New York State Court of Claims

New York State Court of Claims
FARRELL v. THE STATE OF NEW YORK, # 2010-030-008, Claim No. 107707

Synopsis

Claim dismissed after trial. Claimant struck by debris on Gowanus Expressway. Claimant alleged that daily movement of barriers to create HOV lanes, and failure to adequately inspect and maintain roadway thereafter, caused her accident.

Case information

UID: 2010-030-008
Claimant(s): JANINE FARRELL
Claimant short name: FARRELL
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 107707
Motion number(s):
Cross-motion number(s):
Judge: THOMAS H. SCUCCIMARRA
Claimant's attorney: ROURA & MELAMED
BY: WALTER ROURA, ESQ.
Defendant's attorney: HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
KRAL, CLERKIN, REDMOND, RYAN, PERRY & GIRVAN, LLP
BY: ROBERT D. MARTIN, ESQ.
Third-party defendant's attorney:
Signature date: May 10, 2010
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Janine Farrell alleges in her claim that the State of New York should be held liable in negligence for injuries she suffered on May 15, 2002 while driving in an eastbound lane of the Gowanus Expressway toward Manhattan. More specifically, shortly after 6:00 a.m. she was driving her vehicle in one of two Manhattan-bound High Occupancy Vehicle [HOV] lanes entering the Gowanus Expressway approximately 1500 feet from the toll booths of the Brooklyn Battery Tunnel when a metal object, later described as likely an old brake shoe from a large vehicle such as a truck [Exhibit 4], struck and broke through the driver's side windshield of her car, hit Ms. Farrell in the face and ultimately rendered her unconscious. This decision relates only to the issue of liability, after a bifurcated trial was held over three days in November 2009(1) and submission of post trial memoranda.

Claimant's theory of liability rests on whether the State of New York should be held liable for an alleged negligent failure to adequately maintain the highway for the safety of the traveling public by keeping the area free of debris which it knew or should have known would collect and foreseeably endanger drivers. Defendant argues that claimant failed to establish by a preponderance of the credible evidence that the State of New York breached any duty owed to claimant, or that any action on the State's part was a substantial factor in causing the accident alleged herein. Specifically, the State contends that the contractor retained by the State to rehabilitate the highway, which involved the opening and closing of HOV lanes on a daily basis, had a reasonable procedure in effect for the inspection of the area. State personnel, too, had reasonable procedures in place for the supervision of such inspections as well as their own inspections, and that there was no proof beyond speculation as to the source of the object that struck claimant's vehicle, including the length of time it may have lain in the roadway if that was the source, so as to provide notice of its danger.

Ms. Farrell recalled little of the morning of Wednesday, May 15, 2002 beyond the first phase of her regular commute from Staten Island along the Gowanus Expressway. That morning she was attending training at the Police Academy, related to her service as a New York City Police Detective with the Organized Crime Investigation Division and utilized the same route. She estimated that she left home for the training at approximately 5:40 a.m. The Toyota Camry she drove - leased by her employer - was in good working condition and the weather was clear. She recalled that construction on the Gowanus had been ongoing since at least September 11, 2001.

Asked to describe the general condition of the two lanes utilized as HOV lanes at that hour of the morning, Ms. Farrell said

"It was a mess . . . there were always things in the roadway . . . like cardboard, rocks, mufflers, hubcaps. There were water bottles, . . . cups. Everything." [T1-96].

She recalled pebbles "always" kicking up from the car in front of hers, "because it was always debris in the roadway . . . you would drive, it would ping off the car." [T1-97]. There were workers in the area wearing hard hats and vests, "walking in the roadway . . . on the other side of the barrier." [T1-98]. A permanent Jersey barrier marked the right side of the right HOV lane, and a moveable barrier was on the left side of the left HOV lane.

As claimant drove on the Gowanus in the left-hand HOV lane, where one HOV lane became two HOV lanes at the Prospect Avenue entrance/exit and the road began to ascend, a bus was driving in the right-hand HOV lane, just ahead of her. She saw a car "[come] right up on the bus's' rear bumper, and then he cut over in front of me and then he drove off. That's the last I remember." [T1-99]. She was "just right before the top of the crest" and had not started a descent down toward the tollbooths for the Brooklyn Battery Tunnel when she heard pebbles pinging. Her next memory was waking up in the hospital.

