|Claimant short name:||ESTUS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||FRIEDMAN, HIRSCHEN & MILLER, LLP
By: Jeffrey N. Miller, Esq.
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Glenn C. King, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 7, 2020|
|See also (multicaptioned case)|
This claim seeks compensation for personal injuries sustained by claimant on October 7, 2017 when she fell while stepping onto a State-owned roadway in Keeseville, New York. The trial of liability on this claim was conducted on July 1, 2019 in Albany, New York. Claimant testified and presented the testimony of New York State Department of Transportation (NYSDOT) Highway Maintenance Supervisor Alexander Benway and NYSDOT Essex County Assistant Resident Engineer Mark Bonfey. Claimant also presented portions of the examination before trial (EBT) testimony of Alexander Benway, Mark Bonfey, NYSDOT Essex County Resident Engineer George Laundrie, NYSDOT Highway Maintenance Supervisors John Napper and Eric Crowningshield, and NYSDOT Highway Maintenance Workers Derik King and Brian Pray.(1) Defendant presented the live testimony of John Napper and Brian Pray. Numerous documentary and photographic exhibits offered by the parties were received into evidence. After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of their testimony, all of the other evidence received at trial, the applicable law, and the parties' posttrial submissions, the Court concludes that defendant is liable to claimant for her injuries.
On October 7, 2017, claimant was employed by Giuseppe's Pizza, a restaurant located on Front Street, in the Hamlet of Keeseville in Essex County. Front Street, also known as State Route 9, was a state-owned highway that ran in a north-south direction, and Giuseppe's Pizza was located on the eastern side of the street. Having made approximately one dozen deliveries of pizza using her personal vehicle between 3:00 p.m. and 8:00 p.m. that day, claimant exited Giuseppe's Pizza at approximately 8:00 p.m. holding two pizzas in a carrying case in her right hand. Claimant walked south on the sidewalk toward her vehicle, which was parked approximately 25 feet away on the east side of Front Street, i.e. the same side of the street as Giuseppe's Pizza, in front of a crosswalk. It was dark at the time and it was sprinkling rain, having "just rained really hard" (T:21).(2) Claimant's vehicle was parked on top of a rectangular cutout in the asphalt pavement that abutted the northern end of the crosswalk. The cutout was filled with compacted sand and dirt, rocks, leaves and pine needles, and it was approximately two feet by three feet in dimension (see T:35; see also Claimant's Exhibit 20 [Pray EBT, p. 6, lines 5-6] [cutout was approximately three feet by three feet in dimension]).
Claimant testified that when she reached her vehicle, she reached over and opened its back door with her left hand, and stepped down off the curb of the sidewalk onto the street with her left foot "to put the pizzas in the back of the car, and with that first step, [she] only stepped half on the pavement and half into the depression [in the cutout], and it turned [her] ankle out," fracturing it (T:25). Claimant testified that her left foot stepped on the northern edge of the cutout that was perpendicular to the curb and that she hit the edge in the middle of her foot, which caused her foot and ankle to turn out. Claimant testified that the ground inside the cutout was not level with the surrounding asphalt pavement, but that she did not know how deep the ground was in the cutout at the time and did not bother looking because she was hurt. Claimant testified that the cutout "looked like a pile of leaves in the road" (T:26) and that she had not previously seen the cutout and did not feel any depression in the roadway when she pulled her vehicle into the parking space. Claimant testified that her vehicle was parked in an area with little illumination as streetlights were approximately 25 to 30 feet away in opposite directions and the businesses between Giuseppe's Pizza and claimant's vehicle were closed at the time and thus did not provide additional illumination.
Claimant testified that she returned to the accident scene the next day during daylight hours to take photographs of the cutout, two of which were received in evidence (see Claimant's Exhibits 5, 8). Claimant testified that the cutout was obscured by a vehicle that was parked over it, and that when it eventually pulled away, she saw that leaves covered the majority of the cutout to the top of the depression and that dirt was underneath the leaves. Claimant testified that the ground in the cutout was one and a half to two inches below the asphalt roadway.
