New York State Court of Claims

New York State Court of Claims

SANCHEZ v. THE STATE OF NEW YORK, #2007-038-102, Claim No. 109713


State had constructive notice of highway defect, and was therefore liable for injuries sustained when chunk of concrete was propelled into the air and through motorist’s windshield.

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:
Jeffrey N. Miller, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Dennis M. Acton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 20, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants Linda and Daniel J. Sanchez[1] seek recovery for personal injuries sustained when a large chunk of concrete smashed through the windshield of claimant’s car and into the passenger compartment of the car while she was driving on Interstate 90 in the City of Albany on October 18, 2003.

The liability phase of the trial of this claim was conducted on September 28 and September 29, 2006 in Albany, New York. Claimants presented the testimony of: (1) claimant Linda Sanchez; (2) New York State Trooper Matthew J. Fox; (3) New York State Police Sergeant Kenneth K. Kippen, Jr.; (4) New York State Police Investigator Michael MacIntosh; (5) New York State Department of Transportation (NYSDOT) Albany County Resident Engineer Michael Johnson; and (6) civil engineer and accident reconstruction expert Lawrence M. Levine. Defendant presented the testimony of: (a) defendant’s expert, Robert Selover, Director of the Transportation Systems Maintenance Bureau in the NYSDOT Office of Operations Management; and (b) Robert Hansen, a NYSDOT employee, who was formerly the NYSDOT Region 1 Capital Program Coordinator. Numerous photographic, documentary and other exhibits, including the 9” x 12” x 6” chunk of concrete that caused claimant’s injuries, were received into evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court concludes that defendant is liable to claimant.
At approximately 5:00 p.m. on October 18, 2003, claimant was driving with her two grandchildren in her 2002 Dodge Stratus westbound on Interstate 90 (I-90), a State highway, in the City of Albany. As claimant was moving from a middle lane to the right-hand lane near the vicinity of the 1.8 and 1.9 mile markers, a large chunk of concrete hit the front hood of her car, penetrated the windshield, and struck the steering wheel and then claimant in the head, rendering her unconscious. Claimant’s car drifted off the right side of roadway surface, eventually coming to rest against a tree beyond the right shoulder of the roadway. The piece of concrete that struck claimant came to rest on the rear floor passenger side of her car, where it was later recovered by State Police personnel. In their investigation of claimant’s accident, Sergeant Kippen and Investigator MacIntosh of the New York State Police were able to ascertain that the chunk of concrete came from a particular pothole in the westbound I-90 roadway surface between mile markers 1.8 and 1.9 by placing the chunk in the pothole and determining that the chunk was a “perfect fit” (T:89)[2] for the pothole.

The roadway in that particular stretch of I-90 was made of Portland Cement Concrete (PCC), a mixture of sand, stone and a type of cement known as Portland Cement. The PCC was laid in sections or slabs, between which are spaces known as “joints.” “Transverse joints” join two slabs in the same lane and are perpendicular to the flow of traffic, while “longitudinal joints” join two slabs in adjacent lanes and are parallel to the flow of traffic. Joint sealer – in this case, elastomeric material, a plastic-type rubberized material – was placed in between the joints to protect the structural integrity of the slabs of PCC by: (a) preventing water and salt from infiltrating between the slabs, and (b) acting as a shock absorber that prevents adjoining slabs from bearing against each other when subjected to the stresses of traffic. Where joint sealer has failed (i.e., where the joint sealer is either not present or there are gaps or holes in the sealer), water and salt can enter the joint and infiltrate the concrete and the material underneath the concrete, known as the subgrade/subbase. When water and salt infiltrate the concrete, it can “pop” or crack the concrete when the water freezes and expands and then thaws and contracts. Further, the subgrade/subbase can be undermined by water and salts, which may lead to cracking and weakening of the concrete.

On October 18, 2003, the particular pothole that was the source of the concrete chunk that struck claimant was located in the second lane from the right along a transverse joint and adjacent to a pothole that had previously been repaired. The prior pothole was patched by “saw- cutting” the pavement around the pothole and filling the hole with asphalt concrete. The patch spanned across a transverse joint and a longitudinal joint, into portions of three slabs of PCC. The Court credits the testimony of claimant’s expert, Lawrence M. Levine, that the elastomeric material that was in the transverse joint adjacent to the patch and the concrete chunk that struck claimant was cut when the asphalt patch was installed, allowing water to seep into the transverse joint, infiltrate the concrete, and pass into the subgrade/subbase. Further, the Court credits the testimony of claimant’s expert that there was a surface defect – or a hole – adjacent to the transverse joint on the southwestern portion of the asphalt patch and the concrete chunk which broke loose from the pavement that further allowed water and salt to seep into and infiltrate the concrete and the subgrade/subbase. This seepage infiltrated the concrete and undermined the subgrade/subbase, which caused cracks in the concrete at the site where the concrete chunk broke loose. According to the credited testimony of claimant’s expert, the tire of a vehicle in front of claimant’s car caught the edge of the loose concrete chunk, which was adjacent to an existing hole in the concrete, dislodging it from the roadway, and propelling it into the air, onto claimant’s vehicle, and into the passenger compartment where it struck claimant.
The State owes to the public a nondelegable duty to design, construct and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]). Liability will not attach, however, unless the State had actual or constructive notice of the dangerous condition and failed to remedy it (see Hannon v State of New York, 13 AD3d 770 [3d Dept 2004]; Hynes v State of New York, 301 AD2d 628, 629 [2d Dept 2003]; D’Alessio v State of New York, 147 AD2d 791, 793 [3d Dept 1989]; Bolton v State of New York, UID # 2002-005-001, Claim # 96937, Corbett, J. [July 9, 2002]; Zweig v State of New York, UID # 2001-010-073, Claim # 98111, Ruderman, J. [Oct. 11, 2001]). “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1005-1006 [3d Dept 2005]; Rinaldi v State of New York, 49 AD2d 361, 363 [3d Dept 1975]; Adamo v State of New York, UID # 2005-029-534, Claim No. 100496, Mignano, J. [Dec. 1, 2005]).

