New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2008-044-001, Claim No. 109442


Defendant found 50% liable for claimant’s injuries incurred in bicycling accident; State had at least constructive, if not actual, notice of pothole.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

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

Signature date:
March 6, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries incurred when he lost control of his bicycle after encountering a large pothole while riding on the shoulder of a State highway. A bifurcated trial on the liability portion of the claim was held on January 29, 2008, in the Binghamton District of the Court of Claims. This decision addresses the issue of liability only.

Claimant was an experienced rider, who testified at his deposition[1] that he rode somewhere between 600 and 1,000 miles per year on his bicycle. On the day of the accident, June 30, 2003, he was operating his bicycle (a 15-gear racing model) in a westerly direction on the improved shoulder on the north side of State Route 352 (Route 352), at approximately 4:50 p.m. He was riding from his house to Corning, a distance of approximately 17 miles, to watch his daughter's softball game. The scene of the accident was approximately 2½ miles from claimant's house. He estimated that he had previously ridden that route approximately 15 times. However, he believed he had not ridden it within the six months prior to the accident.

June 30, 2003 was a weekday, and claimant testified that traffic was very heavy on Route 352, because it was rush hour. Claimant estimated he was being passed by approximately 20 cars per minute. The weather was sunny and clear, and approximately 70 degrees. He was riding to the right of the white “fog line” which delineates the shoulder of the two-lane highway. Route 352 in that area has been designated by the State Department of Transportation (DOT) as a bicycle route. Claimant said he was “probably going 17 to 20 miles an hour.”[2] He said he was “constantly overlooking [sic] [his] shoulder to be cognizant of traffic . . . and obviously looking down.”[3] He said that immediately prior to the accident, he looked over his shoulder, looked down, and saw the pothole. He hit the pothole and went headfirst onto the pavement, hitting his left shoulder, face and right hand.

Claimant said he believed there was approximately 12 to 18 inches of clear, undamaged pavement between the edge of the pothole and the fog line, and that the shoulder was approximately 3 feet wide in that area. He said he saw the pothole approximately six feet prior to hitting it. He thought about trying to ride around it in the brief moments between his observation of the hole and hitting it, but did not want to ride into traffic on the left or onto the gravel adjacent to the pothole on the right. He stated that his intent was to ride through it. He said that the hole was “probably two and a half feet long and two and a half feet wide maybe,”[4] and 10 to 12 inches deep.

Claimant and numerous other witnesses testified that the pothole was on the shoulder immediately opposite a restaurant located on Route 352 called Papa Dale's. At his deposition, claimant reviewed photographs of the scene[5] taken approximately 10 days after the accident. He said that those pictures did not accurately reflect the condition of the shoulder and defect at the time of the accident, as the pictures showed that the hole had been filled.

Gerald Watts, a DOT Highway Maintenance Supervisor I for the area encompassing the accident scene, testified for claimant at trial. Watts said that DOT maintains bicycle routes no differently than any other highways. He described Route 352 as heavily traveled, for a secondary road, and as being a major route between Corning and Elmira.

Watts was in charge of the DOT crew sent out to repair the pothole on July 1, 2003, the day after the accident. He was aware at the time that there had been a complaint to DOT which caused his crew to be sent out, and knew that someone “came off a bike.”[6] When shown photographs of the scene (which, as previously noted, were taken after the hole was filled), he recognized the accident scene as being across from Papa Dale's Restaurant, where he and his crew filled the pothole with pavement millings on July 1, 2003. He said that he and his crew had previously filled the same pothole there “a few times.” He testified that he had seen vehicles stopped on the highway at this point, waiting for oncoming traffic to pass, in order to turn into Papa Dale's parking lot. Vehicles behind them would drive onto the shoulder to pass the stopped vehicles, contributing to the formation of the pothole.

Watts said that the shoulder in that area was approximately four feet wide. He said that the pothole, located at the north edge of the east-west highway, extended out onto the paved portion of the shoulder approximately 2 feet, and was about 2 feet wide by 8 to 10 feet long. He “guessed” that the depth of the pothole prior to repair was two to three inches “at the pavement edge” (that being the edge of the paved shoulder), and estimated that it was between four and six inches deep in the paved portion of the shoulder. He also said there was water standing in the pothole. He stated that water does not drain well in that area, due to the soil composition, and that the poor drainage was a substantial contributor to the breakdown of the asphalt, in combination with the traffic, thus creating the pothole.

