New York State Court of Claims

New York State Court of Claims

SCHROEDER v. THE STATE OF NEW YORK, #2007-036-101, Claim No. 108278


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:
By: John M. Shields, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 20, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the court’s decision following a one-day trial (liability only) of a negligence claim against the State stemming from a bicycle accident. Claimant, Nicholas Schroeder, alleges the State failed to properly install and maintain a metal drain grate located close to the middle of a shoulder on State Route 347 in South Setauket, Suffolk County, Long Island. When the front wheel of claimant’s road bike started over the drain, the grate shifted and rocked, and the front tire and rim were caught between the grate and its frame, causing the wheel to come to a sudden stop. Claimant was thrown from his bike to the pavement, face down, where he blacked out briefly and sustained multiple injuries which required that he be taken by ambulance to a local hospital for treatment.
On Saturday morning, June 22, 2002, claimant and his friend, Dr. Richard Weiss, embarked on a 70-mile bike trip to and from a bicycle shop in Rocky Point, New York. Both are serious riders and had taken long “training”
rides together. Claimant started road biking 2½ years earlier, and in the 18 months before the accident had been riding 5 to 6 days a week, averaging 75 miles per week. Recently he had increased his weekly mileage to 100, averaging a riding speed of 12-14 MPH. It was a sunny, clear morning and the two already had covered ten miles in 25 minutes. Dr. Weiss was riding behind the claimant as they traveled east on the shoulder of Route 347 – a 55 MPH road. The shoulder was not marked or designated as a bike lane, but these experienced riders said they, and hundreds of other cyclists, used it as if it were.
The two riders had just crossed an intersection where Route 347 meets Wireless Road, and were riding at approximately 16-18 MPH. Visibility was excellent. The shoulder there widened considerably to 15 feet after the crossing. Its surface was straight, flat and paved smoothly except for some gravel and sand along the curb side of the shoulder – the apparent residue of recent road work which claimant said he knew had been done to widen the shoulder. This was the first time he encountered the widened shoulder as a bike rider. Claimant heard cars coming up on his left in the traffic lane closest to the shoulder. He maneuvered his bike to the right a bit because he knew that cars turned right at Wireless Road onto Route 347 on a red light and often cut the turn onto the shoulder as they were about to merge with traffic coming from the west on Route 347. With claimant’s mind focused on getting through this area, he encountered the drain grate.
He said he did not expect a drain to be there near the middle of the shoulder. Drain grates, he said, normally were positioned against the curb. He “hit it and felt it drop” in front of him. He had a sensation of the entire drain about to drop. He closed his eyes to brace himself and fell. Dr. Weiss, riding behind him by some 30-40 feet, said that “suddenly, without any warning, he [Mr. Schroeder] seemed to fall from sight as if he was dropping right through the pavement, no longer upright.” His friend’s “shoulders and head dropped several inches just prior to him falling.” Next, he saw claimant lying on the ground over the grate, not moving. Dr. Weiss said claimant regained consciousness “after several seconds” (claimant said it was approximately 25 seconds) and began groaning in pain.
Claimant testified he had ridden this area before, and had gone over drains, but none like this one in that the others were against a curb, and they were “solid...sturdy” and did not move. Dr. Weiss said he, too, never had seen a drain in the middle of a shoulder before. After claimant was taken away in the ambulance, Dr. Weiss examined the drain, and others in the area. He shook the drain with his hands and “it wobbled;” all the others were “rock solid,” “very secure and not loose.”
Claimant testified that had he known the drain would “collapse” he “never would have ridden over it;” “you try to avoid storm drains at all costs but there are times you have to go over them.” Perhaps because this statement indicated he was well aware of the danger grates pose to cyclists, his counsel asked whether he made this statement because storm drains were up against a curb and cyclists would not want to be that close to a curb, and claimant agreed. Then in response to the court’s open-ended question why a cyclist would avoid grates, claimant’s answer expanded to encompass their “not being good for the bike,” and  “not a smooth ride,” and there being “a chance things can be in the grate.” Finally, he concluded, “it’s got the possibility of doing what that one did.”
Claimant called Robert Schwartzberg, P.E., a consulting engineer, as an expert witness.
About a month after the accident, Mr. Schwartzberg accompanied claimant to the scene where claimant explained to him what occurred. He took measurements and photos of the grate and its surrounds which, according to claimant, were identical to what they were at the time of the accident. One month later, he delivered his report to the claimant. (Court Exhibit 1, first offered by claimant.)
On the witness stand, Mr. Schwartzberg described what he found. The drain grate consisted of an outer metal frame set into the roadway, 49" long, 25-3/4" wide and 4" deep, with a small metal plate or “ledge” centered at each side of the frame (3" long, 3" wide and ½" deep) on which the grate sits. The inner, removable verticular grate was 4" deep, 47-1/2" long, and 24-3/8" wide – 1-3/8" narrower than its frame. The grate was secured with four bolts, two on each end. He used his hands to “try and jiggle and shift the grate and lift it from the four corners.” It “rocked and shifted.” Then he jumped on it (he weighed 152 pounds) to simulate a moving, i.e. “live” load, and the grate “moved more, up and down the bolt shaft,” rocking about ½". Mr. Schwartzberg testified that grates are not supposed to move at all – either for “people or automobiles” – not over time, even years after they are installed. He opined that this one did because it was not installed properly, i.e. bolted down, tightened snuggly and “torqued” to a scale up to 250 on the wrench.

