New York State Court of Claims

New York State Court of Claims

MANETTA v. THE STATE OF NEW YORK, #2004-015-597, Claim No. 103854


Synopsis


Court dismissed personal injury claim arising out of one vehicle accident on icy bridge maintained by State. Claimant failed to prove that State sanding/salting operation was inadequate or unreasonable in light of weather conditions.

Case Information

UID:
2004-015-597
Claimant(s):
GAETANO MANETTA
Claimant short name:
MANETTA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103854
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Edward J. Carroll, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 24, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The claim of Gaetano Manetta asserts that the State was negligent in maintaining the Linlithgo Bridge on Route 9G in Columbia County, New York. It is alleged that due to the negligence of the State, through the Columbia County Department of Public Works, the bridge became icy and claimant was thereby caused to suffer injury on November 26, 2000. Trial of the claim was bifurcated by order of the Court dated October 8, 2003.

The first witness to testify was the claimant who testified that he, his son and grandson left his home on West Curly Corners Road in the Town of Red Hook, Dutchess County, shortly before 6:00 a.m. on November 26, 2000. Mr. Manetta was operating a 1994 GMC Suburban. His son Tommy was seated in the front passenger seat and his grandson was seated in the backseat of the vehicle. They proceeded from the claimant's home to Route 9G which they traveled north to an Xtramart Store in Germantown, New York, where they stopped for coffee at approximately 6:10 a.m. Claimant testified that he experienced no difficulties in operating his vehicle between his residence and the Xtramart. Claimant, his son and grandson left the Xtramart Store at approximately 6:20 a.m. and continued north on Route 9G approximately 3 miles at which point their vehicle proceeded downhill towards the Linlithgo Bridge. Claimant experienced no difficulties in controlling the vehicle while traveling on Route 9G and noticed no signs other than a sign at the top of the hill indicating the existence of a downgrade.

As his vehicle transitioned from the asphalt surface of the highway to the concrete bridge surface claimant's vehicle began to fishtail as the rear slid to the right and the front slid left. Claimant's vehicle continued to slide sideways across the bridge and claimant counter-steered to the right causing the back of his vehicle to slide to the left and the front of the vehicle to move to the right. Claimant again counter-steered into the skid and the vehicle's front end moved left and the back end slid right. The vehicle continued sliding across the bridge and claimant once again counter-steered into the skid near the end of the bridge stating that "the car whipped around into a long right-hand U turn sliding backwards and sidewards, and I slammed sideways into a small embankment". Claimant was ejected from the vehicle which landed on its roof approximately six feet from where the claimant had come to rest.

Mr. Manetta reviewed Exhibits 1 - 6, photographs taken by the claimant approximately two weeks following his accident and depicting the bridge and the area immediately north and south thereof. The claimant also identified various other photographs including Exhibit 10 which depicts the bridge surface and exhibits 7, 8, and 9 showing the claimant's 1994 Chevrolet Suburban in its post-accident condition.

Mr. Manetta testified that shortly after the accident he observed a State trooper proceeding north on Route 9G approaching the bridge. The witness stated that the trooper stopped his vehicle prior to entering the bridge and continued onto and across the bridge at approximately 1 mph. Mr. Manetta testified that from his location on the northern end of the bridge he observed the following:
"When the trooper came down the hill, his headlights came across the bridge, shined on the bridge, there was no sign of any kind of salt or sand because it was so smooth. It looked just like a piece of glass."
The claimant concluded his testimony by stating that when he awoke at 5:00 a.m. there was a light, misty rain that continued to fall through the time of his accident. Claimant denied that there was a heavy downpour of rain at any time that morning.

On cross-examination the claimant confirmed that he held a valid driver's license at the time of his accident and that he had been a truck driver for a number of years preceding November 26, 2000. He had purchased a 1994 Chevrolet Suburban approximately three months prior to his accident and although the vehicle was equipped with four-wheel drive, the four-wheel drive mechanism had not been engaged that morning. Mr. Manetta stated that he was familiar with Route 9G and the subject bridge and that he crossed the bridge traveling to and from his former employment at Montgomery Ward in Albany on what he agreed was a "frequent basis" prior to November 26, 2000. He had never experienced any problems in operating his vehicle over the bridge prior to the date of his accident nor was he aware of complaints regarding the bridge. He was aware through his experience as a truck driver that bridges sometimes freeze before roadways and that caution was required in operating a vehicle in upstate New York during the winter months.