On cross-examination claimant agreed that other than nicks on the hood of the car, the pebbles she saw on the roadway during all the time she had commuted that route had never caused her to lose control of her car, and that such pebbles were present on roadways other than the Gowanus. She never saw what hit her car, and has only seen a photograph of the object [e.g. Exhibit 4] later retrieved from her car by investigating officers. She did not hear any object strike her car, and has no actual knowledge as to where the object found in her car came from, and assumed, later, that "it came from the ground." [T-106].

On May 15, 2002 a joint venture called Grace/El Sol Constr. & Const. Corp. (Grace/El Sol) continued its work pursuant to a contract [D258492] entered into in August 2000 with the State of New York Department of Transportation [DOT], for the improvement of various highways and bridges including the relevant portions of the Gowanus Expressway. [Exhibits 1 and T]. Part of the obligation under the contract was to regulate the use of moveable concrete barriers for the maintenance and protection of traffic. Grace/El Sol was required to

"follow the lane closure details included in the proposal for the Maintenance and Protection of Traffic . . . The Contractor shall be required to clean the area of debris from his operation or general debris pickup and sweeping of whatever is there . . ." [Exhibit 1 at 279].

Overall, however, it was State engineers who supervised. Indeed throughout the 600-plus pages that constitute contract number D258492, there are references to the engineer's field decisions to add additional flag persons for example, or to increase the lighting in a particular area.

In terms of the DOT personnel responsible for the project, Jose M. Rivera, an area construction supervisor for the project, was familiar with the cleaning requirements of the project as standard contract provisions requiring the contractor - in the context of maintaining and protecting traffic "on a daily basis" - to clean the roadway on a "daily" basis if it was necessary. [T1-12]. The safety of the traveling public was a high priority for everyone on the project. During the duration of the contract, the Gowanus Expressway was designated as a restricted highway(2) [see Exhibit 1, Page 165], making the DOT responsible for "construction elements" as well as maintenance of the highway according to Mr. Rivera. [T1-14]. Such designation appears to most concern the maintenance obligations as between the City and the State of New York.(3)

Stan Malek, the DOT engineer-in-charge in 2002 but now retired, testified at some length about the project. As an engineer-in-charge, Mr. Malek was most directly responsible for the day-to-day management of the project.

Mr. Malek said the work being performed on the Gowanus project was in the category of rehabilitation, namely fixing the deck on that portion of the Gowanus that was elevated, as well as doing structural steel repairs, from the Verrazano Narrows Bridge to the Brooklyn Battery Tunnel. Among Mr. Malek's duties was overseeing the additional inspection consultant company hired by the State, Urbitran, which was hired to perform inspections related to the maintenance and protection of traffic safety. Urbitran, in turn, hired inspectors, including Melvin Neuble, whose deposition testimony was submitted [see Exhibit U], and whose activities were also overseen by Mr. Malek.

Mr. Malek said he was there almost every day, normally between the hours of 7:00 a.m. and 3:30 p.m. He recalled that the process of opening up the additional Manhattan-bound HOV lane could begin sometime between 2:30 a.m. or 4:00 a.m., until it was completely open at 6:00 a.m. Although State personnel would not always be present, the inspectors from Urbitran would always be there. When the additional HOV lane was closed, the moveable barrier would be moved back into position across the two lanes, adjacent to a permanent barrier. While Grace/El Sol provided the operating engineers and laborers to set up the lanes for opening and closing, and to move the barrier utilizing a machine for that purpose, Urbitran and State personnel inspected. An additional consultant, Sverdrup, was also present. Each company had a resident engineer, an office engineer, senior inspectors, a chief inspector and lower level inspectors. Mr. Neuble wrote daily inspection reports concerning his supervision of the opening and closing of the lanes [Exhibit C] which were given to Urbitran's resident engineer and thereafter to Mr. Malek. Mr. Neuble rode with the contractor during the opening and closing of the lanes, and sometimes walked portions of them as well. [Exhibit U]. Prior to the HOV lane being opened to the public, "[t]he contractor would usually ride down the HOV lane, would be the first one to go through the HOV lane to the Battery Tunnel." [Id. Page 72]. Any debris seen by anyone at any phase of the lane openings and closings would be picked up; indeed a dump truck or pickup truck was part of the process according to Mr. Neuble. [Id, Page 75].

In terms of cleaning requirements, Mr. Malek also said that the cleaning would be done "if necessary" on a daily basis, meaning

"the contractor didn't go out there with a broom every day, but if he saw something that . . . posed a hazard he would take care of it." [T2-36].

