The claim arose at approximately 5:15 p.m. on February 11, 1996, when the
Claimant, Carmela Lettelleir,
lost control of her vehicle on snow and ice, crossed the center line into the
path of oncoming traffic and struck a vehicle driven by Julie A. Hammond.
Claimant died on February 27, 1996. At the time of the accident, Claimant was
traveling north on Route 92, a State highway, between Cazenovia and Manlius, New
York. The accident occurred near the Madison-Onondaga County
Claimant alleges that Defendant was negligent in the construction, design,
repair, inspection and maintenance of Route 92 in the area of the accident, and
that it failed to properly sand and salt the highway or warn motorists of the
unsafe conditions it knew or should have known existed on the highway. The
following decision addresses only the issue of liability as the trial was
Julie A. Hammond was the first witness called to testify on behalf of Claimant.
On Sunday, February 11, 1996, Mrs. Hammond worked the 9:00 a.m. to 5:00 p.m.
shift at the Manlius True Value Hardware Store. In order to get to work from
her home in Cazenovia, Mrs. Hammond traveled north on Route 92. From what she
recalls, the weather was clear in the morning on her way to work and still clear
at around 12:30 or 1:00 p.m. when she went to lunch. When she left work at a
little after 5:00 p.m., however, it was snowing and she had to brush the snow
off her car.
Mrs. Hammond was driving a 1995 Dodge Dakota pickup truck which was equipped
with four-wheel drive. At the time of the incident, her vehicle was in
rear-wheel drive, as she had not engaged four-wheel drive.
Mrs. Hammond testified that she had no trouble driving home southbound on Route
92 in terms of road conditions. While the road was snow covered, to her
knowledge there was no ice on the road. The speed limit in the area of the
incident was 55 m.p.h. Mrs. Hammond testified that she was traveling 40 to 45
m.p.h. due to snow on the roads.
Immediately before the accident, Mrs. Hammond was proceeding up a hill toward
the Madison County line. According to her testimony, this area of Route 92 had
two southbound lanes of traffic heading up the hill and one northbound lane
heading down the hill. The car in front of her suddenly swerved to the right.
She then observed a car heading straight for her in her southbound lane of
traffic. She applied her brakes and tried to swerve to her right, but was
unable to avoid impact, which occurred in her lane of traffic. Mrs. Hammond did
not see the other vehicle lose control.
From where the accident happened, Mrs. Hammond testified that she could see the
sign marking the Madison County line. It was, therefore, possible that the
accident occurred in the area of Route 92 after the two southbound lanes had
merged into one southbound lane.
Gary L. Hass, a firefighter paramedic with the Village of Manlius Fire
Department, testified that he responded to the accident involving Claimant.
Hass testified that the accident occurred on Route 92 between Pompey Hollow Road
and the Madison County line in an area which gets heavier snow fall because it
is on a hill. Hass never complained to anyone before February of 1996 regarding
the snow removal, sanding or salting of the roadway in the area of Claimant's
accident, and testified that he had never had an experience where the roadway
was not travelable.
According to Hass, some road construction was done on Route 92 in 1996. He
could not say whether this construction affected the number of accidents in the
area. On cross-examination, he testified that most of the accidents in the area
occurred in the middle of the hill when cars would slide into a ditch or
guardrail, usually due to excessive speed or deer.
Robert Cox, a Reconstruction Crew Leader for the Onondaga County Highway
Department, testified that on February 11, 1996, he was responsible for checking
the weather conditions and roadways in his area, which included Route 92 from
Manlius to the Madison County line. Cox was scheduled to work a twelve-hour
shift that Sunday from 11:00 a.m. to 11:00 p.m. His normal routine was to
report to the Malloy Road office located in East Syracuse, not too far from
Hancock Airport, at 11:00 a.m., where he would be briefed by the night man
regarding anything that had happened during the night, check on any available
weather data out of the Jamesville office, and pick up the vehicle issued to him
to drive around his area. On February 11, 1996, Cox was the only one checking
the roads in his area. At the end of his shift, Cox completed his Daily
Personnel Activity Report ( DPAR - Exhibit 86).
