New York State Court of Claims

New York State Court of Claims

BERUBE v. THE STATE OF NEW YORK, #2007-042-003, Claim No. 112363


Synopsis


Claimant brings this property damage claim when his vehicle suffered property damage when it slid off the roadway allegedly as a result of the Department of Transportation to properly maintain the road. The court found that claimant failed to meet his burden of proof and therefore the claim was dismissed.

Case Information

UID:
2007-042-003
Claimant(s):
KYLE J. BERUBE
Claimant short name:
BERUBE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1.While the caption names both the State of New York and the NYS DOT as separate defendants, the latter is a department of the former. As a result, there is in fact only one defendant, the State of New York, and the Court has sua sponte changed the caption.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112363
Motion number(s):

Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
KYLE J. BERUBE, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 26, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, Kyle J. Berube, filed claim number 112363 on May 23, 2006 alleging that his automobile suffered property damage, when the vehicle slid off the roadway on Route 28 in Hamilton County, New York, as a result of the failure of the Department of Transportation to properly maintain the road. The trial in this matter was held on September 7, 2007. The decision is as follows:
FACTUAL FINDINGS:
Claimant’s wife, Rhonda Berube, testified that she was driving her automobile on Route 28 in Hamilton County, New York, on the 27th day of February, 2006[2], at or about 10:00 a.m. when, as a result of snow and slush that had accumulated on the highway, she lost control of her automobile while going around a curve. She testified that the roadway she was driving on contained a great deal of slush and that the portion of the highway going in the opposite direction was clear of snow and slush. Claimant testified further that she was driving toward Albany from Ogdensburg, and had been driving for approximately one and one-half hours prior to the accident. She further testified that she did not see any Department of Transportation vehicles before the accident, although there was other traffic on the road.

Defendant produced David Galpin as its sole witness. Mr. Galpin has been employed by the State of New York for 16 years and was the assistant resident engineer for the County of Hamilton. The area that Mr. Galpin was responsible for included the area of the accident, and his employees were responsible for plowing, sanding and salting the road where the accident occurred. Mr. Galpin testified that on the morning of the accident two of his employees had been assigned to plow, sand and salt the roads in the area of the accident. He testified that Mr. Mitchell and Mr. Moore both plowed the area on a continuous basis between 5:15 a.m. and 11:25 a.m. He testified further that from the reports which he had there were snow and ice conditions in the area of the accident, with blowing and drifting snow and wet spots. Mr. Galpin testified that the area he was in charge of covered 180 miles, that he had at his disposal nine trucks, two full shifts of employees, and that in the area of the accident, he used two crews because of the hilly and curvy condition in the accident area. Mr. Galpin testified that the area where the accident occurred was one of the steepest hills within the 180 miles of roads that he was responsible for.

The undisputed testimony is that between 5:15 a.m. and 11:25 a.m. on the morning of the accident, at least four “swipes” were made by two trucks operated by employees of the State of New York.
LAW AND CONCLUSIONS:
The State is responsible for the care and condition of the roads which it provides to the citizens of the State of New York and others. The State assumes the responsibility of maintaining the roads in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271, 283); however, the State does not guarantee that all roads at all times will be perfectly free and clear of snow, ice and slush (see Shaw v State of New York, 56 Misc 2d 857, 859).

As the Appellate Division, Third Department, held in a case involving a similar accident arising out of snow and ice conditions on Route 17:

[a]s a general rule, the State is charged with the responsibility of maintaining its highways in a reasonably safe condition, but is not otherwise an insurer (see Friedman v State of New York, 67 NY2d 271, 283; Kissinger v State of New York, 126 AD2d 139, 141). The presence of snow and ice on Route 17 and the fact that claimant’s vehicle skidded out of control do not alone establish negligence against the State (see Valentino v State of New York, 62 AD2d 1086, 1087, appeal dismissed 46 NY2d 1072; La Tournerie v State of New York, 1 AD2d 734; Shaw v State of New York, 56 Misc 2d 857, 859). The pertinent inquiry is whether the State exercised reasonable diligence in maintaining Route 17 under the prevailing circumstances (see Tromblee v State of New York, 52 AD2d 666, 667; Tetreault v State of New York, 50 Misc 2d 170, 177).


(Freund v State of New York, 137 AD2d 908, 908-909, lv denied 72 NY2d 802).

At best, claimant’s proof merely demonstrated that it was winter, there was snow and slush on the road, and that at least part of the road appeared to have been cleared. As already noted, the law is well established that the presence of snow and ice on the roadway at the time of the motor vehicle accident does not, by itself, establish defendant’s negligence (Fiege v State of New York, 189 AD2d 748, 749; Timcoe v State of New York, 267 AD2d 375).

In the instant matter, claimant has failed to meet his burden of proof. The State of New York has demonstrated to the satisfaction of the Court that it used reasonable care in maintaining the area where the accident occurred. The State cannot continuously go back and forth over every road in such a manner as to guarantee that there will be no snow, ice, or slush on any of the roads. I believe that having two trucks in the area of the accident plowing and maintaining the highway was fair and reasonable on the part of the State and I find no negligence on the part of the State in the maintenance of the highway.

Based upon the proof presented at trial, and in light of the foregoing, the claim of claimant Kyle Berube is dismissed in its entirety.

Let judgment be entered accordingly.


November 26, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[2].The Court sua sponte amends the claim to change the date of the accident from February 28, 2006 to February 27, 2006 .