New York State Court of Claims

New York State Court of Claims

Hicks v. NEW YORK STATE THRUWAY AUTHORITY, #2003-018-270, Claim No. 101928


Synopsis


Case Information

UID:
2003-018-270
Claimant(s):
JENNIFER HICKS, Individually and as Executrix of the Estate of WAYNE HICKS, JR. The caption has been amended to reflect the death of Wayne Hicks, Jr., whose claim is derivative in nature, and the appointment of claimant as his executrix pursuant to a stipulation and order signed May 2, 2003. The Court granted defendant's motion to dismiss the claim against the State of New York at the end of the liability phase of trial. The caption has been amended to reflect the granting of this motion.
Claimant short name:
Hicks
Footnote (claimant name) :
The caption has been amended to reflect the death of Wayne Hicks, Jr., whose claim is derivative in nature, and the appointment of claimant as his executrix pursuant to a stipulation and order signed May 2, 2003.
Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :
The Court granted defendant's motion to dismiss the claim against the State of New York at the end of the liability phase of trial. The caption has been amended to reflect the granting of this motion.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101928
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
HANCOCK & ESTABROOKBy: David S. Howe, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Roger B. Williams, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 8, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
ClaimantSSSS[S] sued the State of New York and the New York State Thruway Authority
(hereinafter Authority) for damages as a result of a slip and fall in the Park-n-Ride commuter lot at Exit 34A of the New York State Thruway. The trial was bifurcated and this decision relates to liability only.
On February 4, 1998, claimant was scheduled to meet a co-worker, Ron Hazenstab
, at the Park-n-Ride commuter lot next to the toll plaza of Thruway Exit 34A at 5:00 a.m., as they were traveling to Vermont for business. There was no precipitation that morning, but it was still dark and cloudy when claimant arrived at the parking lot. She parked in the fourth space nearest the entry to the toll plaza despite the hard-packed snow in the spot. She testified that she simply chose the first open parking space she saw, although she acknowledged there were other open spaces. Shortly after she parked, Ron Hazenstab arrived, drove to the end of the lot, turned around and stopped his vehicle behind claimant's car in the driving lane of the parking lot. Claimant retrieved her briefcase and computer bag from the back seat of her car, and then began walking toward Mr. Hazenstab's vehicle, moving carefully on the hard-packed snow. The only lighting claimant remembered was from Mr. Hazenstab's headlights which did not illuminate the area where she was walking. When she reached the back of her car and stepped off the snow- covered pavement to walk in front of Mr. Hazenstab's car, the roadway appeared clear but she slipped and fell. Claimant was wearing low-heeled shoes with hard soles at the time.SSSSS[S]
Claimant was taken to the hospital for treatment.....[.]
Claimant called
Wayne Mahar as an expert, a meteorologist and president of Precision Weather Service. Mr. Mahar compiled information regarding weather conditions at Hancock Airport, the closest weather observatory to the accident site, and prepared a reporttttt[t] summarizing the data as follows:
January 23, 1998 - This was a stormy day with a combination of snow,
sleet and freezing rain. Maximum 30
Ε
, minimum 17
Ε
, liquid 1.0", snowfall 4.5", snow on ground at 7 a.m. 8"
January 24, 1998 - Cloudy, still somewhat unsettled with some light
snow and a touch of light freezing rain and drizzle. Maximum 35
Ε
,
minimum 30
Ε
, liquid .05", snowfall .4", snow on ground at 7 a.m. 6"
January 25, 1998 - A few periods of light snow and some blowing
snow. Maximum 31
Ε
, minimum 27
Ε
, liquid .02", snowfall 1.3"
January 26, 1998 - A few periods of light snow or snow showers
this day. Maximum 28
Ε
, minimum 10
Ε
, liquid a trace, snowfall .5",

snow on ground at 7 a.m. 5"

January 27, 1998
- Variable cloudiness with a few periods of very light snow. Maximum 27
Ε
, minimum 9
Ε
, liquid a trace, snowfall a trace, snow on ground at 7 a.m. 5"
January 28, 1998 - A quiet day with varying amounts of clouds and
sunshine. Maximum 35
Ε
, minimum 21
Ε
, liquid 0", snowfall 0", snow
on ground at 7 a.m. 5"
January 29, 1998 - Variable cloudiness through the morning, turning
cloudy by evening with a few hours of light rain in the evening.

