Defendant's motion for summary judgment granted, no negligence, no prior accidents.
|Claimant(s):||NATIONWIDE INSURANCE COMPANY, as subrogee of JENNIFER ALLIS|
|Claimant short name:||NATIONWIDE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has, sua sponte, amended the caption to reflect the only proper party defendant.|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||LAW OFFICES OF EPSTEIN & RAYHILL
By: Russell G. Monaco, Esq.
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Rachel Zaffrann, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 26, 2010|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on defendant's motion for summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits; Affidavit of Dawn Wood and Exhibit; Affidavit of James Murawski.........................................1
Affirmation in Opposition and Supporting Affidavit of Danny Allis, the Driver's Father........................................................................................................................2
Defendant moves for summary judgment dismissing Claim No. 115729 which alleges that, on October 12, 2006 at approximately 8:00 p.m., claimant's insured, Jennifer Allis, was driving a 2003 Pontiac sedan when it went into a drainage ditch as she made a right turn onto Route 59 in Ramapo. The ditch is located adjacent to the shoulder of Route 59. The claim seeks $1,478.78 for property damage to the car. It is asserted, without specificity, that defendant is responsible for the accident due to its ownership, control and negligent maintenance of the ditch. There is no allegation in the claim that the roadway was negligently designed or that defendant was negligent in failing to have proper lighting or to erect a barrier or guiderail to prevent errant vehicles from entering the ditch.
Defendant argues that defendant was not negligent and that any negligence attributable to defendant was not a contributing cause of the accident. Specifically, defendant contends that the ditch, which was beyond the paved shoulder, did not present a dangerous condition as evidenced by the absence of any prior accidents or complaints regarding this location for three years before the accident at issue. Further, defendant maintains that since the driver concededly saw the white line separating the travel lanes of the traffic from the shoulder, she therefore should have made proper use of her senses to see the ditch beyond the shoulder and operate her car in such manner so as to avoid going into the ditch.
Claimant opposes the motion arguing that the driver's father, who responded to his daughter's calls from the accident site, also went into the ditch after her accident, when he was backing up on Route 59 after he had missed the location. Claimant also notes that defendant paid the father's claim for property damage to his car in the approximate amount of $400.00. Claimant, however, does not offer any explanation as to why Ms. Allis, who concededly saw the white line, left the roadway. There was also no allegation of negligence attributable to defendant as to what caused or contributed to her leaving the roadway.
It is well settled that the State has a duty to maintain its roadways in a reasonably safe condition and that duty extends to areas adjacent to its roadway which could reasonably be expected to result in injury or damage to the users of its roadways (see Stiuso v City of New York, 87 NY2d 889; Harris v Village of E. Hills, 41 NY2d 446). The State, however, is not an insurer of the safety of its roadways and the mere happing of an accident on State property 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). Liability will attach only when the State had actual or constructive notice of a potentially dangerous condition and then failed to take reasonable measures to remedy it (see Collado v Incorporated Town and/or Vil. of Freeport, 6 AD3d 378 [defendant was granted summary judgment dismissing claim where there was no notice that tree adjacent to road posed a danger]). To establish constructive notice, a dangerous condition must have been visible and apparent and must have existed for a sufficient period of time prior to the accident to enable defendant the opportunity to discover and remedy the condition (Fowle v State of New York, 187 AD2d 698, 699).
Additionally, "where the paved road surface is 'more than adequate for safe public passage,' travel beyond those limits on unimproved land adjacent to the roadway is generally not contemplated or foreseeable and therefore the municipality is under no duty to maintain it for vehicular traffic" (Stiuso v City of New York, 87 NY2d 889, supra at 891, quoting Tomassi v Town of Union, 46 NY2d 91, supra at 97). "Thus, a municipality's duty to maintain its highways extends to conditions beyond the travel lanes and shoulders only when a prior accident or other event would give notice of a specific dangerous condition" (Hay v State of New York, 60 AD3d 1190, 1192). Moreover, even where a duty is established, liability will not attach unless the ascribed negligence of the municipality is the proximate cause of the accident (see Sherman v County of Cortland, 18 AD3d 908, 910 [defendant was granted summary judgment dismissing the claim where court held that it cannot be said that the ditch caused the vehicle to leave the road and defendant cannot be held liable for the vehicle's unforeseeable travel beyond the roadway]).
