New York State Court of Claims

New York State Court of Claims

TIERNO v. THE STATE OF NEW YORK, #2008-044-023, Claim No. 110052


State found 100% liable for personal injuries sustained in a motorcycle accident caused by sunken manhole cover; constructive notice held to exist where dangerous condition existed on heavily traveled roadway for several years before accident.

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:
FINKELSTEIN & PARTNERS, LLPBY: Victoria Lieb Lightcap, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 22, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed this claim to recover damages for personal injuries incurred in an accident which took place when he encountered an allegedly dangerous condition (a depressed manhole cover) in the pavement of State Route 434 (the Parkway) in Broome County, a highway owned by defendant State of New York (defendant), while riding his motorcycle. Trial of the matter was bifurcated and held in the Binghamton District on October 14 and 15, 2008. This decision addresses only the issue of liability.

Claimant’s first witness was Heather Margets, a witness to the accident, who traveled the

Parkway on a daily basis. She said that on June 25, 2003, the date of the accident, she was a passenger in a vehicle driven by her husband which was traveling in the right-hand, westbound lane of the Parkway near the intersection with Bunn Hill Road between 5:00 and 6:00 pm. She observed claimant riding his motorcycle in the right-hand, eastbound lane past a restaurant located at the intersection, when suddenly the front end of the motorcycle “pitch[ed] down,”[1] the front wheel began weaving, and claimant “flipped over and over” while the motorcycle skidded out of control. She said that the “bounce” of the cycle was what attracted her attention, but that it appeared as though claimant had been at a stop at a traffic light and was just beginning to pick up speed. She said he was “not traveling very fast,” and there were vehicles both behind and in front of him.

She said that she had lived on the Parkway for several years, having moved there in 2000, and was aware that there was a “sunken manhole” at that intersection. She stated that the cover had been substantially depressed the entire time she lived on the Parkway. Her recollection, from having traveled over the manhole repeatedly, was that the depression was approximately three to four inches deep.

Upon seeing the accident, she said, she and her husband called 911 and turned around to assist claimant. They waited with him until police and emergency services arrived, at which time they gave a statement to the police.[2] On cross-examination, defendant’s counsel questioned Margets about some minor inconsistencies between her testimony and the statement, which she explained satisfactorily.

Matthew Margets, Heather’s husband, also testified on claimant’s behalf. He said he glanced over into the oncoming lanes of traffic and happened to see the motorcycle go down and claimant start flipping through the air. He said that he had observed the manhole cover prior to the accident as a result of driving on the Parkway. He said “it seemed awful low,” and thought it “should be level with the road.”

Joseph Kennedy, Jr., a police officer for the Town of Vestal, also testified on claimant’s behalf. Kennedy had been a police officer for approximately 15½ years with different agencies, the last 11 with Vestal. Kennedy was the first emergency responder to arrive at the scene of the accident, although he did not know how long before his arrival the accident had occurred. When he arrived, he found claimant on the ground, several feet from the motorcycle, which was lying in the roadway. Claimant told Kennedy he had been traveling east on the Parkway and had nearly stopped at the Bunn Hill intersection due to a red light. When the light turned green, he moved forward through the intersection, hit the manhole cover which “spun” his front wheel, and the motorcycle went down. Kennedy characterized traffic on Wednesday evenings on the Parkway as “busy.” He stated that the Margets told him that the motorcycle went out of control after hitting the manhole cover.

Kennedy testified that he noted in his police report (Police Report) that environmental conditions were a contributing factor to the accident (describing environmental conditions as “nothing that the driver had control over”), and listed the specific environmental condition as

defective pavement.[3] He testified that the manhole cover was sunk into the pavement, and that was what he meant in his report by defective pavement. His estimate of the approximate depth of the manhole cover below the level of the pavement was three inches, although he did not measure it. He marked one picture of the manhole cover[4] with a notation indicating the point at which he thought the depression was the deepest. That area was located at the northeast to east quadrant of the cover, which would have been the far side of the cover from claimant as he approached it on his motorcycle. Kennedy viewed the manhole cover and pavement while at the scene of the accident.