His inspection and measurements of the drain revealed its side closest to the curb to be situated approximately 33" from the curb. The grate was “askew” within the frame – there was a wedge-shaped gap between the frame and grate on the traffic lane side “that shouldn’t have been there.” He measured the wedge and found the gap was from 7/8" to 1-1/16" at its widest point. On the curb side of the drain, i.e. its south side, the gap ranged from 1/4" to being flush with the frame. He opined the size of these gaps were a violation of “good and accepted engineering practice” because the grate was not square within the frame, i.e. no uniform gap on each side, and the opening increased and decreased “slightly” as the grate rocked back and forth within the frame.
Mr. Schwartzberg also measured the tire width of claimant’s bicycle and found it to be approximately 1", “slightly larger” with the rim.
He hypothesized that when the tire passed over the grate on its north side closest to the traffic lane (where the gap measured 1-1/16" at its widest), the grate shifted and rocked and the tire and rim were “pinch[ed]”between the grate and its frame, bringing the wheel to a sudden stop. On direct examination, he first said the size of the gap and the rocking of the grate because of the lack of torque “or either one alone” caused the accident. Thereafter, in response to questions from the court, he changed his opinion (and acknowledged doing so) asserting it was “only” the lack of torque which caused the front wheel to be “pinched” when the grate rocked.
Notwithstanding that both claimant and Dr. Weiss testified they never before had seen a storm grate in the middle of a shoulder (implicitly suggesting this placement was a safety hazard), Mr. Schwartzberg was familiar with this kind of grate. “It was the right type to be put in,” he said, because there was no vertical piece for the drain to be up against the curb “as the original would have been” before the curb was moved to widen the shoulder. “This one was put in after the road work was done– the right one but not installed properly,” he asserted (emphasis added). However, in his report dated less than one month after he inspected the drain, Mr. Schwartzberg did not describe the grate as recently installed. There he stated:
Examination of the subject drain grate disclosed this grate has been in place in its present condition for a period of several years prior to the date of the accident....We noted that the frame and the movable portion of the grate were corroded and discolored consistent with age, wear and exposure over a prolong [sic] period of time (Court Exhibit 1 at 6 [emphasis added]).
Defendant called Harold Tarry of the New York State Department of Transportation (“DOT”) as a “design expert.” Mr. Tarry holds an engineering degree and has been with DOT for 30 years, the last 17, supervising project managers and consultants in design. He also has designed roadway and drainage systems and is knowledgeable about the standards and specifications for drainage systems.

