New York State Court of Claims

New York State Court of Claims

HUTCHINGS v. THE STATE OF NEW YORK, #2007-044-025, Claim No. 110863


After trial, Court dismissed claim for injuries incurred in motorbike accident on bridge, as local municipality was entity responsible for maintenance of the bridge, rather than the State. Highway Law article IX which requires State to conduct periodic inspections of bridges expressly states that it was not intended to change responsibility for maintenance or liability. That law was also created pursuant to State’s police powers, and therefore was a duty owed to the public at large. Thus State could not be liable unless it had assumed a special duty to claimant, which did not occur in this case.

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:
STANLEY LAW OFFICES, LLPBY: Richard E. Clark, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 19, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks to recover for injuries incurred when he allegedly hit a metal joint between a bridge deck and street pavement while riding a motor scooter. Claimant contends that defendant State of New York (defendant) was negligent in the inspection, maintenance and reconstruction of the bridge. Defendant contends that the City of Binghamton (the City) was responsible for maintenance of the approach to the bridge,[1] that the difference in elevation between the approach pavement and the bridge deck did not constitute a dangerous condition, and that the accident did not occur in the manner alleged by the claimant.

A bifurcated trial was held on October 9, 2007 in the Binghamton District of the Court of Claims. This decision addresses only the issue of liability.

Claimant's accident occurred on September 6, 2004, at approximately 2:45 p.m., on Fairview Avenue. That street, located within the City, contains a bridge (the Bridge) which passes over Interstate Route 81 (Route 81). Claimant testified that he had traveled over the Bridge, in both directions, hundreds or even thousands of times, due to the combination of the close proximity to the Bridge of his longtime residence, and his travel patterns. He had owned the motor scooter for three or four years at the time of the accident, and rode it approximately 20 times per year, during the warmer months. He testified that he was an experienced motorcycle rider, and that he had never dropped the motor scooter or had an accident on it prior to the incident in question. The scooter was in very good operating condition at the time of the accident, and had been inspected in the spring of 2004. It had a top operating speed of 30 miles per hour.

Claimant stated that he had previously routinely encountered a “bump”[2] at the joints[3] between the Bridge deck and the pavement at both the north and south ends of the Bridge. He said it wasn't as bad at the north end, but that at the south end he would routinely tighten his hands on the scooter's handlebars to insure that he maintained control over the scooter when passing over the joint. He also said that when he approached the south end of the Bridge heading in a northerly direction while on the scooter, he would travel in the right side of the lane of traffic, because there was not as much of a bump at the joint in that area.

Pictures submitted into evidence of the joint and pavement approach to the south side of the Bridge (where claimant testified the accident took place) show the concrete deck of the Bridge immediately abutted with a piece of metal[4] (the “metal joint”), one side of which is level with the Bridge deck surface. The other side makes a right angle and lies adjacent to the concrete which constitutes the bridge deck where it meets the approach slab. Adjacent to the metal joint is the asphalt of the approach slab. All of the pictures show numerous patches on the asphalt approach slab, and closeup pictures of the joint area show a gap between the approach slab and the metal joint. Grass and weeds are growing in some places in this gap, and the asphalt pavement is somewhat deteriorated and sunken, leaving what is essentially a long, uneven depression immediately followed by the elevated surface of the metal joint.

Claimant stated that the day of the accident, Labor Day, was clear and sunny, and the roads were dry. He rode on the scooter to his wife's beauty shop in the City at approximately 10 a.m., traveling over the Bridge, to do some painting. He had lunch, consisting of some leftover pizza and three Coors Light beers,[5] at about 11:30 a.m., finishing with his lunch at about noon. He completed his painting at about 2:30 p.m., cleaned up his equipment, and rode the scooter back toward his house. He said that the weather continued to be clear and sunny, that he was wearing a helmet, and carried nothing in his hands while riding. He further testified that he was not impaired by the alcohol consumed with his lunch.

