New York State Court of Claims

New York State Court of Claims

BLAIR v. THE STATE OF NEW YORK, #2004-010-008, Claim No. 106159


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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 3, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Robert Blair (hereinafter
claimant),[1] 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 drains.
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."[2] 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 attention.
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 drain.
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 deterioration.
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 inspections[3] 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 hours.
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 New York, 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 Auth., 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 DENIED.


March 3, 2004
White Plains, New York

Judge of the Court of Claims

[1] The claim of Christina Blair, claimant's wife, is derivative.
[2] All quotations are to the trial notes or audiotapes unless otherwise indicated.
[3] Claimant then sought to introduce the New York State Highway Maintenance Guidelines into evidence. This publication was initially referred to at Mason's examination before trial, and after the deposition claimant purchased the document from defendant for use in this case. Nonetheless, at trial, Mason testified that the Guidelines were no longer in effect and defendant objected to its receipt into evidence. The Court inquired as to which standards were in effect at the time of the accident. Mason then testified that he relied on the Guidelines that he had just maintained were no longer in effect and defendant withdrew its objection to their introduction into evidence. Mason's testimony regarding the Guidelines detracted from his overall credibility.