Claimant contends that defendant breached its duty to maintain the highway in a reasonably safe condition and that it should be charged with constructive notice of the defective condition. Defendant contends that no hazardous condition was visibly apparent and that there was no proof of similar accidents at or near the site of claimant’s accident. The precise issue to be resolved is whether the dangerous condition – the loose chunk of concrete – was visible and apparent for a sufficient period of time to permit defendant to remedy the dangerous condition.

Photographs that were taken on September 15, 2003 – just thirty-three days prior to claimant’s accident – that showed the specific area of the roadway that included the previously patched pothole and the spot from which the concrete chunk became dislodged were received in evidence (Claimants’ Exhibits 22 & 23; Defendant’s Exhibits C-10 and D). Due to the quality and resolution of those photographs, the photographs alone do not permit a determination of whether there was a visible crack in the surface of the PCC at that time. However, the credited testimony of claimant’s expert in conjunction with photographs received in evidence and the Court’s visual inspection of claimant’s Exhibit 47 – the concrete chunk that struck claimant and her vehicle – lead the Court to the conclusion that the surface of the concrete where the chunk broke free from the roadway showed a visible and apparent crack for a sufficiently lengthy period of time before the accident to have allowed the State to discover and remedy the defective condition prior to the date of the accident.

Specifically, a photolog picture from 2001 (Claimants’ Exhibit 21) revealed the existence of the prior asphalt patch, installation of which had included cutting the joint sealer. Further, the photographs of the location that were taken a little over one month prior to claimant’s accident reveal a surface defect – a hole – adjacent to the transverse joint that abuts the existing asphalt patch and area of concrete that ultimately broke free.[3] The Court finds that the damage to the joint sealer and this surface defect allowed water and salt to infiltrate into the concrete and seep into the subgrade/subbase, contributing to the degradation of the concrete and creating the concrete chunk that struck claimant. The underside of the concrete chunk that struck claimant shows signs of deterioration due to water and salt, and also has a rust stain, which indicates that there had been a crack underneath the surface of the concrete near a piece of steel wire mesh in the concrete where water accumulated for a sufficient period of time to allow the steel to rust. Thus, the Court finds that the crack that formed underneath the concrete (which ultimately became the underside of the concrete chunk) existed for a substantial period of time. Critical to the issue of constructive notice, the underside of the concrete chunk is smooth, unjagged and well-worn, which indicates that the chunk had been free from the slab and rocking in place for a sustained period. Because the chunk could not have been rocking if it was not free of the slab, the worn condition of the concrete chunk strongly demonstrates that a surface crack between the slab and the chunk was visible and apparent for a significant period of time. Thus, the Court finds that defendant had constructive notice of the dangerous condition that caused claimant’s accident and injuries because the visible and apparent surface crack existed for a sufficient period of time prior to claimant’s accident to permit defendant to discover and remedy the loose concrete chunk.

Accordingly, the Court concludes that defendant had constructive notice of the loose chunk of concrete, that it failed to remedy the dangerous condition, and that claimant was thus caused to suffer injury.

Claimant makes the additional arguments that defendant unjustifiably delayed implementing a plan to rehabilitate the stretch of I-90 between the Patroon Island Bridge and the tollway plaza at the western end of I-90 (see Friedman v State of New York, 67 NY2d 271, supra), a segment of roadway within which claimant’s accident occurred, and that defendant is therefore liable for failing to implement the rehabilitation plan within a reasonable period of time. The argument is based upon evidence that defendant was aware in the early 1990s that this stretch of I-90 was in serious disrepair, that defendant evaluated the roadway in 2000 and recommended that the roadway be rehabilitated, and that at the time of claimant’s accident, defendant had not yet implemented the rehabilitation plan. Although not dispositive of the issue of liability, the Court will briefly address this theory of liability.

