New York State Court of Claims

New York State Court of Claims
HART v. THE STATE OF NEW YORK, #2006-028-004, Claim No. 101506

Claimants were injured when their car skidded on “black ice” on the Taconic State Parkway. After trial, the claim is dismissed as Claimants failed to prove that the State had notice of the dangerous condition in sufficient time to have taken any remedial action.

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:
KELLY & MEENAGHBY: Thomas F. Kelly, III, Esq.
Defendant’s attorney:
BY: Dennis M. Acton, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 8, 2006

Official citation:

Appellate results:
AFFIRMED 43 AD3D 524 3D DEPT 8/2/07
See also (multicaptioned case)

Teresa C. Hart and Maureen Hart, mother and daughter, were injured on December 4, 1997 as they were traveling on the Taconic State Parkway. Their claims were joined for trial on the issue of liability, and this decision relates only to that issue.
The accident occurred as the Hart vehicle, owned and driven by Teresa Hart, was traveling north on the Taconic State Parkway, near the town of Taghkanic. At trial, Maureen Hart testified that her own car was in the shop that day and consequently her mother was driving her to her job at Taconic Hills Middle School. They left home around 7:00 a.m., planning to reach the school by its 8:30 a.m. starting time. She stated that the weather was fine and there was no snow on the roadway, and she estimated that her mother was driving at approximately 50 miles per hour (mph). Maureen commented that typically her mother never exceeded this speed. Her mother’s car was new; its tires were in good condition, and the brakes were good. She recalled that they had driven past a sander on the road before they reached the accident site.
The accident occurred, she stated, about 10 miles from their starting point, as the road was making a long curve to the right. She identified Exhibits 1 through 10 (photographs) as accurately depicting the contour of the road at this location. Other photographs (Exhibits 11 through 22) showed the road approaching the accident scene. She said that the accident occurred near the “rock-cut” pictured in Exhibits 13 and 14.
Although she, along with her mother, was watching the roadway, she saw nothing unusual, even as their car began to slide on the surface of the road. This occurred just as they reached the guide rail shown in Exhibits 16, 17, and 21. Maureen stated that it felt like the car was “on ice”
even though she could not see any ice. At first their car remained on the northbound lanes, with the car parallel to the road but sliding to the left, then the right, and then left again. Just north of the end of the guide rail, the car went off the road to the left, hit a culvert (see, Exhibit 10) and then flipped and rolled two times down across the median, finally coming to rest on its wheels on the southbound lanes of the divided highway. She estimated that the bottom of the median was approximately 25 feet lower than the northbound lanes. The southbound lanes were higher than the median but not so high as the northbound lanes.
After the car came to a rest, Maureen exited the vehicle. The driver of a northbound vehicle called down and asked if he could help, and several southbound vehicles stopped because they could not get past Claimants’ car. While they were waiting for assistance, Maureen saw another northbound vehicle fail to negotiate the same curve and slide down the hill. She stated that the people who had been standing around their car had to turn and run to get away from it. That second vehicle finally came to rest north of Claimants’ car. Maureen also recalled that approximately 20 minutes after their accident, the sander that they had seen earlier came by.
Teresa Hart, who was 78 years old at the time of trial, testified that she was the owner and operator of a 1998 Toyota Camry sedan involved in this accident. She stated that on the day in question she was driving at approximately 40 to 50 mph, which was below the posted speed limit. Her car was only five months old and was equipped with automatic transmission; there had been no mechanical problems during the short time she owned it. She also described the weather as fine and “beautiful” and agreed that there was no ice or snow on the roadway. She agreed with her daughter that they had traveled approximately ten miles, possibly less, passing only a sander during that time. She was paying attention to the road and was not eating, drinking or using a cell phone as she drove. Teresa stated that she had typically driven on this portion of the Taconic Parkway approximately 2 to 3 times a year, although she had never driven on it in winter before.
As the car began to slide, Teresa took her foot off the gas pedal, and she did not attempt to use the brakes at any point. She described the accident as it had been depicted by her daughter: sliding to the left, to the right, then back to the left again, at which point it went off the roadway just beyond the guide rail. She recalled that the air bags deployed. After the car came to rest in the southbound lanes, she had to exit her car from the passenger side door. She, too, saw the other northbound vehicle fail to negotiate the curve and slide down the hill, coming to rest on the southbound lanes north of her car.
Also testifying at trial was Wayne Shutts, the Department of Transportation (DOT) highway maintenance supervisor for the Hudson region. When asked to describe the “rock cut” located near the accident site (see Exhibit 14), he said that it was created when the highway was put down, when the road builders blasted out a portion of a rock outcropping rather than building over its top or going around it. Because it is surrounded by rock, pavement near and beside a rock cut is always slightly colder than the pavement to the north and south. (The same is true, he noted, of pavement that is actually laid on top of rock). He estimated the temperature difference is typically no more than 2 or 3 degrees, unless the rock cut actually shades the roadway, in which case the difference would be greater. He stated that DOT employees are given no special training or instruction on how to maintain roadways located in or near a rock cut. Shutts acknowledged that water in the air (condensation, moisture, fog) has an effect on the road’s surface under certain conditions and that the rock cut in question here typically shades the adjacent northbound lanes during the morning hours.
Shutts first saw Claimants’ car just before the accident. It was in the driving lane, and he passed it after following behind for only a short distance. His speed at the time was around 40 to 50 mph, and he estimated that the Hart vehicle was traveling at approximately the same pace. At the time, Shutts, who had been at work since 4:00 a.m., was driving along the Parkway to check for icy conditions on the roadway. There was some concern because the temperature had dropped and, at approximately 6:45 a.m., he had been notified that a vehicle went off the road near Bauer Road, south of this accident location, where there was another rock cut. Shutts had gone to that scene, discovered that the vehicle had already been abandoned. He called for a truck to be sent to salt the road in the area of that first accident and then proceeded south from the earlier accident site and, after a turnaround, north. During this road surface inspection, he positioned his truck to straddle both of the northbound lanes in order, he stated, to “feel” both of them. He also chooses to drive in this fashion, he stated, because it gives him more reaction time if a deer should run out from the side of the road.

