New York State Court of Claims

New York State Court of Claims

MACGOWN v. THE STATE OF NEW YORK, #2003-016-083 , Claim No. 101131


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:
Steven R. Blyer, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralJohn Shields, AAG
Third-party defendant's attorney:

Signature date:
October 14, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the trial of the claim of Evelyn MacGown, which arose from her fall on September 26, 1997, while returning to her car which was in the parking lane of a State highway.

Ms. MacGown and her husband, John, who resided in Nassau County, had driven out to Montauk Point on that fall Friday, had lunch and after a few hours headed back toward home. Driving west on Route 27 in the Town of East Hampton (Suffolk County), they stopped at the Amagansett Farmers Market to buy some fresh fruits and vegetables.
The highway is two lanes in each direction, with a lane for parking on each side. Mr. MacGown, who was driving, pulled to his right - - the Farmers Market was on their side of the street - - and took a spot just about in front of the store, which had no off-street parking. Claimant recalled that their four-door Dodge Intrepid was about a foot and a half from the six-inch high curb. The day was clear and the pavement was dry; it was about 2 o'clock in the afternoon.
The MacGowns got out of the car and went into the market for 15 or 20 minutes; Ms. MacGown carried their purchases in one bag, which she put in the trunk of the car.
As to what happened next, claimant picks up the narrative:
[I went] to the front of the car to get in the car ... I think I walked in the roadway, you know, right next to the car to get in ... I went to open the [front, passenger] car door ... and I put my foot in the hole and I fell.

Claimant testified
that she was looking at her car and not down toward the pavement. She said she noticed the "hole" for the first time while on the ground, that it was four inches away from her, or a couple of inches from her passenger door. MacGown recalled having ended up "[h]alf in the street and half on the sidewalk - - well grass."
When asked to describe the hole, Ms. MacGown responded that,
"[a]ll I'd see was a lot of leaves on top of this hole where I fell in," maintaining that if the leaves were not there, she would not have stepped there. Claimant added that it was four inches deep, two and a half feet long and a foot and a half wide. Claimant's exhibits 1 through 8 are photographs of the hole taken by her husband a week later. The dimensions testified to are consistent with what can be determined from the tape measures placed in a number of the photos (see cl exhs 1, 4, 5 and 8).
What the photos show is that the condition in question is
better characterized as a depression; the pavement is sunken, but the surface is not broken and while the dimensions appear large, they are a result of its creation by gradual sloping from the road surface above. Further, in the majority of these eight photos taken by John MacGown, if not all of them, the leaves as photographed do not completely cover or fill the depression.
The only other witness at trial was Douglas Gensiger, an employee of the State Department of Transportation,[1]
based in its Suffolk County office in Hauppauge. Mr. Gensiger agreed that Route 27 is owned and maintained by the State. He was asked about a specific DOT contract, which covered work for "Concrete Pavement repairs on Various Highways in the Towns of Coram, Southhampton, East Hampton and Huntington" (Contract No. D256868 [cl exh 9]). Gensiger explained that Route 27 was one of the highways included in the job. According to the witness, a contract like this covers "concrete failure that they're going to replace [or an area that] has broken concrete ..."
Gensiger added that, as far as he knew, the contract did not
contain any details concerning the nature and extent of the concrete repair work to be done and did not specify exact locations. Gensiger described D256868 as a "when and where contract," meaning that the contractor "does the work where we tell him to and when we tell him to."
Gensiger testified that he could find no records, but he did not have the engineer's daily reports, for a stretch of Route 27 between Meetinghouse Lane and Hand Lane, which takes in the Amagansett Farmers Market.

