New York State Court of Claims

New York State Court of Claims

VISLOSKY v. THE STATE OF NEW YORK, #2003-013-503, Claim No. 93075


The State is entitled to qualified immunity from liability because the evidence failed to establish the existence of a dangerous condition that mandated snow removal at the time of the accident. The claim is dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New York
TIMOTHY P. MULVEY, ESQ.Assistant Attorneys General
Third-party defendant's attorney:

Signature date:
May 6, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This one-car accident occurred on February 9, 1994, when the car Claimant[1] was operating in the far left-hand lane of Interstate Route 81 south at the so-called Park Street overpass went out of control, careened to the right, crossing two other southbound lanes of Route 81, struck the snow bank on the shoulder and vaulted to the top of the bank where it teetered for a matter of seconds and then toppled to the ground 60 feet below. Miraculously, Claimant survived the fall, albeit suffering serious and severe injuries. This trial was bifurcated and limited solely to the issues of liability.

The claim sets forth numerous grounds of liability against the Defendant (see, ¶ 7). Included were allegations of negligent design and construction of the highway, but there was no proof adduced at trial to support those parts of the claim, and I have not addressed them in this decision. Claimant predicates liability primarily on the grounds that:

a). the State failed to remove in a timely fashion accumulated snow, ice and slush at or around the area of the accident or to apply salt, sand or other material to minimize the icy and /or slippery conditions which existed;

b). the State failed to maintain the westerly shoulder of the highway by allowing snow to accumulate within this area, freeze and otherwise become packed down so as to make the guiderail (Jersey barrier) ineffective in its design and purpose of affording protection to the users of the highway;

c). the State created a dangerous condition and allowed it to exist and remain on the bridge in the form of hard packed snow so that the potential of vehicle ramping was introduced, and

d). the snow and ice removal plan was inherently unreasonable and lacked a reasonable or rational basis in its formulation.

Claimant contends that the Defendant created a dangerous condition known as "ramping" by allowing snow to be plowed from the roadway surface to the shoulder and against the barrier over an extended period of time. According to Claimant, the accumulated snow became compacted, and melting and freezing caused the snow to become hard enough to support a vehicle and caused Claimant's vehicle to vault over the barrier.

Route 81 generally runs in a north-south direction in the City of Syracuse. The highway, if not the main route for commuter traffic in the area, is certainly one of its busiest and most heavily traveled roadways. The so-called Park Street Bridge is a span that rises some 60 to 80 feet over Park Street, railroad tracks, walking paths, and a commercial area. The bridge covers a distance of approximately one-half of a mile and consists of three southbound travel lanes, each being twelve feet wide. The highway generally slopes from east to west, and the shoulders on each side are ten feet wide.

On the morning of February 9, 1994, at approximately 8:30 a.m., Claimant was traveling southbound on Route 81 en route to a meeting in connection with her employment in the Onondaga County Department of Finance, Employee Benefits Division. The meeting was being held on the campus of Onondaga Community College. The day was overcast and it was snowing lightly. She had entered Route 81 from the Route 11 entrance ramp, which is approximately two miles from the Park Street bridge where the instant accident occurred. This is the same route that Claimant took every day on her way to work.

The roadway was snow covered in spots, generally slushy and sloppy, but traffic was moving normally. As Claimant approached the bridge, she moved from the middle lane of traffic to the far left passing lane to avoid a pothole that she claimed was in the center of the highway. According to her testimony, although the lines delineating the lanes were obscured by the snow and/or slush, she followed the tracks made by the preceding traffic which "defined" the lanes for her. As she entered the bridge, she hit what she thought was an expansion joint which caused her vehicle[2] to swerve to the right. Claimant was unfamiliar with the braking system on this car as she seldom drove it and was unaware that it was equipped with an anti-lock braking system (ABS). She stated that she immediately started to pump the brakes and turn into the skid, a breaking technique incompatible with the ABS system.

The car skidded across the other two lanes to the shoulder where it struck the snow that had been plowed and stored on the shoulder at what she described as a 45-degree angle. The car, which weighed an estimated 4500 pounds, rolled up the snow bank to the top of the Jersey barrier where it teetered. Claimant, who was wearing a seat belt, undid the belt and leaned toward the rear of the vehicle, hoping that her actions would cause the car to stabilize or perhaps roll backward. Neither event occurred and after a brief pause, the car went over the rail dropping some 60 feet to the ground, landing on its roof.