The credible evidence established that NYSDOT became aware in the early 1990s that the concrete pavement along this stretch of I-90 was experiencing distress, so NYSDOT then conducted a project to repair the concrete. In the late 1990s, NYSDOT discovered that those repairs were not “holding up” as well as had been “hoped” (T:339). In late 1998, a project to rehabilitate I-90 from the Patroon Island Bridge west to the New York State Thruway toll plaza in the City of Albany was initiated. NYSDOT studied that stretch of road, and issued a Pavement Evaluation Report in June 2000 that evaluated the defects in the pavement on that stretch of I-90 and recommended “rehabilitation alternatives” to fix the pavement. Inasmuch as the issuance of this report predated claimant’s accident, arguments addressed to delays prior to June 2000 are not pertinent to this claim (see Friedman v State of New York, supra at 285).

As noted in the Pavement Evaluation Report, the Albany County Resident Engineer stated that the concrete in the evaluated area on Interstate 90 was “failing at the joints and every place else in the concrete slab” and that the pavement had “served its useful life”[4] (Claimants’ Exhibit 32, at 6). The Pavement Evaluation Report further stated that Resident Engineer “would like to see total pavement removal and replacement” (id.), and that considering the distressed condition of the studied portion of I-90, it would not be an appropriate “rehabilitation strateg[y]” to “[d]o nothing”[5] (id.). The Pavement Evaluation Report recommended two “appropriate rehabilitation alternatives” (id. at 6-7), and on July 17, 2000, NYSDOT issued a cost analysis of those alternatives (Claimants’ Exhibits 33 and 34).

After the issuance of the 2000 Pavement Evaluation Report, NYSDOT decided to explore more extensive and permanent repairs to the I-90 pavement than had been originally anticipated, and ultimately, after much study and deliberation, it decided upon a method of rehabilitating the roadway. Defendant’s witness Robert Hansen, a NYSDOT employee whose testimony the Court found to be credible, testified that the I-90 project was very complex and numerous issues pre-existed or arose during the design of the project.[6] After further discussions about the enormous and growing cost of the I-90 project, NYSDOT decided to break the project into two pieces, a “lower section” running from the Patroon Island Bridge to Exit 5-A, and an “upper section” (which included the site of claimant’s accident), extending from Exit 5-A of I-90 to the toll booth at New York State Thruway Exit 24. NYSDOT determined that due to some maintenance and traffic issues, the lower section project should be done first, and that project was commenced in June 2003. While NYSDOT had intended to let the upper section project a year later, in 2004, storm water management issues caused delays and the letting of the bids by NYSDOT on the upper section project began on January 13, 2005 (Claimants’ Exhibit 36).

As noted above, the periods of time between the 2000 Pavement Evaluation Report and the commencement of the lower section project, and the letting of bids on the upper section project were punctuated throughout with study, deliberation and reconsideration, and there were financial issues and other matters outside the control of NYSDOT that delayed the project. Therefore, on the record before the Court, the preponderance of the credible evidence does not demonstrate that the passage of more than three years between the determination in 2000 to rehabilitate the area where claimant’s accident occurred and the date of her accident in October 2003 resulted from unreasonable or unjustified delay by defendant (compare Cruz v City of New York, 201 AD2d 606, 607 [2d Dept 1994]; Ames v City of New York, 177 AD2d 528 [2d Dept 1991]).
It is the conclusion of this Court that defendant is liable to claimant for her injuries. Inasmuch as there was no proof of any negligence on the part of claimant, the Court finds defendant 100% liable for claimant’s injuries. The Chief Clerk is directed to enter an interlocutory judgment to this effect. Any motions not previously ruled upon are hereby DENIED. The claim will be scheduled for trial on the issue of damages as soon as possible.

Let judgment be entered accordingly.

April 20, 2007
Albany, New York

Judge of the Court of Claims

[1]. The claim of Daniel J. Sanchez, the husband of claimant Linda Sanchez, is derivative in nature, and all references to “claimant” shall mean Linda Sanchez, unless otherwise noted.
[2]. All references to the trial transcript are designated by “T”.
[3]. The Court does not credit the testimony of NYSDOT Albany County Resident Engineer Michael Johnson that this defect may be additional “cold mix” or asphalt material (T:168) as it is speculative. Johnson admitted that he was speculating on this point, and there was no additional evidence adduced that subsequent repairs were done to this area after the prior asphalt patch was placed.

[4]. While the Report indicated that only the eastbound lanes were evaluated, it deemed the findings applicable to the PCC pavement of the westbound lanes as well. The Pavement Evaluation Report reported that the eastbound portion of I-90 was experiencing joint sealer failure of 100 percent and that joint distress was recorded at 86 percent of the transverse joints and 56 percent of the longitudinal joints.
[5]. NYSDOT Albany County Resident Engineer Michael Johnson interpreted the phrase “do nothing” to mean that something other than just every day maintenance on the roadway needed to be done (T:140).
[6]. Some of the issues Hansen identified included: (1) structural engineering design issues with bridge projects on I-90, (2) design issues that needed to be dealt with concerning traffic that was merging from Interstate 787 onto I-90, (3) flooding issues that needed to be evaluated, (4) certain feasibility studies ordered by the Federal Highway Administration, and (5) funding considerations flowing from the defeat of a Bond Issue.