New York State Court of Claims

New York State Court of Claims

KIRSCH v. THE STATE OF NEW YORK, #2006-032-507, Claim No. 108695


Case Information

1 1.The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Kenneth Esrick, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Frederick H. McGown, III, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 2, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

This claim is for property damage to an automobile in the amount of $8,842.00. Claimant maintains that on March 24, 2003, a sunny and dry day, his 1997 Subaru Impreza was damaged beyond repair while being driven by his daughter on Route 22 in Austerlitz, New York. He claims that the Department of Transportation (hereinafter DOT) had notice that icy potholes were a problem at this location before the accident. After a one-day trial on February 22, 2006, the Court dismisses the claim.
At the time of the accident, claimant's daughter, Lindsay Kirsch, resided in Spencertown, New York, with her parents and attended high school in Great Barrington, Massachusetts. On the morning of March 24, 2003, she was on her way to school heading north on Route 22, and approaching East Hill Road near mile marker 1262 [T:95-96].
As she proceeded up and down a hill, the vehicle hit a series of potholes filled with ice (Exhibits 5 and 6).
This caused her car to jerk into the oncoming lane and, as she steered the vehicle into her own lane, she lost control of the car. The vehicle went off the road, hit a tree and flipped over. Although she was remarkably uninjured, the vehicle was damaged beyond repair. The vehicle was not insured with collision insurance. Although the posted speed limit on the road was 55 mph, Ms. Kirsch admitted that she was traveling about 62 mph. She also admitted that the day of the accident was not the first time that she saw the potholes at that point on Route 22. At the time of the accident, she had only been licensed to drive for approximately two months (T:103).
State Trooper Terry A. Moon responded to the scene of the accident. He wrote his observations of the accident scene as follows: "V1 NB on SR 22 lost control after encountering ice covered roadway unexpectedly (culvert had overflowed and frozen) and came to rest on the eastbound shoulder" (Exhibit 7). He did not issue Ms. Kirsch a ticket. It was clear to him that ice had formed on the roadway due to a culvert that had overflowed, causing the water to spread into the road. He testified that the general condition of that road in that area was that it heaved and was bumpy. In the past he had categorized it as "one of the worst roads in the county" (T:121).
Francis M. Pizza, a DOT assistant resident engineer for Columbia County, testified that since the late 1990's, there had been several recommendations for an overhaul of Route 22. The foreman’s daily reports indicate that before the accident, the area near mile marker 1262 was patched seven times with cold patch and salted once (Exhibit 1). The reports also indicate that on February 26, 2003 and March 7, 2003, at mile marker 1266, small trenches were cut in the shoulder of the road to send flowing water to the ditch line in order to divert the water from the shoulder and the road. Mr. Pizza admitted that within the six-month period prior to March 2003, Route 22 was the worst road in Columbia County. He also testified, however, that in 2000, a reconstruction project program was recommended for Route 22 by the then DOT resident engineer for Columbia County. The physical repair of the road occurred in Summer 2003. Mr. Pizza, also called as a witness for defendant, testified that hot patch which is used for permanent repairs until April 15 of a given year, is unavailable during the winter months. He identified Exhibit K as a project initiation form that was prepared and submitted by him in Spring 2001 for rehabilitation of the road at or around the accident site.

Robert A. Meehan, the highway superintendent for the Town of Austerlitz, testified that Route 22 was lower than most of the ground around it and that DOT had problems with water coming onto the road because of underdrains or ditches being plugged. He knew that during the winter weather, DOT was having an icing problem on that road. He admitted that cold patch is used for most temporary repairs and was an appropriate method for repairing roads in winter but, in his experience with the county roads, if cold patch did not adhere to the hole, he would replace the cold patch with concrete. He also admitted that permanent patches are not made in March. He believed that the road was rough due to the underlying drainage problems since the water that overflowed onto the road loosened the cold patches, and that the DOT knew about the problem for at least two years before this accident.
It is well settled that claimant must establish his negligence claim by a preponderance of the evidence (see Marshall v State of New York, 252 AD2d 852, 854 [3d Dept 1998]). Further, although defendant is charged with the responsibility of maintaining its highways in a reasonably safe condition, it is not an insurer of such highways (see Winters v Town of Germantown, 20 AD3d 713 [3d Dept 2005]); Freund v State of New York, 137 AD2d 908 [3rd Dept 1988]),
lv denied 72 NY2d 802). The mere presence of snow, ice, or water on a road, or the fact that claimant’s daughter lost control of her vehicle, does not establish that the State was negligent (see Timcoe v State of New York, 267 AD2d 375 [2d Dept 1999]; Johnson v State of New York, 265 AD2d 652 [3rd Dept 1999]). The pertinent inquiry is whether defendant created the condition or had notice of it for a sufficient amount of time to correct it and, if this is established, whether defendant's maintenance practice was reasonable in responding to the condition (Johnson v State of New York, supra).
It is evident from the testimony of Trooper Moon and Mr. Meehan that the State Police and the Town of Austerlitz knew that Route 22 was in need of repair for the overflowing culverts that caused ice in the road during the winter months. It is further clear from the testimony of Francis Pizza that defendant knew that such repair was needed at least for 6 months before the accident and probably 3 years prior to the accident when the resident engineer for Columbia County recommended the repair. The Court also finds, however, that defendant’s maintenance practice was reasonable in responding to the condition of the road. Defendant had started the process for requesting funds for the repair in 2000, and the repair was actually completed in 2003. In the 3 months prior to the accident, defendant had road crews repair the road near mile marker 1262 seven times, salt it once and attempt to repair the culvert twice. The Court finds that these actions were reasonable in responding to the condition of the road. Thus, claimant has failed to prove by a preponderance of the evidence that defendant was negligent regarding this matter. As such, the claim is dismissed.
Let judgment be entered accordingly.

June 2, 2006
Albany, New York

Judge of the Court of Claims

[2].All references to the one-volume transcript are designated by "T".
[3].These photos were taken 10 days after the accident after the repairs were made to the road (T:101).
[4].This rehabilitation of the road was not done before the time of the accident.