New York State Court of Claims

New York State Court of Claims

BARRETT v. THE STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY, #2003-015-319, Claim No. 103421, Motion No. M-66175


Synopsis


Claimant failed to raise triable issue of fact as to alleged liability of New York State Thruway Authority for injuries sustained by two passengers in vehicle struck from rear by tractor trailer during ongoing snow storm. State had immunity for discretionary decision to keep Thruway open even if claimant had shown actual or constructive notice of a dangerous condition

Case Information

UID:
2003-015-319
Claimant(s):
CLOVER M. BARRETT, AS GUARDIAN FOR JAMES A. BARRETT, JR. and STEPHEN M.S. GORDON
Claimant short name:
BARRETT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103421
Motion number(s):
M-66175
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Peltz & WalkerAlexander Peltz, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendants' motion pursuant to CPLR 3212 for an order dismissing the claim on the grounds that there are no material issues of fact requiring a trial and the non-liability of the defendants can be determined as a matter of law is granted. The instant claim seeks to recover damages for injuries sustained by James A. Barrett, Jr. and Stephen M.S. Gordon who were passengers in a 1986 Volkswagen Golf driven by Sanchez Reddicks on the New York State Thruway in the Town of New Baltimore at approximately 2:10 a.m. on January 31, 2000. At that time the Reddicks vehicle was traveling in the left of two northbound lanes near mile post marker 125.9 when it was struck from behind by a tractor trailer operated by Miguel Carela. Carela reportedly did not see the Reddicks vehicle prior to the collision due to heavy snow. The force of the impact crushed the rear of the Reddicks vehicle including the passenger compartment where claimant James A. Barrett, Jr. was seated resulting in severe personal injuries. Claimant Stephen Gordon, a front seat passenger, sustained less severe injuries.

For purposes of defendants' motion the Court must consider the claimants' factual allegations concerning the happening of the accident as true and the motion must be decided on the version of the facts most favorable to the non-moving party (see, St. Paul Industrial Park v New York State Urban Development Corp., 63 AD2d 822; Jones v County of Herkimer, 51 Misc 2d 130).

Claimants allege that on the evening of January 30, 2000 they decided to travel from Brooklyn to Albany to visit a friend who was a student at the State University of New York at Albany. After stopping for gasoline and something to eat in Brooklyn the three cousins (Barrett, Gordon and Reddicks) set off in Reddicks' 1986 Volkswagen Golf at approximately 11:30 p.m. They traveled through Brooklyn to the Major Deegan Expressway and entered the New York State Thruway (I-87) at Yonkers, New York. Reddicks' vehicle was equipped with an E-Z Pass device which allowed passage through the Thruway tollbooth without stopping to obtain a ticket as would otherwise be required for travel on this toll road. Reddicks proceeded northerly through another tollbooth located at Woodbury, New York, again using his E-Z Pass. As they traveled along they listened to New York City radio station WINS 1010 FM which occasionally provided a weather forecast of light snow for the New York City area. None of the three occupants of Reddicks' vehicle telephoned the Thruway at 1-800-THRUWAY or visited the Thruway website on the Internet to obtain weather or road condition reports prior to their departure and none could recall having listened to a weather forecast which included information concerning the upstate area before or during their trip.

Light snow was first encountered between New Paltz and Kingston and the rate of snowfall increased as they journeyed northward. Reddicks recalled having seen several snowplows operating on the Thruway that night and testified at his examination before trial that just minutes before the accident he passed a snowplow that he had been following for several minutes. Reddicks reported his speed at the time he passed the snowplow to have been between 30-35 mph which he claimed was in keeping with the speed of other traffic on the Thruway at that time. After passing the snowplow Reddicks remained in the left lane of northbound traffic. At his examination before trial Reddicks related what next occurred as follows:
. . . then there was a point when I noticed that the snow came down really hard at that point and my visibility was really, really low. Then I was going to come over to the right lane knowing that the plow was on the right-hand side, behind me and that's when I saw the lights of the truck.

