Although witnesses on behalf of the State testified that it had no record of actual notice of a pothole, the credible testimony of an impartial witness that he had provided such notice was sufficient and thus the State is held partially liable when a motorcycle encountered the same pothole two to four weeks later causing injury.
|Claimant(s):||RONALD E. HOYER|
|Claimant short name:||HOYER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||PHILIP J. PATTI|
|Claimant's attorney:||CELLINO & BARNES, P.C.
BY: K. JOHN WRIGHT, ESQ.
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 14, 2010|
|See also (multicaptioned case)|
On May 6, 2003, Claimant Ronald Hoyer was driving his motorcycle westbound on Fairport Road (State Route 31F) when he encountered a pothole as he was about to turn right into a parking lot, leading to a crash in which he sustained injuries. Claimant was an experienced motorcycle operator of some 33 years, and was the owner/operator of a motorcycle sales and repair shop. Claimant alleges the negligence of the Defendant relating to the pothole and seeks damages for his injuries. The trial of this matter was bifurcated and this decision deals solely with issues relating to liability.
This incident occurred in front of BanD Auto (also called BanD's Parts Plus) at 1340 Fairport Road, Claimant's destination. He was a regular customer and was intending to pay a bill. He had not been there since the fall of 2002, perhaps some six months previous. The Defendant's attempt to diminish the credibility of Claimant's testimony due to a wholly unrelated criminal conviction, which he readily acknowledged, is rejected as baseless. More significant, as discussed below, is his experience as a motorcycle operator.
Claimant testified that he was riding at a slow rate of speed towards the right side of the right-hand lane to keep away from oil slicks. The weather was about 75 on a clear sunny day, and the roads were dry. Claimant testified that this accident occurred during the rush hour and he could not move to the left. He testified that he had put his turn signal on and was about to turn into the parking lot when he saw a blemish on the road and then saw that it was a "massive" hole, and he had no choice but to ride it out. His front tire went into the hole and his bike stopped dead. He was catapulted into the parking lot, causing the injuries complained of.
Robin Janes, associated with BanD Auto for some 30 years, was at the store's counter and saw Claimant out of the corner of his eye at the entrance to the parking lot, but then there was a lot of commotion, and he "kind of knew" what had happened because of a prior incident at the same location. Mr. Janes testified that he was aware of the pothole on the street side of the curb, and that it had been there for quite some time. He described it as being 5" or 6" deep and that it had been deteriorating for some time.
Mr. Janes' familiarity with the pothole and his knowledge of its existence stemmed from a previous incident when he heard an explosion as a Volkswagen had traveled over the same pothole as it was turning into the same parking lot. He looked up and saw the Volkswagen limping into the parking lot with a flat tire, and had a firm recollection of the young man who came to the door. He recalled that that driver had been a customer of the business and had asked to speak to someone in the corporate office, which Mr. Janes accommodated. This incident was at least two, and perhaps as many as four, weeks prior to Claimant's accident, but definitely in April 2003. Mr. Janes went outside to see what that driver had hit, and ascertained that the pothole was on the street side of the curb at the entrance to BanD's parking lot, and not on the company's side. Because of the proximity of the incident to the store, and the possible liability concerns of his employer, the corporate office advised him to contact the municipal authorities. On the next day he initially contacted the Town of Perinton to advise of the pothole, whereupon he was informed that Fairport Road was a State road and it was under the penumbra of the Department of Transportation of the State of New York (DOT). He testified that he looked in the municipal government portion of the white pages of the telephone book and called one of the numerous telephone numbers listed therein for DOT and reported to an unidentified State employee, who was provided with all the relevant and available information. Not surprisingly, at trial he could not recall what number he dialed or the name of the individual to whom he reported the accident with the Volkswagen and the pothole.
The Defendant avers, and there is no proof to the contrary, that it has no record of any report regarding the previous incident, and thus asserts that it was not placed on actual notice of the existence of the pothole prior to Claimant's unfortunate accident. I accept the testimony of Bradley Walike, a DOT employee, that the Defendant's database contained no record of notice, as well as similar testimony by Albert Carmichael, a DOT Highway Maintenance Supervisor II. Regardless, the absence of a report on these DOT databases does not resolve the issue to Defendant's benefit. I found Mr. Janes' accounts of the two incidents, and specifically his telephone report of the earlier incident to an individual at a listed DOT phone number to be fully credible and worthy of belief.
To the extent that Defendant speculatively implies the potential bias of Robin Janes because of the business relationship between Claimant and BanD Auto, it is rejected. To reiterate: the testimony of Mr. Janes is credible. I find that his telephone call placed the Defendant on actual notice of the pothole, ostensibly a dangerous condition. Moreover, such actual notice was provided in a sufficient period of time to have allowed Defendant through its Department of Transportation to have repaired such pothole.
