New York State Court of Claims

New York State Court of Claims

LOMAX v. THE STATE OF NEW YORK, #2007-013-502, Claim No. 107181


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:
Defendant’s attorney:
Attorney General of the State of New York
BY: BILGORE, REICH, LEVINE & KANTOR, Of Counsel to Gartner, Bloom & Greiper, P.C.
Third-party defendant’s attorney:

Signature date:
February 27, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim, timely filed on January 13, 2003
, alleges personal injuries sustained by Claimant on the evening of June 30, 2002 when he was operating his motorcycle and lost control while heading westerly at the intersection of Pittsford-Palmyra Road (State Route 31) and Crescent Hill Road, near the entrance to Route 490.
Negligence is predicated upon the alleged culpable conduct of the New York State Department of Transportation (DOT) for the actions, or lack thereof, of the Sealand Contractor’s Corporation (Sealand) pursuant to its contract for the construction/repair/maintenance of Route 31 from Crescent Hill Road to NY Route 250 (Moseley Road) in Monroe County. The trial of this claim was bifurcated and this decision solely addresses issues of liability.
Claimant, who was 31 years of age at the trial, testified on his own behalf in a clear and forthright manner. At the time of this accident, Claimant had been employed at the Pontillo’s Pizzeria on Pittsford-Palmyra Road in Fairport for some eight or nine years, the last four of which as the manager. His shift generally ran from 4:00 p.m. to 10:00 p.m. The accident occurred on a Sunday night in late June when the weather was clear and dry and there had been no precipitation. He left work that evening at about 10:30 p.m., and headed westerly on Route 31, on his regular route to his residence, driving his 1994 Yamaha motorcycle, not his regular means of transportation, one he used occasionally but less than once a week. He testified that on the day before and on the day of the accident, he had consumed no alcohol and taken no drugs or any medications.
He described his regular and customary routine prior to mounting and riding his motorcycle, a practice he followed on the night in question, including a pre-ride bike check while waiting for it to warm up, where he would “roll it back, pull the front brake, make sure the shock suspension worked ... [s]ame thing with the rear and once it’s warmed up, put in the choke and pull out” (Transcript - p. 10). He related that this has been his routine since he had been taught to ride motorcycles by his best friend in 1995.
Thus Claimant embarked on his trip home. He drove on Route 31 for a distance that he estimated to be perhaps four miles, heading westbound past the intersection with Kreag Road where he observed signs indicating the construction zone ahead, the lane reduction from two to one and the reduced speed limit of 30 mph. He was familiar with these general conditions, as construction had been ongoing for some three or four months prior to the accident. Claimant reduced his speed to 30 mph, keeping the motorcycle on the driver’s side tire tread of the westbound lane, with the construction zone, behind cones and safety barrels, to his right, and continued until he stopped at a red light at the intersection with Ayrault Road. Claimant testified that he proceeded a short distance, beyond the end of the construction zone, past the end of the tapered cones and the resumption of two-lane westbound traffic, and past the sign resuming the regular 45 mph speed limit, to the intersection of Route 31 and Crescent Hill Road. Crescent Hill Road immediately precedes the entrance to Route 490, both of which are to the north of Route 31 (to the right for westbound travelers). Claimant slowed his vehicle to under 15 mph and signaled a right turn onto Crescent Hill Road, for the express purpose of stopping to put on a jacket before entering Route 490, a high speed road.
As he leaned into the corner and turned, he spotted gravel in the roadway as he was entering onto Crescent Hill Road. He released his brakes, attempted to straighten out and bring his bike upright (from the lean) and tried to traverse the loose gravel by going straight rather than turning. He estimated a distance of about ten feet from the moment his headlight permitted him to be able to spot,