According to Cox's DPAR, the temperature on February 11, 1996, was 39 degrees
at 11:00 a.m. and 28 degrees at 11:00 p.m. His DPAR also indicated that he
encountered snow squalls, which he described as spotty snow and wind occurring
in certain areas. Cox testified that the snow squalls started, "probably
Trial Transcript, p. 65). He could not recall where these
squalls were seen or even which route he took on his tour of the
Cox testified that his route was divided into four quadrants. Section 1 was
located in the southeast quadrant of Onondaga County in an area south of the New
York State Thruway and east of Route 81. This area included Route 92 between
Manlius and the Madison County line where the accident occurred. Section 2 was
located in the northeast quadrant of Onondaga County, section 3 was located in
the northwest quadrant, and section 4 was located in the southwest quadrant of
Cox's DPAR indicated that men from sections 2, 3 and 4 were in at 2:30 p.m.
Cox testified that it was his decision to call the supervisors in for these
sections, and that it must have been snowing for him to do so. In order for
these men to have arrived for service at 2:30 p.m., Cox would have had to call
their section supervisors in to take a look at the roads in their sections
within a half hour of that time. Cox did not, however, call the section 1
supervisor at this time, probably because it was not snowing in section 1 at the
time. The section 1 crew men were not in for service until 4:00 p.m. Cox
believed that he had covered all four sections of Onondaga County between 11:00
a.m. and 2:00 p.m. when he called in the other section leaders.
At 2:45 p.m., according to Cox's DPAR, he received a call from fire control
that an area in Elbridge was slippery.
was in the northwest quadrant, section 3, which he had previously called in.
Nothing on the DPAR indicated that Cox received any other calls regarding
slippery roads, or any notification of an accident, or any requests for sanders.
Once Cox called in a section leader, that leader made the determination as to
what snow removal equipment and activities would take place in that section.
According to Cox's DPAR, five sanders were called in for section 1, while ten
sanders were called in for sections 2 and 3, and eleven sanders for section
Cox stayed on until 1:30 a.m. because Routes 20 and 11A in section 1 were
slippery. He did not recall ever receiving notification of this accident and
there is no indication of this accident in his DPAR. In addition to the
dispatcher located in Jamesville, there were satellite offices manned by County
employees. These employees handled phone calls and complaints regarding weather
and road conditions and reported this information to the dispatcher who, in
turn, relayed this information to Cox.
Cox had no set pattern in driving the roads in his area, and drove them in
random. Once he had called in a section or sections, he would then proceed to a
section not called in. Cox testified that from his experience the direction of
every storm or snow squall is different, depending on wind direction and
According to Cox's testimony, neither elevation nor road direction are
necessary factors when surveying roads, and he did not find that the higher
elevations necessarily had more snow or ice removal problems. Cox took into
consideration several criteria before determining to call in a particular
section leader. Among them were weather conditions, the amount of accumulated
snow, and variations in temperature which might result in the freezing of a
Timothy Eipp, a truck driver for Onondaga County, testified that two men were
assigned to a plow in February of 1996. His usual route was North Burdick
Street, Route 92 from Burger King to Linden Corners and Route 257, all north of
the Village of Manlius. This route consisted of approximately 25 to 30 miles
in section 1. Another driver was responsible for plowing Route 92 south to the
Madison County line and then Route 173 to the Madison County line. Eipp
occasionally plowed this route and, when he did, he would plow Route 92 out to
the turnaround located past the Madison County line, turn around, come back down
to Palmer Road, turn around, and then plow back to the turnaround past the
Madison County line, turn around, and then plow back down the other side of
Route 92. He did this because Route 92 in this area was three lanes wide. Eipp
described the topography in this area as consisting of a hill and a curve.
According to Eipp, this area of Route 92 became covered with snow and ice sooner
and the top of the hill was exposed to blow-overs because of its elevation.
On February 11, 1996, Eipp came in at 5:30 p.m., loaded his truck, and then
proceeded to start plowing and sanding his usual route, north of the Village of
Manlius. Eipp reviewed the DPAR of his supervisor, Michael Devine, for the day
of the incident (Exhibit 61), and testified that it indicated that six employees
were called in. Since there were two employees per crew, this record indicated
to Eipp that three crews, or three trucks, were sent out to plow and sand
section 1 on February 11, 1996.