He testified that shortly after he saw the headlights blink behind him his vehicle was struck from behind by a tractor trailer driven by Miguel Carela. Emergency personnel including a New York State Police patrol car thereafter responded to the scene and the injured claimants were transported to Albany Medical Center. In his sworn statement dated January 31, 2000 given to Trooper Patrick Cullen at Albany Medical Center Mr. Reddicks stated that at the time of the accident there was "about one inch or two of snow on the ground and it was coming down pretty steady" (Defendants' Exhibit 18). Mr. Barrett's recollection of the accident is less detailed but he recalled being aware that the vehicle in which he was riding was going to be struck by the tractor trailer prior to impact.

Miguel Carela, the driver of the tractor trailer, testified that he left South Kearney, New Jersey on the night of January 30, 2000 with a trailer load of Colgate Palmolive products bound for the Hannaford Distribution Center in Schodack Landing, New York. He entered the Thruway at Harriman (Exit 16) after stopping to get a ticket. While passing through the tollbooth Carela did not see a weather advisory board regarding weather or road conditions on the Thruway but recalled that light snow was falling at that time. As he journeyed northward Carela received reports of snow on the Thruway from other truckers by means of a citizens band radio. Mr. Carela testified at his examination before trial that he observed no warning signs and received no reports on his citizens band radio concerning low visibility conditions on the Thruway. Carela acknowledged that prior to his departure from New Jersey he had heard a weather forecast predicting snow but he did not attempt to obtain a weather or road condition report from the Thruway Authority by calling 1-800-THRUWAY or visiting the Thruway's Internet website.

In contrast to the testimony of Reddicks and Gordon, Carela could not recall having seen any snowplows on the Thruway prior to the accident. Mr. Carela testified that immediately preceding the accident he was traveling at a rate of 25-30 mph following another tractor trailer in the right lane of traffic. Carela observed the tractor trailer in front of him begin to slow and in reaction moved his vehicle into the left or passing lane whereupon he made contact with Reddicks' Volkswagen. He alleged that he did not see the Reddicks vehicle and "only knew that an accident happened because of the impact." Carela believed the Reddicks vehicle was stopped in the left lane prior to impact. The following colloquy occurred on Carela's cross-examination by defense counsel at his EBT:
Q. Did you apply your brakes at any time before the accident occurred?

A. I reduced my speed when I was going into the left lane

MR. GATES: But he asked him did you apply your brakes, ask him that.

THE WITNESS: No.

Q. How did you reduce your speed as you were passing the vehicle?

A. With the jet brakes of the motor.

This testimony differs slightly from the sworn statement Carela gave to State Police Investigator Matthew Zell through the use of an interpreter (Trooper Miguel Vega) several hours subsequent to the accident (Defendants' Exhibit 9). In that statement Carela said, '[A]s soon as I saw the car, I put the brakes on." The factual variations while noteworthy do not impact the issue of the moving defendants' liability and therefore do not raise material issues of fact which preclude summary judgment.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).

The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653).

