New York State Court of Claims

New York State Court of Claims

DOMERY v. NEW YORK STATE THRUWAY AUTHORITY, #2004-018-319, Claim No. 101979


Synopsis


Claim is dismissed. Claimant failed to prove the Thruway Authority was negligent.

Case Information

UID:
2004-018-319
Claimant(s):
MARYELLEN DOMERY a/k/a MARYELLEN DOMERY PHEIFFER
Claimant short name:
DOMERY
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101979
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CRECCA & BLAIRBy: Patricia Byrne Blair, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 21, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant seeks damages from the New York State Thruway Authority (hereinafter referred to as the Authority) for injuries she sustained as a result of hitting a pothole on the New York State Thruway on January 29, 1999. The trial was bifurcated and this Decision relates solely to liability.

On January 29, 1999, Claimant and her employer, David Kozody, were traveling from Claimant's home in Greenwich, New York, to a meeting in Canandaigua, New York. Claimant was driving her vehicle and entered the New York State Thruway at the Fonda/Fultonville toll booth at approximately 6:15 a.m., heading in a westbound direction. It was still dark at this time. Claimant estimated that at 6:30 a.m., while driving in the left or passing lane she saw a large hole in the road, illuminated by her headlights. She testified that she could not avoid the hole; and when she hit the pothole, both tires on the left side of her vehicle ruptured. She was able to maneuver her vehicle to the right roadside without incident, stopping at mile marker 198.2.[1] On cross-examination, Claimant was asked how far forward her vehicle traveled after hitting the pothole and, although she said she was poor at judging distances, she estimated one-eighth to one-quarter mile.

Upon safely stopping the car on the right shoulder of the Thruway, Claimant left the vehicle, walked backed to observe the area where her tires ruptured and saw the hole. She then called 911 and her husband. It was almost an hour before a tow truck arrived to remove and repair her vehicle. After the repair, Claimant had to travel the same stretch of road which included where she had hit the hole and incurred the blow-outs. She drove slowly to get a good look at the hole which she described as being three to four feet in length across the passing lane and 18 inches wide, but she could not see the bottom of the hole to determine depth.

Claimant submitted a number of photographs which were received into evidence,[2] and she testified the photographs accurately depicted the Thruway as of the day of the accident. During her pretrial deposition, Claimant marked two of the admitted photographs (Exhibits 2 and 3) in red, using a circle to show approximately where the pothole was, and drew a line indicating where she was standing when she walked back to check the road surface. At trial, Claimant was equivocal when asked if these markings were accurate, testifying that the hole could have been closer to the point where the photographs were taken.

On cross-examination, Claimant was asked about the history she gave to her medical providers for her treatment after the accident. She denied telling them that her tires came off her car.

The only other witness Claimant called to testify on her direct case was Pamela Nash.[3] Ms. Nash testified that on January 28, 1999, late in the afternoon, she was driving on the New York State Thruway west from Albany to Syracuse. The roads were sloppy so she was following a truck in the lane to the left of the driving lane because that lane was clearer. Near the Canajoharie exit, she said she hit something in the road and both tires on the driver's side blew. She pulled to the right shoulder at mile marker 198.3.[4] Ms. Nash could not remember how she received assistance but stated that she did have her vehicle towed from the Thruway. Ms. Nash testified that she needed a new tire to get home, and that she never saw what made her tires explode.

On cross-examination, Ms. Nash acknowledged that she was unsure of how many lanes of the Thruway there were where the incident occurred; she thought there were three and she was in the middle one. She was certain that there was another lane to her right.

The defendant called three witness, all Authority employees in the Herkimer maintenance section on the date of Claimant's accident. Keith Vertucci was a supervisor who testified that the Herkimer section ran from mile post 197.9 (the Canajoharie exit) to mile post 233.5, both east and westbound. During the winter, the main focus of the Authority maintenance workers is snow and ice control after which comes guardrail repair and pothole repair. In January, the crew is divided into three shifts: from midnight to 8:00 a.m.; 8:00 a.m. to 4:00 p.m.; and 4:00 p.m. to midnight. In 1999, Mr.Vertucci was the supervisor for the first shift, midnight to 8:00 a.m. Sam Conigliaro and Ron Llewellyn were crew members on the same shift.

Mr. Vertucci identified photo logs[5] as photographs taken of the Thruway westbound from mile markers 198.15 through 198.40 at 50-foot intervals. He said they generally depict the Thruway; they were not offered to show the roadway as of the date of the accident. The witness described how and under what conditions potholes would be repaired. Generally, if it was a large hole, one larger than 12 inches wide or long and more than a couple inches deep, it would be squared off with a jackhammer then filled. A small hole would be filled and tamped. He noted that there would be no specific record of filling a small pothole, only that the crew was performing patchwork. If a jackhammer was needed, there would be a record of a lane closure and the list of equipment used for the job. There was no such record for road surface work at or around mile post 198.2.