Paul Ranczuck was employed by the Onondaga County Department of Transportation
(DOT) in February of 1996 as the section crew leader for the north area
maintenance facility, located in the northeast quadrant of the County. At the
time of his trial testimony, however, he was employed as the section crew leader
for section 1. He estimated that there were approximately 200 miles of roads in
section 1. When he took over the responsibility for section 1 in October of
1996, he had 16 trucks and about 32 people; two for each truck.
In 1994, Ranczuck was a labor crew leader for section 1 and as such, he would
have participated in the maintenance and plowing of the roads. At that time,
the staffing of section 1 was the same, 16 trucks and 32 employees. Ranczuck
believed there were 17 routes within section 1.
As the section crew leader, Ranczuck would call everyone in to plow if there
was a general snow. If, however, there were only windy spots, he would just
call in enough people to take care of those spots. There was no limit on the
number of people he could call in. As section crew leader, he would have
available weather reports faxed to him from Jamesville.
According to Ranczuck, Route 92 from the Village of Manlius to the Madison
County line was part of a specific route within section 1. In order to plow
this route, the driver would go up Route 173 to the Madison County line, come
back down to the Village of Manlius and then plow Route 92 from Manlius to the
Madison County line. If, however, the section crew leader had received a call
regarding an icy spot on Route 92, then the driver could begin his route on
Route 92 instead of Route 173. Since Ranczuck took over section 1 in October of
1996, the drivers usually began plowing on Route 173 and then proceeded to Route
Ranczuck testified that as the section 1 crew leader, he has had no special
concerns regarding the elevation or weather conditions on the hill on Route 92
between Manlius and the County line. He also testified that there was little
wind on the top of the hill in the area where this accident occurred, and that
there was no greater a blow-over or icy conditions than on any other road.
Upon reviewing the DPAR of Daniel Doyle and Dave Hunter, employees of the
Onondaga DOT (Exhibit 64), Ranczuck testified that Doyle and Hunter plowed Route
173 from 6:10 p.m. to 7:10 p.m. and Route 92 from 7:10 p.m. to 8:10 p.m. on
February 11, 1996. Ranczuck next reviewed the DPAR of Michael Devine, the
section 1 crew leader in February 1996 (Exhibit 61), and testified that this
indicated that Devine was on the roads from 4:00 p.m. to 7:00 p.m. and that
trucks were out at 5:00 p.m. Devine's DPAR also indicated that it was snowing
the heaviest at the city end of section 1, probably near Manlius and
Ranczuck testified that trucks are not sent out until after it has started
snowing and that salt cannot be spread ahead of time because it will disappear
after a few cars if it is spread on dry pavement. Snow and ice need to be
treated, however, before they become hard-packed. Otherwise, the roads get
slippery and they take more time to clear.
Upon reviewing Cox's DPAR (Exhibit 86) and Devine's DPAR (Exhibit 61), Ranczuck
was able to reconcile the indication on Cox's DPAR that five sanders were called
in with the indication on Devine's DPAR that three sanders were called in.
According to Ranczuck, Cox called the night man at 7:00 p.m., when Devine had
gone off duty, and the night man had called in more trucks.
Carl Dengel, II, a former Deputy Sheriff with the Onondaga County Sheriff's
Department, testified that he was on patrol on February 11, 1996 from 3:00 p.m.
to 11:00 p.m. in an area which included Route 92 from Manlius to the Madison
County line. He received notification of this accident and proceeded south on
Route 92 to the scene. When he arrived at the scene, he saw two vehicles in the
southbound lane of Route 92; one was near the middle of the road, and the other
was closer to the shoulder. The cars were located in the area where southbound
Route 92 changed from a three-lane roadway to a two-lane road, approximately 100
to 150 feet from the Madison County
According to his accident report (Exhibit 1), the road surface was slippery due
to snow, slush and ice.
After having his memory refreshed with a portion of his deposition transcript,
Dengel testified that he was called to the scene of another accident on February
11, 1996 on Route 92 in an area north of this accident scene where there were
three lanes of traffic. He could not recall, however, if this other accident
occurred before or after this accident.
Dengel testified that he believed that it was windy when he arrived at the
scene of this accident, but he could not recall if it was snowing. He also
believed that the roadway had been plowed, but could not recall seeing fresh
salt or sand.