Claimant testified that when he awoke at 5:00 a.m. the temperature was 35 degrees and that he, his son and grandson were traveling to a hunting camp at the time of the accident, a trip that would normally take approximately 35 to 40 minutes. He testified that it was dark when he left his home that morning. As he operated his vehicle in the northbound lane of Route 9G his lights were on and his windshield wipers were operating on an intermittent setting to address what he described as a "very light drizzle".

In describing his approach to the accident location the witness stated that he passed a State trooper parked on the east side of Route 9G. As he approached the trooper's vehicle he noticed some wet snow on the windshield and that the roads were somewhat slushy. He estimated his speed at approximately 45 mph as he approached the State trooper's vehicle and stated that he slowed to between 30 and 35 mph as he passed the trooper, rounded a right-hand curve and began a long, straight decent down Route 9G toward the bridge. Exhibits 4, 5 and 6 depict the bridge and surrounding area and support Mr. Manetta's testimony that the northern and southern approaches to the bridge are long, straight downhill courses joined by the straight and generally level Linlithgo Bridge. The witness testified that as he proceeded down the hill approaching the bridge on Route 9G north he removed his foot from the accelerator and applied the brake. He proceeded down the hill at approximately 35 - 40 mph and disengaged the brake approximately 150 feet from the southern end of the bridge. He continued his approach to the bridge at approximately 35 - 40 mph and stated that his vehicle did not begin to slide until all four wheels were on the concrete surface of the bridge. He did not thereafter apply his brakes while on the bridge nor did he attempt to shift into a lower gear. Claimant confirmed that his vehicle came to rest at a point previously marked on Exhibit 3 which he estimated as approximately 275 feet north of the northern end of the bridge. Claimant reiterated that he did not apply his brakes at any time between the point at which he entered the bridge and the location where his vehicle came to rest. He testified that the surface of the roadway north and south of the bridge was not icy and that the only ice he encountered was on the surface of the bridge.

Claimant identified certain photographs which are a part of Exhibit A and were identified at trial by the numerical designation appearing in the lower right-hand corner of each photograph. In this regard, claimant identified Exhibits 12 and 14 as depicting the area south of the bridge where he saw the State trooper vehicle stopped on the side of the road. Further, he identified photograph number 45 depicting a roadway which intersects Route 9G a short distance south of the bridge as the location where claimant removed his foot from the vehicle's brake. Claimant estimated that he ceased breaking approximately 150 - 200 feet south of the southern bridge entrance. Claimant stated that as he approached the bridge he was neither operating the radio nor assisting his son with his cup of coffee. Claimant stated that both of his hands were on the steering wheel as he entered the bridge and that he did not remove his hands until immediately prior to the point where his vehicle left the road and ultimately came to rest.

Claimant next called Mr. James T. Kelly, Jr., a registered architect in the State of New York and a licensed professional engineer in New York, New Jersey, Connecticut, Vermont, Massachusetts and North Carolina.

Exhibits B through N were received in evidence without objection. These documents include a contract between the State of New York and Columbia County extending an agreement originally entered into on July 1, 1974 concerning snow and ice removal on certain designated State roads (Exhibit D) as well as county records and documents concerning ice and snow removal activities on Route 9G in the vicinity of the Linlithgo Bridge. Mr. Kelly described the bridge and the area surrounding it stating that the bridge itself is sloped approximately 3 degrees from south to north with inclines at both the northern and southern approaches to the bridge. The witness then was asked to assume that the accident had occurred in the manner testified to by the claimant, that the Columbia County Highway Department was informed by the Department of Transportation at 4:00 a.m. [
sic] that the Rip Van Winkle Bridge was icy and that a vehicle accident had occurred at that location and that the department received similar information from the County Sheriff's Department at or around 4:50 a.m. Mr. Kelly was also asked to assume that temperatures ranged between 33.3 and 34.3 degrees and that the claimant experienced no problems in the operation of his vehicle on Route 9G but lost control of his vehicle as it entered the surface of the Linlithgo Bridge.
The witness stated his opinion that based upon his investigation of claimant's accident and the facts assumed it was his opinion that the bridge was "iced over, which caused the vehicle to skid, both to the left and to the right." The witness stated his further opinion that the existence of ice on the bridge surface was the proximate cause of claimant's accident and that Columbia County failed to take appropriate actions to prevent or address the icy conditions prior to the time of claimant's accident.

