New York State Court of Claims

New York State Court of Claims

PARKHURST v. THE STATE OF NEW YORK, #2003-019-012, Claim No. 104251


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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Thomas E. Parkhurst, alleges he was injured, due to the negligence of the State of New York (hereinafter "State"), as the result of an automobile accident that occurred on March 5, 2001 on the Interstate Route 88 Connector (hereinafter "Route 88") where said roadway merges with Interstate Route 81 south (hereinafter "Route 81"). The trial of this claim which took place in the Binghamton District on May 6, 2003 was bifurcated. Consequently, this decision addresses the issue of liability only.

The court will first describe the relevant weather conditions and the roadways which are the subject of this claim. It is undisputed that in excess of 10 inches of snow accumulated in the Broome County, New York area between Sunday, March 4, 2001 and noon on Monday, March 5, 2001. (St. Ex. B at p 26 & St. Ex. C). In fact the area was in the midst of a winter storm with up to eighteen inches of snow predicted through Tuesday, March 6, 2001. (St. Ex. E). Weather reports indicate that light snow continued to fall until 11:00 a.m. on Monday, March 5, 2001. This accident occurred at a point known as the Route 88-Route 81 Connector (hereinafter sometimes "Connector") which is where Route 88 west ends and merges into Route 81 south. Just prior to said merger, Route 88 westbound is comprised of 2 lanes traveling down a ramp which meets 3 lanes of Route 81 southbound. At this juncture there are actually 5 lanes of travel across with 3 lanes from Route 81 and 2 lanes from Route 88 divided by a pavement area at least a lane wide marked with solid paint markings. This accident occurred in the left lane of Route 88 at the point at which there are 5 lanes across in addition to the marked dividing pavement area.

Claimant, Thomas E. Parkhurst, testified that on the date of the accident he was on his way to work at IBM in Endicott, New York, operating a 1991 Chevy Lumina which he states was in perfect condition. Claimant conceded that it had snowed that morning, but when he left his home at approximately 2:30 p.m. the snow had stopped. Claimant described the weather conditions at this time as clear, with no snow on the road, although the pavement was wet in places and dry in other places. He observed no ice or slush on the roadway and was traveling at a speed of approximately 50 to 55 miles per hour. Claimant was traveling in the right-hand lane of Route 88 as he approached the Connector. As he merged into Route 81 south, he saw a line of slush crossing both lanes of Route 88 at the Connector and he tapped his brakes lightly as he entered the slush. Claimant testified that when he tapped his brakes he lost control of his vehicle and collided with a vehicle belonging to Mike Blasko. Claimant's vehicle wound up in the median between the northbound and southbound lanes of Route 81.

Claimant called Mike Blasko as a witness. On the date of this accident, Mike Blasko was operating a pickup truck on Route 88 west. Mr. Blasko testified that the snow was intermittent at the time of claimant's accident, with the roadway bare in most places, but wet. The witness explained that he was on the Connector getting ready to merge with Route 81 south in the left-hand lane and was approximately five to seven car lengths behind claimant when claimant's vehicle began to fishtail. The witness testified that at the point where claimant lost control, both lanes of Route 88 were somewhat slush covered. The witness testified that due to the conditions he had slowed his vehicle down and had no problem traversing the slush-covered lanes, but could not avoid colliding with claimant's vehicle.

Claimant also called Deputy Charles J. Louden, a Deputy Sheriff with the Broome County Sheriff's Department, who was on duty as a highway patrol officer on March 5, 2001. He received a call at approximately 2:30 p.m. to investigate the above-referenced accident and confirmed the testimony of both the claimant and Mr. Blasko by stating that he observed a large puddle of slush crossing the two lanes of Route 88 at the Connector. (Cl. Exs. 5 & 6). The Deputy testified that after arriving at the scene he called the State Department of Transportation (hereinafter "DOT") requesting immediate removal of the slush in this area. Deputy Louden testified that the slush was deep enough to cover his boot, creating a potential hazard for all vehicles on the Connector passing through this slushy area as they approached Route 81 southbound. As a result, the Deputy had a patrol vehicle placed on the lower portion of the Connector for the purpose of traffic control to draw drivers' attention to the road condition ahead and to monitor the situation until the DOT plows arrived to correct the same.

