New York State Court of Claims

New York State Court of Claims
PENDA v. STATE OF NEW YORK, # 2017-018-832, Claim No. 124952


After a trial on liability, the Court finds the Claimant met his burden on his negligent maintenance cause of action and the State is 100 percent liable for Claimant's injuries proximately caused by this accident.

Case information

UID: 2017-018-832
Claimant(s): JABARI PENDA
Claimant short name: PENDA
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124952
Motion number(s):
Cross-motion number(s):
Claimant's attorney: ROBERT E. LAHM, PLLC
By: Robert E. Lahm, Esquire
Joshua Gillette, Esquire
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Edward F. McArdle, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 19, 2017
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant filed a claim on September 10, 2014, seeking damages for serious injuries he sustained in a motor vehicle accident on April 15, 2014 on I-690 in the Town of Geddes. The claim alleges, in part, that Defendant knew or should have known that the location of the accident was prone to flooding, and the State was negligent in its design and maintenance of the highway, and in failing to warn motorists of the danger of standing water on the roadway. The matter was bifurcated, and a trial on liability was held on December 5, 6, and 15, 2016.

The testimony at trial established that on April 15, 2014, at approximately 12:45 p.m., Claimant was a passenger in a car driven by Lekeisha N. Denman-Duvall (Denman-Duvall) traveling eastbound on I-690 in the Town of Geddes, County of Onondaga. I-690 is a State-owned, highly-traveled highway with a speed limit of 65 miles per hour (mph) with three eastbound lanes. Ms. Denman-Duvall testified that she was in the far left, or northern most eastbound lane when she drove into water which had accumulated in her lane of travel. When her vehicle contacted the standing water, she lost control of her vehicle and said it felt like the car was "floating."(1) She estimated the water was eight-to-nine inches deep. According to the police report,(2) her vehicle struck the north side guide rail before it crossed into the middle, eastbound lane where it was struck on the passenger's side by a truck driven by Michael F. Bartowski. Denman-Duvall's vehicle then crossed to the south side of the road and hit the southern guide rail where it came to rest. She recalled that when the car came to rest, Claimant was unresponsive, and she was scared and screaming. Denman-Duvall testified it was raining at the time of the accident so she was driving below the speed limit with her windshield wipers on. She noticed Mr. Bartowski's truck behind her before her vehicle began to hydroplane but she never saw the ponding water. She regularly drives I-690 East and had never seen accumulated water before. Both she and Claimant were wearing seatbelts.

Claimant testified that like Denman-Duvall he did not notice the water on the road before the vehicle hydroplaned. Claimant was removed from the car and transported to Upstate University Hospital by ambulance where he was a patient for 2-to-2 weeks.

Deputy Sheriff John O'Neil responded to the scene of Claimant's accident to investigate. As part of his report,(3) Deputy O'Neil included a diagram of the accident which showed the accident occurred just west of a footbridge over I-690 East,(4) with accumulated water across the entire left travel lane encroaching into the center lane. He estimated the water was six-to-eight inches deep. At trial, he testified that he stepped into the water to see how deep it was and the water was immediately over the top of his boot. The flooding covered about two-to-three car lengths. He noted in his report that the road surface was wet and it had started lightly snowing. To avoid additional accidents, the two left lanes were closed. The police notified the New York State Department of Transportation (DOT), and Deputy O'Neil saw the DOT responder, Gary Druce, remove debris from a drainage inlet (DI) to allow for the water to drain from the highway. Deputy O'Neil did not attribute any fault for the accident to Denman-Duvall and concluded the cause of the accident was the accumulation of water on the highway.

Mr. Gary Druce, a Highway Maintenance Supervisor 1 (HMS1) with the Onondaga West Residency, testified that he received a call from the Transportation Management Center (TMC) advising him of the accident and flooding on I-690. He was on road patrol at the time and arrived at the scene about 1:27 p.m. He felt Deputy O'Neil's description of the depth of the accumulated water as 6-to-8 inches and covering -to- of the left lane for about 2-car lengths was accurate.

On I-690, the DIs are in the median and Mr. Druce testified he stood on the box beam guide rail and used a rake or shovel to remove the debris clogging the grate. Mr. Druce didn't remember how much garbage he removed or what he did with it.

Claimant called numerous DOT employees as witnesses. Michelle Opperman worked in the TMC, which monitors incidents on I-690, relying on cameras and program message boards. Ms. Opperman learned of the accident from the 911 website and entered it into the TMC log at 1:00 p.m.(5) She accessed a camera near the scene but could not see the accident. Diana Miller, the supervisor at the TMC received a call from 911 at 1:13 p.m., and logged in "Large pool of water on roadway between Ex 5 & 6. Need storm drain check."(6) Ms. Miller called Mr. Druce to respond. Thereafter, Mr. Druce notified the TMC that he was working with the police and things were all set.

Michael Wild and Peter Fialkovic, both DOT workers, testified that they had worked on crews inspecting and/or cleaning DIs. Mr. Wild was on a crew on April 9, 2014, removing debris along I-690. The frequency of this work and its location was determined by the HMS2 or the Resident Engineer, and directed by the HMS1. Both witnesses testified DI inspections were done during heavy rains or when rain was in the forecast. At the Onondaga West Residency there were two HMS2s, Brian Lovell who, during the summer months, would oversee drainage and mowing issues, and Ed Beardsley who oversaw maintenance and paving.

