New York State Court of Claims

New York State Court of Claims

NATIONWIDE v. THE STATE OF NEW YORK, #2007-044-005, Claim No. 104520


State held not liable for personal injuries in an auto accident which occurred when the vehicle traversed a pothole. The State did have constructive notice of the dangerous condition which was located partially on the paved shoulder of a State Highway, and was negligent in failing to repair it. Moreover, Highway Law § 58 does not limit the State’s liability for accidents resulting from highway defects from November 15 through May 1, where the State's negligence is the proximate cause of the accident. However, claimant did not prove that its subrogor struck the portion of the pothole actually located on the shoulder for which the State was responsible, rather than the portion located adjacent to the shoulder. The claim was dismissed because it was equally as possible that the State's negligence did not cause the accident as that its negligence was the cause

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 2, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim was commenced by Nationwide Mutual Insurance Company (claimant) to recover for property damage and Personal Injury Protection and Additional Personal Injury Protection benefits paid to claimant's subrogors, Rita L. Kelley (Kelley) and Michelle Kelley, her daughter. The trial, held on November 14, 2006, was bifurcated and the parties thereafter submitted post-trial memorandums of law. This decision addresses only the issue of liability.

The claim arises out of a motor vehicle accident which occurred on April 8, 2000, at approximately 2:00 p.m. near the intersection of State Route 12 (Route 12) and Airport Road, in the Town of Greene, Chenango County. Kelley was driving her vehicle southbound on Route 12, when a northbound vehicle owned and operated by Linda M. Aprea (the Aprea vehicle) started to make a left-hand turn in front of Kelley's vehicle. In an attempt to avoid a collision with the Aprea vehicle, Kelley swerved onto the adjacent shoulder of the southbound lane and traveled through a large pothole. Her vehicle then slid across Route 12 into a culvert, rolled over several times, and came to rest. The Kelley vehicle, a four-month-old Toyota Camry insured by claimant, had been driven less than 4,000 miles, had no mechanical problems, and no problems with the brakes, steering or tires.

Kelley testified that April 8, 2000 was a clear, sunny day, approximately 50 degrees, and the surface of the driving lane on Route 12 was smooth and dry. She was taking Michelle home from Hamilton, New York, after a one-week stay at Community Memorial Hospital subsequent to emergency surgery. Michelle was a sophomore attending Colgate College in Hamilton, and did not testify, by stipulation of the parties, as she had no recollection of the accident.

Kelley stated that there was little traffic on Route 12 in the vicinity of Airport Road that day, with nothing to obstruct visibility. Her daughter was asleep in the passenger's seat of the vehicle, the radio was off, and the windows and sunroof were closed. As she approached Airport Road from the north at approximately 55 miles per hour, she became aware of a vehicle (driven by Aprea) traveling northbound toward her on Route 12, with its left-turn signal on. Kelley assumed that the Aprea vehicle would wait for her to pass the intersection before proceeding across Route 12 into a parking lot adjacent to the road. There was no traffic control device at the intersection.

The Aprea vehicle failed to wait for Kelley's vehicle to pass, however, and commenced a left turn directly in front of Kelley's vehicle. Kelley testified that she “very gently”[1] moved to the right shoulder of the road to avoid the oncoming car. She stated that it had rained heavily prior to that day, so that water was up to the edge of the road and filled the potholes. She felt a large jolt as the vehicle hit a pothole, at which point she lost control of the vehicle. The car catapulted across both lanes of Route 12, hit the shoulder on the northbound side and rolled four times, and eventually came to a stop upright.

Police Officer Jody Kennedy testified on claimant's behalf. At that time, Kennedy was employed as a deputy sheriff with the Chenango County Sheriff's Department. Kennedy previously graduated from Broome County Police Academy, where among other things he was instructed in basic accident investigation. Kennedy was a road patrol deputy and patrolled Route 12 on a daily basis as part of his job, enforcing the Motor Vehicle Law and investigating accidents.