The State called James Conroy and Gary Bakay as witnesses, both DOT employees and snowplow operators. As will be discussed in detail below, Mr. Conroy was responsible for clearing the relevant portions of Route 81, while Mr. Bakay was responsible for Route 88. Both witnesses are experienced snowplow operators and describe their trucks as double wing snowplows which is a dump truck with sanding equipment in the bed area and plows on the front as well as a right and left side blade ("wings") that can be raised or lowered independently. Additionally, although neither driver was able to independently recall the day of this accident both were able to reconstruct their activities that day with the assistance of their Operator's Daily Reports. (Cl. Exs. 7 & 11). Further, both drivers explained that the term "Trip" on said reports does not mean one round trip on their route. Rather, a "trip" means the start and end time relative to the need to return to their DOT residency to replenish salt and sand which in turn would sustain plowing for as many route cycles as conditions permitted.

James Conroy has been employed by the DOT for 19 years, 18 of which have been on snow and ice removal detail. On the date of this accident, Mr. Conroy was operating a snowplow and was responsible for maintaining Route 81, both northbound and southbound, from the Route 17/Route 81 split up to Route 81 approximately a mile past Exit 6 which includes the so-called Connector. According to his Operator's Daily Report, on March 5, 2001, he took a total of six trips, with the first one starting at 2:00 p.m. and ending at 4:30 p.m. (Cl. Ex. 11). Based on his Operator's Daily Report, the witness was able to approximate that he would have completed his entire route about 3 times during Trip #1. Further, the witness was able to reconstruct his activities that day by noting that on Trip #1 he used only one bucket of abrasives.[1]
According to Mr. Conroy, based upon the total time elapsed for Trip #1 and the fact that only one bucket was used, he did not believe he was plowing during Trip #1 which included the time this accident occurred. In other words, Mr. Conroy explained that there must not have been that much snow on the roadway if he only used one bucket of abrasives during his entire Trip #1. However, the witness did state that it was possible that during Trip #1 he was "winging" back the shoulders - pushing snow back off the shoulders of the roadway toward the guardrails of Route 81 south. Mr. Conroy also explained his normal procedure for clearing the three lanes of Route 81 southbound near the Connector. He stated that as he approaches the Connector he usually plows with his front and right wing blades, but would lift his right wing as he neared the Connector. On subsequent passes, he would plow the snow to the left side with the ultimate goal of placing it into the median between Route 81 northbound and southbound.

The State also called Gary Bakay, another DOT employee with approximately 14 years of experience in snow and ice removal. Mr. Bakay testified that on March 5, 2001 his duties included clearing Route 88 both eastbound and westbound from the Route 12A bridge to the Route 81 Connector. Mr. Bakay's Operator's Daily Report indicated that he made a total of five Trips that day with Trip #1 starting at approximately 1:30 p.m. and ending at 4:00 p.m. during which time he used three buckets of abrasives. (Cl. Ex. 7). According to Mr. Bakay, this volume of abrasive usage indicates to him that there was some covering on the roadway at the time. Mr. Bakay also testified that he typically plows Route 88 starting with the left lane (the passing lane) using the front plow and left wing but lifts the left wing as he nears the Connector and drops the right wing, if traffic allows, clearing to the right. On his next pass, which he estimated would have been between 2:30 and 2:45 p.m. - approximately one hour later - he would travel in the right lane using the front and right wing plows while pushing the snow onto the right shoulder of the Connector. Mr. Bakay acknowledged on cross-examination that is was possible that snow and slush could have been thrown over on the Route 88 lanes from the plowing operation taking place on Route 81 south or could have been leftover when he lifted up his left wing as he approached the Connector in his effort to avoid throwing snow on Route 81 southbound.