Kennedy said that someone from the Vestal Police Department would have reported the defective road condition to the Department of Transportation (DOT). He said that he eventually received a telephone call from someone at DOT inquiring why he had listed defective pavement as a contributing factor to the accident. He said his response to that person’s inquiry was that he believed that the pavement was defective, and that the manhole cover “sat down in, and a slow-moving motorcycle could easily be affected by that.”

When asked on cross-examination to show exactly what part of the pavement around the manhole was defective, on a photograph of the manhole and extensive surrounding pavement,[5] he said that he “couldn’t show an area of that photograph that’s not defective pavement.” Kennedy acknowledged on cross-examination that he did not take any measurements or perform any tests, and that his notation in the Police Report that the motorcycle’s front tire locked up upon hitting the manhole cover was based on claimant’s statement to Kennedy. He did not examine the pavement around the accident for tire skid or yaw marks. He did acknowledge that most manhole covers are somewhat depressed into the pavement. However, he reiterated his opinion that the pavement in the area of the manhole was defective.

Claimant testified next. He said he was returning home from work the evening the accident occurred. He said that, even though he took various routes to and from work when riding his motorcycle, he had ridden down the Parkway on the motorcycle numerous times. He said that the motorcycle had no mechanical problems, and was in perfect condition when he purchased it (used). He also said that he would always “jump on it” before riding it to make sure that the suspension was in good order and the tires were not losing pressure.

He described the weather at the time of the accident as 95 degrees and sunny. He said that the traffic was heavy, and that immediately prior to the accident, there was a vehicle approximately 30 feet in front of him, as well as other vehicles behind him and to his left (he was in the right-hand, eastbound lane). He estimated his speed at the time of the accident as being

approximately 30 to 35 miles an hour, having slowed to approximately 20 miles per hour as he approached the traffic control light at the Bunn Hill Road intersection, which was red. He had not completely come to a stop when it turned green, so he began accelerating slowly. He said that as he was passing through the intersection, he saw the manhole cover immediately in front of him (his estimate was that it was approximately five feet in front of him when he saw it). He said he had enough time to decelerate “maybe a couple miles per hour.” He went straight over it, as he had been instructed in motorcycle safety class was the proper procedure for obstacles a rider could not avoid. He testified that he knew he hit the manhole cover, because there was no debris in the road or anything else he could have hit. He said he felt a thud when the motorcycle “bottom[ed] out” and then he lost control. He said after he came off the bike, it went off to the right side of the road.

Claimant described himself as a very experienced motorcycle rider, having owned 15 to 20 motorcycles over the years. He said he had been riding since he was young. He had never had any accidents or problems on a motorcycle before this. He was aware prior to the accident that there was a manhole cover at that location, but he had never ridden directly over it. He also said he did not “lock up” the brakes as he went over the manhole.

Claimant identified pictures of the manhole taken at various times after the accident, some taken in May, 2004, and some in October, 2003.[6] These pictures showed deteriorated pavement with “alligator” cracking around a manhole, and extensive patching and loose gravel or

pavement material surrounding the manhole. Claimant also identified pictures of his motorcycle taken after the accident, which showed a severely bent front suspension.[7] During claimant’s testimony a video recording of the intersection was shown,[8] which was made by claimant’s brother a few days after the accident. The video shows automobiles passing over the manhole at various rates of speed. The front end of each vehicle dips noticeably and the vehicle bounces regardless of speed, but at higher speeds there is an audible noise made by the vehicles as they encounter the manhole.[9]

Peter Schultz, a Civil Engineer I with DOT, also testified. He was in charge of maintenance of the state highways in Broome County at the time of the accident. He spoke at length about the appropriate depth of manhole covers and the necessity that they be below grade in order to avoid obstructing snowplows. He said that a one-inch depression of a manhole cover would not be a cause for concern, but that a three-inch depression would be. Upon reviewing photographs of the manhole cover and the pavement around it, he stated that he did not see that any repairs to the area would be necessary.

