New York State Court of Claims

New York State Court of Claims

CARTWRIGHT v. THE STATE OF NEW YORK, #2008-031-047, Claim No. 107161, Motion No. M-74288


Claimant failed to prove that Defendant was negligent for either the formulation or implementation of its snow removal plan. Defendant’s motion for summary judgment granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant, State of New York, has moved for summary judgment dismissing the claim in this matter. In his claim, Jason Cartwright (“Claimant”) alleges that Defendant negligently maintained the Genesee Valley Park Bridge on Interstate 390. Counsel has supplied this Court with numerous, well-written affidavits, affirmations and memoranda of law.[1] In addition, the Court heard oral argument on May 15, 2008 in Rochester, New York. FACTS

On January 14, 1999 at approximately 1:15 a.m., Claimant was traveling south on Interstate 390 on the Genesee Valley Park Overpass in Rochester, New York (“overpass”) when he lost control of his vehicle, traveled up a pile of plowed snow and over a guiderail. Claimant and his vehicle fell 40 feet to the ground and Claimant sustained serious injury. Approximately two hours earlier, at 11:12 p.m. on January 13, 1999, a motor vehicle traveling northbound on Interstate 390, driven by Wendy M. Bieber, struck a snow pile on the same overpass, continued over the ramp of piled snow and fell off the overpass, dropping 50 feet to the ground below (“Bieber accident”) (Belanger Affirm., Exhibit E). This type of accident, where piles of snow create a ramp which permits an out of control vehicle to pass over the top of the guiderail, is referred to as “vaulting.” It can occur when snow and/or ice accumulates halfway or more up the side of a barrier or guiderail. The National Climatic Data Center’s (“NOAA”) Local Climatological Data for January 14, 1999 show an average temperature of 6°F with snow, ice pellets, freezing rain, mist and blowing snow. In fact, it had been snowing consistently since January 13, 1999, the day before the accident (Belanger Affirm., Exh. H).

Wayne Mahar, professional meteorologist and Chief Meteorologist at WSTM-NBC in Syracuse, New York, analyzed not only the NOAA Local Climatological Data for the day of Claimant’s the accident, but also the Doppler Radar images, NOAA’s “Unedited Surface Weather Observations” and NOAA’s National Weather Service Forecasts (Mahar Aff., paras. 6 and 9). Mr. Mahar states that 39 inches of snow fell between the evening of January 8, 1999 and the early afternoon of January 15, 1999, and that the snowfall was particularly intense from 3:39 p.m. on January 11, 1999 until a little after 1:00 a.m. on January 14, 1999 (Mahar Aff., paras. 6 and 9).

Defendant and Claimant provided me with copies of the January 14, 1999, 6:00 p.m. news report from Channel 10 in Rochester, New York (Belanger Affirm., Exh. K; Gelormini Affirm., Exh. 7). The news report clearly depicts a storm in progress and a snow-covered overpass with one lane cleared for traffic. It also clearly depicts snow plowed in a ramped fashion against the barrier in the middle of the bridge and the bridge wall on the other side. The one eyewitness to Claimant’s accident, Joseph Borrelli, is featured in the telecast, describing the accident as he viewed it, from behind Claimant’s vehicle. His description of how Claimant’s car reacted was not significantly different than the description Mr. Borrelli provided in a prior court proceeding.

Mr. Borrelli testified the Claimant was traveling on Interstate 390 South on January 14, 1999, at approximately 1:15 a.m. He stated that it was very cold, “probably 30 below with the wind chill” with a lot of snow. Everyone was driving slowly, about 40 miles per hour, and in the center lane. Claimant’s pickup truck was approximately 40 yards in front of him (Belanger Affirm., Exh. I). Once on the overpass, Claimant began to fishtail, “spun around, hit the one side of the bridge, and then came shooting across and then right up and over the other side.” Mr. Borrelli did not observe Claimant apply his brakes. He also observed that the bridge was more slippery than the road (id.). Mr. Borrelli’s observations of the traveling conditions are corroborated by the New York State Department of Transportation’s (“DOT”) Resident Engineer’s description of the Monroe West Residency’s snow and ice control activity on the date of the accident.