According to Mr. Kelly his review of various documents revealed, in his opinion, that the bridge was sanded but that salt was not applied as it should have been. He stated that it is commonly understood in the field of engineering that bridge surfaces freeze prior to adjacent roadways. With regard to the claimant's accident, the witness related that although the County Department of Public Works garage in Hudson, New York, recorded temperatures in the range of 33 - 33½ degrees, the bridge is located at an area which is several hundred feet higher in elevation resulting in a minimum temperature differential of negative 2 degrees which would bring the temperature at the location of the bridge below freezing. Without citing a specific record the witness stated that although certain documents appear to indicate the use of sand and salt, the November 26, 2000 work records for Route 9G relate that the roadway was merely sanded. When asked whether in his opinion the bridge was salted prior to the ice forming upon the bridge surface the witness testified that ice would not likely have formed had the bridge surface been salted and, given the prevailing weather conditions, it did not appear that salt had ever been applied. Failure to salt the bridge was, in the opinion of the witness, a departure from good and safe maintenance practices.

Mr. Kelly also took issue with the maintenance and record keeping practices of the Columbia County Department of Public Works. He indicated that his investigation revealed no documentation specifically establishing that Route 9G was traversed by a maintenance foreman or that specific bridges were actually salted. Although he testified county records reflect that work crews applied sand to State roads including Route 9G between 4:00 a.m. and 6:00 a.m. the documentation did not utilize mile post references which would be necessary in order to confirm that the Linlithgo Bridge had been salted and/or sanded. Finally, Mr. Kelly stated that upon receipt of a notification from the Columbia County Sheriff's Department at 4:50 a.m. concerning the freezing of bridge surfaces the County should have "sanded or salted all the bridges".

On cross-examination the witness testified that his familiarity with snow and ice procedures derives from his experience as Town Engineer in the Towns of Saugerties (1987 - 1988) and Lexington (1976 - 1980) as well as his familiarity with the thermodynamic processes associated with the freezing of bridge surfaces. He also confirmed that his engineering degree was earned in the field of mechanical engineering and not civil engineering. He argued that his testimony regarding a negative 2-degree temperature differential between the Columbia County Department of Public Works Hudson Garage and the bridge location was not speculative but, rather, was based upon analytical evaluation.

Mr. Kelly did not question the procedures involved in calling out foreman Al Berninger at 2:30 a.m. to conduct a road check or the decision to call out another foreman at 2:55 a.m. to also conduct a road patrol. The witness reviewed Exhibit M and agreed that it reflects that Leonard Weed and Michael Steeneck were called to report to work at 3:22 a.m., that these two gentlemen operated truck #34 and that they were assigned to a route which included Route 9G and the Linlithgo Bridge. He also agreed that the proof reflects that Mr. Berninger patrolled State routes between 2:30 and 4:30 a.m. (Exhibit H) and that Mr. Berninger's foreman John Blaauw patrolled Routes 9 and 9G between 3:00 and 4:00 a.m. (Exhibit K) on November 26, 2000. The witness testified that he was familiar with the deposition of Bernard Kelleher (Exhibit 15) in which Mr. Kelleher relates that truck #34 operated by Mr. Weed and Mr. Steeneck was responsible for the route that covered the Linlithgo Bridge on Route 9G in Columbia County. Mr. Kelly was then asked to review Exhibit L, a daily snow and ice control and removal report which reflects that Weed and Steeneck were engaged in spreading six cubic yards of abrasives on Route 9G between 4:00 a.m. and 6:00 a.m. on November 26, 2000. He testified that in his opinion the term abrasives indicated the use of sand only but that if, in fact, the materials dispensed on Route 9G between 4:00 a.m. and 6:00 a.m. was a mixture of sand and salt the material used would have been proper under prevailing conditions.

On redirect examination the witness stated that had the County Department of Public Works salted the road as a preventative measure upon being advised that bridges were freezing at 4:50 a.m. ice would not have been present at the time of claimant's accident at 6:30 a.m. In the absence of any heavy downpour substances applied to the bridge to prevent icing would have remained on the bridge surface. Mr. Kelly indicated that the failure to apply salt to bridge surfaces as a preventative measure prior to 6:30 a.m. was a departure from accepted engineering practice and that had salt been applied the roadway could not refreeze. Upon the conclusion of Mr. Kelly's testimony the claimant offered the deposition transcripts of Bernard Kelleher and Charles T. Vieni which were accepted into evidence without objection except as to be noted in the defendant's post-trial brief. The defendant moved to dismiss the claim for failure to establish a prima facie case of negligence and the Court reserved on the motion. That motion is now denied.