Peter Cetinski was traveling south on Route 81, slightly behind Claimant. While he did not see the beginning of Claimant's skid, he did observe her vehicle cross in front of him and run up to the top of the snowbank. He testified that he observed the car teeter for a moment and then fall. He stated that he brought his vehicle to an immediate stop, ran up the snowbank and observed Claimant's car on its roof below. He estimated the distance from where he was standing to the vehicle to be 30 feet. Surprised that no one else stopped to offer assistance, he returned to his car and called 911 to report the accident. Because he was unable to find a way to reach Claimant, he ran to another accident scene he had just passed, approximately one-half mile to the north. When Cetinski arrived at that accident site, he was told by the rescue personnel that they were unaware of Claimant's accident. By the time he returned to the scene of this accident, an emergency rescue team had arrived and was checking Claimant's vehicle.

Cetinski's recollection of the weather on that day was consistent with Claimant's. He testified that the photographs in evidence (Exhibits 4B to 4G and 4J to 4O) were fair and accurate representations of the scene of the accident and roadway. He testified that when he stood on the snowbank, at the point where Claimant's car had traveled and stopped before falling off the bridge, he did not sink in at all. Further, he stated that photographic Exhibits 4F, 4D, 4C, 4E, 4N, 4I and 4J each showed tire tracks from the Vislosky vehicle. The depth of the depression made by the tires appeared to be just a few inches, despite the weight of the car.

Cetinski stated that when he stopped his car on the side of the road, he was unable to tell if it was on the shoulder because the fog line was not visible. He was unable to remember, however, whether the lines delineating the lanes of traffic were visible or not. He was also unable to recall whether he encountered any bump as he entered the bridge, nor was he able to recall a pothole in the area. He did recall, however, that he did not experience any problem in bringing his car to a stop on the shoulder before he went to investigate the accident.

Claimant's weather expert, Wayne Mahar, testified to the conditions in the Syracuse area from December 1993 through part of February 1994. Most of the data relating to snowfall and accumulations was based on the recorded snowfall at Hancock Field, the airport that services the Syracuse area. The site of the accident is about three miles west of the airport and, while it was conceded that there might be a variation of the amount of accumulated snow between these points, there was no proof before me that such variations would be significant, unless there was a localized lake effect event. During December 1993, the temperatures were characterized as mild until the latter part of the month. Temperatures dropped before Christmas that year and, according to Mahar, there had been no significant snow event which resulted in an appreciable accumulation of snow. January provided a different climatic situation, and in the first 15 days Mahar noted that roughly 40 inches of snow had fallen. Snow continued to fall for the balance of the month, but not in the same quantitative amounts as measured in the first days of January. The amount of snowfall in February, up to the date of the accident, could not be characterized as significant, but certainly there were measurable amounts of accumulated snow. During this time, the Defendant had its plows out removing snow from the road surface and storing it on the shoulder of the road.

In 1993, the New York State Department of Transportation (DOT) adopted and implemented new guidelines relating to snow and ice removal from its highways (Exhibit 15).[3] Consistent with these new guidelines, at the time of this accident, it was DOT's practice to pack the snow and ice it removed from the road surface against the guiderail on the side of the so-called Park Street Bridge. This guiderail, known as a Jersey barrier, was 34 inches high, made of concrete and designed to keep even the largest vehicle from going off the bridge upon direct contact. The barrier was also designed so that tires of wayward vehicles would ride up the barrier, but not over it, according to Claimant's expert, Lawrence Levine. As noted in the photographs marked as Exhibits 4C through 4P, the snow had been plowed off the traveled way, and was compacted against the barrier and outward toward the fog line, which delineated the travel lane from the shoulder.

According to the proof in this record, the Defendant had made a determination that it would neither plow nor push the snow off the bridge. This decision was made in part because there was no snow blower within this part of the district, and the Defendant would have to bring one in from another area where it was being used. An equally important consideration was the fact that below the bridge in question were railroad tracks, a walking path, Park Street and commercial buildings. Admittedly, not all of these features were directly beneath the part of the bridge where Claimant's vehicle came to rest.

Lawrence Levine, a licensed engineer in the State of New York and a forensic expert, testified on behalf of Claimant. Based on his investigation, he opined that the shoulder had lost its effectiveness as a breakdown lane because the Defendant had plowed and packed snow on it to the extent that there was no further room left for snow storage. Consequently, if a vehicle was in peril it would have no place to safely leave the highway. Further, with the snow packed to the top of the Jersey barrier, it, too, had lost all of its essential safety features and Levine believed that the barrier became a solid, sloping, compacted mound of snow which, when struck at the opportune angle and speed, would cause a vehicle to be propelled upward and over the barrier. It was this "ramping" feature which caused Claimant's car to react as it did on the date of the accident.