J. Jeffrey Dunlap is the DOT’s Resident Engineer for the greater Rochester area, including Interstate 390 where it crosses the Genesee River. Mr. Dunlap testified concerning the 1993 New York State Department of Transportation Snow and Ice Control Guidelines (“Guidelines”). He stated that, on the date of Claimant’s accident, he relied upon them and upon weather forecasts made exclusively for DOT when he directed that all equipment in the residency and all staff “be devoted to servicing the highway travel lanes (the so-called mainline) . . . in order to keep them as clear and safe as possible” (Dunlap Aff., par. 22). DOT plowed snow against the bridge barriers and bridge walls prior to Claimant’s accident. DOT also plowed snow over the bridge onto the vacant, unimproved land and river below the bridge when the accumulated snow became so substantial that the shoulders on the bridge were unable to accommodate it all. Mr. Dunlap affirmed that both these actions were “necessary and essential” to keep the travel lanes open during the snow storm. All available DOT crews were working around the clock, on overtime, plowing the travel lanes and salting and/or sanding those lanes “in accordance with good and accepted snow and ice control practices” (Dunlap Aff., par. 34).

Mr. Dunlap further opined that diverting equipment and staff from the job of servicing the highway travel lanes to remove snow from barriers or railings on bridges would have created even more hazardous conditions for travel in violation of the Guidelines, specifically § 5.3307, which reads:
A. General

After the storm is over, the shoulders, crossovers and gore areas have been plowed, and benching and pushing back operations are underway or complete, the removal of snow from special areas should commence. These operations require loading equipment and hauling vehicles. Front end loaders, snowblowers and heavy dump trucks are usually used for this purpose. If necessary, rental equipment should be considered. This may be available under a Municipal contract or through private rental.

B. Bridges

When possible, accumulated snow should be removed from locations that could melt during the day, drain across the deck, and freeze at night. Bridge drainage features should be cleared to facilitate the designed discharge of water. Also, bridges having features to prevent plowed snow from leaving the bridge should have the accumulated snow removed to make room for the next storm.
Mr. Dunlap interprets § 5.3307 as prohibiting snow removal operations from bridges until after the snow storm is over.[2] He opines that removing the snow would require lane closures, the procurement of additional equipment, the reassignment of staff and a traffic plan. Mr. Dunlap states DOT certainly would not have had time to remove snow from the bridge in the two hours between the Bieber accident and Claimant’s accident. DOT continued to plow a single lane on the overpass for travel during the storm, both before and after Claimant’s accident, in accordance with good and accepted snow and ice control practices and the Guidelines. While Mr. Dunlap possesses a clear understanding of the Guidelines, there is disagreement as to the adequacy of the Guidelines on the vaulting issue.

Claimant’s expert, Dr. John C. Glennon, Sr., is a traffic engineer with over 45 years of experience with highway safety issues. He maintains that New York State has been aware of the danger of vehicles vaulting over guiderails and barriers where snow and ice have been permitted to pile up against them since 1979. Yet, the Guidelines adopted in 1993 and the Equipment Operator Snow and Ice Manual (“Manual”) for 1994 fail to acknowledge the seriousness of the hazard. He pointed out that an employee of the U.S. Department of Transportation, Federal Highway Administration, (“USDOT”) sent the Director of DOT’s Highway Maintenance Subdivision a memorandum regarding the USDOT’s nationwide safety review, specifically identifying the potential for vaulting where snow and ice pile up against bridge barriers (Belanger Affirm., Exh. A). Specifically, the memorandum stated: “Packed snow and ice in front of barriers critically reduced their effectiveness and introduced a potential for vehicular vaulting” (Belanger Affirm, Exh. A, quoting December 4, 1979 memorandum from USDOT District Engineer, sent to DOT on December 7, 1979). All DOT Regional Directors, Regional Highway Maintenance Engineers and Resident Engineers received a copy of that memorandum. It does not appear that any of these DOT employees received the underlying report itself. If they had, they would have seen that this particular hazard was not only identified and defined, but steps to eliminate or reduce the hazard were set forth, including tandem plowing (Glennon Aff., p. 3).

The Guidelines themselves do not mention the vaulting hazard. The Guidelines, however, do discuss the potential for snow and ice melting and then refreezing on the bridge surface, creating a serious hazard. Likewise, the Manual does not identify vaulting as a potential hazard. The Manual identifies the potential hazard of plowing snow over barriers onto roads and railroad tracks. The Manual also discusses plowing techniques that can be employed to increase snow and ice storage capacity on shoulder areas (Belanger Affirm., p. 8). So, vaulting was not specifically addressed in the Guidelines or Manual, but was the vaulting issue even considered when the Guidelines were promulgated by DOT?