Claimant testified that he was traveling in a northerly direction on Fairview Avenue, at approximately 20 miles per hour in a 30 mile-per-hour speed zone as he approached the Bridge. He said that the road leading up to the Bridge is straight, but that the approach to the Bridge is uphill, and that he was slowing down as he was going up the hill, due to the small engine on the scooter. There were more cars parked by the sides of the road than usual, presumably because of the holiday. He slightly altered his usual approach to the Bridge because of the parked cars, traveling more toward the center of the lane than usual. He testified that when he reached the metal joint, the scooter's handlebars jerked to the right and he lost his grasp on them and fell off the left side of the bike, incurring various injuries. He did not believe he was knocked unconscious by the impact. He said he was in a great deal of pain, but that he got up to walk the scooter home. He walked across the Bridge, where he encountered some people who told him to sit down and await an ambulance, because he had sustained serious injuries.

When the ambulance arrived, claimant was sitting on the curb at the north end of the Bridge, in tremendous pain. He had a brief discussion with a paramedic, during which he refused to be immobilized, as he said the pain was too great. He was transported to a hospital in the ambulance, and remained hospitalized through September 8, 2004.

On September 10, 2004, claimant took two pictures of the pavement, metal joint and Bridge deck at the location of his accident. On September 21, 2004, he and his wife took pictures of the scooter and additional pictures of the road pavement and joint. Two of the pictures were closeups of the area of the pavement, Bridge deck and joint at what claimant described as the location of his collision with the joint. In those pictures, a tape measure is shown inserted in the gap between the joint and the pavement, in an attempt to measure the elevation difference (the “differential”) between the approach pavement and the Bridge deck. In both of those pictures, the top edge of the metal joint appears to be at approximately 2½ inches on the tape measure. However, the picture shows - and claimant acknowledged - that the bottom of the tape measure was below the surface of the approach pavement, in the gap between the pavement and the metal joint.

Francis Ryan, quality control engineer for the bridge inspection unit of the Department of Transportation (DOT), testified on claimant's behalf. Ryan said he signed off on the bridge inspection reports prepared by DOT in 2002 and 2004 concerning inspections made pursuant to the State's comprehensive bridge inspection program set forth in Article IX of the Highway Law.[6]

Ryan also stated that he had reviewed the plans for the State's reconstruction of the Bridge in 1991, which indicated that (among other things) the Bridge deck, metal joint and approach pavements were all replaced by the State at that time.

Ryan testified that a table, prepared in 1963 by DOT during construction of Route 81, indicated what entities were responsible for maintenance of the respective portions of the Bridge.[7] According to that table, the City was responsible for the maintenance of the pavement and sidewalks on the Bridge.[8] The Court also took judicial notice of a certified resolution adopted by the City in 1961 which indicated that the City would maintain Fairview Avenue at this location upon completion of construction by DOT, in accordance with the provisions of the Highway Law.

Ryan also described the process for “flagging”[9] problem areas associated with bridges, as set forth in DOT's flagging procedure, which is part of the bridge inspection procedure. On cross-examination, he said that the bridge inspection procedure itself was the same regardless of whether the State or another entity was responsible for maintenance, except that any such other entity would be notified if any problems were found.

Ryan said that the inspection reports indicated that a safety flag was issued in 2000 regarding the joint on the north end, due to the concern that a 50-millimeter settlement of the approach pavement would present a potential hazard to traffic during snowplow operations. He said that letters between DOT and the City, which were introduced into evidence, showed that the City was notified of the flag, and that the approach pavement was repaired by the City. He noted that no safety flags were issued by DOT as a result of the 2002 and 2004 inspections.

