New York State Court of Claims

New York State Court of Claims
LITTLE v. STATE OF NEW YORK, # 2021-053-002, Claim No. 131167

Synopsis

Following a trial on the issue of liability only, the Court determined that claimant established that the State had constructive notice of the existence of a pothole and that it was a proximate cause of the accident and claimant's resulting injuries. Claimant's negligence determined to be the primary cause of the accident and liability was apportioned with 25% against the State and 75% against claimant.

Case information

UID: 2021-053-002
Claimant(s): HELEN R. LITTLE
Claimant short name: LITTLE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131167
Motion number(s):
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: BLACK, LYLE & HABBERFIELD, LLP
BY: Ethan M. Lyle, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Timothy J. Flynn, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 15, 2021
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Helen R. Little alleges that on May 16, 2017, she was caused to fall and injure herself when a wheel of her scooter went into a pothole causing it to tip while she was attempting to cross a state highway known as Route 305 near its intersection with Route 446. On August 3, 2017, a Notice of Intention to File Claim was received in the Office of the Attorney General of the State of New York. A claim was filed on March 21, 2018 with the Clerk of the Court of Claims alleging that due to the negligence of the defendant State of New York the claimant incurred a fracture to her right hip. On May 3, 2018, the defendant filed an answer denying claimant's allegations.

On October 26, 27 and 28, 2020, a trial was conducted on the issue of liability only in Buffalo, New York, where testimony in support of the claim was received from claimant and her two daughters, Alyse Hayward and Heather Mekkelson, as well as an expert witness, Steven Schneider. Testimony was also received from employees and former employees of the New York State Department of Transportation (DOT), including Shawn Whitney, Kim Faulkner, Kenneth Spinks and Jonathan Engels. The defendant also presented testimony from an expert witness, John R. Williams. Following the trial, the parties requested and were granted an opportunity to prepare and submit post-trial memoranda on January 22, 2021.

FACTS

Claimant Helen R. Little testified that she has lived at her present address in the Village of Cuba, New York for the past seven years, including the day of the subject accident. She is 70 years old and has three adult children and six grandchildren. Claimant stated that she is a diabetic and experiences neuropathy in her feet. As this condition makes it difficult for her to walk long distances, she uses a mobility scooter to get around. Claimant testified that prior to the accident she would use the scooter once or twice per week.

On the day of the accident, May 16, 2017, claimant testified that she planned to go for dinner at a local restaurant called Charlie's. She would be joined by her two daughters and their children and then they planned to attend a student art showcase at the nearby elementary school. Claimant testified that the restaurant was located on Route 305, also known as Genesee Street, near its T-intersection with Route 446, which was also known as Water Street. Claimant testified that she drove the scooter from her home to the restaurant. Following dinner, she intended to drive her scooter to the school by exiting the restaurant parking lot and cross Route 305 near the Route 446 intersection. Claimant testified that when she left Charlie's, she allowed her five-year old granddaughter, Elizabeth, to get on the scooter with her before she crossed Route 305.

The claimant testified that photo Exhibits 7 and R depict Route 305 and its intersection with Route 446 as she observed it on the day of the accident. She stated that the nearest crosswalk from the restaurant parking lot was to go south along Route 305 towards the cheese shop depicted in the photo exhibit but she did not use that route because there was no sidewalk available. As a result, claimant went across Route 305 from the restaurant driveway in order to reach the crosswalk at Routes 305 and 446. Claimant testified that she went to her left as she crossed Route 305 to reach the crosswalk. At this point, claimant stated that she felt the back wheel of her scooter tip and she fell to the pavement. Claimant stated that as she drove the scooter on Route 305 towards the crosswalk, her granddaughter Elizabeth was standing on the scooter in front of her. She testified that when the scooter tipped, Elizabeth stepped off. Claimant testified that as she was on the pavement she observed that the scooter's wheel was above a pothole and that the pothole was located near the side edge of the southbound lane. She did not see the pothole prior to her accident and described it as big, deep and oval in shape. The claimant identified the pothole as being the one depicted in photo Exhibits 2 and 4. Following her fall, claimant testified that she felt pain in her hip and would not let anyone assist her to get up. She stated that she laid in the street and did not move until the ambulance arrived.

On cross-examination, the claimant was asked additional questions about her three wheel "Go Go" scooter. She stated that it was prescribed by her doctor and that she used it once or twice per week. The scooter had one wheel in front, two wheels in the rear and was battery operated. Claimant testified that the scooter had a steering bar in front and a lever connected to it for acceleration. She stated that the scooter has no seat belt or brakes.

Claimant testified that she was familiar with the area of the subject intersection but did not recall seeing the pothole previously. She testified that the top of her granddaughter's head was below her chin as she stood in front of her on the scooter. Claimant testified that immediately prior to the incident, she was looking straight ahead and "down some." Claimant was then read her deposition testimony in which she had testified that she was not looking at the roadway immediately prior to the incident and had stated that she was looking straight forward, "looking where I was going. I wasn't looking down at the road." Claimant testified that her granddaughter was holding onto the knob in the center of the steering bar. She stated that it was the right rear wheel of the scooter that went into the pothole and caused it to tip onto its right side.

