New York State Court of Claims

New York State Court of Claims

BUBB v. STATE OF NEW YORK, #2009-039-124, Claim No. 112216


Claimant alleges that she sustained injuries when she fell through a hole in a sewer grate. Following a trial, the Court concludes that claimant failed to prove by a preponderance of the credible evidence that defendant was negligent. No evidence was offered to establish defendant either created the condition or had actual or constructive notice of the condition. Claimant’s allegations of negligence based upon the failure to allocate resources for regular inspection and maintenance or in design of the grate are barred by the doctrine of qualified immunity, and defendant acted reasonably in its care and maintenance of the grate.

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):

James H. Ferreira
Claimant’s attorney:
Alan M. Davis, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: John L. Belford, IVAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June17, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Allisa Bubb alleges that on April 22, 2004, she stepped off a curb onto a storm or sewer grate located on State Route 110 in Amityville, New York, and that her right foot and leg fell through a hole in the grate causing her injuries and damages. The claim sounds in negligence and avers that the grate was in a dangerous, hazardous and defective condition, that defendant State of New York had notice of the condition, and that defendant failed to adequately maintain the grate. Defendant asserts that it neither created the dangerous condition nor had constructive notice of the condition. Defendant contends further that its discretionary actions relative to highway maintenance are entitled to qualified immunity. A bifurcated trial of this matter was held on March 11, 2009. This decision relates solely to liability.

The facts of this case are relatively undisputed. Claimant testified that at approximately 8:30 A.M. on April 22, 2004, she left for work from her home at 572 Broadway, also known as State Route 110, in Amityville, New York. She crossed from the southbound side of State Route 110 to the northbound side of State Route 110 to meet Carolyn Boyd, a coworker, who was planning to pick her up and drive to their place of employment, the Adults and Children with Learning and Developmental Disabilities Center in Bethpage, New York. Boyd stopped her vehicle to pick up claimant on the easterly side of northbound State Route 110, just north of the intersection of Coolidge Avenue and State Route 110. Coolidge Avenue runs perpendicular into the northbound side of State Route 110.

As claimant attempted to enter the passenger side of Boyd’s vehicle, she stepped off the curb with her right leg, onto a sewer grate. She stated that her right foot went “all the way through” a hole in the sewer grate, and that she fell into the hole up to her right thigh with her left leg bent backwards. She stated that while the outer edges of the grate were visible, she did not see the portion of the grate where the hole was located because the hole was covered with trash and paper. The Court received into evidence without objection three color photographs, which depict the grate and the hole that she stepped through, taken on the day of the accident after her fall had occurred (see claimant’s exhibits 4 [color copy] and 4-1, 4-2, 4-3 [original photographs]). She stated that the grate she stepped on was not completely covered with garbage but that there was more trash covering the hole and in the middle of the grate at the time of her accident than the photographs depict (see claimant’s exhibits 4, 4-1, 4-2 and 4-3).

Claimant acknowledged that she was familiar with this area and was aware that there was a grate at this location. She would normally cross State Route 110 to meet Boyd, who frequently picked her up north of Coolidge Avenue on the northbound side of State Route 110. The grate was located in the same area where she would meet Boyd on the northbound side of State Route 110, near or just north of Coolidge Avenue. She acknowledged that the portion of State Route 110 that she stepped onto to enter Boyd’s car was not an area normally used by pedestrians, and not a designated area for crossing State Route 110. She had never noticed the hole in the grate before her accident and could not recall ever stepping on the grate prior to her fall. Claimant rested following her testimony and the Court reserved on defendant’s motion to dismiss for failure to state a cause of action.

Defendant called Brett Betke, a New York State Department of Transportation (hereinafter “DOT”) employee for over 23 years. He testified that he is currently a Highway Maintenance Supervisor 2 (hereinafter “HMS2") for Residency 05 based in Melville, New York. Betke has been an HMS2 for ten years and is one of four HMS2s in that residency. The geographic portion of the residency under his responsibility is called Central Yard and includes parts of Route 495, State Route 231 and State Route 110. He oversees 23 employees and his job duties include managing three five-member crews that maintain the roadways in his section of the residency. The maintenance tasks of his crews include removing snow and ice, cleaning drains, picking up debris and repairing potholes, fences and guide rails.

Betke stated that he performs daily inspections, including driving “almost every day” each section of roadway under his jurisdiction to look for conditions that need to be addressed. When performing these driving inspections, his practice is to drive slowly in the right-hand lane with warning beacons activated and look for hazards or potential dangers like potholes or damaged fences and guide rails. Information about road conditions or potential hazards is also gained from phone calls directly to the residency and from a DOT phone system known as “INFORM”, which receives complaints about road conditions 24 hours a day. The INFORM system tracks complaints made regarding sections of roadway and DOT’s responses (see claimant’s exhibit 2).

Betke testified that there are approximately 700 miles of roads overseen by the DOT Residency where he works, including approximately 180 lane miles of road in the Central Yard residency that his crews maintain. He estimated that there are over 1500 sewer grates in the 180 miles of roads that he oversees. Approximately 500 of those sewer grates are on the portion of State Route 110 under his jurisdiction. He estimated that three to five sewer grates are replaced on an annual basis in the Central Yard, and that when a grate needs to be repaired, it is simply replaced. When rain or wet weather occurs, crews are sent out to clean the grates or sewer drains and remove the debris in order to avoid ponding and flooding on the roadway, and thereby keep the roads dry. A decision to clean a grate or drain is based on weather conditions (e.g. rainy weather), visual inspections from “drive bys” by the crews or by phone calls, including those placed to the INFORM system. He acknowledged there are “too many” drains to stop and visually inspect each grate.