Michael Kranbuhl, bridge inspection team leader for DOT, also testified on claimant's behalf. Kranbuhl had participated in DOT's inspection of the Bridge in 2004, which occurred on July 19 and 20, shortly prior to claimant's accident on September 6, 2004. Kranbuhl acknowledged that he took measurements of the differential between the Bridge deck and the approach pavement, at both the north and south ends. He took three measurements of the differential at the south end. He described the DOT-prescribed method of taking these measurements as placing a level on the Bridge deck, and then using a folding ruler to measure from the level to the pavement surface. The largest differential he found was 30 millimeters at the south end of the bridge, as he then set forth in the 2004 inspection report. His notes in that report indicate: “[t]he begin and end asphalt approaches have settled at the armor angle up to a maximum of 30 mm. Settlement is occuring [sic] across the full width of the begin and end approaches.” Kranbuhl also acknowledged that he saw grass and weeds growing in the gap between the approach pavement and the metal joint on the south end of the Bridge. He confirmed that no safety flags were issued upon inspection of the Bridge in either 2002 or 2004. When asked generally whether an approach pavement could settle 30 millimeters1[0] in two months, he said that it could if the approach pavement had been constructed improperly. However, in this case, since the approach pavement was reconstructed in 1991, it was unlikely that such a dramatic settlement would have occurred within a two-month period 13 years later.

Juan Linsky, a civil engineer with the City Engineering Department, also testified on claimant's behalf. Linsky noted that DOT is the only entity that inspects bridges in general, and that the City has no responsibility for inspections or ratings of bridges, but that the City would be notified if the inspections revealed a problem for which the City had maintenance responsibility. Linsky testified that he believed that defendant bore the responsibility for maintenance of the Bridge deck and metal joint. Linsky thought the north end of the Bridge had been flagged during the 1998 and 2000 inspections for safety reasons, and that the City had patched the approach pavement with asphalt both times. He was not sure whether the south end of the Bridge had been flagged after any of the inspections occurring in 2000, 2002 or 2004, and he could not remember whether the City had been notified that any repairs needed to be made. He stated that if the City had been notified that repairs needed to be made, the City would have made such repairs.

When presented with the hypothetical that the differential between the approach pavement and the Bridge deck was measured at 30 millimeters in July of a given year, and then at 57 millimeters in October of that same year, his opinion was that this increase in such a short time would not be possible. He testified that either the freeze-thaw cycle or the settlement of the approach pavement would be generally responsible for any difference in height between the approach pavement and the Bridge deck. On cross-examination, Linsky acknowledged that when DOT notified the City of any repairs which needed to be made on the Bridge, DOT would indicate the entity whose responsibility it was to make those repairs.

Peter Arsenault, claimant's expert and a licensed architect, testified that he took measurements of the differential every five to six inches along the metal joint on the south side of the Bridge in October 2004. He said that the differential ranged from 1½ to 2 inches all the way across, and that the differential at the location of claimant's accident was 2 inches. He said he measured the “vertical distance down to pavement at the point of the steel angle.” Arsenault said that among the possible reasons for the differential between the approach pavement and the Bridge deck were settlement of the approach pavement and deterioration of that pavement. He acknowledged that his measurement was approximately double (57 millimeters versus 30 millimeters) the differential noted in the 2004 inspection report, measured by Michael Kranbuhl.1[1] He attributed the divergent results to the differing methods by which the measurements were taken, and said it was unlikely that additional movement of the approach pavement would cause that amount of increase in the differential in such a short period. Arsenault opined that the two-inch differential constituted a dangerous condition to a reasonable degree of architectural certainty, and should have been flagged and repaired.1[2] Finally, Arsenault rendered his opinion regarding the various ways that the difference in the pavement height could have come about, and concluded - without any foundation - that maintenance of the Bridge and the metal joint was the responsibility of the State. Claimant rested after Arsenault's testimony.

James Kabanek, Regional Structures Engineer for DOT, testified on defendant's behalf. Kabanek said that the appropriate method of measurement was that used by Kranbuhl. He said Arsenault's method provided too much chance for a false measurement, both because the tape was stuck down into the gap between the asphalt and the joint, and because the perspective of the viewer looking at the tape from above would result in an increase of the apparent measurement. Kabanek testified that, in his opinion, the differential between the approach pavement and the joint was not a dangerous condition, and also that he would rely on his inspector's judgment that this did not constitute a dangerous condition.

Kevin Rice, a City firefighter and certified paramedic, testified for the defendant. Rice responded to claimant's accident in a fire department ambulance. He spoke to claimant at the scene and also prepared a prehospital care report. He vaguely recalled arriving at the scene and seeing claimant sitting on the curb holding his shoulder. He indicated - and the prehospital care report reflects this - that claimant advised him that he had an accident on his scooter, and further stated that the cause of the accident was that he lost control of the scooter on loose stones.1[3] Rice also testified that claimant was clearly in substantial pain due to his injuries, and that claimant further could not tolerate being immobilized due to that pain.