Mr. Lovell also testified for both Claimant and Defendant. In the position of HMS2, Mr. Lovell prioritized the work assignments according to the needs of the season. It was his practice to handwrite the assignments which included the crews and equipment needed for each task. When it was completed, it was his responsibility or that of an HMS1 to enter the appropriate information into a computer program used by DOT called Maintenance Asset Management Information System (MAMIS). He identified a MAMIS report(7) dated April 8, 2014, which showed that two grates covering DIs were cleaned along a 4.2 mile stretch on I-690 which included mile marker 9.5. Another report, dated April 2, 2014, showed four grates were cleared. Mr. Lovell estimated there would be at least 15 DIs along that part of the highway, and it is impossible to identify exactly which grates were cleaned. Other witnesses estimated a much larger number of DIs over the same distance.

Mr. Lovell explained that in the spring, he would send crews out on water patrols to look for clogged DIs or plugged pipes, and the same assignment was made when a heavy rain was forecasted. He relied upon his experience and the weather to assign inspections. In addition, as a general rule, whenever the HMS staff traveled the roadways, visual inspections were made. Although he did not consider the area near mile marker 9.5 problematic, Mr. Lovell testified all of I-690 can be considered a potential problem for clogged pipes, or a DI, or ponding water. He estimated water ponded near the accident site three-to-four times in the prior two-year period due to clogged DIs. Also, he recalled accidents occurring because of water on the road. He specifically recalled an accident on August 14, 2012,(8) less than a mile away from this accident but, in the westbound lane, involving flooding on the road which caused the driver to lose control and hit the guide rail. Mr. Lovell was on vacation at the time of this accident, and Mr. Druce was the acting HMS2 during that week.

Larry Hasard, Acting Resident Engineer of the Onondaga West Residency at the time, James Napoleon, Claimant's expert, and William Logan, Defendant's expert, all agreed that motorists' garbage, car parts, and other trash are regularly deposited on or near roadways like I-690. This debris gets washed into the median of I-690 and can accumulate on the grates clogging the DIs. This can cause flooding on the road in the spring or with heavy rainfall. To avoid ponding of water in the travel lanes, which they all agreed is a dangerous condition, crews are sent out to pick up trash along the road, inspect the DIs, and clean grates.

For example, on April 2, 2014, Mr. Lovell's work order(9) included a direction to Gary Druce and two others to patrol for plugged pipes and covered DIs, and on April 4, 2014, he sent part of his crew on water patrols and had the others "standby for water issues."(10) The weather report(11) that day reflects .32 of an inch of rain fell.

The weather forecast for April 14 and 15, 2014(12) and the actual weather reports(13) were viewed and discussed by Mr. Lovell, Mr. Druce, Mr. Hasard, Mr. Napoleon, and Mr. Logan. All forecasts on April 14, predicted .3 - 1 inch of rainfall for Onondaga County with a cold front moving eastward. At 5:15 a.m., on April 15, 1 - 2 inches of wet snow was predicted, with "little more than a slushy coating on roads."(14) The next forecast predicted rain turning to snow in Onondaga County about 2:00 p.m. At 8:00 p.m., snow was predicted but no accumulation was expected on the roadways. With temperatures dropping, the melting precipitation was expected to freeze on the roads.

The actual hourly weather observations at the Syracuse Hancock Airport(15) show a trace of light rain on April 14 at 5:00 p.m., changing to heavy rain at 6:00 p.m. From 8:00 p.m. on the 14th, there was intermittent light rain with light rain until 8:00 a.m. on the 15th. Beginning around 8:00 a.m., on April 15, there was moderate rain that changed to light rain around 10:00 a.m. Around 1:00 p.m., the precipitation changed to light snow. Between April 14 until the accident on the 15th, .92 of an inch of rain fell (.34 of an inch on the 14th, and .58 of an inch on the 15th). Mr. Lovell sent out water patrols on April 4 when less rain fell.

No records were produced regarding water patrols or grate cleaning for April 14 or 15, before the accident. Mr. Lovell believed that before he left for vacation, he left Mr. Druce a "to-do" list but he could not find it when asked to produce it.(16) Nor could he recall what might have been on the list. Thereafter, he expressed doubt that any list existed. Mr. Druce also could not recall any "to do" list.

When asked if the DIs closest to the accident near mile marker 9.5, were cleared any time between January 2014 and April 14, 2014, Mr. Lovell said the only records that would have been kept were the handwritten daily assignments or MAMIS. The MAMIS records show that four grates were cleaned along the 4.2-mile stretch of road on April 2, and two grates were cleaned on April 8, but there is no reference to any specific grates. Mr. Lovell testified that all the grates along that section of I-690 were checked and cleaned if necessary. Water patrol assignments are not entered into MAMIS, according to Mr. Lovell.

