New York State Court of Claims

New York State Court of Claims

BINDELGLASS v. THE STATE OF NEW YORK, #2004-015-605, Claim No. 105455


Synopsis


Infant death claim dismissed after trial for claimant's failure to prove that State's action in maintaining roadway under blowing snow conditions was inadequate or in violation of applicable regulations or standards.

Case Information

UID:
2004-015-605
Claimant(s):
SHERRIL BINDELGLASS, as a parent and natural guardian of ADAM BINDELGLASS, an Infant; as Administratrix of the Estate of Amy Bindelglass, deceased Infant; and individually
Claimant short name:
BINDELGLASS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105455
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Sonneborn Law OfficesBy: Patrick J. O'Sullivan, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen Resnick Arnold, Esquire and Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 19, 2005
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
A bifurcated trial on the issue of the defendant's liability was held in Albany on July 19 - 22, 2004. This decision is addressed to that issue exclusively.

The claim arose from a two-vehicle accident which occurred at approximately 5:30 p.m. on January 14, 2000 on State Route 9 near its intersection with Fonda Road in the Town of Colonie, Albany County. At that time and place claimant's two infant children were passengers in a 1997 Ford Taurus operated by Rebecca Hoefer, an 18-year-old friend of the Bindelglass family. Ms. Hoefer was proceeding south on Route 9 when she encountered snow on the roadway and icy surface conditions. She lost control of her vehicle which crossed a double yellow line marking the center of the four-lane highway and collided with a northbound vehicle operated by Laura Berg. As a result of the accident two-year-old Amy Bindelglass was killed and her five-year-old brother Adam was seriously injured. The claim seeks damages for Adam's personal injuries and the wrongful death of Amy and asserts a derivative action by Sherril Bindelglass individually.

The first witness called by claimant w as William Hammond who, in relevant part, testified that he was traveling south on Route 9 on the evening of January 14, 2000. After explaining the route he and his family traveled that evening Mr. Hammond stated that he observed a Ford Taurus being operated by a young female. He described the happening of the accident as follows:
Well, again we were heading south. The roads were relatively clear. We had gotten closer to Fonda[1] Road and the road conditions had changed a little bit and I always have - for some reason I always have the lights in sight. I don't know why. I remember watching the taillights of the vehicle. I was having a conversation with my wife and again began to focus on that particular car. It appeared - the taillights and again I can only go by the taillights, drifted west and then came immediately back to the right and that's when the vehicle crossed into the northbound lane and then (inaudible).


Mr. Hammond testified that he observed a "considerable amount of snow and ice" on the surface of Route 9 at the scene of the accident. The witness offered non-specific, anecdotal testimony as to his prior observations of blowing snow in and around the intersection of Route 9 and Fonda Road.

On cross-examination Mr. Hammond testified that on the evening in question Ms. Hoefer's vehicle was traveling faster than the speed of his vehicle which he estimated at "upwards of forty-five." He could not recall if Ms. Hoefer's vehicle changed lanes after stopping at a traffic light at the Crescent Bridge but confirmed that he observed her passing other vehicles. Just prior to the accident the witness observed the Hoefer vehicle drift into the median and then fishtail to the right.

The witness further testified that snow drifts in a generally southeasterly direction in the area of Route 9 where the accident occurred. He observed no other accidents during the 30-45 minute period he remained at the accident scene. He recalled that when he observed Ms. Hoefer's vehicle drift into the median it did so from the passing lane and later fishtailed back into the passing lane.

On redirect examination the witness stated that on the evening in question the roadway was snow-covered in the area where the accident occurred and he could not see the pavement markings. He was asked to explain his use of the word drifting in reference to the Hoefer vehicle and explained, "[t]he taillights drifted left and then came around to a counterclockwise motion and then crossed the median . . . into the northbound lanes." The witness acknowledged that following the accident the traffic which passed the scene proceeded at a "medium speed" which was slower than the speed he was traveling prior to the accident.

On recross examination Mr. Hammond stated in response to counsel's inquiry that more snow had accumulated in the median between the northbound and southbound lanes of Route 9 than in the driving lanes. He testified that he observed the Hoefer vehicle drift into the median. According to the witness he saw the vehicle's brake lights come on "a second right after the accident." He then corrected his testimony to say that the brake lights were activated while the vehicle was fishtailing. He further testified that he did not drift out of his lane and did not observe any cars other than the Taurus drift out of the lane of travel.

The next witness was Rebecca Hoefer. She testified that she was eighteen years old on the date of the accident, had obtained her driver's license approximately six months previously and could not recall having driven in the area of the accident during winter driving conditions prior to January 14, 2000. She retraced her path that evening from her home in Waterford to the accident scene and described the evening as dark and road conditions as clear and dry until she reached the area of the accident. She testified that after crossing the Crescent Bridge on Route 9 she observed a 55 mph speed limit sign and increased her speed to between 50-55 mph. Road conditions there were dry and clear. The witness recalled passing a car while going uphill after the bridge. Thereafter she remained in the passing lane, negotiated a curve to the right and saw the traffic light at the intersection of Route 9 and Fonda Road. Road conditions remained dry and clear. No street lights were observed in the area which was lit solely by automobile headlights and a traffic light. As one traveled south on Route 9 the accident scene was bordered by a farm on the right and a grassy area on the left with buildings further back.

After reaching the area near the Oreshan's Farm sign depicted in claimant's Exhibit 1 and observing that the traffic light was green she felt "the car start to slip." She did not notice snow on the southbound lanes of Route 9 until the car started to slip. She tapped the brakes and tried to continue but "no matter what [she] tried it wouldn't." She next recalled seeing a guardrail on the northerly side of Route 9, being jolted around inside the car and thinking "I hope the kids are okay." The car came to rest, she turned around to see the kids, saw rescue workers and the traffic light. She testified that both lanes were covered with snow and she had not observed any warning signs at any time from Churchill Road to the accident scene.

On cross-examination Ms. Hoefer testified that she considers herself part of the Bindelglass family having traveled to Ohio in the year 2000 to spend Thanksgiving with them. The witness could not recall whether she was driving with a probationary license on the evening in question. She admitted that she received little or no instruction regarding the operation of a motor vehicle in snowy conditions as part of the driver education classes she attended at Shenendehowa High School. She could not recall how many times she had driven in snowy conditions prior to the accident but did remember driving to work in snow on the day prior to the accident.

She offered testimony regarding her observation of road conditions and the passing of a motor vehicle prior to the accident which differed slightly from her testimony at an examination before trial. Defense counsel pointed out the inconsistencies by reading questions and answers from the transcript.

On redirect examination the witness testified that she recalled passing only one vehicle prior to the accident. She admitted no recollection of the mechanics of the accident other than seeing snow, applying her brakes and sliding.

Claimant's third witness was David A. LePage, an employee of the New York State Department of Transportation Bridge Maintenance Unit, currently employed as a Bridge Repair Supervisor. Mr. LePage related that each year from December 1 until approximately March 15 he and other employees of the bridge shop transfer to the highway shop to perform snow and ice control duties. In January 2000 the witness was assigned to the highway shop and worked the B shift from 1:00 p.m. - 9:30 p.m. or, with overtime, from 1:00 p.m. - 1:00 a.m. His assigned "beat" for snow and ice control was in an area known to DOT as the C-5 beat which included Route 9 from Route 155 in Latham to the Crescent Bridge. The witness also related the eastern and western termini of the C-5 beat but these are not relevant to the accident under consideration. The C-5 beat includes a total of 78 lane miles.

