New York State Court of Claims

New York State Court of Claims

MEYERS v. STATE OF NEW YORK, #2004-018-447, Claim No. 100603


Synopsis


Case Information

UID:
2004-018-447
Claimant(s):
PAMELA MEYERS
Claimant short name:
MEYERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100603
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
STANLEY LAW OFFICESBy: Joseph P. Stanley, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Gordon J. Cuffy, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 7, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for a broken wrist she suffered when she tripped on a portion of the sidewalk adjacent to New York State Route 297 and contiguous to a State-owned bridge in the Town of Geddes. This decision results from a bifurcated trial and addresses solely the issue of liability.

The facts regarding Claimant's accident are undisputed. On September 5, 1998,[1]
between 1:30 and 2:00 p.m., Claimant and her friend, Michael Freed, parked their vehicle and were walking to attend the New York State Fair. To get to the fairgrounds, they had to cross from the east to the west side of Bridge Street[2] also known as New York State Route 297, to access a sidewalk which took them northbound over the bridge to the fairgrounds. The weather was sunny and clear that day, and Claimant testified there were a lot of people around. She had been watching for traffic and where other pedestrians were as she crossed the street and started down the sidewalk. She was behind Mr. Freed and looked down as she stepped up over the curb. After four to five steps, her toe hit something causing her to fall. She hit the ground, breaking her fall with her hands. Her right hand crumpled beneath her. Claimant and Mr. Freed noticed a difference in elevation between the two portions of the sidewalk and determined that Claimant struck her toe on the higher slab. They continued on to the fair where they reported the accident, and Claimant was seen by available medical personnel. No accident report was prepared; however, she was sent to the hospital for treatment via ambulance.
A few days later, Claimant was present when photos were taken of the spot where she had fallen.[3]
The photos show one sidewalk slab obviously higher than the one immediately south of it.
In December 1974, the State began work on rebuilding Bridge Street, including the bridge itself.[4]
The work was completed in 1978. Larry Hasard, a New York State Department of Transportation (hereinafter DOT) engineer since 1985, is currently the Resident Engineer for the West Residency. In 1998, he was the Bridge Maintenance Engineer with Region Three District, which included this Route 297 bridge. In that position, Mr. Hasard was responsible for maintaining the bridges within his district. He testified at length about the rebuilt bridge, its abutments and approaches. Mr. Hasard, referring to Exhibit A, the reconstruction plans, testified that the bridge included the structure which spanned over the railroad tracks, the cement abutment on each end which supports the steel framing, the parapet[5] which extends across the bridge and beyond the abutments, and the wing wall below. At the end of the bridge, at the last bridge joint is the approach slab, the transition between the bridge and the asphalt highway, which, although not actually part of the bridge structure, connects the bridge "to the rest of the world."[6] Mr. Hasard outlined the southern limits of the approach slab with a green line on Exhibits 2, 17 and A. If this line were continued straight across the curb and sidewalk, it would intersect with the break in the sidewalk where Claimant fell. Mr. Hasard also marked Exhibit A with a pink line where the southern most joint marks the beginning of the bridge approximately 20 feet north from where Claimant fell. It is Mr. Hasard's position, based upon the bridge reconstruction plans, the table for Maintenance Jurisdiction (Exhibit B) and § 10, subsection 26 of the Highway Law that the State was responsible for all maintenance on the bridge, beginning at location 22.37 on the reconstruction plans including the sidewalks. The Town of Geddes, according to Mr. Hasard, was responsible for the portion of sidewalk where Claimant fell. According to Mr. Hasard, the reconstruction plans and maintenance jurisdiction information is customarily sent to the other responsible municipalities. Here, no witness could verify that the maintenance jurisdictional information was sent to the Town of Geddes. However, Claimant also called as a witness, Mr. Daniel Patalino, the Highway Superintendent for the Town of Geddes since January 1, 1997. Prior to that, Mr. Patalino was the Town of Geddes Supervisor from 1982 until 1990. He testified that records were recently found in the Town archives regarding the maintenance of this section of sidewalk, and it was not until the week before trial that he became aware that the Town of Geddes bears the responsibility for maintaining the entire length of sidewalk from Bridge Street to State Fair Boulevard. To his knowledge, the Town of Geddes had not previously performed any maintenance on the sidewalk.
