New York State Court of Claims

New York State Court of Claims

KUNTZSCH v. STATE OF NEW YORK, #2003-018-267, Claim No. 104687


Case Information

GORDON M. KUNTZSCH and TRACY KUNTZSCH All references herein to claimant will be to Gordon M. Kuntzsch as the claim of Tracy Kuntzsch is only derivative in nature.
Claimant short name:
Footnote (claimant name) :
All references herein to claimant will be to Gordon M. Kuntzsch as the claim of Tracy Kuntzsch is only derivative in nature.
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 of the State of New York
By: JOEL M. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 24, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained as a result of a motorcycle accident

which occurred on June 23, 2001, in the Village of Canajoharie. He alleges that the State is liable for negligently maintaining the roadway by failing to remove excessive blacktop particles that accumulated after the road had been repaired, or by failing to warn of the dangerous condition, thereby causing claimant to lose control of his motorcycle. The State does not dispute the existence of some debris on the roadway but maintains it was not the result of negligent maintenance procedures, because the roadway was broom cleaned after the repair work was completed.
On the morning of June 23, 2001, claimant was riding his motorcycle to a friend's home at approximately 7:00 a.m. Claimant had a motorcycle license for approximately 15 years and had owned this particular motorcycle for approximately two years. The weather was fair and dry. Claimant drove northerly, ultimately coming onto Moyer Street in the Village of Canajoharie. Moyer Street has a downhill grade and two sharp (90
) right-hand curves. Claimant said he downshifted as he headed into the second turn when his motorcycle skidded on gravel. Unable to control it, claimant was thrown over the handlebars when the front tire struck the curb on the right-hand side of the road, and his shoulder was injured from his fall. He also suffered cuts and bruises.

Claimant was taken to the hospital by ambulance. A number of hours later, he and his wife, Tracy, returned to the accident scene and videotaped the roadway. Unfortunately, the tape was accidentally erased when it was sent out to be copied. Tracy testified that she observed gravel all over the roadway in the area of the curve.

An eyewitness to the accident, Kelly Yacobucci Farquhar, testified that she heard tires hitting gravel and saw the claimant on his motorcycle, leaning to the right. He fell off and the motorcycle headed in her direction. She recalled that the curved area of the road was covered with gravel. She said the claimant was not traveling fast. On cross-examination, Ms. Farquhar acknowledged that in her deposition she guessed claimant's speed was 25 miles per hour. Claimant also called Brenda Childs to testify. Ms. Childs resided in a second floor apartment at 87 Moyer Street on the date of the accident, and on that morning she recalled hearing a motorcycle gear down then heard it crash. She looked out and saw claimant on the ground and called the police to report the accident but did not leave her apartment. She testified that construction work had been performed on Moyer Street earlier in the week, but it was completed before the accident. Ms. Childs said there were little stones all over the road; she described it as "a mess."[1]
She believed that the road condition had existed since the workers had left. On cross-examination, she testified she had left her apartment a number of times the day before the accident and saw the gravel all over the roadway. She recalled that some of the gravel was even in her driveway.
David W. Hayes, a patrolman with the Village of Canajoharie Police Department, responded to claimant's accident scene and prepared the accident report.[2]
He observed the site and spoke with Kelly Yacobucci Farquhar. Patrolman Hayes testified that he issued no tickets to claimant because he did not believe any were warranted. By all accounts, claimant was traveling slowly when he hit the gravel. The speed limit at the curve is 30 miles per hour with a recommended speed of 10 miles per hour. He further testified that when he arrived at the accident scene, he saw claimant holding his shoulder and claimant's hand was bleeding. He described the whole curve area as covered with small particles of blacktop; four large shovelsful in a 12' x 15' area.
Claimant called Norman Duell, a highway maintenance supervisor with New York State Department of Transportation (hereinafter referred to as DOT), and a foreman on the road repair job the State performed on Moyer Street from June 18 through June 21, 2001. Mr. Duell's crew filled potholes by cleaning out the debris in them, refilling them with blacktop, raking and rolling the fill, and then sweeping up any remaining debris. Mr. Duell thought they repaired the accident area on Tuesday morning, June 19, 2001. He testified that after filling the pothole, the area was broom swept. He acknowledged that DOT should make sure no debris is left on the road because it could create a hazardous condition. When the job was completed, Mr. Duell drove by where the repair work was done, in the dump truck with the other workers, in order to pick up the road work signs located at each end of the work area. This was his opportunity, according to Mr. Duell, to inspect the road. He concluded it was free of loose pavement particles. No caution or loose gravel signs were placed upon completion of the job, and the crew did not return to Moyer Street thereafter.

