New York State Court of Claims

New York State Court of Claims

LAVERY v. THE STATE OF NEW YORK , #2003-016-065, Claim No. 103771


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:
Bornstein & Emanuel, P.C.By: Anthony Emanuel, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Susan Connolly, AAG and Alan Berkowitz, AAG
Third-party defendant's attorney:

Signature date:
August 26, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the liability trial arising from James P. Lavery, Jr.'s claim that he was injured by a guide rail[1]
post that was protruding partially over the sidewalk along a stretch of Montauk Highway between the villages of Amityville and Copiague in Suffolk County (cl exh 2). The incident occurred at 9:30 on the evening of May 24, 1999.
Mr. Lavery testified that because their car was being repaired, he and his wife Karen set out to walk the five or six blocks to the local grocery store, to pick up something for dinner that night. After crossing the four-lane Montauk Highway, also known as Route 27A, the two walked along the sidewalk with the road on their right. There was a narrow space between the sidewalk and the highway - - a curb on which was mounted a guide rail a few feet high (cl exh 1-I). The guide rail was bolted to vertical metal posts, which were on the sidewalk side of the rail about 12 to 15 feet apart (cl exhs 1-H, 1-I).
Lavery, at trial, recalled that for the most part he and his wife were walking side by side with claimant closest to the guide rail; he estimated the width of the sidewalk at four feet (see cl exh 1-G). Lavery testified as to what happened next:
I was walking ... it may have been a hundred feet or so [on that sidewalk] ... and all [of a] sudden I felt something hit my leg and I walked about another five or ten feet and I was limping ... Once I had the impact with the post, I hopped on my left foot and walked a little bit on my sore right leg until I finally got to sit down...I saw this blood dripping ...

Claimant described the lighting
condition as "very dark"; he did not see the protruding post before he walked into it. For that matter, Lavery did not see it afterwards either and testified that he learned of the protruding post from his wife:
Q. So after the accident occurred, did you and she walk back to look at the post or just her [his wife]?

A. Just her ... she went back right away and she looked down and said, "I see a post here. Something is sticking [out] down there."

The following day Mrs. Lavery and her father went back to the accident situs and the two took a number of photographs (cl exhs 1-A through 1-K).
Mrs. Lavery's testimony was, by and large, consistent with that of her husband's as to where they were walking and why they were walking, but not as to how fast they were walking. She also agreed that the sidewalk area was dark. Mrs. Lavery recalled that she and her husband were just walking along when suddenly her husband yelled out in pain and sat down:
His leg was bleeding. I [saw] what he had hit into ... I [saw] a post, a post that was bent over down into - - towards the sidewalk ... The guardrail and the other post[s] look[ed] new.
She affirmed that her husband had walked into the bent post
, identifying it from the photographs she had taken the next day, which she stated accurately depicted it as it was when Mr. Lavery was injured. See claimant's exhibits 1-A; 1-C; 1-G and 1-H. These photos show a post detached from the guide rail - - the other posts are bolted to the rail - - and bent at a 45-degree angle away from the rail; the post is also slightly rotated. Moreover, the other posts and the guide rail are silver-colored; the bent post is discolored or at least a different darker color; it was described by Mrs. Lavery as "old and rusty."
The only other witness at trial was Brett Betke, a longtime employee of the State Department of Transportation (DOT), whose job title at the time in question was Highway Maintenance Supervisor 2, with the responsibility of assigning tasks to the crew members on a job. Mr. Betke's deposition, which was taken on May 17, 2002, was introduced into evidence as cl exh 3.

Betke testified that the defendant was responsible for maintaining the subject guide rail (cl exh 3, p 10); in fact, he had previously observed similarly bent posts and called them in for removal or replacement.
According to Betke, Route 27A would be inspected daily by DOT personnel, including Betke himself, usually by simply driving the road. They would look for "[d]ebris on the roads, potholes in the roads. Could be guide rail damage" (cl exh 3, p 29-30). Betke did not know of any specific procedures for inspecting the guide rails, but repeated that such was done on a daily basis.
However, Betke conceded that the bent post at issue was not visible from the highway. In fact, he thought that it was ultimately discovered by the work crew that was assigned to cut the weeds and grass in the area. Betke did not know the last time prior to May 24, 1999 that the weeds had been cut. From the photos taken on the morning of May 25, 1999 (see,
e.g., cl exh 1-E), it cannot be determined just how high the grass and weeds had grown, although they do not appear to be as unruly as claimant had testified: "The grass was high, about eight inches high, nine inches high the grass was."
The bent and protruding post was clearly a dangerous condition in view of the evidence including the photographs and Mr. Betke's testimony that such a bent post would be repaired or replaced (as soon as it was noticed). See
Poirier v City of Schenectady, 85 NY2d 310, 624 NYS2d 555 (1995). To hold defendant liable in negligence, there must be proof that it created such defect or condition, or if not, that defendant had notice, actual or constructive, for a sufficient period of time to discover and remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996).
No evidence was presented that defendant created this condition; Betke testified that bent posts like the one Lavery walked into were invariably the result of a vehicular accident. Nor was there any proof of actual notice to the defendant in this matter. But as to constructive notice, I conclude that claimant has met his burden (
PJI 1:23; 2:90). There was nothing to suggest that the post in question had been so recently bent by an accident from Montauk Highway that defendant had insufficient time for discovery and repair. To this trier of fact, the different-colored, bent post had been that way for quite some time.
Both Betke and Lavery, who went back a week later, testified that the bent post could not be seen from the roadway. But given that the maintenance of the guide rail was defendant's responsibility and that Betke had previously seen such bent posts and acted to have them repaired or replaced, DOT should have conducted inspections at reasonable intervals so that the condition of the guide rail could be completely seen. See PJI 2:12 and 2:90.
Betke implied
that while a bent post could not have been spied from the highway, his crew would discover the condition when they were clearing the vegetation in the sidewalk area. But that was apparently not done for some time as of the late spring day when Lavery had his accident; for his part, Betke did not know or could not ascertain when the area had last been cut. In sum, defendant is responsible in negligence to claimant for his accident on May 24, 1999 caused by the metal post that was bent across the sidewalk. However, a portion of the fault must be borne by claimant as set forth below.
Mr. Lavery testified at trial and at his deposition that he was walking fast (sometimes his wife could not keep up with him) and that it was very dark out. Claimant recalled that he was either looking at his wife or looking straight ahead:
"[i]f for some reason I did look down, I wouldn't have [seen] anything in that area anyway. It was a dark area." In addition, this was not an area which was customarily lit, but unexpectedly had a light or two out. Claimant and his wife left from their home, and a flashlight was likely available. Finally, for our purposes here, claimant's testimony that it was his first time on the sidewalk shall be credited. I therefore find that claimant was negligent in an amount equal to 40%.
In view of the foregoing, I find defendant to be
sixty percent (60%) liable for James Lavery's accident of May 24, 1999 and any injuries resulting therefrom. Motions not previously ruled upon are hereby denied. A trial on the matter of damages will be scheduled by the Court.

August 26, 2003
New York, New York

Judge of the Court of Claims

[1] The witness Brett Betke, an employee of the State Department of Transportation, named it a "guide rail," and that term, rather than "guardrail," will be used herein.