Additionally, Mr. Vertucci testified that daily inspections of the road surface are made by the crew and supervisors of each shift. In fact, the witness inspected the road about 2:00 a.m. on January 29, 1999, at least two times, looking for any type of road hazards. If a large pothole was seen, it would have been reported and patched immediately. That day, no potholes were seen and no repair work was done in the Herkimer maintenance section. The work log[6] and storm activity reports[7] from that day were received in evidence.

On cross-examination Mr. Vertucci acknowledged that it is possible that no record existed for small pothole repairs.

Sam Conigliaro and Ron Llewellyn were driving snowplows on the first shift the morning of Claimant's accident. The records indicate they were salting and sanding the road surface as needed. Mr. Conigliaro's assignment was to spread the material in the driving lane between mile markers 198 and 208 and then return. Mr. Llewellyn was assigned to the passing lane from mile markers 197 to 233. Both witnesses testified that they did not see any potholes on the morning in question. Mr. Conigliaro passed mile marker 198.2 three times that morning, traveling between 29 and 32 miles per hour. The last time he did so was between 6:00 and 6:30 a.m. Mr. Llewellyn passed the same point one time between 4:00 and 7:30 a.m.

The Court notes, in scrutinizing the photographs received in evidence from both parties, that the Claimant's photographs show a stretch of the Thruway further west than mile marker 198.2 where her vehicle was retrieved by the tow truck
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The areas Claimant marked on Exhibits 2 and 3, she testified depict roughly where she saw the pothole, and where she stood when she walked back to see the hole. Those pictures depict a location where there is a change in the type of guardrail, for a bridge or overpass. Defendant's photographs, taken at 50-foot intervals, show no change in the guardrails at mile marker 198.2, or at any point before that marker to 198.15.rrrr[r] The different guardrails, as depicted in Claimant's Exhibits, 1, 2, 3, 7, and 9, are not shown in Defendant's photographs until mile marker 198.37.rrrrr[r] Despite Claimant's testimony that the pictures in Exhibits 1-9 accurately show the condition of the road at the time her tires exploded, it appears that the pictures in evidence could not depict the location where Claimant's tires ruptured as they were taken further west than mile marker 198.2, where she stopped her car after her tires deflated. In response to a defense question inquiring as to which of Claimant's pictures (Exhibits 1-9) best depict the location where her tires ruptured, Claimant responded that a number of pictures "could" depict the hole her car "fell" into.

The State has a non-delegable duty to maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271). However, the mere occurrence of an accident on a State highway does not render the State liable, the State is not an insurer of the safety of the traveling public (Tomassi v Town of Union, 46 NY2d 91; Epstein v State of New York, 124 AD2d 544, lv denied 69 NY2d 605). To establish the State's liability, Claimant must show that the State was negligent and that its negligence was the proximate cause of the accident (Travalino v State of New York, 203 AD2d 276). Negligence is established if the State created or had actual or constructive notice of a dangerous condition and failed to exercise reasonable measures to correct it (Brooks v New York State Thruway Authority, 73 AD2d 767, affd 51 NY2d 892; Matter of Rouse v State of New York, 97 AD2d 962).

Here, Claimant tried to establish, through Pamela Nash's testimony, that there was a dangerous condition on the Thruway that existed for a sufficient period of time to have placed the defendant on constructive notice. Ms. Nash could not, however, confidently testify as to the location or cause of her tires rupturing to establish a common cause or location with Claimant's accident.

Claimant has not persuaded this Court that the condition of the roadway, as depicted in the photographs introduced in Exhibits 1-9 caused her tires to rupture, as those pictures are of a section of the Thruway beyond where her tires deflated.

The Authority's witnesses traversed the area in question numerous times in snowplows at a slow speed shortly before Claimant's accident. If a pothole, the size of the one described by Claimant existed, it would have been seen. Claimant has not established the Authority's negligence.

The claim is hereby DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.


July 21, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]Claimant was unequivocal that this was the location where she stopped her vehicle. The location is confirmed by the towing and repair receipts in evidence, Exhibits 11 and 12.
[2]Exhibits 1 - 9.

[3]Pursuant to a stipulation made prior to trial, each party planned to submit expert witness testimony at a later time, and then conference the case with the Court. The defendant reserved making any motions at the conclusion of Claimant's evidence at trial until the conference. Since that stipulation, both parties have chosen not to call expert witnesses and by letter from the Court proof was closed and the timing of posttrial briefs was scheduled.

[4]See Exhibit 13.
[5]Exhibits E-1 through E-26.
[6]Exhibit A.
[7]Exhibit B.

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See exhibits 11 and 12.

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Exhibits E-1 - E-6.

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Exhibit E-23.