On April 8, 2000, Kennedy was advised by 911 dispatch that there had been a motor vehicle accident on Route 12, and he proceeded to the accident scene, where emergency personnel were attending to Kelley and Michelle. At the scene, Kennedy interviewed Aprea and the emergency personnel, inspected the Kelley vehicle and its position, and made observations regarding the accident scene - including skid marks - in the course of preparing the Police Accident Report. He testified that the report reflected his conclusions that the Aprea vehicle started to make a left turn into a private business, and while making the turn drove into the path of the Kelley vehicle. Kennedy opined that to avoid a collision with the Aprea vehicle, Kelley drove onto the shoulder of the southbound lane and struck a large pothole, causing the vehicle to skid across Route 12 into a large culvert, which caused the vehicle to roll. Kelley was not cited for any traffic infraction.

Photographs of the scene were taken by another sheriff's deputy at the time of the accident, and showed the vehicle and some skid marks across the highway, which Kennedy stated he believed came from Kelley's vehicle during the course of the accident. Unfortunately, no photographs were taken of the pothole in issue that day, and the pictures of the skid marks do not show where on the road they commenced. Kennedy did state that the skid marks started a short distance south of the pothole. He offered no testimony regarding the exact location of the skid marks vis-
-vis the pothole.

On cross-examination, Kennedy acknowledged that he was not a professional accident reconstructionist, and did not take measurements of the skid marks or the pothole. He stated that he had never previously had occasion to contact the New York State Department of Transportation (“DOT”) regarding potholes in that area.

Sean Stolarcyk (Stolarcyk) also testified on claimant's behalf. Stolarcyk, a DOT Highway Maintenance Supervisor 2, was responsible for maintaining the highways in that area, including Route 12. Stolarcyk testified that Route 12 in the area of the accident is one of the busiest roads in Chenango County, with a traffic count of 6,000 to 7,000 vehicles per day. It is a two-lane State asphalt highway with a broken yellow line dividing the lanes of traffic, and a white edge line on both sides of the road, delineating the travel lane from the shoulder. The shoulder is paved, and is approximately eight feet wide in the area of the accident - “wider than a car”. According to Stolarcyk, the State is responsible for the maintenance and repair of both the highway and the shoulder, and that such repairs on that section of road would fall under his supervision. Stolarcyk stated that he and his crew were responsible for maintenance of 200 “lane-miles” of roadway and that they would “patrol” for potholes as they had time.

Immediately adjacent to the southbound lane and shoulder in the area of Airport Road is a parking lot for some small businesses located on Route 12. At the request of one of the business owners, Stolarcyk and his supervisor, Michael Schwartz, visited the scene of the accident approximately one week later. An enlarged photograph taken the day of Stolarcyk's visit to the site was admitted into evidence,[2] and shows a line in the pavement between the shoulder and the parking lot. According to Stolarcyk, whose testimony on this issue was undisputed, the line indicates the 'edge of pavement' for purposes of the State's repair and maintenance responsibilities. He testified that beyond that line, repair and maintenance would be the responsibility of the property owner.

Stolarcyk described the pothole as of the day of his visit to the scene, and photographs introduced as exhibits depicted its location. According to Stolarcyk, at that time the entire pothole was approximately four to five feet wide in a direction perpendicular to the road, and two to three feet long in a direction parallel with the road. Only a relatively small portion of the pothole was actually on the shoulder,[3] and the majority of it was located over the edge of pavement line into the business parking lot. Stolarcyk testified that when he viewed the pothole, the portion of it located on the shoulder was two feet long and extended up to one foot at its widest location. He stated that the pothole was deepest - approximately three to four inches - at the line of pavement delineating the edge of the shoulder. Stolarcyk repaired the pothole that day, by himself, with a product known as “coldpatch.” He testified that it took approximately five to ten minutes to complete the repair. He filled the entire pothole, including that portion of it which was located in the parking lot.