In support of the motion the defendants have submitted a copy of the pleadings; an affidavit by defense counsel; the affidavit of a certified consulting meteorologist (Phillip D. Falconer); the affidavit of New York State Police Sergeant Patrick Cullen; the affidavit of New York State Thruway Authority Maintenance Supervisor Thomas Spinner, the affidavit of New York State Thruway Authority Albany Division Traffic Supervisor Raymond W. Engel; transcripts of examinations before trial of claimants James A. Barrett, Jr. and Stephen M.S. Gordon; the transcript of an examination before trial of Sanchez Reddicks; the transcript of an examination before trial of Miguel Carela; a written statement of Miguel Carela dated January 31, 2000 containing an advice of rights and Penal Law § 210.45 notice; New York State Thruway Authority radio call logs dated January 30 - 31, 2000; a copy of New York State Thruway Authority Weather and Road Condition Report dated January 30-31, 2000; copies of New York State Thruway Authority Weather Report Notices dated January 30 - 31, 2000; a copy of a New York State Thruway Authority Supervisor's Log for January 30, 2000 (Exhibit 13); a copy of the New York State Thruway Authority Catskill Maintenance Yard storm sheets for January 30-31, 2000 (Exhibit 14); a copy of the New York State Thruway Authority Supervisor's Storm Activity Reports for January 30 - 31, 2000 (Exhibit 15); a copy of the New York State Thruway Authority Truck Driver's Storm Activity Reports for January 30 - 31, 2000 (Exhibit 16); copy of a portion of the New York State Thruway Authority Technical Manual regarding Thruway closing procedures (Exhibit 17); and a copy of a supporting deposition of Sanchez E. Reddicks dated January 31, 2000 containing a notice pursuant to Penal Law § 210.45 (Exhibit 18).

It is well settled that the State is under a non-delegable duty to adequately design construct and maintain its roadways in a reasonably safe condition (see, Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579; Gomez v New York State Thruway Auth., 73 NY2d 724). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on a State roadway does not render 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). Generally, liability will not attach unless the defendant had actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct it (see, Brooks v New York State Thruway Auth., supra; Rinaldi v State of New York, 49 AD2d 361).

The defendants have moved for summary judgment asserting that claimants can offer no proof that a dangerous condition (i.e., whiteout conditions) existed on a portion of the Thruway at or near mile post marker 125.9 of the Thruway at approximately 2:10 a.m. on the morning of January 31, 2000 or, alternatively, that the defendants had notice of such a condition and failed to take timely corrective measures. In seeking to prove the absence of a dangerous condition defendants have offered the affidavit of Phillip D. Falconer, a certified consulting meteorologist. Mr. Falconer reviewed data from numerous State and regional climatological sources including the National Weather Service for the period January 30-31, 2000. He opined that winter storm conditions on January 30-31 never reached blizzard intensity and that there was no blowing or drifting snow along the New York State Thruway in northeastern Greene County and southeastern Albany County during the early morning hours of January 31, 2000. While recognizing the scientific basis for Mr. Falconer's opinion the Court is not persuaded that the data relied upon, no matter how extensive and comprehensive it may be, succeeds in proving as a matter of law the absence of whiteout conditions at this particular accident site at the time in question.

Moreover, on defendants' motion for summary judgment the non-moving claimants are entitled to the benefit of all favorable inferences which may be drawn from the established facts. Using the Falconer affidavit as a basis for certain facts it is established that there was a winter storm in progress in and around the subject portion of the New York State Thruway beginning around 10:00 p.m. on January 30, 2000. It is further established that the precipitation fell in the form of snow at a rate of approximately one inch per hour from midnight through at least 2:10 a.m. on January 31, 2000 and that after midnight winds blew out of the north at speeds of 4 to 8 mph. Although defendants' meteorologist construes the data as falling short of blizzard conditions, the precise conditions at the specific location of the claimants' accident appears to the Court to be essentially a question of fact. Giving claimants the benefit of the favorable inferences to which they are entitled by law, the Court declines to find as a matter of law that whiteout conditions did not exist at or near mile post marker 125.9 at the time of the subject accident.

With regard to the issue of notice, however, the defendants have met their burden on the motion by presenting a prima facie showing that they received no notice of the allegedly dangerous condition (i.e., near whiteout conditions) on the Thruway prior to the claimants' accident.

The affidavits submitted by the defendants in support of the motion from Sergeant Cullen, snowplow operator Fred Allen who was assigned to that portion of the roadway between mile post markers 119.8 and 127.4, the Thruway maintenance supervisor and Albany Traffic Division Supervisor all support the defendants' position that they were unaware of the near whiteout conditions allegedly encountered by claimants and by the operator of the tractor trailer.