Defendant's first witness was Bernard J. Kelleher, Jr., who in November, 2000 was employed by the Columbia County Department of Public Works as a road maintenance projects coordinator in charge of overseeing road maintenance and construction work within the county. Mr. Kelleher stated that he is familiar with the snow and ice removal agreement between the State of New York and Columbia County pursuant to which the County performs snow and ice control duties upon approximately 130 centerline miles of State highways. For purposes of snow and ice removal, the County maintains a main garage in the City of Hudson as well as five outposts or satellite stations located throughout Columbia County. He confirmed that as part of the snow and ice control agreement Columbia County is responsible for the maintenance of Route 9G in the area of the Linlithgo Bridge.

In November, 2000 the County utilized a DTM Weather System which was located at the main garage in Hudson. The County also subscribes to a separate weather service to provide weather reports on weekends, holidays and "off hours" and employs a laborer or night watchman who, in addition to other duties, is responsible for monitoring weather reports and maintaining an hourly weather log between the hours of 4:00 p.m. and 7:00 a.m.

Mr. Kelleher reviewed Exhibits N and E both of which are dated November 26, 2000 and were, according to the witness, prepared by the night watchman whose duties he explained above. He stated that on the night of November 26, 2000 Alan Berninger, an assistant general foreman for the County Department of Public Works, was the supervisor on call as reflected in Exhibit I. He described the procedures employed by the county upon receipt of a notification of adverse weather conditions in November 2000. According to Mr. Kelleher the laborer or night watchman on duty was required upon receipt of such a call to notify the supervisor on duty. The supervisor would then decide who should be contacted to respond to the complaint or would respond personally by conducting a patrol which the witness defined as traveling the highways to check conditions and call out crews as needed. The witness next reviewed Exhibit H which is a document entitled State of New York, Department of Transportation, Daily Report of Operations - Snow and Ice Control and Removal. Mr. Kelleher testified that Exhibit H reflects that Mr. Berninger patrolled State routes within the county for a two-hour period beginning at 2:30 a.m. and concluding at 4:30 a.m. followed by a two-hour patrol of county roads between 4:30 a.m. and 6:30 a.m. Mr. Berninger again patrolled State roads for a one hour period beginning at 6:30 a.m. as reflected in Exhibit H.

The witness testified that at 2:55 a.m. Mr. Berninger contacted the night watchman and directed that all foremen be called out to check road conditions. Mr. Kelleher explained that road foremen are stationed in various areas within the county and are assigned specific sectors for patrol. Typically, foremen are familiar with their respective areas of patrol. The area which encompasses Route 9G and the Linlithgo Bridge is overseen by John Blaauw, the foreman assigned to the Livingston outpost, and serviced by trucks which are housed at the Town of Germantown highway garage. His daily snow and ice control and removal report (Exhibit K) reflects that Mr. Blaauw was engaged in patrolling State Routes 9 and 9G between 3:00 a.m. and 4:00 a.m. on November 26, 2000. After reviewing Exhibit F the witness testified that Mr. Blaauw directed that Leonard Weed and Mike Steeneck who manned truck #34 be called in for service. He then reviewed Exhibits J and G and testified that the documents reflected all workers assigned to the Livingston and Germantown outposts were called in the morning of November 26, 2000. Mr. Kelleher next reviewed Exhibit L, a daily snow and ice control and removal form which reflects that Leonard Weed and Michael Steeneck operated truck #34 on State Route 9G between 4:00 a.m. and 6:00 a.m. According to the witness the form reflects that Mr. Weed and Mr. Steeneck "loaded their truck with abrasives, which are a sand/salt mixture, and they applied material to State Route 9G and County Road 5 and County Road 40". In this respect the Court notes that the form indicates in the box labeled "Materials: Kind" the use of "04/10" while a separate box labeled "MATERIALS USED" references "04" under the heading "Kind". A key in the lower right-hand corner of the form provides that the numerical indication "04" represents "C.Y. Abrasives" and "10" refers to "Lbs. Sodium Chloride".

