New York State Court of Claims

New York State Court of Claims

KALMAN v. THE STATE OF NEW YORK, #2003-010-035, Claim No. 105640


Claimant failed to prove ice was a proximate cause of one car 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):

Terry Jane Ruderman
Claimant's attorney:
By: Alan M. Greenberg, Esq.Matthew Sakkas, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 24, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Lorraine Kalman (hereinafter claimant)[1] seeks damages for injuries she sustained on January 22, 2001 in a one car accident on the Hutchinson River Parkway (the Hutch) in Westchester County. Claimant contends that she lost control of her vehicle due to black ice on the roadway and that defendant's negligence was a contributing cause of this dangerous roadway condition. Specifically, claimant maintains that defendant plowed snow against the concrete jersey median barrier adjacent to the left lane and that this was a violation of the New York State Department of Transportation's (DOT) guidelines because the left shoulder was too narrow and the runoff from the melting snow traveled onto the roadway and formed black ice. Defendant maintains, inter alia, that snow was not plowed against the median barrier. Moreover, the road was superelevated and pitched toward the median. Therefore, any runoff from snow plowed against the median would not have flowed toward the roadway. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that on Monday, January 22, 2001, she left her home at 7:15 a.m. to go to work. She had been commuting on the same route for 16 years and was very familiar with the Hutch. It had snowed during the weekend and the air was misty. The local streets were clear and dry. Claimant entered the southbound Hutch at the Mill Road entrance in New Rochelle. At this juncture, the southbound Hutch is a two lane road. Within a short distance south of the Webster Avenue entrance, the Hutch becomes a four lane road. The lanes will be referred to in this Decision as one through four, respectively, from right to left. A large overhead sign alerts drivers that lanes one and two continue right for the southbound Hutch and lanes three and four veer left for the Cross County Parkway. A concrete median barrier separates the north and southbound lanes of the Hutch. The left side of the road is bordered by a seven foot paved shoulder and the right side has an eight foot paved shoulder. Claimant's accident occurred in lane four.
Claimant stated that she was driving for approximately one mile at 40 mph in heavy traffic when she attempted to move left from lane one toward the Cross County Parkway. As she traveled from lane one to lane two, she lifted her foot off the gas and reduced her speed to 25 mph. Her car skidded and its front end headed toward the median. The car fishtailed, swerved a few times, crossed lanes three and four and hit the median barrier. Claimant removed her foot from the gas and tried to regain control of her vehicle. She heard honking noises and observed other cars taking evasive actions to avoid striking her car.
Claimant testified that she started to move left as she passed the overhead sign signaling the split in the road. She used a green marker on a photograph to show where her car went out of control before reaching the sign, and to show the car's final resting place at the median (Ex. A, frame 10-40). Claimant was unable to judge the distance from the beginning of her skid to the median barrier and estimated that it occurred within a few seconds. Claimant used other photographs to mark the exact location where she hit the barrier (Ex. 5) and the path her car had taken (Exs. 4, 5, 11). There is no dispute where the vehicle came to rest. Claimant ended up with the driver's side flush to the barrier. She could not get out of the car because of a broken ankle. A HELP truck and police officer arrived at the scene.
Claimant told the officer that she skidded, but was not sure how it happened. She never said that she skidded on black ice. Claimant testified that during her one mile travel on the Hutch, she observed snow half way up the barrier. Prior to her accident, she did not notice any unusual conditions on the road itself, nor did she observe any vehicles swerving or taking any evasive actions on the road.
Westchester County Police Officer Henry Reinhardt responded to claimant's accident
and testified that he was assigned to patrol the Hutch between Webster Avenue and the Cross County, a distance of between half a mile and a mile long. Reinhardt approached the scene and slowed down vehicles behind him by driving in a zigzag manner across the lanes. His car did not skid. In the accident report he prepared (Ex. 1), Reinhardt identified one of the contributing factors of claimant's accident as "pavement slippery." As part of the accident description, Reinhardt wrote:
"Operator # 1 states she was traveling S/B Hutch S. of Webster Ave. Lanes open up from 2 to 4 lanes. While changing from 2nd lane to third lane left she hit what appeared to be black ice spun out into lane 4 & struck center jersey barrier. *** DOT Maint notified to salt and clear left lane"