The witness reviewed his operator's daily report (Exhibit 4) for January 14, 2000 and confirmed that the report indicates that he was involved in "spot treatment" of problem areas within his beat and that he spread 3.24 tons of salt over 35 miles of road using a large dump truck and a hopper spreader.

The witness testified that he is familiar with the area of Route 9 at its intersection with Fonda Road which he describes as an area of concern in that snow "would blow out of the west and across the field and depending on the moisture content and the wind gusts it would float across the roadway." The witness described the difference between drifting and blowing snow and characterized the area in question as subject to blowing snow which would taper across the road from a high point on the western edge of Route 9. The witness was questioned about an earlier statement at an examination before trial in which he stated that there is always drifting snow at the intersection of Route 9 and Fonda Road after a snowstorm. Mr. LePage recalled making the statement and testified that when he encountered drifting or blowing snow his practice was to plow the roadway and apply salt.

The witness acknowledged that he knew there was drifting or blowing snow on Route 9 near the scene of the subject accident having "done it for so many years and being an open field, I remember it from year to year." He identified various products used as part of DOT's winter operations including salt and calcium chloride, the latter being used when the temperature is between zero and twenty degrees. At the time of this accident DOT trucks were not equipped with thermometers to measure pavement or air temperature. On the day of the subject accident the witness began work at 1:00 p.m. and passed the intersection of Route 9 and Fonda Road more than once that day in continually patrolling his beat. The witness had no specific recollection of plowing the area of the accident that afternoon or evening but testified that his usual practice was to plow and salt areas where he encountered blowing snow.

The witness first became aware of the accident as he proceeded northerly on Route 9 following his dinner break sometime between 6:00-6:30 p.m. when he encountered traffic which was backed up to a point approximately 1,000 feet south of the intersection of Route 9 and Fonda Road. Road conditions south of the accident scene were clear while the accident scene itself had "a little bit of snow on it." As he passed through the intersection Mr. LePage dispensed salt on the road to increase traction at the accident scene.

The witness reviewed Exhibit 30, a photograph which he identified as depicting Route 9 near its intersection with Fonda Road. He related that during his approximately 14 years of snow and ice control on this portion of Route 9 he observed snow blowing across the roadway from west to east. When snow accumulated on the highway he would plow the snow and apply salt.

Exhibits 3 and 4 were received without objection and Exhibit 30 was received for the limited purpose of demonstrating the configuration of Route 9 over defense counsel's objection.

On cross-examination Mr. LePage explained in detail the State's procedure for tandem plowing of what he described as the upper portion of the C-5 beat. He then explained spot treatment which he was performing on the afternoon of January 14, 2000 relating that on that date he patrolled the Route 9 and 9R portion of the C-5 beat while Mr. Bartlett patrolled Route 2 and Route 7. On the day after a storm it was his usual routine to go out and check all the trouble spots including "on Route 9 near Oreshan's Farm before and after. They're open fields." He stated that it was rare that he would plow an area and not also apply salt.

After reviewing Exhibit 4 the witness testified that on January 14, 2000 he traveled a total of 120 miles. He related that it was not unusual to encounter blowing snow conditions on Route 9 near Oreshan's Farm the day after a snowstorm and that he would patrol the area continuously during his shift returning multiple times until the wind abated and the blowing snow stopped accumulating on the roadway. Although the witness acknowledged that the Colonie Police Department sometimes reports trouble areas to the Department of Transportation he did not recall any phone calls or messages from that agency on January 14, 2000. Mr. LePage stated that to do one cycle of the Route 9 and Route 9R portion of the C-5 beat would take "anywhere from a half-hour to an hour to do both."

On redirect examination the witness again stated that he did not recall receiving a phone call from the DOT Route 155 shop relaying information from the Colonie Police concerning road conditions on the afternoon of January 14, 2000. He reiterated his earlier testimony that he treated drifting and blowing snow by plowing the snow and applying salt to the road surface.

Mr. LePage testified on recross examination that when plowing and salting his vehicle travels at approximately 15-30 miles an hour depending on traffic. He did not refill his salt hopper on January 14, 2000 and continuously patrolled Routes 9 and 9R until his shift was done except for a dinner break, coffee or bathroom break.

James Hines, an employee of the New York State Department of Transportation was called as the next witness. Mr. Hines identified himself as a Bridge Repair Supervisor I and stated that during the winter months he works out of the DOT Latham shop, having done so for approximately fifteen years. In general his duties during the winter season included supervising crews performing pothole repairs and other maintenance activities although he also operated a plow truck performing snow and ice control when needed. The witness identified Exhibit 6 as his operator's daily report for January 14, 2000. Exhibit 6 was received in evidence without objection. Although the witness also completed a supervisor's daily report (Exhibit 7) on January 14, 2000 he explained that the supervisor's report was only a record keeping document and confirmed that he operated a truck performing snow and ice control duties on that date.

On January 14, 2000 the witness worked the A shift from 1:00 a.m. to 1:00 p.m. as indicated on the supervisor's daily report (Exhibit 7). His operator's daily report (Exhibit 6) indicates he applied 6 tons of salt that day. Although he was assigned the C-5 beat he could not specifically recall whether he passed through the intersection of Route 9 and Fonda Road. His general foreman at that time was Mark LePere, a Highway Maintenance Supervisor. The witness acknowledged that his supervisor's report indicated that K. Sturtevant was a crew member on the A shift and worked the C-5 beat. Mr. Sturtevant, who is no longer employed by DOT, used six tons of salt and 140 gallons of calcium chloride during his shift according to the report.

The witness explained the use of calcium chloride as dependent upon ground or pavement temperature. He testified that Mark LePere had a temperature gun which he used to determine road temperatures. Upon further questioning the witness admitted that he did not know when in relation to the subject accident the temperature gun was purchased or used. He was not sure whether such a device was available to or used by B shift personnel in January, 2000.

The witness testified that in his ten years of experience patrolling the C-5 beat the area of Route 9 between Oreshan's Farm Road and Fonda Road was not subject to blowing snow although blowing snow conditions were sometimes encountered from Oreshan's Farm north to the county landfill.

On cross-examination the witness indicated that he was assigned the C-5 beat which includes the intersection of Route 9 and Fonda Road. He would be informed of problem areas by his supervisor and would plow and salt areas where he encountered blowing snow, including Route 9 near Oreshan's Farm.

On redirect examination the witness admitted that he had no specific recollection of January 14, 2000. He was thereafter excused.

The parties agreed to the admission in evidence of the examination before trial of Reid Sholtes (Exhibit 45) reserving the State's right to object to any portion of the transcript in its post-trial brief. The parties further stipulated to the receipt in evidence of an operator's daily report (Keith Sturtevant) marked as Exhibit 16 and a supervisor's daily report (James Hines) marked as Exhibit 7. Also received pursuant to stipulation was a copy of the Town of Colonie's Police Accident Investigation file (Exhibit 46).

Richard Wright was called as the next witness. He identified himself as a thirteen-year employee of DOT currently employed as a Highway Maintenance Supervisor II (HMS II). In January 2000 the witness was employed as a Highway Maintenance Supervisor I in the Albany County Latham subresidency. The witness testified that highway maintenance supervisors should be familiar with the State highway maintenance guidelines and attend a snow and ice university where the maintenance guidelines are discussed.