The witness stated that Mr. Blaauw had been employed by the Columbia County Department of Public Works for approximately 20 years and that truck crews such as Mr. Weed and Mr. Steeneck are aware of the potential trouble spots through experience within their assigned areas of patrol. In November of 2000 truck 34 operated by Leonard Weed and Michael Steeneck was assigned responsibility for State Route 9G and its intersection with Route 23 south approximately 10 miles to the Dutchess County line. Since truck 34 is housed at the Germantown garage the route followed would generally be to proceed from the garage north on Route 9G over the Linlithgo Bridge to the intersection of Route 9G and Route 23. The truck would then turn around and proceed south on Route 9G over the bridge and continue to the Dutchess County Line.

Mr. Kelleher reviewed Exhibit N and testified that the document, which contains the night watchman's notes, reflects that at 4:50 a.m. both the State Department of Transportation and the Columbia County Sheriff's Department called to inform the Department of Public Works that the four-lane "web" near the Rip Van Winkle Bridge had become icy and a car had hit a pole. He testified that the Rip Van Winkle Bridge is not a part of truck 34 's assigned route and is located approximately 3 to 4 miles from the Germantown outpost. The witness related that Exhibit N indicates that snow and ice removal activities ceased at approximately 7:15 a.m. on the morning of November 26, 2000. Finally, Mr. Kelleher reflected that all of the sand used by the Columbia County Department of Public Works is a sand/salt mixture which is prepared using 20 - 25% salt in order to keep the sand from freezing during the winter.

On cross-examination Mr. Kelleher agreed that he did not personally salt or sand the Linlithgo Bridge on the morning of November 26, 2000 so that he has no personal knowledge regarding the operations which actually took place there. He also agreed that the Columbia County Department of Public Works was aware that bridges were freezing within the county as early as 4:50 a.m. He stated that the "web" is approximately 3 miles from the Linlithgo Bridge and that crews had already been engaged in snow and ice control activities on Route 9G for 50 minutes at the time the county was notified at 4:50 a.m. that the web near the Rip Van Winkle Bridge was icy. The witness stated that the key contained on various exhibits regarding the materials distributed includes an indication of "04" representing abrasives and "10" indicating pounds of sodium chloride or rock salt. He agreed that the purpose of rock salt is to prevent ice from accumulating and that there are times when the Department has utilized only sodium chloride to prevent ice from forming on highway and bridge surfaces. According to the witness the Department of Public Works commonly designates the use of a sand/salt mixture by designating "04/10". He explained that the department uses different chemicals or materials for different applications. On the morning of November 26, 2000 it was determined that conditions were appropriate for use of a standard sand/salt mix. When asked whether there were any State regulations governing the type of mixtures to be used on State bridges the witness explained that "the State pretty much leaves it up to our discretion".

The next witness called by the defendant was John Blaauw, a road foreman for the Columbia County Department of Public Works, Highway Division. In the year 2000 Mr. Blaauw was assigned to the Department's Livingston outpost and was responsible for the two plow trucks housed at the Germantown garage. The witness stated that he was called out on the morning of November 26, 2000 and began observing road conditions while patrolling his assigned section beginning at approximately 3:00 a.m. The witness reviewed Exhibit K, his daily snow and ice control and removal form, and stated that beginning at 3:00 a.m. he patrolled Routes 9 and 9G including the area encompassing the Linlithgo Bridge. At 4:00 a.m. he patrolled county routes and then returned to Routes 9 and 9G which he patrolled between 7:00 a.m. and 8:00 a.m. that morning. He stated that in determining what material will be used to treat roads he relies on his experience and his observations of prevailing conditions. He indicated that on the morning of November 26, 2000 he directed Mr. Weed and Mr. Steeneck to apply "CY abrasives" which is a mixture of road sand and rock salt. He stated that upon completion of his patrol on the morning in question he was satisfied with the condition of the roads within his assigned section and determined that the trucks could return and cease operations.

On cross-examination Mr. Blaauw reviewed Exhibit L and agreed that under the category "Kind of Work" Leonard Weed and Mike Steeneck had indicated "69" which according to the key at the bottom of the form indicates "Stockpile abrasives and chemicals". He testified that he was called to work at approximately 3:00 a.m. and at that time began patrolling State roads within his assigned section. Although he did not recall his specific route on November 26, 2000 he related that his usual procedure is to patrol State Route 9 and then Route 9G. From Route 9 he generally crosses to Route 9G via County Route 31 and enters Route 9G near the Linlithgo hill area north of the Linlithgo Bridge. He could not recall whether on November 26, 2000 he traveled north on Route 9G or south which would have taken him across the Linlithgo Bridge. His inspection of Route 9G generally takes between 20 and 30 minutes after which he would return and conduct a further patrol on Route 9. Mr. Blaauw could not recall precisely what time he first traveled over the Linlithgo Bridge on November 26, 2000 although he stated that he crossed the bridge at least twice that day.