Maximum 41
Ε
, minimum 14
Ε
, liquid .06", snowfall 0", snow on

ground at 7 a.m. 4"


January 30, 1998 - This was an unsettled stormy day. Drizzle began
around 2:35 a.m., changed to light rain before 4 a.m. which changed to light snow around 8 a.m. and continued generally steady all day long. Maximum 39
Ε
, minimum 29
Ε
, liquid .14", snowfall 1.1", snow on ground at 7 a.m. 4". * Maximum temperature of the day occurred in the predawn hours with the temperature falling into the mid and upper 20's in the late afternoon.
January 31, 1998 - Light snow ended approximately 6:30 a.m. and
then variable clouds the rest of the day. Maximum 33
Ε
, minimum

20
Ε, liquid a trace, snowfall .4", snow on ground at 7 a.m. 4"

February 1, 1998 - A quiet day with clear skies giving way to partly
cloudy skies in the afternoon. Maximum 41
Ε, minimum 18Ε, liquid
0", snowfall 0", snow on ground at 7 a.m. 3"
February 2, 1998 - Another quiet day with variable cloudiness.
Maximum 46
Ε, minimum 31Ε, liquid 0", snowfall 0", snow on ground
at 7 a.m. 3"


February 3, 1998 - Mostly cloudy skies with just a brief period of light
snow or flurries from 12:48 p.m. to 1:15 p.m. Maximum 37
Ε, minimum
31
Ε, liquid a trace, snowfall a trace, snow on ground at 7 a.m. 2"

Wednesday, February 4, 1998 (accident day) - This was a mostly cloudy
day. Maximum 36
Ε
, minimum 27
Ε
, liquid a trace, snowfall a trace, snow on ground at 7 a.m. 2" Weather at accident time of 5 a.m. ***- a low overcast, visibility of 10 miles, temperature 30
Ε
, wind north at 6 mph, no precipitation

Mr. Mahar described the weather between January 30 and February 4 as quiet with daytime temperatures above freezing and the nights below freezing. The accumulated snow levels decreased, melting during the day and freezing at night. In his opinion, the snow under and around claimant's car, as shown in the photographs admitted into evidence,ttttt[t]
accumulated between January 23 and 25. What remained was hard-packed snow - not new snow. Looking at Exhibits 9 and 10, two of the admitted photographs, Mr. Mahar concluded that the shiny area just behind claimant's car was either liquid or black ice; however, since at 5:00 a.m. that day the air temperature was 30 degrees, it would have been black ice at the time claimant fell. In his opinion, the weather pattern for several days before the accident had little new snowfall, and it was the ground snow melting during the day and freezing at night which created black ice behind claimant's car.
At trial, Mr. Mahar defined black ice as a thin layer or sheet of moisture which forms upon the ground surface, it is transparent and when it occurs upon blacktop, because the ice is invisible, all that can be seen is the blacktop accordingly the name, black ice. Mr. Mahar noted that the weather conditions necessary for the formation of black ice exist when there is wet ground surface from melting snow or other precipitation combined with a drop in the temperature to below freezing, like the conditions that existed from January 30 through February 4.

On cross-examination, Mr. Mahar acknowledged he could not testify with absolute certainty as to what caused claimant's fall. He was shown data recorded near the toll plaza at 5:00 a.m. on February 4, which indicated the surface temperature was 36 degrees. Noting this could be a significant piece of information for use in his analysis, Mr. Mahar wondered how and where the measurement was taken. Of course, the melted snow would not re-freeze if the ground was 36 degrees but Mr. Mahar said the temperature is usually colder at the surface than at 6 feet above ground where the air temperature is read.

Craig Jones, a Supervisor II, who had been employed with the Authority for 23 years in 1998, testified that his jurisdiction covered the Thruway from Exit 34 to Exit 39. His duties included overseeing the crews that maintained the roadway, service areas, parking lots and interchanges of the Thruway. During the winter, the crews would work in three shifts: from midnight to 8:00 a.m., from 8:00 a.m. to 4 p.m., and from 4:00 p.m. to midnight. When a storm hit, a storm activity reporttttt[t]
would be generated by him or his counterparts at the end of their shift. When there was no precipitation, no such a report would be generated. The storm activity reports in evidence showed heavy snow on January 23, 1998, and Exit 34A being plowed and spread with salt on the first, second, and third shifts. There was no mention of the parking lot being treated. On January 24, the first shift spread salt and plowed as needed on Exit 34A with no mention of the parking lot. On the second shift report, it stated that the parking lot was plowed and salt was spread as needed. There were two reports for the third shift indicating that salt was spread as needed at the exit with no mention of the parking lot. On January 25 and 26, the exit was plowed and salt spread as needed, again, with no mention of the parking lot. No other reports were generated until January 30 and 31 when it snowed again. On January 30, Exit 34A was plowed and salt spread, and on January 31, the parking lot appears to have been salted. There were no further storm reports after January 31 and before February 4.
Mr. Jones testified that, as supervisor, he completes a daily diary which summarizes the daily activity of the crew members on each shift
.tttt[t] In that document, the term "tour of section" is used. Mr. Jones testified that when used in the daily diary, that term would denote the supervisor driving the entire section of Thruway in his jurisdiction to "take a look at things." Mr. Jones testified it would include the parking lot where claimant's accident occurred. From January 23 until February 3, with the exception of January 24, at least one supervisor, if not all three, made tours of the section on a daily basis. Additionally, the daily diary for February 4, written by Mr. Jones, indicated he made a tour during his shift, it also referenced the accident as follows:
A person fell in the exit 34A commuter lot. There was a patch

of ice where snow melted during the day and froze at night. The

spot where she parked was a spot that could not be cleaned because

a car was left there. I had the lot spread with salt and coned off

another spot to be cleaned when the salt melted the ice.