In January 2000 the witness was assigned to the afternoon or B shift. His supervisor was Highway Maintenance Supervisor II David LaManna. As a HMS I Mr. Wright oversaw the work of Mr. LePage and Mr. Bartlett only when they were assigned to him. He explained the four beat system employed by the Latham subresidency in order to explain the three beat system as follows: DOT had two trucks working above Route 155 and two trucks working below Route 155 thus establishing a four beat pattern. If one of the trucks was being repaired and out of service or if the situation did not warrant having all four trucks on the road they might switch to a three beat pattern in which three trucks rather than four covered snow and ice control duty on the roads within the Latham shop's area of responsibility. While the C-5 and C-6 beats are explained in written form the witness was not aware of a written description of the three beat system. He could not recall what if any instructions were given to operators on the C-5 beat who were assigned to the middle portion of the three beat system. Mr. Wright acknowledged that there were areas of Route 9 which were more susceptible to blowing snow than others, including the area north of its intersection with Fonda Road near Oreshan's Farm. He described the area shown in Exhibit 30 as Route 9 "just north of Oreshan's Farm" and testified that this particular section of Route 9 is not typically an area where DOT crews encountered blowing snow.

When asked how DOT crews address areas where wind-blown snow has accumulated on a highway Mr. Wright stated: "typically an operator is sent to the area with a large plow truck and plows the lane and plows snow off the road and typically treats it with a salt application." The witness testified that a Highway Maintenance Supervisor I would patrol the highways being plowed by his assigned crew during a storm. Supervisors would also patrol the roadways as well as perform various other tasks during what he described as "clean-up" activities following a storm.

Mr. Wright in response to counsel's question indicated that abrasives such as sand are never used for blowing snow conditions. The usual procedure used is to plow the snow from the highway and apply salt. Calcium Chloride is also used but only when pavement temperatures are between 10° and 20°F.

The witness testified that in January, 2000 supervisors at the DOT Latham subresidency monitored weather conditions through local TV and radio reports and received accuweather reports via fax transmission. He was unfamiliar with the provisions of the maintenance guidelines relating to snow fences which, according to the witness, were used in Albany County only on bridge overpasses to prevent snow from falling onto highway travel lanes below. Mr. Wright was unaware of any road temperature (pavement) sensors on Route 9 in the area of Fonda Road. He was aware, however, that infrared thermometers, which he described as a device used to determine pavement temperature, were available at the DOT Latham subresidency although he never used one and did not know if Mr. Lamont ever used one prior to January 14, 2000.

Mr. Wright identified Exhibit 10, which was received in evidence without objection, as a supervisor's daily report he completed on January 14, 2000. Thereafter the witness explained various entries on the document including his use of a DOT pickup truck and numerous job functions performed by himself and crew members during his assigned shift and overtime period. He subsequently identified Exhibit 9 as a daily report form for January 13, 2000. That exhibit was also received in evidence without objection. Exhibit 9 shows that there was a snowstorm on January 13 and that the witness operated a front-end loader for twelve hours on that day.

The witness was able to recall the events of January 14, 2000 after reviewing his supervisor's daily report. He learned of the accident involving the claimant from Mr. LePage by truck-to-truck radio between 5:30 - 6:00 p.m. When asked, the witness stated unequivocally that the Colonie Police Department did not contact the DOT shop that day. He had no recollection of having any conversation with the A Shift HMS II that day nor of pavement temperatures being taken. He gave no specific instructions to his crew that afternoon since "most if not all of them were fairly seasoned veterans and knew what their job assignments were and knew what the responsibilities were and knew what had to be done."

The witness acknowledged that based upon his report for January 14, 2000 he did not begin his field management patrol until 7:30 p.m. He admitted no independent recollection of whether calcium chloride was used that day or whether David LaManna patrolled the intersection of Route 9 and Fonda Road.

On cross-examination the witness testified that "[f]or the most part, I was responsible for the secondary roads, what we refer to as secondary roads which would be Route 7, Route 9, excuse me 155." He recalled that on January 14, 2000 David LePage worked as an equipment operator plowing blowing and drifting snow on Route 9 for most of January 14, 2000. The witness recalled that Mr. LePage had returned to the Latham shop for dinner that afternoon around 5:00 p.m. and thereafter returned to his patrol area via Route 155 and proceeded north on Route 9. Mr. Wright received a call from LePage advising the shop that he was stopped in traffic at a situation involving emergency response vehicles. LePage called later to confirm that the traffic tie-up was attributable to a traffic accident.

The witness denied having received any phone calls from the Colonie Police Department on January 14, 2000 regarding snow or ice on the roads and testified that DOT had what he described as a good working relationship with the Colonie Police.

With reference to his testimony on direct examination regarding areas of Route 9 known to be subject to blowing and/or drifting snow the witness stated that it was "when you go past Oreshan's Farm heading north on Route 9 there is either three or four private residential homes and then there was the Cinnamon Tree Restaurant and then there was a larger open field that belonged to Oreshan's Farm and that large open field was the problem that we had the majority of the time." He confirmed that the residences and the Cinnamon Tree Restaurant were located north of Oreshan's Farm on the westerly side of Route 9.

On redirect examination the witness testified that on January 14, 2000 he loaded trucks for six hours but explained that "it's not specifically for six hours in a row." He further admitted that although he did not receive any phone calls regarding road conditions at Route 9 and Fonda Road on January 14, 2000 he could not testify that no calls were made.

On recross examination the witness testified that he was not informed by anyone that the Colonie Police Department had called that day. The witness was then excused.

David LaManna was called as claimant's next witness and in substance testified that he was employed by DOT as a Highway Maintenance Supervisor II in January 2000 and that he first became employed by the Department in November 1981. In the summer he works in the Menands subresidency and in the winter he performs snow and ice control as well as maintenance duties out of the Latham subresidency. He testified that he is familiar with DOT snow and ice control maintenance guidelines and the Albany County Snow & Ice Control Manual. His immediate supervisors in January 2000 were Rob Sullivan and Mr. Sullivan's assistant Bill Hadersbeck.

The witness explained that "there's a C-5 and C-6 beat description when we have four trucks for snow and ice. If we lose one of those trucks, if it breaks down and it's going to be down for a while, then what we have is a three beat, is what they do." He related that DOT's main office in Albany County is located in Voorheesville and that the Latham office is a subresidency. The witness identified Exhibit 13 as a snow and ice report he completed for January 14, 2000. Exhibit 13 was received in evidence and Mr. LaManna explained that the form indicates that for the B shift which began at 1 p.m. on January 14, 2000 roads were snow covered as a result of blowing snow.

Upon questioning by counsel the witness testified that certain areas of Route 9 were more susceptible than others to blowing and drifting snow and that the area of State Route 9 near Oreshan's Farm was one of those areas. The witness confirmed that Exhibit 30 depicts an area of Route 9 near Oreshan's Farm which would sometimes be subject to blowing snow. The witness testified that wind-blown snow on roadways would be addressed by plowing the snow from the road surface and applying salt. He explained that operators when patrolling their beat "go around and around and around continually removing wind-blown snow from the roadway". LaManna testified that calcium chloride is generally used when the temperature falls below twenty degrees Fahrenheit.