The State recalled Mr. Lovell and questioned him about the MAMIS records for April 15, 2014. There was no entry reflecting Mr. Druce cleaned the DI after this accident. Mr. Druce's 16 hours of work that day were coded as "radio operation and storm watch"(17) a code used for work activities for an anticipated snow and ice event. The records also indicate other workers' tasks for that day were servicing equipment and preparing the trucks for a snow and ice event. No trucks were sent out for the storm, because the code would be different for such activation. In addition to the MAMIS records, Mr. Lovell identified a radio call log(18) which shows Mr. Druce was out on patrol around 1:00 p.m., on April 15, 2014. Other records indicate Mr. Druce was at the scene of the accident by 1:27 p.m.

Although all tasks should be recorded in MAMIS, Mr. Lovell said some get overlooked or missed since entries for work performed often occur at the end of the shift. Mr. Lovell testified that he completed a MAMIS record when he was called in to clean a DI after a prior accident on August 14, 2012, but he explained that he was off-duty at the time and needed to explain his overtime for that day so he could get paid. If it had been part of his normal workday, he may have used a different code.

Gary Druce testified he held the position of HSM1 for approximately eight years. Although Mr. Druce filled in for Mr. Lovell during his vacation, he was not an HMS2 and has never taken the test which must be passed to get that title.

Mr. Druce identified a MAMIS document(19) and Mr. Lovell's written work orders.(20) He, too, said that it was the responsibility of HMS1s and HMS2s to enter the accomplished daily work tasks into MAMIS, but could not remember if he created a MAMIS report for his grate cleaning after the accident on April 15, 2014.(21)

When questioned further about MAMIS records, Mr. Druce said he did not think a short-lived task involving a single worker would necessarily be entered into the system. Mr. Druce also could not recall if, as the acting HMS2, he created a handwritten job assignment for that day, or if he sent anyone out to inspect the DIs on April 15. The only activity Mr. Druce recalled was getting ready for a snow and ice event that day.

Numerous witnesses testified that April 15 is usually the day that ends DOT's winter season. Crew members assigned to the Onondaga West Residency for snow and ice events would normally be reassigned for summer work, sometimes at a different residency. However, with the snow and ice conditions predicted for the afternoon of April 15, 2014, DOT personnel worked to re-equip trucks and plows for the storm. Mr. Druce said this was not planned work, they were preparing for an emergency. The records from Syracuse Hancock International Airport's weather station on April 15 indicate only a trace of snow and only .3 of an inch on April 16.(22)

Both Mr. Lovell and Mr. Druce agreed that the DIs should be checked when snow was melting or heavy rain was predicted. On April 15, 2014, Mr. Druce recalled preparing for the storm expected later in the day. On cross-examination, Mr. Druce was shown his snow and ice patrol records(23) for April 15, which show his locations, air and road temperatures, and road conditions. That document covers from 13:01 (1:01 p.m.) to 20:30 (8:30 p.m.) and indicates that at 13:55 (1:55 p.m.) right after the accident, the air temperature was 36 degrees, the road temperature on I-690 - although the specific location is not identified - was 45 degrees and it was wet. Both the road temperature and air temperature dropped over the course of the afternoon and at 17:25 (5:25 p.m.) they were 32 and 30 degrees respectively.

Claimant called a civil engineer, Larry Hasard, who retired from DOT in 2016, as a witness, he had been a resident engineer at the Onondaga West Residency for about 14 years. It was his duty to oversee the maintenance of the State highway system, excluding bridges, in the geographic area of the residency. He provided general direction to the HMS2s and HMS1s on the work which needed to be done, depending on the season, as well as addressing high-priority problems. He testified that there was a standing direction to send out water patrols in anticipation of a significant storm or if they expected problems. The HMS2s assign work crews for the task based upon the anticipated severity of the problem.

Mr. Hasard testified that he was familiar with the site of this accident, and when he first became a resident engineer in 2002, his predecessor noted that under certain conditions there was a potential for water to accumulate on the highway in that vicinity. No records indicate the area near mile marker 9.5 was a drainage problem, but Mr. Hasard said, from his experience, it was a known drainage problem. Mr. Hasard testified that the residency proactively tries to prevent flooding on the highway with DI inspections and water patrols before and during storms.

Mr. Hasard was shown Mr. Lovell's daily work assignments for April 4, 2014, in which water patrols were sent out and other crew members were told to "standby for water issues."(24) Weather data shows .32 of in inch of rain fell that day.(25) In the context of such rainfall, water patrols would be a normal assignment in the residency. Depending upon the amount of rain, water patrols can be needed more than once a day during rainy weather; other tasks cannot be performed such as fixing potholes and guide rails so crews address drainage problems. Mr. Hasard testified that rain or melting snow would wash debris to the lowest clogging point. The DI grates are placed to provide support for vehicles but act like a screen keeping garbage from entering the drainage system and being carried away.

When asked about MAMIS, Mr. Hasard explained that it is DOT's payroll and accounting system to record employees' task performance, equipment use, work completed and time. He did not believe it was a DOT directive that every work activity must be entered into the system. Other than handwritten work assignments, no other written records or MAMIS documents reflect work performed by the residency.