Levine stated that the shoulder in this area was designed to be exceptionally wide for several safety reasons including, but not limited to, the accommodation of the heavy machinery needed to remove snow buildup on the shoulder. He also was of the opinion that good and accepted practice in New York required that snow should be removed from the shoulder as soon as possible after the storm which produced the buildup had passed. It was also his opinion that the snow buildup on the Jersey barrier was a "priority hazard"[4] which required the Defendant to remove it as soon as the State had employees available and weather permitted.

Levine opined that, since the shoulder was full of compacted snow and the white fog line was covered with snow, the shoulder was unusable. He based his opinion upon his study of photographs taken on the day of the accident (Exhibits 4C to 4P). He went on to state that the Defendant violated its own snow and ice removal guidelines which required it to remove snow from the shoulder once the traveled way was cleared.

Levine's examination of the climatological records and the work records of the district employees from January 17 to the date of the accident led him to conclude that the Defendant had several opportunities when it could have geared up to do snow removal, especially on the Park Street Bridge, and its failure to do so was a departure from good and accepted highway maintenance practice in the State of New York. He stated that snow removal could have been accomplished in several ways, including casting snow off the bridge to the open ground beneath the structure. Because of the condition of the shoulder on February 9, Levine concluded that the Claimant effectively had no shoulder to use to safely bring her car to a halt. Rather, according to Levine, she was confronted with a hard-packed, solid snowbank that rose over the top of the Jersey barrier creating a ramp that resulted in this horrific accident.

The accident scene falls within the Onondaga East Residency of DOT for maintenance purposes. This residency was responsible for about 600 lane miles of highway, including Route 81 from the Cortland County line to the Oswego County line. Samuel Warner, a DOT employee, was assigned to the East Residency as a Highway Maintenance Supervisor Grade I during the winter of 1993-1994. At that time, this residency had 14 trucks which served as sanders/plows in the winter season. Warner stated that these trucks were assigned to 14 beats, which I understood to be 14 routes within the residency. From Warner's testimony, I concluded that a single truck was assigned to each discrete beat but that on occasion two or more trucks could be assigned to one beat. In fact, there was proof that in the area of the accident, three plows had been used, in echelon fashion, when there were significant amounts of snow.

Of interest was Warner's testimony that in the 25 years he had been employed by DOT, there had never been an occasion when snow which had built up on the shoulder had been dumped over the side of the Park Street Bridge. He also indicated that he had observed the snow blower being used only once, but that was at the Hiawatha Boulevard ramp which required more attention because it had a narrow area for snow storage and because the travel lanes of that ramp narrowed from two lanes to one. On more than one occasion, snow was dropped off this ramp to the ground below and a spotter was situated to alert the crew in the event that it became unsafe to continue the operation. Interestingly, Warner stated that removal of the snow in this fashion from the Park Street Bridge was not permitted because of the proximity of railroad tracks, commercial buildings, Park Street and a walking path. On cross-examination, however, he agreed that these features were a distance away from the area of the accident,[5] and that the area where the Vislosky car came to rest was somewhat open and full of brush.

The significant differences between the Hiawatha ramp area and the Park Street Bridge are the width of the shoulders and the number of travel lanes. At the Hiawatha ramp location, the shoulders were narrow and the travel lanes narrowed to one, leaving much less capacity for snow storage than existed on the Park Street Bridge. As a consequence, the Hiawatha ramp was a higher priority area than the Park Street Bridge.

While in a perfect world the entire fleet of trucks would always be available for service, reality dictates otherwise, and often trucks could be out of service for repairs or just ordinary servicing. Consequently, according to the testimony, when there was a prediction of snow, the practice was, and still is, not to change the available trucks from their plowing and salting pattern to the configuration needed to remove snow. There would have to be a substantial window of opportunity of clear weather in order to clean off the entire area of the span in both northbound and southbound lanes. Without a significant window of several days without snow, it would be imprudent to undertake such an operation, considering the amount of equipment and the number of employees who would have to be involved.

In examining the photos taken on the day of the accident (Exhibits 4E, et seq.), Warner averred that in his opinion the shoulder where this accident occurred had not reached the point where any affirmative action needed to be taken. In fact, he estimated that there was an area of at least four additional feet for storage. He further stated that the scene shown in the photos represented the area after the plows had gone through, but before the Defendant had an opportunity to return to clean up the shoulder and push that snow back toward the barrier.