Another eyewitness to the incident was Frank G.
who was returning from the Syracuse Fairgrounds by traveling Route 92 South from
Manlius heading for Cazenovia. He observed a white car traveling northbound on
Route 92 veer to its right off the travel portion of the roadway and then slide
sideways as it came back onto the roadway into the nose of a pickup truck
traveling in front of the vehicle in which Schambach was a passenger. His
vehicle was able to move over into the northbound lane, go around the accident,
and stop south of the accident. Before the accident, Schambach recalled driving
up a little bit of an incline which he did not think was very steep. He
testified that it was snowing from Manlius to the accident scene and that Route
92 was snow covered.EXPERT
Wayne G. Mahar, Claimant's meteorologist, testified that in February 1996 he
was providing forecasts as a consultant for the Onondaga County DOT. He does
not keep his weather reports and so his reports for the day of this accident
were not available.
Mahar testified that at 11:50 a.m., the National Weather Service had predicted
cloudy skies and scattered snow showers, with southwesterly winds, for the
central New York State area which covered about twelve counties, including
Onondaga and Madison (Exhibit 89). At 3:48 p.m., the National Weather Service
predicted that lake-enhanced snow showers and flurries would move through this
generalized, wide-spread area during the afternoon and night (Exhibit 89).
According to Mahar, the intensity of this generalized storm could change over
the various counties included in this forecast.
Mahar also testified that the temperature at Hancock Field was in the
mid-thirties, and that about eight-tenths of an inch of snow fell at the airport
on February 11, 1996. It was his opinion that it would have been two to three
degrees colder and snowier at the accident scene than at the airport due to the
difference in elevation.
Mahar did not consider eight-tenths of an inch of snow to be a significant
snowfall. He testified that this insignificant amount of snow would not have
even begun to stick to the ground at the airport until approximately 7:00 p.m.
when the temperature at the airport first fell below the freezing mark.
According to Mahar, approximately four inches of snow fell during a 24- hour
period from 7:00 a.m. on February 11, 1996 to 7:00 a.m. on February 12, 1996 at
Morrisville, about eight miles from the accident scene, and at Tully, about 15
miles from the scene. The elevations at Morrisville and at Tully were higher
than the elevation at Cazenovia which, in turn, was at a higher elevation than
either Manlius or the Hancock Airport. Mahar testified that forecasts were not
always accurate and that the temperature and the amount of snowfall could be
different in Cazenovia and in Manlius, the two areas closest to the accident
Robert Hintersteiner, a transportation forensic engineer, testified that the
State had an agreement with the County of Onondaga by which Onondaga agreed to
be responsible for snow and ice control on certain state highways, including
Route 92 between Manlius and the Madison County line. Onondaga was also
responsible for providing a supervisory patrol of the highways. Weather data
was to be provided to Onondaga by meteorologists, and all forecasts kept
(Exhibit 69). Pursuant to Section 5.1303 of the Highway Maintenance Guidelines
(Exhibit 70), locations such as steep grades, intersections, sharp curves,
bridges, approaches and railroad crossings
receive special consideration when planning for snow and ice operations.
According to Hintersteiner, Route 92 in the area of this accident should have
been an area of special consideration because it was an area with a steep grade
in a high elevation, and so it had more icy conditions and accumulation of snow.
Hintersteiner testified that an operational plan was required each year which
detailed the methodology for accomplishing snow and ice removal. The
Operational Plan for 1995-1996 (Exhibit 69) showed the routes to be done and
their order, but made no reference to specific hazardous locations. The sander
route for the area of this accident was designated as route 5. It began on
Route 173 from Route 91 to Manlius, and then onto Route 92 from Manlius to the
Madison County line.
According to Hintersteiner, Route 92 was a critical area because it had steep
grades and a high elevation. Based on the assumption that it started to snow at
the airport at 10:00 a.m. and that a general snow event was forecasted for a
multiple county area, it was his opinion that Cox should have started traveling
the most crucial areas shortly after coming on duty at 11:00 a.m., and, had he
done so, he then should have called in the crews for section 1 shortly
thereafter, between noon and 1:00 p.m., or at least by 2:30 p.m. when the
supervisors for sections 2, 3 and 4 were called in. If the crew for section 1
had been called in by 2:30 p.m., it was Hintersteiner's opinion that the area of
the accident would have been cleared before 5:15 p.m. when the accident occurred
Trial Transcript, pp. 309-316).