In preparation for the trial, Mr. Hasard had reviewed all the MAMIS records for a time period before and up to the date of the accident. He prepared a color-coded map(26) using those records to identify what work tasks were done in the vicinity of the accident. When shown the map, Mr. Hasard agreed that the only days debris was picked up or grates were cleaned were March 24, April 2, April 8, and April 9, 2014.(27) The work performed on April 9, 2014, did not include the accident scene. Grates were cleaned on April 2, 2014, over a 4.2 mile distance on I-690 which included the accident site, but there is no way to identify which grates were cleaned or even which side of the highway was cleaned. Mr. Hasard estimated there are about 100 DIs along that stretch of I-690.(28) Mr. Hasard marked the map in evidence to show two unspecified grates were also cleaned on April 8, 2014 over the same 4.2 mile(29) distance.

On cross-examination, Mr. Hasard explained that when the prior record keeping system was replaced by MAMIS, data entry became a slower and more labor-intensive process which resulted in a loss of data recall because only significant work was recorded. With the old system, the work information was initially recorded on a sheet carried by the crew foreman at the job site so more details of the task were included. It was Mr. Hasard's opinion that the grate cleaning done by Mr. Druce after the accident would not be entered into MAMIS, because it would take longer to record the task than it took to perform the work.

Mr. Hasard recalled the morning of April 15, 2014 as a nasty, rainy day with a forecast of rain changing to snow. April 15 is the last day of the winter in the CSEA contract, which outlines how winter work is to be done. Snowy weather on April 15 falls outside of the contract workforce specification, leaving a smaller Onondaga West Residency workforce because one-third of the winter workforce returns to bridge maintenance.

James Napoleon, a professional engineer with extensive experience in transportation engineering, testified as Claimant's accident reconstructionist. He reviewed the depositions and police report and went to the accident scene at least four times. As a result of his investigation and using his surveying instruments, Mr. Napoleon prepared a plan and profile(30) of the highway. At the top of the document is the plan which represents an aerial view of the pertinent portion of I-690 and shows 10 DIs within the median barriers. The profile depicts the changing elevation of the left edge of the eastbound travel lane and shows that between mile markers 9.3 and 10.0, mile marker 9.5 is at the lowest point with a nearby DI.(31)

Mr. Napoleon agreed with Mr. Hasard that with heavy rainfall, as happened on both April 14 and 15, 2014, there should have been water patrols to check for clogged DIs and flooding on this roadway. Mr. Napoleon explained that a vehicle traveling more than 50 mph can go out of control in .10 of an inch of water if the water extends 30 feet. The water causes the vehicle to rotate, and this happened to the Denman-Duvall car when she drove into the ponding water and lost control.

From April 14 through about noon on April 15, just before the accident, .83 of an inch of rain fell, and there is no evidence that any water patrols were assigned to look for clogged DIs. Mr. Napoleon's profile of I-690, which includes the area of the accident, shows the road is lowest between mile markers 9.4 and 9.7, the same area Mr. Hasard considered problematic for drainage. Given Deputy O'Neil's description of the amount of water in the travel lanes, Mr. Napoleon opined water had accumulated for an extended period of time. Mr. Napoleon also indicated that any difference in the water accumulation description by Deputy O'Neil and Mr. Druce, at their respective arrivals at the scene, is expected since debris would typically only partially occlude a DI permitting some drainage, so the level of accumulated water would change.

Both Mr. Hasard and Mr. Napoleon testified about the difference between an open and closed drainage system. The system on I-690 is closed with grates which prevent debris from being carried through the system. The problem with this system is the potential for the inlet grates to collect debris and impede drainage. According to Mr. Hasard, the benefit of this system is the strength of the grates to support vehicles. Mr. Napoleon found this to be an unnecessary attribute given the DIs placement in the median.


Defendant objected to Claimant's expert testifying about the design defects of the drainage system, arguing that Claimant's expert disclosure failed to provide notice of this testimony. Claimant argued that Defendant waived this objection by failing to timely raise it (see Rivera v Montefiore Med. Ctr., 28 NY3d 999 [2016]). A review of the pleadings shows that allegations of improper design were included in both the claim and the bill of particulars (see Samoraj v Waldman, 296 AD2d 830 [4th Dept 2002]). As part of its earlier summary judgment motion, Defendant argued that it was entitled to qualified immunity for its highway planning and design decisions (Weiss v Fote, 7 NY2d 579 [1960]). Expert disclosure under CPLR 3101 (d) is intended to prevent surprise at trial (Ruzycki v Baker, 9 AD3d 854 [4th Dept 2004]). Here, Defendant cannot claim surprise or prejudice since it has defended this claim based upon its planned drainage design and presented expert testimony on the design of I-690. The Court will allow Mr. Napoleon's testimony.

On the drainage design, Mr. Napoleon opined that a trench drain could be constructed to address the problems with the closed drainage system in place which would eliminate water backup in the median and water ponding in the travel lanes. On cross-examination, he acknowledged that he didn't know whether the closed drainage system conformed with the highway design standards that were in effect at the time I-690 was constructed.

Diana Graser, a Regional Traffic Engineer for DOT, testified for Defendant. She manages the traffic safety and mobility group which focus on the safety of the traveling public, and she supervises five professional engineers. In addition, she heads the TMC discussed earlier. Ms. Graser explained that TMC monitors the cameras on the interstate system in Onondaga County, which sometimes - depending on the location of a traffic delay - allows the operators to get a visual of the problem. The operators also post messages on the variable message boards to advise the traveling public of driving conditions. TMC operators often obtain information from various agencies which call them to advise of a problem.