Photographs showing debris along the permanent barrier, taken by Police Officer Maresca under the direction of the detectives investigating the area after the accident, were shown to Mr. Malek [see e.g. exhibits 13, 14, 19, 22, 23, 29], and include depictions of rocks, pebbles, soil, bits of rubber, bits of wire, small bolts and hardware, and pieces of wood and cloth, with the largest pieces being a carpeted car mat [Exhibit 29] and what appears to be a license-plate-size item [Exhibit 13] of unknown material - in short, all types of debris that might be seen on a busily traversed urban highway. It is noted that almost all the photographs of the Gowanus and the debris were not taken below the crest in the area where a bus driver placed the first phase of claimant's accident, or where claimant's memory of events ended. Indeed, the photographs of debris appear to have been taken near the tollbooths for the most part.

Mr. Malek said that he could not tell from the photographs alone if the roadway in the area depicted was hazardous to traffic. He explained that when the HOV lane was opened in the early morning hours, his recall accorded with that of Mr. Neuble that the contractor would simultaneously be driving down the lane, checking that there were "no obstructions in the roadway." [T2-46-47]. Mr. Neuble would accompany the contractor, either walking or riding on the truck. The moveable barrier was "physically lift[ed]" off the ground "[a]pproximately 4 to 6 inches" Mr. Malek said, as opposed to being dragged or slid across the highway. [T2-47].

Mr. Malek went to the scene after the accident and saw the object that was found in claimant's car for the first time on the passenger side of claimant's car. [Exhibit 4]. Admitted in evidence, the generally rectangular object appears to be an old, rusty metal brake shoe, with no signs of webbing or other padding material attached to it, curved, 17 inches long, 7 inches wide and weighing slightly over 6 lbs. [Id.]. There are rivets in place. [Id.]. Mr. Malek himself did not know what the object was.

In Mr. Neuble's inspection report for the day of the accident, it is noted that the HOV lanes were closed for police investigation, and that such closure occurred at approximately 8:15 a.m. [Exhibit C, page 81]. When asked, Mr. Malek said such notation would mean that the lanes were open still until 8:15 a.m. [T2-52]. More generally, from Mr. Malek's supervision of the work of Grace/El Sol and Urbitran during the course of the project, he found them to have performed their jobs in accordance with the contract requirements of their work - including the opening and closing of the HOV lanes, and the associated maintenance - and had not received any complaints about the safety of the roadway or excessive debris in the roadway prior to the accident of May 15, 2002.

Gerard Napolitano was driving his regular express bus run from Staten Island to New York on May 15, 2002. He used the right-hand HOV lane on the Gowanus Expressway if it was open, and did so on that morning. He had driven the same route "every day for three months" prior to the date of the accident. [T2- 66]. Asked if he "ever encounter[ed] debris in the roadway" on the route he said "[a]lways" [T2-67], saying that other bus drivers would communicate over the radio to say there was debris in the road. Nonetheless, he had never registered any type of complaint about debris in the roadway to anyone.

Before the merger of the Gowanus with the Prospect Expressway, there was only one HOV lane. When the roads merged, there were two HOV lanes. He said that a portion of the Gowanus just after its merger with the Prospect Expressway rose to a crest, and thereafter continued on a "basically straight run, straight down on a decline" toward the Brooklyn Battery Tunnel. [T2-59]. He estimated that the distance from the crest to the tollbooths was approximately 1500 feet.

As he approached the Prospect Expressway merger in the one HOV lane, he observed a car directly behind him, which then sped by in the left HOV lane when he moved the bus to the right lane. When he then approached the crest, he saw the same car hit the left barrier and he saw the driver slump toward the passenger side of the car. Mr. Napolitano slowed down, driving at approximately 35 mph. The claimant's car then veered to the right across the two lanes, striking the right-side barrier, speeding up, and riding along the right-side barrier down toward the tollbooths. He lost sight of the car after about ten seconds. He did not see anything strike the car before it hit the moveable barrier on the left, did not see anything come off any vehicle driving in the opposite direction, and never saw what struck the car, from his perspective, approximately 200 feet behind claimant's car, proceeding uphill. Until his interview in connection with the investigation of the accident, he had no idea why claimant's car did what it did.

While on direct examination Mr. Napolitano said that the claimant's car was the only car that had passed him in the given area that morning, on cross-examination he confirmed that another car passed him on the left immediately before the claimant passed him. He described the first car as "black, like a limousine car." [T2- 72].