Stolarcyk testified that he was not aware of the pothole prior to the phone call from the business owner, despite traveling Route 12 in that area on a daily basis. He further admitted being aware that repairs needed to be done along the shoulder of Route 12 in the vicinity of the accident, but did not recall receiving any complaints regarding potholes. His priority at that time of year was maintenance “between the white lines,” reserving the repair of potholes on the shoulder, when possible, for the opening of the asphalt plants in the spring, as the hot asphalt would effectuate a more permanent repair than coldpatch. He acknowledged on re-direct that DOT has an obligation to maintain the highway and shoulder regardless of his priorities, and that those priorities were established by himself and his crew, rather than being specifically set forth by statute.

Michael Schwartz, Stolarcyk's supervisor, also testified. He stated he had a degree in civil engineering, and was employed by DOT as a construction supervisor, with responsibility for all of Chenango County. Like Stolarcyk, he acknowledged defendant's general obligation to maintain and repair the shoulder of the highway, and confirmed that Route 12 is a high-traffic road in Chenango County. He was first informed of the accident and the existence of the pothole by Stolarcyk after a phone call from the business owners.

He described the pothole in question as actually being two potholes, one very small and one large. He estimated the width of the potholes as approximately four feet wide (perpendicular to the road) and one to two feet at the longest (parallel to the road), and four inches at the deepest point. He acknowledged that Stolarcyk had patched the entire pothole, but reiterated that defendant's obligation would only be to repair the portion of the pothole which was actually located on the shoulder. He indicated that part of his job as supervisor was to insure that the road crews did not repair potholes located beyond the shoulder on private property. In his opinion, only the portion of this particular pothole which was on the shoulder should have been repaired, and the patch should have been tapered down.

Finally, Schwartz estimated at trial that the pothole had been there for “at least a few weeks.” When confronted on cross-examination with his deposition testimony wherein he estimated that the pothole had been there for over a month,[4] he conceded that it had been there for at least a month. Stolarcyk's testimony was that he “guessed” the pothole had formed “the previous winter.”

In his post-trial submission, defendant's counsel argued that the claim should be dismissed on the basis of Highway Law § 58, which provides in pertinent part: “[t]he state shall not be liable for damages suffered by any person from defects in state highways, except between the first day of May and the fifteenth day of November.” Because this accident occurred on April 8, 2000, defendant contends that the State is therefore immune from liability under this statute. However, Highway Law § 58 has been interpreted in conjunction with Court of Claims Act § 8 to simply mean that the State has no duty to patrol for and repair potholes during the winter months (Aetna Casualty and Surety Co. a/s/o Marchesano v State of New York, Ct Cl, Aug. 4, 1992, Corbett, P.J., Claim No. 85216). Despite this, the State may be liable for accidents resulting from highway defects during those winter months where the State's negligence is the proximate cause of the accident (Adamo v State of New York, Ct Cl, Dec. 1, 2005, Mignano, J., Claim No. 100496 [UID # 2005-029-534]). Claimant specifically alleges defendant's negligence in this instance, contending that the pothole had been present on the shoulder of the road for such a length of time that defendant must be held to have had constructive notice of the defect. Consequently, Highway Law § 58 does not mandate dismissal of this action.

The State clearly has a nondelegable duty to maintain its roadways in a reasonably safe condition (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Where the State undertakes to provide a paved shoulder adjacent to the road, that duty then extends to maintain the shoulder in a reasonably safe condition for foreseeable uses, including situations arising from a driver's negligence or an emergency (Bottalico v State of New York, 59 NY2d 302, 304 [1983]). However, it must be noted that the State is not an insurer of the safety of the roads and the occurrence of an accident thereon does not automatically impose liability on the State (see e.g. Tomassi v Town of Union, supra). Further, the courts have consistently declined to extend the State's liability beyond the paved shoulder onto the right-of-way where an emergency use of such additional area was neither contemplated nor foreseeable (see Preston v State of New York, 6 AD3d 835 [2004], lv denied 3 NY3d 601 [2004]; Muller v State of New York, 240 AD2d 881, 882 [1997]).

