New York State Court of Claims

New York State Court of Claims

SKINNER v. THE STATE OF NEW YORK, #2005-028-010, Claim No. 103751


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:
Law Offices of Robert Middleman
BY: Robert Middleman, Esq.

Manoussos & AssociatesBY: Lorenzo V. Delillo, Esq.
Defendant's attorney:
BY: Frederick H. McGown, III, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 26, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


In the instant Claim, the Claimant seeks damages for personal injuries suffered and property damage incurred as a result of the alleged negligence of The State of New York. The Claimant, Linda Skinner, while driving along Route 73 in Essex County, came into contact with rocks and debris which had fallen on the roadway. The accident took place at approximately 1:30 a.m. on May 7, 2000. She had been driving from Freeport, Long Island
, to Potsdam, New York.
The negligence of the State was predicated upon the State's failure to warn the Claimant of the condition, and its failure to remedy a situation that it knew posed a potential hazzard to motorists using Route 73. The trial of the claim was bifurcated (T-5-9)[1]
. In support of her contention, the Claimant relied primarily upon the testimony of two individuals: Mr. Douglas Hadjin, a Department of Transportation (hereinafter DOT or the Department) employee; and Mr. Marvin Specter, a licensed engineer.
Mr. Hadjin testified that the State of New York began a study or inventory of rock slopes after one such slide caused a fatality in the late 1980's (T-94-17). He noted that he had evaluated the slopes along Route 73 in the area of the accident in August 1992 (T-36-19). As a result of his inspection, he rated the slopes and gave them a relative risk score and for Site 2029, the area of the accident (also referred to as mile marker 1580 + 75 feet (T-39-24), he recommended a recut angle of 3 (41-6). He also computed removal of approximately 4063 cubic feet of rock (T-41-22) and noted to the best of his knowledge no recutting had ever been done (T-43-11).

He also rated three of the six categories in the area as 81 (T-44-10), which would have called for treatments of either pre-splitting, installing a fence or barrier, or scaling (T-47-18). Again, he stated to the best of his knowledge none of these treatments had been done (T-47-21; T-92-21). He also reviewed the history of rock slides in this area (T-86-88).

The Claimant also called as its expert, Mr. Marvin Specter, a civil engineer, who had been practicing engineering since 1949. Mr. Specter opined that in the slope area of the accident, there was an extended history of instability (T-260-13). He concluded that the cause of the incident was the Department's failure to remedy the obvious hazzard (T-266-7). In response to a question concerning the possible treatments which could have been used, such as "re-cut
, rock bolting, rock scaling, mesh, fence or barrier, including gabion walls" (T-267-19-20), he concluded that the refusal to use any of these treatments was a manifest failure on the Department's part (T-268-1).
Mr. Specter, on cross-examination, did acknowledge that he hadn't been to the scene of the accident in years (T-269-14); never tested the slope in question to see where any rock cut should have occurred (T-275-11); could not estimate the possible cost of remediation (T-277-12); had no estimate of the Department's right of way on Route 73 (T-280-14); and finally, he was unable to pinpoint from the photos, which were in evidence, the area from which the rocks in question had fallen (T-276-16), or even where the remediation should have taken place (T-277-3). Mr. Specter was also unable to make a definitive statement as to whether the use of a gabion wall along the entire edge of Route 73 could have prevented the rock fall in question (T-311-21).

The State in its case submitted evidence that the signage depicting this area of Route 73 as a falling-rock zone was appropriate. Mr. Reed Sholtes, the supervisor of traffic operations at DOT, testified concerning the signage requirements for a falling-rock
zone and the fact that they were depicted in the photos in evidence (T-144-169). The State also called a witness who testified about the history of the Adirondacks and the difficulty in gaining permission from the Adirondack Park Agency to remediate problems.
Mr. William Curran, a project manager for the L.A. Group, who had previously been employed by the Adirondack Park Agency (hereinafter the Agency), testified that the authority of DOT on Route 73 ended at the end of its right of way (T-393-7). He further testified that if DOT sought any substantial change in the area, it would require going to the Agency, even if it was within its right of way (T-406-7). He also stated that even if DOT made various recommendations to remedy a situation, they had no authority to remedy it outside of their right of way (T-431-6).

Finally, the State called Paul Pirro, who worked for U.R.S., a consulting firm used by the Department. Mr. Pirro was an engineer in charge of remedial work performed on the area involved in this incident in 1990 (T-467-5). He testified that six hundred linear feet of stone were removed, two hundred cubic feet of boulders were broken up, and nine hundred sixty-five linear feet of gabion walls were constructed along the area in question in 1990 (T-516-10).
The State has a duty to maintain its highways in a condition reasonably safe for ordinary travel (
Friedman v State of New York, 67 NY2d 271). Where the State fails to provide reasonable care, it will be held liable for injuries which result ( Shaknis v State of New York, 251 App Div 767 [3rd Dept 1937], affd sub nom. Doulin v State of New York, 277 NY 558). However, the State must be shown to be negligent (Asnip v State of New York, 300 AD2d 328 [2nd Dept 2002]) and, accordingly, to have had notice of the defect ( Martin v State of New York, 305 AD2d 784 [3rd Dept 2003]; Asnip v State of New York, supra at 329).
Here, while there was testimony by Mr. Hadjin that one area was more unstable than some of the surrounding areas, there was no proof that the falling rocks came from that area. The Claimant's own expert admitted that he was unable to tell where the rocks came from (T-276-6). The attorney for the Claimant attempted to prove his case by
suggesting that since one area along the roadway was more unstable, it must have been responsible for the falling rocks. This logic falls short of Claimant's burden of proof. The State cannot be held liable where there is no proof of any maintenance failure on its part (Friedman v State of New York, supra at 286). Furthermore, the testimony of Mr. Pirro established that one of Mr. Hadjin's recommendations had been implemented, namely the use of a gabion wall. Where the State has taken an action to remedy a situation, it will not be found liable for negligence absent proof that there was no adequate study or reasonable basis for the State's actions (Weiss v Fote, 7 NY2d 579, 585-586). Here, no such proof had been offered. On the contrary, the Claimant's attorney – through no fault of his own – appeared to have been taken by surprise when he learned that the State had, in fact, erected a gabion wall. His entire case had been premised upon the State's having failed to take any action to remedy the potential hazzard.
Based upon all of the above, the Court is constrained to dismiss the Claim.

Let judgment be entered accordingly.

October 26, 2005
Albany, New York

Judge of the Court of Claims

[1] The numbers represent the page and line of the official transcript.