New York State Court of Claims

New York State Court of Claims
HAMZAVI v. STATE OF NEW YORK, #2006-018-498, Claim No. 106918, Motion No. M-70297
Synopsis

Defendant brought a summary judgment to dismiss the claim. The causes of action for failure to properly maintain the roadway and failure to warn of a dangerous condition are DISMISSED. The cause of action alleging negligent design remains. AFFIRMED 43 AD3d 1430; 4th Dept 9/28/07
Case Information
UID:
2006-018-498
Claimant(s):
Estate of SIAMAK HAMZAVI by TIMOTHY P. FARRELL, Administrator
Claimant short name:
HAMZAVI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106918
Motion number(s):
M-70297
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
CAHILL & BEEHMBy: Robert S. Beehm, Esquire
Defendant’s attorney:
SASSANI & SCHENCK, P.C.
By: Jane G. Kuppermann, Esquire Mitchell P. Lenczewski, Esquire
Third-party defendant’s attorney:

Signature date:
January 16, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:
AFFIRMED 43 AD3d 1430; 4th Dept 9/28/07
See also (multicaptioned case)


Decision

The defendant moved for partial summary judgment in this wrongful death case. Oral
argument was heard on August 24, 2005.
The claim stems from a one-vehicle accident on northbound Route 81, near the Route 481 interchange, south of the City of Syracuse on December 14, 2000, at approximately 9:21 a.m. The Onondaga County 911 Center received a telephone call about the accident and dispatched the police, an ambulance, and fire and rescue to the scene at 9:24 a.m. New York State Trooper John Kulesa responded at 9:29 a.m. Trooper Kulesa’s report
[1]
and affidavit indicate that the Decedent’s vehicle was traveling in the left, passing, northbound lane when it left the driving area of Route 81 and mounted the guiderail, such that the rear of the car moved on top of the rail, while the front wheels of the car were on the median side of the guiderail on the ground. The car, as it mounted the guiderail, began a counterclockwise rotation. The car hit a bridge abutment approximately 87 feet away from where it first left the pavement, coming to rest against the bridge pier in a southwest position. The Trooper noted, at the time that he arrived at the accident scene, it was not snowing and the pavement was wet and free of debris. There were no skid marks on the roadway. It appeared that Decedent was not wearing a seatbelt and no airbags deployed. Pictures were taken at the accident scene between 10:15 a.m. and 10:25 a.m. which Trooper Kulesa stated accurately represented the scene of the accident.
The claim, filed on November 13, 2002, alleges the following:
The negligence of the State of New York, among other things, consists
of failing to properly maintain Interstate 81 (northbound lanes, including,
but not limited to the left most north bound [sic] lane) at or near the place
of the accident; failing to remove ice and/or snow; failing to sand and/or
salt the roadway to prevent and/or eliminate the slippery condition of the
roadway at or near the scene of the accident; failing to warn decedent of
the said dangerous conditions existing on the roadway at that time;
improperly designing said roadway; designing and/or constructing said
roadway in such a manner that said roadway caused or causes motor vehicles
to move or slide left (west), which movement or slide is exacerbated by
slippery road conditions; designing and constructing said roadway so that it
approached too closely to the pillars and structures supporting the roadway crossing at Route 81 North at the place of the accident; designing and installing
an overhead ramp at a place where the horizontal and/or vertical curves of
Route 81 North made the operation and control of motor vehicles more difficult than more flat and straight driving conditions without giving adequate and
proper warning to claimant’s decedent and others; designing and constructing
the overhead ramp at the location of the accident in such a manner as to place
the supporting structure with which deceased collided in an unsafe proximity
to northbound Route 81 roadway; in failing to place and install barriers,
cushions, etc. at or near the pillar or abutment involved in the collision; improperly and/or unsafely designing and locating, and/or installing guide/
guardrails at and south of the pillar or abutment; designing locating and constructing said guide/guardrails in such a manner that it caused or allowed
the deceased’s motor vehicle to become suspended thereon resulting
in loss of control by decedent and causing decedent’s motor vehicle
to come into contact with said pillar or abutment.

