Tirums that he noticed children riding bicycles across the temporary bridge on a daily basis and the only bicycle accident that occurred during the approximately six-month period the bridge was in use was claimant's

The Court does not give any weight to Mr. Rohde's testimony regarding the alleged violations of the DOT Specs and MUTCD. Mr. Rohde's opinion was given in general and conclusory fashion without adequate factual basis. Mr. Rohde stated that if the road surface is rough then generally it is not a good road surface (Trial Transcript, Volume 2, Page 76). However, Specs § 619-1.02 calls for a reasonably smooth roadway. In addition, the Courts have held that the State is not required to provide a terrain that is perfectly level (see,
Scaduto v State of New York, 86 AD2d 682, affd 56 NY2d 762; Rainey v State of New York, Claim No. 85680, filed March 16, 1994, Silverman, J.), only a reasonably safe one (Grivas v State of New York, Claim No. 83346, filed March 27, 1992, Silverman, J.). There is no description of the specific condition which allegedly caused the accident anywhere in the record. Claimant referred to the condition as a gap or a space in the wooden deck. However, a word is not a substitute for a description of the condition. No evidence was presented as to the asserted width of the gap or space, its location or its variance from acceptable standards.
The Court accepts the testimony of Mr. Gailor that the temporary bridge had a reasonably smooth road surface and was a standard type for temporary bridges. The Court also agrees with Mr. Gailor's conclusion that the temporary bridge was adequately designed and installed. The Court finds that claimant has failed to establish by a preponderance of the credible evidence that the temporary bridge decking was unreasonably dangerous. The Court further finds that claimant failed to establish by a preponderance of the credible evidence that the MUTCD was violated in regard to the signs used by defendant in the area of the temporary bridge.

The design and construction of roads is a governmental function which enjoys a qualified immunity. There will be no liability for a planning decision unless it is shown that the plan evolved without a reasonable study, or the decision lacked a reasonable basis. The State is then obligated to implement the plan according to applicable standards (
Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). Mr. Tirums testified that the plans for the project were approved by DOT and that the temporary bridge was built in accordance with the plans. The Court concludes that claimant failed to establish by a preponderance of the credible evidence that the State plan evolved without a reasonable study or a reasonable basis (see, Friedman v State of New York, supra; Weiss v Fote, supra).
As stated above, the evidence at trial established that on the date of claimant's accident he was part of an eight to ten person team of SWAT members on a training exercise and all the members, except for claimant, rode bikes over the temporary bridge without incident. There was also testimony that others, mostly children, rode bikes over the temporary bridge without incident. It appears that a reasonably vigilant bicyclist should have had no trouble slowing down and traversing this bridge deck. Accordingly, it is the Court's determination that claimant was solely responsible for his accident and ensuing injuries.

The claim is hereby dismissed. All motions made at trial upon which decision was reserved, are now denied. The Chief Clerk is directed to enter judgment accordingly.

December 4, 2002
White Plains, New York

Judge of the Court of Claims

[1] As the claim for Laura Fiscella is derivative in nature, all references to claimant will be to Charles Fiscella unless otherwise indicated.