Claimant also called James Skelly, a retired former civil engineer with DOT, who in 1998, was in charge of bridge inspections for Region Three, including the Route 297 bridge. Mr. Skelly testified that it was his standard practice to evaluate approach sidewalks during inspections. Although there is no reference to sidewalks on the inspection report form, Mr. Skelly testified that the inspection of the sidewalk would be reflected in the score on the report under the section "Settlement of Approaches." The inspection report form lists various elements of the bridge structure and the approaches, each element is evaluated and each section of the report reflects a score based upon a seven point scale. A score of seven would reflect "brand new" condition. The lower the score, the more urgent the condition.[7]
The score for each section represents the worst condition of each element evaluated. A review of any particular inspection report does not necessarily reveal what specific element dictated the score in each section, unless the score is a four or less. With a score of four or lower, a photograph and a written statement of the problem condition is required. Inspections, pursuant to statute (Highway Law § 232[2]), are conducted every two years. The biannual inspection reports for this bridge for the years 1991 through 1999 were reviewed by Mr. Skelly at trial. The first year that the score for the "Settlement of Approaches" section was below a four, requiring repair work, was 1999, the year after Claimant's fall.[8] The 1999 inspection report[9] rated the "Settlement of Approaches" section a three. This rating indicates "a difference in elevation producing significant impact on the bridge" or in this case, on the sidewalk.[10] A regular safety flag[11] was also issued with this report, as a result of the settlement of the sidewalk slab, and a photograph of the problem was also provided. The photograph taken during the 1999 inspection shows virtually the same elevation differential between the two sidewalk slabs as depicted in the pictures Claimant took a few days after her fall in 1998. In 1999, the differential between the two sidewalk slabs measured 40 mm(⊂1.6"), and it was cited as a potential tripping hazard. Mr. Skelly testified that when a report contains a safety flag, a notice is sent to the owner of the bridge, in this case the State DOT. Mr. Hasard testified copies of the inspection reports were received by DOT and used to plan for remedial work. After receiving the 1999 inspection report, Mr. Hasard ordered repairs to the bridge itself, and the sidewalk was repaired as well.
Mr. Hasard testified that he did not contact the Town of Geddes regarding making the necessary repair to the subject sidewalk; however, Mr. Patalino testified that someone from the State[12]
had called him regarding the Town's responsibility to repair the sidewalk in 1999, and he had advised the State that the Town would not fix the sidewalk because it was not the Town's responsibility.
Mr. Hasard reviewed the State's maintenance records for the bridge and its environs.[13]
In 1996, the State repaired some of the joints and cleaned the substructure. There were deck and joint repairs in 1997. In 1998, deck and substructure sealing was performed along with more joint repair work. Cleaning would also have been done before any sealing was completed. Although maintenance workers would have walked around the area of Claimant's accident during the cleaning and sealing processes in 1998, Mr. Hasard said the sidewalk elevation differential would not necessarily be reported because it did not affect the integrity of the bridge itself. The State did not make any repairs or perform any maintenance to the sidewalk until 1999.
The cause of the elevation differential between the two sidewalk slabs, according to both Mr. Hasard and Claimant's expert, Peter Arsenault, was the settling of the dirt underneath the southernmost sidewalk slab that ends at the beginning of the wing wall. The sidewalk slab that settled rests completely on dirt and is not resting on any part of the cement structure that makes up the bridge or the bridge approach. Claimant's expert, Peter Arsenault, a licensed architect, testified that in his opinion, the sidewalk slab settled over a period of time and the elevation differential between the slabs did not change significantly between 1998 and 1999. At the time of the 1997 bridge inspection, Mr. Arsenault believed the slab would have settled approximately an inch, which he believes is a safety hazard that should have been reported. He opined that the defect existed in July 1998 when the State sealed the decks on the bridge.