The witness further testified that salt is not used when snow is blowing across the road but the road is still dry with no sticking or snow accumulation. When the snow begins to accumulate on the road surface salt is applied either in the discretion of the operator or at the direction of the patrolling supervisor.

He acknowledged that in January 2000 plow trucks were not equipped with devices to measure pavement temperatures although Mr. LaManna's truck was equipped with a pavement sensor and DOT had "certain areas they could call up to get pavement temperatures." The witness did not recall where the nearest pavement sensors, part of DOT's Road Weather Information System (RWIS), were located in reference to the Route 9/Fonda Road intersection in January 2000. He testified, however, that RWIS was experimental in January 2000 and only worked part of the time. He could not recall if the system was or was not working on January 14, 2000.

According to the witness pavement temperatures are monitored to determine when to apply salt to road surfaces. When asked whether salt would be used if there were blowing snow and a temperature of twenty degrees the witness responded, "[w]e would still plow it and put some salt down. The salt is not going to be as effective. It's going to take a lot longer to work". He testified that it is rare for pavement temperatures to be so low that salt would not be used.

The witness identified Exhibit 12 as a storm assignment sheet for January 14, 2000 which he prepared at the beginning of his shift. The initials in the left hand column, "DL" for the witness and "RW" for Richard Wright, designate the supervisor to whom the operators would submit their reports as well as the beats assigned individual DOT employees on the date in question. Mr. LaManna testified that he overheard a radio transmission from David LePage to Richard Wright indicating that Mr. LePage had passed an accident scene and salted the area as he passed. The witness denied having been notified by anyone including the Colonie Police Department regarding a fatal accident.

With reference to beat assignments the witness testified that he generally assigned operators to a specific beat and that Mr. LePage was usually assigned to the upper beat. When asked why he replied "[b]ecause we assign the people to the beats that they know the best. I mean he always did - he liked the upper beat and that was one of his - we would try - we try to keep the same people on the same beat."

Questioned about weather reports the witness indicated that reports might be faxed to the shop from Voorheesville or received from AccuWeather but that such reports didn't provide temperatures or wind speeds. The witness related that in his experience the wind tended to blow snow from west to east across Route 9 near the accident scene.

The witness testified that he never instructed drivers not to salt drifting snow when temperatures were below twenty degrees. He stated that he did not patrol the area of Route 9 and Fonda Road on the day of the accident and that he did not know whether Rich Wright patrolled in that area that day. He did not believe that Mr. Wright's truck was equipped with a device to measure pavement temperature in January 2000.

On cross-examination the witness acknowledged that the Latham shop is equipped with a radar system that relates a storm's track, a television set to monitor local TV stations and access to the internet. He described prevailing wind directions in the subject area of Route 9 as primarily from west to east.

The witness indicated that when patrolling DOT supervisors sometimes see potential problem areas that an operator may have missed. Supervisors therefore patrol the roadways within their area of responsibility even when operators are on the road patrolling their assigned beats.

Redirect examination was insignificant. Upon the conclusion of recross examination the witness was excused.

On the morning of the third day of trial claimant's counsel advised the Court that the claimant was withdrawing its claim for failure to warn with regard to signage on Route 9 and the parties stipulated to the receipt in evidence of transcripts of the examinations before trial of Michael Bartlett (Exhibit 47) and Joseph Doherty (Exhibit 48) as well as Exhibits 14 and 15.

Claimant's next witness was Robert J. Selover who testified that he has worked for the Department of Transportation for thirty-one years and is currently employed as Associate Director of the DOT Transportation Maintenance Division. In January, 2000 Mr. Selover served as the Resident Engineer for Albany County with an office in Voorheesville, New York. The witness testified that as Albany County Resident Engineer, a position he held for thirteen years, his duties included oversight of maintenance activities on the approximately 850 lane miles of State roads in Albany County.

Although not part of his regular responsibilities as Resident Engineer, Mr. Selover also prepared a snow and ice operations manual which he described as "a reference document that would have various pieces of information pertinent to our winter snow and ice operations in the County". The manual was distributed to the four HMS II general foremen within the residency and both resident engineers. File copies were also maintained and updates were prepared and distributed by Mr. Selover on an annual basis. The witness identified Exhibit 25 as the Albany County Snow & Ice Operations Manual in effect during the 2000-2001 winter season. Mr. Selover testified that the January 14, 2000 accident which is at issue herein occurred during the prior 1999-2000 winter season. The parties agreed to the receipt in evidence of specific portions of Exhibit 25, namely the introduction and appendices A, B, D, G and K. Appendix J which Mr. Selover identified as a manual concerning effective anti-icing practices prepared by the Federal Highway Administration was not received.

The witness acknowledged that in January 2000 certain areas of State Route 9 were more susceptible to blowing or drifting snow than other areas. In particular, he testified that under certain conditions following a snowstorm the area of Route 9 between Fonda Road and the Colonie landfill would experience blowing snow. The witness identified Exhibit 18 as containing three documents related to a DOT research project into potential snow fence locations in Albany County and other areas within the State. Included within Exhibit 18 is an October 7, 1997 memorandum from J. F. Doherty to the regional maintenance engineers in DOT Regions 1-10. The memorandum relates that the department was then working with the Brookhaven National Laboratories and SUNY - Buffalo "to develop an 'expert system' software package for passive snow control" and requests that each residency provide information "regarding locations that have significant, recurring blowing snow problem areas". In response to the Doherty memorandum the witness prepared a list of five locations within Albany County where wind-blown snow was encountered on a recurrent basis including certain segments of Routes 9W, 85A, 397, 158 and a .3-mile stretch of Route 9 between mile markers 2088 and 2091. Mr. Selover appended the list of potential passive snow-control locations in Albany County to a memorandum dated October 27, 1997 from the witness to J.J. Di Fabio, DOT Region One Transportation Maintenance Engineer, which reads as follows:

Attached is the completed form you requested. However, I am not interested in any kind of snow fence in any of the locations in my county. I am well aware of the work done in Region 5. The five locations (only on State plowed highways) do not cause us any major problem, they are just places that may drift when everything else in the County is fine. An expenditure of funds to build elaborate snow fences for the occasional problem is just not prudent.

I will have no final version in the Spring of 1998. These are my locations.

When asked the procedure for remediating drifting snow in Albany County in January of 2000 the witness replied that Albany County did not have locations where snow drifting was a problem although certain areas were subject to blowing snow. According to Mr. Selover during periods of high winds DOT supervisors would patrol the highways inspecting for the accumulation of wind-blown snow on the roadways. When such a problem area was identified the supervisors would assign an operator who would continually cycle through the area plowing off the snow and applying chemicals as needed. As described by the witness the procedure was to "send out trucks and they plow the snow and they apply material to create the brine on the pavements so that the snow doesn't bond to the pavement and create hard pack". He testified that New York is like most other states which rely primarily upon sodium chloride or rock salt to melt snow and ice on roadways. In January 2000 the Albany County residency also used liquid calcium chloride as a freezing point depressant in addition to rock salt. Abrasives such as sand were not used in Albany County at that time. According to the witness salt was generally applied to roads when road temperatures were below 32°F. Salt would not be applied if the temperature was over 32°F or during a storm which begins when pavement temperatures are between 10° and 15° and a dry type of snow is falling. Under these circumstances snow would generally not stick to the pavement and so the pavement was best left untreated. Calcium chloride was used primarily as temperatures dropped or to melt hard pack which may have formed on the road surface.