An accident investigation was led by detective Anthony Maiello, then a 15-year veteran of the Accident Investigation Squad and now retired, who testified as claimant's expert. His primary purpose was to rule out any criminal conduct. Under his direction, Police Officer Jeffrey Maresca of the New York City Police Department took photographs of the roadway, apparent tire markings along the permanent barrier, and Ms. Farrell's car from various angles [Exhibits 11-55]. He also took measurements of the marks along the permanent barrier that showed the length along which claimant's vehicle presumably rode the barrier, and made field sketches [Exhibit 10]. Officer Maresca did not take any samples or scrapings from the claimant's car or the barrier, did not view the DVD recordings taken by the Triborough Bridge and Tunnel Authority [TBTA] of what could be seen of the accident from the tollbooth area [see Exhibits 8 and 9], and essentially took the photographs as the investigating detective directed.

Detective Maiello testified that where the first tire marks were noted on the permanent right barrier, there were no overpasses or pedestrian walkways, and estimated that the closest overpass or elevated area by the Gowanus would be "1000 feet . . . maybe even further" back from the first tire marking at the crest of Gowanus heading down toward the tunnel. [T2-87]. No photographs were taken to show markings, if any, on the moveable barrier, however, where the bus driver indicated claimant's vehicle first struck.

Detective Maiello confirmed that the object found in claimant's car was in the same condition as it was on the day of the accident. [Exhibit 4]. Detective Maiello identified the elevated structures near the Gowanus as including a pedestrian walkway going across the highway, a ramp entrance to the Brooklyn Queens Expressway [BQE] eastbound, adjacent to the highway, and another ramp exit from the BQE to the Gowanus that crosses the highway. [See Exhibit 30].

After some investigation of potential criminality, including a theory of an object being thrown from the pedestrian walkway, he concluded that there was no evidence of any criminal activity.

Detective Maiello reviewed the shorter of two DVD recordings made by the TBTA showing the viewpoint from the toll plaza from 6:11 a.m. through 6:18 a.m. [Exhibit 9] in Court, remarking that one could see where the permanent barrier ended as claimant's car ran along it, and then where claimant veered across traffic to one of the tollbooths farthest to the right from where she was proceeding, and where she finally came to rest after crashing through the tollbooth lane. A longer version starting at 5:45 a.m. and ending at 6:20 a.m. shows the contractor finishing up placing the traffic cones after creating the HOV lanes, as well as the first sightings of claimant's car. [See Exhibit 8].

Neither recording shows, however, the area beyond the crest as seen from the tollbooth, where Ms. Farrell's memory ends, and where Mr. Napolitano testified was the first spot where he saw Ms. Farrell's car strike the moveable barrier and then move over to the permanent barrier.

What is evident from the longer recording is that countless trucks - including open container and flatbed trucks - buses, and passenger vehicles passed in both directions before, during and after the time frame for claimant's accident, from level positions and from elevated positions, even if such elevation is measured by the difference between the height of a passenger vehicle versus a truck. [Exhibit 8].

After the investigation, Detective Maiello concluded that a metal object

"that was indicated that was in the bay was subsequently picked up by the rear of a bus, striking Ms. Farrell's vehicle, then striking her, causing her to pass out and cross alongside the driver's side and passenger side, then proceeded down into the HOV lanes towards the Brooklyn Battery Tunnel." [T2-106].

On cross-examination, Mr. Maiello acknowledged that the TBTA recording he discussed at trial [Exhibit 9] did not show an object striking claimant's car, that during the course of the investigation no one said that he or she had seen an object strike claimant's car, and Mr. Napolitano, the bus driver, never struck an object himself, nor did he observe an object strike the claimant's car. He conceded that although both claimant and the bus driver mentioned another vehicle passing the bus first and driving in front of claimant, he did not later identify the vehicle in the course of his investigation, including his review of the videotape, but concluded "based on the statements that were obtained, based on the description of the item" [T2-114] that another vehicle - if a small one like a car - would have sustained damage if it kicked up the object, and no other cars reported damage as far as he knew.

When Detective Maiello arrived at the scene to commence his investigation, although the HOV lanes were closed, he did not know how long they had been closed, nor could he recall when he arrived except that it was in the morning. It is noted that Officer Maresca recalled that Detective Maiello arrived at approximately 11:00 a.m. Detective Maiello acknowledged that when he walked the HOV lanes that morning, he walked only up to the crest from the tollbooths, not beyond. Officer Maresca and Maiello did not walk the area together; rather, the detective described to the officer where he wanted photographs taken, and Detective Maiello expressed himself satisfied with the photographs taken and the field drawings made. It also appeared that Detective Maiello had originally thought that the genesis of the accident was in an area where elevated roads were located adjacent to the Gowanus.