The alleged negligence falls into two categories: a failure to properly maintain the roadway, including a failure to warn of a dangerous condition, and a failure to properly design the highway.
In support of its summary judgment motion, Defendant has submitted affidavits of Trooper John E. Kulesa; David DeMong, New York State Department of Transportation (hereinafter DOT), Highway Maintenance Supervisor I; Alexander Ryan, DOT Highway Maintenance Supervisor II; Colin Farr, a professional engineer; and Jeffrey R. Marko, a professional engineer employed by DOT. The deposition testimony of Alexander Ryan, Raymond McDougall, an Assistant Regional Traffic Engineer with DOT, John Fietze, a Regional Design Engineer with DOT, and Willard Ketchum, Principal Civil Engineer with the Regional Design Office with DOT were also provided.
Mr. David DeMong operated a snowplow the night of December 13 and the morning of December 14, 2000. There is no dispute that his route included the portion of Route 81 where this accident occurred. His route took him from North Syracuse to Nedrow and back; one entire run, round-trip, averaged about one and one-half hours. He plowed and salted the left passing lane of Route 81 North five times during the nine and one-half hours before the accident on December 14. He last plowed and salted the accident area roughly an hour before the accident - at 8:20 a.m.
[2]
Within one mile of where the accident occurred, he applied approximately 1,125 pounds of salt, averaging approximately 225 pounds of salt per lane mile (see DeMong’s affidavit ¶7, page 2). His final run over this section of highway, based upon his average trip time, would have been at approximately 9:50 -10:00 a.m., about one-half hour or so after Decedent’s accident.
Mr. Ryan supervised and directed the plowing, salting, and sanding operations for the area in question, the Onondaga East Residency. He assigned David DeMong to plow and salt the left and center lanes of Route 81, northbound and southbound, between North Syracuse and Nedrow. This includes the portion of the roadway where Decedent’s accident occurred. Mr. Ryan also directed Keith Copes to plow and salt the right lane and shoulder of Route 81, northbound and southbound, between Taft Road in North Syracuse and Nedrow. Mr. Ryan also traveled the highways that night along with two other DOT supervisors. From Mr. Ryan’s affidavit, he indicates that there were no reports of icy or hazardous road conditions reported to DOT on December 14, 2000.
The weather for the area, as established by Defendant’s exhibit 25, (Hourly Surface Observations of the National Climatic Data Center at Hancock Airport) indicates that on the night of December 13, 2000, there was light snow. During the early morning of December 14, 2000, there was snow and some freezing rain. As of 6:00 a.m. that morning, there was light snow with fog and mist. After 8:00 a.m., it was no longer snowing although there was fog and mist. Light snow resumed at approximately 1:00 p.m. on December 14. The temperature around the time of the accident was approximately 23 degrees Fahrenheit.
[3]
Trooper Kulsea indicated that it was not snowing when he arrived at the accident scene.
Defendant submitted the affidavit of Colin Farr, a professional engineer, who reviewed numerous DOT documents and photographs, went to the scene to obtain measurements, and itemized his findings regarding the location of the accident:
  1. Northbound 81 consists of two travel lanes approximately 12 feet wide with a left shoulder approximately 8 feet wide.
  1. The surface of these two lanes was new asphalt overlay with an open-textured finish (which is more skid-resistant than older pavement with standard road markings: the left travel lane was edged by a solid yellow line and the right lane edged by a solid white line. A broken white line separates the two travel lanes.
  2. Outside the left shoulder of the roadway is a column 4 feet wide and set back from the guide rail in front of it by 7 feet, 10 inches.
  3. The guide rail is 27 inches high and attached to steel posts 6 feet, 3 inches apart. The length of the guide rail from the beginning of the guide rail, the "flare down," to the edge of the column is 58 feet. The "flare down" is 26 feet long.
  4. The posted speed limit at this location is 65 miles per hour and a warning sign is posted in accordance with the Manual of Uniform Traffic Control Devices advising that the road surface at the location of the accident was prone to icing.
  5. The State had placed a sign warning of potential icing in the accident area in accordance with the Manual of Uniform Traffic Control Devices.
  6. The road had been resurfaced in the summer of 2000 and fresh pavement is more skid- resistant than older pavement.