Mr. Selover described the Road Weather Information System (RWIS) maintained by the Department of Transportation as consisting of various locations where sensors embedded in the State highways provide information concerning road conditions. Information such as pavement temperature and precipitation could be accessed by both the Albany County residency Voorheesville and Latham offices via computer. In Albany County two sites were monitored in this fashion, one at the interchange of I-90 and Route 787 and the other at the intersection of I-90 and I-87. Weather information was also available to the Latham office through AccuWeather Reports, a Doppler Radar System, television and the internet. In addition, in January 2000 the HMS II within Albany County was assigned a hand-held device which could be used to determine pavement temperature for purposes of snow and ice control. The same device was used during summer months to determine the temperature of asphalt used in road construction projects. Plow trucks in Albany County were not equipped with pavement temperature sensors in January 2000.

The witness was next asked whether there are circumstances where a freezing point depressant such as rock salt or calcium chloride should not be used. He responded that there are occasions such as when pavement temperatures are between 10° and 15° where the application of freezing point depressants may not be appropriate but that decision whether or not to use depressants is subject to a wide array of variables. In particular, Mr. Selover commented:
Once you commence a treatment, you got to basically see it through to the end. As I said earlier, we can't stop putting down chemicals if you've already started and now got a brine solution, you got a wet pavement because if you stop, that's going to form into ice. There are a lot of factors that go into it.

The same is true when dealing with wind-blown snow in areas which were treated with chemicals during conditions which called for their application. Once treatment of the area with freezing point depressants is begun it must continue, even if conditions change, or the brine solution will freeze and create ice on the surface of the road. The witness also described the training received by snowplow operators and supervisors. He testified that a copy of the Department of Transportation Highway Maintenance Guidelines (Exhibit 25, Appendix A) was available in every shop and accessible to all employees and that equipment operators received an operator's manual developed by the Department.

The witness identified Exhibit 19 as containing various documents related to a June 23, 1999 memorandum from J. F. Doherty requesting information regarding wind directions at the areas previously identified as subject to recurring problems with blowing snow as part of the Brookhaven National Laboratories/SUNY-Buffalo passive snow control project. The first page of Exhibit 19 is Mr. Selover's response memorandum dated July 7, 1999 which states:
Main Office is right we are not meteorologists. I have provided a guesstimate. If this is used seriously for modeling, we are in big trouble. I have been to these sites when it drifts. However, you cannot tell if the wind is from the W, SW, SSW, NW or NNW. It is not something you pay much attention.

As far as snow fence in any of these locations, we do not own enough land to build the fences properly. And with some of the land in prime locations for development, I do not think we would be able to buy or get an easement.

Good Luck.

On cross-examination Mr. Selover testified that he began as Resident Engineer in the Albany County residency on January 3, 1990. Each year prior to the beginning of snow season he would meet with snowplow operators and supervisors to review procedures and training schedules as well as to prepare equipment for the upcoming season. Similar meetings would take place after major snow events. He described the Voorheesville shop as attending to approximately 290 lane miles while the Latham shop handled somewhat over 300 lane miles of State roadways. Mr. Selover knew David LePage well in January 2000 and described him as a very good employee. He testified that it was preferable to have the same person doing the same beat year after year. In this way the operator became knowledgeable regarding his beat and conditions and areas which were unique or required particular attention.

The witness identified Exhibit C as a series of photographs taken by him on January 19, 2000 showing Route 9 at or near the intersection of Fonda Road. Mr. Selover testified that the mile marker located nearest the intersection of Route 9 and Fonda Road was mile marker 2085.

The witness testified that a snow fence which is improperly placed could actually result in the accumulation of more snow on a highway than were there no fence at all. He considered the use of snow fencing on Route 9 between Fonda Road and the Colonie landfill but rejected the use of fencing in favor of what he considered a more effective treatment of having plow trucks cycle through the area, plow the snow and apply salt as appropriate. The witness testified that no complaints were ever received from any source regarding slippery conditions or "a blow-over situation" at or near the intersection of Fonda Road and Route 9. The witness acknowledged that temperature and weather conditions monitored by the nearest RWIS location at the intersection of Routes I-87 and I-90 could vary significantly from conditions and temperatures at the intersection of Route 9 and Fonda Road.

Referring to Exhibit 25 the witness testified that a copy of the Snow & Ice Operations Manual was kept at the Latham shop in a three-ring binder. He agreed with counsel that an operator has discretion regarding the use of liquid calcium chloride and that an operator is trained to radio his or her supervisor if he or she encounters a situation which a one-person plow is unable to adequately address. The witness again explained as he had on direct that the brine solution created following the use of chemicals such as rock salt can become diluted over time and may, as a result, begin to freeze on the road surface. That situation is avoided by continually applying chemicals until the roadway is dry and clear. In this regard, defense counsel inquired regarding instances when the application of salt can be dangerous. The following colloquy took place:
Q. And in a blow-over situation where you have accumulation of snow, would salt ever be dangerous in that situation?

A. Yea, it would become dangerous if you had salt and you stopped using it and then you allowed the, you know, the road to freeze.

Q. So if there's an initial application of salt, and then the temperature was at the freezing point and you didn't apply salt again, then it would be dangerous?

A. Yea, it could refreeze.

Q. And we've heard testimony that Mr. LePage was cycling his route and he was plowing and apply [sic] sodium chloride and if he continued to do that every thirty to forty-five minutes which is the time it took him to do his cycle, would you expect a freeze to occur at the location of the blow-over at Fonda Road and Route 9 on the evening of the 14th of January?

A. No, if he was cycling through on that time frame and he was looking at every time he went by, he looked at what the conditions were and putting down salt and various application rates, you know, as long as he was putting it down and it was continuing to stay wet, then, you know, that's what he should do.

On redirect examination the witness related that although he used the term "drift" in his October 27, 1997 memorandum regarding potential snow fence locations, there were in fact no locations within Albany County where roads were subject to drifting snow. Instead he testified that the five locations listed in Exhibit 18 were subject to blowing snow which would be treated by plowing and the application of freezing point depressants. This included the area immediately north of Fonda Road on Route 9 near Oreshan's Farm.

The witness again explained the need to continue the use of chemicals once the process of applying the materials had begun. He identified Exhibit 7 as a Supervisor's Daily Report prepared by Jim Hines on January 14, 2000. Mr. Hines was the Supervisor on the A shift and worked from 1:00 o'clock in the morning to 1:00 o'clock in the afternoon. His report lists weather conditions as frigid and sunny. The witness next reviewed Exhibit 13 which he described as a status report of snow and ice activities prepared by Mr. LaManna for the B shift at the Latham shop. That report covered employees who worked from one in the afternoon on January 14 to one in the morning on January 15, 2000. Mr. LaManna described weather conditions on his report as "blowing snow" and described the pavement as both "dry" and "snow covered". The report did not indicate that the roads were wet or had significant hard pack.

The witness described Exhibit 18 as reflecting data collected as part of a DOT research project on the use of snow fences. When asked whether he had conducted a study to determine that snow fences were not required or necessary within Albany County the witness stated "I looked at the locations and I did not believe a snow fence was needed because we have an operational plan that calls for as the snow - when you have the blow-overs, we went out and treated the blow-over".