(Ex. 1). As indicated in the police report, before he left the scene, Reinhardt notified DOT to salt and clear the left lane. He did not refer to the other lanes. Reinhardt explained that salt was used to address wet conditions and that he called to clear vehicle fluids and snow knocked into the left lane from the accident. Had another lane also needed attention, he maintained that he would have noted it on the accident report. Reinhardt checked for skid marks, but did not see any. When asked if he had observed any black ice, Reinhardt responded that he might have and the road might have been wet. Reinhardt testified that his only independent recollection of the incident was that it involved one car and that it was cold. When questioned about the information included in the report, Reinhardt surmised that some of the content came from other people since he did not observe the accident and that the reference to black ice may have come from claimant.
Reinhardt testified that he observed snow piled on both the center median and the right shoulder. He did not recall how much snow was in the median. He recalled that on prior occasions, he had observed snow on the median and melting onto the road. It was his practice to bring such conditions to the attention of his dispatcher rather than DOT.

On January 21, 2001, the day before
claimant's accident, Reinhardt responded to an accident on the southbound Hutch, involving Kuldeep Singh, approximately two to three tenths of a mile north of claimant's accident. In the Singh accident report, Reinhardt assessed the contributing factors as slippery pavement and unsafe speed.[2]
When asked at trial whether Reinhardt regularly summoned DOT to clear snow and ice in the vicinity of
claimant's accident, Reinhardt answered, "No."[3] Claimant then offered Reinhardt's examination before trial testimony to impeach his credibility. At his deposition, Reinhardt had been asked whether he had advised claimant's investigator that the Hutch freezes constantly and that DOT crews are summoned on a regular basis to remove snow and ice from that location; whether there was a condition on a periodic basis where the roadway in that area would freeze; and whether before the day of claimant's accident he had observed frozen ice on that stretch of the road. Reinhardt's responses to such questions were that it was a possibility, it possibly did, and that he might have made such observations. Since Reinhardt's testimony both at trial and at his EBT were qualified as being possible, the Court found his testimony on this issue to be less than clear and of little probative weight.
Westchester County Police Officer Matthew Fortino was subpoenaed to testify on behalf of
claimant because he had responded to an accident on December 14, 2000 at the Webster Avenue intersection on the Hutch, north of claimant's accident. He attributed that accident to slippery pavement. Fortino testified that, prior to January 22, 2001, he had observed snow runoff to the right, but he did not recall having seen snow piled in the median.
David Kalman testified that when he learned about his wife's accident at approximately 7:30 a.m.,
he put on sneaker-like rubber boots and proceeded to the scene. When he arrived on the Hutch, he observed snow on the right side of the road and snow plowed against the median at a 45 degree angle. He parked his car on the right shoulder opposite claimant's car. He testified at trial that he slipped on ice in the second lane as he walked across the highway toward claimant's car. At his examination before trial, he testified that he slipped as he tried to run across the highway. Kalman acknowledged that he did not know if he crossed the Hutch at the same location where claimant had lost control of her vehicle.
William Sherman, a meteorologist, offered expert testimony on behalf of
claimant. There had been no snow cover on the roads prior to Saturday, January 20, 2001. Between January 20 and 10:00 a.m. Sunday, January 21, 2001, five inches of snow had accumulated. On Sunday, between 2:00 and 5:00 p.m., the temperature was above freezing. From 5:00 p.m. Sunday until the time of claimant's accident, the temperature never climbed above freezing.
Sherman defined black ice as a thin layer of transparent ice on the road that is formed from light rain or melted snow that freezes when the temperature drops. In his opinion, if black ice was on the Hutch, it would have formed between 5:00 and 7:00 p.m. on Sunday night because the temperature fell below freezing after 5:00 p.m. Assuming the snow had been piled on the median at a 45 degree angle, Sherman further opined that some melting would have occurred between 2:00 and 5:00 p.m. and that the water would run downhill.