Watts testified that he traveled this road once a week, but had not seen the pothole prior to the day he was sent to perform the repairs. He said that most of the secondary roads have similar conditions along them. He also testified that if DOT had been aware of the pothole, they would have repaired it immediately, even if that repair was to be only a temporary fix. He later apparently contradicted this testimony by stating that, if he had seen it when he was off-duty, he would have mentioned it to his supervisors at DOT as being a condition that ought to be repaired when it could be fit into the schedule, but that it would not be a top priority, as it did not comprise an emergency condition. He did agree that a stretch of pavement like this would pose a hazard to cyclists. He thought that a person on a bicycle ought to be able to avoid it, but that if a cyclist hit it, “it would be a problem.”

On cross-examination, Watts stated that there were no visual obstacles in the area which would have prevented a driver (whether of an automobile or a bicycle) from seeing the pothole as they approached it. When asked how long it would take for the pavement to erode to the condition it was in when it was repaired, Watts responded that the pothole could have formed overnight, or it could have taken two months, depending on variables such as traffic volume, weather, and the condition of the pavement's substructure.

Patrick Brady, a DOT Highway Maintenance Supervisor II for the region and Watts' supervisor at the time of the accident, also testified on claimant's behalf. Brady's duties included the responsibility for planning and organizing work for the department, and maintaining the highways assigned to him (including this portion of Route 352). Brady testified that he was familiar with the location of Papa Dale's restaurant, and had noticed the tendency for drivers to move to the right to pass vehicles waiting to turn into the restaurant, so that the right wheels of the passing vehicles would traverse the shoulder or even go off the pavement. He said he had done this himself.

Brady recalled having his work crews fill a pothole in that location on a regular basis. He testified that it was routinely done at least twice a year, if not more often, during the 20 years he worked for DOT in that region. He acknowledged that not only were potholes a regular occurrence at this particular location, but that repairs were required at that spot more frequently than any other location on Route 352. He was aware during the course of his employment of the propensity for potholes to form at that location.

Brady testified that he would routinely try to inspect all the roads for which he was responsible, and that he would usually do this on a weekly basis. Notably, he said that he believed that he had inspected all those roads weekly during the weeks leading up to June 30, 2003. He also said that an area of broken pavement of the size depicted in the photographs in evidence (again, taken after the pothole was repaired) would attract his attention during the course of these weekly inspections, and that seeing a defect that large would cause him to stop and inspect it. He did not recall whether he stopped to inspect this particular location in 2003, prior to the date of the accident. He also said that if he thought such a condition would pose a hazard to the traveling public, he would send a crew to repair it. He did state that if he saw a pothole 5 to 10 inches deep, he would have directed that a repair be made within the week. He “absolutely” could not determine from the pictures how long the pothole had been there.

Brady was aware at the time of the accident that the highway was designated as a bike route. However, he said that he did not pay any more attention to the shoulder, in light of that information, than he did on any other road. He conceded that a condition that might not pose a hazard to vehicular traffic might be hazardous to a cyclist. However, he did not take that into account in his inspections. He did state that he did not believe this particular condition should have been hazardous to a cyclist, but only because there was sufficient undamaged pavement on the shoulder to maneuver around the pothole.

Expert testimony on claimant's behalf was provided by Donald Narde, Jr. Narde is the owner of a blacktop paving business, and has worked in that business for 25 years. Narde testified that, based on his review of the photographs in evidence, that pothole could not have formed in less than three to four weeks.[7]

He also testified that the proper procedure for repairing this type of defect would be to dig it out completely, put in fabric and modified gravel, and then top it with asphalt. He said that simply filling it with millings, as Watts indicated had been done when his crew repaired it on July 1, 2003, would be a very short-term fix, lasting only a few days before commencing to deteriorate again. He also testified about the manner in which a defect like this develops.

