New York State Court of Claims

New York State Court of Claims

McKINNEY v. THE STATE OF NEW YORK, #2008-029-023, Claim No. 109308


State not liable for slip and fall on ice at a commuter parking lot designed and constructed by the State. There was no proof of negligent design or construction, and the local government was responsible for maintenance.

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:
BIRBROWER, BELDOCK & MARGOLIS, P.C.By: Jeffrey B. Saunders, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Jyotsna Gorti, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 9, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


William L. McKinney (hereinafter “claimant”) seeks damages for personal injuries allegedly incurred when he slipped and fell on an icy sidewalk while walking from a park and ride lot located at Exit 14 of the New York State Thruway, along Route 59, in Nanuet (Town of Clarkstown) to a bus stop across Route 59 from the lot. Debbie P. McKinney seeks damages arising from the loss of her husband’s services, society and consortium resulting from such injuries. Trial was bifurcated, and only the issue of liability will be addressed herein.

Claimant’s contention is that the ice on which he fell resulted from the alleged defective design of the lot and the ramp and sidewalk leading from the lot. The parties agree that the State of New York was responsible for the design of the lot and its appurtenances, and that the Town of Clarkstown was responsible for maintenance, including snow and ice removal. Defendant [1] contends that the lot was properly designed, that a small amount of unavoidable snow melt created the ice on which claimant fell and that the cause of claimant’s fall was claimant’s failure to see that which he should have seen, with a failure to properly maintain the sidewalk being a potential contributing factor.

For nine years prior to the February 5, 2004 accident date claimant worked in Manhattan, generally taking the bus from the subject parking lot. He habitually parked in the west end of the lot and walked to the bus stop across Route 59, a route he followed on the morning in question. He recalled that his car thermometer read 27 degrees that morning as he was driving to the parking lot and that there had been some snow earlier in the week, with melting during the daytime hours and refreezing overnight. He did not recall exactly what time he arrived at the parking lot that day, but stated he usually took the bus between 7:20 and 8:00 a.m. He was wearing “pattern tread Timberland shoes” (Vol I, p 183). [2] After parking his car, he walked past the other parked cars, “down to the ramp” (id.). He noticed that there was some snow, ice and a few moist spots in the parking lot, and that “there was a lot of ice in the area immediately before you get to the ramp, and there was snow off on the sides of the ramp” (id. at 184). He estimated the snow was piled six to eighteen inches high at various points. There was no snow on the walkway itself, or along Route 59. As claimant got to the corner he saw there was a bus at the bus stop and the traffic light facing him was green. He stated he was walking at a normal pace. He described the accident as follows:
“As I approached the end of the ramp . . . I was stepping off toward the curb with my right foot. I had my right foot in the air and my left foot slid out from underneath me, and my ankle went from a position – it was perpendicular to the ground, and as my left foot slid backwards, my ankle kind of buckled underneath me and went parallel to the ground.”(id. at 186-187).
He fell to the ground on his back. As he was lying on the ground, he could feel a sheet of ice beneath him. He described the ice as a razor-thin, slick sheet of black ice.

At about 2:30 that afternoon, claimant returned to the parking lot with his daughter to retrieve his car. At that time his daughter took three photographs that were received in evidence as Exhibits 25, 26 and 27. The photos show the bottom portion of the pedestrian ramp, the adjoining sidewalk along Route 59 and a portion of the grassy area separating the sidewalk from the parking lot. They also show an area of moisture leading from the grassy area, across a small portion of the sidewalk to the curb where it angles down to accommodate the handicap curb cut at the corner. Claimant testified that it had warmed up by the time these photographs were taken but that “[i]n the morning, the spot was larger, but it didn’t look any different. It looked pretty much the same. It just looked like a large moist patch in the exact area where this moisture is now in the afternoon” (id. at 194). He stated that the moisture came from snow piled in the grassy area. He marked the spot where his left foot slipped on the ice on Exhibit 27, a spot on the sidewalk just before the Route 59 curb (from a vertical perspective) and just before the surface of the sidewalk begins to descend to meet the handicap curb cut (from a horizontal perspective). Finally, he indicated that there was no evidence of sand or salt having been applied to the area that morning.