Since the defendants have met their burden of establishing a lack of notice of the allegedly dangerous condition the burden shifted to the claimants to submit evidence in admissible form demonstrating the existence of a material issue of fact requiring a trial (see, Alvarez v Prospect Hosp., 68 NY2d 320; Speranza v Payea, 225 AD2d 987, lv to appeal denied 88 NY2d 806).

In opposition to the motion claimants submitted an affidavit of their attorney; the affidavit of a licensed civil engineer (Joseph S. Champagne); photographs of claimant James A. Barrett, Jr.; an inter-office memorandum dated February 29, 2000 from an Assistant Traffic Supervisor of the Thruway Authority, Albany Division (Dean R. Kennedy) to William Behrens with attachments; a transcript of an examination before trial of Miguel Carela dated October 25, 2002; a copy of a disposition sheet of Vehicle & Traffic Law charges against Miguel Carela issued January 31, 2000; portions of the New York State Thruway Authority technical manual regarding winter storms and procedures for closing the Thruway; winter and road condition reports, a duty officer's weather report notice regarding a speed reduction to 40 mph and closure of portions of the Massachusetts Turnpike to certain traffic including tandems, wide loads and propane haulers; a New York State Thruway Authority radio log for January 31, 2000 (12:00 midnight to 9:17 a.m.) and transcripts of examinations before trial of the following individuals: Thruway Authority Senior Radio Dispatcher David Jones, Trooper Roy K. Swann, New York State Police Sergeant Patrick Cullen, New York State Police Sergeant Randy L. Gray, New York State Police Captain Louis G. Barbaria, Jr., New York State Thruway Authority Assistant Traffic Supervisor Dean Kennedy, New York State Police Investigator Matthew J. Zell Sr., snowplow operator Fred Allen, New York State Thruway Authority Executive Project Manager Peter Melewski, New York State Thruway Authority Director of Traffic Engineering Halsey Peter Gustafson and New York State Thruway Authority Traffic Supervisor Raymond W. Engel.

It is clear from claimants' opposition to the motion that they seek to predicate liability upon the defendants' failure to close all or a portion of the Thruway to traffic on the night of January 30, 2000 and the early morning hours of January 31, 2000 due to hazardous winter storm conditions and to warn motorists of whiteout conditions existing in southeastern Greene County and southeastern Albany County prior to the subject accident.

With regard to the defendants' duty of care claimants argue that because they were customers on this toll road a more stringent duty of care was owed to them by the Thruway Authority than is owed by the State to users of other State highways. This very argument was raised and rejected by the Court of Claims more than forty years ago in the case of Waterman v State of New York, 24 Misc 2d 783, judgment vacated on other grounds,13 AD2d 619 in which the trial court stated at page 785 that "[t]he fact that the costs of these highways are met by fees paid by the users thereof rather than from the general tax revenues of the State does not in any way affect the measure of the duty owed to the users of the highway by the Thruway Authority. The measure of that duty remains reasonable care commensurate with the dangers to be reasonably apprehended." The clear precedent in this State is that the Thruway Authority is required to maintain the highways under its control in a reasonably safe condition (Cipriano v State of New York, 171 AD2d 169, appeal denied, 79 NY2d 756; Mickle v New York State Thruway Auth., 182 Misc 2d 967; Reiben v State of New York, 25 Misc 2d 1098).

Despite their voluminous submissions claimants have not succeeded in demonstrating a triable issue of fact concerning the defendants' actual or constructive notice of the alleged whiteout conditions existing near mile post marker 125.9 of the Thruway prior to claimants' accident.