and then encounter, the loose gravel. Almost immediately his front tire “washed out” and the bike crashed. Claimant was able to roll off the side of the bike as he fell to the ground, rolling onto his back and tumbling over to his stomach where he was able to stop himself with his hands. He started to get up, felt pain, eased his backpack off and dropped back to the ground to get his bearings. He removed his helmet. A car that had been behind Claimant on Route 31 since at least Ayrault Road, stopped and the driver, a “good Samaritan,” put on his emergency flashers and came over to attend to Claimant. Claimant called 911, and, with Claimant’s consent, the good Samaritan pulled the bike off to the side of the road to a location where it was later spotted by Monroe County Deputy Sheriff Thomas Meisch.
It was at this point that Claimant started to examine the area and try to ascertain what he had driven through. Initially he described the scene as containing a pit that had been filled with gravel, with a pile of gravel in front of the pit that he had attempted to drive through. He estimated the dimensions of the pit as about five feet by five feet, and the “pile” of gravel as being about six feet in front of the pit. An ambulance appeared some six or seven minutes later, by which time the good Samaritan had departed, without ever having been identified. According to Claimant, he was in the gurney about to be placed in the ambulance, when Deputy Meisch arrived and interviewed Claimant for perhaps a minute or so before he was transported to the hospital. Deputy Meisch continued his interview at the hospital. Claimant remained at the emergency room until 6:00 am Monday morning and returned home, sleeping most of that day.
On Tuesday, July 2, Claimant, with the assistance of his girlfriend, returned and made a videotape recording of the route he had traveled on Sunday night ending at the accident scene (Exhibit 1). The videotape was admitted into evidence with the caveats that it was taken two days after the accident, that it does not reflect the conditions on the date of the accident, and that it is offered merely to show the general layout of the area. It was augmented with Claimant’s audio description of what his observations were on the night of the accident. The videotape was admitted for such limited purpose[s] and was of benefit to the Court in visualizing the roadway and the intersections referred to, albeit with the understanding that both parties agree that the roadway conditions on the night of the accident are not replicated in the videotape.
On Tuesday when Claimant returned to the accident scene, as depicted on the videotape, he observed that the “pit” that had been filled with gravel was now paved over, black-topped, presumably with asphalt. After cross-examination, it appears that the loose gravel in front of this pit, which Claimant initially described as a pile of gravel, is better characterized as a layer of gravel which he estimated to be about one inch high.
My reiteration in some detail of that portion of Claimant’s testimony regarding his pre-ride bike check provides a backdrop for consideration of a fairly contentious matter between the parties. Claimant was ticketed for operating the motorcycle without a valid motorcycle operator’s license (Vehicle & Traffic Law §509.2), operating an unregistered motorcycle (Vehicle and Traffic Law §410.1) and operating an uninsured motorcycle (Vehicle and Traffic Law §319.1). The tickets were all resolved with a guilty plea to operating an unregistered motorcycle and the payment of a fine (Exhibit B). These traffic charges and the resolution thereof were all acknowledged by Claimant, as of course they had to be. What is significant, and neither the proof nor case law disabuses me of the notion, is that there was no correlation or relevance proffered that would imply any recklessness or culpable conduct by the Claimant related to these traffic offenses.
The essential issues to be resolved are whether the Defendant engaged in culpable conduct, whether the Claimant’s operation of the motorcycle that evening was negligent in any fashion and whether Claimant’s accident and injuries were proximately caused by such negligence. To the extent that the traffic infractions noted above are purportedly relevant, the Appellate Division, Fourth Department, has addressed this issue, holding that:
The convictions for driving without a license and leaving the scene of an accident had no bearing on the issue of liability (Reitano v. Dobbs, 31 AD2d 104; Phass v. MacClenathen, 274 App. Div. 535) such evidence should have been limited to the issue of credibility with explicit instructions to the jury. Gardner's liability was established by overwhelming evidence.

(Kenneth v Gardner, 36 AD2d 575, 576.)