Mr. Tarry said it was not odd to have a storm grate which was not up against the curb. He disagreed with Mr. Schwartzberg’s testimony that proper safety mandated that a grate’s bolts be torqued to a certain degree. He noted (as Mr. Schwartzberg had conceded [see n 3 supra]) that standards and specifications in the Highway Design Manual do not refer to torque for grates; “torque” is referenced for other highway structures, however. Although he agreed that a grate should be flush, tight and not wobble upon installation, he asserted it is not uncommon for bolts to loosen over time and for the grate to move within the frame. As a matter of design, he added, the purpose of the bolts is to keep the grate from “bouncing out,” not from rocking. It is acceptable, he said, for a grate to move or “wobble” ½"; but if it is in compliance with the specifications, the grate itself “cannot sink or drop . . . it cannot wobble several inches . . . it’s not possible without serious breaking – completely broken – that can’t happen.”
Mr. Tarry also asserted it was not uncommon – and not a violation of any standards or specifications – for the differential in size between the frame and the grate itself, i.e. 1-3/8" here, to manifest itself as a gap of an inch or slightly more all on one side, as bolts loosen and the grate moves within the frame. The engineering reasons to have a gap, he explained, are to allow the grate to be pried up so the drain can be cleaned of silt and dirt (Mr. Schwartzberg had disagreed), and also to allow some room for expansion and contraction of the grate in different weather conditions (Mr. Schwartzberg had concurred).
In order for claimant to prevail here, the law requires him to prove by a preponderance of the credible evidence that his injuries arose from a dangerous condition which defendant created by its own affirmative act or that defendant had actual or constructive notice of the dangerous condition and sufficient opportunity within the exercise of reasonable care to remedy the danger or warn about its existence (see Madrid v City of New York, 42 NY2d 1039 (1977); Harris v Village of East Hills, 41 NY2d 446 (1977); see also Lewis v Metropolitan Transp. Auth., 99 AD2d 246 [1st Dept 1984], affd 64 NY2d 670 [1984]. When made aware of a dangerous condition, the State must undertake reasonable steps to alleviate the condition (see Heffler v State of New York, 96 AD2d 926 [2d Dept 1983]).
The State may successfully assert a defense of qualified immunity in connection with the discretionary determinations that it makes regarding the design, construction and maintenance of highways – including the manner in which it allocates its resources – where the State can show a reasonable basis for its governmental decision (Friedman v State of New York, 67 NY2d 271, 284 [1986 ]; Weiss v Fote, 7 NY2d 579, rearg denied 8 NY2d 934 [1960]).
Applying the foregoing law to the evidence adduced at trial, the court finds as follows:
1. Claimant has not proved by a fair preponderance of the credible evidence that
either placement of the grate toward the middle of the shoulder or the condition of the grate at the time of the accident, i.e. “askew” to the extent of 1/16" to 5/16" beyond what a uniform gap of slightly less than 3/4" would have measured (see n 6 infra) and “rocking” 1/2", constituted a dangerous condition as defined by prevailing case law.
Both expert witnesses essentially testified it was not unusual for storm drains to be placed near the middle of a shoulder instead of adjacent to a curb. Mr. Tarry explicitly said so, and Mr. Schwartzberg implicitly did when he said it was the right type to have been put there. Dr. Weiss acknowledged the expanded 15' shoulder was “quite wide,” “a nice shoulder.” Mr. Schwartzberg measured the southerly edge of the grate as 33" from the curb, so there was even some room to bike past the grate briefly on the curb side of the drain, in addition to the traffic lane side, without riding over the grate.
In Mr. Schwartzberg’s report, he opined the grate had been there for several years, and claimant said he had ridden there before the curb had been widened (by moving the curb). Although claimant said he did not expect the drain to be there, Mr. Schwartzberg found the drain was 65 feet east of the curb at the easterly side of Wireless Road (Court Exhibit 1 at 3). This measurement, as well as a picture of the site (Exhibit F), indicates there was sufficient distance after crossing Wireless Road for claimant to have seen the grate and to have reacted to avoid it. Considered together with claimant’s testimony that had he known the drain would collapse he “never would have ridden over it,” the evidence shows claimant did have an opportunity to avoid the grate had he chosen to.
Neither Mr. Schwartzberg, Dr. Weiss nor the claimant testified that on their respective inspections of the storm drain they found anything physically wrong with the ledges on which the grate sat in its frame. The “drop” of the grate due to its rocking was not more than ½" as Mr. Schwartzberg testified, and he opined it was the rocking alone that caused the front wheel to be caught in the gap. Because the grate and its frame were 4" from top to bottom, i.e. depth, so long as the frame continued to rest on the metal ledges of the grate, it was impossible for the grate itself to have moved any further beyond the maximum size that the gap could be, i.e. 1-3/8", or for the grate to have rocked down further.
This evidence supports Mr. Tarry’s testimony to the effect that it was a physical impossibility for the grate to have shifted more than the maximum difference between the size of the grate and its frame, or to have rocked more than ½", without either the grate or frame having been “completely broken – a serious breaking.” Although claimant testified he felt the entire drain was going to drop and he was going down into the hole, and Dr. Weiss said it appeared claimant’s head and shoulders “dropped several inches,” this testimony does not prove the grate itself actually moved or dropped that far.