Ms. Graser identified the accident location history(32) kept by the New York State Department of Motor Vehicles (DMV) from August 1, 2004 - July 31, 2014. She said when reviewing the accident history of a road, DOT looks at .3 mile distances over a three-year period. In the three years before this April 15, 2014 accident, there were no other accidents at the same location and only one, on March 7, 2009, in the previous 10 years. Therefore, she concluded this location did not have higher than expected accident rates. She did not consider the accident which occurred on August 14, 2012, because it was in the westbound lane and each direction of travel is considered independently. She noted I-690 is used by more than 53,000 vehicles per day; it is a highly-traveled road.

Ms. Graser testified that a safety review, called SAFETAP, was completed for I-690 in 2012, in connection with a repaving project that included the area where this accident occurred. A field review of the roadway is done by an engineer from her office to look for potential safety improvements. A second engineer in her office does a final review. The SAFETAP done on I-690 did not identify any safety issues regarding drainage in the area of the accident, although other safety issues were listed in the final report.(33)

Ms. Graser did agree on cross-examination that the area around mile marker 9.5 was known for DIs getting clogged with debris causing flooding on the roadway. She also agreed with Mr. Hasard's testimony that when rain is forecasted, it is important to inspect the DIs.

Ms. Graser did not participate in the SAFETAP review of I-690. Three other people compiled it after a field inspection which, she said, was completed in one day. The review should have included drainage issues if any were observed. One of the review participants, Mark Bush, was an assistant resident engineer working under Mr. Hasard. Ms. Graser did not know if Mr. Hasard was consulted about the problems he felt existed with the drainage in the area of the accident. Ms. Graser testified that if this drainage problem had been raised, it may have been considered by the SAFETAP participants, but it was not included in the report. Ms. Graser concluded that the absence of identified drainage issues meant none were found. She agreed that known problems with clogged DIs which caused flooding on I-690 should have been addressed by DOT.

The State called William Logan, a licensed professional engineer and retired DOT employee, as its expert. Unlike Mr. Hasard and Mr. Napoleon, he testified that the I-690 drainage system is both open and closed. A closed system, he described as inside a pipe or culvert and the grated DIs, and the ditch in the median is the open drainage system which lead into the closed system. Mr. Logan said the drainage system met highway design standards in effect at the time I-690 was constructed and, therefore, there is no design defect.

Mr. Logan reviewed the weather forecast(34) for both April 14 and 15 along with the recorded weather information(35) for those days. Relying upon the weather, the grate cleaning performed on April 2 and April 8, 2014, and the absence of noted drainage issues in the SAFETAP report, Mr. Logan opined that the highway maintenance performed by DOT relating to draining at the location of the accident conformed to the Highway Maintenance Guidelines.(36) Section 3.432 of those guidelines reads:

"A thorough inspection should be made each spring after the snow and ice season has ended and after each heavy rainfall. Check C.B.'s, M.H.'s, and D.I.'s to determine structural repair work necessary. Frames and grates should be properly seated and sumps which need cleaning should be noted for scheduled cleaning. Pipe culverts should be checked for condition of pipe, condition of headwalls, and alignment of entrance and outlet ditches. Subsurface drains should have free flowing outlets. Debris causing obstruction to flow should be removed immediately."

Mr. Logan opined that DOT's inspection and cleaning out of the DIs at this location in April, before the accident, comported with the planned and appropriate spring seasonal schedule.

Like Mr. Hasard, Mr. Logan testified that because garbage can accumulate at any given point in time, especially after a heavy rain, anywhere there is drainage is a potential problem for flooding. Mr. Logan did not feel that the .34 of an inch of rain which fell on April 14 was not a heavy rain and would not alert DOT to send out water patrols. He noted the residency was preparing for a snow and ice event so the DOT acted reasonably.

Mr. Logan maintained that despite the rainfall on the 14th and 15th of April, the guidelines did not require additional DI inspections before or during a storm in progress. He disagreed with Mr. Hasard's testimony that based on the rainfall and forecast, DI inspections were needed on I-690. Mr. Logan did agree that as the resident engineer, Mr. Hasard was in the best position to decide what should be done in his residency. On cross-examination, excerpts from the expert disclosure were read into the record indicating that even with diligent maintenance, debris can accumulate on the drainage grate, but Mr. Logan maintained his position that DI inspections were not required whenever rain was forecast.

Missing Documents

Claimant has requested an adverse inference be drawn by the Court for Defendant's failure to produce Mr. Druce's MAMIS report of April 15, 2014, documenting his work at the scene of the accident, and Mr. Lovell's "to-do" list which he supplied to Mr. Druce before he left for vacation in April 2014.

"A party seeking an adverse inference charge against an opponent who has failed to produce a document must make a prima facie showing that the document in question actually exists, that it is under the opponent's control, and that there is no reasonable explanation for failing to produce it." (Jean-Pierre v Touro Coll., 40 AD3d 819, 820 [2d Dept 2007]). Claimant has not made the prima facie showing these documents ever existed. Neither Mr. Druce nor Mr. Lovell could remember if these documents were ever created. Both Mr. Lovell and Mr. Hasard searched MAMIS for April 15, 2014, and found no report of Mr. Druce's activities at the accident scene. Even without documentation, the testimony establishes that no water patrols were performed after April 8, 2014, at this location on I-690, and Mr. Druce did clear debris from the DI grate at the accident scene on April 15, 2014.

