New York State Court of Claims

New York State Court of Claims
GREVELDING v. STATE OF NEW YORK, # 2010-018-137, Claim No. 109855

Synopsis

Based upon all of the evidence presented, the Court does not find the State was negligent for failing to remove the accumulated snow on the Park Street Bridge before Mr. Rhoades' accident, and as to the duty to warn of the dangerous condition, placement of a variable message sign on this stretch of highway would have been difficult and no message could have been provided which would have given more information than Decedent had already experienced traveling from Tully that evening.

Case information

UID: 2010-018-137
Claimant(s): PETER E. GREVELDING, JR., as Executor of the Estate of JASON M. RHOADES
Claimant short name: GREVELDING
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 109855
Motion number(s):
Cross-motion number(s):
Judge: DIANE L. FITZPATRICK
Claimant's attorney: MACKENZIE HUGHES, LLP
By: Arthur Wentlandt, Esquire
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Roger B. Williams, Esquire
Michele M. Walls, Esquire
Assistant Attorneys General
Third-party defendant's attorney:
Signature date: October 20, 2010
City: Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant seeks damages for the wrongful death and conscious pain and suffering of Jason Rhoades as a result of a one-car accident on the elevated portion of New York State Route 81 northbound over Park Street in the City of Syracuse on January 23, 2004. Mr. Rhoades lost control of his vehicle while traveling in the middle lane with a trailer and snowmobile attached to his 2002 GMC Envoy. He began having difficulty controlling the trailer as he drove up the Park Street Bridge (a/k/a Route 81 Bridge) and, ultimately, his Envoy went up the snowbank and over the snow-covered concrete barrier on the far right side of the highway, landing on its roof 36.3 feet below. The trailer remained on the edge of the barrier. Mr. Rhoades was pronounced dead at the scene.

The claim alleges that the State was negligent: in its design and maintenance of the concrete barrier; in formulating and/or adhering to maintenance policies for the Route 81 Bridge; and in failing to remove snow and ice from the bridge's driving surface and shoulders. The claim also alleges that the State failed to warn drivers of the icy road surface and ramping potential, failed to control traffic on the Route 81 Bridge by not closing the bridge and/or by not reducing the speed. The claim asserts that the State had knowledge of the specific dangerous condition on the bridge and failed to warn motorists of the slippery road conditions and/or the ineffectiveness of the jersey barrier. This Decision addresses only the issue of the State's liability.

Jason Rhoades was born on September 8, 1975, and was 28 years old at the time of his accident. He was married to Isabella Rhoades and had two children, Luke, then age 21 months, and Amelia, then age 12 weeks. On January 23, 2004, Mr. Rhoades arrived at his home in Tully, New York, early from work, as he planned to travel to Montreal, Canada, to go snowmobiling with relatives of his wife. Mr. Rhoades was planning to arrive in Montreal after midnight, according to Mrs. Rhoades. The GMC Envoy he was driving had an automatic transmission and the capability of either two-wheel or four-wheel drive. Mr. Rhoades left his home shortly after 7:00 p.m., heading north on Route 81.

Christopher Cassoni testified that he and his wife were driving north on Route 81 that evening from the City of Syracuse to Mattydale where they lived. He described the conditions as snowy, cold, wet, and dark; the road surface was slippery. At approximately 8:00 p.m., he was traveling on the Route 81 Bridge over Park Street, driving about 45 - 50 mph when he passed a black GMC Envoy, towing a trailer with a snowmobile in the center lane. Mr. Cassoni estimated the Envoy's speed at 40 - 45 mph. He had been following the Envoy for about one-half mile and noticed the driver was having difficulty controlling his vehicle and trailer which was why Mr. Cassoni wanted to pass him. After doing so, Mr. Cassoni watched in his rearview mirror as the vehicle became more erratic as the driver seemed to overcompensate for the swing of the trailer. Mr. Cassoni said he saw the brake lights flash as the vehicle drove up the snow piled in front of the right concrete barrier and then go over the bridge. The trailer was left on the bridge, hanging over the barrier. Mr. Cassoni estimated the Envoy's speed at 25 - 30 mph and thought it was perpendicular to the barrier when it went over.

In case he could help, Mr. Cassoni got off the highway at the next exit and tried to return to the scene. He didn't approach the site, however, because the police had already arrived. He went home and later contacted the Syracuse Police Department to give a statement.(1)

Mr. Cassoni testified that his vehicle was a front-wheel-drive Mazda 626. He had no difficulty navigating the bridge even while passing the Envoy at 50 mph. As he started passing, he moved from the center lane to the left lane and back to the center.

Claimant called Diem Nguyen, who was living in Tully and working at Clinton's Ditch in Cicero at the time of the accident. He was scheduled to start work at 8:30 p.m., and was driving his 1996 Dodge Dakota pickup with two-wheel drive over Park Street on Route 81 North, when he saw a trailer and snowmobile half-resting on the right side barrier. Police were also at the scene. Mr. Nguyen was in the far left lane, traveling about 40 - 45 mph, as he passed the trailer. Between 100 - 200 feet beyond the trailer, Mr. Nguyen's truck slid from the left lane to the barrier on the right side of the roadway.

Mr. Nguyen said snow was piled high against the barrier like a ramp and his truck went up the snow and sunk into it. The front right tire hit the snow and stopped about 1 - 1˝ feet from the barrier. Since he did not have a cell phone, Mr. Nguyen got out of his truck to try to dig it out of the snow. The roadway had been shut down. Mr. Nguyen said the snow was hard in some spots and soft in others but, generally, he could stand on it and look over the barrier. Unsuccessful in freeing his truck, Mr. Nguyen waited. About 1˝ hours later, the police came over and questioned him and learned he had no help coming. Shortly thereafter, a tow truck arrived and pulled him out.

A tow truck driver, Charles Campbell, was called to testify by Claimant. Mr. Campbell received a phone call for a tow truck on January 23, and he drove to the site and noted that the police had closed the highway. An officer allowed him access to the bridge with the cautionary directive to proceed slowly and stay left. He was told to assist the Dodge pickup truck stuck in the snow north of the Rhoades' trailer and then tow the trailer off the bridge deck. The Dodge truck was about 200 feet north of the trailer, stuck in the snowbank on the right side of the road. Mr. Campbell recalled the snow was piled almost to the top of the barrier. The truck was tilted slightly, with the passenger-side tires stuck in the snow, but they came out when Mr. Campbell winched it off. Mr. Campbell then waited until the police finished their work before hooking up the trailer.

Mr. Campbell described the weather, as did the other witnesses, as cold and snowing. Because the police were having trouble with their generator and couldn't light the area, he positioned his truck so his lights would illuminate the area.

In order to winch the trailer, he had to walk up the snowbank and reach out over the concrete barrier. The snow held his weight. He towed the trailer back to his employer's place of business and went home.

Mr. Campbell was asked by both Claimant and Defendant about his truck sliding on the roadway during the winching operations. Mr. Campbell's recollection had to be refreshed for him to recall he was sliding on the bridge, but he attributed it to driving without snow tires.

