5. Claimant's unsworn reply, dated March 21, 2005.
I heard oral argument on the motion on March 22, 2005. Both Assistant Attorney
General Ramsay and Mrs. Schraf appeared. On March 16, 2004, Claimant's son was
driving south on New York Route 15 (West Henrietta Road) in the Town of
Henrietta in a car registered to Claimant. There was a snow storm in progress
and visibility was poor. Claimant's papers state that the car her son was
driving came to a violent and sudden stop just south of the Brighton Henrietta
Townline Road intersection in the right hand lane. The Police Accident Report
attached to the claim states that a "large rock" was in the middle of the lane
and "wedged" underneath the car. Claimant states that her son did not see
anything in the road prior to the accident.
The car was towed away and pronounced "totaled" by the collision shop. In the
meantime, personnel from the Monroe County Sheriff's Department and the New York
State Department of Transportation ("DOT") had the boulder moved from the
roadway to the sidewalk where it remained for several days until it could be
removed from the area (Severino Affidavit, Exhibit B). Claimant alleges that
the Defendant failed to "adequately maintain Route 15" and that this failure led
to her son's accident and the resulting property damage.
Defendant has answered and now moves to dismiss the claim, pursuant to CPLR
3211(a)(7), failure to state a cause of action, or in the alternative, pursuant
to CPLR 3212, for summary judgment. Claimant has submitted responding papers
and I heard oral argument on March 22, 2005.
There is no dispute that the large rock referenced in the police report is, in
reality, a boulder 12 inches high and about 24 inches long. The Assistant
Attorney General discussed the fact that it took three rather strong men to move
the boulder from the road to the sidewalk. Claimant described the boulder as
weighing approximately 500 pounds. Clearly, this is not something one would
expect to find laying in the middle of Route 15. As certain as we are about the
size of the boulder, we are bereft of certainty about how the boulder arrived at
The positions of both Claimant and Defendant regarding the boulder are
consistent inasmuch as both believe that it could not have been in the road for
a long period of time. Defendant speculates that the rock dropped off the back
of a truck (Severino Affidavit, Exhibit B.) Claimant speculates that a snowplow
deposited it in the road. There is no dispute that Defendant became aware of
the boulder only after the accident (Severino Affidavit, Exhibit B).
To most people, it is reasonable to postulate that the mere presence of the
boulder in the highway means that someone did something wrong and that the
injured party should be compensated for his or her loss. That legal theory is
called res ipsa loquitur. To recover under such a theory, we must infer
that the State was negligent. "Claimant must show that: 1) the event must be of
a kind which ordinarily does not occur in the absence of someone's negligence;
2) it must be caused by an agency or instrumentality within the exclusive
control of the defendant; and 3) it must not have been due to any voluntary
action or contribution on the part of the plaintiff. Dermatossian v NYC
Transit Auth., 67 NY2d 219, 226" (Turchetti v State of New York, Ct
Cl, May 21, 2002, [Claim No. 94813], Fitzpatrick, J., UID #2002-018-141.)
Although I agree with Claimant that this kind of thing would not ordinarily
occur in the absence of someone's negligence and I do not believe that
Claimant's son contributed in any way to the situation, res ipsa loquitur
cannot apply in this matter because Route 15, a well-traveled, public
highway, was not under Defendant's exclusive control. Not only is the snow
removal function the responsibility of another municipality, but no DOT
snowplows were plowing the highway the night of the accident (Severino
Affidavit, Exhibit B). Moreover, there is no evidence that the instrumentality
which caused the injury, the boulder, was ever under Defendant's control. Thus,
Claimant is left with a cause of action for negligence.
The State, as landowner, owes a duty to maintain its property in a reasonably
safe manner for the benefit of persons on the land. This duty is based on
standard negligence principles (Basso v Miller, 40 NY2d 233). However,
the mere fact that a dangerous condition exists does not automatically make the
owner liable for injury caused by that condition. A property owner is not an
insurer of the safety of those on the land (Barnaby v Rice, 75 AD2d 179
). To establish a prima facie case of negligence, the Claimant must
"demonstrate either that the defendants created the dangerous or defective
condition which caused the accident, or that they had actual or constructive
notice of the condition" (Dima v Breslin Realty, 240 AD2d 359, 360).
Claimant has not alleged either actual or constructive notice and has offered no
evidence, apart from speculation, that Defendant created the hazard. Claimant,
therefore, cannot recover on the theory of negligence. Despite the
circumstances and what appears to be an inherent unfairness, I must grant
Defendant's motion to dismiss the claim.
Accordingly, it is
ORDERED, that Defendant's motion to dismiss the claim is granted. The Clerk of
the Court is directed to close the file.