Hintersteiner testified that this accident occurred in the area between Pompey
Hollow Road and the Madison County line. After reviewing the 1995 road plans
(Exhibit 81) and the 1957 highway plans (Exhibit 82), he testified that Pompey
Hollow Road was at an elevation of about 888 feet and the Madison County line
was at an elevation of about 1,026 feet; with an elevation differential of
approximately 140 feet or a 7.84% grade. From the Madison County line
northbound, the direction in which the Claimant was traveling, Route 92 is a
single-lane roadway which proceeds downhill with a 2% grade in the immediate
area of the accident (
Trial Transcript, p. 323).
Assuming that the roadway was slippery due to snow, slush and ice at the time
of the incident, it was Hintersteiner's opinion that Claimant's vehicle would
not have slipped if the salters for section 1 had been called out in a timely
manner pursuant to proper operational procedures.
On cross-examination, Hintersteiner testified that Onondaga County was in
compliance with the Operational Plan (Exhibit 69) insofar as staffing,
supervision, patrolling by Cox, availability of trucks and storm watching. He
also agreed that the Operational Plan for ice and snow removal was
Hintersteiner testified that he drove Route 92 from Fayetteville to the County
line, but that he did not drive Route 173. He further testified that he did not
know how many hills, valleys and elevations there are on Route 173, and did not
know if Route 173 had more areas of special consideration ( steep grades, sharp
curves, etc.) than Route 92 under Section 5.1303 of the Highway Maintenance
Guidelines (Exhibit 70).
According to Hintersteiner, no equipment would have been sent out on February
11, 1996, if the only available data was the airport data because it showed that
the temperature at the airport remained above freezing until later in the day
and so the snow would have been melting. Hintersteiner did not find anything in
the contract documents which required Cox to drive any particular route when
inspecting the roadways. He also testified all of the trucks in all four of the
sections would be called out only if there was a major snowstorm. He described
the existing storm as being a regional storm as opposed to a major storm.
The area of the accident was generally flat with a slight downhill grade of 2%.
At this point, according to Hintersteiner, the road starts to curve.
Hintersteiner considered this area as one of special consideration because it
was within the general area of a steep grade (the top of a steep grade), even
though the area of the accident was relatively flat. For snowplowing purposes,
Hintersteiner testified that you do not stop the plow when you reach the top of
a steep grade in a relatively flat area. It was the general steepness of this
roadway which indicated that this road should be plowed first according to
The State then called Duane Amsler, an employee of the New York State DOT from
1987 until his retirement in October of 1996. Since then, Amsler has been in
the consulting business, almost exclusively in the area of ice and snow removal.
While with the State DOT, Amsler was responsible for the weather information
systems and for updating the rules, regulations and contracts between the State
and local municipalities regarding ice and snow control.
According to Amsler, the Operational Plan (Exhibit 69) lists equipment, storage
facilities, routes for snow and ice operations, the handling of sand and
abrasives, their mixture and cost, and gives some staffing requirements. It
does not, however, cover priorities. Pursuant to the staffing requirements in
the Operational Plan, a dispatcher was to be available 24 hours a day, 7 days a
week, at the Jamesville Facility, and watchmen were to call the dispatcher every
hour to report on the weather conditions.
The Highway Maintenance Guidelines (Exhibit 70) were brought up to date in 1993
by a committee consisting of people with expertise in snow and ice removal,
together with research, budget and legal people. With reference to Section
5.1303 of the guidelines regarding locations that require special consideration,
Amsler testified that there are hundreds of grades and elevations throughout the
State similar to the grade and elevation at the site of this incident. When
addressing hills as the special consideration, the practical options are to
increase the rate of application and to use a mixture of sand and salt for extra
According to Amsler, these guidelines were drawn up with traffic volume and
flow in mind. The guidelines list several different classifications of highways
with respect to ice and snow control: A1, A2, B and
Highways with higher classifications would receive higher levels of service.
Route 92 was a Class B highway.