None of the cases cited by Defendant address the correlation between traffic infractions such as the ones herein, and a driver’s negligence. Ando v Woodberry (8 NY2d 165) considered two moving violations, failing to signal and making an improper turn, and there the court found that such were directly relevant to the issue of negligence. In Decker v Rassaert (131 AD2d 626), the fact that the Defendant pleaded guilty to improperly backing up his vehicle, a purported violation of Vehicle and Traffic Law § 1211(a), could not be used to establish negligence per se.
I decline Defendant’s invitation to infer that Claimant was negligent, as a matter of law and fact, in that he failed to operate his motorcycle safely solely because he did not have a valid motorcycle operator’s license, or because he failed to operate it with a person present who did have such license, or because he was traveling at night. The issue is whether the operation of the motorcycle that evening was negligently performed by Claimant, not the mere status as one operating the motorcycle without the requisite license, registration or insurance. I have not discounted Claimant’s credible testimony that he had driven a motorcycle since 1995, for some seven years prior to this incident, and the absence of any evidence refuting his averment that he had never previously been involved in a motorcycle accident. I also considered the Claimant’s forthright testimony regarding his warm-up checklist/safety review prior to operating the motorcycle, which more than offsets any negative inference that I am asked to draw. The infractions for which Claimant was ticketed, and the one he eventually pleaded guilty to, are status offenses and have no per se bearing on the operation of the motorcycle. Accordingly, while I find that the evidence of Claimant’s guilty plea is admissible, I give it little or no weight in assessing the evidence.
On the other hand, Defendant suggests that Claimant was traveling at a higher rate of speed, given the time and conditions, than he should have been, and that this speed contributed in part to his accident. Once again, I consider Claimant’s credible testimony contrasted with Defendant’s speculation. Indeed, Claimant was the only eyewitness to testify,
and while it could be argued that his testimony is self-serving, there was an ample opportunity to assess his credibility. I have therefore accepted his estimation of his speed as he turned onto Crescent Hill Road at 10 to 15 mph, a speed I find not to be excessive. I ascribe no culpable conduct on the part of the Claimant.
As a preliminary matter, Claimant sought to strike the testimony of Deputy Meisch for purported failure by Defendant to “disclose him in its Bill of Particulars” or advise that he was to be subpoenaed. Deputy Meisch did not witness the accident, but conducted an investigation thereafter on the evening in question, authored the MV-104A Police Accident Report (Exhibit A), and issued the traffic citations referenced above. Claimant strenuously objects to his testimony suggesting that Defendant neglected its ongoing obligation to supplement its Bill by identifying him as a potential witness. Even if Defendant perhaps should have supplemented its Bill, Deputy Meisch was listed as a prospective witness at the Trial Preparation Conference conducted two weeks prior to the trial date, and he was not a mysterious previously unknown eyewitness to the accident whose identity was secreted by the Defendant, rather he arrived at the scene shortly after the anonymous good Samaritan had departed. It cannot be said that Deputy Meisch’s appearance or prospective testimony comes as a complete shock or surprise to Claimant, who significantly has failed to demonstrate any prejudice that he would suffer. Claimant’s motion to strike his testimony is denied.
Of course, the weight and probative value of this testimony is mine to make. Claimant testified that the good Samaritan had moved the motorcycle from the spot where it landed, off the road at the beginning of Crescent Hill Road to the shoulder further to the east and closer to the construction zone. There were certain testimonial discrepancies. Deputy Meisch, for example, testified that he had arrived at the scene and started to interview the Claimant, who was sitting on the guardrail, prior to the ambulance’s arrival, whereas Claimant recollected that he was already in the gurney when Deputy Meisch arrived. There also was some question whether the bike was upright or still on its side when he arrived. While these reflect inconsequential distinctions, it demonstrates that two witnesses can both be clear, and can both be credible, yet their testimonies may not be harmonized in all respects.