He learned about the accident involving claimant after a phone call to his DOT Residency on the afternoon of April 22, 2004. Prior to claimant’s mishap, he was not aware of any other accidents at the grate or location of claimant’s fall and was not aware of any complaints about the damaged grate or the conditions at the accident scene. The INFORM system log for the period between April 1, 2004 and April 30, 2004 shows no calls received regarding the condition of the sewer grate where claimant fell (see claimant’s exhibit 2).

The sewer grates are manufactured by an outside contractor and DOT keeps an inventory of the sewer grates. The grate in question is the “most common” grate used and its dimensions are two feet wide and four feet long. Betke did not know of any inspection procedures for the grates when received by DOT or prior to being installed on the roadway. After reviewing the photographs comprising claimant’s exhibit 4, he stated that he “may have” seen a sewer grate with a defect like the hole in question in the past. He was not aware of any type of routine scheduled inspection program for sewer or drainage grates. Based on the photographs, he estimated the hole in the grate that claimant alleges she fell into was 3 x 5 inches or 3 x 6 inches. He had no idea as to how the hole was created, or when the sewer grate at issue was originally installed. He estimated that one to two grates out of the 500 grates within his jurisdiction on State Route 110 are replaced per year.

It is well settled that “[a]s a landowner, the State ‘ “must act as a reasonable [person] in maintaining [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” ’ ” (Miller v State of New York, 62 NY2d 506, 513 [1984], quoting Preston v State of New York, 59 NY2d 997, 998 [1983]; see also Basso v Miller, 40 NY2d 233, 241 [1976]). In regards to roads and highways,
“[t]he State of New York has a nondelegable duty to maintain [such thoroughfares] in a reasonably safe condition, and the breach of this duty will result in liability to the State for injuries therefrom (Friedman v State of New York, 67 NY2d 271). However, the State is not an insurer of the safety of its roadways, and the mere fact an accident occurred does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). To establish the State's liability, there must be a showing of negligence, that the State created the dangerous condition or had actual or constructive notice of the dangerous condition, that it failed to properly act to correct the problem or warn of the danger . . . and that such negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020).”
(Lomax v State of New York, 15 Misc3d 1105[A], 2007 WL 813039 [Ct Cl 2007][citation omitted].) A defendant’s creation of a dangerous condition constitutes actual notice (see Mercer v City of New York, 223 AD2d 688, 690 [1996], affd 88 NY2d 955 [1996]; see also Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [1984], affd 64 NY2d 670 [1984]). “ ‘To constitute constructive notice, [however,] a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it’ ” (Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798, 799 [2005], quoting Gordon v American Museum of Natural Hist., 67 NY2d 836, 837 [1986]).

Upon applying these principles to the instant case, and having considered the evidence, including the exhibits received into evidence and the testimony and demeanor of the witnesses, the Court finds that claimant failed to prove by a preponderance of the credible evidence that defendant was negligent. While photographs of the hole in the grate (see claimant’s exhibits 4, 4-1, 4-2 and 4-3) combined with the testimony from claimant plainly establish the existence of a dangerous condition, there was no evidence proffered indicating that defendant either created the condition or had actual or constructive notice of the condition. Claimant, the only person to testify in support of her claim, while familiar with the location of the area where her accident occurred and aware that a grate was at that location, stated that she never observed a hole in the grate prior to her accident. Claimant introduced no evidence as to when the grate was installed or last maintained, and no evidence of prior accidents at the grate or complaints about its condition. Moreover, there is no evidence in the record to show that the condition was visible and apparent prior to claimant’s accident, and no evidence as to how or when the hole in the grate may have formed. Absent such proof, the Court has no basis upon which to formulate a time frame as to how long the condition existed, and thereby assess whether defendant may have had constructive notice of the condition and sufficient time to remedy it.

To the extent that claimant alleges that defendant was negligent by failing to allocate resources for regular inspection and maintenance or in design of the grate at issue, the Court finds that defendant is entitled to rely on the doctrine of qualified immunity (see Schroeder v State of New York, Ct Cl, February 20, 2007, Schweitzer, J., UID No. 2007-036-101, Claim No. 108278; Ballerini v State of New York, Ct Cl, March 30, 2005, Lack, J., Claim No. 104913, UID No. 2005-033-538).

In any event, proof before the Court shows that defendant acted reasonably in its care and maintenance of the sewer grates located along State Route 110. Maintenance crews responsible for the approximately 500 grates along the portion of State Route 110 that encompassed the grate where claimant fell regularly cleaned those grates based on prevailing wet weather conditions, drive-by inspections and public complaints. Moreover, based on testimony that only one to two grates out of those 500 grates are replaced annually, there is no proof before the Court that the deterioration of grates was a recurring problem which warranted more frequent inspections and maintenance by the State.

Therefore, based on the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, his claim against defendant. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.

The Clerk of the Court is directed to enter judgment accordingly.

June17, 2009
Albany, New York

Judge of the Court of Claims