Defendant called Donald D. Logana, who, on the night of this accident, was on the Hiawatha Street on-ramp which joins Route 81 North on the Park Street Bridge. He was a passenger in his friend's car, and they, along with family members, were on their way home after dinner. Mr. Logana was in the backseat behind the driver, Tom Linda. The weather was terrible in his opinion. It was snowy and windy. As their vehicle entered Route 81 North,(2) other vehicles were approaching on their left and he advised Mr. Linda to go slow as they were going to merge left. Mr. Logana noticed one of the oncoming vehicles was "unstable."(3) He saw the driver lose control of the vehicle, turn sideways, facing east, hit the jersey barrier and go over. To him, it appeared that the vehicle hit the barrier at a 90 angle. Mr. Logana said it appeared to him that the vehicle stopped at the apex and he thought it was going to be fine, then it went over - as if in slow motion. The vehicle did not project out but just dropped off the barrier.

Mr. Linda stopped as soon as he could along with other vehicles traveling on the bridge at that time. Mr. Logana did not notice the trailer until they got out of the car. Another man was already on the snowbank when Mr. Logana and Mr. Linda approached, and he waved the others away saying it was "soft" on the top and unstable. The police arrived, took their names, and sent everyone home. The police spoke with Mr. Logana later that night.

Syracuse Police Officer Lonnie Dotson, Jr., investigated Mr. Rhoades' accident. Officer Dotson is a member of the Accident Investigation Team in the Traffic Division and had been doing accident reconstruction for approximately three years at the time of this accident. He testified that he and Officer Callahan investigated the accident scene on the bridge while Officers Bulinski and Boris investigated the scene where the vehicle came to rest in the ravine.

Based upon Officer Dotson's investigation, he detailed the roadway where the accident occurred. Route 81 North is part of a divided highway composed of concrete. There are four northbound lanes near the area where Mr. Rhoades' vehicle left the Park Street Bridge. The roadway at this point is elevated above the Liverpool/Onondaga Lake Parkway exit. The far-right (east) lane is an access merge lane for vehicles entering onto the highway from Hiawatha Boulevard. There is a 10-foot-wide right (east) shoulder. The shoulder had accumulated snow with dimensions of 5 feet out from the shoulder, and a 6-foot hypotenuse up to the height of the snowbank at 3.5 feet. This created a 35 positive grade. The roadway between the snowbank on the left, in front of the median concrete barrier, and the snowbank in front of the right concrete barrier was 59 feet wide. This measurement was taken some distance south of where Mr. Rhoades' vehicle vaulted the barrier and closer to the reference point used to coordinate all of the accident scene measurements.

Officer Dotson testified that he saw that tire marks led directly to the snowbank in front of the right barrier, and then the tire tracks could be seen at the top of the snowbank where Mr. Rhoades' Envoy left the roadway. Officer Dotson calculated that Mr. Rhoades was traveling 25 mph when his vehicle left the roadway. At the time, the roadway was icy and snow-covered. It was snowing lightly that night and the temperature was 10F.

After a complete investigation of Mr. Rhoades' accident, Officer Dotson filed a report on February 2, 2004,(4) which was a compilation of all the information gathered by all of the officers. According to Officer Dotson, several factors involving Mr. Rhoades' vehicle contributed to the accident, but a direct cause was the vehicle riding up the 35 positive grade of the compressed snowbank along the east barrier and falling into the ravine below.

Officer Bulinski assisted Officer Dotson at the scene with taking measurements. After working at the lower level, Officer Bulinski went to the bridge and observed the scene. He testified that snow had accumulated on the right shoulder to the top of the barrier and it was hard-packed and icy. The temperature was 10F, and it continued to snow while the police processed the scene. The snowfall was enough to cover the road surface. Officer Bulinski measured the snowbank and made a hand-drawn diagram of the snowbank which was made part of the police report.(5) In his opinion, the Rhoades' Envoy would have been redirected onto the roadway if the snow had not prevented it from impacting the barrier.

The police had the Envoy towed to the Syracuse Police Department garage where one of their mechanics, the garage superintendent, Bruce L. Clarke, inspected it. He testified that his inspection would parallel a New York State Inspection in checking the safety features of the vehicle. This was done as part of the police department's routine investigation into the accident.

The inspection was performed on January 27, 2004. Mr. Clarke found that the rear tire treads were marginal. The minimum requirement to pass a New York State inspection is 2/32 of an inch, and the rear tires measured 2/32 and 3/32 of an inch respectively. The front tires had areas where the tread was less than 2/32 of an inch. Initially, he opined that this vehicle would not pass inspection; however, after being shown the actual inspection requirements, he changed his opinion saying the tires would technically pass inspection. However, based upon his experience and in his judgment, he would not have passed this vehicle.

Mr. Clarke testified that the vehicle was in two-wheel-drive mode when he inspected it, although capable of four-wheel drive. There was no way to tell if that setting was changed after the accident.

By all accounts, it was snowing at the time of the accident, with blowing snow, and the temperature was around 10F. The weather had been harsh during January 2004, and records for the previous 83 years showed that month to be the fourth snowiest and sixth coldest on record. By January 23, 45.8 inches of snow had fallen, with an average snow depth of 19 inches.(6) Beginning on January 19, 7.3 inches of snow fell, with freezing fog and blowing snow, with winds averaging 13.9 mph. On January 20, 3.7 inches of snow fell, with freezing fog, mist, haze and blowing snow, and wind speeds averaging 11.8 mph. On January 21, .9 inches of snow fell, with mist and wind speeds averaging 6.2 mph. On January 22, 5.8 inches of snow fell, with freezing fog and blowing snow, with winds averaging 19.5 mph, with gusts up to 51 mph.(7) On the day of the accident, a total of 5.6 inches of snow fell and it snowed continually throughout the day. There was freezing fog, mist and blowing snow, with an average wind speed of 14.4 mph.

Although the majority of weather data in evidence originates primarily from Hancock International Airport, which is 4 miles northeast of the accident site, there is no evidence to suggest the data was not representative of the weather at the site of the accident. The local "AccuWeather" forecast and the forecast from WIXT(8) are provided to the local Onondaga East Residency of the New York State Department of Transportation (hereinafter DOT) and accurately predicted the actual weather for Friday, January 23, 2004. The forecasts are used by the Residency to prepare for snow events before they begin, including salting and sanding. The forecasts also dictate the implementation of 12-hour work shifts.

Claimant produced Dr. Joseph P. Sobel, a meteorologist employed by AccuWeather, Inc., a private company that provides weather forecasts and data to clients worldwide. Dr. Sobel used data from Hancock International Airport as well as Penn Yan, Utica, Binghamton and cooperative weather observers. He also identified the weather forecasts sent to the DOT on January 22 and 23.(9) His testimony and report(10) focused on periods of time when snow was falling at a rate of 1.1 inches per hour or greater.(11) Starting on January 5 through January 8, a total of 5 inches of accumulated snow fell. Then, starting again on January 16 through January 19, there was accumulating snowfall every day. Dr. Sobel noted that between January 5 and 23, there were only two days (January 9 and 10) when there was no measurable snowfall. After starting the month at 60F on January 3, the temperature from January 5 through 31 plummeted and was only barely above freezing on four days. Most of the snowfall during the month was due to lake effect snow that moved through the area. Lake effect snow results in bands of localized snow, 3 to 10 miles wide, which can be very heavy and fluctuate north to south and hour to hour. This means conditions and snowfall could vary widely across the region. He did not address the issue of blowing snow or any roadways outside the lake effect bands.