At trial, Mr. Jones noted on a photograph identified as Exhibit 9 that the same conditions existed near claimant's car as where he had coned off the other parking spot.
Another set of documents identified by Mr. Jones was the Daily Work Pla
n.nnnn[n] This outlined the jobs the crew had scheduled for the day. Included in this were patrols performed by the crew members who would drive the Thruway, punch time clocks at the toll plazas and check for problems. Mr. Jones said this activity was similar to the supervisor's tour. These documents reflect that patrols were performed by one or two crew members at least once a day. Also admitted into evidence were the Maintenance Patrol Logsssss[s] kept by the crew members in which they were to note their area of coverage and activities while on patrol. On January 23 and January 24, the crew handled snow and ice control and no patrol logs were completed. The log for January 25 did not mention Exit 34A. Thereafter, virtually daily, Exit 34A was checked by crew members who noted checking the ramps, bridges and/or interchanges.
On cross-examination
Mr. Jones agreed that the crew members don't always write down everything they do. The crew is responsible for about 130 lane miles plus service areas, commuter parking lots, tandem lots, road shoulders and the like. In reviewing the reports, Mr. Jones said there are very few references to the parking lots, service areas, etc., in them.
The defense had Mr. Jones identify the Authority's Winter Maintenance
Manualllll[l] which contains the guidelines for ice and snow removal which is the main focus for highway crews in the winter months. The priority list for snow removal is set forth in the manual; the main line is the top priority and then bridges, shoulders, and so on. The parking lots are further down the list. After a storm has ceased and the snow is cleared, the trucks are returned for maintenance while the crews do such things as patch potholes or repair guiderails. The daily diary for February 2 reflects a guiderail repair at Exit 34A as one of the projects to be done.lllll[l] This assignment confirms that snow and ice removal obligations had been completed by that date.
Mr. Jones testified that in commuter lots, such as the Exit 34A lot, snow and ice removal is inherently problematic because cars are sometimes left for days and often one vehicle replaces another almost immediately. DOT has no authority to tow or move cars in these commuter lots unless its an emergency situation. As a result, as evident from the pictures in evidence, there is snow left in and around some parking spaces.

On the morning of February 4, Mr. Jones
responded to the Exit 34A commuter lot after claimant fell but made little note of the conditions of the lot. He did recall that the lot had empty spaces, some without snow or ice accumulation. He agreed that in the photographs in evidence, there was accumulated snow that had melted and refrozen. He also acknowledged that the snow around claimant's car and the areas he had coned off had not been treated during the snow removal efforts days before. Mr. Jones testified that had he known of the icy spots, he would have taken care of them, but the condition was not reported during any of the tours or patrols. He also acknowledged that salt or sand could be spread in the driving area of the parking lot without moving any of the parked vehicles. As long as he has been employed by the Authority, he could not recall any other slip and fall occurring in the commuter lot at Exit 34A.
The final witness called was Donald P. Brooks. At the time of the accident, Mr. Brooks was a Traffic Supervisor with the Authority, and it was his job to investigate claimant's accident. Most of his reportllllll[l]
relied upon the police investigation although he took photographs of the area. His conclusion was that the accumulated snow in the parking spot melted and then froze in the colder temperatures, creating an icy condition. Claimant, in his opinion, failed to be alert to that condition which resulted in her fall. He agreed that if claimant should have been aware of the icy conditions, highway maintenance workers should also have been aware of them.
Mr. Brooks testified that he did not recall observing the icy condition on the morning in question but agreed that the photographs depict the melting snow. He recalled the lot being two-thirds empty and most of the parking spaces without snow. According to Mr. Brooks, there were overhead lights located between the parking lot and the toll plaza, but Mr. Brooks admitted on cross-examination that the lights actually illuminate the toll plaza and do not shine directly into the parking area where claimant fell.

Mr. Brooks also noted the road surface temperature was 36
Ε
near the toll plaza at 5:00 a.m., but he could not elaborate on where the measurement was taken. Mr. Brooks relied on the trooper's report attached to Exhibit 14 which states the area where claimant fell was wet and icy.

At the close of proof, the defense moved to dismiss the claim against the State of New York which the Court granted. The decision on the motion to dismiss against the Thruway Authority was reserved.