On cross-examination, claimant stated that he did not see much ice as he walked through the parking lot, “but mostly where I was walking, it was just moist” (Vol I, p 199). As he approached the pedestrian ramp, he noticed a moist area at the top but he didn’t consider it to be hazardous and just kept walking, and then “looked over and I was watching the bus” (id.). At his deposition, he testified: “I didn’t see any snow or ice as I walked up and I wasn’t really looking for anything. I was really looking over toward the bus as I walked down the sidewalk” (id. at 200). He stated at trial that he saw the moist area, but didn’t consider it a serious concern. Richard Greenfield, who regularly commutes from Rockland County to Manhattan from the Nanuet parking lot, testified for the claimant. He stated that as he was walking towards the pedestrian ramp leading to Route 59, he saw claimant lying on the ground in pain. He testified that the conditions in the parking lot, and on the ramp, were snowy and icy that day and specifically that there was a “significant amount of ice and snow” (id. at 162) on the edges of the ramp and sidewalk. He also stated there was “ice at the end of the parking lot also as usual” (id.). He claimed that he had frequently seen ice on the sidewalk when the weather was cold and snowy and that he had seen a handful of people fall on ice in this area during the five years he had utilized the lot. On cross-examination, he clarified that by a handful he meant five or fewer people, and that he himself had never fallen nor had he ever made any complaints about snow or ice on the sidewalk or walkway. He remembered snow on the ground that day but could not recall if it was actually snowing at the time. He recalled piled snow that had been plowed from the lot, and ice covering the sidewalk, not just in the area where claimant fell. Greenfield stated he walked very carefully because of the icy conditions.

Andrew Yarmus, a licensed professional engineer with a degree from the Cornell School of Civil and Environmental Engineering, testified as an expert witness for the claimant. He did a site inspection on October 19, 2005 at which time he took photographs of the area. He also reviewed photographs taken by claimant and the construction plans for the parking lot. He stated that his experience includes design of parking lots and sidewalks. Making reference to the 1996 DOT plans for the construction of the parking lot (Exhibit 1), Yarmus noted that the subject pedestrian ramp was at the southwest corner of the lot and that the slope of the lot was from east to west. Route 59 forms the southerly border of the lot, which is separated from Route 59 by a sidewalk and a grassy area between the sidewalk and the lot. The pedestrian ramp on which claimant was walking when he fell runs from the parking area, across the grassy area and the sidewalk, to Route 59. (See Exhibit 1, Drawing No. SP-4). The drawing shows the walkway to be about 45 feet in length. The interior of the lot is surrounded by a curb, and there are drainage catch basins intended to drain runoff from the lot located on either side of the parking lot end of the walkway, identified as basins 123.1 and 123.7 on the Utility and Drainage Plan (Exhibit 1, Drawing No. UT-3, see also Exhibits 8 and 9). There is an additional catch basin (basin 124) located along the Route 59 curb, just to the east (uphill) of the crosswalk that begins at the end of the pedestrian ramp (see Exhibits 14, 15 and 22).

