Robert Blair (hereinafter
a police officer with the Yonkers
Police Department motorcycle unit, was injured in the line of duty on June 14,
2001. The wheel of the motorcycle that he was driving was snagged on a sunken
drainage grate located in the middle of the concrete roadway of the exit ramp
leading from the westbound Cross County Parkway (Cross County) to southbound
Central Avenue. The motorcycle went down and claimant landed on the side of the
road. The grate was five to six inches below the grade of the road and was
surrounded by an asphalt patch and several cracks. Defendant concedes that the
sunken grate presented a dangerous condition warranting immediate repair.
Defendant maintains, however, that the condition was the result of a sudden and
unforeseeable event that was not detectable by routine inspections that were
conducted. The trial of this claim was bifurcated and this Decision pertains
solely to the issue of liability.
Photographs taken at the scene of the accident reveal a metal grate in the
middle of the road next to a longitudinal seam in the pavement (Exs. 4, 5). An
asphalt patch near a corner of the grate indicates that there had been a prior
repair on the road. A broken piece of concrete, triangularly shaped, is
directly adjacent to another side of the grate. A long lateral crack runs
diagonally above the triangle, meeting the edge of the grate and extending
beyond it. Claimant maintains that the cracks existed substantially prior to
the accident and should have alerted defendant to inspect the grate and the
underlying drainage structure. Defendant contends that the cracks developed
when the grate suddenly collapsed.
Claimant testified that on June 14, 2001, he was assigned to a motorcycle unit
engaged in speed enforcement and had 10 years' experience driving motorcycles.
At approximately 6:45 p.m., claimant was traveling from the westbound Cross
County to southbound Central Avenue. The road was dry. Another vehicle
followed closely behind claimant as he proceeded down the exit ramp. When
claimant was within one car length of the grate, he observed a potentially
dangerous condition and tried to avoid it. He swerved, slid with the bike, and
became separated from it. Claimant then scrambled to the side of the road and
summoned help. Claimant used this exit ramp infrequently and had no personal
knowledge of the condition of the grate.
Yonkers Police Sergeant Henry Trabucco responded to the scene. He
characterized the sunken grate as a dangerous condition. Trabucco stated that
he would have reported the problem had he observed it prior to
claimant's accident. Westchester County Police Officer Marcelo Jimenez also
responded and prepared an accident report (Ex. 14). He described the grate as
sunken six inches on one side.
Charles Lent testified as an expert on behalf of
claimant. Lent has been in the construction business since 1962. Among other
activities, his companies have installed and maintained sewer drains and catch
basins in several municipalities. Lent has periodically inspected storm drains
by lifting the steel covers. He has also repaired collapsed storm
Lent's opinions were based solely on the photographs received into evidence
(Exs. 4-9). He did not view the scene nor read any deposition testimony. Lent
explained that the metal grate sits on precast concrete blocks. The cracks
around the outside of the grate suggested to him that settlement had occurred.
In his view, when the underlying foundation had settled, the grate settled and
gradually "went down."
The patch on the
blacktop indicated to him that there had been a prior problem and that the
depression had happened over a period of years, rather than suddenly. Lent
attributed this settling to improper compaction when the catch basin was
installed. Lent opined that, had the catch basin been inspected below the
grate, the deterioration would have been discovered. On cross-examination, Lent
conceded that the longitudinal seam on the road had vegetation, while there was
no vegetation in the cracks near the grate.
Thomas Mason, who has been employed by the New York State Department of
Transportation (DOT) for 34 years, testified that he is the Assistant Resident
Engineer in the southern Westchester residency. In his position, he is
responsible for the maintenance of the highways in southern Westchester and the
exit ramp at issue. His duties included dispatching personnel for repairs. He
searched the records regarding the two months prior to
claimant's accident and found no complaints. Mason unequivocally stated that
the condition depicted in exhibit 5 was a dangerous condition that needed
Referring to the blacktop patch, Mason testified that several years prior to
June 14, 2001, there had been a repair in the general vicinity of the
He did not recall the year of the repair and did not know when the cracks in the
road had developed. In his view, however, the cracks were "fresh," after the
black top patch, and would have likely occurred when the drain settled. He
described the process as an "instantaneous" failure rather than a gradual
Mason stated that DOT had no special procedures for inspecting drains in the
middle of the road. He surmised that, at some point, the exit ramp had been
widened from one to two lanes and this accounted for the drain's location. He
did not know the reason for leaving a storm drain there since the drain served
no useful function other than collecting water that fell directly into the
structure. Mason testified that this was not the normal location for a drain
since the road was super elevated toward the inside curb. Generally, manholes
were used in such situations. Although drains, he maintained, are designed to
withstand traffic, he did not know their life span.