The witness agreed that although Mr. Weed's assigned route includes the Linlithgo Bridge he did not personally observe truck 34 travel over the bridge that morning.

On redirect examination the witness testified that he would not have called Mr. Weed or Mr. Steeneck into work to stockpile abrasives and chemicals at 4:00 a.m., at least in part because November 26, 2000 was a Sunday and any hours worked would be overtime hours. He stated that his intention in calling Mr. Weed into work beginning at 4:00 a.m. was that he would operate truck #34 and distribute sand and salt on highways within his assigned route. He described the road sand used by the county as a mixture of salt and sand "in the range of 20 - 25% salt".

Leonard Weed, Jr., was the next witness to testify at trial. Mr. Weed testified that he is a senior equipment operator employed by the Columbia County Department of Public Works and had been employed by the county for 21 years at the time of trial. He testified that he is assigned truck #34 which is located at the Germantown garage and used for purposes of snow and ice removal. His assigned route on November 26, 2000 included Route 9G and the Linlithgo Bridge.

Mr. Weed confirmed that his daily snow and ice control and removal report (Exhibit L) indicates that he reported for work at 4:00 a.m. to begin snow and ice operations. He described his general procedures regarding such operations as including a pre-inspection of his truck after which the truck is taken out and loaded. He testified that on November 26, 2000 truck #34 was loaded with abrasives which he described as a sand and salt mixture. He has patrolled the same route for approximately 17 years and stated that in performing his duties he pays particular attention to cold spots, bridges, hills, turns and intersections which generally freeze before other areas. In particular, with regard to the area which includes the Linlithgo Bridge the witness stated that he generally salts and sands the bridge as well as both approaches. He stated that he crossed the Linlithgo Bridge between 4:00 a.m. and 6:00 a.m. while patrolling Route 9G and that he was not in fact stockpiling abrasives that morning but was rather performing ice control activities which would be properly designated by the code "69.1" under kind of work on his daily snow and ice control and removal form.

On cross-examination the witness testified that the truck spreader is operated from inside the cab and that he has occasionally experienced problems with either a spreader malfunction or a backup of materials in reaching the spreader. Mr. Weed stated that on the morning of November 26, 2000 he recalled checking to ensure proper operation of the spreader which he could view from his side-view mirror. The witness stated that although his truck holds a total of 20 tons of materials, on the morning of claimant's accident his daily snow and ice control and removal form (Exhibit L) indicates that approximately 6 tons of materials were distributed on State Route 9G.

On redirect examination Mr. Weed testified that on the morning of November 26, 2000 he was engaged in spot sanding which he described as addressing cold spots, bridges, curves and other areas where ice was encountered.

On recross-examination the witness stated that he could not recall specifically whether the spot sanding activities in which he was engaged included sanding of the surface of the Linlithgo Bridge prior to 6:30 a.m.

Defendant's final witness was Charles Vieni who is currently self-employed and was previously employed by the New York State Department of Transportation for approximately 40 years, including 34 years as resident engineer for Columbia County. Mr. Vieni is a licensed professional engineer and testified that as resident engineer his duties included responsibility for all maintenance activities on State highways within Columbia County. He has also been involved in conducting a snow and ice university for the State of New York.

Mr. Vieni described the area where the Linlithgo Bridge is located, stating that a vehicle proceeding south on Route 9G encounters a 7½% slope coming down the hill approaching the bridge. The bridge itself is at a slope of approximately 2½% and rises to a 7.26% grade going up the hill north of the bridge. In the opinion of the witness the use of sand and salt at this location was appropriate to provide additional traction proceeding down the hill approaching the bridge.