Claimant, in opposition, submits the affidavit of William C. Fischer, a retired New York State Police Officer and a Traffic Accident Reconstructionist, certified by the Accreditation Commission for Traffic Accident Reconstruction. Mr. Fischer reviewed the photographs taken, approximately an hour after the accident, by the New York State Police and photographs taken by Decedent’s son, reviewed police, fire and emergency rescue reports, visited the accident scene, took measurements, and surveyed the area. Mr. Fischer assessed, whether, in his opinion, the road conditions contributed to the cause of this accident. He first notes that the pictures of the scene, taken 45 - 55 minutes after the accident by the State Troopers, do not necessarily reflect the condition of the roadway at the time Decedent’s vehicle went off of the road. Mr. Fischer concluded that there was precipitation at the time of the accident because the windshield wipers on Decedent’s vehicle stopped mid-swing and, therefore, were in operation at the time of impact. Mr. Fischer points to the snow covering the west shoulder of the roadway at the location of the accident and, in his opinion, Decedent’s tire tracks pass through the snow on the shoulder. There is some visible slush partially covering the northbound passing lane in the area. Otherwise, the travel lanes in the photographs appear clear but wet. Mr. Fischer attributes a loss of traction as a proximate cause of Decedent’s vehicle leaving the travel lane.
Municipalities owe the traveling public a non-delegable duty to construct and maintain their roadways in a reasonably safe condition including adequately addressing snow and other weather conditions as they affect the road (Friedman v State of New York, 67 NY2d 271; McDonald v State of New York, 307 AD2d 687). Yet, in order for liability to attach, the State must have actual or constructive notice of the dangerous condition, and there must be sufficient time for the State to have an opportunity to correct the problem (Barrett v State of New York, 13 AD3d 775). Defendant argues that there was a “storm in progress” affording the State a reasonable time, after cessation of the storm, before liability may be imposed for removal of ice and snow.
The condition of the roadway at the time of Decedent’s accident is unknown, as is the actual reason for his vehicle leaving the traveling lane. Trooper Kulesa stated that at the time he arrived at the scene of the accident the roadway was clear, but wet. Yet, pictures taken by Sergeant John Brunner, at least an hour after the accident, show slush in the northbound passing lane. Although it had been snowing the night before and early morning of December 14, 2000, at the time of Decedent’s accident, according to the records from the weather service, the snow had stopped. The roadway, however, was obviously still wet which could account for Decedent’s use of his windshield wipers. It is undisputed that the State had two plows plowing and salting the travel lanes of this section of Route 81 during the early morning of December 14 until roughly before noon that day. There were no reports of icy road conditions in the area of the accident that day. The State was obviously aware that this section of roadway was prone to icing, given its placement of a warning sign for motorists in accordance with the Manual of Uniform Traffic Control Devices.
To be successful on a motion for summary judgment, the proponent must first present a prima facie showing of entitlement to judgment as a matter of law, then the opposing party must present evidentiary proof to establish the existence of a material fact which would require a trial (Zuckerman v City of New York, 49 NY2d 557; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). In a wrongful death case, such as this, where there are no eyewitnesses to the accident and Decedent is not available to give his account of what happened, the claimant is not held to as high a degree of proof (Noseworthy v City of New York, 298 NY 76, 80). Yet, there must be some showing of negligence before the Noseworthy rule can be invoked (Mildner v Wagner, 89 AD2d 638, 639). On Claimant’s causes of action for failure to maintain the roadway and failure to warn, the Defendant’s motion is hereby GRANTED. Even accepting the proposition that the snowy roadway contributed in some degree to Decedent’s vehicle leaving the traveling lane, the State has provided affidavits and documents which clearly show that there was ongoing, regular plowing and salting on Route 81 during the inclement weather the night of December 13 and the morning of December 14. There were no complaints of hazardous or icy conditions made to the Department of Transportation nor seen by the supervising workers. Even if there was no “storm in progress,” as the snow had stopped, Defendant has come forward with sufficient evidence to establish that the State made a reasonable effort to maintain the roadway in a safe condition, and Claimant has not come forward with any proof that the State had notice of a dangerous condition at this location and failed to take appropriate measures to address it. Although there was clearly some snow or slush accumulation on the roadway from the pictures, the presence of some snow on the roadway does not warrant the imposition of liability (Freund v State of New York, 137 AD2d 908). There has to be some proof that the State failed in its duty to make a reasonable effort at snow and ice removal, and viewing the facts in a light most favorable to Claimant, there are simply no facts which would permit this Court to find that the State breached its duty. Claimant’s counsel’s argument that a question of fact exists as to whether more snowplows were needed to permit more frequent runs on the morning of December 14, does not raise a preclusive triable issue of fact. Claimant has not come forward with any reason why, prior to Decedent’s accident, the State would have been on notice that an additional snowplow was necessary.
The undisputed proof also establishes that the State provided a sign warning that this area of the roadway was prone to icing. This sign was also undisputedly posted in accordance with the Manual of Uniform Traffic Control Devices. Compliance with the manual supports the reasonableness of the State’s placement and use of the sign (cf. Fisher v State of New York, 268 AD2d 849; Zecca v State of New York, 247 AD2d 776). The Claimant has failed to present any evidence on this theory to establish a question of fact.
The Claimant also has a cause of action alleging negligent design of the highway.
The Claimant alleges as follows:
a. roadway caused cars to move left, exacerbated by
slippery conditions;

