New York State Court of Claims

New York State Court of Claims


NEW YORK STATE THRUWAY AUTHORITY, #2009-042-502, Claim No. 114348, Motion No. M-75795


Defendants bring this motion for summary judgment to dismiss this negligence personal injury claim on the grounds that the defendants did not create, nor have notice of the alleged dangerous or defective condition. Claimant opposed the motion and asserts that there are a number of issues of fact which preclude summary judgment. The court finds that the defendants have failed to set forth a prima facie showing that claimant’s claims were without merit. Defendant’s motion for summary judgment is denied.

Case Information

Claimant short name:
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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:
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Signature date:
January 13, 2009

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See also (multicaptioned case)


Defendants State of New York and the New York State Thruway Authority move for summary judgment to dismiss this negligence personal injury claim on the grounds that defendants did not create, nor have notice of the alleged dangerous or defective condition on the thruway prior to the accident in issue. Claimant opposes the motion and asserts that there are numerous issues of fact which preclude summary judgment. The court has considered the following papers:
  1. Notice of Motion, filed November 5, 2008
  2. Affidavit of David Taylor, Esq., sworn to November 4, 2008
  3. Exhibits A - K, annexed to the moving papers
  4. Opposition affidavit of Paul F. Shanahan, Esq., sworn to November 24, 2008
  5. Exhibits A - B, annexed to the opposition affidavit
  6. Affidavit of John A. Serth, Jr., sworn to November 19, 2008
  7. Reply affidavit of David R. Taylor, Esq., sworn to December 1, 2008

The underlying motor vehicle accident occurred on July 24, 2007. For purposes of this motion, defendants do not contest claimant’s explanation of the accident.

According to claimant’s pleadings and deposition testimony, claimant was traveling eastbound on the New York State Thruway in mid-afternoon. The day was clear and the roads were dry. There were construction barrels on the left edge of the roadway. The traffic was “pretty congested” and claimant had been following other vehicles in the right lane, or driving lane, when, according to claimant:

they [pick up trucks in the right lane] were going slow, so I moved into the left lane and as I was, you know, slowly moving up on those trucks in the right lane, the car in front of me swerved into the right lane very erratically and I saw in front of me a barrel that was turned over on its side and I had no choice but to hit it . . .

(Claimant’s deposition transcript [defendants’ exhibit D], page 27).

The claimant’s car proceeded into the median, and according to the claim, flipped and rolled over a number of times. Claimant sustained severe injuries.

At the time of the accident in issue, construction work was being done on this section of the New York State Thruway. The construction occurred primarily at night and there was no construction work going on in the immediate area of the accident at the time of the accident. However, the left shoulder area of the left lane was bounded by a series of construction barrels, weighted down with black rings at their base.

The contractor for the project was Barrett Paving. In addition, the defendant Thruway Authority had contracted with Prudent Engineering, LLC to be the main consultant on the project and Prudent Engineering, LLC had subcontracted with Bryant Associates to ensure that the project was done in accordance with specifications (Bailey deposition transcript, pages 17 - 18 [defendants’ exhibit E]).

According to defendants’ moving papers, these various representatives of the defendant regularly inspected the project, the placement of barrels and otherwise monitored safety issues.

It is the position of the defendants that regular inspections were made to see if barrels were misplaced or overturned, that barrels were never placed in a travel lane and that defendants had no prior notice of this particular barrel’s presence in the travel lane. Thus, defendants contend that they did not create the condition - and in any event, had no notice of the condition - and cannot be held liable.

Claimant contends that defendants created the condition that resulted in the barrel falling into the travel lane. Claimant alleges that there were prior incidents of barrels falling, that the barrel was not properly secured, and that the barrel was not properly placed on the shoulder.