Claimant also called Thomas Wiser, P.E., currently the Regional Construction Engineer for DOT’s Region 9 (the Region encompassing Broome County and the location of this accident), to testify. At the time the accident took place, he was the construction supervisor for a project which widened the intersection of Bunn Hill Road and the Parkway and improved drainage in the area of the accident. Wiser also performed the final inspection on that project.

He testified that as part of the project, a drainage line was cut into the drainage structure beneath the manhole cover at issue. The trench for the drainage line was backfilled and patched up to the south edge of the manhole. Wiser acknowledged that the specification sheet on the project contract states that manhole covers should be “adjust[ed] to grade,”1[0] but argued that, while no tolerance was listed, “reasonably close conformance” to that specification was what was expected.

Wiser also discussed the various ways to raise the level of a manhole cover, and stated that the ultimate objective of such a procedure would be “to get it as flush with the grade as possible.” He agreed that where manhole covers are “excessively low,” there is a concern about the potential for accident or injury. Wiser stated that a vertical three-inch depression of a manhole cover would need remedial action, but that if the pavement was tapered into a three-inch depression, “it’s not as much of a concern.”

Joseph McHugh, P.E., of Robson Forensic Incorporated, testified as claimant’s expert. Among his many other qualifications, he had been employed by DOT’s Region 9 construction group from 1973 to 1979, as well as having performed consulting work for DOT, the Thruway Authority and the Port Authority. Regarding this accident, McHugh opined that the manhole cover was depressed, was in a travel lane, and unquestionably constituted a dangerous

condition.1[1] McHugh discussed how such conditions can result from weather, traffic and drainage, and the relative ease of repair. McHugh also opined that DOT should have taken notice of the condition during their “almost daily travels,” and repaired it. Further, based on claimant’s testimony and that of the other witnesses to the accident, McHugh stated that, assuming traffic was traveling at 35 to 40 miles per hour, with a vehicle three car lengths in front of claimant, claimant would have had less than a second1[2] from the time he was able to see the manhole cover to avoid it.1[3]

Upon reviewing the video recording during his testimony, McHugh noted that the manhole cover was not evenly depressed into the pavement around the circumference of the cover, with the northeast side of the cover being more deeply depressed into the pavement (this was also noted by Officer Kennedy and confirmed by the pictures submitted into evidence). McHugh stated that, in his opinion, the condition was created by DOT (or its contractor) during the 2001 project, when the drainage structure underneath the manhole1[4] was connected to another drainage structure by means of a trenching procedure. McHugh opined that the trench was not properly backfilled and compacted to a 95% density as specified in the contract requirements. He said that the cracking in the area of the patch demonstrated that the process was improperly performed, as the patched area became depressed over time. He concluded that the failure to properly compact the backfilled trench resulted in the settlement of the entire drainage structure.

While being cross-examined, McHugh reviewed the “Drainage Tables and Details” sheet from the 2001 contract.1[5] This document, which McHugh stated would have been created from data taken from a survey, contains a cross-section drawing of the drainage structure, and shows the ground level in relation to the manhole as it existed prior to the project, and as it was designed to exist after completion of the project. McHugh noted that drawing shows both the “existing ground” level and the “finished grade level” intersecting at an angle with the manhole cover, so that part of the cover is depressed below the grade and part of it is above grade. The other two drainage structures depicted in this drawing have the covers level with the existing ground level and level with or buried under the finished grade.

After claimant’s counsel read portions of Wiser’s deposition testimony into the record, claimant rested his case.