The mainstay of claimants' attempt to prove the defendants had prior notice of the alleged whiteout conditions is the inter-office memorandum of Assistant Traffic Supervisor Dean Kennedy dated February 29, 2000 to William Behrens (Exhibit B) in which Mr. Kennedy stated "State Police advised me that there was very heavy snow with near whiteout conditions at the time of the accident." First, the document is not in admissible form and is therefore not competent proof sufficient to defeat the defendants' motion (Grasso v Angerami, 79 NY2d 813; Burns v City of Poughkeepsie, 293 AD2d 435). Secondly, even if it were in admissible form its contents are at best hearsay. Kennedy acknowledged at his examination before trial that he could not recall who provided him the information related in his memorandum. Even if the source were identified and the document was otherwise admissible it does not support claimants' contention that any member of the State Police or any Thruway Authority officer or employee had actual notice of near whiteout conditions prior to the accident (see, Davis v Golub Corp., 286 AD2d 821). The Kennedy memorandum was not a contemporaneously made record of an event nor even a post-event recording by an eyewitness. Rather, it simply relates the results of an investigation completed almost a month after the accident by an individual who neither visited the scene nor interviewed those directly involved in the accident. While the Kennedy memorandum might provide some support to claimants' contention that blizzard-like conditions existed at the accident site it is wholly inadequate to raise a material question of fact regarding notice of the condition.

Claimants also rely upon the opinion of their expert, Joseph Champagne. In his affidavit Mr. Champagne relates that in his opinion road conditions on the Thruway other than visibility were neither unusual nor unexpected and did not contribute to the happening of the claimants' accident. He also states from his review of records and testimony that "just prior to the accident, the weather and visibility was reasonably good leading up to the accident site." Despite these conclusions Champagne asserts that the State was aware of poor visibility at milepost 125.9 based upon its receipt of a Massachusetts state police advisory concerning closure of a portion of the Massachusetts Turnpike to certain commercial vehicles due to snow and freezing rain. A document relating the Thruway Authority's receipt of this notice at 1:35 a.m. on January 31, 2000 is attached to defendants' moving papers as part of Exhibit 12.

First, the closure of a portion of the Massachusetts Turnpike provides no basis for inferring knowledge on the part of the defendants of "whiteout" conditions at milepost 125.9 of the New York State Thruway. This is especially so given that, as recognized by the expert, weather and visibility was reasonably good just prior to the accident. Furthermore, neither Mr. Carela nor any of the occupants of the Reddicks vehicle related encountering freezing rain at or near the site of the accident. Thus, the conditions which contributed to the closing of the Massachusetts Turnpike to certain truck traffic were inherently different than those present at the accident site making any inference of comparability for purposes of notice inappropriate.

Mr. Champagne also asserts that the Thruway Authority had notice of dangerously low visibility stating "the fact that the Thruway Authority, by its investigator, Dean Kennedy, was advised of the near white-out conditions after the accident meant that they were aware of the near white-out conditions presumably at or about the time or before the accident." Aside from the counterintuitive nature of this statement, the Kennedy memorandum provides no basis to reasonably infer that the defendants received any notice of the alleged whiteout conditions prior to the happening of the accident, let alone within a sufficient period in advance of the accident to have taken action to warn of the condition or take other remedial measures.

Claimants have not alleged much less demonstrated by admissible evidence that the weather conditions complained of were recurring or persistent conditions along this portion of the Thruway from which circumstances constructive notice of a dangerous condition might be imputed to the defendants. Compare the "variable and unpredictable weather" conditions encountered in the instant case with the persistent smog conditions and numerous prior accidents which occurred in Rindfleisch v State of New York, 27 NY2d 762. In that case 17 fires burned for days in eight acres of the Montezuma preserve bisected by the Thruway. Here the driver of both claimants' vehicle and the tractor trailer operator testified that weather conditions and visibility were significantly better only minutes before they encountered the reported whiteout. In fact, Miguel Carela testified that he observed from a distance of 150-200 feet the number 53 painted on the rear of the tractor trailer he was following in the right hand lane. There is, of course, no evidence as to the extent of the area of alleged low visibility and no evidence as to how long the condition may have existed prior to the accident. Neither Fred Allen the snowplow operator who arrived at the scene shortly after the accident and who plowed and salted the roadway between mile post markers 119 and 127 beginning at 10:00 p.m. on January 30, 2000 nor the State Troopers on patrol in that section of the Thruway on the morning of January 31, 2000 could recall encountering the whiteout conditions described by the two drivers involved in the accident. Both gentlemen submitted affidavits in which they stated that while it was snowing they were able to control their vehicles and observe the roadway and other vehicles without difficulty.

