New York State Court of Claims

New York State Court of Claims
MAYVILLE v. THE STATE OF NEW YORK, # 2010-031-501, Claim No. 111897


In bifurcated trial on negligence relating to a motor vehicle accident, Claimant demonstrated that the accident which led to her injuries was proximately caused by defects on the highway of which Defendant was on notice but failed to take reasonable steps to remove. Defendant is found 100% liable for Claimant's injuries.

Case information

UID: 2010-031-501
Claimant(s): DIANA L. MAYVILLE
Claimant short name: MAYVILLE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111897
Motion number(s):
Cross-motion number(s):
Claimant's attorney: FARACI LANGE, LLP
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 12, 2010
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


Diana L. Mayville ("Claimant") filed claim number 111897 on January 26, 2006, alleging the New York State Department of Transportation ("DOT") is responsible for injuries she incurred in a multi-vehicle accident which occurred on the bridge which carried the Lake Ontario State Parkway ("LOSP") over Dewey Avenue in the town of Greece, New York. Specifically, Claimant asserts that Defendant was aware of and failed to correct defects on the bridge deck, and that these defects caused the accident which led to her injuries. The claim was bifurcated and I held a trial on the issue of negligence on February 9, 2009.

Claimant testified that the accident occurred at approximately 5:30 p.m. on January 26, 2005. At that time, Claimant was a passenger in a car driven by Robert P. Dyminski and was heading west on the LOSP. At the same time, another vehicle, driven by Frank A. Delapa, was attempting to enter the LOSP heading west from the Dewey Avenue access ramp. The merger or access lane began just east of the bridge and spanned the length of the bridge. It is undisputed that, once on the bridge, Mr. Delapa lost control of his vehicle, traveled into Claimant's lane and collided with the Dyminski vehicle. Upon contact, Mr. Dyminski lost control of his car, left the roadway and came to rest in a snowdrift on the side of the road. Moments later, Claimant suffered a second impact as a second vehicle with whom Delapa had also collided unfortunately slipped into the same path into the snowbank and hit the Dyminski car from behind.

Mr. Delapa did not testify at trial, but his deposition transcript was admitted into evidence as Claimant's Exhibit 17. At his deposition, Mr. Delapa testified that he lost control of his car when he encountered a large pothole that he described as "a crater" (Exhibit 17, p. 23). Although I am aware of a potential conflict of interest in Mr. Delapa's testimony concerning what caused him to lose control of his vehicle, his testimony is uncontroverted and there is no indication in the record as to any other cause of the accident. The photographic exhibits depicting the bridge deck, particularly Exhibits 1, 2, and 5 through 11, show that the bridge deck was in extremely poor condition and was riddled with potholes. In fact, Exhibits 2 and 8 depict a hole so deep that one can see completely through the deck of the bridge. Even Defendant's witnesses concede that, at the time of the accident, the bridge was in very poor shape. Alexander Pannoni, a Highway Maintenance Supervisor II, for the New York State Department of Transportation indicated that the bridge was a "noted [trouble] spot" (Exhibit 18, p. 24). He also indicated that the condition of the bridge had "got[ten] out of hand," was "horrible" (Exhibit 18, p. 25) and "totally destroyed" (Exhibit 18, p. 26).

It is uncontroverted that Defendant was aware of the poor condition of the bridge deck prior to the accident and that, during the winter months, employees of Defendant, including Mr. Pannoni, did what they could to repair the surface with "cold patch." Both Mr. Pannoni and his supervisor, Jeffrey Dunlap, a professional engineer, conceded, however, that "cold patch" is, at best, a very temporary fix to the problem and that on well-traveled roads during winter months, such remedies are largely ineffectual (Exhibit 18, p. 59; Exhibit 19, pp. 38 - 40). Unfortunately, resurfacing with asphalt, or the use of a "hot patch," is not feasible between mid-November and Spring. Defendant argues that, although it had notice of the poor condition of the bridge deck prior to the accident, because the accident occurred in the winter months, no better or more permanent fix was available and Defendant took the only corrective steps available at the time (the "cold patch").

It is well established that the State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (see Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Generally, liability will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (see Brooks v New York State Thruway Auth., 73 AD2d 767, supra; Rinaldi v State of New York, 49 AD2d 361, 363).

Based on the record before me, Defendant clearly is not liable for failing to make better attempts to repair the potholes that riddled the bridge deck during the winter. Mr. Pannoni testified that he and his crew were often at the bridge, attempting to fill the holes with cold patch. Although cold patch was largely ineffective, there was no evidence that any better method was available during the winter months.

A better method was available in the Fall, however, and in October or November of 2004, Mr. Pannoni, noting the poor condition of the bridge deck, recommended to his supervisor, Jeffery Dunlap, that the bridge deck be repaved. The record is clear that, at the time of his recommendation, Defendant still had the option of resurfacing or using "hot patch" on the deteriorated bridge and that this job would have taken a half day to complete (Exhibit 18, p. 55; Exhibit 19, p. 41). Defendant contends that, although it could have resurfaced the bridge deck before winter set in, its decision not to do so was reasonable and based upon an analysis of the priority of such work and the resources at its disposal (Exhibit 19, pp. 14, 42 ). Defendant implies that a reasoned decision was made that the bridge was in good enough shape to make it through the winter without resurfacing, or at least that other locations were of even higher priority and there was not enough time or resources to reasonably permit resurfacing of the LOSP bridge over Dewey Avenue prior to the winter season. There is, however, a disturbing lack of evidence in this regard.