Claimant's Allegations

It is Claimant's position that the State selected a closed drainage system at the accident scene, yet failed to provide the necessary inspections and maintenance for this system. Claimant argues that the State had actual or constructive notice of the dangerous condition caused by the recurrent ponding of water at this location on I-690, yet it failed to inspect DIs in this area during the heavy rainstorm on April 14 and 15, 2014, and failed to warn of the potential for flooding water in the driving lanes before this accident.

Defense Allegations

The State counters Claimant's arguments contending that the State's design of the drainage system on I-690 is subject to qualified immunity, and the State had no notice of any dangerous condition at this location. The State points to the absence of prior accidents in the last three years on this heavily-traveled roadway, and the reasonableness of the State's action in maintaining the roadway with its prior inspections and cleaning of the DIs in April 2014, in accordance with its maintenance guidelines. Defendant relies upon the Storm-in-Progress Doctrine to argue that DOT acted reasonably and diligently given the precipitation that had fallen on April 14 and the morning of April 15, as well as the forecast for snow and ice that day.

Legal Discussion

The State owes a nondelegable duty to design, construct, and maintain its roadways in a reasonably safe condition under the circumstances for the traveling public (Friedman v State of New York, 67 NY2d 271, 283 [1986]). Yet, the State is not an insurer and the occurrence of an accident does not permit the Court to presume negligence (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Boulos v State of New York, 82 AD2d 930, 931 [3d Dept 1981], affd 56 NY2d 714 [2001]).

To establish the State's negligence, it is Claimant's burden to show that the State either created a dangerous condition or had actual or constructive notice of it and failed to take reasonable measures to correct it (Warner v State of New York,125 AD3d 1324 [4th Dept 2015]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979]; Rinaldi v State of New York, 49 AD2d 361[3d Dept 1975]). Claimant must also show that the State's negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020; 1021-22 [1987]; Hamilton v State of New York, 277 AD2d 982 [4th Dept 2000], lv denied 96 NY2d 704 [2001]).

It is undisputed in this case that standing water on a highway can be a dangerous condition (see Bono v State of New York, 1 NY2d 885 [1956]; Nelson v State of New York, 105 Misc 2d 107 [Ct Cl 1980]). The Court finds that the amount of accumulated water in the passing lane of this 65-mph highway was a dangerous condition, as acknowledged by virtually all the witnesses in this case. The police report and the testimony also establish that the accumulated water into which Ms. Denman-Duvall drove that morning was a proximate cause of the accident and Claimant's injuries. The key question is whether the State breached its duty of care - that is: did the State have notice of this dangerous condition and fail to warn or address the condition? After considering all of the evidence the Court finds the State was negligent.

Mr. Hasard was the resident engineer for the residency having jurisdiction over this area of I-690 for at least 12 years at the time of this accident; he testified that he was advised by his predecessor that this was an area with a chronic problem for debris collecting on the drainage grates, preventing proper drainage and posing a risk of water accumulating on the highway. Mr. Druce also considered this a problem area, and Mr. Lovell knew of water ponding near mile marker 9.5, three-to-four times in the two years prior to this accident. Mr. Hasard testified that due to the potential for flooding at this location, his HMS2 employees, like Mr. Lovell, would assign work crews to check the drainage inlets and conduct water patrols when a heavy rain was forecast or during a rain event.

Crews were sent out by Mr. Lovell to check drainage inlets on I-690 on April 4 and 8, 2014. On April 4, .32 of an inch of rain fell, and on April 8, there was .17 of in inch of rain.(37) On April 14, between .30 and 1.00 inch of rain was forecast with the potential for locally higher amounts.(38) On April 15, .30 to 1.00 inch of rain was forecast, again with potentially higher amounts possible, and the potential for 1 to 2 inches of wet snow. No patrols were sent out to check for drainage issues or water accumulation on I-690 on April 14 or 15. The evidence establishes that the grate over the drainage inlet at mile marker 9.5 had collected debris which prevented proper drainage and caused the accumulation of water on I-690 that morning. Mr. Druce removed the debris after the accident which drained the water from the travel lane. As Mr. Lovell, Mr. Hasard, Mr. Druce, and Mr. Napoleon testified, weather forecasts and experience determine when water patrols or DI inspections occur.