The set of snow and ice control procedures prior to the Guidelines at issue were promulgated by DOT in 1978. DOT created a committee to review the 1978 procedures in 1991 (Amsler Aff., par. 56). Duane E. Amsler, licensed professional engineer, was the former DOT Program Engineer for Snow and Ice Control who led DOT’s committee of 15 DOT employees, representing all aspects of DOT’s snow and ice control program. The committee considered a draft snow and ice control proposal from 1991 to 1993. Mr. Amsler and the committee approved a final set of guidelines in 1993 (Amsler Aff., pp. 13-14). According to Mr. Amsler, the committee expressly considered whether snow and ice should be removed from bridges at guiderails or barriers during a snow event or bad weather to minimize the risk of vaulting. They decided not to require the removal of snow and ice under those conditions. Mr. Amsler and the committee chose that position for the following reasons:
1. lack of available resources in the residences;
2. low probability of occurrence of vaulting accidents;
3. danger to traveling public if mainline not addressed first; and
4. increased hazards to motorists if removal operations were undertaken during inclement weather.

Mr. Amsler opines that the occurrence of several more vaulting accidents since the Guidelines were promulgated still does not outweigh the hazard that would be created by attempting snow and ice removal from bridges in inclement weather.
Claimant asserts that Defendant was negligent in the following six ways:
1. Failing to properly design the Genesee Valley Park flyover on Route 390 with adequate guardrails that took into consideration the danger posed by snow accumulations against such guardrails;
2. After becoming aware of the risk of vehicle ramping accidents caused by snow banks plowed against such guardrails, the State failed to use feasible alternatives such as chain link fencing and metal guardrail attachments to increase the height of the guardrails and to keep vehicles on the roadway;
3. Creating and enhancing the risk of vehicle ramping accidents by plowing snow against the guardrails of the Genesee Valley Park flyover rather than over the guardrails and into the park below;
4. Failing to adopt reasonable snowplowing procedures to prevent snow from accumulating against guardrails to a height of one-half or more of the guardrail;
5. Failing to remedy the dangerous condition caused by snow accumulations against the guardrails of the Genesee Valley Park flyover even after the Bieber accident; and
6. Failing to close the Genesee Valley Park flyover to vehicular traffic after the Bieber accident until the snow accumulated against the guardrails could be removed.

Proof provided by Claimant for this motion did not address the first two grounds, therefore, I hold that Claimant has conceded Defendant cannot be held liable on either an inadequate design theory or a failure to use “feasible alternatives” theory. Claimant’s remaining contentions fall into two general theories of liability. The first theory is that Defendant had constructive and/or actual knowledge of a dangerous condition and failed to fix it. The second theory is that Defendant failed to adopt a reasonably developed plan for snow and ice removal on bridges.

It is undisputed that a similar accident occurred hours before on the same road (“Bieber accident”). It is also undisputed that Defendant did not attempt to remove the accumulated snow from the barriers that caused the vaulting of the Bieber vehicle and then, hours later, Claimant’s vehicle. Nor did Defendant close the road and bridge. The proof submitted establishes that the Defendant continued to plow the mainline, keeping one travel lane open as the snow piled up on the bridge’s shoulder.

The State of New York has a nondelegable duty to maintain its roads in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271, 283; Carroll v State of New York, 157 AD2d 697, 698). However, it is not an insurer of the safety of its roadways, and the fact that an accident occurred does not automatically render it liable (Tomassi v Town of Union, 46 NY2d 91). For liability to attach, it must be established that Defendant created the alleged dangerous condition (Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892; Valentino v State of New York, 62 AD2d 1086); or that it had actual or constructive notice of the alleged dangerous condition (Harris v Village of East Hills, 41 NY2d 446; Rinaldi v State of New York, 49 AD2d 361).

Here, I find that a dangerous condition did indeed exist. Defendant had actual notice about the condition existing at this location when the Bieber accident occurred. I also find that Defendant had constructive notice, in general, about plowing snow against a barrier (Belanger Affirm., Exh. A). Claimant contends that Defendant’s response, that is, to continue plowing the single travel lane on the bridge, was unreasonable under the circumstances and that Defendant should have either removed the accumulated snow or closed the roadway. Claimant and I part ways here.