At the close of defendant's case, claimant called two rebuttal witnesses. The first was City Police Officer Matthew Lewis, who responded to claimant's accident. Lewis testified that he made an entry on the police report that indicated that the cause of the accident was a collision with a fixed object.1[4] The second was claimant himself, to reiterate his testimony that it was the collision with the joint that caused the accident, and to testify that he was in severe pain when he made the statement to the officer regarding the scooter slipping on gravel.
Turning first to claimant’s motion to preclude testimony pertaining to the City’s alleged responsibility to maintain the Bridge, claimant argued in his motion papers that such testimony should be precluded because defendant’s Response to Claimant’s Bill of Particulars to Affirmative Defenses (which was served less than two weeks prior to trial, and after the deadline set by the Court for the completion of all discovery) contained no reference to defendant’s contention that the City was responsible or culpable with regard to the accident. Despite defendant’s obvious mistake in failing to include that information in its response, a review of the procedural history herein reveals that claimant’s argument is spurious.

Initially, CPLR 3042 (c) provides that “[i]f a party fails to respond to a demand in a timely fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel compliance, or, if such failure is willful, for the imposition of penalties pursuant to [CPLR 3041 (d)]”. There is no dispute that the bill of particulars served less than two weeks before trial was untimely. Further, there is little dispute that the bill of particulars did not specifically set forth defendant’s position that the City was responsible for the maintenance of the Fairview Avenue bridge or that defendant would argue that claimant’s culpable conduct was based upon his consumption of a few beers prior to the accident. While the Court does not condone defendant’s tardiness in serving the bill of particulars and the paucity of information contained therein, there is no evidence that defendant’s conduct was willful, contumacious or in bad faith (see Kovacs v Castle Restoration & Constr., 262 AD2d 165, 166 [1999]; Cooper v Drobenko Bros. Realty, 200 AD2d 415 [1994]). In fact, based upon counsels’ oral arguments on the motion, the failure to timely serve the bill of particulars or include this relevant information was clearly inadvertent. Accordingly, claimant’s motion to preclude could be denied solely on that basis.

Even if the Court found defendant’s conduct to be willful, however, the motion to preclude would be denied. The City’s potential responsibility for maintenance of the pavement in question has been an issue in this claim prior even to its commencement. A motion for permission to file a late claim was filed by claimant shortly after the expiration of the 90-day statutory period. In opposition to that motion, defendant submitted an affidavit from DOT’s Bridge Maintenance Engineer for the region. As noted by the Court in its decision granting permission to file the late claim (Hutchings v State of New York, Ct Cl, Mar. 9, 2005, Lebous, J., Claim No. None, Motion No. M-69629 [UID # 2005-019-517]), the engineer conceded in that affidavit that defendant owned the Bridge structure itself, but further averred that the City, rather than defendant, had responsibility for maintaining the roadway surface of Fairview Avenue, including the Bridge overpass and the expansion joints of the Bridge. While the Court held that the proof submitted on the motion regarding the City’s responsibility was inconclusive, it is abundantly clear that the City’s possible duty was well known to claimant from the commencement of this case. Despite defendant’s failure to allege the City’s involvement in its Bill of Particulars regarding its Affirmative Defenses, claimant cannot contend that he was surprised or prejudiced in any way by this failure to disclose, and thus there is no basis for precluding testimony concerning the City’s maintenance responsibility (see generally Kovacs v Castle Restoration & Constr., supra).1[5]

Claimant’s motion to preclude any testimony concerning claimant’s consumption of alcoholic beverages at lunch on the day of the accident was also based on defendant’s failure to include any mention thereof in its Response to Claimant’s Bill of Particulars to Affirmative Defenses, specifically with regard to any potential comparative negligence on claimant’s part. Once again, claimant can make no argument that this information constituted a surprise. Claimant himself, at his deposition, readily revealed the facts concerning his intake of beer at lunch on the date of the accident. Any reasonable person would assume that this information would be used in an attempt to show some sort of comparative negligence on claimant's part. Claimant again cannot claim surprise or prejudice as “any culpable conduct testimony will be taken right from [claimant’s] own mouth” (id. at 166), and the Court denied the motion.1[6]