Although no one from DOT had actual notice of the water accumulation at this location before the accident, Claimant has established that the State had constructive notice. In Gordon v American Museum of Natural History, 67 NY2d 836 [1986], the Court of Appeals held that "[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon, 67 NY2d at 837). Constructive notice can also be imputed for a recurring dangerous condition, when Defendant has actual notice of the ongoing and recurring dangerous condition (see Chianese v Meier, 98 NY2d 270, 278 [2002] [plaintiff was assaulted in her apartment by an intruder, landlords had received prior complaints of unlocked doors and prior assault and a few burglaries over a two-year period, Court of Appeals found landlords had actual notice of a particular recurring safety issue that they could have corrected was sufficient to establish constructive notice of the specific recurrence]; Wesolek v Jumping Cow Enters. Inc., 51 AD3d 1376, 1378 [4th Dept 2008] [issue of fact whether accumulation of water on basement floor where plaintiff fell was a dangerous, frequently unremedied recurring condition, where deposition testimony indicated flooding on three prior occasions that year and frequent pockets of water on the floor]; Cappolla v City of New York, 302 AD2d 547, 548 [2d Dept 2003] [three catch basins on roadway clogged and caused flooding on roadway, city had two prior complaints about water on roadway in past 18 months, however, plaintiff failed to prove that cause of her accident was debris in catch basins]; Purdy v State of New York, 12 AD2d 834 [3d Dept 1961]

[State's actual and constructive notice of recurring debris consisting of dirt, gravel and stones washing down the slope of Purdy Avenue onto Route 9W during a rainstorm and collecting to a depth of seven inches was negligence]). Actual notice of a recurring condition, however, is different than general awareness that a dangerous condition may exist; general awareness is not sufficient to impute constructive notice (Hart v State of New York,43 AD3d 524, 525 [3d Dept 2007] [general awareness that road temperatures in rock cut areas are one-to-two degrees lower than pavement temperatures in other areas and may ice over sooner is not constructive notice that the roadway where the accident occurred was icy at that time]; Richer v State of New York, 31 AD3d 943, 944 [3d Dept 2006] [although driveway had been plowed, and adjoining ramp had been plowed and salted claimant fell on icy driveway surface that had not been treated for ice, general awareness of icy conditions did not place defendant on constructive notice of icy driveway]).

Here, there is more than just the general awareness that heavy rains can carry discarded items along the highway to block the drainage grates, rather the testimony established that this area of I-690 was chronically prone to collecting debris which occluded the grates on the drainage inlets, and DOT supervising employees had actual notice of this condition. Despite Mr. Logan's testimony that water patrols and DI inspections were not necessary on April 14 and 15, both Mr. Hasard and Mr. Napoleon testified that these tasks should have been performed. On April 4, 2014, when less rain fell, Mr. Lovell sent out water patrols and had a crew standing by in case there were water issues, as he felt the precipitation was significant enough to potentially cause the grates to clog. Mr. Hasard said that the water patrols on April 4, 2014 were a "normal pattern" for the residency.

Defendant argues that the lack of prior accidents suggests the highway is reasonably safe, and the State lacked notice of any problem, as evidenced by the SAFETAP field investigation of 2012, which noted no safety issues related to drainage. Ms. Graser stated that because drainage issues were not mentioned, no safety issues existed. The Court does not find her testimony persuasive, since although Ms. Graser was the manager of the Traffic Safety and Mobility Group and oversaw the SAFETAP investigation, she did not participate in the study, nor did she review the report before it was completed. Although the absence of prior accidents is a factor to establish that a condition is not dangerous supporting the State's lack of notice that a hazard exists, it is not conclusive (see Kelly v Town of Islip, 141 AD2d 611, 612 [2d Dept 1988]). Particularly where, here, Defendant's supervising employees agreed that water on the roadway was a dangerous condition, there were two prior accidents in the general vicinity, this area was prone to drainage issues, the roadway at mile marker 9.5 had a lower elevation, the roadway had flooded several times before and, as a normal course, inspections are done before and during rain events to eliminate the potential for roadway flooding. Claimant's injuries were caused by the exact problem these DOT employees were aware reoccurred at this location. Although DOT, apparently, typically does a good job addressing the problem, on this occasion, Mr. Lovell was on vacation, and Mr. Druce - busy with other activities - did not send out the water patrols that were the "normal pattern" for the residency.

Additionally, Mr. Napoleon testified that, typically, even when debris occludes the drainage inlet, it is not a complete blockage and some water continues to drain. With moderate rain from 8:00 a.m. until 10:00 a.m. that morning, followed by light rain until the accident, for the water to accumulate on the roadway to the extent that was present - six-to-eight inches for two-to-three car lengths - the blockage existed for an extended period of time. No one could identify exactly how long that amount of water took to form; however, Mr. Napoleon indicated it would have taken much longer than an hour for that level of accumulation.

The State argues that even if a dangerous condition existed, it is absolved of liability because DOT employees were busy working to prepare for a snowstorm and address urgent conditions related to the rain and snowstorm. Defendant relies upon the Storm-in-Progress Doctrine, which provides that despite a duty to keep its roadways reasonably safe, dangerous, slippery conditions that occur during an ongoing storm will not support a finding of the State's liability until the storm ceases and for a reasonable time thereafter (Sherman v New York State Thruway Auth., 27 NY3d 1019 [2016]; Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]; Mazzella, 72 AD3d at 756; Petrowski v Abraham, 265 AD2d 901 [4th Dept 1999] Cerra v Perk Dev., 197 AD2d 851 [4th Dept 1993]). The Storm-in-Progress Doctrine is not limited to blizzard conditions but has also been held to apply to less severe, yet, still inclement winter weather (Camacho v Garcia, 273 AD2d 835 [4th Dept 2000]). The doctrine does not relieve Defendant of its duty to maintain its roadways in a reasonably safe condition, but is a recognition of the difficulty of correcting dangerous conditions caused by inclement weather on one's property while the weather event is still occurring and until a reasonable time after a storm ceases (Powell v MLG Hillside Assoc., 290 AD2d 345 [1st Dept 2002]).