Warner's testimony was buttressed by that of David Law, the Resident Engineer of the Onondaga East Residency. Law agreed that the shoulders of Route 81 at the accident scene were wider than most in the residency. Consequently, this larger capacity permitted the Defendant to attend to other areas within and without the city limits that had lesser storage capacity. Law also reinforced the fact that disposing of snow by dumping it over the guiderail at the accident scene was not permitted as a matter of policy because in that area there were railroad tracks, Park Street, a commercial building, Lay's Creek and a walking path that was used by the public, albeit infrequently in the winter.

According to Law, under the Highway Maintenance Guidelines, snow which built up within the shoulder area would be removed if it encroached on the travel lane, or, stated another way, if it went beyond the white or yellow demarcation lines. In addition, snow would be removed if a situation existed where snow was melting, running off, and then refreezing. Because this was an area which was not known to have problems with respect to melting and then refreezing, that circumstance was not a significant consideration. Law stated that there were over 600 lane miles and 165 bridges within this residency, including the areas of Route 81 which snake through the City of Syracuse. According to Law, several days were required to break down the equipment from the plowing mode to the snow removal mode and then to remove the snow on the shoulders of both the northbound and southbound lanes of Route 81 on the Park Street Bridge. He stated that he could not divert his resources to accomplish this if there was still capacity on the shoulder to accommodate additional storage of plowed snow and further, that he would not go through the process of breaking down the equipment unless there was the prediction of a significant number of days when no snow was forecast.

While Law was a credible witness in setting forth the snow removal policy in the residency, I was somewhat dismayed by his insistence that he was not familiar with the term or phenomenon of ramping. This is especially so in light of the testimony of Duane Amsler, who was responsible for the drafting of the New York State Department of Transportation Snow and Ice Guidelines in 1993 (guidelines) that Law followed, and who testified that the concept of ramping goes back to the early 1980's when it was being discussed on a national level. It is, therefore, inconceivable that Law had not heard it discussed prior to testifying in this case, and his statement that he was not acquainted with that term and its meaning did not serve him or his employer well.

It is well settled that the State must maintain its highways in a reasonably safe condition, but it is not an insurer of the safety of the traveling public (Friedman v State of New York, 67 NY2d 271; Boyce Motor Lines v State of New York, 280 App Div 693, affd 306 NY 801; Freund v State of New York, 137 AD2d 908, lv denied 72 NY2d 802). The mere happening of an accident 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). Liability will attach, as a general rule, when the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (Brooks v New York State Thruway Auth., id.).

In this claim, Claimant alleged that she lost control of her vehicle due to the slush, ice, snow and slippery pavement existing on Route 81 South, and that Defendant was negligent for failing to properly maintain the roadway surface. The evidence established that it had been or still was snowing at the time of the accident and that Defendant was plowing and sanding the roadways within the residency. More importantly, however, during trial Claimant testified that she lost control when she swerved to the left to avoid a large pothole which took up the entire center lane of traffic and hit a "little bump" in the bridge or ground which she believed was the expansion joint. Cetinski, an unbiased eyewitness to the accident, did not recall a pothole or a "little bump." Moreover, the photographs taken on the day of this accident do not reveal the existence of a pothole, and there was no expert testimony to establish that either a pothole or an expansion joint was a dangerous condition or caused Claimant to lose control of her vehicle. Furthermore, there was no evidence to establish that Defendant had actual or constructive notice of a dangerous condition caused by any pothole or expansion joint and then failed to take reasonable measures to correct the condition or warn motorists of it. Claimant has, therefore, failed to meet her burden of proving by a fair preponderance of the credible evidence that Defendant failed to maintain the travel lanes of Route 81 in a reasonably safe condition.

Additionally, the State is accorded a qualified immunity from liability arising from a highway planning decision and can only be liable for injuries that are the result of a duly executed highway safety plan that was implemented "without adequate study or lacked [a] reasonable basis" for its adoption (Weiss v Fote, 7 NY2d 579, 589; Friedman v State of New York, 67 NY2d 271, supra).

Claimant, not surprisingly, argues that the State in effect had no reasonable plan in place to protect the traveling public from the hazard created by its failure to do any removal of the accumulated snow from the shoulders of Route 81 in the area known as the Park Street Bridge. The result of the State's purported failure to have a reasonable plan in place requiring the removal of the accumulated snow compromised the safety design of the Jersey barrier, allegedly resulting in the ability of vehicles to vault or ramp over the barrier, rather than be guided along the perimeter and remain on the shoulder.

The guidelines for snow and ice removal in effect at the time of the accident were adopted in 1993 and superceded all previous guidelines. Prior to their final adoption, there had been extensive study and review by the committee of the current state of the art relating to removal of snow and ice from State and interstate highways, with considerable attention being devoted to resource and budgetary constraints.