According to the witness he is familiar with the materials used in snow and ice control, stating that there are a variety of materials, the use of which is dependent upon climatological and traffic conditions as well as the training, experience and judgment of individuals in the field. Based upon his review of various materials relating to snow and ice control operations by the County of Columbia on the morning of November 26, 2000 it was the witness's opinion that the Department of Public Works performed its duties in accordance with good engineering practice in the area of snow and ice operations. He described prevailing conditions as including icing conditions in the northern part of the county near the Rip Van Winkle Bridge approach and at another area north of that location. In his opinion use of a sand and salt mix was appropriate for conditions existing that morning. He testified that generally stockpiled sand includes a salt mixture which prevents the sand from freezing or clinging to the metal bed of a truck. Materials reviewed by the witness indicate that the Columbia County Department of Public Works stockpile contained a 20 - 25% salt mix which is applied at an approximate rate of 2,000 to 2,500 pounds per mile. On the morning of November 26, 2000 the truck patrolling Route 9G was performing spot sanding of cold spots, bridges, curves and intersections. Mr. Vieni stated that a 20% salt mixture would include approximately 400 - 500 pounds of salt in each 2,000 to 2,500 pounds of sand/salt mixture. Under normal conditions an application of salt only is recommended at approximately 450 pounds per lane mile.

The addition of salt to the sand produced a melting effect which at 30 degrees temperature would melt approximately 46.4 pounds of water. The combination of sand and salt both melted ice which may have formed on the road and bridge surface and provided additional traction for passing vehicles. The witness discussed the distinction between air and pavement temperature stating that application rates early in the winter season are less than later in the year because the pavement temperature is higher. It was his opinion that the Columbia County Department of Public Works followed standard operating procedures in first calling out a supervisor and then foremen to check road conditions. He also stated his opinion that the callout of Mr. Weed and his activities in applying a sand/salt mixture between 4:00 a.m. and 6:00 a.m. were reasonable. When asked whether the practices employed by the county relative to snow and ice control and removal procedures at the Linlithgo Bridge were performed in accordance with good and accepted engineering practices the witness stated, "Absolutely, there is no question in my mind about that, they applied the material and, again, I didn't see anything, any fault with their operation".

On cross-examination the witness stated that he was aware that Columbia County had been notified as early as 3:30 a.m. that bridge surfaces in Columbia County were freezing and that a car accident was reported at 4:50 a.m. He agreed that he was not present during the snow and ice removal operations on November 26, 2000 and thus had no personal knowledge of actions taken by the Columbia County Department of Public Works. He agreed that it was equally important to prevent the formation of ice as to treat ice which has already been established. The witness disagreed that conditions were appropriate for preventive deicing which would have prevented the formation of ice on the Linlithgo Bridge.

It is established that an absolute and nondelegable duty is imposed upon the State to maintain its roads and highways in a reasonably safe condition (
Friedman v State of New York, 67 NY2d 271, 283) and a contract entered into between the State and a municipality whereby the latter agrees to remove snow and ice from State highways does not absolve the State of liability (see Neddo v State of New York, 275 App Div 492, affid 300 NY 533; Highway Law § 12 [2-a] [a]). During winter driving conditions the State is obligated to timely remove snow and ice from its highways in a manner which is reasonable under all of the attendant circumstances (see Slaughter v State of New York, 238 AD2d 770). The State is not, however, 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). "The mere presence of a patch of ice and the fact that claimant lost control of [his] vehicle do not establish, without more, that the State was negligent" (Johnson v State of New York, 265 AD2d 652, 652-653; see also Timcoe v State of New York, 267 AD2d 375). Liability will not attach unless the State either created a dangerous condition or there is "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, 1088, appeal dismissed 46 NY2d 1072). It is claimant's burden to establish by a preponderance of the evidence that the State was negligent and that its negligence was a proximate contributing cause of an accident (Agius v State of New York, 50 AD2d 1049; Roberts v State of New York, 34 AD2d 1071).
The inquiry in cases such as the instant matter is whether the State exercised reasonable diligence in maintaining the highway under prevailing circumstances (
see Freund v State of New York, 137 AD2d 908, lv denied 72 NY2d 802; Tromblee v State of New York, 52 AD2d 666, 667); a question that must be addressed on a case-by-case basis (see Tromblee v State of New York, supra at 667; Citta v State of New York, 35 AD2d 288; Slaughter v State of New York, supra). The spot application of abrasives in potential problem areas where slippery conditions are observed rather than blanketing an area with salt and sand does not alone establish negligence (Freund v State of New York, supra at 910; see also Boyd v State of New York, 103 AD2d 882, 883).
Claimant does not allege that the State created a dangerous condition or that it had actual notice of the condition of the Linlithgo Bridge on the morning of the accident. Rather claimant seeks to predicate liability upon a claim that the State had constructive notice of the icy condition of the Linlithgo Bridge and failed to remedy the situation within a reasonable time.