Matthew Zepnick, a licensed private investigator hired by
claimant, testified on her behalf. Zepnick took photographs of the scene and made notations on transparent overlays (Exs. 3-11). He believed that claimant was moving from lane two to lane three when she lost control of her car on black ice. As part of his investigation, Zepnick spoke with Reinhardt regarding a history of weather related accidents in the vicinity of claimant's accident and Reinhardt's observations of DOT's snow maintenance practices. Reinhardt purportedly indicated that the road freezes constantly and DOT personnel were summoned to the area on a regular basis.
Nicholas Bellizzi, a licensed professional engineer, provided expert testimony on behalf of
claimant. He began his career as an engineer in the New York City Transit Authority and worked for the New York City Department of Transportation and two private companies. Since 1984, he has been a consultant on civil engineering and traffic issues. Bellizzi opined that defendant violated its maintenance standards for snow and ice removal by plowing snow on the left median shoulder. As Bellizzi noted, DOT maintenance guidelines specifically advise that in:
"H. Narrow Median Areas

Accumulated snow should be removed from narrow median areas if it poses possible melt water problems or otherwise interferes with the traffic control function of the medians."

(Ex. 15, p 13, Section H). In his view, the left shoulder should be considered a narrow median, since at seven feet wide, it was only one foot wider than the average car and ten to fifteen inches of snow could be piled in the median. Moreover, he explained, potential runoff problems existed since the catch basins could be blocked. According to Bellizzi, even if the snow had been initially plowed against the barrier, there was sufficient time for DOT personnel to return and remove the snow before claimant's accident.
Bellizzi concluded that the violation of DOT guidelines was a competent producing cause of
claimant's accident. He explained that the accumulated snow on the median melted and then flowed slightly downhill and to the right in a southwesterly direction. It then refroze and formed black ice. Bellizzi used the record plans to show that the melt off would follow the pitch and elevation of the road (Ex. F).
Bellizzi determined that
claimant hit the median at station 32 plus 30 feet. He failed to consider, however, where claimant first lost control of her car and skidded. He assumed it was somewhere close to where she hit the median or within 100 feet north of the impact. He ignored claimant's testimony at her examination before trial where she stated that she lost control right before the sign (referring to the overhead sign alerting to the split in the Hutch). The sign was at station 35. He also ignored the fact that at trial claimant had placed a green X mark on exhibit A, frame 10-40, indicating that she lost control of her car just before (north of) the sign. All of Bellizzi's measurements of the roadway were south of the overhead sign. Bellizzi did not measure the banking and topography of the road north of the sign. At trial, when asked to examine exhibit A, frame 10-40, on which claimant had identified the point where she lost control of her car, Bellizzi conceded that at the green X mark, the road was superelevated, from right to left. Therefore, contrary to his earlier testimony about the melt off flowing from left to right, the road actually sloped from right to left and into the median. He conceded that water from the median could not reach the green X mark, but rather the water would pool in the left lane.
Bellizzi maintained that in the three years prior to