The State also called as a witness, Joanne M. McCarthy, a DOT employee for approximately eighteen years. She testified that on March 5, 2001 she was the on-duty dispatcher at the so-called Barlow Road Residency. Ms. McCarthy's duties include logging the temperatures and weather descriptions on an hourly basis; handling incoming telephone complaints of accidents on the roads; and keeping track of all the trucks on the road within her portion of Residency. In addition, Ms. McCarthy testified that supervisors often patrol various areas of the roadway. The witness stated that when any problems are encountered either she or the supervisors will contact the snowplow operator in that area and direct that the problem be corrected as soon as possible.

Ms. McCarthy reviewed her radio operating log and the watchperson's shift report from March 5, 2001 and testified to the following sequence of activities. (Cl. Exs. 10 & 8). The last report of snow flurries was at 10:00 a.m., and as of 11:00 a.m. it was not snowing at the Residency. At 2:33 p.m.,[2]
Gary Bakay radioed her and reported an accident at the Connector. About 2:39 p.m., she also received a call from the Broome County Sheriff's Department informing her of the slush on the Connector. (Cl. Ex. 8). Next, at 2:39 p.m., she radioed Mr. Bakay and told him to go back to the Connector and clear the area. (Cl. Ex. 10). After delivering those instructions, it was her understanding that the area was cleared by operator Bakay and the condition corrected.

The State has an absolute and nondelegable duty to maintain its roads and highways in a reasonably safe condition. (
Friedman v State of New York, 67 NY2d 271, 283). Under winter conditions, this duty obligates the State to remove snow and ice from the highway in a timely manner considering all of the circumstances, but does not make the State an insurer of all who travel its highways. (Boyd v State of New York, 103 AD2d 882; Tomassi v Town of Union, 46 NY2d 91). Stated another way, "[t]hat ice, snow, or water is present on the roadway at the time of an automobile accident does not, by itself, establish negligence on the part of the State [citations omitted]." (Fiege v State of New York, 189 AD2d 748, 749; Tromblee v State of New York, 52 AD2d 666). Moreover, "[t]o hold the State liable there must be a clear demonstration that, with knowledge of the existence of a dangerous condition, the State failed to remedy it." (Valentino v State of New York, 62 AD2d 1086, appeal dismissed 46 NY2d 1072). Accordingly, the burden of proof falls on claimant to establish that the State was negligent by creating a dangerous condition or that the State had actual or constructive notice thereof and that such negligence was a proximate cause of the accident. (Fiege, 189 AD2d 748; Freund v State of New York, 137 AD2d 908, appeal denied 72 NY2d 802). Whether the State exercised reasonable diligence in maintaining these roadways depends upon the prevailing circumstances. (Slaughter v State of New York, 238 AD2d 770). Finally, the storm in progress doctrine affords a reasonable time after the cessation of the storm to take corrective actions. (LaDue v G & A Group, 241 AD2d 791).

The court notes for the record that there was absolutely no credible proof submitted at trial that the State had notice, either actual or constructive, of this dangerous condition. Claimant's arguments that these snow plow operators passed the area and must have noticed the slush is purely speculative. Perhaps, for this reason, claimant relies on the theory that the State created a dangerous condition at the Connector by allowing slush to accumulate resulting from an improper plowing operation of either or both of the plows being operated by Messrs. Bakay and Conroy. Additionally, claimant alleges that the State did not act with reasonable diligence to correct the same. The court disagrees.

First and foremost, claimant's argument that inadequate snow removal created this dangerous condition lacks any support. Although claimant relied upon the DOT Highway Maintenance Division "Highway Maintenance Guidelines" (Cl. Exs. 12 & 14) and "Equipment Operator Snow & Ice Manual" (Cl. Exs. 13 & 15) (hereinafter sometimes collectively referred to as "Manuals"), claimant failed to offer any expert proof to demonstrate that the State failed to comply with contemporary standards of highway maintenance or upkeep. (
Klinger v State of New York, 213 AD2d 378). Moreover, both Manuals state as follows under "plowing ramps and intersections":
[i]n general, ramps and intersections should be plowed at about the same time as mainline sections. The character of the storm, equipment availability and traffic conditions may dictate they be plowed earlier or later than adjacent mainline sections.