The evidence establishes that Claimant fell on the sidewalk along Route 297 when her foot hit a sidewalk slab which was 1.6" higher than the sidewalk slab immediately south and contiguous to it. The threshold question is whether the State, the owner of the roadway and bridge, had any legal duty to maintain this section of sidewalk. A legal duty of care owing to the injured Claimant is critical to any negligence cause of action, for without a duty there can be no breach and without a breach there can be no liability (
see Pulka v Edelman, 40 NY2d 781, 782; Palsgraf v Long Is. R.R. Co., 248 NY 339, 341).
Although the State built the sidewalk, there was no evidence to suggest that the settlement of the sidewalk was due to any design or construction defect. Rather, the issue is one of maintenance and which municipal entity bore the duty to repair this section of the sidewalk.

Claimant interposes several arguments to support her theory that it was the State's duty. First, she argues that this section of the sidewalk is on the approach to the bridge and pursuant to § 230 of the Highway Law, the approach is part of the bridge. Since the State has the duty to maintain the bridge, it also has the duty to repair the sidewalk upon the approach. Claimant also argues that the State owes her a duty to maintain this sidewalk arising from its duty to maintain its roadways and property. Alternatively, Claimant argues that the State assumed a duty to maintain this sidewalk by biannually inspecting the sidewalk and by the evidence that the State repaired the sidewalk post-accident.

For the reasons that follow, the Court finds that these arguments fail as the State had no duty to maintain this section of the sidewalk.

Unquestionably, the law imposes a duty upon the State to keep its highways and property in a reasonably safe condition (
Friedman v State of New York, 67 NY2d 271; Preston v State of New York, 59 NY2d 997). Sidewalks at common law were considered part of the street or highway, and the municipality charged with the duty to maintain the roadway also had the duty to maintain the sidewalk (see Farnsworth v Village of Potsdam, 228 AD2d 79, 82; Castiglione v Village of Ellenville, 291 AD2d 769, 770). Similarly, at common law, the entity bearing the responsibility to maintain a bridge also had the obligation to maintain the means of access to the bridge: the approach (see Kolacki v State of New York, 136 Misc 239, affd 246 App Div 566, affd 272 NY482; Taylor v Village of Matteawan, 122 App Div 406). But these general rules have been modified in certain circumstances by the legislature. Highway Law § 140(18) unconditionally imposes a duty upon the town to "[m]aintain all sidewalks in the town constructed by the state adjacent to state highways." Determination of responsibility for this section of the sidewalk is not dependent upon finding that the sidewalk is on the approach to the bridge or along the State highway. Even if the Court were to find that this sidewalk was on the approach to the bridge, [14] sidewalks on a bridge approach along a State highway would still fall under the maintenance responsibility of the town (Highway Law § 2[4] and § 140[18]). The term highways includes the approaches to any bridge (see Highway Law § 2[4]).
Although article IX of the Highway Law § 230(1) defines a bridge to include the approaches, this definition does not apply outside of that article (
see Matter of Chestnut Ridge Vil. v Howard, 92 NY2d 718). The provisions of article IX were not intended to change a municipality's obligation for maintenance or repair (see § 1, L 1988, ch 781, effective June 1, 1989; Chestnut Ridge Vil., 92 NY2d at 722).
Based upon Highway Law § 140(18) and § 2(4) the Town of Geddes was responsible for maintaining the section of sidewalk on which Claimant fell.

The question now turns to whether the State, having been relieved of its maintenance obligation for this sidewalk by statute nonetheless assumed a duty. Claimant points to the State's biannual inspection of the bridge, its approaches and sidewalks, its control of the area by its activities in maintaining the bridge, and by the State's actions in repairing the sidewalk at the location of Claimant's fall, albeit post-accident, as evidence that the State assumed a duty of maintenance of this section of the sidewalk.