Defendant recalled Thomas Wiser to the stand as its expert witness. Wiser stated that the pavement on the Parkway in the general area where the accident took place was rated by DOT at a six or seven on a scale of ten. He said that a score of seven would indicate very good pavement. He said the pavement around the manhole cover at the time of the accident had some cracking typical of a score of six. Wiser said that the cracking was a result of general weather conditions in the northeast.

Wiser said he did not agree with the witnesses’ estimates – including that of the police officer – of the amount of the depression of the manhole cover (that being approximately three inches at the deepest point). He estimated the depth of the depression at between an inch and an inch and a half. He acknowledged on cross-examination that no one from DOT had ever measured the depth of the depression, even after it had been reported by the Vestal Police Department as a dangerous condition.

In reviewing some of the pictures,1[6] he noted that on the date of the accident, he believed the cover was depressed on the northeasterly corner and “was fairly close to flush” with the pavement on the south side, where the trench had been. He also observed that there was some alligator cracking, but stated “it doesn’t appear that there’s any big potholing anywhere.” In his expert opinion, the manhole cover and surrounding pavement did not constitute a dangerous condition. He based that opinion on his review of the pictures, and his experience with construction and driving.

Wiser stated that manhole covers “are not perfect,” and that most of them are slightly depressed. He said that although the contract specifications show the cover flush with the pavement,1[7] DOT tries to set the covers one-quarter to one-half inch below the pavement. He said that lowering a manhole involves a significant amount of work.

Of note in his testimony was his statement that the trenching operation up to the manhole, which was conducted as part of the 2001 project, would have had no impact on any settling of the manhole cover. He pointed out that the trench only came up to the side of the manhole. The drainage structure itself had been set on a base years before, when it was originally installed. In order for improper compaction to have caused the entire structure to settle, the base itself would have had to have been set on new dirt, and then compacting would have taken place all the way around the structure. However, the contract drawings show that the patch (and thus the trenching operation) stopped short of the casting (the piece on which the cover sits, which then sits on the drainage structure itself). He concluded that the casting was not disturbed, and thus the trenching and backfilling procedure would not have caused the cover to settle.

Wiser agreed on cross-examination that the operation would have included drilling into the structure itself. However, he said, the drainage structure itself had been installed many years ago, and the foundation upon which it was laid was solid. He agreed that the trench itself could have settled, but argued that the foundation upon which the structure sat would not have been disturbed. He did admit that he was not present when the trenching was done, and so could not verify from his own personal knowledge that the foundation had not been disturbed.

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]). 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 (id.).

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 E. 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 sunken manhole cover was a dangerous condition. Officer Kennedy’s testimony to that effect was particularly persuasive, given his extensive experience with accidents and his training in accident reconstruction. The video recording of vehicles passing over the cover, which showed the front end of the vehicles dipping as they encountered the depression, also assisted the Court in reaching this conclusion. While the Court does not question Wiser’s sincerity in his statement that the cover and surrounding pavement did not constitute a dangerous condition, he was not a disinterested witness.

Moreover, the dangerous condition was unquestionably the proximate cause of the accident. Claimant’s uncontradicted testimony that he hit the manhole cover, and that there was no other debris in the road, was entirely credible. The two disinterested witnesses to the accident who testified at trial agreed that the front end of the motorcycle dipped when it hit the cover, exactly as the vehicles crossing the cover can be seen to do in the video.

With regard to the issue of whether defendant had actual or constructive notice, the Court does not credit claimant’s expert’s testimony that DOT itself (via its contractor) created the defective condition during the course of its trenching and backfilling operation as part of the 2001 project. Rather, Wiser’s testimony that the foundation of the drainage structure would not have been disturbed during that procedure, and that any settling would have occurred only in the trench area, was convincing.

However, Heather Margets testified that she had been aware of the existence of the depressed manhole cover since the year 2000. Her husband also testified that he was aware of the condition. The Court found these disinterested witnesses to be entirely credible in this regard. Accordingly, the Court holds that defendant had, at the very least, constructive notice of the defective and dangerous condition, as it had existed for at least several years prior to the accident.