The State also had a meteorologist testify. Phillip D. Falconer is a Certified Consulting Meteorologist. He compiled a number of exhibits containing forecasts and actual weather conditions for the Syracuse area at various times during the month of January 2004. He gathered information from various sources including AccuWeather, WIXT TV, and the National Weather Service, specifically for Onondaga County, showing the forecasts for January 22 and 23, 2004.(12) For January 22, the forecasts all predicted heavy snowfall accumulations up to 2 feet with blowing and drifting snow. Heavy snows and snow squalls were also predicted for the entire day of January 23. Temperatures were expected to be as low as -10F. Both WIXT and AccuWeather provided DOT with these forecasts.

Much of Mr. Falconer's testimony was similar to Dr. Sobel's regarding the actual weather conditions over the relevant period of time.

Maintenance of the Route 81 Park Street Bridge, at the site of the accident, was the responsibility of the Onondaga East Residency of DOT. The Onondaga East Residency is in DOT Region 3 and includes Route 11 or Interstate Route 81 at its western border, to Oswego County as the northern border, Cortland County to the south, and Madison County to the east. Douglas Hill was the Resident Engineer of the Residency at the time of this accident. There were two assistant resident engineers under him, two level two Highway Maintenance Supervisors II (HMS-II positions), and four level one supervisors (HMS-I positions). In addition, there were office personnel and mechanics. In the winter of 2004, the balance of the employees operated the equipment for snow and ice operations. During the winter, the Residency had two shifts: the A-shift worked from midnight to 8:30 a.m. if there wasn't any snow, and to noon if there was snow; the B-shift, from noon to 8:30 p.m. if there wasn't any snow, and to midnight otherwise. Each of the two shifts would usually have an HMS-2 supervisor and two HMS-1 supervisors patrolling the roads, checking conditions and resources.

In 2004, the Residency followed the December 1993 New York State DOT Highway Maintenance Guidelines, Snow and Ice Control (hereinafter Guidelines).(13) In conducting its plowing priorities during a snow event, the Onondaga East Residency would first clear and maintain all of the travel lanes and ramps. Then snow removal would continue to the shoulders and then, finally, any other cleanup on crossovers, intersecting roads and other areas. On cross-examination, Mr. Hill clarified that the shoulders on the bridges with parapet walls would be cleaned up after the crossovers and intersection roads, and were fifth on the priority list.(14) When the snow event was over, other maintenance of the highway system would be performed since snow and ice operations were the first priority. The HMS-II and his workers would determine when snow accumulation on the shoulders needed to be removed.

In describing how DOT uses its manpower during winter months, Mr. Hill noted that the weather forecasts DOT received from sources such as AccuWeather and WIXT TV were very useful. When a storm was predicted, staff was called in to work to ready equipment and begin distribution of a salt or a sand/salt mixture on the roadway even before the storm began.

Interstate highways, including Route 81, are given the highest priority for wintertime maintenance because there is a higher volume of traffic on the interstate system. The average daily traffic count for this section of highway was between 70,000 and 80,000 vehicles. Within the area covered by a residency, each maintenance truck is responsible for a particular route. Nine routes within the Onondaga East Residency involve Interstate 81.(15) Five of those 9 routes cover the Park Street Bridge roadway, northbound.(16)

Mr. Hill testified he did not have the authority to close the highway or temporarily change the speed limit on Route 81. He would only change the speed limit on instructions from the Traffic Engineering and Safety Department. He also could not install a permanent warning sign on his own discretion. He described variable message signs as flat-panel programmable message display boards which can impart up to three lines of eight-character text. The signs are independent equipment towed to a display location and often are used to notify the public of special events or maintenance activities that would impact their routes. According to Mr. Hill, placement of these signs would be difficult in the winter because it is harder to place a sign off a shoulder with snow accumulation. Mr. Hill said it would be inappropriate to use the signs for transient conditions because it would require regular monitoring to make sure the messages remain accurate. DOT would prefer not to provide any information rather than incorrect information.

On cross-examination, Mr. Hill acknowledged that after a second vaulting accident on the Park Street Bridge on January 25, a variable message sign was used. The sign was placed on a city street on one of the overhead bridges facing northbound traffic on Route 81 heading toward the Park Street Bridge.

Mr. Hill was advised of Mr. Rhoades' accident by the dispatcher Friday night. Mr. Hill went to the scene of the second vaulting accident on Sunday, January 25. He noted that he could see the edge lines and pavement markings. Mr. Hill testified that although the shift supervisor has the ultimate responsibility for determining when the snow on the shoulder of a roadway must be removed, it would not be done during a snow and ice event. He said there was no break in the snowy weather of significant duration to allow for the removal of the accumulated snow in the week prior to the Rhoades' accident. After a second similar accident on January 25, the Syracuse Police Department closed Route 81 and directed the removal of all of the snow from the shoulder areas before the road could be reopened.

Mr. Hill explained that echelon plowing was used to remove the snow from the median (left) side of the roadway to the right shoulder. Several plows are staggered from left to right in close succession, moving the snow across the roadway. On January 25, additional trucks were brought in from the Onondaga West Residency to accomplish this snow removal effort. The New York State Police kept the public out of the way of the operation. On that occasion, because of the road closing, only a few plows were used to move the snow over the roadway with each pass. Exhibit GG reflects echelon plowing that occurred on February 1 with the roadway open but with police assistance. Mr. Hill testified that DOT plows could not just plow snow forward off the bridge. The front snowplow blade rotates either right or left, so another method, such as a snow blower, would be required to remove the snow from the shoulder. On January 25, once the snow was moved over to the right-hand shoulder, a large snow blower was used to blow the snow off the shoulder.

The Onondaga East Residency did not have a snow blower large enough for this task so it borrowed a snow blower from another residency. A smaller snow blower the Residency had was also used. The region has a total of five large snow blowers which are mostly concentrated in Oswego County. The large snow blower is a self-contained unit that travels slowly, requires two operators, and must be transported on a flatbed truck to the location where it will be used. If the snow cannot be blown safely off the roadway, DOT would contract for the use of dump trucks since DOT trucks are fitted with equipment to spread salt and sand which cannot easily or quickly be dismantled. Snow blown into the dump trucks would then be trucked off-site. No dump trucks were needed for the snow removal at the Park Street Bridge on January 25, because the snow was blown off the shoulder in front of the snow blower until a point was reached where the snow could be blown completely off the roadway and shoulders. Although Mr. Hill could have requested additional manpower or equipment during January 2004 and prior to January 23, he did not do so.

The snow removal process on January 25, 2004, took approximately seven hours to accomplish with the highway closed. After the snow was removed from the front of the parapet walls, the Syracuse Police Department reopened the roadway.

On cross-examination, Mr. Hill noted that the Equipment Operator Snow and Ice Manual(17) reads that after the pavement and ramps are cleared, the full width of the shoulder should be plowed. The Manual also indicates that accumulated snow should be plowed back as far as possible to provide snow storage space for future storms, which it indicates can be done by plowing high snowbanks with the wing plow elevated. The Guidelines reflect that pushing back the snow onto the shoulder should be done during regular work time.

Mr. Hill observed the snowbanks on the bridge shoulder on January 25, after the second accident. It was his opinion that there was still sufficient space to store additional snow at that time. He also felt that the accumulated snow was not a dangerous condition.