(Cl. Exs. 14 & 15, p 12; emphases in Cl. Ex. 15). Additionally, the Highway Maintenance Division Manual states "[t]hese decisions may be made by the shift supervisor." (Cl Ex. 15). Here, Mr. Bakay's shift started at approximately 1:30 p.m., while Mr. Conroy's shift started at approximately 2:00 p.m. Both operators indicated that it would have taken them no more than a half an hour or so to reach the Connector. As such, the credible proof at trial established that the ramp from Route 88, e.g. the Connector, was "plowed at about the same time" as Route 81. Accordingly, the court finds no deviation from the guidelines set forth in these Manuals.[3]

Further, the fact that any slush at the accident site may not have been cleared on the first pass by either or both of the plows, does not equate to a violation of good highway maintenance procedures. Rather, Messrs. Conroy and Bakay explained that the use of abrasives is typically put down before plowing when conditions warrant and claimant offered nothing to dispute their judgment. In fact, this court finds that claimant never fully developed or presented a detailed explanation of how the State allegedly created this dangerous condition in the first instance. To the contrary, clearing the Connector of snow and slush, while maintaining due regard for the safety of traffic simultaneously using these two major roadways, based on the testimony of Conroy and Bakay, the DOT plow operators, implies that some snow and slush inevitably will be left on the Connector after the first pass of the plows. That the plows in responding to and removing the dangerous condition of snow on the Connector roadway in a reasonable, safe and measured fashion could not remove all snow and slush in the first pass cannot and does not equate in the court's mind to creation of a dangerous condition. To hold otherwise would require perfection on the first pass — an impossible task, which would do nothing more than increase the reluctance of the State to clear the roadways in the first instance.

Moreover, even if this court were to assume for purposes of argument that the State had created this dangerous condition by its plowing operations, the proof at trial demonstrated that as soon as DOT personnel became aware of the same, DOT plows and employees reacted immediately - in fact within minutes - to rectify the situation. For instance, Ms. McCarthy dispatched a plow operator to the scene at 2:39 p.m., within 6 minutes, after receiving Mr. Bakay's report of an accident at 2:33 p.m. and within moments of receiving notification from the Sheriff's Department of the condition at the Connector. As such, in this court's view, the State exercised reasonable diligence in maintaining the Connector under the prevailing circumstances.

Finally, it is noteworthy that claimant was well aware of the weather conditions and the snowfall within the previous 24 hours. In fact claimant, by his own testimony, admits he saw this area of slush in advance of his driving through it. However, claimant could not, or did not, slow his vehicle until he was traveling through this debris. Under such circumstances, users of the public highway must operate their vehicles at a reasonable speed with full regard for the conditions then and there existing. (
Boyd, 103 AD2d 882). The fact that the DOT had done a good job in clearing almost all of the other areas of roadway is more a testament to the thorough action of the DOT crews within the prior 24 hours than a disregard of highway maintenance guidelines or lack of reasonable diligence. (Freund, 137 AD2d 908). In sum, this court finds that claimant has failed to meet his burden of proving by a fair preponderance of the credible evidence that the State breached its duty to maintain its highways in a reasonably safe condition.

In light of the foregoing, Claim No. 104251 is hereby DISMISSED.

Any and all motions on which the court may have previously reserved or which were not previously determined are hereby denied.


December 10, 2003
Binghamton, New York

Judge of the Court of Claims

[1]Mr. Bakay, the State's next witness, explained that one bucket equated to about three front-end loader loads.
[2]The time throughout the log is noted in military time, but for convenience here the court has converted the times to standard time.
[3]Parenthetically, the court notes that even a finding of a deviation from these Manuals does not equate to a finding of negligence, but rather is merely some evidence thereof which may be considered by the fact finder. (Rizzuto v Wenger Contr. Co., 91 NY2d 343, 349).