While proof of prior accidents at the same place and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice, in this matter, the only proof on this issue was submitted by defendant and it showed that there had been no accidents or complaints regarding this area for three years prior to the accident(2) (see Martin v State of New York, 305 AD2d 784 [the number of accidents was well below the State average; prior accident history was insufficient to put defendant on notice of a dangerous condition or impose a duty to take remedial action]; Vega v Jacobs, 84 AD2d 813 [proof of prior accidents at the same place and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice]). Indeed, defendant presented an affidavit of the New York State Department of Transportation's (NYSDOT) Assistant Resident Engineer, who is responsible for inspecting and maintaining this area of roadway and he stated that he has never observed a dangerous condition in this area nor has he received any complaints about this location (Affidavit of James Murawski). Additionally, defendant submitted the affidavit of Dawn Wood, a NYSDOT Civil Engineer I in the Traffic and Safety Group, Traffic Investigations Unit for the region encompassing the area in issue along with the reported accidents in that area from October 1, 2003 through October 31, 2006, three years prior to the accident in issue. Wood reviewed the reports and found that none of the reported accidents involved a vehicle falling into the ditch adjacent to Route 59 (Affidavit of Dawn Wood).
Here, there is no allegation that the roadway itself was less than adequate to permit safe passage or that its design contributed to the driver's vehicle leaving the roadway. Indeed, no explanation is offered as to why the driver left the roadway. Rather, claimant's contention is that the ditch presented a dangerous condition and that the driver could not see it due to inadequate lighting.(3)
In the absence of any prior similar accidents or complaints, along with claimant's failure to present any proof of a dangerous condition, the Court finds that it has not been shown that the ditch presented a dangerous condition or that it was negligently maintained (see Zammiello v Senpike Mall Co., 5 AD3d 1001 [where alleged dangerous condition existed for a number of years, the absence of prior accidents may indicate that the condition is safe]; Sellitto v State of New York 250 AD2d 754 [claimant failed to prove that the State either caused a dangerous condition or had notice of a recurrent dangerous condition existing in a specific area]). The driver was bound to see that which should have been seen with the proper use of her senses (see Weigand v United Traction Co., 221 NY 39; Sappleton v Metropolitan Suburban Bus Auth., 140 AD2d 684). The driver was also obligated to operate her car at a rate of speed and in such a manner of control as to avoid an accident (see Woolley v Coppola, 179 AD2d 991, 992). The evidence presented was insufficient to establish a causal relationship between the State's alleged negligence and the accident (see Brooks v New York State Thruway Auth., 51 NY2d 892, 893). Thus, it has not been established that defendant was negligent or that any negligence of defendant contributed to the cause of the accident (see Curreri v New Town & Country Corp., 60 AD3d 718 [where claimant could not give a specific reason why he fell and he had traversed the area on numerous occasions without incident, it was reasonable to find that, although the area was not in conformity with the Building Code, it did not present a dangerous condition]).
"Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury" (Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7).
In sum, the Court finds that defendant has made a sufficient showing to warrant summary judgment dismissing the claim and that claimant has not shown that defendant was negligent or that such negligence was a proximate cause of the accident (see Carlo v State of New York, 51 AD3d 618 [liability will not attach unless State's alleged negligence was a proximate cause of the accident]; Sinski v State of New York, 2 AD3d 517 [claimant failed to make a prima facie showing that anything other than her own culpable conduct caused her accident]; Sherman v County of Cortland, 18 AD3d 908, supra [defendant was granted summary judgment dismissing the claim where court held that it cannot be said that the ditch caused the vehicle to leave the road and defendant cannot be held liable for the vehicle's unforeseeable travel beyond the roadway]).
Accordingly, defendant's motion for summary judgment is GRANTED and Claim No. 115729 is hereby dismissed.
July 26, 2010
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims
2. The accident on October 12, 2006 of Mr. Allis responding to the scene of his daughter's accident was post-incident and therefore not sufficient to give notice of the condition prior to Ms. Allis' accident.
3. Inadequate lighting was not specifically pled. In any event, the assertion of inadequate lighting without any objective proof, is insufficient to establish that a lack of lighting was a proximate cause of the accident (see Christoforou v Lown, 120 AD2d 387, 391 ["It is basic that one alleging inadequate lighting must show a breach of a duty of reasonable care and that such breach was the proximate cause of the injuries."]; see also Reyes v La Ronda Cocktail Lounge, 27 AD3d 397 [whether inadequate lighting contributed to claimant's accident did not create an issue of fact precluding summary judgment to defendant dismissing claim]).