Mr. Duell was also called upon to testify on behalf of the State. He reiterated the procedure used by the crew to repair potholes and identified the State's guidelines for doing so.[3]
He said the guidelines were followed.
The State called, as an expert, Roger Cleveland, the Highway Superintendent for the Town of New Hartford, previously the Town Engineer. Mr. Cleveland has an associate degree in applied science, and worked in an engineering firm for Oneida County repairing the airport runways. He has performed hundreds of inspections of highway repair projects and testified that the State pothole filling procedures are the industry standards.

Mr. Cleveland heard the witnesses testify regarding the loose blacktop particles that littered the roadway on the day of claimant's accident. He testified that some displacement of the asphalt material was not unusual, especially on a curve. He explained that this was because as vehicle tires roll over the hot asphalt material before it sets up, the edges of the patched material can loosen up creating small pieces of aggregate. This occurs more on a curve because of the interface between the tire and the asphalt material; as the tires are turning they "want to go straight" causing tires to "chew up" the asphalt material as they roll.

In Mr. Cleveland's opinion, as long as the repaired area is broom cleaned when the repair crew leaves, there is no obligation to return to check the site. From his testimony, it is clear that some asphalt particles on the roadway are to be expected. However, Mr. Cleveland also admitted that after listening to the descriptions of the accident scene, there was more than the expected displacement at this location.

Clearly, the State has a non-delegable duty to adequately maintain its roadways in a reasonably safe condition (
see Friedman v State of New York, 67 NY2d 271). However, the State is not an insurer of the safety of its roadways, and the mere fact an accident occurred 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). Displaced pavement at the site of claimant's accident does not alone establish the State's liability. Claimant must show that the State was negligent, that is the State created the dangerous condition or had actual or constructive notice of the dangerous condition, and failed to properly act to correct the problem or warn of the danger (see Brooks v New York State Thruway Auth., 73 AD2d at 768; Valentino v State of New York, 62 AD2d 1086, appeal dismissed 46 NY2d 1072; Colyer v State of New York, 208 AD2d 490). There is no obligation, however, for the State "to employ a constant vigilance over its highway network, but only to pursue reasonably plausible measures" (Freund v State of New York, 137 AD2d 908, 910-911).
Mr. Duell, the DOT supervisor on the Moyer Street job acknowledged that loose pieces of blacktop resulting from a patching job can be a hazardous condition, dangerous to travelers. But, it is not unusual for there to be some displaced material after completion of a patching job, particularly on a curve.

However, the testimony of all the eyewitnesses to the location of claimant's accident that day indicated that there were more than a few displaced pieces of material. That testimony establishes that where claimant lost control, the roadway was covered with loose debris. Such a significant displacement of material exceeded the typical quantity of dislodged asphalt particles described by Mr. Duell and Mr. Cleveland. The issue is whether the significant accumulation of asphalt particles at the site of claimant's accident was the result of the State's negligence. After considering all of the evidence, weighing the witnesses' testimony and assessing credibility, the Court finds that it was the result of the State's negligence.

The Court finds that the patched area was not adequately cleaned after the work was completed, and on Mr. Duell's final inspection of the roadway on Thursday afternoon, he failed to observe that the area needed to be broom cleaned.

Ms. Childs, a disinterested witness, testified that the roadway at this location was covered with debris from the time the DOT crew left. The day before the accident she had left her home on several occasions and specifically noted the amassment of asphalt particles in the road and in her driveway. Her description of the roadway from the time the DOT workers finished the job, coupled with the excessive accumulation described by the witnesses on the morning of the accident, has persuaded this Court that the road was never properly broom swept after the pothole was filled. Mr. Cleveland said that tires rolling over hot asphalt on a curve before it becomes relatively hard can loosen it and some particles will be seen in the area. However, if the asphalt had sufficiently hardened by Thursday afternoon, to the extent that there was not a significant accumulation of asphalt particles at the time Mr. Duell completed his final inspection, as the State maintains, it is illogical that more asphalt particles would loosen thereafter on Friday creating the aggregation of asphalt pieces at this location by early Saturday morning. No other reason for such displacement was presented.

Based upon the foregoing, defendant failed to properly and adequately broom clean the area where claimant's accident occurred after filling a pothole causing claimant to lose control of his motorcycle and suffer injuries. The State is 100 percent liable.[4]

A trial on the issue of damages shall be scheduled by the Court. LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

November 24, 2003
Syracuse, New York

Judge of the Court of Claims

[1]All quotes are taken from the trial tapes unless specifically noted.
[2]Exhibit 1.
[3]Exhibit J.
[4]No comparative negligence defense was pled.