New York State Court of Claims

New York State Court of Claims
SHEPHERD v. STATE OF NEW YORK, #2005-018-494, Claim No. 108350, Motion No. M-70369

Defendant’s motion for summary judgment is granted and the claim is dismissed. Affirmed 34 AD3d 1240 [4th Dept 11/17/06]
Case Information
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
DAMON & MOREY, LLPBy: Steven M. Zweig, Esquire
Defendant’s attorney:
LAW OFFICES OF LAURIE G. OGDENBy: P. David Twichell, Esquire
Third-party defendant’s attorney:

Signature date:
November 29, 2005

Official citation:

Appellate results:
Affirmed 34 AD3d 1240 [4th Dept 11/17/06]
See also (multicaptioned case)


Defendant brings a motion for summary judgment. In support of the motion, Defendant
submits the deposition of Claimant, the affidavit of John McNeely, President of Hi-Lite Markings, Inc., with exhibits attached thereto, the deposition testimony of Andrew Fuller, a civil engineer with the New York State Department of Transportation,
a copy of the claim, the answer and the verified bill of particulars. Claimants oppose the motion and submit, in opposition, the unsworn affidavit of Stephen M. Zweig, Esquire.

It appears that the facts are not significantly in dispute. On July 16, 2003, Claimant,
Otis Shepherd, was driving his 1999 Kawasaki motorcycle northbound on Route 481, a roadway with at least two lanes in each direction, divided by a grassy median. He had owned the motorcycle since 1999, which was new when he purchased it. The motorcycle had approximately 20,000 miles on it on July 16. He had replaced both tires earlier in 2003.
On July 16, Claimant was driving approximately two miles south of Jamesville Road, past the Rock Cut Road exit close to a bridge, at approximately 4:30 a.m., on his way to work at Carrier Corporation. He took his usual route. He estimated that he was traveling about 35 miles per hour. The roads were wet although it was not raining at the time. After getting onto Route 481, northbound, Claimant came upon an area of road construction. The roadway was reduced to one northbound lane of traffic with concrete barriers about 3 to 4 feet high. Prior to reaching the reduced lane area, there were signs posted advising of the construction, reduced lane and speed. Claimant was familiar with the area and the work zone because he traveled this way every day to work. There were other vehicles traveling the roadway that morning; however, they were not close to Claimant although he could see their headlights. Claimant was driving approximately in the middle of the lane, which, because of the lane reduction, was actually on the dividing line between the edge of the righthand driving lane and the shoulder of the roadway as designed. At his deposition, Claimant testified that the restricted lane was not even, there was a small dip or bevel in the roadway between the edge of the righthand lane and the shoulder. The white fog line had been obscured for the lane reduction by black tape. Claimant testified that the roadway was in its “regular driving condition.” He had driven in the restricted lane for approximately one-quarter mile until his front tire, which was on the black tape, spun to the left and hit the concrete barrier causing the motorcycle to turn completely around and face south sliding backwards about two car lengths. The motorcycle then fell over. Once the motorcycle started to slip, Claimant couldn’t control it.
After the accident, Claimant stood by the concrete barrier until the police officer arrived. He told the police officer that the motorcycle tire slipped on the wet black tape. Claimant did not go back to the place where his tire slipped, however, he walked over to the strip of tape in front of where his motorcycle ended up and slid his foot across the tape. He testified that it was slippery - about as slippery as the pavement. Claimant injured his right foot and needed stitches. He also injured his right arm, right elbow, back, and legs and was taken by ambulance to University Hospital where he was treated and released later that day.
Andrew Fuller, the engineer-in-charge on the I-481 bridge rehabilitation project, oversaw the reconstruction contract which was awarded to Vector Construction Corporation. Other subcontractors also worked on the project. Mr. Fuller directly supervised the State inspectors who made sure the contractors performed to the contract specifications. As part of the project, the shoulders on the northbound lane of Route 481 were resurfaced because traffic was diverted onto the shoulder. By July 16, 2003, all of the shoulder work on northbound Route 481 had been completed - that is the area between Rock Cut Road and Jamesville Road by the bridge over the Susquehanna and Western Railroad and the northbound traffic had been reduced to one lane. To reduce the roadway to one lane, temporary concrete barriers were used. To cover the existing fog line, the subcontractor, Hi- Lite Markings, Inc., applied nonreflective black tape, referred to as item 06619.1914M. Hi-Lite was the subcontractor for placement of pavement markings on the project. The tape used was approved by the Department of Transportation, and State inspectors reviewed and approved the placement of the black tape on the project. The tape is designed to be slip-resistant, withstand traffic and remain at least as slip-resistant as the pavement.