As to how the Department generally handled road maintenance, the following exchange was the sum and substance of it at trial
Q. ... Does the State of New York have any vehicles that regularly maintain the roadways? They have their own maintenance vehicles that go out there?
A. Yes, of course.
Q. ...And did they, on a regular basis, travel all the highways under its jurisdiction out in Suffolk County?
A. I'm not sure that they do every highway at a specific time.
Ms. MacGown was a credible witness, and I conclude that the accident happened the way she said it did and that the depression in the road by the curb caused her to fall.
Furthermore, defendant has advanced no argument that claimant's walking to her car makes a difference; after all, that stretch of Route 27 was designed and constructed with parking lanes on each side of the road.
However, the State is not an insurer; its duty to the public is discharged if its highways are reasonably safe for those who exercise reasonable care.
Tomassi v Town of Union, 46 NY2d 91, 412 NYS2d 842 (1978); Epstein v State of New York, 124 AD2d 544, 507 NYS2d 689 (2d Dept 1986), lv denied 69 NY2d 605, 513 NYS2d 1026 (1987). To hold the defendant liable in negligence, claimant MacGown must prove that the State created the dangerous defect or condition, or had actual or constructive notice of such condition, and that such was the proximate cause of her fall.
Zakharenko v State of New York is a case with strikingly similar facts. (Ct Cl dated March 27, 2002 [claim no. 93960, unreported, Sise, J.]). Mr. Zakharenko had alighted from his car at a State park and stepped into a depression in the blacktop, which was described as sunken - - gradually sloping - - not broken. It was just under 2 inches in depth at its deepest point (less than in the instant case), 20 inches across at its widest, and according to that claimant, was obscured by leaves. The Court concluded that the depression was not characteristic of a trap or snare and did not constitute a defect (or dangerous condition), citing Trincere v County of Suffolk, 90 NY2d 976, 665 NYS2d 615 (1997).
In any event, the nature of the condition has a bearing on whether it should have been noticed by the employees of the defendant,
i.e., whether there was constructive notice. Actual notice is not implicated here; Gensiger testified that there was no record of any accidents caused by the depression, or for that matter any complaints. Nor was any evidence submitted that defendant created the condition.
"Broken concrete" or "base concrete failure," as Gensiger described the purpose of the contract, does not, to this trier of fact, comprehend the depression that MacGown stepped in. Claimant walked right by this spot twice before her fall, maintaining it was hidden by leaves; although the photos showed only a partial obscuring. In any event, leaves or not, if the depression was difficult to see from up close, it would be difficult for defendant to observe - - as to DOT practices, claimant could only elicit, as set out above, testimony that their maintenance vehicles traveled the highways under its jurisdiction on a regular basis. Further, no evidence was received, either via a fact or expert witness, on the length of time the depression existed or reasonably could have existed. See Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986).
The facts here
are distinguishable from those of two cases cited by claimant: Gaines v Long Island State Park Commission, 60 AD2d 724, 401 NYS2d 315 (3d Dept 1977) and Weisz v City of Yonkers, 168 Misc 2d 901, 644 NYS2d 950 (City Ct of Yonkers 1996). In the former, the pothole in the Southern State Parkway was unquestionably large enough to require emergency repair, and a police officer who noticed the defect 40 minutes before Ms. Gaines' accident chose not to divert traffic away from it. In Weisz, the Court described the subject pothole as very large and "typical of the large crater-like potholes that had developed during the long, hard winter of 1994 ..." 168 Misc 2d at 902, 644 NYS2d at 951.
In view of the foregoing, Evelyn MacGown has failed to meet her burden of proving by the fair preponderance of credible evidence that negligence on the part of the defendant State of New York caused her fall on September 26, 1997, and her claim (no. 101131) is therefore
dismissed. Any prior motion that has not been ruled upon is hereby denied.


October 14, 2003
New York, New York

Judge of the Court of Claims

[1] Gensiger is a State employee, apparently with the DOT. A review of the transcript yields no explicit Q-and-A to the effect "what is your title and with what agency," but the parties questioned him about highway maintenance practices and a road repair project. Moreover, see claimant's exhibit 9, a cover sheet from a contract entered into by the State Department of Transportation, as to which he was regarded as being an appropriate witness.