It was the opinion of Claimant's expert that while removal of snow from the barrier and shoulder could not reasonably be expected after each snow event, the Defendant permitted it to remain from late December through the date of the accident. The evidence adduced at trial established that the accumulated depth of the snow was in excess of two feet as measured at Hancock International Airport, a location some three miles from the accident site. All of that snow had been removed from the highway and pushed to the shoulder where it was stored. This action had the effect of creating a snowbank that sloped toward the barrier and eventually over its top. Claimant's expert opined that the shoulder was in fact full and that snow extended beyond the white line onto the traveled way, relying upon the photographic evidence to support his conclusion.

Duane Amsler, who drafted the guidelines in 1993, testified that they called for removal of accumulated snow from bridges only when (1) there existed a drainage problem with melting and refreezing snow creating a dangerous condition on the traveled way, or (2) if there was no further room for the storage of snow. In Amsler's expert opinion, there was no drainage problem on the Park Street Bridge. Furthermore, his review of the photographs taken on the day of the accident convinced him that snow was not encroaching on the travel portion of Route 81 and that the shoulder could accommodate further storage of snow. Amsler's opinion also incorporated consideration that any plan for removal of the snow had to take into account impending weather, available equipment and manpower. These guidelines were formulated so that each DOT resident engineer was allowed to prioritize snow and ice removal based on the particular location in the State of each residency and its financial resources. As a consequence, each residency has the flexibility to establish its own priorities and how best to address them.

I find that Defendant's snow and ice removal procedures were completed in accordance with the DOT's 1993 Highway Maintenance Guidelines. These guidelines recognized, and specifically stated, that "[t]he complete removal of snow from the traffic side of guiderail and median barrier is not possible with available resources" (Exhibit 15, Highway Maintenance Guidelines, p. 13). In accordance with these guidelines, it was the practice of Defendant to plow the snow from the surface of Route 81 and pack it against the Jersey barrier at the side of the Park Street Bridge. A specific and reasoned determination was made not to plow or blow the snow off this bridge because railroad tracks, Park Street, a commercial building, Lay's Creek and a walking path were all located underneath the Park Street Bridge. The removal of snow from bridges was limited to occasions when a dangerous condition was caused by melting and refreezing snow and ice draining onto the traveled way, or there was insufficient room on the shoulder to accommodate the next snowstorm. No evidence was presented to establish a problem with melting/refreezing snow draining onto Route 81. Moreover, while Claimant testified that the shoulder was full, the more credible testimony in this regard was from Law and Amsler who testified that the ten-foot shoulder which existed in the area of this accident was not completely filled, and that the shoulder could accommodate a future snowfall. This testimony was further buttressed by the photographs taken on the day of this accident, which clearly revealed that the shoulder was not, in fact, full of snow, and that it could accommodate the residue of another snowfall. Thus, the evidence failed to establish that either of the conditions mandating snow removal from this bridge existed at the time of this accident.

These specific guidelines were reasonably calculated to address dangerous conditions which could occur on the Park Street Bridge, considering the relatively small potentiality for vaulting or ramping accidents, the difficulty of removing snow from the area and the limited resources available to the Defendant. Where, as here, a municipality has studied a potentially dangerous condition and determined, as part of its reasonable plan for governmental services, that certain steps need not be taken, that decision may not form the basis of liability (see, Tuchrello v State of New York, 190 Misc 2d 664; Friedman v State of New York, 67 NY2d 271, supra).

It is beyond anyone's ability to fully grasp the fear and horror Claimant experienced on this day. While I am not unmindful of the physical and mental trauma she suffered and has endured, it is my obligation to base my opinion on the facts and applicable law and put aside emotion. In cases such as this, where skilled trial counsel are involved, that task becomes even more difficult, but I am nonetheless obliged to apply the law to the facts adduced at trial.

Based on the foregoing, I conclude that the State is entitled to the qualified immunity from liability that arises out of a highway planning decision (Weiss v Fote, 7 NY2d 579, supra). The claim must be and hereby is dismissed. All motions not heretofore ruled upon are now denied.


May 6, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1] The claim of Stephen G. Vislosky is derivative only. Thus, all references to Claimant in this decision shall mean Anne L. Vislosky only.
  2. [2]Claimant was driving her husband's 1989 Lincoln Continental, which was not the vehicle she usually drove.
  3. [3]The Highway Maintenance Guidelines are guidelines, not mandates, and consideration must be given to the circumstances extant at the time of each incident, as no two incidents are exactly the same.
  4. [4]He estimated the snow had built up to such a height that it exceeded the concrete top of the barrier by at least four to six inches.
  5. [5]Except for the walking path, which likely would not have been in use during the winter.