Detective Maiello was unaware that the asserted mechanics of the accident included striking the moveable barrier first, and said that

"[i]t appeared [claimant's car] swerved to that area based on the information, but I didn't see any indication of that as much as defined as I saw the indication on the solid barrier." [T2-125].

He did not direct that any photographs be taken of the moveable barrier, and did not take any samples of paint or tire marks for comparison purposes from either claimant's car or the permanent barrier, nor were any scrapings taken from the object itself.

His operating theory was that Exhibit 4 was kicked up by the back of a City transit bus or some other large vehicle. He said that "if he had to guess" it would be the driver's side of the bus that picked the object up; yet he conceded upon viewing a photograph taken by Officer Maresca showing the HOV lanes down toward the tolls - the same direction claimant had been heading - that there is no debris at all in the actual HOV lanes. [See Exhibit 11]. He agreed that this object, if it had been an operating brake shoe, would not have just fallen off a truck, and confirmed that he saw no other associated features to a brake shoe, such as padding or webbing, as he traversed the area. He did not examine any of the expressway lanes in the opposite direction, and, as noted, did not walk beyond the crest.

Additionally, Detective Maiello conceded that he did not perform any analysis to determine how the object could have been projected upward after being hit by a bus, given that a bus has a large overhang, suggesting an object would be deflected downward, saying

"It's all a matter of how it was projected . . . This [his conclusion] was based on statements, based on the evidence that obviously was gathered. And after concluding that it appeared that this was just - - not a criminal act - - but this was just an incident that had occurred as a result of everything that was gathered on the scene and the information obtained." [T2-130].

He did not determine the speed of the claimant's car or investigate any vehicular traffic moving in the other direction. He did not perform any measurements to determine the height of the object's entry into the car, nor did he determine at what angle the object entered the windshield, saying

"[i]t appeared that it went not on an angle, it just appeared that it went to the lower portion of the windshield directly into the driver portion of the vehicle, not striking the steering wheel and striking Ms. Farrell." [T2-131-132].

It did not strike the hood of the car, or the front grill, and appeared to strike the windshield on the shorter, narrower end of the object. He did not perform any analysis to determine the speed and force it would have taken to penetrate the windshield, which he agreed was made from high penetration resistant glass.

Finally, Detective Maiello also said that he regularly traversed the area where this accident happened, often in the same HOV lanes, yet never registered any complaint with the State or the contractor concerning any proliferation of debris.

William Meyer testified as defendant's expert engineer. He had considerable experience with motor vehicle accident reconstruction and spent most of his time performing such investigations over the last 14 years, and testified persuasively concerning the ramifications of the real evidence submitted. His opinions were given to a reasonable degree of engineering certainty.

Mr. Meyer identified Exhibit 4 as a brake table of a type utilized in a large truck or utilized in industrial applications such as elevators. The fact that there was no padding or webbing - which would have been welded on with metal and further secured by the rivets that still remain on the object - suggested that the materials had been removed by a process rather than haphazardly with wear. There were no paint scrapings on the object, nor did it bear the kind of wear associated with having been scraped across concrete.

As Detective Maiello had observed, and Mr. Meyer agreed, the car's windshield was composed of penetration resistant laminated glass. Photographs documenting the condition of the claimant's car after the accident demonstrated that the first point of impact of Exhibit 4 with the car was at the lower portion of the windshield - where there is a hole in the windshield on the driver's side [see Exhibit 47] - or at least 40 inches off the ground. To create such a hole the object would need to have hit the windshield with great force and from an angle that would allow penetration when windshields are designed not to allow penetration. As Detective Maiello had also observed, the object did not hit the front bumper, it did not hit the headlight material, it did not hit the front grill, and did not hit the engine compartment hood.[T3-13].

Under Detective Maiello's scenario the object would have to have been elevated to a significant height, and would also have moved a significant lateral distance as well across the lanes. First, Mr. Meyer considered and ruled out the possibility that an object on the right-hand side of the road could have been kicked up by the right rear tires of a bus, generating enough height and force to then penetrate the driver's side windshield of claimant's car without hitting the other areas of the car, described as untouched. Next, Mr. Meyer calculated that for an object to have been kicked up by the left rear wheels of a bus from debris, it would have to have traveled to a height of 6 feet and 6 feet laterally to strike claimant's car where it did on the driver's side.

Moreover, he said the buses used in city transit have an eight to ten foot overhang from the rear wheels and utilize mud flaps. The dual wheel assemblies, he opined, would cause kicked-up debris to strike the overhang. Damage would likely have been observed under the bus and, if the object had been further struck by other vehicles, there would have been damage to such vehicles, and none was reported. Mr. Meyer opined that it is more likely that the object would have to have come from a much higher vantage point, as debris from a scrap truck for example or other open container.