Yarmus’ opinion as to the design of the parking lot, sidewalk and pedestrian ramp from a drainage point of view was based on his conclusion that during the winter months snow would be plowed from the lot’s surface and piled on the grassy areas separating the lot from the sidewalk, including the areas adjacent to the pedestrian ramp. That conclusion was confirmed by a number of photographs that were taken by defendant’s expert showing piles of plowed snow in these areas (e.g., Exhibits J, K, L, N and O). Yarmus’s opinion was that snow that had been plowed on either side of the ramp would melt during the day, “travel down the grass slope towards the sidewalk area melting across the sidewalk area and possibly refreezing, obviously, on this sidewalk area” (Vol. I, pp 72-73). Asked if the design of the parking lot was reasonable, Yarmus replied that it was not, because:
“[t]hey haven’t provided for any area for the snow to be accumulated, for the snow to be piled up. Ultimately after it is being accumulated or piled up, it’s merely following the grass and melting down directly onto the areas where you’re directing the pedestrians to be walking. I would rather have seen either an area designated for the pile up of the snow, or at least some sort of a barrier to be locking the freezing and thawing to contain it and ultimately drain it off of this area so the runoff isn’t allowed to flow directly onto the ramp itself and the crosswalk and curb cut” ( Vol I, pp 74-75).
Referring to Exhibits R, S and T, Yarmus pointed out that there was snow piled on the grass adjacent to the ramp, with runoff leading across the sidewalk, across the curb cut at the end of the ramp and into the crosswalk.

On cross-examination, Yarmus conceded that the parking lot and ramp were constructed in accordance with the design plan, and that the Town of Clarkstown, not the State of New York, was responsible for maintenance of the lot, including plowing and storing snow. He also agreed with defense counsel that, notwithstanding some language to the contrary in his written report (Exhibit 35), the runoff that he contended caused a hazard at the bottom of the pedestrian ramp would not come from the surface of the lot, but from snow piled on the grassy areas on either side of the ramp. Although he did not address the issue of possible alternative design schemes on direct examination, defense counsel asked him to read into the record the following portion of his report:
“[T]he parking lot is specifically designed, constructed and maintained so as to direct runoff across the designated path of travel at this crosswalk area. By designing the parking lot to direct runoff towards this area, by configuring the topography of the area to direct runoff towards the crosswalk, by placing the crosswalk at a lower area which is directly in the flow of runoff in this area, by designing the parking lot in such a manner that snow is plowed to the low spot and allowed to melt, runoff and freeze at the subject crosswalk area, by configuring the sidewalks adjacent to Route 59 such that snow is plowed and allowed to melt, runoff and refreeze at the subject crosswalk, et cetera, the subject crosswalk was specifically designed and installed in an area which should have been realized to be directly in the path of runoff which would create slipping and falling hazards at subject area. Alternate design schemes which would have eliminated placement of crosswalks at this low spot, thereby limiting its susceptibility to runoff and slipping hazard such as those noted, should have been considered” (Vol I, p 106).
Notwithstanding this broad indictment of the entire project’s design, including “the parking lot, the grass areas, the crosswalk, the sidewalks, the walkway,” (id. at 108) Yarmus conceded that any runoff from the parking lot itself should not have caused a problem because it would have been contained by the drainage basins inside the lot. His contention at trial, much more limited than those in his report, was merely directed at runoff from snow piled on the grassy areas adjacent to the pedestrian ramp which would melt, flow onto the ramp, and then refreeze before it reached the catch basin at the Route 59 curb. Defense counsel pointed out that the photographs that show large piles of snow on the grassy areas do not show any runoff flowing down the ramp, which is only wet at its very bottom, immediately adjacent to the curb cut apparently from unplowed snow on the sidewalk (Exhibits R and S).

Edward Goff, a Highway Design Engineer with the DOT was called as a joint witness by both parties. He did not have any involvement in the subject project, which involved construction of the park and ride lot and sidewalks, widening of Route 59 and improvements to the access ramp to the Thruway, which formed the western boundary of the newly-constructed lot. He has never seen a design report or analysis for the project and has no knowledge whether a pedestrian study was done. Looking at the project plans, he noted that there were neither a parking lot nor sidewalks prior to the 1996 construction. The plans also show that the grade of Route 59 was downhill moving east to west along the curb and was also downhill moving north to south, thus placing the southwest corner of the lot, where the pedestrian ramp is located, at the low point of the area.