Amsler also testified that Section 5.2100 entitled, "Storm Watch Objective,"
and Section 5.2301 entitled, "Storm Watch Supervision and Preparedness," of the
Highway Maintenance Guidelines (Exhibit 70) were fully complied with by Onondaga
County. The term "preparedness" is defined in the guidelines as the
recommendation that in situations where a snow or ice event has a high
probability of occurring, trucks carrying the appropriate material be ready to
begin spreading the material along their routes as soon as the event
It was Amsler's understanding that a general snowstorm is one that covers a
large geographic area which usually moves across the country with a reasonably
consistent moisture base. Snow squalls, however, vary in intensity and
location, and are very difficult to predict. Use of men and equipment differs
in general storms as opposed to squalls. According to Amsler, a large portion
of the fleet would not be mobilized during squalls due to their
unpredictability. In a more general, significant storm, which Amsler defined as
3 inches or more and which are easier to predict, more resources would be
utilized because the goal is to jump on that kind of a storm. Amsler testified
that, in his opinion, the storm on February 11, 1996, was not a significant
storm. Rather it was a light, spotty storm that was followed by a prediction
for lake-effect squalls. The guidelines for ice control as contained in
Section 5.4401 and the ice control goal of Section 5.0110 (Exhibit 70) are more
difficult in squalls because squalls are unpredictable and it is generally
unknown where they are going to occur. Amsler testified that Onondaga County
tried to provide a level of service consistent with its capabilities and the
Amsler described Exhibits O and P as being forecasts prepared by Accu-Weather
Inc. pursuant to a contract with the New York State DOT. Exhibit P was a
forecast from 6:15 a.m. on February 11, 1996, which predicted that lake-effect
snow and flurries for the general Syracuse area would start between 4:00 and
6:00 p.m., and indicated that any flurries before that time would not accumulate
on the roads. According to Amsler, this forecast would not call for any
mobilization of ice and snow crews because it called for flurries only before
4:00 p.m., which were not expected to stick, and for late afternoon lake-effect
squalls which are unpredictable.
Exhibit O was another Accu-Weather Inc. forecast from 3:45 p.m. This forecast
indicated that lake-effect snow would continue through Monday, and that gusty
winds would cause blowing and drifting snow in the general Syracuse area. Both
forecasts (Exhibits O and P) were prepared for the DOT. Amsler did not know if
these forecasts were ever forwarded by the State DOT to Onondaga County.
Amsler reviewed the Local Climatological Data for Hancock Airport (Exhibit 2)
for February 11, 1996 and for two or three days earlier. He did not believe
that any snow falling on February 11, 1996, would have stuck to the roads
because the range of temperatures during the few days before the 11th were in
the forties, making the temperature of the pavement above freezing.
Based on his experience and his review of exhibits, it was Amsler's opinion
that the ice and snow procedures utilized by Onondaga County on February 11,
1996, were appropriate under the circumstances and were in compliance with the
guidelines and Operational Plan, which were in accordance with accepted methods
and engineering principles in snow and ice control.
On cross-examination, Amsler testified that he had no direct responsibility for
the implementation of the Operational Plan by Onondaga County. He based his
opinion that Onondaga County was in compliance with the Operational Plan on his
review of the DPAR's of the County employees on duty.
Amsler believed that the Operational Plan required Onondaga to have weather
records and to keep them for five years. According to Amsler, Onondaga did not
necessarily need weather forecast data for staffing purposes because it was
operating at a higher level of surveillance with its patrol activities. He
testified, however, that Cox would not have been doing his job if he had
neglected to review available weather forecasts.
According to Amsler, snow squalls are generally narrow-banded, shift with the
wind direction and are difficult to predict because you do not know where they
will go. He did acknowledge that snow squalls do have the potential to generate
a tremendous amount of snow.
On February 11, 1996, the wind direction started early in the day from the
southeast and rotated around to the west. It did not blow to the northwest
until around 8:00 p.m. that evening. Because Lake Ontario is situated north and
west of the accident site, it would have been difficult to generate snow squalls
in Onondaga County with a west, southwest wind.
Amsler testified that there was no sequencing involved in the Operational Plan.
It just listed the routes of responsibility. As a result, the sanding routes in
the plan would not necessarily reflect the actual sequence in which those routes
were covered. Amsler did not know, however, why the sanding routes were listed
in a sequential manner in the plan.
Based on his experience, Amsler testified that snow squalls tended to hit
higher elevations harder and faster. At the time of the accident, however,
Amsler testified that the wind had not turned enough for snow squalls to occur.
