New York State Court of Claims

New York State Court of Claims

LETTELLEIR v. STATE OF NEW YORK, #2003-013-501, Claim No. 97785


Synopsis


Claimant failed to establish by a preponderance of the evidence that the State or its designated agent for snow and ice control had actual or constructive knowledge of the snow, slush and ice which caused Claimant's vehicle to veer into the opposite lane of traffic. Claim is dismissed.

Case Information

UID:
2003-013-501
Claimant(s):
THEODORE J. LETTELLEIR, JR., Individually and as Executor of the Estate of Carmela Lettelleir
Claimant short name:
LETTELLEIR
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97785
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
JOSEPH P. STANLEY, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: CHRISTOPHER WILES, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 19, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The claim arose at approximately 5:15 p.m. on February 11, 1996, when the Claimant, Carmela Lettelleir,[1]
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 line.
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 bifurcated.


FACTUAL TESTIMONY

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 mid-afternoon" (
see, Trial Transcript, p. 65). He could not recall where these squalls were seen or even which route he took on his tour of the County.
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 the County.

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. Elbridge[2]
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 4.

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 temperature.

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 highway.

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 92.

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 Jamesville.

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 line.[3]
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.[4]

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. Schambach,[5]
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 TESTIMONY
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 scene.

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 should[6]
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 (
see, 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 (
see, 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 adequate.

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 Hintersteiner.

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 friction.

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 C.[7]
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 occurs.

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 weather conditions.

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.


DISCUSSION
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 denied 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 York, 267 AD2d 375; Freund v State of New York, supra at 909).
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 York, 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, supra; 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 below freezing.

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,
i.e, 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).[8] In Schleider, 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 York (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
Noseworthy 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, supra).
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 denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

March 19, 2003
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]The claims of Claimant Theodore Lettelleir are derivative only. Thus, all references in this decision to Claimant shall refer solely to the decedent, Carmela Lettelleir.
  2. [2] Paul Ranczuck would later testify that Elbridge was 30 to 32 miles away from section 1 (Trial Transcript, p. 148).
  3. [3] In Dengel's accident report (Exhibit 1), he indicated that the accident occurred 500 feet south of East Pompey Hollow Road, which is approximately a half mile from the County line. He testified that when preparing this report he was making a rough estimate in relation to an intersection as opposed to an estimate from a reference marker or from the County line. After visiting the scene with an assistant attorney general, Dengel amended his accident report on his own to indicate that the accident occurred about 100 to 150 feet south of the County line (see, Trial Transcript, pp. 162, 164 and 166).
  4. [4] At the beginning of trial, both parties agreed to the entry of Exhibit 67, which contains the results of a Syracuse Police Department incident search browse. Exhibit 67 lists the incidents which occurred on Cazenovia Road (Route 92) between 1987 and 1996. For February 11, 1996, three incidents are listed. The first incident listed is a personal injury automobile accident which occurred at 1713 hours (5:13 p.m.). This is undoubtedly the accident before me. There are two later incidents listed: a property damage automobile accident at 2128 hours (9:28 p.m.); and an incident at 1956 hours (7:56 p.m.), which did not involve an automobile accident.
  5. [5] At the beginning of trial, both parties agreed that Schambach's deposition transcript would be entered as Exhibit 78 in lieu of his appearance at trial because he resided more than 100 miles away. All references herein are to his deposition testimony.
  6. [6] Pursuant to Section 5.0000 of the Highway Maintenance Guidelines (Exhibit 70), the word "should" as used within the guidelines means a recommended course of action, as opposed to a required or optional course of action.
  7. [7]Amsler testified that there were four classifications of highways (Trial Transcript, p. 408). Section 5.1302 of the Highway Maintenance Guidelines (Exhibit 70) actually lists five classifications: A1, A2, B, C and D.
  8. [8]This and other Court of Claims decisions may be found on the Court of Claims website at www.nyscourtofclaims.state.ny.us.