Speaking generally, Goff stated that highway designers typically try to capture surface water before it enters a crosswalk, and also that catch basins would typically be placed uphill from a handicap access ramp, with the goal being to prevent “the roadway runoff – which tends to be considerable in the gutter line” from flowing across or accumulating in the crosswalk (Vol II, p 287). He stated that catch basins are generally not placed within a crosswalk or at the base of handicap ramps because such a placement would create a hazard for pedestrians. Instead, basins are usually placed uphill of pedestrian areas, as was basin 124.

Goff stated that a bus stop across the street from a parking lot would be considered a pedestrian generator and that the presence of the pedestrian ramp in question was an indication that the designers expected people to walk from the lot to the bus stop diagonally across Route 59 using the ramp: “The consideration for the handicap ramp is where we expect people to use it” (id. at 328).

With respect to drainage, Goff indicated that most projects would include a “drainage analysis” consisting of an examination of the pavement, amount of runoff anticipated and where catch basins should be placed (id. at 306). He was unaware whether such an analysis was done for the subject project. Part of a drainage analysis would include examination of the roadway during a rainstorm, but Goff was not sure if drainage from sidewalks was part of a typical drainage analysis because sidewalks are typically sloped from the back edge to the curb and gutter line, on a two percent grade, so that water can run into the gutter. He stated that a grass or dirt area behind a sidewalk was typically not considered in a drainage analysis because such areas, as opposed to concrete and asphalt, are permeable and generally don’t lead to runoff issues. The goal in designing drainage facilities is to get all of the runoff into the gutter line and thence into the catch basins. Thus, the basins are placed at the bottom of the longitudinal slope, the sidewalk is pitched from the back towards the curb and any runoff from the back of the sidewalk must flow across the sidewalk into the gutter line. Looking at Exhibit 31, a photograph showing the ramp in question, the adjoining sidewalk and grassy areas, the beginning of the crosswalk and the catch basin identified as basin 124 on the plans, Goff observed that it appeared as if the basin was placed so as to capture the roadway runoff and sidewalk runoff before it entered the crosswalk and reached the end of the pedestrian ramp. Looking at the photographs of the end of the ramp and sidewalk taken on the date of the subject incident that show a damp area on the sidewalk laterally adjacent to the end of the ramp (Exhibits 25 and 27), Goff was asked if he considered the grassy area immediately adjacent to the sidewalk a “runoff generator” (id. at 344). After noting that he had never heard that term before, he replied in the negative, stating that most of the rain water and snow melt would seep into the turf.

Nicholas Pucino, a self-employed professional engineer, testified as an expert witness for the defendant. He inspected the site in March 2006 and March 2007 and observed the layout of the roadways, parking lot, sidewalks and ramp, examined the drainage facilities including the catch basins and measured the slopes of the sidewalks, the parking lot approaching the ramp and the ramp itself. He noted that, leaving the parking lot, the ramp goes up a grade of 4.6 percent for a short distance and then goes back down a grade to the level of Route 59. Based on that fact, the slopes in the parking lot leading most of the water away from the ramp and the presence of a lip at the beginning of the ramp, Pucino concluded that there was “no chance at all whatsoever” of any runoff from the parking lot entering the pedestrian ramp (id. at 392). Claimant did not contend at trial that runoff came from the surface of the parking lot, as opposed to the grassy area adjacent to the walkway. However, his expert’s written report (Exhibit 35) did contain such allegations, thus Pucino’s testimony was obviously intended to rebut that argument.

Pucino examined the scene on March 19, 2007 specifically because there had been a heavy snowfall and he “wanted to see where the snow melt went, where the snow was piled, just to get a feel for what the parking lot looked like under . . . heavy snow fall condition[s]” (id. at 399). He documented the conditions that day in a series of photographs, received as Exhibits H through Z inclusive.