Eric Ophardt provided expert testimony on behalf of defendant. Ophardt is the head of New York State's bicyclist and pedestrian program section, which “assists with information regarding non-motorized issues.” Ophardt noted that no heightened duty of care is owed to cyclists beyond that owed to drivers and passengers of other vehicles; DOT's duty is to keep the road and shoulders safe for travelers.

Ophardt visited the scene of the accident, and indicated that the line of sight to the pothole was completely unobstructed, and that, given the accident occurred on a clear, sunny day, an experienced cyclist such as claimant should have seen the pavement defect substantially sooner than he did, and should have been able to safely navigate around it. He observed that the two-foot width of unbroken pavement should have been adequate for maneuvering, if claimant had noticed the pothole at a greater distance than six feet.

The State clearly has a nondelegable duty to maintain its roadways in a reasonably safe condition (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Where the State undertakes to provide a paved shoulder adjacent to the road, that duty then extends to maintain the shoulder in a reasonably safe condition for foreseeable uses, such as bicycling, and also includes situations arising from a driver's negligence (Bottalico v State of New York, 59 NY2d 302, 304 [1983]). However, it must be noted that the State is not an insurer of the safety of the roads and the occurrence of an accident thereon does not automatically impose liability on the State (see e.g. Tomassi v Town of Union, supra).

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

49 AD2d 361, 363 [1975]).

Claimant has met his burden of establishing that the pothole was a dangerous condition. DOT employee Watts acknowledged that the defect was such that it would be hazardous if hit by a cyclist. DOT employee Brady indicated that a pavement defect of this size would attract his attention during his weekly inspections, and that if he thought it posed a hazard to the traveling public, he would send crews to repair it. The photographs in evidence clearly showed that the area of broken pavement was substantial, extending several feet parallel to the traveling lane, and approximately two feet into the shoulder from the edge of the pavement. Moreover, claimant's testimony that the hole was 10 to 12 inches deep was controverted only to the extent that Watts believed that the hole was between 4 and 6 inches deep in the paved part of the shoulder. Even assuming the accuracy of the smaller numbers, this is still a substantial defect that was clearly hazardous to the traveling public.

Further, the Court finds that defendant had, at the very least, constructive notice of the condition. Brady testified that he attempted to traverse all the roads in his district once a week, and that he believed he had done so in the weeks prior to the accident. Narde testified, credibly, that the hole would have taken, at the very least, two weeks to form.[8] Accordingly, the Court finds that defendant had constructive, if not actual, notice of the dangerous condition which was the proximate cause of claimant's accident.

However, claimant must bear some responsibility for the accident, as he himself conceded that he did not notice the pothole until he was approximately six feet from it.[9] Ophardt testified that claimant should have observed the hole substantially further in advance, and that if he had, he would have been able to avoid the broken pavement completely. The Court accordingly apportions liability in the amount of 50% to the claimant, and 50% to defendant.

The Clerk of the Court is directed to enter interlocutory judgment on the issue of liability in the proportions set forth above. A trial on the issue of damages will be scheduled as soon as practicable.

Any and all motions on which the court may have previously reserved or which were not previously determined, are hereby denied. Let interlocutory judgment be entered accordingly.

March 6, 2008
Binghamton, New York

Judge of the Court of Claims

[1]. Claimant was unable to be present for trial due to his employment, and rather than adjourning the trial, the parties agreed to introduce claimant's deposition testimony instead.
[2]. Transcript of Mitchell at 30.
[3]. Id.
[4]. Id. at 38.
[5]. Claimant's Exhibits 1 - 5.
[6]. Unless otherwise indicated, all quotes herein are taken from the Court's recording of the trial proceedings.
[7]. In a report to claimant's counsel, Narde had previously indicated that the hole would have taken at least two weeks to form. In the Court's view, this discrepancy has no impact on the findings herein.
[8]. Watts' testimony that the defect could have formed overnight was simply not credible, in the Court's opinion, based on the testimony of the other witnesses and upon review of the photographs.

[9]. Testimony from Ophardt indicated that, at claimant's given rate of speed, claimant's observation of the
pothole six feet in front of him gave him approximately two-tenths of a second to react.