As he neared the rock cut under discussion here, Shutts tapped the brakes of his truck. He felt it “wiggle” slightly and said that it had a “glazed” feeling, from which he concluded there was black ice or what he referred to as a “glazed road surface,” present on both lanes. He began coasting because he felt his vehicle slide after its brakes were tapped. He saw no ice, however, either before or after he tapped the brakes. Shutts was aware that the Hart vehicle was behind him, and he watched in his rearview mirror as it encountered the ice in the area of the rock cut, slid for a bit, and then went off the road. He immediately called in the accident on his radio and, as soon as possible, turned around and returned to the scene. After checking on the well-being of the passengers, he walked uphill to the northbound lanes and put out flares. He also saw the second vehicle, a Ford Explorer SUV, leave the road and slide down to the southbound lanes, coming to rest not far from the Hart vehicle.
He reported that earlier that morning, there had been one call to the State Police, apparently at 6:45 a.m. (Exhibit 23), to report “icy spots on southern end of the Taconic State Parkway south of Martindale,” a large area that encompasses the accident site and many other locations. Shutts identified Exhibit 23 as a Supervisor’s Summary Report, in which he recorded the events of the day. This report states that rain had been anticipated that morning but never arrived.
At 4:00 a.m. the road temperatures were 34 to 37 degrees. Although no salting or sanding was ordered, crews were sent north, south and toward Catamount to “check bridges and rock cut areas.” Shortly after he went to the scene of the 6:45 accident near Bauer Road, Shutts determined that temperatures had dropped to 29 to 31 degrees. When he filled out that report, Shutts described Claimants’ accident in the following manner:
As I was traveling north, a car that was right behind me lost control and went off the road and rolled over thru the median coming to rest in the southbound lane. I turned around at Snydertown Rd. and returned [to] the accident scene. I administered first aid to the passenger and set out flares both north and southbound. Some volunteers assisted at the scene and as we were waiting for fire personnel, a Ford Explorer lost control on the same curve and rolled over numerous times coming to rest next to the first vehicle in the southbound lane. D. Coons [who was driving the sander] reported that the Explorer had just passed him at a high rate of speed around Ct. Rt. 10 as he was applying salt.
Shutts stated that he had experienced this type of “glazing” before, particularly in rock cut areas, when the temperature was at or just below freezing. He had had no concern earlier, when temperatures were in the 34 to 37 range, but on this day the temperature dropped quickly, going from 33 to 35 degrees at 6:00 a.m. to 28 to 30 degrees at 7:00 a.m.
When asked about the decision process with respect to ordering sand or salt to be spread, he explained that it involved consideration of a number of different factors, including the availability of manpower to cover the 170 miles of roadway, budget consideration, and environmental concerns.
Applicable Law
The State and other governmental entities that operate public roads owe a nondelegable duty to the public to construct and keep their streets and highways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271, 283 [1986]; Carroll v State of New York, 157 AD2d 697, 698 [2d Dept 1990]). The State is not, however, an insurer of the safety of its roadways, and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]) or allow the inference of negligence (Koester v State of New York, 90 AD2d 357 [1982]). Liability will attach only where it is established that the municipality’s planning decisions were made without due care or are inherently unreasonable (Weiss v Fote, 7 NY2d 579 [1960]; Schuls v State of New York, 92 AD2d 721 [4th Dept 1983]); where the State created the dangerous condition (Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892; Valentino v State of New York, 62 AD2d 1086 [3d Dept 1978]); or where it had actual or constructive notice of a dangerous condition (Harris v Village of East Hills, 41 NY2d 446 [1977]; Rinaldi v State of New York, 49 AD2d 361 [3d Dept 1975]). In those situations, failure to either correct or warn motorists of known hazards can be a breach of the State’s duty toward motorists.
With respect to constructive notice, it may be inferred where it is shown that defendant had actual knowledge of a recurrent condition, thereby permitting defendant to be charged with constructive notice of the specific recurrence of the condition (Migli v Davenport, 249 AD2d 932, 933 [4th Dept 1998]; Padula v Big V Supermarkets, Inc., 173 AD2d 1094, 1096 [3d Dept 1991]). To constitute constructive notice, a defect must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it (Cappolla v City of New York, 302 AD2d 547 [2d Dept 2003], citing Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).