claimant's accident there had been six accidents evidencing recurrent ice problems on the road.[4] When confronted with the high volume of cars traveling on the Hutch without incident, he opined that most of the traffic occurred during the day and, at night, when the traffic volume is lower, water could freeze on the road.
Thomas Mason, who has been employed by DOT for 34 years and has been the Assistant Resident Engineer in the southern Westchester residency since 1991, testified on behalf of
defendant. As part of his responsibilities, he is in charge of maintenance, snow and ice removal on the Hutch. Mason explained that DOT procedures required that snow on the Hutch be plowed from left to right. Referring to DOT records, he detailed the overall snow removal efforts undertaken by DOT on the Hutch after the January 20-21, 2001 snowfall. It is undisputed that DOT salted, sanded and plowed the Hutch after the snowfall. The records, however, do not establish whether DOT plowed according to its prescribed procedure from the left and onto the right shoulder. Mason noted that even when the procedures are followed, some snow remains on the left shoulder near the median barrier because the snow on the shoulder would not necessarily be completely cleared. Mason explained that in a storm, the travel lanes are cleared first, then there is a follow up operation to remove the snow on the shoulders. When asked if he was concerned about snow melt, he replied that it depends on the cross section of the road, and in the vicinity of claimant's accident, the road was superelevated. Mason also testified that the white hash marks between lanes are 10 feet in length and the spaces between the lines are 30 feet.
Nicholas Pucino, a professional engineer with DOT and its predecessor agencies for over 30 years before retiring, offered expert testimony on behalf of
defendant. From 1979 to 1989, Pucino was in charge of the State Highway Safety Improvement Program. He was responsible for identifying roadway deficiencies and, based upon accident report analysis, designing improvement projects. From 1989 until his retirement in 1991, he was DOT's Regional Construction Engineer and oversaw the inspection and construction of roads in Westchester. He supervised a reconstruction project of the Hutch, completed in 1987, which covered the area of the accident.
Pucino referred to the photographs depicting the overhead sign, the path of claimant's vehicle, and claimant's point of impact into the median. He used the white hash lines as a guide for calculating distance because the lines are always set in a 40 foot pattern. Pucino concluded that claimant lost control at least 160 feet before the point of impact. Pucino also noted that claimant had testified at her EBT that she lost control of her car before the sign and that at trial she had identified the location on exhibit A frame 10-40. He estimated that distance to be approximately 100 feet from the sign. Pucino agreed with Bellizzi's conclusion that the point of impact was station 32 plus 30 on the record plans. Pucino also testified that the sign was at station 35.
Referring to the record plans, Pucino explained that the Hutch was superelevated before the sign until the point of impact. For all the distances discussed, the road sloped toward the median. The banking gradually lessened, but it always sloped toward the median and, accordingly, any snow melt on the left shoulder would have been confined to the median and drawn down into the drainage system. Pucino further explained that part of the Hutch reconstruction was an improved drainage system. The left shoulder itself sloped toward the median and there was a series of culverts. Pucino stated that because the road slopes toward the median, there would have to be 18 inches of water pooled in the fourth lane for the water to reach the second lane.