Sergeant Cullen recalled that it was snowing that morning but did not recollect near whiteout conditions (see, Exhibit H, pp 89-90). Trooper Swann had no recollection of the accident or of the attendant weather conditions on January 30-31, 2000 (see, Exhibit G, p 13). Sergeant Cullen testified that he and Swann were on the Berkshire Spur of the Thruway when they received notification of the subject accident (Exhibit H, p 24) and then traveled to the scene on the main trunk of the Thruway without incident or difficulty.

Claimants have offered no admissible evidence establishing a triable issue of fact concerning the defendants actual or constructive notice of an allegedly dangerous weather condition affecting Thruway traffic on January 30-31, 2000. Absent actual or constructive notice of a dangerous condition there can be no duty on the part of the defendants to either close the Thruway or warn of an unknown condition. The situation here is distinguishable from that considered by the Court of Appeals in Rindfleisch, supra, in which the State had actual notice of the hazardous condition which precipitated the claimants' accident.

Claimants herein have also sought to predicate liability on the defendants' alleged failure to notify them of possible whiteout conditions along the Thruway on the night in question by means of weather advisory boards located at the tollbooth entrances to the Thruway and by means of the Thruway Authority's hazard advisory radio.

As discussed above, claimants presented no proof that the defendants were aware or should have been aware of any such conditions existing on the Thruway at the time either the Reddicks vehicle or Carela's tractor trailer entered the Thruway or at any later time prior to the accident. Moreover, the Exit 16 tollbooths through which both drivers passed on the night in question were located far south of the accident scene and considerably more than an hour's driving time from the site of the complained of condition (see, Rindfleisch v State of New York, 27 NY2d 762).

Claimants also alleged that the defendants should have used a limited band radio broadcast referred to as a Hazard Advisory Radio (HAR) to alert Thruway customers of the whiteout conditions at or near mile post marker 125.9 on the night in question. As stated previously, there can be no duty to warn of a condition which is not known to the State. Furthermore, Carela testified that his citizen's band radio was tuned to receive information from other truckers rather than tuned to the HAR (Carela EBT p 31) and Reddicks testified that his car radio was tuned to WINS 1010 in New York City. Since neither driver sought to obtain weather related information from HAR the State's failure to provide such information could not be a proximate cause of the accident under the circumstances of this case even if it were found to be negligent.

Although not directly implicated under the facts of this case since there is no proof of notice to the State, it is instructive to note the published procedure for closing the Thruway set forth in the Thruway Authority's Technical Manual Article XI submitted by both parties on this motion. In relevant part the article provides:
A. Introduction

The nature of the emergency which results in the closing of the Thruway may dictate the time frame and/or decision process, but there are certain activities which must take place no matter what the situation.

In the event of a toxic spill, accident or natural disaster, the traffic may be initially stopped by on-scene personnel. Employees who discover a threatening situation should use their judgment to stop traffic until further direction can be received from Headquarters. Extreme caution is to be taken in stopping traffic so as not to endanger either patron or employee safety. It is better to take the precaution of stopping traffic until the full extent of the situation is known.

The following describes the closing process whereby traffic may be diverted from the Thruway during an emergency.

B. Closing the Thruway

In the case of a winter storm, the Operations Duty Officer is responsible for keeping abreast of the storm's impact on travel. Based on information received from Maintenance Engineering, Operations and Troop T personnel on the scene, the Operations Duty Officer may judge that consideration should be given to closing parts or all of the Thruway.