Claimant asserts, and the record supports, that the project specifications required that the construction barrels be placed at least .6 meters (or approximately 23.62 inches) from the edge of the travel lane. Claimant contends that improper placement of the barrels closer to the travel lane caused the barrel to fall over. Claimant also provides an affidavit from its expert which states, in relevant part, that:

[t]he barrels were not set at least six tenths of a meter from the edge of the travel lane. The photographic exhibits clearly show that the construction barrels were placed at the edge of the travel lane not the required minimum six tenths of a meter. The placement of the barrels at the edge of the travel lane by the contractor greatly increased the risk that the draft from a truck or car would cause the barrel to move or shift into the travel lane or tip and fall into the travel lane . . . The contractor created this dangerous condition by failure to comply with the MUTD and contract specifications which specifically set forth the standard. The violation of the standard was a substantial factor in causing the accident in this case.

(Serth affidavit, page 2).

The Court of Appeals, in Alvarez v Prospect Hospital, et al., 68 NY2d 320, set forth the standard applicable to the determination of a motion for summary judgment:

[a]s we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact [citations omitted]. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).

(Alvarez v Prospect Hospital, et al., 68 NY2d 320, 324).

In the case at hand, the defendants did not themselves perform any of the work on the construction project or lay the construction barrel in the travel lane. These actions were performed by companies which contracted with the Thruway Authority. This, however, does not absolve the defendant from responsibility, as

[i]t is well settled that, as a public entity, defendant “is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition, and that liability will flow for injuries resulting from a breach of that duty” (Nurek v Town of Vestal, 115 AD2d 116, 116-117 [1985]; see Friedman v State of New York, 67 NY2d 271, 283 [1986]) . . . Moreover, this duty is not excused because the dangerous conditions are attributable to the acts and/or omissions of defendant’s contractors (see Rothstein v State of New York, 284 AD2d 130, 131 [2001]).

(Levine v New York State Thruway Authority, 52 AD3d 975, 976-977 [2008]).

Defendants’ own moving papers, including the claimant’s deposition transcript, compel the conclusion that defendants and their contractors, had no actual knowledge of the presence of the barrel in issue in the travel lane of the thruway, and, from claimant’s description of the accident, it can be concluded circumstantially that the barrel was probably in the roadway an insufficient time to have allowed any opportunity for corrective action by the defendants.

Nevertheless, “[w]hen reviewing a motion for summary judgment the focus of the court’s concern is issue finding, not issue determination, and the affidavits should be scrutinized carefully in the light most favorable to the party opposing the motion” (Goldstein v County of Monroe, 77 AD2d 232). The defendants’ own moving papers include the depositions of the contractor and the project inspectors demonstrating that they were aware of the placement of the barrels. Both the moving and opposition papers also include pictures of the construction barrels at the site of the accident on the date of the accident. While, regrettably, the photos do not provide measurements of the space between the barrels on the road’s shoulder and the edge of the travel lane, the court will take judicial notice that commonly known markers in the photos (painted lines, thruway lanes, and construction barrels familiar to all drivers) clearly indicate that the barrels were placed, at best, a few inches from the travel lane and significantly closer to the roadway than the six-tenths meters required by the contract specifications. The defendants’ agents and employees, including the contractors and subcontractors, clearly had actual and constructive notice that the barrels were much closer to the roadway than minimum spacing required. Common sense would suggest that a barrel placed immediately adjacent to the roadway would be more susceptible of falling into the roadway or being struck or drawn into the roadway by passing trucks. Equally, common sense would suggest that a barrel placed adjacent to a roadway, when falling into the roadway, would cover more of the travel lane, and thus present a greater and larger danger to vehicles, than a barrel placed .6 meters, or approximately 24 inches, from the travel lane.

The defendants failed to set forth a prima facie showing that the claimant’s claims were without merit, and thus have failed to meet their burden of proof. Even assuming arguendo that burden shifted to the claimant, claimant met that burden with the expert’s affidavit opining that the contractor created the dangerous condition by its violation of the contract standards relative to barrel placement and that such violation was a substantial factor in causing the accident.

Defendants’ motion for summary judgment is denied.

January 13, 2009
Utica, New York

Judge of the Court of Claims