Additionally, there was substantial testimony regarding the relative ease with which the manhole cover could have been raised. Both Schultz and Wiser addressed that issue, as did claimant’s expert, McHugh. Defendant could easily have remedied the condition, but it did not.

Claimant did concede that he was aware that the manhole cover was there. He indicated that he had driven over it in an automobile, which “straddles” the cover, but never drove directly over it on a motorcycle. However, both Schultz and Wiser from DOT stated that manhole covers are routinely installed one-quarter to one-half inch below grade. Accordingly, claimant had no reason to believe that the manhole cover would not be readily traversable on his motorcycle. Further, given the congested traffic conditions at the time of the accident, it is apparent from his testimony that claimant would have been unable to change lanes even if he was aware that the manhole cover would constitute a danger. The Court accordingly finds that claimant’s actions did not contribute to the accident, and finds defendant 100% liable for claimant’s injuries.

The Clerk of the Court is directed to enter interlocutory judgment on the issue of liability as 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.

December 22, 2008
Binghamton, New York

Judge of the Court of Claims

[1]. All quotes herein are taken from the Court’s recording of the proceedings.
[2]. Defendant’s Exhibit F.
[3].Claimant’s Exhibit 2, p 1, box 19. Defendant’s counsel objected to admission of the Police Report on the ground that it constituted hearsay. The Court finds that Officer Kennedy was indeed qualified to form an opinion regarding the defective condition of the pavement, as well as any resulting potential consequences to a motorist upon encountering such a condition. Therefore, to the extent that the Police Report noted the presence of that defective pavement condition, it is hereby admitted into evidence (see Murray v Donlan, 77 AD2d 337, 347 [1980], appeal dismissed 52 NY2d 1071 [1981]; see also Cleary v City of New York, 234 AD2d 411 [1996]). However, the observation in the Police Report that the cause of the accident was claimant’s encounter with the depressed manhole and the defective condition of the pavement surrounding it is clearly hearsay, as Officer Kennedy was not a witness to the accident, and based that conclusion upon the statements given to him at the scene. Accordingly, the rest of the Police Report is excluded from evidence (id.).
[4]. Claimant’s Exhibit 3S.
[5]. Claimant’s Exhibit 3S.
[6]. Claimant’s Exhibits 3A, 3B, 3C, 3M, 3R, 3S, 3T, and 3BB.
[7]. Defendant’s Exhibit B.
[8]. Defendant’s Exhibit G.
[9]. This noise sounds like a vehicle’s suspension “bottoming out,” based on the Court’s experience.
1[0]. Claimant’s Exhibit 15.
[1]1. McHugh also expressed an opinion regarding the causation of the accident, to which defendant’s counsel objected on the basis that McHugh had not established any qualifications as an accident reconstructionist. The Court reserved ruling on the objection and allowed the testimony. The Court now finds that claimant did not establish that McHugh possessed the requisite training, education or expertise on the subject of accident reconstruction to render his opinion reliable (see Matott v Ward, 48 NY2d 455 [1979]), and has therefore stricken and not considered his testimony regarding causation of the accident. This ruling does not apply, however, to McHugh’s assessment of the state of the manhole cover as being a dangerous condition, that being clearly within his established highway engineering expertise.
1[2]. McHugh said that claimant would have traveled approximately 59 feet in a second at that rate of speed, and would have seen the manhole cover when it was about 40 feet away.
1[3]. This analysis also falls within McHugh’s area of engineering expertise, and was given credence by the Court.
1[4]. This drainage structure is designated as “DS-5” in the contract documents (see e.g. Claimant’s Exhibit 10).
1[5]. Claimant’s Exhibit 10 and Defendant’s Exhibit D, p 2, which also contained the “as built revisions” to the drainage structure work.
1[6]. In particular, Claimant’s Exhibits 3D and 3S.
1[7]. Claimant’s Exhibit 15.