Rather, it was a general event throughout the whole County with variations that
are inherent in a general snowstorm.
The State has a nondelegable duty to properly design, construct and maintain
its highways in a reasonably safe condition (
Friedman v State of New York
, 67 NY2d 271; Lopes v Rostad
, 45 NY2d
617). The State is not, however, an insurer of the safety of its highways, and
the mere happening of an accident does not render the State liable (Tomassi v
Town of Union
, 46 NY2d 91) or allow an inference of negligence (Koester v
State of New York
, 90 AD2d 357). The State is not required to employ a
constant vigilance over its highways, but only to pursue reasonably plausible
measures (Freund v State of New York
, 137 AD2d 908, lv
72 NY2d 802). The mere presence of water or snow and ice on the
highway, and the fact that the Claimant lost control of her car does not,
without more, establish that the State was negligent (Timcoe v State of New
, 267 AD2d 375; Freund v State of New York
Liability will only attach where it is established that the State's planning
decisions were made without due care or were inherently unreasonable (
Weiss v Fote
, 7 NY2d 579; Schuls v State of New York
, 92 AD2d
721), or when there was actual or constructive notice of a dangerous condition
(Harris v Village of East Hills
, 41 NY2d 446; Rinaldi v State of New
, 49 AD2d 361). If there is such notice, failure to take reasonable
measures to correct the condition or warn motorists of the known hazard can be a
breach of the State's nondelegable duty, and liability can attach if it is shown
that the State's failure to maintain its highways was the proximate cause of the
accident (Wingerter v State of New York
, 79 AD2d 817, affd
58 NY2d 848; Applebee v State of New York
, 308 NY 502; Plantikow v
City of New York
, 189 AD2d 805).
In the field of traffic design engineering, the State is accorded a qualified
immunity from liability arising out of a highway planning decision. Liability
may be imposed when the State's planning decision is made without due care or
adequate study, or there is no reasonable basis for its plan (
Weiss v Fote
; Friedman v State of New York
67 NY2d 271, supra
). In the instant claim, it is generally
alleged that the State negligently constructed and designed Route 92. No
evidence or expert testimony was presented to establish that the plans and
designs for this area of Route 92 were inadequate or were made without due care
or adequate study. Thus, no liability can be imposed on the State arising out
of any highway planning decision.
The State may still be found liable, however, if it breached its nondelegable
duty to maintain its roadways in a reasonably safe condition. Because this duty
is nondelegable, Onondaga County's actions in carrying out its contractual duty
to clear ice and snow from the roads in the area of this accident must be
attributed to the State. The critical question of fact on which the outcome of
this claim depends is whether the State or its designated agent for ice and snow
control, Onondaga County, had actual or constructive notice of the snow, slush
and ice which existed at the time of the accident in sufficient time to remedy
the condition or for motorists to be warned before Claimant's accident.
Unfortunately, very little evidence was presented concerning the weather
conditions which existed on February 11, 1996. We do know that Accu-Weather
Inc. forecasted lake-effect snow and flurries to start between 4:00 and 6:00
p.m. (Exhibit P). The National Weather Service predicted snow showers at 11:50
a.m. and scattered lake-effect snow showers and flurries at 3:48 p.m. to
continue through the region (Exhibit 89). Both of these forecasts were for a
multi-county area of central New York State.
According to Claimant's expert meteorologist, Wayne Mahar, it started snowing
at Hancock Airport at 10:00 a.m. and snowed almost continuously. Only
eight-tenths of an inch of snow fell at the airport (Exhibit A), and Claimant's
expert admitted that this snow would not have even begun to stick to the ground
until approximately 7:00 p.m. when the temperature at the airport first fell
Mahar also testified that approximately four inches of snow fell at Tully and
at Morrisville during a 24-hour period. Both of these locations are at a higher
elevation than Cazenovia, which is at a higher elevation than Manlius, and,
would therefore presumably receive a greater amount of snowfall than the scene
of this accident. Moreover, the climatological observations for Morrisville
(Exhibit 90), approximately eight miles from the accident scene and closer than
Tully, indicated that there was no precipitation between 9:30 a.m. and 4:00
p.m., which was when Cox called in the supervisor for section 1.