The day after Mr. Rhoades' accident, on January 24, Carl Ford, the DOT Regional Transportation Maintenance Engineer for Region 3 responsible for snow and ice management, and highway and bridge maintenance for the entire region, drove to the scene at 4:00 a.m. to take a look at the bridge. He noted snow accumulation on the shoulders and a light dusting of snow on the driving surface. The shoulder snow accumulation did not extend into the driving lane. He then spoke to Mr. Randy Durate, the Onondaga East Residency Supervisor on duty that day, about the accident. Mr. Ford learned that Mr. Rhoades' accident was a fatality and that the residency was continuing snow and ice removal operations as there was still snow accumulation in the travel lanes.

Raymond McDougall was the Assistant Regional Traffic Engineer in the Traffic Engineering and Safety Group at the time of this accident. His department was responsible for all of the traffic control devices (i.e., signs, signals, markings) for the 1,500 miles of State Highways in Region 3. Traffic engineering studies are conducted by this office. His office also maintained a "location file," which is a folder containing any studies, complaints, or other information about a particular segment of the highway system divided by county, town, and highway number. Records are maintained in the location file for at least 10 years. Mr. McDougall reviewed the location file for the Park Street Bridge location of Route 81 North and found no complaints or correspondence from elected officials regarding this section of highway. There were also no references to any accidents other than Mr. Rhoades' accident and the second vaulting accident on January 25.

Mr. McDougall's department determines the appropriate speed limit on any stretch of highway within the region, and it can create temporary speed reductions. The only circumstance where a temporary speed reduction zone could be created is in a work zone for the protection of the workers on the highway. He had never seen a speed reduction due to weather conditions. In his opinion, 55 mph was the appropriate speed limit for winter driving conditions on the Park Street Bridge section of Route 81.

Portable variable message signs also fall under the jurisdiction of Mr. McDougall's department. The use of these signs is discretionary under the MUTCD (17B NYCRR § 201.3). Mr. McDougall testified that the signs are difficult to place on an interstate highway, particularly in winter, and they can be a potential hazard to the traveling public. The signs are typically used to notify the public of major events, i.e., graduation at Syracuse University, the New York State Fair, or to introduce a new signal device. Although it is possible to create a message about unusual driving conditions, to do so is not necessarily prudent. The pros and cons of using the variable message sign would need to be weighed. In Mr. McDougall's opinion, a variable message sign would not have been appropriate to advise additional caution on the Park Street Bridge or to warn of the winter driving conditions.

After the two accidents - Mr. Rhoades' on January 23, and the January 25 accident -Duane Amsler, Defendant's expert, requested a State survey be done to find out about other vaulting accidents.(18) The request for information went to Robert Selover, the Director of the Transportation Systems Maintenance Bureau of the DOT, who testified on Claimant's case. Mr. Selover sent e-mails to the Regional Maintenance Engineers in all ten regions of the State, and received responses from all regions except 7 and 8. Region 3, which includes the Syracuse area, did not respond directly to the e-mail because it had responded by other means.

Based upon the survey responses, there were at least ten vaulting accidents before the Rhoades' accident between 1994 and January 2004. Few details are known about some of the cases. The accidents from which the most information is available involved lawsuits in the Court of Claims. The survey responses included:

1. Region 1 (Albany area)

January 27, 1994

2. Region 2 (Utica area)

December 31, 1997

3. Region 3 (Syracuse area)

February 9, 1994

4. Region 4 (Rochester area)

January 19, 1994

January 4, 1999

5. Region 9

January 25, 1999

The only accident before Mr. Rhoades' accident in the Syracuse Region was 10 years earlier and involved Anne Vislosky.(24) Mrs. Vislosky testified on behalf of Claimant, describing her accident which occurred on February 9, 1994. As she was driving south on Route 81 over the Park Street Bridge, she lost control of her vehicle on ice. Her vehicle ramped over the plowed snow in front of the bridge parapet, vaulted onto the parapet wall where it teetered for several seconds before falling and landing on its roof. Mrs. Vislosky survived but was seriously injured.

Marvin v State of New York,(25) the most recent case before Mr. Rhoades' accident, was in Region 9 and involved a fatal vaulting accident where the vehicle struck a snow embankment in front of a guiderail and became airborne, landing upside down in the Otselic River. Snow and ice removal was not raised as an issue in that case although the Court found the snowbank was a proximate cause of the accident.

David Lamanna, a Highway Maintenance Supervisor in Albany County, Region 1, also testified and knew of two to three other accidents that may have been similar to this case, but he had only limited information about the accidents. A couple of the accidents did involve some accumulation of snow and ice in front of some type of barrier. One accident occurred on January 17, 1999.

In Region 4 there was another vaulting accident, referred to in the Cartwright Decision,(26) which occurred only hours before the Cartwright accident, at the same location, although few details are known.

EXPERT TESTIMONY

Claimant called Barry R. Galowin, a licensed Professional Engineer in New York State employed by Schneider Engineering. He consults on accident analyses, traffic engineering, site development and municipal issues. Prior to this, he was an engineer with the New York State DOT from 1969 until his retirement in 2003, primarily in the Highway Maintenance Division, Region 10 on Long Island. He has a bachelor's degree from Syracuse University in Forest Engineering. In preparation for his testimony he visited the accident site and reviewed numerous documents related to the case as well as DOT and Federal Highway Administration (FHWA) documents. Mr. Galowin testified that the purpose of the parapet wall as a bridge barrier was to retain vehicles on the bridge and at low angles of impact, 15 or less, and redirect the vehicles back onto the roadway with minimal damage. Mr. Galowin opined, within a reasonable degree of engineering certainty, that a GMC Envoy traveling at 25 mph and striking the bridge barrier at a 45 angle would be retained on the bridge although the vehicle would likely sustain damage, and the driver, injuries. However, according to Arthur Yannotti, Director of the Structures Design Bureau for DOT, the actual effect on the vehicle and driver and the effectiveness of the barrier at that high of an impact angle has not been tested.

In order for the parapet wall to perform, even with its design parameters, the errant vehicle has to make contact with the barrier. Mr. Galowin testified that snow accumulation in front of the barrier degrades its functioning. He opined with reasonable engineering certainty that the accumulation of snow and ice in front of the concrete barrier on the Park Street Bridge severely degraded its ability to redirect Mr. Rhoades' vehicle and resulted in it vaulting off the bridge.

Mr. Galowin noted documents(27) from the FHWA from 1979 and 1991 which were respectively forwarded to all New York State DOT Regional Directors and to the DOT Director of Highway Maintenance, advising that packed snow in front of traffic barriers "critically"(28) reduces the effectiveness of the barrier and introduces a potential for vaulting when the snow accumulation is piled at two-thirds the height of the barrier.(29) Mr. Galowin indicated the risk for vaulting was known, generally, by highway engineers in 2004.

It was Mr. Galowin's opinion that despite the almost continuous accumulating snowfall from January 6, 2004 through January 23, 2004, there were opportunities for the State DOT to take some remedial measures which could have reduced or eliminated the accumulation of snow in front of the right parapet wall.

First, Mr. Galowin opined that the accumulation of snow on the shoulder could have been pushed back further creating a vertical face which would have eliminated the ramp effect of the snow and opened up more of the shoulder for vehicle recovery. Mr. Galowin pointed to the accumulation of snow against the left median barrier, in front of the first snowplow, shown in the picture on unpaginated page 6 of Exhibit GG, which shows the echelon plowing operation conducted by DOT on February 1, 2004.