As the entity responsible for maintenance of the Exit 34A Park-n-Ride commuter lot, the Thruway Authority had the duty to keep it in a reasonably safe condition under the circumstances (
Basso v Miller, 40 NY2d 233, 241; Morgan v Genrich, 239 AD2d 919, 920). Where a dangerous condition is shown to have been a cause of claimant's injuries, liability may be imposed if there is evidence that the defendant either created the condition or had actual or constructive notice that a dangerous condition existed and failed to take reasonable remedial measures to correct it (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969; Simmons v Metropolitan Life Ins. Co., 84 NY2d 972, 973; Orr v Spring, 288 AD2d 663, 664; Ferguson v City of New York, 201 AD2d 422, 423). Here, claimant has established that she fell on black ice that had formed behind her car and in the driving lane of the Exit 34A Park-n-Ride commuter lot. Although unplowed areas of the parking lot resulted in hard-packed snow which, with the proper temperatures, created a medium for the formation of black ice, defendant did not create this dangerous condition. Defendant's snow removal efforts were constrained by the function of the parking lot; as a commuter lot, there are vehicles in the lot at all times - some for extended periods. Without the authority to tow vehicles, snow removal must be conducted around the parked vehicles. Defendant's inability to remove all of the snow that had accumulated in the parking lot did not create the hazardous condition (see Espinal v Melville Snow Contractors, Inc., 98 NY2d 136; Woll v Village of Rockville Centre, 205 AD2d 683; compare Brownell v City of New York, 277 AD2d 31, lv to appeal denied 96 NY2d 712).
The issue is whether the fact that unplowed snow remained in some parking spaces with temperatures above freezing during the day and freezing temperatures at night for several days preceding claimant's fall, coupled with at least one daily patrol of the area by a supervisor or other DOT employee, are sufficient factors to have placed the defendant on notice of the formation of black ice in the commuter lot.

There was no evidence that defendant had actual notice of the black ice in the Exit 34A commuter lot. In order for the Court to find that defendant had constructive notice of the dangerous condition, the condition must have been visible and apparent, and it must have existed for a sufficient period of time prior to claimant's fall to allow defendant time to discover and remedy it (
see Gordon v American Museum of Natural History, 67 NY2d 836, 837). Constructive notice may also be inferred where it is shown that defendant had actual knowledge of a recurrent condition, thereby permitting defendant to be charged with constructive notice of the specific recurrence of the condition (Migli v Davenport, 249 AD2d 932, 933; Camizzi v Tops, Inc., 244 AD2d 1002; Padula v Big V Supermarkets, Inc., 173 AD2d 1094, 1096).
After reviewing all of the evidence, the Court finds that claimant did not establish that defendant had constructive notice of the black ice in the Exit 34A commuter lot. Black ice, as described by Mr. Mahar, is by definition not readily "visible and apparent;" the very reason claimant fell in the first instance is she did not see the ice. Although the first shift of DOT workers on February 4 patrolled the area encompassing the Exit 34A commuter lot, there was no indication that this patrol was completed prior to claimant's fall. The patrol and tour of duty completed during the third shift on February 3 would have been conducted at some time between 4:00 p.m. and midnight. It is speculative to infer that the black ice existed at the time these patrols were performed.

There was also no evidence in the record to indicate defendant had actual knowledge of a recurrent black ice problem in the commuter lot. No other slip and falls in this area were reported to the knowledge of Mr. Jones, in his 23 years with the Authority, and no complaints had been made regarding black ice in this lot. Mr. Jones did acknowledge that a built-up area of snow will melt when temperatures rise above freezing or in the sun and then the melting water freezes when the temperature drops. He recognized that this must have occurred from time-to-time in this commuter lot. However, this general awareness of the possibility of a dangerous condition existing is not sufficient to constitute constructive notice of the particular condition that caused claimant's fall (
see Gordon v American Museum of Natural History, 67 NY2d at 838; Piacquadio v Recine Realty Corp., 84 NY2d at 969).
Accordingly, defendant's motion to dismiss made at the close of claimant's proof is granted and the claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.


December 8, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims





[S]SSSS

All references to claimant herein shall refer to Jennifer Hicks unless otherwise noted.

[S]SSSSS

Exhibit 22.

[.]....Claimant testified that someone from New York State spoke to her about the accident at the hospital, specifically Donald Brooks, whom she identified in the courtroom. Mr. Brooks testified that he never met claimant before trial. To whom she spoke remains unclear but claimant's apparently mistaken identification does not affect the Court's assessment of her credibility.

[t]tttt

Exhibit 18.

[t]ttttt

Exhibits 1 - 10.

[t]tttt

Exhibit 11.

[t]tttt

Exhibit 12.

[n]nnnnExhibit 13.

[s]ssssExhibit 19.

[l]llllExhibit A.

[l]lllllExhibit 12.

[l]llllllExhibit 14.