To be sure, the de minimus movement of the grate to the left and/or down was enough to catch the wheel and cause a serious cycling mishap; however, where such a mishap occurs on a road designed primarily for automobiles to drive at a speed of 55 miles per hour, such a condition is not deemed to be “dangerous” (see Cotter v State of New York, Ct Cl, Claim No. 99844, dated Apr. 12, 2001, Read, J. [UID No. 2001-001-511] [gap in drainage grate “so slight that danger was not reasonably to be anticipated,” rejecting the notion that the State must maintain its roads in “unmarred smoothness” for bicyclists to travel in certain safety where highway defect is harmless to motorists but dangerous to bicyclists]; cf. DeJesus v City of New York, 29 AD3d 401 [1st Dept 2006] [danger of having to avoid pedestrians on pedestrian-only walkway deemed inherent and not above the usual dangers accompanying bicycle riding in urban areas]; see also Nathan v City of New Rochelle, 282 AD2d 585 [2d Dept 2001] [one-inch differential in sidewalk crack lacking characteristics of a “trap” or “snare” and deemed too trivial to be actionable as a matter of law]).
2. Even assuming the court had found the condition of the grate was “dangerous,” apart from claimant’s own ipse dixit, he failed to prove that defendant created the dangerous condition by installing the grate with insufficient torque so as to constitute actual notice by the State (see Lewis v Metropolitan Transp. Auth., 99 AD2d 246, supra [1st Dept 1984], affd 64 NY2d 670 [1984]).
Mr. Schwartzberg’s trial testimony that he was of the opinion the grate recently had been installed after the curb was moved to widen the shoulder is not credited because he opined in his report that the grate had been there for a period of years. Given Mr. Tarry’s testimony that State highway specifications do not provide for any prescribed degree of torque to be applied to the bolts of the grate (and Mr. Schwartzberg’s testimony acknowledging this to be so), and given Mr. Tarry’s further testimony that it is not uncommon for bolts to loosen over time, Mr. Schwartzberg’s testimony that properly installed grates do not move at all – even years later – is not persuasive. Claimant offered no credible evidence that defendant created the condition the drain was in at the time the accident occurred.
3. Claimant failed to prove the condition of the grate was so visible or apparent, and existed for such time prior to the accident as to charge defendant with having had constructive notice and the time to discover and remedy the condition (see Soosar v State of New York, 5 Misc 3d [A], 2004 N.Y. Slip Op 51265[U], at 7, 798 NYS2d 713, 2004 WL 2390007 [Ct Cl], citing Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).
Claimant was riding on the shoulder of a 55 mph highway, not a dedicated bicycle path or designated bicycle lane. Accordingly, claimant had the burden of showing why a grate with a gap on one side ranging from 7/8" to 1-1/16" (as opposed to a more even distribution of a bit less than 3/4" on each side) and a wobble or rock of ½", without evidence of any complaints or prior accidents, should have alerted the State to remedy the condition. Claimant introduced no evidence as to when the grate was installed, removed, or last maintained, nor did he show evidence that other members of the public complained about the condition of the grate (or the road) or that the condition of the grate caused any prior accidents
(see Ballerini v State of New York, Ct Cl, Claim No. 104913, dated Mar. 30, 2005, Lack, J. [UID No. 2005-033-538]).
4. Defendant is entitled to rely on the doctrine of qualified immunity from liability for not allocating resources for the regular inspection and maintenance of drainage grates.
The absolute duty of a municipality to maintain its highways in a reasonably safe condition for the public is subject to “the proper limits on intrusion into the municipality’s planning and decision-making functions” (Friedman v State of New York, 67 NY2d 271, supra at 283). Claimant provided no evidence that defendant created a dedicated bike path on Route 347, or that it designated the shoulder as a bicycle lane, so as to signify the State’s intent to attend to the special needs of cyclists who use the road for that activity. Absent such a showing, it was reasonable for the State to view the shoulder as an integral part of a road primarily used by motorists, and to allocate its resources accordingly (compare Sena v Town of Greenfield, 91 NY2d 611, 617 [1998] [reversing dismissal of complaint under statutory limited liability provision where town established hill to be used for sledding as part of a supervised park so that plaintiff was entitled to expect town to exercise reasonable care to protect members of the public using the area as intended]). The State is not required to allocate resources for the continuous inspection of drainage grates on the shoulder of a highway primarily intended for use by motorists (see Urbaniak v Town of Clay, 237 AD2d 875 [4th Dept 1997], lv denied 90 NY2d 804 [1997]; cf. Drew v State of New York, 146 AD2d 847, 848 [3d Dept 1989] [duty of State to use reasonable care and provide playing field with “conditions as safe as they appeared to be;” rejecting liability based on “mere existence” of hole alleged to have caused plaintiff’s injury]).
Having found that claimant failed to establish the drainage grate on the shoulder of the road constituted a dangerous condition or that defendant is not entitled to the protections of qualified immunity, the Court need not, and does not, make an express finding regarding the State’s contention that claimant assumed the risk of injury by riding his bicycle on the shoulder of the road
(see e.g. Cotter v State of New York, supra, Ct Cl, Claim No. 99844, dated Apr. 12, 2001, Read, J. [UID No. 2001-001-511]).
All motions made at trial, upon which the Court reserved decision and which have not been ruled on herein, are now denied.
Based upon all of the foregoing, the claim is dismissed. Let judgment be entered accordingly.