The Court next turns to the merits of the case itself. It is clear that the City bears responsibility for maintenance of the pavement of the Bridge and its approaches. Although claimant cites to Article IX, Section 230 (1) of the Highway Law, which defines a bridge to include the approaches thereto, that definition does not apply outside that article (Matter of Village of Chestnut Ridge v Howard, 92 NY2d 718 [1999]). The provisions of Article IX, which contain that definition, were not intended to change a municipality’s obligation for maintenance or repair (see id. at 722; L 1988, ch 781, § 1, eff June 1, 1989). Not only does the chart prepared by DOT in 1963 clearly indicate that the City would be the entity responsible for maintaining the pavement up to and over the Bridge, which is confirmed by the resolution passed by the City in 1961, but the Highway Law also clearly provides for this obligation as well. Highway Law

§ 340-b (2) provides in pertinent part:
Structures constructed pursuant to this paragraph shall be maintained and repaired by the state. Highways . . . carried over or under an interstate highway section or connection . . . shall, upon completion of the work, revert to and become the responsibility with regard to maintenance and repair, of the . . . municipality . . . formerly having jurisdiction thereover.

Based on these various provisions, the Court finds that the City was responsible for maintenance of the pavement where the accident took place.1[7]

Claimant contends, however, that defendant has assumed some kind of duty of care toward claimant as a result of its statutory obligation to conduct regular bridge inspections, whether that alleged duty be one to warn of dangerous conditions or one to conduct accurate and adequate inspections. Without such a duty of care being owed, of course, there can be no breach, and without a breach there can be no liability (see Pulka v Edelman, 40 NY2d 781 [1976]; Palsgraf v Long Is. R.R. Co., 248 NY 339, 341 [1928]).

Claimant’s contention that some duty is owed to claimant by defendant is unavailing, however. First, as set forth above, the statutory provisions requiring regular, systematic bridge inspections were not “intended to effect any changes in the determination of which public entities bear responsibility for the actual repair and maintenance” (Matter of Village of Chestnut Ridge., supra; see Highway Law § 234 [1] which provides that “[a]fter such inspection the bridge shall have the same status with respect to maintenance and liability as it had prior to inspection”;

see also
L 1988, ch 781, § 1, eff June 1, 1989). As aptly stated by the Court in Meyers v State of New York (Ct Cl, Dec. 7, 2004, Fitzpatrick, J., Claim No. 100603 [UID # 2004-018-447]), “[t]o find otherwise would open the State up to potential liability for every bridge, whether owned by a town, county, or village which the State inspects. Such a finding would undermine the State’s purpose in ensuring and providing ‘sound comprehensive bridge management, thorough bridge inspections and proper, cost-effective preventive maintenance’ for all publicly owned bridges”.

Second, in order for defendant to be liable, there must have been a duty on the part of the defendant to use due care for the benefit of particular persons or classes of persons (Florence v Goldberg, 44 NY2d 189, 195 [1978], quoting Motyka v City of Amsterdam, 15 NY2d 134, 139 [1965]). Notably, claimant neither pleaded nor proved the existence of any such special relationship between defendant and claimant. As discussed previously, defendant was not acting in any proprietary capacity with regard to the Bridge approach. Further, the bridge inspection program was clearly created pursuant to the State’s police powers to provide protection to the public at large, rather than to any particular class of persons. Defendant cannot be found liable without having assumed some type of special duty to claimant (see generally Miller v State of New York, 277 AD2d 770 [2000]). No such special duty was shown, and it is clear that the Legislature did not intend, in its creation of the bridge inspection program, to create a duty resulting in the assumption of liability by defendant.

Claim No. 110863 is consequently dismissed. Any and all motions on which the court may have previously reserved or which were not previously determined, are hereby denied. Let judgment be entered accordingly.