Mr. Meyer noted that while there is debris shown on the right-hand side of the roadway against the permanent barrier, this object would have been the lone piece of material on the left side of the right lane - basically in the center of the two lanes - yet there is no showing of debris in any of the photos in that location. [See e.g. Exhibit 11].

After watching both TBTA recordings taken from the tollbooth area, Mr. Meyer noted that they show significant traffic on the various overpasses, and in the opposite lanes of travel. [See Exhibits 8 and 9]. Numerous vehicles of all types also traveled the HOV lane toward the tunnel prior to claimant. [Exhibit 8]. This fact, too, was important in forming his opinion because the likelihood of some object being in the roadway without anyone encountering it prior to claimant is low; and traffic overhead and coming toward, or even in the same direction but uphill, are other potential sources for an object coming from an elevated location to strike the windshield.

On cross-examination, Mr. Meyer admitted that it was a "possibility" that the brake shoe had been ridden over and moved against a roughened roadway based upon the longitudinally oriented abrasions [T3-41]. However, he also said that because such abrasions are only on the heads of the rivets on the interior portion of the brake shoe, the scenario of having been ridden over repeatedly would be unlikely because there is no reason why the rest of the object would not be similarly abraded or unprotected, thus this still suggests some type of processing of the object. [T3-76].

Utilizing vector analysis, Mr. Meyer explained that the combination of the car's horizontal forward movement, with the velocity the object would need and the angle at which it would hit to penetrate the sloped windshield, penetration is better explained by a forceful entry from a height.

"[I]f the object were kicked up as has been indicated, you would have zero, . . . very close to zero velocity. It would essentially come up and start coming down again." [T3-44].

Mr. Meyer acknowledged that in either the falling from a height scenario he opined, or the coming upward from the road scenario advanced by Detective Maiello, the object would have hit the dashboard in order to strike claimant in the jaw, and that the dashboard (from what little could be seen in the photographs) did not have "noticeable" marks. [T3-48]. He reiterated, however, that with an "upward velocity" the angle at which the object would have hit the windshield would have been "predominantly tangential or dominantly parallel to the windshield" and would not have penetrated it. [T3-49].

As to where the object came from, he credibly rearticulated that where the accident began is not clear, with only the testimony of the bus driver (7 years after the event) making it either just before or at the crest of the road before the descent toward the tollbooths. From the TBTA recordings [Exhibits 8 and 9], although he could not identify any particular vehicle to place it at a certain location at a specific time (because of the uncertainty as to where claimant was when the object struck her car), he observed numerous trucks traveling in all directions, and overpass areas, that would furnish the position from which the degree of velocity required to penetrate the windshield would be possible, from either a stationary overhead position, or from a container truck approximately 10 feet to 13 feet high.

DISCUSSION AND CONCLUSION

While the State of New York has a nondelegable duty to maintain its highways in reasonably safe condition for the use of the traveling public, it is not an insurer. Friedman v State of New York, 67 NY2d 271 (1986); Lopes v Rostad, 45 NY2d 617 (1978); Vega v State of New York, 37 AD3d 825 (2d Dept 2007). What is required are reasonable precautions, which safeguards would arguably adjust as known conditions warrant such adjustment.

It is not particularly disputed that it is ultimately the State that is responsible for the maintenance of the restricted highway during construction, as is indicated in the applicable statute [see Highway Law 104-a; Vehicle and Traffic Law 1625(a) ], as provided for in the contract [Exhibit 1] and City permit, and under the common law. Thus the State's duty to manage the opening and closing of the HOV lanes during construction and the related duty to maintain the area are assumed. Significantly, no liability may attach unless claimant establishes that the State had actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct the condition.

The real issue here is whether the State or its agents had notice of a recurring dangerous debris condition sufficient to charge them with notice of each specific recurrence of such condition and thereafter negligently failed to safeguard the traveling public.

A defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific recurrence of the condition. Freund v Ross-Rodney Hous. Corp., 292 AD2d 341(2d Dept 2002); Fiege v State of New York, 189 AD2d 748 (2d Dept 1993). To successfully establish notice by way of a recurrent condition, a claimant must not only show the existence of the recurring condition (here, presumably, dangerous debris), but must also provide evidence that a negligent defect also existed causing the recurring condition. Proof of the defect allows the condition to be anticipated or rectified by the defendant. See Talavera v New York City Tr. Auth., 41 AD3d 135 (1st Dept 2007).(4) Nonetheless, reasonable efforts to maintain the highway are what is required. Hall v State of New York, 37 Misc 2d 1093, 1096 (Ct Cl 1962); cf. Purdy v State of New York, 25 Misc 2d 907 (Ct Cl 1960), affd 12 AD2d 834 (3d Dept 1961). In this regard, claimant asserts that more than a general awareness of a general condition of debris in the roadway is chargeable to the State. A dangerous debris condition, it is urged, was caused theoretically by the movement of the left HOV barrier on a daily basis, and inadequate cleaning and inspection, forming the correctable defect for recurring condition purposes.

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to meet her burden of establishing that the defendant had actual or constructive notice of the existence of a dangerous condition, and has failed to establish that the defendant was negligent, and that any purported breach of duty on the State's part was a substantial contributing factor of Ms. Farrell's injuries.

There was excessive documentary evidence presented in this case that frustratingly did not truly document the claim.

As has been noted above, most (if not all) of the photographs taken by Officer Maresca were not taken in the area where witness statements placed the accident. The only photograph actually shown to Mr. Napolitano was taken facing the Manhattan-bound traffic underneath an overpass for the BQE, before the pedestrian walkway, showing - in the very far distance - the crest he described as the spot where he observed claimant slumped over and striking the temporary barrier. [Exhibit 30]. He was never asked to identify debris in the photographs as fairly and accurately depicting the debris visible that day, nor was he shown the three photographs taken facing the tollbooths that most approximate the perspective he and Ms. Farrell might have had as she was propelled past the crest and as he drove over the crest that morning. [See Exhibits 11,18, 38]. Notably, even those three photographs do not show any area of the road before the crest that would face Manhattan-bound traffic (i.e., the direction in which claimant and Mr. Napolitano were traveling), and show the road area adjacent to the permanent barrier on the right but only in shadow. [Id.]. Ms. Farrell was not shown debris photographs either.

The photographs depicting debris were all taken in areas with overpasses, and in areas closer to the tollbooths (as much as can be inferred given the paucity of testimony placing the location of the photographs). [See Exhibits 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 50, 51, 53]. All photographs were taken more than four hours after the accident, after the HOV lanes had remained open for two additional hours, until approximately 8:15 a.m.,

following the early morning accident.

The three photographs taken facing the tollbooths that most approximate the perspective of a Manhattan-bound driver - but past the crest - do not show any remarkable debris other than that regularly seen on any highway, anywhere, regardless of ongoing construction nearby or regular maintenance. [Exhibits 11, 18, 38]. Indeed, what is shown in the shadows in those three photographs are dirt and pebbles. [Id.]. Near the tollbooths, where vehicles are slowing down because of the proximity of the booths and the tunnel, as well as the natural congestion of urban traffic, items such as the car mat [Exhibits 29 and 53], the piece of asphalt and block of wood along with bits of hardware, dirt, pebbles [Exhibits 26, 27, 28, 51], a piece of what looks like balsa wood or cardboard [Exhibit 19], and a hubcap [Exhibit 50] shown are rendered less significant. Indeed, Mr. Malek said that while it is difficult to tell from the photographs he was shown (and he was not shown all the photographs) what might present a potential hazard, he noted that he would pick up the piece of balsa wood or cardboard shown in Exhibit 19 if he saw it, or would direct that the contractor pick it up.

There are two photographs that show a part of the dashboard of claimant's car. [Exhibits 44 and 47]. The first is photographed through the passenger side window, and while the passenger side dashboard area is visible, the hump on the dashboard directly in front of the steering wheel is awash in sunlight and shows nothing of the texture of the surface in front of the hole in the windshield. [Exhibit 44]. The second photograph is taken outside the driver's side of the windshield, displaying a suggestion of the dashboard through the hole in the windshield. [Exhibit 47]. Consequently, as Mr. Meyer pointed out, there is no adequate documentation of whether there were any marks on the dashboard.

The TBTA recordings only chart the course of claimant's car for some uncalculated time period after the impact with Exhibit 4 as the HOV lanes end, and as she headed toward the tollbooths, miraculously making it through a toll lane without a head-on impact before coming to rest. The TBTA recordings, particularly the more complete version [Exhibit 8], shows that between the time the contractor is seen to have finished opening up the HOV lanes at around 6:00 a.m. and the time claimant's car is first seen at 6:11:14 a.m. as it seems to pass under or near the overpass and heads toward the cones and the barrier along the right side with both the headlights operational, approximately 16 buses passed through the HOV lane, and countless trucks proceeded inbound and outbound - including a flatbed truck - along the lane adjacent to the movable HOV barrier where claimant would have been driving.