Pucino opined that black ice could not have been a cause of
claimant's accident because its presence on the roadway was unlikely. Pucino explained the various causes of black ice and then discounted each possibility. He noted that snow melt was not a plausible cause of black ice because the superelevation of the road would direct any runoff into the median and away from the road. Pucino also discounted the possibility of black ice forming from water percolating through the road's surface because the Hutch reconstruction project had eliminated that possibility by providing the pavement with a subbase and an under drain. He further noted the high volume of traffic that passed over the roadway without incident. From the night of January 21, 2001 through the morning of claimant's accident, Pucino testified that 4000 cars would have traveled through the area in the hour and a half before claimant's accident and that large volume of traffic would have had a drying effect on the road. Pucino further maintained that had there been black ice on the surface, Reinhardt would have encountered difficulty when he zigzagged across the road.
Pucino analyzed the police accident reports which
claimant argued represented prior similar accidents. Four of the accidents occurred in the northbound lanes and all happened during some period of precipitation, and the others had no similarity to claimant's accident. Based on his review of the reports, Pucino concluded that they did not indicate a recurrent condition.
Pucino acknowledged that on some of the older sections of the Hutch, where there were no shoulders around the median and no catch basins, snow on the median barrier could pose a problem. This, however, was not the situation in the area of
claimant's accident because the median barrier was bordered by a seven foot paved shoulder that sloped toward the median and included a series of culverts.
Pucino opined that any snow on the barrier in the area of
claimant's accident was not a result of plowing to the left, but rather was snow that had fallen and it was DOT's practice to clear the travel lanes first and then return later to clear the shoulder. There was no urgency in this particular location to clear the shoulder because of the pitch of the road and the amount of snowfall was only five to seven inches.
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 Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579, 584). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on its roadway 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). Nor does the presence of ice, snow, or water on the roadway at the time of an accident, by itself, establish that the State was negligent (see Timcoe v State of New York, 267AD2d 375). The State "is not obligated to employ a constant vigilance over its highway network, but only to pursue reasonably plausible measures" (see Freund v State of New York, 137 AD2d 908, 910-11).
It is claimant's burden to establish that the State was negligent and that such negligence was a proximate cause of the accident (
see Bernstein v City of New York, 69 NY2d 1020, 1021-22; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519). Liability will not attach unless the State either created the dangerous condition or had actual or constructive notice of the condition and then failed to take reasonable measures to remedy it (see Brooks v New York State Thruway Auth., supra; Valentino v State of New York, 62 AD2d 1086). While proof of prior accidents at the same place and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice, the accident reports offered by claimant were not sufficiently similar to claimant's accident to be of any probative value (see Martin v State of New York, 305 AD2d 784; Vega v Jacobs, 84 AD2d 813). Nor was the evidence presented sufficient to establish a recurrent condition of which defendant should have been aware (see Freund v State of New York, supra).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
claimant has failed to show that black ice was present on the roadway and a contributing cause of her accident. Indeed, claimant did not establish that defendant was negligent and that such negligence was a proximate cause of her accident (see Sellitto v State of New York 250 AD2d 754 [claimant failed to prove that the State either caused a dangerous condition or had notice of a recurrent dangerous condition existing in a specific area]).
Specifically, the evidence did not show that
defendant violated its own guidelines and plowed snow against the median barrier in the left shoulder. In any event, such violation would not mandate a finding of negligence (see Rizzuto v Wenger Contr. Co., 91 NY2d 343, 349 [violation of a rule of an administrative agency is merely some evidence which the finder of fact may consider on the question of negligence]). Further, there was a lack of evidence that defendant's plowing resulted in black ice on the roadway. Notably, the record plans indicated that the Hutch was superelevated and sloped toward the median all along the relevant area of roadway. Indeed, claimant's own expert conceded that the road was superelevated and any melt off could not reach the location claimant had marked as the area where she lost control of her car. Furthermore, a high volume of vehicles traveled through the area prior to claimant's accident without incident. Reinhardt did not skid as he zigzagged toward claimant's accident site and the other vehicles that took evasive action away from claimant's car did so without incident. In sum, the Court finds that claimant has failed to establish, by a preponderance of the credible evidence, that black ice was present and a contributing cause of her accident.
It is well established that:
"[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury"

(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also Bernstein v City of New York, supra; Marchetto v State of New York, supra). Claimant was obligated to operate her car at a rate of speed and in such a manner of control as to avoid an accident (see Woolley v Coppola, 179 AD2d 991, 992). On the record before this Court, it is reasonable and probable that the sole proximate cause of the accident was claimant's inattentiveness while driving (see Schichler v State of New York, 110 AD2d 959, affd 66 NY2d 954; Marchetto v State of New York, supra).
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

November 24, 2003
White Plains, New York

Judge of the Court of Claims

[1] The claim of David Kalman, claimant's husband, is derivative.

[2] Singh testified that he saw snow on the median barrier before his accident. Singh recalled telling Reinhardt that the pavement was slippery, but Singh did not recall admitting to an unsafe speed.

[3]All quotations are to the trial notes or audiotapes unless otherwise indicated.
[4] Four of the accidents occurred on the northbound Hutch and all of the accidents occurred during periods of precipitation (Exs. 18, 20-24).