The news report on the evening of Claimant’s accident makes abundantly clear the fact that the area was in the midst of a major snow storm (Gelormini Affirm., Exh. 7; Belanger Affirm., Exh. K). I concur with Defendant’s expert’s opinion that mobilizing DOT resources to remove the snow from that particular bridge would not only have been imprudent, but dangerous (see Dunlap Aff., paras. 26 - 27). Further, DOT’s determination to continue to plow the mainline and not engage in snow removal at that point in time was in keeping with the Guidelines.

In addition, the State is entitled to qualified immunity from liability arising out of a highway planning decision where the plan was the result of an adequate safety study and had a reasonable basis (Weiss v Fote, 7 NY2d 579, 589).

As discussed above, Mr. Amsler lead the effort that resulted in the creation and implementation of the Guidelines. Not only was the vaulting problem studied on a state-wide basis, the problem was addressed specifically as to this bridge when Mr. Dunlap determined to deploy DOT’s resources to keep the mainline open during the snow emergency, a determination in keeping with the Guidelines.[3] Where, as here, a municipality has studied a potentially dangerous condition and determined, as part of its reasonable plan for governmental services, that certain steps need not be taken, that decision may not form the basis of liability (see Tuchrello v State of New York, 190 Misc 2d 664; Friedman v State of New York, 67 NY2d 271, supra; Vislosky v State of New York, Ct Cl, May 6, 2003 [Claim No. 93075], Patti, J., UID No. 2003-013-503).

Inasmuch as Defendant is entitled to qualified immunity for its decisions regarding snow and ice control on the date of this accident, as well as qualified immunity for its Guidelines, I will not consider Claimant’s own negligence by his use of alcohol and driving without a license.

Accordingly, for the reasons set forth above, it is hereby

ORDERED, that Defendant’s motion for summary judgment is granted and the claim is dismissed.

September 30, 2008
Rochester, New York

Judge of the Court of Claims

  1. [1]Documents received for review:
1. Defendant’s Notice of Motion, filed December 4, 2007;
2. Affirmation of James L. Gelormini, dated November 30, 2007, with attached exhibits;
3. Affidavit of J. Jeffrey Dunlap, sworn to November 13, 2007, with attached exhibits;
4. Affidavit of Duane E. Amsler, sworn to November 15, 2007, with attached exhibits;
5. Memorandum of Law of Defendant, dated November 30, 2007, with attached exhibits;
6. Affirmation in Opposition of Matthew F. Belanger, Esq., dated February 29, 2008. with attached exhibits;
7. Claimant’s Memorandum of Law, dated March 10, 2008, with attached exhibit;
8. Affidavit of Dr. John C. Glennon, Sr., sworn to March 10, 2008, with attached exhibit;
9. Affidavit of Wayne Mahar, sworn to April 17, 2008, with attached exhibits;
10. Reply Memorandum of Law of Defendant, dated May 2, 2008;
11. Reply Affidavit of Duane E. Amsler, sworn to April 23, 2008, with attached exhibits;
12. Reply Affirmation of James L. Gelormini, dated May 2, 2008, with attached exhibit.
  1. [2]
    Mr. Dunlap’s opinion is supported by Duane E. Amsler, (licensed professional engineer and former DOT Program Engineer for Snow and Ice Control) (Amsler Aff., par. 2). He states that snow removal from the bridge was “expressly prohibited” by the Guidelines.
  2. [3]Claimant asserts that a 1998 study by the Ministry of Transportation of the Province of Quebec as well as the 1999 “Guide for Snow and Ice Control” by the American Association of State Highway and Transportation Officials, not only clearly identified the risk of vaulting when snow accumulates on bridge railings, but also valued the risk at a higher level than the level accorded by the committee that drafted the Guidelines. Even if that were the case, both the Quebec study and the American Association of State Highway and Transportation Officials Guide acknowledge that snow removal from bridge railings should occur after a storm is over. I note that there may be circumstances where a decision is in line with the relevant operating procedure, but still may prove to be an unreasonable decision giving rise to liability (Blanchard v State of New York, Ct Cl, June 19, 2007 [Claim No. 108182], Fitzpatrick, J., UID No. 2007-018-572), but not this particular case.