There is nothing in the record to demonstrate that Defendant did anything in regard to Mr. Pannoni's recommendation that the bridge be resurfaced. Mr. Dunlap stated that it was his responsibility to address the concerns raised by Mr. Pannoni about the condition of the bridge (Exhibit 19, p. 25). And he indicated that a procedure was in place whereby the various needs of the roads within the residency were assessed, prioritized and addressed in a logical and reasonable order. (Exhibit 19, p. 42) In regard to how priorities for paving projects were established, Mr. Dunlap indicated that he relied on various factors including: information from his foremen and assistants, information he gathers himself from personal observations, a review of DOT pavement "scoring records" which rate the overall condition of segments of highway within his jurisdiction (Exhibit 19, p. 14), input from the "bridge engineer" (Exhibit 19, p. 31, 42), and bridge inspection reports (Exhibit 19, pp. 17, 18).

Defendant implied that a review of these factors in the fall of 2004 indicated that the need to have the bridge resurfaced was just not as high a priority as other areas where its limited resources were applied. Mr. Dunlap indicated that the bridge just didn't "make the cut" (Exhibit 19, p. 26). In light of these assertions, it would seem that the doctrine established by Weiss v Fote (7 NY2d 579) would apply.

Weiss is the seminal case that is often cited for the proposition that, because the State's determinations regarding public works and improvements are quasi judicial or discretionary, the State is not liable for a "failure to exercise this power or an erroneous estimate of the public needs" (Weiss v Fote, 7 NY2d at 584, quoting Urquhart v City of Ogdensburg, 91 NY 67). Under Weiss and its progeny, municipalities are granted qualified immunity from liability for roadway planning decisions unless the plan was "evolved without adequate study or lacked reasonable basis" (Weiss v Fote, 7 NY2d at 589; see also Affleck v Buckley, 96 NY2d 553, 556; Friedman v State of New York, 67 NY2d 271, 284). Immunity arises not based on the municipality's ultimate decision, but because the discretionary determination "'was the result of a deliberate decision-making process'" (Norton v Village of Endicott, 280 AD2d 853, 854, quoting Holmes v City of Elmira, 251 AD2d 844).

This qualified immunity for planning decisions can be overcome, however, with proof that a highway planning decision "evolved without adequate study or lacked reasonable basis" (Weiss v Fote, 7 NY2d at 589; see also Affleck v Buckley, 96 NY2d 553, 556, supra; Friedman v State of New York, 67 NY2d 271, 284, supra).

In this instance, despite Defendant's assertions, I find that an adequate study was not undertaken, that Defendant's decision not to resurface the bridge deck in the Fall lacked a reasonable basis, and, accordingly, that Defendant does not enjoy the immunities set forth in Weiss. A review of the factors allegedly used in the process of prioritizing the work demonstrates that Defendant failed utterly to take any steps to evaluate Mr. Pannoni's recommendation to resurface the bridge in the Fall of 2004.

First, with regard to the "pavement scoring" reports, which Mr. Dunlap indicated was perhaps the single most important factor (Exhibit 19, p. 22), these reports related to large segments of pavement (Exhibit 19, p. 14 ), did not address bridges (Exhibit 19, pp. 16, 23 ) and were of no use in identifying or treating hazards or defects that were relatively small (like the deck of a bridge) (Exhibit 19, p. 26 ).

Further, Mr. Pannoni's report of the poor condition of the bridge deck was not documented by Defendant in any way (Exhibit 19, p. 25). There was no note, no memorandum, no report, and it did not appear on any priority list (Exhibit 19, pp. 27 - 28). In fact, although Mr. Dunlap stated that a priority list was established and implied that the bridge deck in question did not "make the cut," no such list was produced (Exhibit 19, p. 26). Mr. Dunlap did not inspect the bridge himself or send any other person out to the bridge (Exhibit 19, p. 38). Mr. Dunlap did not review the bridge inspection report (Exhibit 19, p. 16), nor did he seek input from the "bridge crew" engineer or even notify him of Mr. Pannoni's concerns (Exhibit 20, pp. 19, 26). He also did not check to see if there were complaints regarding the area in question (Exhibit 19, p. 40). When asked why he did not do more in response to Mr. Pannoni's recommendation to repave the bridge deck before winter, Mr. Dunlap dismissively indicated that he did not specifically recall the conversation and that his foremen always "want to repave" but that they "don't have the money or the time to pave everything" (Exhibit 19, p.23).

Simply put, from the record before me, it appears that Defendant took no steps whatsoever to either confirm the condition of the bridge deck or to evaluate the need to resurface the deck in the Fall of 2004. Defendant is, therefore, not entitled to the immunity discussed in Weiss.

Accordingly, I find that a defective condition existed on the bridge in the Fall of 2004 and that this defect proximately caused the accident that led to Claimant's injuries. Defendant was aware of the defective condition of the bridge, but failed to take appropriate steps to correct it. Judgment is hereby granted in favor of Claimant, establishing that Defendant State of New York is 100% at fault for causing the accident. A trial shall be set as soon as practicable on the issues of serious injury and Claimant's damages.


January 12, 2010

Rochester, New York


Judge of the Court of Claims