On recross examination the witness explained that both shops in Albany County are responsible for approximately 300 lane miles of roadway and that a supervisor may check more than one column in a snow and ice activity report to reflect varying road conditions within their area of responsibility.

Claimant next called L. David Minsk. The witness, who was qualified as an expert on the subject of snow and ice control without objection, first explained the difference between blowing snow and drifting snow and related the data and documents he reviewed prior to testifying.

Mr. Minsk testified that the appropriate treatment for blowing snow is dependent upon temperature. Referring to records compiled by the National Climatic Data Center (Exhibit 8) and converting that data from Celsius to Fahrenheit the witness concluded that the temperature at 8:00 a.m. on January 13, 2000 was 23°F. By 4:00 p.m. it was 12°F and by midnight the temperature was approximately 7°F. The records further reveal that the temperature on January 14, 2000 at 7:51 a.m. was between 0° and -1°F. At 11:51 the temperature was 13°F and the highest recorded temperature for that day was 14°F at 4:00 p.m. By 5:51 p.m. the recorded temperature was between 11° and 12°F.

The witness stated his opinion that the application of freezing point depressants on State Route 9 in the area of Fonda Road on January 13 and 14, 2000 deviated from accepted highway maintenance procedures primarily in that the department's Highway Maintenance Guidelines and common knowledge among snow and ice control professionals both recognize that dry snow blowing across a cold, dry pavement will generally not adhere to the pavement and therefore will not result in an accumulation of snow or the creation of a slippery road surface. The witness acknowledged that the use of chemicals was appropriate "early in the event" and recognized the importance of preventing the chemical brine created by salt from re-freezing. It was, however, his opinion that at some point during the event the use of salt should have been discontinued in the area of Route 9 and Fonda Road. Although he did not identify the specific point in time when the use of chemicals should have been suspended, it was his argument that had the Department ceased applying chemicals to the area of Route 9 immediately north of Fonda Road the roadway surface would have dried and snow would have passed over the surface without adhering to the pavement. In support of his opinion the witness cited various paragraphs of section 5.4408 of the Department of Transportation Highway Maintenance Guidelines recommending caution in the use of salt and, in particular, section D entitled "The No Treatment Situation":
Salt or abrasives should not be applied in conjunction with plowing operations at very low temperatures or when plowing blowing and drifting snow at very low temperatures. Usually snow will not bond to the pavement and can be effectively substantially removed by plowing. Traffic will whip the rest of the snow away. In this situation salt, or the salt in abrasives, may make the snow stick to the pavement causing icy spots.

The witness was asked whether in his opinion it was a proper practice to permit a truck operator to determine when to apply calcium chloride or salt. The witness responded that with proper training an operator is able to make that determination as well as decisions relating to rates of treatment. The witness did not know the nature or extent of training provided operators by the Department and was therefore unable to render an opinion as to whether the State failed to provide its employees sufficient snow and ice control training.

Mr. Minsk testified that according to his analysis the highest pavement temperature reached on January 14, 2000 was approximately 12°F at 2:00 p.m. He was then asked his opinion as to whether the use of freezing point depressants in the area of Fonda Road and Route 9 on January 13 and 14, 2000 had created or exacerbated a slippery and icy condition on the roadway. In response the witness stated:
Based on the reading of the truck, plow truck operator reports and a review of the meteorological conditions, I would not have entertained any likelihood of putting down dry chemical on a cold, dry pavement when blowing snow conditions existed and expect a safe road - for there to be a safe road.

According to the witness, the ice encountered by Rebecca Hoefer near the intersection of Route 9 and Fonda Road on the evening of January 14, 2000 would not have formed had the Department of Transportation discontinued the use of chemicals on the road surface. He recognized that the use of freezing point depressants must be continued once they are employed so that falling or blowing snow does not dilute the brine solution created to such a point that a refreeze occurs. It was his opinion, however, that it was unnecessary for the Department of Transportation to continue applying product to the roadway "because the record says that it was a dry snow surface, cold and dry. Why anyone would put down a freezing-point depressant of any kind on a cold, dry pavement under a blowing snow condition is hard to fathom because that will act as I mentioned as a trapping mechanism to catch the snow and lead to the development of icy patches".

On cross-examination the witness reiterated that temperatures decreased steadily throughout the day on January 13, 2000 from a high of approximately 32°F. He stated that on January 14, 2000 a high temperature of 13°F was achieved in mid-afternoon. He also stated that based upon his research and experience the pavement temperature at 6:00 p.m. at the intersection of Fonda Road and Route 9 could not have exceeded the maximum high air temperature for that day of approximately 12°F. Mr. Minsk agreed that sodium chloride will melt ice at a maximum low temperature of -6°F and, so, would melt ice at a pavement temperature of 12°F such as that he opined existed at the intersection of Fonda Road and Route 9 at approximately 6 p.m. on January 14, 2000. The witness discounted the effects of solar radiation in increasing pavement temperature above prevailing air temperatures citing the low angle of the sun in mid-January and heat loss attributable to winds. Upon reviewing Exhibit 8 the witness agreed that the data reflected on page 3 indicates that 93% of possible sunshine minutes were achieved on January 14, 2000 and that this circumstance would have the effect of increasing pavement temperature absent other mitigating circumstances. He agreed that pavement temperature may lag air temperature by several hours.

Mr. Minsk attributed his belief that roads within the Albany County residency were cold and dry to his review of Exhibit 13 in which David LaManna entered check marks indicating road conditions were both snow-covered and dry. In this regard, the following discussion took place:
Q. And sir, you 're making the assumption that even with snow cover, the roads were dry in totality of all the roads in Albany County?

A. The - this is called - this is an after action report. I don't know what your official terminology is, but this allows only the choice of snow cover in order to indicate that there was what is called ground drifting when blowing snow goes across the road not adhering but appears to be snow cover.

Q. So you're making an assumption that this means a dry blowing snow?

A. Yes.

Mr. Minsk agreed that the snowstorm on January 13, 2000 resulted in the accumulation of a significant amount of snow. He further agreed that plowing the snow and applying chemicals complied with good and acceptable practices. He testified that it would not necessarily be expected that on January 14, 2000 a residual chemical solution would remain on Route 9 at its intersection with Fonda Road as a result of operations conducted on January 13. According to the witness the combination of low humidity, wind speed and traffic density would combine to dry the surface rapidly. He could not, however, state definitively that residual chemicals from blowing and salting operations on January 13 did not remain on the roadway surface on January 14, 2000. Mr. Minsk confirmed that any residual chemical solution or brine that did remain on the road surface would cause snow blowing across the road surface to melt and, in theory and practice, the best method to prevent the solution from re-freezing was to apply more chemicals. The witness testified that the application of 600 pounds per lane mile would have an effect in counteracting the dissolution of the chemical brine remaining on the roadway which leads to re-freezing. He agreed that a plow truck operator is able to observe the effect of chemicals on the pavement and possesses the discretion to determine whether to apply additional chemicals. He stated his opinion that it was not an advisable practice to plow shortly after applying salt because at low temperatures the salt requires significant time to convert into solution. In concluding the witness agreed that data contained within Exhibit 8 indicates that maximum air temperatures during the period from January 3 to January 12, 2000 all exceeded 32°F. He agreed that the relatively high temperatures recorded during the above period would have the effect of temporarily increasing pavement temperature. Pavement temperature could also be affected by high traffic volumes.