I next examine whether this pothole constituted a dangerous condition. The pothole was estimated by Mr. Janes, after the Volkswagen accident, to be 5" or 6" deep. Claimant offered his description and photographs with measurements (see Exhibits 1-7 and 12, as well as Exhibit A). There was some dispute/disagreement about the dimensions of the pothole, as Claimant testified that his photographs taken on the day following the accident show the pothole. Exhibit 2 shows the pothole in proximity to the curb. Exhibit 4 shows a yardstick at the bottom of the pothole to the top of the curb reflecting a distance of approximately 4". Exhibit 5 shows a tape measure case on its back, with an unmeasured dimension at the bottom of the pothole at its edge abutting the roadway from the curb. However, I found Exhibit 1 to best reflect the depth of the pothole below the road surface. That photograph shows a motorcycle tire in the pothole abutting the curb with a yardstick in the pothole up against the tire on the side away from the curb. The yardstick shows a measurement of the depth of the pothole below the road surface of approximately 1". That depth, as testified to in the record by Mr. Carmichael, the DOT Highway Maintenance Supervisor II, seems to be the most accurate measurement. Mr. Janes' estimation of a depth of 5" or so seemingly fails to account for the height of the curb reveal.(1) However, even at a depth of 1" to 1¼" below the curb reveal, Mr. Carmichael, who actually filled the potholes along the curb line with "cold patch" within a day or so after having gotten notice of Claimant's accident (see Exhibits A and B), acknowledged on cross-examination that potholes in the roadway constitute a dangerous condition. Accordingly, given the damage caused to the Volkswagen and that of the instant accident, I find that the pothole constituted a dangerous condition.
The State of New York has a nondelegable duty to maintain its roadways 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 (see Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892, supra) and that such negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020).
Accordingly, I find here that the Defendant was on actual notice of a dangerous condition, to wit, a pothole, and that the negligent failure to have corrected the problem despite having an adequate period of time to have done so after having been given actual notice, was a proximate cause of the Claimant's accident. To the extent that the Defendant raises, for the first time in its reply memorandum of law, an inference that it may be protected from liability by virtue of Highway Law §58,(2) it is rejected (see Adamo v State of New York, UID #2005-029-534, Claim No. 100496, Dec. 1, 2005, Mignano, J.; see also Millis v State of New York, UID #2001-005-513, Claim No. 91107, Motion No. M-61191, Apr. 26, 2001, Corbett, J.; and Nationwide v State of New York, UID #2007-044-005, Claim No. 104520, Apr. 2, 2007, Schaewe, J.).(3)
This, however, is not the end of my inquiry. Claimant is a very experienced motorcycle operator, and the roads were clear and dry and he has a duty to drive with care and to see readily observable road conditions. Indeed, as I noted in Burroughs v State of New York (UID #2007-013-515, Claim No. 106772, Dec. 31, 2007): "...this was an unwitnessed accident, and I have only Claimant's testimony as to his speed... as he neared the intersection [and he] too bears some culpability for his speed, or the sharpness of his turn, and inattentiveness in failing to observe the pothole...." Additionally, in Burroughs there was an unlit intersection at night, contrasted here to daytime with seemingly unfettered visibility.
Adding to this, the State's motorcycle expert, Dennis Toaspern, having reviewed Claimant's depositions, the photographs in evidence, the police report and the interrogatories and having visited the scene, opined with a reasonable degree of certainty that Claimant made contact with the curb cut and shoulder at too shallow an angle when his tire contacted the curb, and he had a "bad lean." It should be noted here that Mr. Carmichael described a typical curb reveal at perhaps 6", but that there is a thinner reveal tapering to 2" at a curb cut for a parking lot. He opined that Claimant should have entered the parking lot at a steeper angle with less of a lean angle, and that the accident was avoidable with a proper lookout at the speed noted, which Claimant testified was about 5 mph as he slowed to make the turn. Claimant bears some comparative responsibility for this accident.
Therefore, based upon the evidence before me and upon due deliberation, I find the Defendant is 60% responsible for the accident and that Claimant bears 40% of the responsibility.
All motions not heretofore ruled upon are now denied.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. This claim will be scheduled for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
January 14, 2010
Rochester, New York
PHILIP J. PATTI
Judge of the Court of Claims
1. A curb reveal was described as the height of the granite curb above the asphalt, which was installed at a depth of 1" to 1¼".
2. This issue is raised almost as an afterthought in footnote "3" thereof and was never raised in the answer or argued before the Court.
3. Decisions and selected orders of the New York State Court of Claims are available on the Internet at www.nyscourtofclaims.state.ny.us.