The doctrine has had very limited application to cases solely involving rain (see e.g., Hilsman v Sarwill Assoc. L.P., 13 AD3d 692 [3d Dept 2004] [fell on wet floor inside mall]; cf., Micheler v Gush, 256 AD2d 1051 [3d Dept 1998] [rain with dropping temperatures, fell on icy entrance steps]) and, instead, property owners are held to the typical standards of reasonableness without reliance on the doctrine (see Miller v Gimbel Bros., 262 NY 107 [1933]; Brown v Johnson, 241 AD2d 829 [3d Dept 1997]). In 2016, the Court of Appeals applied the doctrine to relieve the defendant of liability for failing to address an icy sidewalk outside a troopers' barracks where an "ice storm" had taken place the night before the accident and continued, despite some indication that the weather had warmed to change the freezing rain to rain (Sherman v New York State Thruway Auth., 27 NY3d 1019 [2016]). This is exactly the opposite of the weather conditions in this case. Here, before the accident, there were periods of light rain from about 5:00 p.m. on the 14th through the 15th at 7:00 a.m., with one hour of heavy rain at 6:00 p.m. From 8:00 a.m. through 10:00 a.m. on the 15th, the rainfall was moderate and then lightened until about noon. The temperature dropped from 5:00 p.m. on the 14th through 10:00 a.m. on the 15th from 76 degrees to 37 degrees and was 33 degrees before 1:00 p.m., after the accident.(39) Although .06 of an inch of precipitation was recorded at 1:00 p.m., the records fail to describe it.(40) Defendant suggests this weather prevented the DOT employees from participating in water patrols to check for clogged DIs, not because they were engaged in addressing the immediate dangers posed by the weather occurring, but rather because they were preparing for the anticipated stormy weather. This Court has not found any application of the storm in progress doctrine to relieve a defendant of its duty to use due care because of its preparation for a storm, and this Court will not extend it to these circumstances.

Moreover, both Mr. Hasard and Mr. Lovell testified that water patrols should be performed when heavy rain is forecasted or it is raining because other tasks cannot be done. Heavy rainfall, unlike snow and blowing snow, which requires full use of manpower for constant plowing and sanding on highways, does not prevent the State from unclogging a drain. In fact, here, the rainy weather in progress should have prompted water patrols and DI inspections. The snow and ice event began after the accident. Even in Sherman, the accident occurred after an icy weather event not in anticipation of it. Furthermore, there were at least 28 crew members working on April 15, 2014.(41) No evidence was presented to prove a lack of employee-power to both send out water patrols and prepare the trucks for a snow and ice event.

In light of the Court finding that Claimant met his burden on his negligent maintenance cause of action, the Court will not address Claimant's proof of the asserted design defects or Defendant's qualified immunity.

Accordingly, based upon all the evidence the Court finds the State 100 percent liable for Claimant's injuries proximately caused by this accident. All motions not previously decided are hereby DENIED. A trial on the issue of damages will be scheduled as soon as practicable.


September 19, 2017

Syracuse, New York


Judge of the Court of Claims

1. All quotes are from the trial testimony unless otherwise noted.

2. Exhibit 8.

3. Exhibit 8.

4. Deputy O'Neil notes in the report, that the accident occurred at reference markers 6901, 3301 1010. The parties stipulated that the GPS coordinates used in the police report were incorrect and the accident occurred at eastbound mile marker 9.5, or reference marker 1007 (Trial Transcript pp. 74-75).

5. Exhibits 22 and G.

6. Exhibits 22 and G.

7. Exhibits 14 and O.

8. Exhibit 11.

9. Exhibit 4.

10. Exhibit 5.

11. Exhibit 25.

12. Exhibit 27.

13. Exhibit 25.

14. Exhibit 27.

15. Exhibit 25.

16. Claimant requested "missing documents" charges. Those requests will be addressed later in this Decision.

17. Exhibit V.

18. Exhibit S, reflects three entries from Mr. Druce's radio call number.

19. Exhibit 11, is a MAMIS document from August 14, 2012 after a prior accident in close proximity to this accident. See n. 8, above.

20. Exhibit 4.

21. At his deposition, he testified that he did not enter that activity into MAMIS.

22. Exhibit 25.

23. Exhibit R.

24. Exhibit 5.

25. Exhibit 25.

26. Exhibit 10.

27. Exhibit 10. The activity on March 24, shown as a purple line on the map involved collecting garbage which Mr. Hasard testified would not relate to cleaning a median DI.

28. Exhibit 10, orange line on map.

29. Exhibit 10, blue line on map.

30. Exhibit 9.

31. Exhibit 9, labeled "D".

32. Exhibit 24.

33. Exhibit J.

34. Exhibit 27.

35. Exhibit 25.

36. Exhibit X.

37. Exhibit 25, there also had been over an inch of precipitation on April 7.

38. Exhibit 27.

39. Exhibit 25.

40. See Exhibit 25.

41. See Exhibit V.