February 20, 2007
New York, New York

Judge of the Court of Claims

[1].Unless otherwise specified, all quoted material is from the audiotapes taken at trial or from the Court’s trial notes.
[2]. Mr. Schwartzberg, a licensed professional engineer, holds a B.S. degree from the New York State Maritime College and is trained in the mechanical and electrical fields. He also is licensed as an operating engineer, and is a certified termite and asbestos inspector. His work encompasses home inspections in connection with house sales. He has done consulting work for 25 years, including safety analysis and forensics. He has written specifications for storm drains and overseen installation and maintenance of them on private roads for a real estate developer (comprising approximately one percent of his duties for that client). He also has designed, purchased and overseen the installation of storm drains in the construction of private roadways for 25 power-generating plants. He had testified in two cases involving grates before this one, opining on “best practices” and safety. He has no experience with storm drains on public roads and has never worked for a government entity.

[3].In his report (Court Exhibit 1 at 7), Mr. Schwartzberg also opined that the grate moved because of a design defect, i.e. the “poor configuration and mounting method” where only a portion of each side of the grate sits on a 3" by 3" by 1/2" metal plate while the rest of the grate is “totally unsupported.” No testimony was elicited about this and counsel for claimant emphasized that claimant was not alleging that a defective design caused the accident.
Mr. Schwartzberg acknowledged on cross-examination that the grate complied with specification drawings of the State Highway Design Manual; that gaps – albeit uniform ones, he underscored – were needed in grates for “expansion and contraction in weather changes,” but not because they were necessary in order to remove the grates (he explained that they are removed with a “pry bar” for cleaning, and described a pry bar as bigger than a crow bar); and that nothing in the design manual mandates that grates are not supposed to move or must be secured with a specified level of torque on the bolts.
[4].Pictures of the tire with a tape measure placed on it appear to show the tire as being thinner, i.e. a bit more than 7/8" (Exhibits I-11, J-10; Court Exhibit 1 at 23).
[5].Claimant moved to strike all of Mr. Tarry’s testimony as it pertained to installation and maintenance because he never installed or supervised the installation of a grate. Claimant also argued that because Mr. Tarry did not inspect the drain at issue or conduct tests of it, he was not in a position to opine on anything “with a reasonable degree of engineering certainty.” The court reserved decision on the motion and here denies it. Certain of Mr. Tarry’s testimony pertaining to the design characteristics of the storm drain and their consequences recounted herein does bear directly on whether the position and condition of the grate was the result of faulty installation or maintenance (see Finding 1 infra). To the extent Mr. Tarry testified about matters that pertain solely to installation and maintenance procedures, the court has accorded it little weight in light of what was revealed about Mr. Tarry’s lack of direct experience with these matters.