Asked what would happen to water entering the sidewalk from the adjacent grassy area, Pucino noted that the sidewalk had a quarter-inch per foot grade towards the Route 59 gutter [3] and was on a six percent downgrade proceeding west, following the slope of Route 59. Thus, any water that entered the sidewalk from the grassy area would run on a diagonal across the sidewalk, into the gutter and thence into catch basin 124. Addressing the issue of storage of plowed snow, Pucino noted there was an available eight to ten foot buffer area around the periphery of the lot. He stressed that this buffer circumscribed the lot and was not limited, as claimant alleged, to the low point of the lot adjacent to the pedestrian ramp. Pucino observed that when he was at the site, the pedestrian ramp was clear and dry, except for a small area of moisture running from the sidewalk, following the grade of the sidewalk and the slope towards the gutter, on a diagonal towards the base of the ramp and the beginning of the crosswalk (Exhibits S and T).

Looking at the photographs taken by claimant’s daughter on the date of the accident, Pucino stated that the source of the water crossing the sidewalk in the area where claimant fell was “clearly a strip of snow and snow melt running parallel to Route 59, not some accumulation of piles of snow from the parking lot” (Vol II, p 433). The reason for this conclusion was that the pedestrian ramp was clear: “There’s nothing in here. There’s no piles of snow. There’s not even any runoff. There’s no water moving there. So this just was a localized melting right pretty close to the sidewalk” (id.). Asked his opinion of the roadway and drainage in this area, Pucino replied

“this was a normal and accepted drainage design. You just can’t catch every drop of water or snow melt, and, of course, inherent in the design is that water or snow melt from adjoining – areas adjoining a sidewalk, particularly an urban area, are going to come across the sidewalk” (id. at 435).

His opinion was that claimant’s fall was the result of

“[a]n icing condition that occurs pretty commonly that wasn’t treated with salt or abrasives or whatever, and a very minuscule one, I might add, not a very massive icing condition, and apparently, judging by the testimony of Mr. McKinney, he really wasn’t looking, you know, where he was stepping, particularly where this was going down the pedestrian – the handicap ramp. Was looking, I believe, towards the bus, that he really didn’t observe that as well as he could have, and slipped and fell on ice, but the ice was a normal maintenance type of situation, . . . but even at that, you can’t do everything” (id. at 436-437).
Pucino contended that the design of the ramp and the sidewalk had nothing to do with the presence of moisture in the area where claimant fell. He noted that there was no way to insure that all sidewalk areas remained dry at all times and that there was no concentration of moisture in the area where claimant fell as opposed to any other area on the sidewalk. He testified that there was nothing inappropriate about a design that contemplated water running across a sidewalk or a handicap ramp and that what happens when the temperature falls below freezing was a maintenance issue, not a design issue.

Pucino was asked on cross-examination why catch basin 124 was placed immediately uphill from the crosswalk, specifically whether it was intended to capture water flow before it entered the crosswalk. He replied that it was intended to prevent a “high volume” of water from reaching the crosswalk, but that it was not possible to catch all the water. “You’re trying to cut down so there’s not a deep volume or – you know, for people that are going to step in a puddle or a flow of water, but you can’t keep it from – you can’t make it stay dry or catch all the water before it gets to that point” (id. at 466). He stressed that it was proper and accepted engineering practice to allow water to flow over a sidewalk to get to a drainage basin – he stated “[t]here’s just no other way to stop it” – and that if the temperature drops, there may be ice on the sidewalk. This was true for the whole length of the sidewalk, not just the portion where it meets with the pedestrian ramp. Asked about the decision to place the pedestrian ramp on the corner of Route 59 and the Thruway access ramp, which was the low point of the area, Pucino replied:
“every corner, you’re going to have potential for water running on to the crosswalk and you have to put the . . . handicap ramp on the corner. . . you’re not going to have a mid-block crossing . . . [y]ou have to build it where the use is going to be and where it’s logical from the standpoint of serving the pedestrians.” (id. at 473).
At the conclusion of trial, claimant’s counsel, unconvinced that his disclosure requests had been fully complied with, requested that the court direct defense counsel to ask DOT to conduct a further search of its files in the hopes of finding a study or report that addressed drainage issues for the parking lot construction project, a request that the court granted. Two weeks subsequent to the close of testimony, the court was advised that although there was no such report in the DOT’s files, further inquiry revealed that a drainage study had been done and a report prepared, but that the only copy of the report was in the possession of the consulting engineer, not a State employee. The parties returned to court, and claimant’s counsel requested that the court preclude the report and make “a finding of fact that there were no studies done in relation to this particular case” (Vol III, Post-hearing, p 508). Defense counsel did not oppose this remedy, stating “I anticipate that the Court . . . is going to preclude us from putting this drainage report in at this point. And I guess I don’t see any other way of getting around this problem that we have” (id. at 513). The court noted that there were two available options: to reopen the trial and direct defendant to absorb the cost of review of the report by claimant’s expert, or to leave the trial record as it was, with a finding that, for the purpose of deciding this claim, the study and report did not exist. Since defendant agreed to the remedy sought by claimant – i.e., precluding the report rather than reopening the trial – the matter was fully submitted on this basis.

As defense counsel conceded, the absence of any design study prevents defendant from asserting a defense based upon qualified immunity (see generally Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579 [1960]). Nevertheless, and contrary to claimants’ post-trial assertion, the absence of a design study does not, per se, establish a prima facie case of negligent design. It remains for claimants to prove that the design of the parking lot and its appurtenances constituted negligence; i.e., that it violated reasonable design standards applicable at the time of construction (Dahl v State of New York, 13 Misc 3d 590 [Ct Cl 2006], affd 45 AD3d 803 [2d Dept 2007]).

Claimant’s essential contention was that the pedestrian access/egress should have been placed in a different location because the southwest corner is the low point of the lot and because the ramp was placed adjacent to areas that the planners should have known would be used for the storage of snow. However, claimant’s expert offered nothing other than the general statement that “alternate design schemes . . . should have been considered” (Vol I, p 106) to support his assertion that there was any more reasonable location for the ramp. The commuter bus stop (the destination of the vast majority of those who parked in the lot) was located diagonally across Route 59 from the southwest corner of the lot. As Pucino and Goff both noted, that is where people were going to walk to get to the bus stop. The only applicable standard for placement of pedestrian ramps identified at this trial was that ramps are placed where pedestrians are expected to walk, as was done here. Yarmus identified no engineering standard or principle that was violated by the placement of the pedestrian ramp in the southwest corner of the lot. Indeed, any other location would have been without rational basis because any other location would not have been used by the great majority of patrons parking in the lot as part of their commute.

Yarmus’ contention that the lot was designed so that snow would be plowed towards the southwest corner was also unsupported by the evidence. The plans provided for grassy median areas between the lot and the surrounding sidewalk around the entire lot. The photographs taken by Pucino after a snowstorm confirm that snow was plowed onto these areas generally, not just adjacent to the pedestrian walkway in the southwest corner (see Exhibits H, K, M and O). Indeed, the photographs show less snow plowed on the areas adjacent to the walkway than on the rest of the grassy medians (see Exhibits L, N, Q and S). The proof adduced at trial did not support claimants’ contention that the design of the parking lot lacked adequate area for the storage of plowed snow. In fact, it directly contradicted that assertion.

As for the contention that it was improper to design sidewalks so that water would flow over them, claimant offered nothing to counter Pucino’s explanation that sidewalks are always designed with the expectation that water would flow from the back of the sidewalk to the front, and thence into the gutter and the catch basins. The photographic evidence submitted by both claimant and defendant indicates that the sidewalks functioned properly and in accordance with this principle. Claimant presented no design standard or principle in support of the argument that the presence of moisture on a sidewalk is somehow indicative of an improper design. The only such principles before the court are those referenced by Goff and Pucino – that sidewalks are always sloped back to front to provide for drainage across the sidewalk into the gutter, a concept that recognizes that sidewalks will sometimes be wet and, in areas subject to winter temperatures, the moisture may freeze thus necessitating salting and sanding for proper sidewalk maintenance in winter climates. The only standards referenced by claimant – excerpts from Chapter 18 of the Highway Design Manual, Facilities for Pedestrians and Bicyclists (Exhibit 37) – address concerns not relevant to the issues raised in this case. [4] The sole portion that applies herein is section 18.04(6) which provides that “existing site characteristics,” such as crosswalks, should be considered. As both Goff and Pucino noted, the reason for locating the pedestrian ramp at the southwest corner of the lot was because that was the closest point to the bus stop and that was where pedestrians were going to walk. There is absolutely nothing in this chapter of the design manual that contradicts the principle that sidewalks are designed so that water drains across them into the gutter. The court agrees with the position that it is not possible to insure a dry sidewalk through design and placement of drainage facilities alone. The simple facts are that sidewalks will sometimes get wet and, in winter months, will sometimes freeze. The only way to address icy sidewalks is through proper application of materials such as salt and sand.

Interestingly, Chapter 18 of the Design Manual provides that since the DOT does not maintain sidewalks, they should not be constructed unless the governmental unit responsible for their maintenance first enacts a resolution agreeing to do so (section 18.03) and that if such a resolution cannot be obtained, the project should be built without the sidewalks but should be designed so as to allow for future sidewalk construction should the local municipality change its mind (section 18.06.04). It was stipulated herein that the Town of Clarkstown, not the State of New York, was responsible for snow and ice removal from the parking lot, a duty that also encompasses any necessary salting or sanding of the sidewalk and pedestrian ramp. Even if this court disregards the resolution of the Town of Clarkstown and the stipulation of the parties, the trial record in this matter does not support a finding of negligence regarding salting and sanding of the walkway. There is no evidence in the record concerning weather conditions immediately proceeding claimant’s accident, temperature variations which would cause the melting and refreezing and the time in which it occurred, any potential notice to the Town or the State regarding the icing condition, and whether or not any salt, sand or other abrasive was in fact placed in the crosswalk or on the ramp at any time prior to claimant’s accident. Thus, even if this court ignores the assumption of maintenance obligations by the Town (which this court expressly does not), this record simply does not contain the facts necessary to find the State liable for the maintenance of the intersection, even under an ordinary negligence standard. To the extent such a claim may exist, it is beyond the jurisdiction of this court.

As a result of the above, the sole issue in this matter is whether the parking lot, sidewalk and pedestrian walkway were improperly designed pursuant to an ordinary negligence standard. Regardless of the unavailability of a qualified immunity defense to the State, the record at this trial does not support a finding of negligent design or construction. As a result, the Clerk of the Court is directed to enter a judgment of dismissal for the reasons set forth above.

July 9, 2008
White Plains, New York

Judge of the Court of Claims

[1].Although the caption of the claim includes the New York State Department of Transportation and the New York State Thruway Authority as defendants, the former is a State agency without independent legal existence and not a proper defendant, and there is no indication that the Thruway Authority had any involvement in the design or construction of the parking lot at issue herein. Thus, the court dismisses the claim against the Thruway Authority and has modified the caption accordingly. All references to “defendant” are to the State of New York.
[2].References are to the transcribed trial record.
[3].Pucino testified that this quarter-inch per foot slope towards the street was consistent with normal design practice since he started as a State engineer in 1958.
[4].Section 18.04 is entitled Guidelines for Assessing the Need and Benefits of Pedestrian and Bicyclist Facilities. Section 18.04(2)(d) provides that weather conditions, among other factors should be taken into account when conducting pedestrian counts aimed at ascertaining the need for facilities such as sidewalks and bicycle lanes. Section 18.04(3)(e) provides that geographical and architectural features that reduce or enhance the feasability of constructing pedestrian or bicycle facilities should be considered. Section 18.04(6) provides that existing site characteristics affecting pedestrian and bicycle use should be considered. These guidelines are intended to be applied in the decision whether to construct pedestrian and/or bicyclist facilities. They are not design or construction standards.