The role of the State in inspecting this bridge and its environs, as part of the State's comprehensive bridge inspection program (article IX of the Highway Law) does not establish an assumption of a duty for the maintenance of this sidewalk. The statutory provisions for regular, systematic bridge inspections were not "intended to effect any changes in the determination of which public entities bear responsibility for the actual repair and maintenance." (
Chestnut Ridge Vil., 92 NY2d at 722; see § 1 of L 1988, ch 781, effective June 1, 1989; Highway Law § 233[1], "...After such inspection, the bridge or culvert shall have the same status with respect to maintenance and liability as it had prior to the inspection"). To find otherwise would open the State up to potential liability for every bridge, whether owned by a town, county, or village which the State inspects. Such a finding would undermine the State's purpose in ensuring and providing "sound comprehensive bridge management, thorough bridge inspections and proper, cost-effective preventive maintenance" for all publicly owned bridges (see Highway Law § 231[1]; Chestnut Ridge Vil., 92 NY2d at 722).
For there to be a finding of an assumed duty there must be evidence that the State affirmatively took control or maintained the subject sidewalk. The mere presence of the State in the vicinity of this portion of the sidewalk performing maintenance work on the bridge prior to Claimant's fall does not establish the State's control of the area. There was no evidence presented that the State undertook any maintenance of this section of sidewalk prior to Claimant's fall. In fact, the only evidence of any maintenance of this sidewalk is the repair work performed
after Claimant's fall. The State performed this repair in response, not to Claimant's fall, but the 1999 bridge inspection report. After the inspection, the Town of Geddes, according to Mr. Patalino, advised the State that the Town would not repair the sidewalk because at the time it was Mr. Patalino's opinion that the Town was not responsible; a position he is now aware was incorrect. Under the circumstances, the State's post-accident repair of the sidewalk does not evidence the State's assumption of a duty over this portion of the sidewalk[15] (see Horvath v Rose, 261 AD2d 438, 439; Ledet v Battle, 231 AD2d 884; Federoff v Camperlengo, 215 AD2d 806, 808; Hough v Hicks, 160 AD2d 1114, 1116, lv denied 77 NY2d 802; Nado v State of New York, 161 Misc 2d 178, 183, affd 220 AD2d 397).
Based upon the foregoing, Claimant has failed to establish that the State owed her a duty to maintain this section of the sidewalk. Without a duty, no liability may be imposed. The Court is mindful that the unfortunate result here is that Claimant may be left without a damage remedy for her injury, despite a sidewalk in need of repair, but to find a duty under these circumstances would be to expand the State's maintenance obligations and ignore the legislature's statutory directive.

The claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.



December 7, 2004
Syracuse, New York

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





[1]Reference was made at the trial that September 5, 1998 was Labor Day, when in fact, September 5, 1998 was a Saturday and could not have been Labor Day.
[2]Bridge Street runs in a north and south direction.
[3]Exhibits 2 - 7.
[4]Exhibit A.
[5]The vertical wall or rail system on a bridge that keeps a driver from sliding off the bridge.
[6]All quotes are from the trial transcript unless otherwise noted.
[7]The other numerical scores are described in the Bridge Inspection Report, Exhibit 21.
[8]The 1997 Inspection Report scored the "Settlement Approaches" section for this bridge as a five, requiring no repair work.
[9]See Exhibit 21.
[10]See Mr. Skelly's testimony, p. 110, lines 1-7; see also Exhibit 21. Mr. Skelly did not perform the inspection.
[11]Mr. Skelly testified that there are two types of safety flags which can be issued, a regular safety flag, and a "safety flag requiring prompt interim action." (Transcript, p. 116, lines 5-23).
[12]He could not recall with whom he had spoken from the State.
[13]Exhibit 20.
[14]The Court is not persuaded that the cement slab that settled and required repair was part of the bridge approach as the reconstruction plans, and the testimony of both Mr. Skelly and Mr. Hasard exclude this section of sidewalk as part of the structural approach to the bridge. The undisputed testimony establishes that settlement of this slab was the result of the settling of the dirt base. No portion of this cement slab was part of the structure of the bridge approach (see Kolacki, 136 Misc at 241).
[15]The State did accept the duty for the sidewalk on the bridge at location 22+37 pursuant to the Table of Maintenance Jurisdiction (Exhibit B).