The picture reflects significant accumulation of snow - over the top of the median barrier, however, the base of the snowbank to the top has a sharper, less graduated angle than the 35 angle that existed on the snow accumulation that Mr. Rhoades' vehicle mounted. The snow accumulation in front of the right parapet wall at the scene of the accident, according to Mr. Galowin, evidences plowing that results in a "plume or wave" of snow. Mr. Galowin was of the opinion that remedial plowing to create a more vertical face could have been undertaken by the residency as staffed on January 23, 2004 before the Rhoades' accident.

Ultimately, all the snow could have been removed from the front of the parapet wall using large snow blowers, dump trucks, and plows. Additional equipment could have been requested which, if needed for safety, would have been provided. Getting the additional equipment from within the region, Mr. Galowin estimated, would take roughly a day. If the equipment was being supplied from outside the region, the request would have to be made to Albany and it would take two to three days to receive it. Rental equipment could have been obtained right away. Additional equipment could have also contributed to the remedial plowing.

Mr. Galowin indicated that, in the meantime, before the snow could be removed, the State could have warned of the unavailability of the shoulder through the use of a variable message sign. Mr. Galowin identified at least two locations where the sign could have been placed.

Mr. Galowin believed that given the other vaulting accidents across the State, DOT should have reviewed its snow and ice removal policies and trained personnel to recognize the risk of vaulting posed by snow accumulations at two-thirds the height of the concrete barrier. All the techniques and options proffered by Mr. Galowin for removal of snow in front of the right parapet wall, he opined, could have been utilized by DOT prior to January 23, 2004.

On cross-examination, Mr. Galowin acknowledged that DOT did not have a duty to remove all of the snow in front of the bridge parapet walls. He also testified that to obtain a vertical face to the snow accumulation, the main snowplow blade needed to be used as the wing plow does not create a vertical face. The process of remedial plowing, Mr. Galowin indicated, could be undertaken during routine plowing - packing the snow to the right. It requires snow that is malleable and not frozen. If the snow is more solid, this plowing will not work. Mr. Galowin did acknowledge that there really was no warning that could have been provided by a variable message sign that would have informed Mr. Rhoades of any condition of which he was not already aware by the time he reached the Park Street Bridge from Tully. Mr. Galowin also acknowledged that the condition of the tires on the GMC Envoy and the off-center placement of the snowmobile contributed to this accident.

The State called Mr. Duane Amsler as an expert witness. Mr. Amsler has a two-year associate's degree in engineering from Hudson Valley Community College and 36 years of experience with DOT. Just prior to his retirement in 1996, he was the manager of the System Operation Section of the Highway Maintenance Division and was responsible for the Snow and Ice Control Program, training and research. Prior to that position, he was the Program Engineer for Snow and Ice Control from 1987 through 1994, and was involved with Snow and Ice Control research during this time. Since retirement, he has worked with the National Cooperative Highway Research Program, which does research for the American Association of State Highway Traffic Officials (AASHTO). Mr. Amsler participated in the development of AASHTO Snow and Ice Guidelines.

In 1990, Mr. Amsler was involved with the creation of new Snow and Ice Control Guidelines for DOT. He worked with a committee of employees from around the State who had a particular interest and experience in snow and ice removal to develop the official Snow and Ice Control Guidelines adopted by the DOT in December 1993.(30) These Guidelines were intended to provide guidance for snow and ice control with local interpretation and discretion. The Guidelines were applicable in January 2004. Mr. Amsler has drafted similar Guidelines for the New York State Thruway Authority and the States of Arizona, Connecticut, and Washington.

In describing Route 81 North at the location of the Park Street Bridge, Mr. Amsler noted that there are three driving lanes and a fourth lane that starts as an on-ramp from Hiawatha Boulevard, and each lane is 12 feet wide. The left shoulder at this location is 8 feet 9 inches, and the width of the right-hand shoulder is 10 feet. Mr. Amsler described the roadway as being straight, with drainage to the shoulders and off the travel lanes. The shoulders could accommodate a lot of snow storage. Plowing of the roadway involves moving snow from the passing lane to the left-hand or median side of the highway, and the snow in the center and in the driving lanes, and in this case the on-ramp lane, is plowed to the right side of the highway.

The goal of the Guidelines was to "provide a highway that is passable and reasonably safe for vehicular traffic as much of the time as is possible within the limitations imposed by climatological conditions and the availability of equipment, material and personnel resources."(31) It is recognized that due to resource limitations and climatological conditions, pavement surfaces will be snow-covered and/or slippery some of the time. Vehicle operators must exercise caution and drive appropriately in these conditions. Section 5.1304 reflects that staff and equipment are provided to accommodate a design rate of snowfall of 1.1 inches per hour or, in other words, the amount of snow that will accumulate on the road between plow cycles which DOT has the staffing and resources to address.

In accordance with the Guidelines, when snow starts falling, the plows go into their cyclic removal and ice treatment operations until "the pavement is deemed safe."(32) Subsection A of § 5.3307(33) provides for the order of snow cleanup from other special areas after the travel lanes are safe, specifically shoulders, crossovers, gore areas benching and pushing back operations. Subsection B of § 5.3307 outlines the removal of accumulated snow from bridges and provides:

"When possible, accumulated snow should be removed from locations that could melt during the day, drain across the deck, and freeze at night. Bridge drainage features should be cleared to facilitate the designed discharge of water. Also, bridges having features to prevent plowed snow from leaving the bridge should have the accumulated snow removed to make room for the next storm."(34)

Mr. Amsler explained that as long as the plowed snow did not impact the driving lanes, i.e., was not melting across the travel lanes with the potential to refreeze, and as long as there was sufficient storage room on the shoulder for any additional snow in the event of another snowstorm, removal of the snow was not necessary. Given the design of Route 81 North, there was no concern about melting snow running onto the driving lanes. The shoulders were also very wide to accommodate the storage of snow. The determination of whether there was sufficient room on the shoulders for snow storage for the next snow event was a discretionary local determination typically made by the HMS II on duty or the Resident Engineer. Based upon the measurements of the roadway between the snowbanks from the police investigation of the accident, the width of the shoulders, and the pictures of the scene, Mr. Amsler opined that there was sufficient storage space on these shoulders to accommodate additional snow. The primary purpose of the shoulder in the winter is snow storage, and any other purpose for the shoulder becomes secondary.

Mr. Amsler testified that at the time he was working on developing the Snow and Ice Control Highway Maintenance Guidelines for the DOT in the 1990's, he was aware of federal reports which indicated that the plowing of snow up against bridge railings caused or contributed to traffic accidents, specifically vaulting. Mr. Amsler knew of only two vaulting accidents in New York State due to snow plowed against a bridge barrier at the time he was developing the Guidelines - one on the New York State Thruway, and one in Region 9 relating to a guiderail. Given the rarity of these accidents at the time, the committee drafting the Guidelines did not feel that it would be fiscally responsible, given the enormous investment, to try to remove the snow from the many miles of barriers and bridge decks around the State after each snowstorm. DOT simply lacked the resources to engage in such an effort. Removal of the snow requires significant equipment and personnel and involves lane closures. There are also risks to both the traveling public and DOT workers. When removal needs to be done, it is best accomplished on off-peak hours and weekends.