Claimant has the burden of establishing that the State was negligent and that such negligence was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Marchetto v State of New York, 179 AD2d 947 [1992], lv denied 80 NY2d 751 [1992]; Demesmin v Town of Islip, 147 AD2d 519 [1989]). Liability will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (see Harris v Village of E. Hills, 41 NY2d 446, 450 [1977]; D’Alessio v State of New York, 147 AD2d 791 [1989]; Brooks v New York State Thruway Auth., 73 AD2d 767 [1979], affd 51 NY2d 892 [1980]; Rinaldi v State of New York,

49 AD2d 361, 363 [1975]).

Claimant has met its burden of establishing that the pothole was a dangerous condition. The testimony of the two DOT witnesses was that their inspection approximately one week after the accident indicated that the entirety of the pothole was approximately four to five feet wide, two feet long, and four to five inches deep. In the words of Schwartz, construction supervisor for the entire county, it was a “large pothole.” Moreover, the uncontroverted testimony of both witnesses established that the pothole had been there for at least one month, if not longer. Mr. Stolarcyk, who was directly responsible for the maintenance of Route 12 in that location acknowledged that he traveled the road on a daily basis. The Court finds that the hazard had existed for such a length of time that defendant had at the very least constructive notice, if not actual notice of the pothole’s existence.

Having established both the existence of the dangerous condition and defendant's constructive notice thereof, claimant must finally prove by a preponderance of the evidence that the condition for which defendant was responsible was the proximate cause of the accident. The Court finds that claimant has not done so. There was no credible evidence that Kelley's tire or tires were still on the shoulder, where defendant had the responsibility for maintenance, when she went through the pothole. While the Court gives strong weight to Kennedy's testimony that the pothole was the cause of the accident (see Hanna v State of New York, 152 AD2d 881, 885 [1989]), Kennedy did not offer an opinion as to the precise portion of the pothole traversed by the vehicle. His testimony regarding the skid marks, and the pictures, such as they are, merely establish that Kelley traveled through some portion of the pothole. Since the pothole was four to five feet wide, however, with defendant responsible for only approximately one-quarter of that area, claimant simply did not establish that defendant's negligence was a substantial factor in causing the unfortunate accident.

While Kelley was a credible witness, the Court simply cannot give any weight to her testimony that only the right-side, or passenger, wheels went over the white line onto the shoulder. First, the entire incident happened so swiftly, and was so startling, Kelley would have been extremely unlikely to be aware of the exact location of her tires on the pavement. Further, Stolarcyk's testimony is that the shoulder was approximately eight feet wide, which is wider than the car. Given the location of the pothole on the shoulder, it appears to be physically impossible for the vehicle to have traveled through the pothole without the wheels on the driver's side going onto the shoulder. Although the deepest part of the pothole was on the shoulder, there is no evidence from which the Court could find that Kelley’s vehicle actually struck that portion of the pothole. It is equally possible that the depth of the pothole in the parking lot, on the other side of the pavement edge, was sufficient to have caused Kelley to lose control of the vehicle. Finally, Kelley admitted that she never even saw the pothole, but instead simply felt a jolt as the vehicle went over it.

In Palumbo v State of New York (Ct Cl, Feb. 28, 2001, Ruderman, J., Claim No. 90713 [UID # 2001-010-016]), the Court stated: “Moreover, ‘[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury’ ” (quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]). In this case, as in Ingersoll, while it is certainly possible that defendant's negligence was the proximate cause of the accident, it is equally possible that it was not. As a result, claimant failed to prove that defendant’s negligence was the proximate cause of the accident.

Consequently, the claim is hereby dismissed.

Let judgment be entered accordingly.

April 2, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. All quotes are taken from the Court's recording of the proceeding, unless otherwise indicated.
[2]. Exhibit 6A.
[3]. For purposes of clarity, the term “shoulder,” as used herein, means the paved area adjacent to the road, for which the State has responsibility for maintenance.
[4]. Exhibit 47, p. 45.