On redirect examination the witness explained the manner in which he interpreted the information contained on Exhibit 13 by stating:
A. The document I have in front of me for the reporting period 0100 on the 14th to 2400 on the 14th states in the PM the surface is dry. The fact that it says snow cover I think is the operator's interpretation of what blowing snow under those poor light conditions would look like. They would be white.

Claimant rested its case and the defendant called as its first witness David LaManna. Mr. LaManna was handed Exhibit 13 which he testified is a snow and ice report for January 14, 2000 which he completed on January 15, 2000. He described categories A and B on the document under the heading "Type of Event and Accumulation" as providing space for documenting the type and amount of precipitation falling on the reporting date. The witness entered "blowing snow" in categories A and B for January 14, 2000. He described categories C through G under the heading "present road conditions" as space provided for relating the general conditions of roads within the Latham subresidency. He testified that where appropriate more than one column may be checked depending upon variations in road conditions. With regard to his entries upon Exhibit 13, the witness confirmed that he identified present road conditions as both snow covered and dry. He explained this circumstances by stating:
The road condition were dry on probably - roughly eighty percent or ninety percent of the roads were - where the snow was blowing across the road and they were covered, that's why I checked snow covered roads in certain areas.

Mr. LaManna testified that he familiarizes himself with road conditions within the subresidency through patrols, discussion with plow operators and radio contact with operators while they are engaged in ice and snow control activities. He also discusses conditions with the A shift supervisor who, on January 14, 2000, informed the witness that roads were dry except in those areas where blowing and drifting snow were usually encountered and that those areas had been salted and plowed. Upon beginning his shift Mr. LaManna assigned six trucks to spot plow and spot salt the various beats within the Latham subresidency.

On cross-examination the witness testified that although Exhibit 13 refers to the reporting date of January 14, 2000 he was uncertain as to the time when the document was actually completed. Although he confirmed that he was patrolling roadways on January 14, 2000 he could not recall whether his actual patrol on that day included the intersection of State Route 9 and Fonda Road.

The defendant next called Duane E. Amsler. Mr. Amsler was qualified as an expert in snow and ice control on roadways following a recitation of his background and experience which included responsibility for the snow and ice control program operated by the New York State Department of Transportation from 1987 until 1992. He testified that he authored the snow and ice control provisions of the 1993 Highway Maintenance Guidelines.

According to Mr. Amsler pavement temperature, which he described as seldom the same as air temperature, is an important factor in determining how well chemicals will work in melting snow and ice. He also stated that while in his view wind velocity has little effect on pavement temperature, the radiational effects of sunshine can have a dramatic effect on pavement temperature dependent upon the angle of the sun, cloud cover and other factors. Asphalt-based pavements typically absorb more solar radiation than concrete pavements which are lighter in color. He described pavement temperature as tending to move toward prevailing air temperatures only slowly.

The witness examined Exhibit 8 and testified that the data reflects that temperatures generally declined throughout January 13, 2000 and that the data indicates a total of 522 minutes of sunshine or approximately 85% to 86% of total possible sunshine on January 14, 2000. Exhibit 8 also relates that on January 13, 2000 wind speeds recorded at the Albany International Airport were 12 miles per hour at 7:00 p.m. and 15 miles at 10:00 p.m. Wind velocity remained in excess of 17 miles per hour until 7:00 p.m. on January 14, 2000. Based upon his experience and the data reflected in Exhibit 8 Mr. Amsler estimated the pavement temperature on Route 9, presumably at or near the intersection of Fonda Road, as between 15° and 20°F.

The witness testified that sodium chloride is primarily used to prevent ice from adhering to road surfaces while liquid calcium chloride increases the speed at which sodium chloride will melt ice at low temperatures. The application of sodium chloride creates a brine solution composed of salt and water which normal plowing operations would not ordinarily remove from the road surface. In the case at hand, Mr. Amsler related that the storm which was in progress on January 13, 2000 ended at approximately 4:30 p.m. It was his view that the use of chemicals during the storm and the continued application thereafter of freezing-point depressants in conjunction with plowing to prevent blowing snow from accumulating and bonding to the pavement of Route 9 near its intersection with Fonda Road were proper. Because of the amount of chemical placed on the roadway as a result of the prior storm and subsequent snow and ice patrols, it was Mr. Amsler's opinion that there was little question that "chemical residual" persisted on the road surface with the effect of causing blowing snow to accumulate on the pavement. He testified that once salt is used it must continue to be used to refresh the chemical brine so that the salt content remains high enough to prevent the brine from freezing and bonding to the surface. For this reason it was his opinion that the State acted correctly in assigning Mr. LePage to continually cycle through his beat plowing snow from the highway and applying sodium chloride. It was his opinion that the State exercised proper judgment in applying salt to the surface of Route 9 on January 14, 2000.

On cross-examination Mr. Amsler acknowledged that he participated in the creation of portions of two chapters of a book by L. David Minsk, claimant's expert witness in this matter, whom he described as "a colleague, a mentor and a friend". He also acknowledged the correctness of statements contained in paragraph A of section 5.4408 of the Highway Maintenance Guidelines (Special Considerations in Ice Control) which states: "Good judgment in the application of salt is a must" and paragraph B which provides: "use salt with caution - as temperatures will usually fall after sundown and the roads may re-freeze".

He further agreed that as a general rule the statement contained in paragraph D of section 5.4408 providing "[S]alt or abrasives should not be applied in conjunction with plowing operations at very low temperatures or when plowing blowing and drifting snow at very low temperatures" is also correct.

Mr. Amsler next related his understanding that on January 13, 2000 a snowstorm which ended at approximately 4:30 p.m. resulted in the total accumulation of 8 to 10 inches of snow. He confirmed that data contained within Exhibit 8 demonstrates that temperatures on January 13, 2000 dropped from a high of 30° at 1:00 a.m. to a low of 8° at 10:00 p.m. The same data reflects the following recorded temperatures for January 14, 2000: 5°F at 1:00 a.m.; 3°F at 4:00 a.m.; 2°F at 7:00 a.m.; 4°F at 10:00 a.m.; 9°F at 1:00 p.m.; 12°F at 4:00 p.m. and 9°F at 7:00 p.m.

The witness estimated that wind speeds of between 12 and 15 miles an hour are necessary to create blowing snow conditions. Referring to the same data referenced above, the witness testified to the following recorded wind speeds on January 14, 2000: 21 mph at 1:00 a.m.; 20 mph at 4:00 a.m.; 20 mph at 7:00 a.m.; 14 mph at 10:00 a.m.; 15 mph at 1:00 p.m.; 18 mph at 4:00 p.m. and 17 mph at 7:00 p.m.

With regard to those provisions of the Highway Maintenance Guidelines (section 5.4408 [B]) which suggest the use of caution in applying salt at, as an example, 25° at 3:00 p.m., the witness agreed that the temperature at 3:00 p.m. on January 14, 2000 was "somewhere in the range of 12°F". In discussing spot treatments such as those undertaken by Mr. LePage on January 14, 2000 he denied that supervisory patrols take on any added importance during spot treatment. He distinguished blowing and drifting snow primarily upon the extent of accumulation relating that while snow may accumulate on a highway as a result of blowing snow, drifting snow will generally result in greater accumulations.