To remove the snow from the shoulders of the Park Street Bridge, Mr. Amsler testified there were a couple of approaches. First would be removal using a snow blower, a loader and trucks to haul the snow away. If using the snow blower and the area below the bridge allows, the snow could be blown off the shoulders. Disposal near the site is dependent upon the features below the bridge such as dwellings, businesses, and sensitive waterways. Alternatively, the snow can be moved off the bridge by echelon plowing, ultimately pushing the snow to a clear area or again using the snow blowers, loaders and trucks to haul the snow away. Echelon plowing, particularly removal of snow from the left median barrier, results in a snow-covered road situation. Mr. Amsler indicated that just to remove the snow from the bridges within the City of Syracuse would require about a full day's work. Based upon the existing weather conditions from January 6 through 23, 2004 and the weather forecast, Mr. Amsler opined there was not a sufficient opportunity to remove the snow before this accident. He also opined that the Onondaga East Residency snow removal efforts complied with the Guidelines.

In response to Mr. Galowin's suggestion that the snow on the shoulder could be addressed by remedial plowing to create a vertical face, Mr. Amsler testified on direct that he had never seen it done and that it would require snow which can be compacted or it would not maintain its shape. The lower the temperature, the less compact the snow would be - and in this case, it was quite cold.

In preparation for his testimony in this case, Mr. Amsler requested the same vaulting accident data he had obtained from the State DOT in the 1990's while developing the Snow and Ice Removal Guidelines. Based upon his survey of the Resident engineers from the various locations across the State, 17 vaulting type accidents were identified from 1984 through 2007, although not all involved snow and ice(35) . In Mr. Amsler's experience, the critical components in the vaulting cases involving snow and ice was not the amount of snow and ice buildup but slippery pavement and the impact angle of the vehicle to the barrier.

On cross-examination, Mr. Amsler described how the process of plowing the snow results in making it more compact and harder. He acknowledged that an accumulation of snow and ice in front of the barrier, such as on the Park Street Bridge, would affect the barrier's ability to function and retain the vehicle. Mr. Amsler had no specific information, other than anecdotal, on the effect of the accumulation of snow in front of the barrier or its function. No consideration was given to the risk of vaulting in the Guidelines other than the prioritization of plowing areas.

Mr. Amsler denied any connection between the safety of people in the right-hand traveling lane and the accumulation of snow on the shoulder as long as it does not encroach on the fog line. Exactly when the accumulation of snow on the shoulder can no longer accommodate more snow is determined by the local DOT personnel, but he felt two feet or less of shoulder space warrants removal of the snow. Once that point is reached, Mr. Amsler would remove all of the snow.

The Law

The State has a nondelegable duty to maintain its roadways in a reasonably safe condition under the prevailing circumstances for the traveling public (Friedman v State of New York, 67 NY2d 271, 283; Weiss v Fote, 7 NY2d 579). This obligation extends to provide and maintain adequate and proper barriers along its highways (Gomez v New York State Thruway Auth., 73 NY2d 724, 725; Lattanzi v State of New York, 74 AD2d 378, affd 53 NY2d 1045). The State, however, is not an insurer of the safety of the traveling public; there is no inference of negligence after an accident has occurred, even a tragic accident (see Tomassi v Town of Union, 46 NY2d 91, 97; Boulos v State of New York, 82 AD2d 930, affd 56 NY2d 714; Boyce Motor Lines, Inc. v State of New York, 280 App Div 693, affd 306 NY 801). Claimant bears the burden to prove the State was negligent with evidence showing that it had actual or constructive notice that a dangerous condition existed, yet failed to timely take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892; Rinaldi v State of New York, 49 AD2d 361, 363).

In the field of highway design and planning, the State is accorded a qualified immunity unless the evidence shows the design plan evolved without adequate study or lacked a reasonable basis (Friedman, 67 NY2d at 283; Weiss, 7 NY2d at 589).

Discussion

Claimant questions the reasonableness of the 1993 Snow and Ice Removal Guidelines and argues the Guidelines were not based upon an adequate study. Despite knowledge of the risk of vaulting on hardened snow in front of highway barriers from at least two accidents and warnings from the Federal Highway Administration, no investigation was done to assess the risks associated with storing snow in front of highway barriers, and no guidance was provided for removal of the accumulated snow unless the two conditions set forth in § 5.3307 (B) are present: namely, risk of melting and refreezing on driving surfaces, or insufficient room for additional storm snow storage.

It is Claimant's position that the accumulated snow in front of the Park Street Bridge right barrier on Route 81 North exceeded the height of the barrier and prevented Mr. Rhoades' vehicle from contacting the barrier, negating its retention safety features. The State allowed the snow to accumulate, according to Claimant, within two feet of the edge of the travel lane, violating the State Snow and Ice Control Guidelines. Claimant further argues that many of the State's employees were unaware of the risk for vaulting on accumulated snow despite numerous vaulting accidents around the State - which should have given the State constructive notice of the risk and required the State to at least warn motorists that there was no shoulder. Claimant also argues that the accumulated snow configured as a ramp could have been eliminated - even under the extreme wintery conditions that January - through remedial plowing efforts.

The State defends by arguing that it is entitled to qualified immunity because its snow removal efforts were in compliance with the Guidelines. From January until after this accident, the State's manpower and resources were engaged in ongoing snow and ice removal operations of the travel lanes, leaving it unable to remove the accumulation of snow on the Route 81 North Park Street Bridge. The State also argues that remedial plowing is not a viable option and there is no duty to warn of the normal dangers associated with winter driving.

Additionally, the State claims that Mr. Rhoades' vehicle had tires with significantly reduced tread, it was not in four-wheel drive, his trailer load was off-balance, and he was traveling too fast for the road conditions.

The 1993 Snow and Ice Control Guidelines were formulated by a committee of professionals in the field of ice and snow control from different areas in the State after a two-year effort and consideration of the risk for vaulting known at that time, budgetary constraints, staff and equipment availability, and the features of the State Highway System. In light of this process, the Court is not permitted under Weiss v Fote, 7 NY2d 579, supra, to question, with the benefit of hindsight, the judgment of the engineers and professionals with expertise from around the State who drafted the Guidelines. The fact that a planning decision could have been based on a better, more thorough study does not support a finding that it lacked a reasonable basis or was plainly inadequate. Rather, it is the province of those professionals recognized by Weiss that precludes this Court from substituting its opinion for those with the requisite expertise.