On the whole, while Detective Maiello was clearly a seasoned investigator, there were omissions in his methodology. He first examined the scene more than four hours after the accident, and did not appear to take into account that the lanes had been open an additional two hours after the accident occurred. While the photographs that he directed be taken may have fairly and accurately depicted the portion of the Gowanus beyond the crest heading toward the tollbooths and the tunnel, they did not show the area before the crest, or all areas of the roadway in both directions, nor did he walk in the area before the crest or on the opposite side of the road. He did not pursue information from other drivers. He took no samples and performed no calculations that might have otherwise moved him from what clearly was his working hypothesis, and simultaneously his ultimate conclusion, about the happening of the accident.

While there were some deficits in Mr. Meyer's testimony as well, those deficits are almost directly derived from the less than thorough investigation made at the time of the accident to determine where it began, and its general mechanics. On the whole, his explanations of the likelihood of the object having been propelled from a height in order to achieve the degree of force necessary to penetrate the windshield are credited.

There was no evidence that Exhibit 4 was in the roadway for any period of time and was not picked up.

Nonetheless, even if Exhibit 4 was in the roadway for an appreciable period of time or fell from a height, its presence alone and the happening of this accident does not make the State liable. To so hold would render the State an insurer. This is because, most significantly, the maintenance efforts described were reasonable ones, allowing the construction project charged with making rehabilitative repairs to go forward (adequately repaired roadways being another concern vis-à-vis the traveling public), and placing the work crews in a position to see any dangerous debris and remove it every time the HOV lanes were moved.

Grace/El Sol personnel, personnel from Urbitran, and State personnel were present every time the lanes were moved, and were required to remove and did remove potential hazards to the traveling public as they were observed. There was no showing that somehow these people were not diligent or did not place themselves in a position to see what could be seen. No evidence of prior relevant accident history along this roadway, of any complaints about dangerous debris, or other evidence, was presented to allow the Court to infer that the State had actual notice of any potentially dangerous debris that was not being addressed by the daily supervision and inspection of the HOV lanes. At most, there was an awareness on the part of the defendant that urban debris such as pebbles and dirt would be on the highway, and that other objects might be present as well given the volume of traffic traveling the road daily, and that if such objects were present and seen by those in a position to see them, they would be removed. The defendant was not negligent, and any harm suffered by claimant was not proximately caused by defendant's breach of a duty of care.

While it is distressing that Ms. Farrell was harmed, and it is no less than miraculous that she survived, the State is nonetheless not liable for this unfortunate accident.

All trial motions not otherwise disposed of are hereby denied and Claim Number 107707 is hereby dismissed.

Let judgment be entered accordingly.

May 10, 2010

White Plains, New York

THOMAS H. SCUCCIMARRA

Judge of the Court of Claims


1. References herein to the transcripts of the three days of testimony are to T1, T2 and T3 - representing November 9, 2009, November 13, 2009 and November 16, 2009, respectively - and the page number.

2. Section 104-a of the Highway Law provides, in pertinent part: "The commissioner of transportation shall have the power to designate any highway under construction or reconstruction under the supervision of the commissioner of transportation . . . as a restricted highway, maintaining traffic thereon, subject to the provisions of article thirty-seven of the vehicle and traffic law." Section 1625(a) of Article 37 of the Vehicle and Traffic Law provides:

"The department of transportation . . . with respect to any restricted highway, as defined in section one hundred four-a of the highway law, may prohibit, restrict or regulate traffic on, or pedestrian use of any such highway."

3. See previous footnote.

4. In finding that there was a triable issue of fact relative to constructive notice of the recurring dangerous condition sufficient to avoid summary judgment dismissing plaintiff's lawsuit, the Appellate Division said: "In addition, because plaintiff specifically identified the source of the recurring wet condition as the leaky pipe, and, further, produced evidence that such dangerous condition was in a location spatially remote from an exterior stairwell that is exposed to the elements, this case is distinguishable from those cited by the Transit Authority holding that a landlord is not required to provide a constant, ongoing remedy when an alleged dangerous condition is caused by moisture tracked indoors during a storm (see e.g. Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005] . . . ). Unlike Solazzo, the plaintiff in this case identified a specific dangerous condition, to wit, the leaking pipe; he did not premise his claim of notice on a 'general awareness that the stairs . . . become wet during inclement weather' (Solazzo, 6 NY3d at 735)." Talavera v New York City Tr. Auth., supra at 136.