The Operations Duty Officer Directs the Senior Radio Dispatcher to contact the Executive Duty Officer. The Executive Duty Officer evaluates the situation and if [sic] judges that closing the Thruway is in order, instructs the Senior Radio Dispatcher to contact the other scheduled Duty Officers.

Both the above quoted language of the manual and the EBT testimony of Raymond Engel, Traffic Supervisor for the Albany Division of the Thruway Authority (Claimants' exhibit Q) make clear that a decision to close the Thruway in the case of a winter storm is a discretionary rather than a ministerial determination. In Davis v State of New York, 257 AD2d 112 the Appellate Division, Third Department stated at p115:
It is a well-settled principle that "[w]hether an action of a governmental employee or an official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment" (Mon v City of New York, 78 NY2d 309, 313). The principal distinction between discretionary and ministerial acts, as described in Tango v Tulevech, 61 NY2d 34, 41), is that the former "involve the exercise of reasoned judgment which could typically produce different acceptable results", while the latter envision "direct adherence to a governing rule or standard with a compulsory result". Indeed, " 'discretion is indicated if the powers are "to be executed or withheld according to [a governmental agent's] own view of what is necessary and proper" ' " (id., at 40, quoting Mills v City of Brooklyn, 32 NY 489, 497 [emphasis supplied]).

Viewed in such a context the procedure established by the Technical Manual for the closure of the Thruway in the case of a winter storm requires not one but two discretionary determinations by Thruway officials. The first involves the Operations Duty Officer's judgment that closure of part or all of the Thruway should be considered and the communication of that determination to the Executive Duty Officer via the Senior Radio Dispatcher. The Executive Duty Officer must then evaluate the information supplied and determine whether closure of the Thruway is appropriate. Clearly, the determination whether to close the Thruway under Article XI necessarily involves the exercise of discretion and invokes the cloak of governmental immunity discussed in Davis (supra), insulating the State from liability even if the determination to close or not close the Thruway or a part thereof is later found to have been "erroneous, unwise and/or negligent" (see Weitzner v New York City Dept. of Social Servs., 212 AD2d 414; Rottkamp v Young, 21 AD2d 373, affd 15 NY2d 831).

Finally, claimants' efforts to avoid dismissal on the motion also included an attempt to raise an issue of negligent training or supervision of the Thruway Division of State Police regarding the reporting of dangerous conditions encountered during patrol. Neither the amended claim, viewed liberally, nor the verified bill of particulars, nor the second supplemental bill of particulars asserts a cause of action for negligent training and supervision nor have claimants cross-moved to amend the amended claim to allege such a cause of action. Additionally, there is no evidence in admissible form offered by claimants on the motion tending to show that any member of the State Police Thruway Division knew or should have known of the whiteout conditions prior to claimants' accident and failed to report such observations to the Thruway Authority. Absent proof of notice, inadequate or negligent training of the State Police in the reporting of weather conditions could not have been a substantial factor in causing claimants' accident. Under the present circumstances such allegations are irrelevant and inadequate to defeat the motion.

The defendants are entitled to summary judgment dismissing the instant claim.


May 8, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 23, 2002;
  2. Affidavit of Michael C. Rizzo sworn to December 23, 2002 with Exhibits;
  3. Affidavit of Phillip D. Falconer sworn to December 4, 2002 with Exhibit;
  4. Affidavit of Patrick Cullen sworn to December 17, 2002 with Exhibit;
  5. Affidavit of Fred Allen sworn to December, 2002 with Exhibit;
  6. Affidavit of Thomas Spinner sworn to December 18, 2002 with Exhibits;
  7. Affidavit of Raymond W. Engel sworn to December 23, 2002 with Exhibits;
  8. Affidavit of Alexander Peltz sworn to February 4, 2003 with Exhibits;
  9. Affidavit of Joseph S. Champagne sworn to February 4, 2003 with Exhibits;
  10. Reply affidavit of Michael C. Rizzo sworn to February 14, 2003 with Exhibit.