In order to prevail in this action, therefore, Claimant must show: 1) the existence of a dangerous condition; 2) that the State created the condition or had either actual or constructive notice of the condition; 3) that the State failed to remedy the condition within a reasonable time; 4) that such condition was a proximate cause of Claimant's accident; and 5) that Claimant sustained damages (Gordon v American Museum of Natural History, supra; Ligon v Waldbaum, Inc., 234 AD2d 347 [2d Dept 1996]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955).
The standard imposed by the rule of ordinary negligence is “due care under the circumstances” (Saarinen v Kerr, 84 NY2d 494, 501 [1994]), and the State “is not obligated to employ a constant vigilance over its highway network, but only to pursue reasonably plausible measures” (Freund v State of New York, 137 AD2d 908, 910-11 [3d Dept 1988]). With respect to the State’s duty to maintain its highways during the wintertime, this means that the presence of ice, snow or water on a roadway at the time of an accident does not, by itself, establish that the State was negligent, nor does the fact an accident occurred because a vehicle skidded on ice or snow (see Timcoe v State of New York, 267 AD2d 375 [2d Dept 1999]; Johnson v State of New York, 265 AD2d 652 [3d Dept 1999]; Valentino v State of New York, 62 AD2d 1086, 1087 [3d Dept 1978], appeal dismissed 46 NY2d 1072). Total vigilance over all its roadways during the winter period is not expected. Rather, the State must exercise reasonable diligence in road maintenance (Tromblee v State of New York, 52 AD2d 666 [3d Dept 1976]).
As noted above, two of the elements that Claimants had to establish by a preponderance of the credible evidence were the existence of a dangerous condition and the State’s failure to remedy that danger within a reasonable time period. This was not accomplished. To hold the State liable in this instance would require the Court to find that the State had a duty to salt or sand certain portions of the Taconic State Parkway at a time when there was no apparent danger: early temperature readings showed no risk of ice forming; there had been no precipitation; and prior to 6:45 a.m., there were no reports of ice forming at any relevant location. The first notice that the roadway was becoming dangerous occurred around that time, when there was a call relaying very general information about icing and when the first accident, at Bauer Road, was reported. A sander was sent to that location and Shutts had started driving north to inspect the next rock cut area when he, and the two cars behind him, encountered the black ice condition.
“Black ice,” is a thin glaze of clear ice through which the pavement appears to be normal (Martin v Albany County, 138 AD2d 811 [3d Dept 1988]; Hicks v New York State Thruway Authority, Ct Cl, Claim No. 101928, #2003-018-270, Fitzpatrick, J. [“Black ice . . . is by definition not readily ‘visible and apparent’ ”]). Since, by its very nature, it is something that does not give warning because it cannot be seen (see McDonald v State of New York, 307 AD2d 687, 689 [3d Dept 2003] [“neither party had actual or constructive notice of the existence of black ice at the scene of the accident”]), courts have frequently recognized that an individual who is unable to control his car as a result of hitting a patch of black ice has not necessarily been negligent (see e.g., Monahan v Devaul, 271 AD2d 895 [3d Dept 2000]; MacFarland v Reed, 257 AD2d 802 [3d Dept 1999][“emergency doctrine” instruction is appropriate where there is testimony that the driver encountered black ice]; Barresi v Kapr, 226 AD2d 1074 [4th Dept 1996]).
If it is not possible for motorists to see this condition ahead of time, the same difficulty is faced by highway maintenance crews. In fact, the person patrolling the roads to look for dangers, Shutts, testified that he still did not see any ice even after his vehicle started to skid slightly when he tapped his brakes. There was no time for him to take any precautionary measures during the few moments that passed before Claimants’ vehicle left the road.
In the absence of any expert testimony establishing that the conditions present on the morning in question were so likely to result in black ice, at least in the area of rock cuts, that the standards and procedures of responsible highway maintenance would require salters or sanders to be sent out in advance of the condition occurring, there is simply no basis for finding the State liable in these circumstances.
The Chief Clerk is directed to enter judgments in favor of Defendant, dismissing the claims.
Let judgments be entered accordingly.

February 8, 2006
Albany, New York

Judge of the Court of Claims

[1] Unless otherwise indicated, all quotations are from the Court’s trial notes or the electronic record of the trial.
[2] There was no evidence to support the suggestion by Claimants’ counsel that this manner of driving indicated Shutts’ knowledge that there were potential problems in the rock cut area (Claimants’ post-trial memorandum).
[3] A weather report for the Town of Copake, the adjacent town to the east (Exhibit 31) showed some precipitation on the morning in question, but in the Court’s view this does not carry significant weight in view of the fact that all witnesses agreed that along this portion of the Taconic State Parkway, there was no precipitation that morning.
[4] Shutts was not certain if these readings were taken in a rock cut area.