[6].The amount of movement of the grate within the frame and the size of the gap as they pertain to the events that transpired here are not actionable under prevailing case law. Based on the design specifications and Mr. Schwartzberg’s measurements, the size of the gap into which the front wheel dropped at no time could have been more than 1-3/8" – even after the grate shifted – that being the aggregate difference in width between the grate and its frame. Mr. Schwartzberg had measured the size of the wedge on the north side of the drain where the bike wheel was caught as 1-1/16" at its maximum. Thus, even assuming a uniform gap existed on both sides of the grate when it was installed (as Mr. Schwartzberg opined should have been the case), such a gap would have been a bit less than 3/4" on each side, and the grate would have moved no more than 5/16" to the left to create the gap measured by Mr. Schwartzberg at the wedge’s widest, i.e. 1-1/16". At the most narrow gap of the wedge, i.e. 7/8", the grate could have moved no more than 1/16" to create it.
[7].If claimant requested DOT to produce such records in discovery and they were not, there is no record that claimant asked the court to intervene by issuing a discovery order for them to be produced or for discovery sanctions to be imposed.

[8].Although no express finding that claimant assumed the risk need be made here, the court notes the evidence weighs strongly in favor of claimant having done so. Claimant had been riding for 2-1/2 years, doing 75-100 miles, 5-6 days per week, at speeds ranging from 14-18 MPH. It is reasonable to infer that, given this level of experience, claimant either encountered or had knowledge of the road conditions, obstacles and hazards he might encounter. Although both claimant and Dr. Weiss said they had not before encountered a storm drain situated close to the middle of a shoulder, claimant’s own expert, Mr. Schwartzberg, said it was the right kind to be placed there and his report stated it had been there for several years. Claimant also testified he had ridden on the shoulder before the curb was moved, i.e., when the drain was closer to the curb. Although he testified he did not expect to see a drain grate where it was at the time of the accident, it is reasonable to infer that claimant had ridden past this one before the curb was moved.

Even more telling, claimant stated that “you try to avoid storm drains at all costs” and “[they’ve] got the possibility of doing what that one did.” From this testimony, and Mr. Tarry’s concerning the likelihood that bolts on drain grates loosen over time, it is reasonable to infer that riding over a wobbly drainage grate was indeed an inherent risk in this activity, and that the possibility of abruptly encountering a ground-level obstacle such as this one was a known, apparent or reasonably foreseeable consequence of voluntarily engaging in this activity (e.g. Restaino v Yonkers Bd. of Educ., 13 AD3d 432 [2d Dept 2004]; Dobert v State of New York, 8 AD3d 873 [3d Dept 2004]; see Maddox v City of New York, 66 NY2d 270, 277 [1985] [doctrine “ ‘applies to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on . . .’ ” [citation omitted]; see also Lamey v Foley, 188 AD2d 157, 164 [4th Dept 1993]).