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.
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
Claimant submitted a number of photographs which were received into
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
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
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
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
and storm activity
from that day were received in
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
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]
different guardrails, as depicted in Claimant's Exhibits, 1, 2, 3, 7, and 9, are
not shown in Defendant's photographs until mile marker
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
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.