December 19, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. Shortly prior to trial, claimant submitted a motion to preclude testimony at trial that any entity other than defendant was responsible for maintenance of the bridge, and also to preclude any testimony regarding claimant's consumption of alcoholic beverages on the day of the accident. This motion was denied by the Court, as discussed in more detail at pp 11-13, infra.
[2]. All quotes are taken from the Court's recording of the proceedings.
[3]. At trial, some testimony was elicited from various witnesses which indicated that the Bridge was technically “jointless.” However, the Court will use the term “joint” in this decision as it is commonly understood, to describe the area of intersection between the pavement of the road and the Bridge deck.
[4]. This piece of metal was occasionally referred to at trial as an “armor angle” and sometimes as a “metal joint.”
[5]. See n 1, supra.
[6]. The State's bridge inspection program requires DOT to regularly inspect and maintain information regarding all the bridges in the State, regardless of what entity may be responsible for maintenance of those bridges.
[7]. Claimant objected to the admission of the table on the ground that it was not a certified copy. However, Ryan testified that it was a true and accurate copy of the table created and used by DOT to determine maintenance jurisdiction. Interestingly, prior to the trial the parties had agreed to stipulate to admission into evidence of all of claimant's proposed exhibits, including a copy of this particular table. At the commencement of trial, claimant's counsel requested and received permission to withdraw two exhibits, one of which was this table.
[8]. In an apparent attempt to impeach the witness (despite the uncontroverted fact that the alleged dangerous condition was located not on the Bridge deck itself but rather on the approach pavement and metal joint), claimant's counsel pointed out that Ryan had testified at his deposition that defendant was responsible for maintaining the Bridge deck. On cross-examination, Ryan said that he had misread the table during his deposition, which statement the Court accepts.
[9]. Ryan testified that the term “flagging” does not indicate that an actual flag is placed on the structure, but rather that a report is generated which brings the particular issue to the attention of the entity responsible for maintaining that portion of the bridge.
1[0]. The basis for this question apparently being that claimant's expert testified that he measured the differential at 57 millimeters in October, 2004; see p 9, infra.
[1]1. Arsenault also acknowledged that he did not use the method of measuring mandated by DOT in its bridge inspection manual.
1[2]. Counsel for defendant objected to Mr. Arsenault's testimony on this issue, on the ground that an architect would not have the knowledge and expertise appropriate to testify regarding either a dangerous condition on a highway or whether such a condition should be flagged. The Court need not address this objection in light of the finding herein.
1[3]. Claimant's counsel objected on hearsay grounds to both the admission of the prehospital care report and this portion of the testimony. The Court reserved decision and now overrules the objection with regard to Rice's testimony concerning claimant's comments about the cause of the accident. Claimant's statement was clearly an admission, and thus properly admissible against him as evidence-in-chief (see e.g. People v Geraci, 254 AD2d 522, 525 [1998]; Hayes v Henault, 131 AD2d 930, 932-933 [1987]). However, the Court sustains the objection with regard to the prehospital care report, as no foundation was laid that the document was a business record.
1[4]. Claimant offered the portion of the report containing that entry into evidence, and requested that the rest of the report be redacted. Because there was no objection to entry of the police report as a business record, and claimant’s statement is admissible as an admission by a party (see n 13, supra), the report is admitted in its entirety. Notably, this police report, in its entirety without redactions, was the other exhibit (see n 7) originally offered into evidence by claimant and admitted by stipulation of defendant, and subsequently withdrawn by claimant.
1[5]. Moreover, when the Court heard oral argument on the motion to preclude, it advised claimant’s counsel that a request for an adjournment of the trial to avoid any potential prejudice would be granted by the Court without further question. Claimant’s counsel declined to make such a request, thus apparently indicating that no such prejudice was actually perceived.
1[6]. It should be noted that no evidence was introduced at trial that indicated that claimant was impaired at the time of the accident due to his consumption of alcoholic beverages several hours earlier.
1[7]. It should be noted that claimant’s counsel conceded the City’s responsibility for maintenance of the pavement approach in his closing argument.