NYSDOT Essex County Assistant Resident Engineer Mark Bonfey testified that he was notified by the Town of Chesterfield(3) Supervisor about claimant's accident, and Bonfey thereafter contacted NYSDOT Highway Maintenance Supervisor John Napper on October 11, 2017 and told him to go look at the location and do any repairs as needed (see Claimant's Exhibit 19 [Laundrie EBT, at p.7, lines 7-10]; see also T:98). Napper testified that he went to the location of claimant's accident and initially did not see the cutout because it was obscured by a parked vehicle, but after the car moved he observed a "square-like area next to the sidewalk on the road surface on the shoulder, [that] appeared to have sand or something to that effect covering it" (T:117). Napper testified that the dirt or sand in the cutout appeared to be flush with the surrounding pavement and that he did not consider it to be a hazard. George Laundrie, the NYSDOT Essex County Resident Engineer, testified at his EBT that a "maintenance supervisor" told him that the ground in the cutout was "a flat, level square that was slightly lower than the surrounding pavement" (Claimant's Exhibit 19 [Laundrie EBT, at p.14, lines 8-10]). Napper testified that sand can be loose and does not offer the firmest footing as compared to pavement, and that sand can turn to mud when it rains. Napper testified that he contacted NYSDOT Highway Maintenance Supervisor Eric Crowningshield, who was his supervisor, who dispatched a road crew to repair the cutout. Napper testified that the cutout should not have been left in that condition and that it should have been finished off with asphalt, which provides a safer surface.
NYSDOT Highway Maintenance Worker Alexander Benway testified that Crowningshield contacted him and informed him that someone had been hurt at the location of claimant's accident and instructed him to assess the roadway and bring cold patch to fill the void (see T:47).(4) Benway and three other NYSDOT employees, including NYSDOT Highway Maintenance Worker Brian Pray, went to the site and were initially unable to access the cutout because a vehicle was parked over it. Benway testified that the cutout was covered with dirt and debris and that the dirt was actually higher than the adjacent pavement surface. Benway testified that he initially thought that they might have been at the wrong location because "it didn't look like it was an issue" (T:60). Pray testified that the dirt in the cutout was "pretty much level" with the surrounding pavement (T:131). Benway testified that dirt does not provide the same footing as asphalt for one stepping down off a curb, as dirt is not as solid as asphalt. Benway testified that after the vehicle moved, he and the other NYSDOT employees shoveled approximately one to one and one-half inches of dirt out of the cutout down to a hard surface below consisting of fine crusher run or Item 4 mix, i.e. a gravel-stone mixture, and that they thereafter filled the depression with cold patch. Benway testified that the condition of the cutout was not the condition in which NYSDOT would have left the cutout after work was completed, and that NYSDOT would have applied asphalt to the void, making it level to the surrounding pre-existing asphalt. Bonfey similarly testified that a cutout filled with crusher run and then covered over with two inches of dirt did not meet NYSDOT specifications.
Bonfey testified that one of his responsibilities was to issue annual Highway Work Permits to municipalities within Essex County to permit those municipalities to work on utilities located under state roadways and within New York State's rights-of-way. Highway Work Permits require municipalities to notify NYSDOT prior to any work being done or within 24 hours after an emergency repair, and further that any repairs to the roadway be done in accordance with New York State specifications. Bonfey testified that although Highway Work Permits required municipalities to notify NYSDOT when a work project was completed, municipalities in Essex County rarely notify NYSDOT before or after a project has been completed under a Highway Work Permit. Bonfey further testified that NYSDOT would not ask municipalities if they had done any work on state roadways prior to the re-issuance or renewal of Highway Work Permits, and that NYSDOT is generally unaware of what work has been done by municipalities under Highway Work Permits. Bonfey testified that if NYSDOT became aware that work had been done to a state highway under a Highway Work Permit, it would inspect the repair to see if it was done properly according to NYSDOT specifications and would instruct the municipality to fix any issues if it was unsatisfactorily performed. However, Bonfey further testified that he would not have required the municipality to repair an unacceptable repair if it had been discovered two or three years after the initial repair had been made.
Bonfey testified that the cutout at the site of claimant's accident was not created by NYSDOT and appeared to have been done by the Village of Keeseville to work on a water line pursuant to a Highway Work Permit that was issued prior to the end of 2014 (see Claimant's Exhibit 15).(5) Bonfey testified that filling a cutout created to perform maintenance on a water main with crusher run and Item 4 mix with one and one-half to two inches of dirt on top would not meet New York State safety specifications. Bonfey testified that the Essex County NYSDOT residency is responsible for maintenance of all the roads within the residency, that it is required to be constantly informed about the roadways in Essex County and to repair hazardous conditions in the pavement, and that NYSDOT would fix a repair done by a municipality if it became a safety hazard over time.
Bonfey testified that NYSDOT does not conduct annual inspections to Essex County roadways to discover roadway defects, but instead relies on public complaints and NYSDOT supervisors who conduct visual inspections of roads in their vehicles. Bonfey testified that NYSDOT was not notified by the Village of Keeseville either before or after the cutout was made, and that NYSDOT had never received any oral or written complaints about the cutout prior to claimant's accident. Bonfey testified that NYSDOT painted the crosswalk that abutted the cutout annually in the springtime and that a street sweeper cleaned the area at least once a year.
