Claimant seeks damages for injuries he sustained as a result of a motorcycle
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
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
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.
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,
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
73 AD2d at 768; Valentino v State of New York,
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,
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.
A trial on the issue of damages shall be scheduled by the Court. LET
INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.