The snow and ice removal efforts of DOT during January 2004, before this accident, were performed in accordance with the 1993 Guidelines. Neither of the conditions demanding removal of the stored snow on the right shoulder was present at the time of this accident. The Park Street Bridge was designed to prevent the drainage of melting snow across the travel lanes, so the first condition was never really a concern at this location. The extent of the snow storage on the shoulders was a disputed issue. It was Claimant's position that there was less than two feet between the accumulated snow and the right travel lane, requiring removal in accordance with the Guidelines and the testimony of Mr. Amsler. Claimant's position rested upon the measurements reflected in the police report, taken by Officer Dotson at the scene, from the point the driver-side tire of the Rhoades vehicle entered the snowbank (Point C)(36) and the point the passenger-side tire entered the snowbank (Point B). Although both points "B" and "C" appear to be at the baseline measurement on the to-scale drawing,(37) point "C" shows a "0.0" easterly/westerly measurement while point "B" shows a measurement difference of 9.1 feet from the baseline.(38) On cross-examination, these distances were called into question because of the 9.1-foot difference between them in the easterly measurement. Officer Dotson also measured the width or drivable portion of the roadway as 59 feet between snowbanks, although the accuracy of this measurement was questioned by Claimant because it was actually taken south of the location where the tires of Mr. Rhoades' vehicle entered the snowbank. Officer Dotson credibly opined that the traversable roadway was the same width at the accident location. Using the 59-foot width between snowbanks on the left and right side of the Park Street Bridge, if the Court were to accept Claimant's position that the snowbank on the right shoulder began within two feet of the travel lane, using the known width of the dry roadway and shoulders (4 lanes, each 12 feet wide; the left shoulder, 8 feet 9 inches wide; and the right shoulder, 10 feet wide), the shoulder on the median side of the roadway would be at least three inches wider than it measures dry.(39) Clearly, there was some snow on the median-side shoulder as well. Moreover, although Mr. Hill testified that there appeared to be less than 2 feet between the edge of the accumulated snow and the travel lane when he went to the scene of the second accident on January 25, 2004, he did not take measurements. The Court, instead, finds the most reliable measurement was Officer Bulinski's depiction of the dimensions of the snowbank.(40) This measurement reflects that there was 5 feet of snow covering the 10-foot right shoulder. This accumulation did not violate the Guidelines or require immediate removal.

The questions now become whether the snow in front of this right barrier constituted a dangerous condition, and if it did, did the State create or have adequate notice of the condition and a reasonable opportunity to eliminate the danger?

At the time of this accident, the Snow and Ice Control Guidelines were ten years old. Even a reasonable highway plan will not shield the State from liability where a dangerous condition was known to exist after the plan was implemented (Friedman, 67 NY2d at 284). The State's duty is a continuing one requiring ongoing evaluation of its highway plans to correct dangerous traffic conditions that are exposed after a plan is executed (id.).

The accumulation of snow at the location of Mr. Rhoades' accident was 3˝ feet high, or over the top of the 34 inch high barrier. The snow extended 5 feet onto the 10-foot-wide shoulder and created a 35 angle from the roadway over the top of the barrier. By all accounts, the snow had a hard-packed core which provided a ramp upon which Mr. Rhoades' vehicle ascended the snowbank and went over the barrier. This condition prevented the Rhoades' vehicle from impacting the barrier and engaging its design feature to retain vehicles on the bridge. Undisputedly, the accumulated snow in front of the right bridge barrier was a proximate cause of this fatal accident. The risk for vaulting and concomitant risk of serious injury from snow piled in front of a roadway barrier was described in the 1979 Federal Highway Safety Memoranda and a factor in at least 10 accidents statewide between 1993 and 2004. Based on all of this, the Court has no difficulty finding that the accumulation and configuration of snow in front of the Park Street Bridge right barrier on January 23, 2004, was a dangerous condition (see also Cartwright v State of New York, supra [Ct Cl, dated Sept.30, 2008, Minarik, J., Claim No. 107161, Motion No. M-74288]).

Yet, the presence of a dangerous condition alone does not establish the State's liability. The Claimant must also show that the State failed to diligently take action to correct a dangerous condition it created or after it was provided with actual or constructive notice of the specific condition (Hart v State of New York, 43 AD3d 524, 525; Valentino v State of New York, 62 AD2d 1086, appeal dismissed 46 NY2d 1072).

There is an argument to be made that no notice is necessary because the Defendant created this snow pile through its efforts at snow removal. Yet, the placement of snow on the side of the roadway is a necessary act in order to clear the travel lanes of snow and ice in this climate, and is in compliance with the Guidelines. It is not the act of plowing or even of storing the snow on the shoulder that creates the dangerous condition since the shoulder is designated for snow storage, rather it is the passive accumulation to an unsafe height and consistency, or nonfeasance in removal (see Tsivitis v Sivan Assoc., 292 AD2d 594; compare Keese v Imperial Gardens Assoc., LLC, 36 AD3d 666 [snow stored on sidewalk contrary to operating procedure]; Cappiello v Johnson, 21 AD3d 921 [plowing snow to side of road where road pitch and drainage system caused melted snow to flow back into the road and freeze]; Gonzalez v City of New York, 148 AD2d 668 ["snow scattering" into city streets may have caused ice to form in roadway]).

Mr. Amsler and his committee were aware of the risk of vaulting on accumulated snow at the time the Guidelines were being developed. In the 11 years between 1993 and the date of Mr. Rhoades' accident, at least 10 vaulting accidents related to accumulations of snow and ice had occurred. This should have provided the State with a general institutional awareness of the risk posed by accumulated snow in front of roadside barriers. However, a general awareness of a dangerous condition does not equate to actual or constructive notice of the specific conditions that caused an accident (see Harjes v State of New York, 71 AD3d 1273; Barrett v State of New York, 71 AD3d 1273; Valentino, 62 AD2d at 1087-1088).

This is unlike a situation where a Defendant is charged with constructive notice of a specific recurrent condition because that Defendant has actual knowledge of the tendency for a dangerous condition to reoccur (see Mazerbo v Murphy, 52 AD3d 1064, appeal dismissed 11 NY3d 770; Lowe v Spada, 282 AD2d 815; Columbo v James River II, Inc., 197 AD2d 760; Alvarez v Mendik Realty Plaza, Inc., 176 AD2d 557; Weisenthal v Pickman, 153 AD2d 849).

Due to inconsistent snow accumulation, precipitating weather conditions, types of bridge barriers and the number of bridges throughout the State, any actual knowledge of the tendency for plowed snow against a barrier to increase the risk for vaulting is too variable to impute constructive notice of the specific condition at this location. Yet, unlike icy conditions which may develop quickly, the accumulation of snow at this location did not occur with one passage of a snowplow. Rather, the accumulation was the result of a pattern of accumulating snow over the course of several days. The gradual buildup of this snowbank should have been readily apparent to the State employees charged with removal of snow and ice from State highways and to their supervisors charged with inspecting the condition of the roadway. However, the accumulation of snow was not an existent hazard from the change in weather on January 5. At some point between January 6 and January 23, the snow accumulation developed into the dangerous configuration that caused Mr. Rhoades' vehicle to vault over the barrier.

Undisputedly, the weather that January 2004 was a model of extremes. Starting in early January, the temperature reached a balmy 60 on January 3. All previous snowfall melted away. Thereafter, on January 5, it turned significantly colder with measurable snowfall every day except two, leading up to this accident. On January 7, 5 inches of snow fell followed by several days of lighter snowfall until January 16. From January 16 through January 20, there was at least a few inches of accumulated snow each day and January 19, four days before this accident, had the most accumulation before the accident of 7.3 inches. By January 21, the accumulated snow depth was 18 inches. Thereafter on January 22, 5.8 inches of snow fell, and on January 23, 5.6 inches fell. However, the snowfall doesn't tell the whole story. For the most part, the average daily temperatures during the period from January 5 through 23, were in the low 20's and teens. Only January 12 and 18 went above 25F. The wind also was a factor during this time frame, with average wind speeds from January 16 (when snow really started to accumulate) through January 23 of well over 10 mph with gusts of up to 30 mph most days. The only days without much wind were January 17 and 21.