The State owes to the public a nondelegable duty to design, construct, and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 ; Tomassi v Town of Union, 46 NY2d 91, 97 , mot to amend remittitur denied 46 NY2d 941 ), but it "is not an insurer of the safety of its roadways" (Tomassi, 46 NY2d at 97). "The duty to provide pedestrians with a reasonably safe place to travel extends to the foreseeable uses of a roadway by a pedestrian" (Hewitt v State of New York, UID No. 2018-045-026 [Ct Cl, Lopez-Summa, J., July 6, 2018]). To establish the State's liability, claimant must prove by a preponderance of the credible evidence that a dangerous condition existed, that the State either created or had actual or constructive notice of the condition, that it failed to remedy or warn of the condition, and that such failure was the proximate cause of claimant's injuries (see Cappolla v City of New York, 302 AD2d 547, 548 [2d Dept 2003], lv denied 100 NY2d 511 ; Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 ).
Claimant contends that the cutout was a dangerous condition, that defendant had constructive notice of the cutout, and that defendant breached its duty to inspect and repair the cutout. Defendant argues that the cutout did not constitute a hazard and that it did not have actual or constructive notice of any dangerous condition.
Claimant's actions in stepping off of the sidewalk onto the adjacent state-owned roadway to access her parked vehicle was indeed a foreseeable use, and defendant does not argue otherwise. "[W]hether a dangerous or defective condition exists . . . so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the [finder of fact]" (Trincere v County of Suffolk, 90 NY2d 976, 977  [internal quotation marks omitted]. Here, there was conflicting testimony as to whether there was a difference in elevation between the ground in the cutout and the surrounding pavement. However, the evidence clearly establishes that the softer sand and dirt surface in the cutout provided a dramatically different surface than the harder asphalt pavement surrounding the cutout. While the differences in those two surfaces may not have posed a hazard to a vehicle traversing that area of Front Street, it certainly posed a hazard to claimant, who undoubtedly expected to encounter a solid and hard asphalt surface as she alighted the curb, and whose foot was unexpectedly caused to turn out as it straddled the uneven surfaces. Therefore, under the specific facts and circumstances presented by this case, the Court concedes that the condition of the cutout constituted a dangerous condition to claimant that day.
There was no evidence that defendant's agents created the cutout, or had actual notice of its existence, and thus liability will lie only if defendant had constructive notice of the defect. "To 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 v American Museum of Natural History, 67 NY2d 836, 837 ). The evidence fairly establishes that the cutout was likely created no later than December 31, 2014 by the Village of Keeseville, and thus was present in the roadway for no less than 33 months before claimant's accident. Further, the evidence establishes that NYSDOT employees were in close proximity to the cutout through their annual street sweeping and crosswalk painting operations, and therefore had the opportunity to discover the defect. Thus, the evidence clearly establishes that defendant had constructive notice of the dangerous condition.
Turning next to proximate cause, claimant "must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 , rearg denied 52 NY2d 784 , mot dismissed 52 NY2d 829 , rearg denied 52 NY2d 829 ). As the Court of Appeals has recognized:
"[Claimant] need not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently 'remote' or 'technical' to enable the [factfinder] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence. A [claimant] need only prove that it was 'more likely' or 'more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency"
(Gayle v City of New York, 92 NY2d 936, 937  [internal citations omitted]). A preponderance of the evidence manifestly supports a finding that claimant's injuries were more likely caused by the existence of the defective condition than some other cause inasmuch as claimant provided undisputed testimony that the uneven surfaces caused her foot to turn, breaking her ankle when she stepped down from the sidewalk onto Front Street.
Defendant does not argue that claimant was at fault, and inasmuch as claimant's accident occurred at night in a place without illumination and the cutout was obscured by leaves, there is no evidence establishing claimant's comparative negligence. Thus, defendant is 100% liable for the injuries claimant sustained as a result of her fall on October 7, 2017.
Defendant is 100% liable to claimant. The Chief Clerk is directed to enter an interlocutory judgment to this effect. Any motions not previously ruled upon are hereby DENIED. The claim will be scheduled for trial on the issue of damages as soon as practicable.
January 7, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. The EBT testimony of NYSDOT Essex County Assistant Resident Engineer Mark Bonfey was marked for identification as Claimant's Exhibit 22, and portions of Bonfey's EBT testimony that claimant sought to be included in the record were identified in Exhibit 16, but Exhibit 22 was not offered at trial due to an oversight. After conferring with counsel, the Court received Claimant's Exhibit 22 posttrial without objection (see "So Ordered" Correspondence of the Hon. W. Brooks DeBow, dated December 10, 2019).
2. All references to the trial transcript are designated by "T."
3. The Hamlet of Keeseville is located within the Town of Chesterfield.
4. Benway held the position of Highway Maintenance Supervisor at the time of trial. Cold patch is an asphalt mixture that is used for road repairs.
5. The Village of Keeseville dissolved on December 31, 2014 (see Claimant's Exhibit 10).