On redirect examination the witness testified that calcium chloride has a eutectic temperature of between -6 and -7°F and a practical range of "0". Sodium chloride's eutectic temperature is -6° with a practical range of use to 5°F. He answered affirmatively when asked whether sodium chloride will work to melt ice and accumulated snow at a pavement temperature of between 12 and 20°. The witness explained that the provisions of the Highway Maintenance Guidelines regarding the application of salt at low temperatures during late afternoon was brought forward into the 1993 guidelines and relates primarily to situations where the application of salt will not be continued during evening hours. The witness saw no reason why salt should not be applied to roadways at low temperatures during late afternoon where, for example, subsequent shifts will continue the application throughout the night. As to "The No Treatment Situation" addressed in paragraph D of section 5.4408 of the Highway Maintenance Guidelines, it was the witness's view that residual chemicals remaining on the road surface as a result of snow and ice control operations on January 13, 2000 would have created conditions which caused blowing snow to adhere to the road. The witness testified that Exhibit 4 relates that on January 14, 2000 David LePage traveled a total of 120 miles and dispensed approximately 3.24 tons or in excess of 6,000 pounds of salt over 35.2 miles. It was his opinion that Mr. LePage acted appropriately in plowing and salting any windblown snow he encountered while patrolling his beat. Mr. Amsler stated his opinion that the surface of Route 9 remained wet "pretty much for the duration" between the beginning of the snowstorm on January 13, 2000 and the start of blow-over activity whether on January 13
or January 14, 2000. Under the circumstances the continued application of chemicals to the surface of Route 9 on January 14, 2000 was appropriate.
On redirect examination the witness agreed that there was no documentary proof establishing that the area of Route 9 where Rebecca Hoefer lost control of her vehicle was actually treated on the 14
th of January.
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). 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 (Tomassi v Town of Union, 46 NY2d 91; Boyd v State of New York, 103 AD2d 882;). "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).
Claimant's expert contends that Exhibit 13, the road and weather condition report completed by David LaManna, establishes that roads within the DOT Latham subresidency were dry on January 14, 2000. Although the report indicates the existence of blowing snow and lists both "snow cover" and "dry" in describing road conditions, claimant's expert explains that these seemingly incompatible entries as to road conditions on that date actually describe a phenomenon where although roads are dry they appear to be snow covered as a result of "the operator's interpretation of what blowing snow under those poor light conditions would look like". According to Mr. Minsk the application of salt to the surface of Route 9 prevented blowing snow from continuing across what he described as the cold, dry roadway without adhering to the pavement. Instead, the salt caused an accumulation of snow which subsequently turned to ice through melting and compaction resulting in the creation of the icy condition which caused the tragic accident at issue herein. This central premise is rejected by the Court.

First, the Court rejects the interpretation applied to the "road conditions" portion of Exhibit 13 by claimant's expert as both speculative and without evidentiary support. Rather, the Court accepts the testimony of Mr. LaManna that the report was intended to describe road conditions on January 14, 2000 as generally dry except in areas where blowing snow had caused snow to accumulate and roads were, as a result, snow covered.

Claimant's expert agreed that the defendant acted properly in applying salt to roads during the 8- to 10-inch snowfall which occurred on January 13, 2000. He further agreed that salting activity on that date would result in the creation of a residual chemical brine which would generally refreeze unless additional chemicals were applied. It is his contention, however, that had salt not been applied to the surface of Route 9 following the cessation of the snowstorm low humidity, wind and traffic would have acted to dry the pavement. The continued use of salt on dry pavement caused snow blowing across Route 9 near its intersection with Fonda Road to accumulate on the road surface creating the ice subsequently encountered by Rebecca Hoefer.

Weather data contained in Exhibit 8 establishes a total accumulation of 10 inches of snow between 5:51 a.m. and 10:51 a.m. on January 13, 2000 with trace amounts continuing until 8:51 p.m. The data further reflects generally continuous wind speeds in excess of the 12-15 mph defendant's expert opined, without contradiction, was necessary to create blowing snow conditions from 1:00 p.m. on January 13, 2000 through 7:00 p.m. on January 14, 2000.[2]
Taken together, the above data demonstrates that winds capable of creating blowing snow conditions began two hours after the primary snowfall ended on January 13, 2000. Under such circumstances, including the low temperatures recorded for the period January 13 to January 14, 2000, the Court finds more persuasive the view expressed by defendant's expert. In this regard, Mr. Amsler testified that in his opinion a residual chemical brine remained on the surface of Route 9 as a result of snow and ice operations conducted on January 13, 2000. High winds beginning shortly after the cessation of meaningful snowfall accumulations caused snow to migrate across the roadway. Wind blown snow accumulated on the road surface and acted to dilute the remaining brine solution. According to the expert, if not refreshed through continued application of additional salt, the brine would freeze and turn to ice.
The Court is not required to accept the opinion of an expert if contradicted or called into question by facts and circumstances revealed by other testimony or the conflicting opinion of the other party's expert. In fact, the Court may reject an expert's opinion if the Court finds the facts to be at variance with those which formed the basis of the expert's opinion or the Court disagrees with such opinion (
see Christopher v State of New York, Ct Cl, June 28, 2002 [Claim No. 98010, UID # 2002-028-504] Sise, J., unreported).[3] Acting as the finder of fact in this non-jury context, the Court is entitled to accept the expert testimony it determines best explains the matter at issue and is most readily supported by the evidence (Shaw v Binghamton Lodge No. 852, B.P.O Elks Home, 155 AD2d 805, 806).
In this case, in conjunction with the proof regarding wind speeds, prevailing temperatures and snowfall amounts and duration, the Court finds that the theories espoused by defendant's expert best explain the physical dynamics at work on the surface of Route 9 on January 13 and 14, 2000. Although ultimately unsuccessful in preventing the buildup of ice on Route 9, the claimant has failed to establish that the defendant acted negligently in assigning David LePage to continuously cycle through his portion of the C-5 beat, an area with which he was intimately familiar, plowing snow from the road surface and applying salt. While plowing and the application of salt may well be inappropriate where dry road conditions exist and snow will blow across the road surface without adhering to the pavement (
see Highway Maintenance Guidelines § 5.4408[D]) the proof presented has adequately distinguished the conditions existing on January 13 and 14, 2000 and explained the necessity for continued plowing and salting of the area of Route 9 near its intersection with Fonda Road.
As a result, the Court finds that the claimant has failed to establish by a preponderance of the evidence that the State was negligent with regard to the methodology employed in maintaining Route 9 at the site of the accident. Nor has claimant proved that the plowing and salting of the roadway was performed negligently. The Court reaches a similar conclusion regarding the additional bases of liability asserted by the claimant including the alleged failure to use available technology and inadequate training and supervision. While the claimant attempted to establish that the defendant was negligent in failing to install a snow fence to prevent wind-blown snow in the area of Route 9 where the accident occurred the proof was wholly inadequate to establish that a snow fence was required by departmental or industry standards. What proof was offered on this subject was both anecdotal and conjectural and falls substantially short of the quantum of evidence necessary to establish the defendant's liability.

Having failed to establish the defendant's liability at trial the claim must be and hereby is dismissed.

Let judgment be entered accordingly.



January 19, 2005
Saratoga Springs, New York

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




[1]Improperly listed throughout the transcript as "Fonder Road".
[2]The wind speed reported for 4:00 p.m. on January 13, 2000 was 9 mph.
[3]Unreported decisions from the Court of Claims are available via the internet at