b. road approached too closely to pillars and structures;

c. installing overhead ramp in area where control more
difficult (curve) without giving warning;

d. design of overhead ramp located to place support pillar
in unsafe proximity to Route 81;
e. failing to place barriers at or near the pillar or abutment;

f. improper design, location and installation of guide rail
at south end of pillar;

1. guide rail not in compliance with NYS Highway
Design Manual Specifications 10.01.04, with
respect to installation of guide rail at a cut slope
2. design of guide rail that allowed car to ramp up
3. failing to follow “clear zone” and “forgiving road”
concepts
4. design guide rail to act as trap to redirect car towards
fixed object
5. failed to design and build according to NYS Dept of
Transportation standards

g. designing locating and constructing guide rail to allow car to
become suspended.

The Defendant has submitted numerous documents and plans in support of its motion and also the affidavits of its experts, Jeffrey R. Marko and Colin Farr. Claimant has responded with his own documents and the affidavits of his experts, William C. Fischer and John A. Serth, Jr. Despite the Claimant’s allegations of various design flaws, the primary issue that both parties focused on involved the guiderail - specifically the end treatment.
Historically, there was a ditch along the west side of Route 81. When Route 481 was constructed, the bridge abutment was built near the existing highway, and a guiderail was added to prevent errant vehicles from hitting the abutment. Claimant alleges the State used the wrong end treatment which allowed Dr. Hamzavi’s vehicle to ride up the rail, with the guiderail directing the car into the abutment. In support of this, Claimant relies upon the New York State Design Manual § 10.01.04, the pertinent part reads:
Where guide rail terminates near a normal longitudinal drainage
ditch in cut, extend the rail into the cut slope and anchor if required
for the type of rail. A sloped terminal section would not be required
for this condition.

Claimant argues that a ditch, albeit a smaller one, still exists on the west side of Route 81 and that this requires that the southern end treatment of the guiderail should have been anchored in the hillside.
[4]

Defendant submits that there is no normal “longitudinal drainage ditch” therefore, the use of the sloped end treatment was proper, and the use and placement of the corrugated beam guiderail was in accordance with NYSDOT Standard Sheet 606-6. After reviewing the submissions, there exist questions of fact as to whether a normal longitudinal drainage ditch exists at this location, what sets of standards apply, and whether the State’s installation of this guiderail, in the manner it existed on December 14, 2000, complied with the established applicable standards and the approved design at the time it was installed (Ferrante v American Lung Assn., 90 NY2d 623, 631). In effect, did the design for this section of roadway have a reasonable basis and was it constructed in accordance with the plans? Willard Ketchum, DOT Principal Civil Engineer with the Regional Design Office, testified during his deposition that he was not aware of what the standard was for guiderails at the time of the design of this section of roadway; it was his opinion, that someone would have checked the design requirements for guiderails during the design stage of the roadway, but he didn’t provide any specifics. He did testify that before he would have signed off on the plans, the design would have been in compliance with the New York State standards at the time. Yet, Mr. Ketchum had no knowledge of what occurred during the actual construction phase, whether the placement of the guiderail was in compliance. Mr. John Fietze, a DOT Regional Design Engineer did not have the record or as-built plans during his deposition.
[5]