Because the accident occurred on a Sunday evening in a construction zone, and since the Defendant and Sealand were not even aware of this accident until perhaps one month afterward, there was no reason for the accident site to be preserved to allow its condition to be memorialized as it was that night. Thus, when Claimant returned two days later on Tuesday to view and videotape the scene, ongoing construction work had already altered the intersection. The “pit,” the site of a water main on Crescent Hill Road, was now paved, and the layer of loose gravel in front of it no longer existed.
In that regard, the Defendant offered the testimony of Robert Bernd, the Project Manager for Sealand, who was familiar with the project. He had last been at the site in question on Friday, June 28, when the work closed for that day at about 5:00 p.m., and testified that he did not observe debris on the road surface at the Route 31 - Crescent Hill Road intersection.
On Saturday, June 29, Mr. Bernd worked for half a day doing paperwork at Sealand’s field office near the intersection of Routes 31 and 250, but did not inspect the accident site. He testified that his commuting route took him past the intersection in question in both directions, but he had no reason to, and did not, inspect the site. He did not work and was not in the vicinity of the project on Sunday, June 30. In describing his recollection and observations of the accident site on June 28, Mr. Bernd noted that the water main site was filled with a crusher run, and acknowledged that it could have been covered with an iron sheet but was not.
While Claimant testified that during his inspection immediately after the accident, he observed that the level of the stone around the lip (perimeter) of the pit might have been lower in spots than the edge of the paved surface (below grade), he acknowledged that he fell prior to reaching the pit, and thus any differential in level of the crusher run and the road surface was not a proximate cause of his accident.
I was left to consider whether, in the absence of an iron sheet and the passage of a period of two-plus days, some of the loose gravel/crusher run in the pit may have been “kicked out” of the pit by vehicular traffic and left to accumulate in the front, adding to or forming the layer of loose gravel that caused the accident.
Deputy Meisch, an experienced motorcyclist himself, observed the motorcycle after it had been moved, but was able to mark on Exhibit C2A, a construction drawing of the general vicinity of the accident, the “yaw” marks made by the motorcycle as it entered the intersection, in what he described as a “neutral zone.” The “neutral zone” was characterized as a little wedge shape from where the barrels were angled to the guardrail, an area where cars could not travel, suggesting that Claimant had driven to the shoulder of the road, and impliedly disputing the path asserted by Claimant. However, this description was made at trial, and the path he marked on Exhibit C2A is dissimilar to the path he sketched on the night in question on the MV-104A (Exhibit A). I found Deputy Meisch’s testimony to be sincere and forthright, but must conclude that the more contemporaneous drawing on June 30, 2002 (Exhibit A) is more accurate than his recollections at trial some three years thereafter. I agree with his conclusion that this accident took place in the construction zone, but reject his implication of Claimant’s culpable conduct when he suggested that he drove “beyond” the safety cones and barrels off the traveled road surface into an impermissible/non-traversable neutral zone or the shoulder. Defendant has argued that he went “behind” the areas marked by the cones and barrels, but I conclude from the evidence that Claimant’s path is best described as traveling past them. Even if this area could be deemed the shoulder, it must be maintained in a reasonably safe condition for foreseeable uses, including its use resulting from a driver's negligence (not the case here) and injuries arising from a traveler's use of an improperly maintained roadway shoulder may be compensable through application of general principles of negligence and comparative negligence (Bottalico v State of New York, 59 NY2d 302).
Regardless, while it is clear that Claimant entered into a construction zone, as the water main site on Crescent Hill Road was covered with crusher run and had not yet been paved by Sealand, the more significant question and factor is whether it was marked as such. For example, the accident took place at an intersection past the spot where the roadway was re-opened to two-lane traffic, after the speed was restored to its regular 45 mph limit and at a location past the safety cones and barrels forming a barrier to the actual road-widening construction. There were no road signs (loose gravel or otherwise) or any other indication to a reasonably prudent motorist that s/he was still in a construction zone or that heightened caution was called for. There were no construction spotlights illuminating this unpaved pit filled with crusher run.