Mason testified that t
here are no written procedures regarding storm drain
and no records were kept of the
routine inspections performed. It was DOT's policy to have Highway Maintenance
Supervisors perform weekly "drive by" inspections of storm drains.
Additionally, "everyone" was instructed to fix or report a dangerous condition
that was encountered. The department normally paid close attention only to
drains with problems. Unless there was an apparent blockage, an internal
inspection would not be conducted. In order to take an interior look, a traffic
work zone would have to be established, which would last one to one and a half
Mason examined the photographs in evidence and concluded that the cracks
appeared to be fresh (Exs. 4, 5). On cross-examination, Mason conceded that the
lateral crack, the "big crack across the back," may have predated the collapse.
Despite the fact that the crack was adjacent to the steel grate cover, Mason
insisted that this was not an indication that something was wrong. When asked
whether the crack should have put someone on notice that shifting was occurring,
he replied, "I don't know, it's hard to say."
Keith O'Connor, a DOT maintenance employee, testified on behalf of defendant.
O'Connor was dispatched to the scene on June 15, 2001. He testified that
several years earlier, he had worked on the same basin and had replaced the
concrete blocks in the same location that needed to be replaced on June 15,
2001. When asked on cross-examination to consider the cracks shown in exhibit
4, he testified that they were present at the time of the first repair. On
redirect, he equivocated and testified that he could not say positively if the
cracks were the same ones found years earlier and that it would have been part
of the prior repairs to have fixed such cracks. Finally, he conceded he really
did not know.
It is well settled that the State has a nondelegable duty to adequately design,
construct and maintain its roadways in a reasonably safe condition (see
Gomez v New York State Thruway Auth.
, 73 NY2d 724; Friedman v State of
, 67 NY2d 271; Weiss v Fote
, 7 NY2d 579). The State,
however, is not an insurer of the safety of its roadways and the mere happening
of an accident on a State roadway does not render the State liable (see
Tomassi v Town of Union
, 46 NY2d 91; Brooks v New York State Thruway
, 73 AD2d 767, affd
51 NY2d 892). Claimant has the burden of
establishing that defendant was negligent and that such negligence was a
proximate cause of the accident (see Bernstein v City of New York
69 NY2d 1020, 1021-22; Marchetto v State of New York
, 179 AD2d 947;
Demesmin v Town of Islip
, 147 AD2d 519). Liability will not attach
unless defendant had actual or constructive notice of a dangerous condition and
then failed to take reasonable measures to correct the condition (see
Rinaldi v State of New York
, 49 AD2d 361).
Upon review of all the evidence, including listening to the witnesses testify
and observing their demeanor as they did so, the Court finds that the credible
evidence established that
defendant was negligent and that such negligence was a proximate cause of
claimant's accident. First, it was conceded by DOT's Assistant Resident
Engineer that the drain's location in the middle of the road served little or no
purpose. Second, a DOT maintenance employee testified that the very same
defects in the drain that needed repair at the time of claimant's accident had
been necessarily repaired several years prior to claimant's accident.
Accordingly, this Court finds that defendant was on notice that the drain posed
a potential problem in the future and, therefore, defendant should have
monitored the drain for a potential reoccurrence and need for further repair.
The evidence failed to establish that defendant effectively continued to monitor
the drain after the first repair. The Court does not find persuasive
defendant's argument that the concededly dangerous condition happened suddenly.
Accordingly, the Court finds that defendant failed to maintain its roadways in a
reasonably safe condition and that failure constituted negligence which was a
contributing cause of claimant's accident. The Court does not find that
claimant was negligent in following the car in front of him prior to
encountering the drain. Accordingly, the Court finds that defendant is 100
percent liable for claimant's accident. A trial on the issue of damages will be
scheduled as soon as practicable.
Defendant's motion to dismiss, upon which decision was reserved, is
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.