Defendant asserts that an acknowledgment that the State breached no duty of care has been established by Claimant’s testimony - that at the time of his accident the black tape was no more slippery than the pavement and, as a result, summary judgment should be granted.
Summary judgment, as is often said, is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395). Here, Claimant undisputedly attributes the swerving of his front motorcycle tire to the slipperiness of the black tape used to cover the existing fog line. The roadway was wet. Claimant, a fairly experienced motorcycle driver, was traveling relatively slowly, watching where he was going on a route he traveled frequently. Defendant supervised the construction of the roadway and approved the use of the black tape in question and its application to this roadway. Thus, the question turns to whether under any interpretation of the facts Defendant could be found negligent in its authorization or by the application of this black tape to conceal the existing fog line at the location of Claimant’s accident. In other words, do the facts allow for the inference that the application of the black tape at the location that Claimant lost control of his motorcycle created an unreasonably dangerous condition for which liability may be imposed.
The State has a non-delegable duty to adequately design, construct, and maintain its highways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271). Although Claimant has the burden at trial to establish that the State either created a dangerous condition or had actual or constructive notice of such a condition and failed to take remedial steps to correct the condition (Anthony v Wegmans Food Markets, Inc., 11 AD3d 953; Guido v State of New York, 248 AD2d 592; Gillooly v County of Onondaga, 168 AD2d 921), on a motion for summary judgment Defendant has the burden to establish its defense as a matter of law by evidentiary proof (Friends of Animals v Assoc. Fur Mfrs., 46 NY2d 1065, 1067-1068). Only then does the burden shift to the Claimant to come forward with proof to show a genuine question of fact exists (Oswald v City of Niagara Falls, 13 AD3d 1155). All evidence must be viewed in a light most favorable to Claimant and all inferences must be construed in Claimant’s favor (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 314).
Here, Defendant has met its burden and has undisputedly established, by the affidavit of Mr. Fuller and Mr. McNeely, that the black tape used at the location of Claimant’s accident was approved for use and complied with the contract specifications for the State. It was the type of tape used on a number of other highway projects for the State. Mr. Fuller drove this section of the roadway daily and did not note any deficiency in the tape. There were no complaints about the tape on this project and there were no other accidents related to the tape during this project. Mr. Fuller indicated that, in his experience, this tape was durable, held up well to heavy traffic, and was as slip-resistant as regular asphalt paving whether wet or dry. Mr. McNeely, in his affidavit, described how the tape was applied to the roadway. He also described the durability of the tape and indicated that it was used consistently on a number of State projects and its application had been inspected and approved on this project.
Claimant has failed to come forward with any proof that the tape was inappropriate for use at this location or was negligently applied on this occasion. Although Claimant undisputedly testified his tire slipped on the tape, neither he nor the police officer went back to the location where his tire first slipped to investigate the condition of the tape at that point. There is no interpretation of the undisputed facts which would indicate the State was negligent in the use of this black tape at the location of Claimant’s accident.
Defendant’s motion is accordingly GRANTED and the claim is dismissed.

November 29, 2005
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion...............................................................................................1

Affidavit of P. David Twichell, Esquire, in support, with exhibits attached

Memorandum of Law on behalf of the Defendant.............................................3

Affidavit of Stephen M. Zweig, Esquire, in opposition, with exhibits
attached thereto.......................................................................................4

Letter dated September 6, 2005, from P. David Twichell, Esquire,
in support.................................................................................................5

[1]Attached to Mr. Fuller’s affidavit are exhibits which are not in admissible form and were not considered by the Court.
[2]Attached to Mr. Zweig’s document is an uncertified copy of the police report which was not considered by the Court in deciding this motion.
[3] The term Claimant will be used to refer to Otis Shepherd unless otherwise specified.