Nothing rebuts Claimant’s version of the accident, and I conclude that the accident was caused by loose gravel in front of the water main pit that was paved over between the night of the accident and Claimant’s video of the scene less than two days later.
The State of New York has a nondelegable duty to maintain its roadways in a reasonably safe condition, and the breach of this duty will result in liability to the State for injuries therefrom (Friedman v State of New York, 67 NY2d 271). However, the State is not an insurer of the safety of its roadways, and the mere fact an accident occurred does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). To establish the State's liability, there must be a showing of negligence, that the State created the dangerous condition or had actual or constructive notice of the dangerous condition, that it failed to properly act to correct the problem or warn of the danger (see Brooks v New York State Thruway Auth., 73 AD2d at 768, affd 51 NY2d 892, supra) and that such negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020).
Kuntzsch v State of New York ( Ct Cl, UID #2003-018-267, Claim No. 104687, Nov. 24, 2003, Fitzpatrick, J.) is somewhat instructive as it reviews a motorcycle accident where liability was predicated upon the State’s failure to remove excessive blacktop particles that accumulated after the road had been repaired, or the failure to have warned of that dangerous condition, thereby causing that claimant to lose control of his motorcycle. The State did not dispute the existence of some debris on the roadway but maintained it was not the result of negligent maintenance procedures. After potholes had been refilled with blacktop and the area was broom swept, it was “acknowledged that [the State] should make sure no debris is left on the road because it could create a hazardous condition.” When the job was completed, no caution or loose gravel signs were placed upon completion of the job, and the crew did not return to the site. Of course, in Kuntzsch, there was a disinterested witness who testified that the roadway was covered with debris and who corroborated an excessive accumulation of gravel.
Nonetheless, I am persuaded that here there were no appropriate (and necessary) signs warning of loose gravel and/or noting that construction was continuing past the resumption of two-lane traffic and regular speed. “It is settled law that the State owes a duty to the users of its highways to give adequate and unambiguous warning of the conditions and hazards on its highways” (Merrill Transp. Co. v State of New York, 97 AD2d 921). In the absence of expert testimony or reference to an obligation by rule or regulation establishing a duty, I impute no negligence in the absence of an iron sheet covering the pit, irrespective of Mr. Bernd’s acknowledgment that such a sheet could have been utilized.
Green v State of New York (71 AD2d 761), where the exhibits (presumably photographs which are not present here) and the testimony provided evidence of an accumulation of sand and debris, is more comparable to the claim at bar than Agius v State of New York (50 AD2d 1049, 1050), where the operator of the motorcycle “did not remember seeing any foreign substance in the highway... [and] was unable to explain why the cycle went out of control, but enumerated a number of possible causes.” Here Claimant unequivocally testified as to the cause of the accident.
It is abundantly clear that the Defendant failed to properly maintain the intersection of the unpaved pit by allowing loose gravel to accumulate and failed to warn motorists with appropriate signs or illumination of the dangerous condition it had created at the site of the water main at the entrance to Crescent Hill Road and that such negligence proximately caused Claimant to lose control of his motorcycle and suffer injuries. Accordingly, the Defendant must be held answerable in damages for Claimant’s injuries.
All motions not heretofore ruled upon are now denied.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. This claim will be scheduled for trial on the issue of damages as soon as practicable.

February 27, 2007
Rochester, New York

Judge of the Court of Claims

  1. [1]A notice of intention to file a claim is alleged to have been “filed” with (sic, should be “served on”) the Defendant on August 12, 2002. While such allegation is denied in the answer, no allegation of untimely service or filing is raised or preserved, as required by Court of Claims Act §11(c).
  1. [2] There were no portable construction spotlights or other streetlights at this location, and it was dark except for the lights of nearby motor vehicles.
  2. [3] This is not to imply that there were any other witnesses, and none were listed on the MV-104A Police Accident Report (Exhibit A). It is unclear whether the good Samaritan who assisted Claimant after the accident witnessed it or merely happened upon Claimant shortly thereafter. Regardless, he has remained unidentified.