Under this continuous snow accumulation on this heavily traveled roadway with no prior accident history, the Court does not find that the State had actual or constructive notice of the dangerous condition at this location as it existed at the time of Mr. Rhoades' accident. However, even if the Court were to find the State created this condition or accepts that the snowbank presented as a dangerous condition for a sufficient period of time before the accident to charge the State with constructive notice, the question then becomes whether the State acted with "reasonable diligence" in maintaining the Park Street Bridge under the prevailing circumstances (see Slaughter v State of New York, 238 AD2d 770; Freund v State of New York, 137 AD2d 908; Valentino, 62 AD2d at 1088; Valentine v City of New York, 86 AD2d 381, affd 57 NY2d 932; Tromblee v State of New York, 52 AD2d 666).

After reviewing the evidence, the Court finds there was no sufficient break in the exigent weather conditions to have permitted the State to remove the snow that had accumulated in front of the barriers. The primary focus for snow and ice removal is, and has to be, keeping the travel lanes as clear and dry as reasonably possible. Between the weather forecasts, the actual snow accumulations, the blowing wind, and the cold - which limit the effectiveness of the melting agents - there was not a sufficient window to engage in echelon plowing and the use of snow blowers and trucks to haul the snow away. Such removal required an intensive effort. Having said this, the Court is nonetheless mindful of the grandeur of the echelon plowing effort depicted in Exhibit GG which took place on February 1. Even a more modest effort would have engaged many plows and other equipment for an extended period of time as all of the snow accumulations in front of all of the bridge barriers and guiderails in the Residency would have to be cleared. Mr. Hill and Mr. Ryan represented the removal of this snow on this stretch of Route 81 in the residency would have taken significant time. Mr. Amsler testified it would take one full day to remove the accumulated snow on just the elevated bridges in the City of Syracuse. It took almost seven hours on January 25 when the road was closed. There was no such stretch of time from January 14 until after this accident. Although there may have been periodic breaks in the snowfall on some portion of days, to assemble the necessary equipment and engage the process, more than a couple of hours of clear weather is necessary. As Mr. Ryan indicated, there needs to be clear roads, good weather conditions, and sight distance. The evidence doesn't support the requisite time frame to engage such an effort and clear the elevated bridge locations in the region. Claimant argues that as a matter of course, plowing the snow to a vertical face so as to eliminate the ramp configuration could have been accomplished even with the severe weather encountered. Claimant, through Mr. Galowin's testimony, suggests this could be done on a regular plowing "beat" without additional equipment. Mr. Galowin testified that to accomplish creating a vertical face, the wing plow must be raised and the snow pushed forward with the front blade. This appears similar to the benching and shelving procedures described by several DOT workers and as a recommended course of action after the travel lanes are clear of snow and ice in § 5.3306 of the 1993 Snow and Ice Control Guidelines. Critical to remedial plowing is the pliability of the snow and the ability to move the snow to a location off the shoulder of the roadway. Mr. Hill indicated the front plow blade does not push snow directly forward, but rotates left or right, and raises the risk of discarding the snow over the parapet wall to the roadway below or leaving some accumulation of snow in the driving lanes. Although mindful that the State's position on remedial plowing may have been colored by its defensive position in this case, this Court is unpersuaded that the State could have and should have used remedial plowing to address the dangerous condition at this location before Mr. Rhoades' accident. This is in part because remedial plowing can create residual risks and Mr. Amsler's testimony that remedial plowing to create a vertical face had never been used. Mr. Galowin, although a credible witness had experience in a less snowy region of the State, was unfamiliar with the number of bridges that would require this type of remedial plowing in this residency, and recognized that an additional snowplow may be needed.

"In discharging its duty of snow removal a municipality, of necessity, must establish a set of priorities. The nature and extent of the measures which it undertakes are important in determining the reasonableness of its response in resolving the ultimate question of whether a sufficient period of time has elapsed so as to charge it with negligence for its action in clearing a specific area" (Valentine, 86 AD2d at 386). Based upon all of the evidence presented, the Court does not find the State was negligent for failing to remove the accumulated snow on the Park Street Bridge before Mr. Rhoades' accident.

As far as the duty to warn of the dangerous condition, placement of a variable message sign on this stretch of highway would have been difficult. Moreover, Mr. Galowin acknowledged that no message could have been provided which would have given Mr. Rhoades more information than he had already experienced traveling from Tully that evening.

After carefully reviewing all of the evidence and the law, the Court finds liability cannot be imposed upon the State. Although no consolation, this was a difficult decision to reach given this tragic accident and the quality of the representation.

All motions not heretofore addressed are now denied.

The claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

October 20, 2010

Syracuse, New York

DIANE L. FITZPATRICK

Judge of the Court of Claims


1. Exhibit 3.

2. This is the entrance to Route 81 North that becomes a fourth driving lane over the Park Street Bridge.

3. All quotes are from the trial transcript unless otherwise noted.

4. Exhibit 3.

5. Exhibit 3, unpaginated page 32.

6. Exhibits 90 and OO.

7. Exhibit TT.

8. WIXT is now 9WSYR.

9. Exhibit YY.

10. Exhibit 86.

11. The DOT Snow and Ice Guidelines (Exhibit A) specify 1.1 inch per hour as a design snowfall rate.

12. Exhibit UU.

13. Exhibit A.

14. The Guidelines required snow to be removed from shoulders on a "Regular Time" basis, unless the accumulated snow would freeze solid. Mr. Hill explained on cross-examination that this meant not overtime. Accumulated snow on bridges, according to the 1993 Guidelines, should be removed when the snow could melt during the day and refreeze on the deck at night and when there is no more room for snow storage in the event of another storm.

15. See Exhibit N and Exhibit 48.

16. See Exhibit N. Exhibit 48, snow and ice plan reflecting routes N-1 through N-5. N-1 would be for the far left lane, N-2, the center lane, N-3, the right lane, and N-4 and N-5 cleared the ramps and N-5 also cleared Onondaga Lake Parkway (Route 370).

17. Exhibit 44.

18. Exhibit 63.

19. The Court of Claims Decision on Smith was received as Exhibit 54.

20. The Court of Claims Decision on Vislosky was received as Exhibit 56.

21. The Court of Claims Decision on Tuchrello was received as Exhibit 55.

22. Cartwright v State of New York, Ct Cl, Sept. 30, 2008, Minarik, J., Claim No. 107161, Motion No. M-74288, UID #2008-031-047.

23. The Court of Claims Decision in Marvin was received as Exhibit 58.

24. Exhibit 56, Vislosky v State of New York, Ct Cl, May 6, 2003, Patti, J., Claim No. 93075,UID #2003-013-503.

25. Marvin v State of New York, Ct Cl, Lebous, J., filed Apr. 19, 2004, Claim No. 103697.

26. See n 24

27. Exhibits 59-60 and see also 97.

28. Exhibit 60.

29. See Exhibit 97, page 8.

30. Exhibit A.

31. Exhibit A, page 1, § 5.0110.

32. Transcript Vol. VII, page 888.

33. Exhibit A, page 12 § 5.3307 (A).

34. Exhibit A, page 12 § 5.3307 (B).

35. As set forth above there were only ten accidents that definitely involved snow and ice.

36. See Exhibit 3, unpaginated pages 21 and 28-29.

37. Exhibit 3, unpaginated pages 21 and 28-29.

38. This would leave roughly 1 foot between the snowbank and the right travel lane.

39. 48 feet (4 lanes X 12 feet each) plus 2 feet (right shoulder not covered by snowbank) equals 50 feet. Leaving 9 feet for the left shoulder that only measures 8 feet 9 inches dry.

40. Exhibit 3, unpaginated page 32.