In support of his claim claimant relies most heavily upon his own testimony that following his accident he observed the headlights of a State Trooper car reflected on the bridge surface and "there was no sign of any salt or sand . . . [i]t looked just like a piece of glass". Claimant also argues that there is no definitive proof that salt and sand were applied to the surface of the Linlithgo Bridge prior to claimant's accident despite the receipt of a 3:30 a.m. report from the State Police relating freezing of a bridge surface in Valatie, New York some fifteen miles north of the subject bridge and a 4:50 a.m. report of an accident near the Rip Van Winkle Bridge located three to four miles away from the site of claimant's accident.

The Court finds that claimant failed to meet his burden of proving by a fair preponderance of the credible evidence that the State or its contractor breached its duty to maintain the subject highway in a reasonably safe condition. First, the Court notes that claimant's observation of the allegedly icy bridge surface followed an accident in which his vehicle fishtailed several times, exited the bridge and crashed against an embankment. Claimant was injured when he was thrown from the vehicle which came to rest only several feet away. The reliability of claimant's observations must be viewed against this backdrop. More importantly, the proof presented by the defendant included testimonial and documentary evidence which in the opinion of the Court established that the State took reasonable measures to address prevailing adverse weather and road conditions and that the Linlithgo Bridge was treated with a mixture of sand and salt between 4:00 a.m. and 6:00 a.m. on November 26, 2000.

The proof supports a finding that assistant general foreman Alan Berninger was contacted by a night watchman at 2:30 a.m. and thereafter began patrolling State roads within Columbia County. At 2:55 a.m. Mr. Berninger directed that all foremen be called out to check the conditions of roads within their respective sectors. John Blaauw, the foreman responsible for the area which includes Route 9G and the Linlithgo Bridge patrolled Routes 9 and 9G from 3:00 a.m. to 4:00 a.m. and again from 6:00 a.m. to 7:00 a.m. At 3:22 a.m. Leonard Weed and Michael Steeneck were instructed to report to work.

Although Mr. Weed could not specifically recall spreading a sand/salt mixture on the Linlithgo Bridge the morning of claimant's accident he testified and the proof establishes that he operated truck #34 while spot sanding Route 9G for two hours between 4:00 a.m. and 6:00 a.m. Despite some conflicting entries on Exhibit L, the snow and ice control and removal form indicates under the heading "Material: Kind" that truck #34 was loaded with a sand/salt ("04/10") mixture. Although the form also references "04" for C.Y. Abrasives under the category "MATERIALS USED" the Court resolves the conflicting information contained in Exhibit L in favor of finding the use of a sand/salt mixture consistent with the testimony that sand used by the Columbia County Department of Public Works for purposes of snow and ice control is a mixture of both sand and 20-25% salt to prevent the sand from freezing. Furthermore, despite the reference to stockpiling abrasives and chemicals (code "69") under the category "Kind of Work" on Exhibit L, the preponderance of the evidence leads the Court to find that Mr. Weed and Mr. Steeneck were actually engaged in snow and ice control and removal operations on the morning of November 26, 2000. This conclusion is consistent with the testimony of Leonard Weed concerning his activities that morning and of Mr. Blaauw who testified that Messrs. Weed and Steeneck were not called into work at 4:00 a.m. to stockpile abrasives. Exhibit L reflects the route patrolled by Weed and Steeneck as well as the time spent on state and county roads, respectively. The inclusion of this information on Exhibit L would, of course, be both unnecessary and inappropriate if Mr. Weed and Mr. Steeneck were engaged in stockpiling abrasives and chemicals rather than patrolling their assigned sector.

Even assuming the defendant learned that another Columbia County bridge surface was freezing as early as 3:30 a.m. and that an accident near the Rip Van Winkle Bridge had occurred at 4:50 a.m. that morning, the timely calling out of the county's road supervisors and foremen followed by the subsequent activation of road crews to distribute a sand/salt mixture on Route 9G as early as 4:00 a.m. were reasonable measures given the prevailing circumstances and conditions.

The claim is dismissed. Any and all motions not previously decided are hereby denied.

The Clerk shall enter judgement in accord with this decision.


June 24, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims