New York State Court of Claims

New York State Court of Claims

CASEY v. THE STATE OF NEW YORK, #2008-029-031, Claim No. 109049


State not liable for accident involving intoxicated driver allegedly caused by presence of ice on State highway. No proof of actual or constructive notice of icing condition caused by deterioration of driveway adjacent to highway.

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:
KELLY & MEENAGH, ESQS.By: Thomas F. Kelly and John Meenagh, Esqs.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 14, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from a December 19, 2003 automobile accident where the vehicle in which claimant was a passenger was involved in a collision with another vehicle on Route 52 at about 10:30 p.m. in the Town of Crawford. Claimant attributes the accident to the presence of ice on the road, allegedly the result of negligence on the part of the State of New York. Trial was bifurcated and only the issue of liability will be determined herein. Claimant was a passenger in a 1999 Hyundai driven by Shannon Knuth. The two women, each of whom described the other as an “acquaintance,” [1] had worked together for a year or two and on the date in question attended their employer’s holiday party. Claimant had no recollection of the accident or of anything that occurred that day prior to the accident and defendant stipulated to the fact that she had amnesia with respect to the events of that day.

Ms. Knuth, 27 years old at the time of trial, testified that she drove claimant and three other people to the party. As they drove there, she and two of the others smoked two bowlfuls of marijuana. Knuth admitted having one shot of tequila and two mixed drinks at the party. She left the party with claimant and another passenger, Mike Gardner, dropped Gardner off at another bar and proceeded with claimant, intending to go to a friend’s house on Wallkill Road. She did not recall what time they left the party or what the weather was. Knuth recalled passing a traffic light in Pine Bush near a McDonald’s and a Dunkin Donuts and her next recollection was waking up in Westchester County Medical Center. She did not recall the collision, speaking with anyone at the scene or being transported to the hospital. When she awoke there, two police officers – Avery and Blasko – were standing over her. She did not recall speaking with them about the accident and did not recall ever speaking to them about the accident after being discharged from the hospital.

Knuth testified that she initially left her home about 4:30 p.m. that afternoon. One of her passengers on the way to the party, a man named Franklin, was supposed to be the designated driver. According to claimant, he had been drinking at the party so she left without him and drove the car, which she owned herself. She had driven on Route 52 on the way to the party but could not recall if there was any snow or ice on the road at that time.

State Troopers Daniel Mitchell and Michael Belgiovene were eyewitnesses to the collision. They were on patrol on Route 52 west of Pine Bush when they heard a radio report of an accident involving a car that hit a deer. They drove to the scene and assisted the town police. Having cleared that location, they drove westbound on Route 52 towards Pine Bush, with Mitchell driving. A blue automobile was approximately 100-150 yards ahead of them. Mitchell saw an eastbound vehicle come around a curve and then cross into the westbound lane and hit the blue car head-on. They stopped their vehicle, radioed to the town officers who were still at the deer accident, and attended to the injured. The occupants of the blue car were “OK,” but claimant and Knuth had both been ejected from their vehicle. Claimant was found suspended from her seat belt by her neck and the troopers cut the seat belt and lowered her to the ground. Knuth was under the blue car. Claimant was unconscious, Knuth was “incoherent,” and there was a strong odor of alcohol coming from the women.

Mitchell stated there was no snow on the roadway. The two troopers had traversed the same portion of eastbound Route 52 on their way to the deer accident, about 20 to 30 minutes before claimant’s accident. They had noticed a patch of ice on the curve where Knuth lost control of her vehicle. Mitchell stated he was driving eastbound at about 55-60 m.p.h. and the patrol vehicle “shimmied a little” as it passed over the icy patch. He said did not consider notifying DOT of the ice or putting out flares or any other type of warning, because he did not consider the condition sufficiently hazardous to warrant such attention, nor did he discuss the matter with Belgiovene.

Mitchell estimated that the two vehicles involved in the collision were traveling about 40 to 45 m.p.h. He stated that the actions of the Knuth vehicle “looked odd . . . it looked like the vehicle was making a left turn in front of the blue vehicle.” He did not notice any indication that the vehicle had slid on ice, such as wavering headlights, fishtailing or spinning, and stated it “did not seem like that ice could have caused her to make that move.”

Trooper Belgiovene also saw no evidence of any rotation of the Knuth vehicle as it rounded the curve, crossed over the center line and struck the blue vehicle, which veered to the right to try to avoid the collision. He ran over to the Knuth vehicle and initially thought the occupants had been ejected, until he noticed the passenger door open and claimant, outside the vehicle, suspended by her neck from the seat belt. He cut the seat belt, laid claimant on the ground and she started breathing while Mitchell pulled Knuth out from under the other car. Belgiovene corroborated the odor of alcohol.

Belgiovene testified that when the two troopers drove over the icy patch on their way to the deer accident, their vehicle “shook a little . . . a small wiggle . . . we never lost control.” He acknowledged that State troopers are supposed to report hazardous conditions on the highway and that their vehicles are equipped with flares, but he agreed with Mitchell that the condition they encountered “did not seem important enough to call in . . . our car barely moved at 60 m.p.h.”

Town of Crawford Police Officer John Avery was on patrol with his partner John Blasko when they received a radio call of an accident on Route 52, about 1/4 mile east of Munro Street. They proceeded to the scene, which was about four miles away, and found a two-vehicle accident with another town officer and the two troopers already present. Avery knew both claimant and Knuth prior to the accident and he stayed with claimant for most of the time he was at the scene. Avery stated he observed ice in the eastbound lane of Route 52 on a right-hand curve leading to the accident scene (shown on Exhibit 11, a photograph taken that evening). He stated the road had a slight uphill grade leading to the curve where the ice was located and estimated the ice extended 18 to 24 inches into the travel lane along the eastbound lane. He also recalled that he was warned that there was an icy patch when he received the radio call advising of the accident. Avery alleged that he had seen ice in that area before when the weather was such that there were daytime thaws and nighttime refreezing and that, on a number of occasions prior to the accident date, he had asked his dispatchers to notify the State Department of Transportation that there was ice on the road. He stated it was typical to find ice in this area, although not always extending into the travel lane. On some of those occasions, he would later check to see if the road had been salted and he recalled that on such occasions he did see salt on the road, at the same time acknowledging that he did not know if such was done in response to his calls or as part of DOT routine.

Avery also testified that, on occasions prior to the accident date, he had called the State Police barracks in Middletown about ice on Route 52 in the area in question, but he could not estimate how many times he had made such calls. [2] On these occasions as well, he would typically see evidence of remediation after he made such calls.

When asked on cross-examination, Officer Avery could not recall when it had last snowed in the area prior to the accident date, but he did remember that there was snow on the ground. He also could not recall the specific occasions on which he had called either his dispatcher or the State Police to report ice on the area of Route 52 in question. He did remember that there were other areas on the State highways within his patrol area that were subject to periodic icing – “there’s certain areas you can pretty much count on” – and he recalled calling his dispatcher and requesting that the State DOT be notified so that the areas could be salted. He identified a different portion of Route 52, just west of Munro Street, as one such area.

Avery did not recall having driven past the area of Route 52 in question on the evening of December 19, 2003, although he had been on duty since 4:00 p.m. that afternoon and the accident occurred at about 10:30 p.m. Although insistent that he had requested that DOT be notified of ice on the curve on a number of occasions in 2003, he could not specify the dates, or narrow the time frame beyond 2003 prior to claimant’s accident. He did testify that such calls should be memorialized in the dispatchers’ records – “they write what we tell them.” He did not recall ever responding to an accident with ice involvement at this location before.

Officer Blasko testified that when he and Avery arrived at the scene, Officer Michael McConnell, the two troopers and a civilian were already there. He also described ice on the road just prior to the collision scene, which extended almost halfway into the eastbound travel lane and about 10 to 15 feet long. He alleged he had seen ice in that location numerous times before over the past 15 years. Blasko remembered that claimant was unconscious and Knuth was in and out of consciousness at the scene. Eventually, they were removed for medical treatment, a State Police investigator arrived, and Blasko and Avery left to notify claimant’s parents of the accident. Blasko had known claimant since she was 11 years old and known Knuth for several years.

Blasko testified there was radio “chatter” on their way to the scene that they should be careful because there was ice on Route 52. He maintained that, over the course of the prior 13 years, there were numerous occasions when there was ice on the road at this location and on such occasions he would request his dispatcher to request DOT to sand or salt the road. He stated he never spoke with DOT himself and he never saw pooling water on the road, only ice. He did not remember if he saw skid marks after the subject accident.

Knuth was taken to Westchester County Medical Center, where Blasko arrested her on various charges. He stated that, at that time, Knuth told him she was coming around the turn, she saw a State Police car and she “slid on the ice, lost control on the ice – something to that effect.”

On cross-examination, Blasko stated that over the course of his career as a patrolman he had called in reports of icy spots on highways many times, both in the area in question in this case and other areas. He agreed that any request he made for DOT attention to a highway should be reflected in the dispatcher’s records. He could not recall whether he had seen ice in this area during the 2003 winter prior to the December 19, 2003 accident date. He also could not recall any prior accident in this area of Route 52 that was the result of ice on the road.

Gary Cooper, called as a defense witness, was a Town of Crawford patrolman from October 2003 through October 2005 and had worked for the Newburgh Police Department for the previous 20 years. He was familiar with Route 52 and although he was not on duty that evening, he had heard about claimant’s accident within a few days. Cooper stated that he drove Route 52 in the area in question daily from 1992 through 2003 when he commuted to Newburgh and he was never aware of an icing problem in the subject location.

Cooper identified Exhibit D as a collection of radio logs from the Town of Crawford Police Department for January through March 2003 and November and December 2003. [3] He stated that the dispatchers were supposed to record every radio call from a patrolman, but conceded that the town’s recordkeeping was “not very thorough.”

State Police Investigator Shane Conklin, a certified accident reconstruction specialist, was notified of the subject accident at about 11:30 p.m. and asked to investigate, reconstruct the collision and prepare a report (Exhibit 82). He was called as a claimant’s witness, and identified Exhibits 1 through 24 as photographs he took while at the accident scene and a few days later. He marked the area of the vehicles’ impact on Exhibits 8 and 10, westbound and eastbound views of Route 52 respectively, two photographs taken in daylight hours on December 22. Exhibit 10 shows the view of the eastbound Knuth vehicle, coming out of the curve, with a private driveway on the south side of the road and a wet area in front of the driveway.

Conklin’s report noted that Route 52 in this area consists of asphalt pavement, approximately 27 feet wide, with a 22-foot-wide travel portion between the fog lines. He found three skid marks leading from the eastbound lane, over the yellow center line, and ending at the point of impact, identified by a gouge in the road (Exhibit 85). Two of the these skid marks, measuring 53.6 and 41.5 feet in length, were from Knuth’s Hyundai’s front tires and the third, 6.9 feet in length, was from its right rear tire. He also found a pre-impact skid mark from the other vehicle, a Chevrolet. Conklin noted the Hyundai’s inspection sticker had expired in September 2003 and that its right rear tire had only 2/32” of tread, which he termed “close to insufficient.”

Utilizing his measurements of the skid marks and his calculation of the roadway’s coefficient of friction and the approach and exit angles of the vehicles, Conklin estimated the impact speed of the Hyundai to be between 41 and 47 m.p.h. and that of the Chevrolet to be between 18 and 21 m.p.h. He concluded that the Hyundai was rotating counterclockwise prior to impact based on the presence of the right rear tire skid mark outside the right front tire skid mark. He noted there was a patch of ice along the eastbound lane that he estimated was about 25 feet long. At its widest point, the ice extended about halfway into the eastbound travel lane, but it narrowed towards the east and Conklin did not measure the ice nor did he know exactly how far it intruded into the travel lane. He did note that the portion of the ice that extended over the fog line and into the eastbound lane ended about 120 feet west of the vehicles’ point of impact.

Conklin wrote that the Hyundai (V1) “slid on an area of ice in the eastbound lane and southern shoulder . . . started to rotate in a counter clockwise [sic] direction. The operator of V1 started to brake and . . . crossed over the centerlines into the westbound lane,” and later in his report, “After V1 entered the straight away [sic] the operator applied the brakes and the vehicle started to skid as it rotated in a counter clockwise [sic] direction” (Exhibit 82, pp 6, 8). His conclusion, after reviewing all the evidence available to him at the time was:
“Barring any alcohol/drug involvement, and/or medical conditions the primary cause of this collision is the failure to keep right on the part of the operator of V1. A secondary contributing factor may have been the ice- covered south shoulder and southern side of the eastbound lane of State Route 52, approximately 200 feet west of the impact” (id. at 9).
On cross-examination, Conklin indicated that while he did not measure the patch of ice in the roadway, he did walk through the area and he saw no physical evidence that Knuth drove through the ice or slid on the ice. He did know that something had to have caused the counterclockwise movement of her vehicle prior to impact and he concluded that the ice “may have” contributed, although he acknowledged that a vehicle can fishtail and go out of control as the result of braking and steering maneuvers unrelated to sliding on ice. He stated he did not know anything about the movement of the Knuth vehicle through the icy area, and specifically could not estimate its speed as it drove through that area.

Claimant called two DOT employees in support of her case. Leigh Wood had been appointed a Highway Maintenance Supervisor I in the summer of 2002, working out of the Port Jervis facility, after seven years as a Highway Maintenance Worker out of the Middletown garage. He learned of claimant’s accident two days later when he received a call from his superior, Howard Gillen, advising him that there had been a serious accident on Route 52 and that a crew was going out to work on the drainage. When he got to the scene, he noticed ice along the shoulder adjacent to a private driveway that had a “drainage issue.” Adjacent to the shoulder in this area was an “open ditch drainage line” with a 25-to-30-foot-long pipe running under the driveway. Both ends of the pipe were clogged with debris that had come from the driveway – dirt, leaves and gravel – as well as snow and ice. The driveway contained snow and ice, and the ditch line, which was covered with snow and ice, also contained the same debris. They had to chop the ice away with shovels in order to reach the ends of the driveway pipe, after which they removed the debris from the pipe as well as from the adjacent ditch.

Wood testified that, although it was part of his responsibility to drive the State highways in the residency and visually inspect for problems, he was unaware of any scheduled inspection or maintenance protocol for roadside open ditch lines. He asserted that the DOT does not maintain drainage pipes under private driveways but sometimes performs work on the aprons of such driveways when a drainage pipe fails and has to be replaced. He testified that he would drive through the area in question about twice a week during the winter months and he never observed icing, or flooding or pooling water there. Wood stated that if he had seen the icy condition shown on Exhibit 11, the photograph taken the evening of the accident, he would have called it in as a hazardous condition needing attention, and he would have considered posting a warning, such as flares.

Howard Gillen had been a Highway Maintenance Supervisor II in the northwest section of Region 8 (Subregion 5), covering the area in question, for a few months prior to December 2003. Earlier in his career, he had worked in Subregion 5 from 1988 through 1998, but from 1998 though 2003 had worked in a different Subregion. Part of his job was to patrol the roads in the winter, looking for snow and ice problems. He testified that if he had seen the condition shown on Exhibit 11, he would have called in for a salt truck, but he claimed that he never saw such a condition at this location before.

Gillen was called to the scene the night after the subject accident after the town police called in a report that the road was icy. When he got there, a salt truck was already there and Gillen did not see any ice on the road, only on the shoulder. Local police cars were also at the scene, but Gillen stated he “did not see much of anything that would cause a problem.” He stated the road was wet and there was ice on the shoulder, not like the condition shown on the photograph (Exhibit 11) from the previous evening where the ice extended into the travel lane. He went to the western end of the driveway pipe, pushed his foot through the snow in the ditch line, and found that there was water flow coming out of the pipe. This was two days before the work described by Wood. According to Gillen, that work – including the removal of “debris” from the ditch line – was done to increase the flow, but the pipe was not totally clogged and the ice on the shoulder and the road was coming from the driveway and not the result of a clogged driveway pipe. He observed that the driveway was at an essentially flat spot and that there was a lot of snow in the driveway, with water running down the driveway’s two wheel ruts “like a funnel.” The temperature was right around freezing and the water was being spread along the road by passing traffic. Gillen testified he had never heard of an icing or drainage problem in this area before nor had he ever seen ice or water on the highway.

According to Gillen, while the DOT is responsible for maintenance of the drainage ditch, a pipe running under a private driveway is the responsibility of the homeowner to maintain. Yet he conceded that, after claimant’s accident, the DOT addressed the clogged pipe at issue here and may have replaced the pipe. In addition, they did work on the driveway at that time. Gillen stated that DOT “took a formal paper” to the property owner and told them they had to address the problem with his driveway because it was causing problems with the road.

Jennifer Clark, who started working for DOT in 1978 and received her professional engineer’s licence in the early 1980’s, has been the Resident Engineer for Western Orange County since October 2003. She testified that the shoulders on Route 52 were regraded and the drainage improved in 1985 and the road was resurfaced in 1999. She stated that, although there is no maintenance program for private driveways that cross the State right-of-way, DOT would address any drainage problem involving a private driveway they became aware of. Ditch line drainage facilities were monitored by “field review”, i.e., looking for problems such as ponding or puddling water, or slush and ice in the winter, on the pavement. Prior to the date of claimant’s accident, Clark was unaware of any drainage or icing problem in this area of Route 52.

On cross-examination, when shown the photograph showing the icy condition of the road on December 19, Clark conceded that it reflected a condition that should have been addressed by the DOT if they had been made aware of it.

Lawrence Soller was a Civil Engineer I and the Assistant Regional Engineer for Region 8 from 1997 through August 2004. He testified that part of his job was to assist the highway maintenance supervisors in formulating their work plans, which entailed inspecting such things as pavement conditions and drainage facilities in the residency. He could not recall the last time the subject area of Route 52 had been inspected prior to December 19, 2003.

Soller testified that, in early 2004, he searched DOT files and found no record of any complaint, work request or work order, looking back for a period of three years. He was personally unaware of any drainage or icing problem at this location prior to claimant’s accident. He maintained that any complaint of an icy road made to DOT should be reflected in either their records or those of their answering service, which DOT receives weekly.

Soller advised that a permit is required when a property owner installs a driveway over the State right-of-way, and the owner is required to install and maintain a driveway pipe when the driveway crosses a drainage ditch. Once the permit is granted and the driveway and pipe are installed, there is no inspection of the driveway, or the pipe, both of which are the owner’s responsibility. The ditch lines, on the other hand, are regularly inspected, during wet periods, to insure that water is flowing and to identify problem areas. Soller was unaware of when the drainage ditches along Route 52 were last inspected.

Cindy Ruff, a highway maintenance worker since 1997, had responsibility for winter plowing of Route 52 beginning in the winter of 2002-2003. She estimated she passed through the subject area of Route 52 at least 50 times during the one and one-half plowing seasons prior to claimant’s accident, and testified she was unaware of any icing or drainage problem there and never saw any ice there. Ruff also did drainage-cleaning work, but did not recall ever having done work there until after the accident, when she operated a grader as part of the crew that cleaned out the ditch line. She recalled seeing water running down the driveway at that time. Gary Keeler, who shared plowing duties with Ruff, working alternating shifts, also was unaware of any icing or drainage problems in the subject location or anywhere on Route 52.

In addition to live testimony, the deposition testimony of Steven Baisley, who was home on leave from the Navy in November and December 2007, was submitted by claimant. Baisley, who went to high school with claimant and knew Ms. Knuth for about two years, lived on Route 52 about a quarter-mile from the accident scene. Baisley testified that in the two weeks preceding claimant’s accident, there was ice on Route 52 in front of the driveway shown in the photographs anytime the temperature was below freezing. He stated that he called the Pine Bush Police Department at least twice during this period to report the icy condition of the road and was told that they would take care of it. On another occasion, he stopped his car and looked at the driveway and it appeared to him that the pipe under the driveway was blocked.

According to Baisley, most drivers on Route 52 exceed the 55 m.p.h. speed limit but he does not because he lives on the road. He claimed that there were numerous times prior to claimant’s accident that he came around the curve driving eastbound and lost traction for a moment or felt the car shift a little. On cross-examination, Baisley could not recall having seen ice at this location during the winter of 2002-2003. His testimony that the area was subject to recurrent icing was limited to the weeks prior to claimant’s December 19, 2003 accident.

Claimant advances two theories upon which defendant should be held liable for the subject accident. First, claimant argues that Troopers Mitchell and Belgiovene were negligent in failing to notifying DOT of the ice on Route 52, or posting flares or other warnings when they passed over the ice on their way to the deer accident about 20-30 minutes before the subject accident. Additionally, claimant contends that defendant had actual and constructive notice of a recurrent icing condition at this location and that the failure to have addressed such condition, or post warnings, prior to the subject accident constituted negligence.

The first theory is untenable as a matter of law. In Balsam v Delma Eng’g Corp. (90 NY2d 966 [1997]), the Court of Appeals held that an action predicated upon “responding police officers’ failure to close the roadway, redirect traffic or place warning flares or cones in the area prior to [plaintiff’s] accident” was barred by “the time-honored rule that a municipality bears no liability for the negligent performance by its agents of governmental functions, absent the existence of a special relationship between the injured party and the municipality” (id. at 967). The plaintiff in that case was injured while standing behind her vehicle, which had been struck by a van skidding on ice, a third vehicle then skidded on the same ice and struck the van, pinning claimant between the van and her vehicle. The Court found that “traffic regulation is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers” (id. at 968) and that the failure of the police to close the roadway or divert traffic was entitled to governmental immunity.

Claimant contends that the principle enunciated in Balsam is limited to those cases in which the alleged negligence is the police officers’ failure to properly control an accident scene, and that “traffic control unrelated to an accident investigation is a proprietary and not a governmental function” (Claimant’s Reply Brief, p 5). There is absolutely nothing in the Balsam decision to support the contention that the Court of Appeals intended to shield traffic control at an accident scene from liability but not traffic control not involving management of an accident scene. The Court’s holding was based on the possibility that the finder of fact would impermissibly second-guess “the reasonableness of the police response to this ice hazard” (90 NY2d 966, 968), a consideration that applies equally whether the decision is made in the context of controlling traffic at an accident scene or otherwise. The troopers here encountered a patch of ice while on their way to assist at an accident not involving the ice and determined that it was not of sufficient magnitude to require DOT attention or the posting of flares or any other warning. That determination was exactly the type of discretionary evaluation and decision-making held in Balsam, supra.

Claimant has supported the distinction that she urges upon this court, solely with a 1984 Court of Claims decision involving State Police failure to warn of an oil slick on the road (Coco v State of New York, 123 Misc 2d 653). That is inconsistent with Balsam, decided 13 years later, and no longer possesses whatever precedential value that might have existed prior to the Balsam decision. [4]

Contrary to traffic control responsibilities of the State Police, the duty of the State Department of Transportation to maintain its roads in a reasonably safe condition is not circumscribed by governmental immunity, and liability will flow for injuries resulting from a breach of that duty without necessity of showing a special relationship with the injured party (Lopes v Rostad, 45 NY2d 617 [1978]). Nevertheless, the duty is not absolute and the State is not the insurer of the safety of those who travel its roads. “The design, construction and maintenance of public highways is entrusted to the sound discretion of municipal authorities and so long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied” (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Ciasullo v Town of Greenville, 275 AD2d 338 [2d Dept 2000]).

The presence of ice or snow on a State highway is not necessarily an indication that the State breached its duty to maintain the highway in a reasonable safe condition (Timcoe v State of New York, 267 AD2d 375 [2d Dept 1999]; Slaughter v State of New York, 238 AD2d 770 [3d Dept 1997]; Valentino v State of New York, 62 AD2d 1086 [3d Dept 1978]; appeal dismissed 46 NY2d 1072 [1979]). Rather, the pertinent inquiry is whether the State exercised reasonable diligence in maintaining the highway. In that regard, “[w]here the State has actual or constructive notice of a recurrent hazardous condition in a specific area, liability may result for a failure to correct or warn of the condition” (Freund v State of New York, 137 AD2d 908, 909 [3d Dept 1988]; see also Farrell v State of New York, 46 AD2d 697 [3d Dept 1974]).

It is, of course, the claimant’s burden to establish that the State was negligent and that such negligence was a proximate cause of her injuries (Bernstein v City of New York, 69 NY2d 1020 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]). [5] Claimant contends that defendant had both actual and constructive notice of a recurrent icing condition at the subject location on Route 52 and that it unreasonably failed to address such condition, as the result of which the vehicle in which claimant was a passenger was caused to go out of control resulting in injuries to claimant.

The court finds that the ice that was present on the subject portion of Route 52 was the result of water flowing from the private driveway, exacerbated by the clogged drainage pipe and ditch line, and that the material in the pipe and ditch came from the driveway. That defendant has no duty to maintain private driveways is irrelevant. It has the duty to maintain its highways in a reasonably safe condition, and an unsafe condition arising from a landowner’s inattention to his driveway must be addressed the same as any other dangerous condition.

The court further finds that there was no objective credible evidence that defendant had actual or constructive notice of the drainage problem in this area sufficiently in advance of the December 19, 2003 accident so that it should have been addressed prior to the accident (Hart v State of New York, 43 AD3d 524 [3d Dept 2007]; Schleider v State of New York, 5 AD3d 1052 [4th Dept 2004]). No witness without a personal relationship with claimant testified to any awareness of any problem at this location. The local police dispatcher’s logs are devoid of any evidence that any officer ever reported ice at this location or requested DOT attention, although they do contain numerous such entries with respect to other roadways in the town. Although Baisley’s deposition testimony describing icing in this area in the weeks before the accident was credible, he did not recall specifically any such problem in prior winters. The fact that there may have been icing on the road in the weeks prior to the accident is insufficient to support a finding of constructive notice. The deteriorating condition of this driveway was necessarily progressive over time, and there is no proof in this record that it had any adverse impact on Route 52 prior to December 2003.

Additionally, the evidence does not support the conclusion that the icing that did exist that month constituted a danger to attentive drivers who obeyed the rules of the road. The two troopers’ account of their encounter with the ice was almost identical to that described by Baisley, i.e., a slight loss of traction and some momentary shimmying, nothing that would explain either a loss of control of a vehicle or a reason for an eastbound vehicle to drive into the westbound lane and collide head-on with a westbound vehicle. There was absolutely no proof of any prior accident in this area of this 55 m.p.h. State highway indicating that, notwithstanding any icing condition that may have existed, the road was “reasonably safe for those who exercised reasonable care” (Stapleton v State of New York, 285 App Div 984, 985 [3d Dept 1955]; see also e.g., Light v State of New York, 250 AD2d 988 [3d Dept 1998]; Galvin v State of New York, 245 AD2d 418 [2d Dept 1997]; Hough v State of New York, 203 AD2d 736 [3d Dept 1994]; Whiter v State of New York, 148 AD2d 825 [3d Dept 1989]; Boyce Motor Lines, Inc. v State of New York, 280 App Div 693 [3d Dept 1952]). Trooper Conklin’s investigation showed only that the Knuth vehicle began to rotate immediately prior to impact, not that any such rotation occurred immediately following her encounter with the ice. Further, the testimony of the two troopers who witnessed the accident is inconsistent with the conclusion that the vehicle skidded out of control as the result of the ice. Instead, the evidence supports the conclusion that the vehicle proceeded on a straight path into the westbound lane as the result of Knuth’s inappropriate reaction to the brief jolt she experienced when passing through the ice, a reaction undoubtedly precipitated by her ingestion of intoxicants, both legal and illegal, over the course of the evening. There is no indication of a sober driver ever having had a problem in this area.

Thus, the court concludes that claimant failed to establish that the ice on Route 52 on the date in question constituted a dangerous condition, that defendant had actual or constructive notice of the condition of Route 52 or that such condition was the proximate cause of the subject accident. Accordingly, the Clerk of the Court is directed to enter a judgment of dismissal.

August 14, 2008
White Plains, New York

Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the electronically recorded trial proceedings.
[2].Defendant’s motion to strike this testimony is denied. Claimant’s counsel apparently was not aware that Avery would testify that he gave actual notice to the State Police until Avery so testified at trial, Avery was identified as a witness to the accident in claimant’s witness disclosure, claimant specifically alleged actual notice in her bill of particulars and, most importantly, the drastic remedy of preclusion of the testimony is unwarranted as a reading of the entire trial record indicates that defendant was able to effectively cross-examine Avery on the question of actual notice to the State Police and present evidence to counter this testimony. Thus, defendant was not substantially prejudiced by the failure to specifically name Avery as a notice witness (Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 24 AD3d 742 [2d Dept 2005]; cf. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653 [2d Dept 2007]).
[3].Claimant’s motion to strike this exhibit as not being properly authenticated is denied (CPLR 4518[c]; Barcher v Radovich, 183 AD2d 689 [2d Dept 1992]).
[4].Indeed, the Westlaw editors have placed a yellow flag on the Coco decision, noting that it has been “called into doubt” by Balsam, a diplomatic notation that it no longer represents good law.
[5].Contrary to claimant’s contention, she is not entitled to the reduced burden of proof discussed in Noseworthy v City of New York (298 NY 76 [1948]). She was the passenger in the vehicle, not the driver, thus her amnesia did not impair any ability that she might have otherwise had to testify as to probative facts regarding the accident, and there is no indication that she would have had anything to offer on the issues of whether a dangerous condition existed or whether defendant had notice of such condition. Further, there were two other eyewitnesses to the accident (Troopers Mitchell and Belgiovene), both of whom testified at trial. The parties herein had equal access to all relevant facts with respect to each aspect of claimant’s burden of proof (Schechter v Klanfer, 28 NY2d 228 [1971]; Gayle v City of New York, 256 AD2d 541 [2d Dept 1998]).