Claimant also takes issue with the slope and curvature of the roadway which, Claimant alleges, combined with the existence of the longitudinal ditch to create a “curving chute” which gravitationally directed Decedent’s vehicle into the ditch. Defendant’s expert, Mr. Farr, disputes Claimant’s position and states that the road satisfies the standards for a freeway with a posted speed limit of 65 mph and the AASHTO guidelines of 1986.
Although Claimant has a formidable task at trial to establish that the State’s selection and placement of the guiderail in issue and the design of the roadway lacked a reasonable basis or evolved without adequate study (see Weiss v Fote, 7 NY2d 579), the burden on this summary judgment motion has been met. In light of the conflicting evidence, there are issues of fact which require a trial.
Accordingly, Defendant’s motion for summary judgment is granted to the extent of Claimant’s causes of action for the State’s failure to properly maintain this section of roadway and failure to warn of a dangerous condition are DISMISSED. The balance of Defendant’s motion is denied.

January 16, 2006
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


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

Notice of Motion...............................................................................................1
Affidavit of Jane G. Kuppermann, Esquire, sworn to June 8, 2005, in support,
with exhibits attached thereto............................................................................2

Memorandum of Law by Jane G. Kuppermann, Esquire, in support................3

Affidavit of Ronald W. Centola, sworn to June 8, 2005, in support.................4

Affidavit of John E. Kulesa, sworn to April 30, 2004, in support, with
exhibits attached thereto....................................................................................5

Affidavit of Colin Farr, sworn to June 15, 2005, in support, with
exhibits attached thereto....................................................................................6

Affidavit of Jeffrey R. Marko, Professional Engineer, sworn to June 9,
2005, in support, with exhibit attached thereto.................................................7

Affidavit of Alexander Ryan, sworn to June 9, 2005, with exhibits
attached thereto..................................................................................................8

Affidavit of David DeMong, sworn to June 13, 2005, with exhibits
attached thereto..................................................................................................9

Additional Exhibits 1 - 26 in support of Defendant’s motion filed on
June 20, 2005...................................................................................................10

Affidavit of Robert S. Beehm, sworn to July 28, 2005, in opposition,
with exhibits attached thereto..........................................................................11

Affidavit of John A. Serth, Jr., Professional Engineer, sworn to July 28,
2005, in opposition, with exhibits attached thereto.........................................12

Affidavit of James Pugh, Ph.D., Professional Engineer, sworn to June 8,
2004, in opposition, with exhibit attached thereto...........................................13

Affidavit of William C. Fischer, sworn to July 28, 2005, with exhibits
attached thereto................................................................................................14

Reply Affidavit of Mitchell P. Lenczewski, Esquire, sworn to August 18,
2005, in support...............................................................................................15
Reply Affidavit of Jeffrey R. Marko, Professional Engineer, sworn to
August 18, 2005, in support.............................................................................16

Reply Affidavit of Colin Farr, sworn to August 18, 2005, in support, with
exhibit attached thereto....................................................................................17

Affidavit of Robert S. Beehm, Esquire, unsigned and unsworn,
with exhibits attached thereto...........................................................................18

Memorandum of Law in opposition of Robert S. Beehm,
dated August 22, 2005.......................................................................................19
Supplemental Reply Affidavit of Mitchell P. Lenczewski, Esquire, sworn to
September 1, 2005, in support, with exhibits attached thereto..........................20


[1]Exhibit A, attached to Trooper Kulesa’s affidavit sworn to April 30, 2004. Although not admissible in form, since Claimant relies on the same report (attached as Exhibit E to the affidavit of Robert S. Beehm), the Court has considered it.
[2] Mr DeMong’s Snow and Ice Operator’s Reports are attached to his affidavit as Exhibit A.
[3]Defendant also submits the unsigned affidavit of Howard G. Altschule, a Certified Meteorologist, Claimant’s expert witness in a companion action. However, the Court has not considered it because it is not proper in form.
[4]There is no question that the area was a “cut” section of the highway.
[5] Defendant provided uncertified record plans.