The climatological evidence presented, while generally informative, gives no
indication or advance warning of the snow, slush and ice which existed at 5:15
p.m. in the northbound lane of traffic on Route 92 at the accident scene. Nor
was the testimony of the eyewitnesses particularly informative in this regard.
While all of the eyewitnesses agreed that Route 92 was snow covered at the time
of the accident, Mrs. Hammond testified that she observed no ice on the roadway
and had no trouble driving. She also testified that in the Manlius area Route
92 was clear at 12:30 to 1:00 when she went to lunch.
Cox's DPAR indicated that he received a call at 2:45 p.m. regarding slippery
roads in Elbridge which is located in the northwest quadrant, or section 3,
about 30 miles from section 1, the area of the accident. There is no indication
in his DPAR or any other evidence to establish that Cox or anyone had or should
have had any knowledge or advance warning of the snow, slush and ice which
allegedly existed at the accident scene at 5:15 p.m.
Claimant's expert, Robert Hintersteiner, testified that Route 92 in the general
area of this accident should have been designated an area of special
consideration pursuant to Section 5.1303 of the Highway Maintenance Guidelines
(Exhibit 70) and, thus, plowed first because the accident scene was within the
general area of a steep grade. He admitted, however, that the immediate
accident scene was at the top of the hill in a generally flat area with a
downhill grade of 2%. Hintersteiner never drove Route 173 and did not know if
that route had areas subject to special consideration,
steeper grades or sharper curves, than Route 92. In addition, there
was testimony that other areas of Onondaga County had similar elevations, and
there is nothing in the Highway Maintenance Guidelines or in the Operational
Plan (Exhibit 69) which lists Route 92 or any other route as an area of special
consideration. Based on this evidence, I cannot conclude that Route 92 in the
area of this accident should have been designated an area of special
consideration or plowed before any other area.
Hintersteiner also testified that Cox should have called in the supervisor for
section 1 at least by 2:00 or 2:30 p.m. when he called in the supervisors for
sections 2, 3 and 4, and that Route 92 would have been cleared at the time of
the accident had he done so. Unfortunately, Cox could not recall why he did not
call in the supervisor for section 1 when he called in the other section
leaders. Without climatological data or witness testimony to establish the
weather conditions in section 1 at 2:00 or 2:30 p.m., however, I cannot conclude
that the condition which existed in the northbound lane of Route 92 at 5:15 p.m.
existed three hours earlier, or that Cox, responsible for patrolling the area,
knew or should have known that a dangerous condition would form in this area in
sufficient time to correct the condition or to warn motorists before this tragic
accident occurred. In fact, the evidence presented herein lacks the notice
evidence which I found to be persuasive in my recent decision,
Schleider v State of New York
(Ct Cl, Nov. 29, 2002, Claim No. 96500,
MacLaw No. 2002-013-521).
, I found the State liable for injuries suffered by a motorist
whose car had skidded on ice because the evidence established that the ice was
present and known to an agent of the State some four hours earlier when the ice
caused an almost identical accident. And in Slaughter v State of New
(238 AD2d 770), a case cited by Claimant, there was evidence that sleet
and ice existed on the roadway more than three hours before the accident. No
such notice evidence has been presented herein.
Claimant has failed to meet his burden of proving by a fair preponderance of
the credible evidence that the State breached its duty to maintain its highways
in a reasonably safe condition. My decision would be the same even if the
relaxed burden of proof contemplated under the
doctrine (Noseworthy v City of New York
, 298 NY 76)
were applied as requested by Claimant. Here, my decision was based on
climatological data, expert opinion and ultimately on the issue of notice, none
of which were affected by Claimant's unavailability to testify (Freund v
State of New York
, 137 AD2d 908, lv denied
72 NY2d 802,
The tragedy of claims like these, where a life is lost, is the obvious grief
and pain sustained by the survivors. It is not trite to console the Claimant
with the obvious, that no amount of money can ever compensate for the loss of a
loved one. However, it would be irresponsible to simply ascribe liability to
the State when such a finding is not supportable by the proof, and I decline to
offer the false promise of a recovery when I believe such a result would be
reversed on appeal.
Accordingly, the claim is dismissed. All motions heretofore undecided are
LET JUDGMENT BE ENTERED ACCORDINGLY.