Claimant identified photo Exhibits Q and R as depicting the crosswalk at Route 446 and that the blue line and circle with her initials was where she marked the route she took with her scooter from the west side of Route 305. Claimant stated that she was heading towards the crosswalk at Route 446 that is depicted in the photo when her scooter encountered the pothole. She also identified photo Exhibit S as depicting the T-intersection of Routes 305 and 446, the crosswalk, the gravel path, and the diagonal lines along Route 305 leading to it. Claimant testified that she did not use that part of Route 305 marked with diagonal lines as cars would use that area to go around vehicles waiting to turn onto Route 446. In fact, photo Exhibit S shows a pick-up truck going around a vehicle on the diagonal lines as claimant had testified.

Claimant testified that Exhibit B depicted a scooter similar to the one she was riding on the day of the incident. She stated that the scooter wheels did not work following her accident and it was taken apart into four pieces. She purchased the scooter at Mobility Plus and when she picked it up it was in four pieces and her daughter helped her put it together. Claimant testified that she was aware that the scooter was not intended to carry passengers. She did not know if the scooter could operate on public streets or if it could operate on packed soil or gravel. Finally, she testified that she did not know whether the scooter's center of gravity would be impacted by carrying a passenger.

On redirect examination, claimant was shown photo Exhibit 7, which she stated depicted the driveway leading out of the restaurant parking lot. She testified that there was no safe way for her to get to the intersection crosswalk from the restaurant side of Route 305 as there was no sidewalk to gain access to the crosswalk. She also stated that she did not go straight across Route 305 to the hardware store parking lot because cars were coming out of it and she saw no traffic on Route 305. Claimant identified photo Exhibit Q and testified that she had placed the circle with her initials on it and stated that this photo shows the pothole that is also depicted in photo Exhibit 2.

Alyse Hayward, claimant's daughter, testified that she has lived in the village of Cuba her entire life. She stated that she went to Charlie's on the day of the incident, where she met her mother and sister. Hayward testified that after dinner, they had intended to go to the Cuba Elementary School for the student art show. She testified that she and her sister planned to drive to the school and that their mother would ride her mobility scooter. Hayward stated that they had agreed that her daughter, Elizabeth, would ride to the school with claimant, which she had done previously.

Hayward testified that as she was backing her car out of a parking space in the Charlie's parking lot, she observed her mother lying in the road. She stopped, got out of her car and crossed Route 305 to where the claimant lay. Hayward testified that her mother told her that she was hurt and did not want to be moved. She stated that her sister was already by her mother's side at the time she arrived. Hayward testified that she placed Elizabeth in her car and drove it across the street to the hardware store parking lot. She stated that her mother was almost to the opposite side of Route 305 where she was lying in the road and that the scooter tire was over the top of the pothole. Hayward described the pothole as big, deep and oblong in shape. She testified that she left her mother and took the children to the school art show while her sister followed claimant in the ambulance. Hayward returned 1 hours later to take photographs of the pothole after speaking with her sister from the hospital. She identified photo Exhibits 1 through 6 as the photographs she took that evening of the accident scene and pothole. Hayward testified that she observed her mother's scooter lying over the top of the pothole and that the pothole in the photo exhibits looks the same as it did on the evening of the incident.

On cross-examination, Hayward stated that her daughter had previously ridden on the scooter with claimant many times. She testified that her daughter would ride between her mother's legs and that the top of her head was at the level of her mother's chin. Hayward did not know how many people the scooter was designed to ride and testified that when it was purchased, they were not told how many people could be on the scooter at once.

Heather Mekkelson testified that she is the claimant's oldest daughter and that she has lived in Dansville, New York for the past year but had lived most of her life in Cuba, New York. Mekkelson confirmed that she, claimant and her sister, Alyse Hayward met at Charlie's for dinner and intended to go to the art show at the Cuba Elementary School. Following dinner, Mekkelson stated that she was in the process of backing her car out of its parking spot when she turned her head and observed that claimant had tipped over with her scooter to the right and was lying in the road. She testified that she immediately crossed Route 305 and parked her vehicle in the hardware store parking lot, and then went to check on her mother.

Mekkelson testified that when she came to her mother's side, claimant stated that she was really hurt, did not want to be moved and requested an ambulance. She stated that it was at this point that her sister Alyse Hayward came to assist. Mekkelson also testified that the scooter had tipped to the right and she saw a pothole that the scooter was still partially in near the white line on the highway at the side of the road opposite Charlie's restaurant. She described the shape of the pothole as being rather large, with three levels of depth and oblong in shape. Mekkelson identified photo Exhibits 2 through 6 as depicting the accident scene and the pothole that her mother had fallen into that evening.

On cross-examination, Mekkelson stated that she had briefly observed her sister's daughter, Elizabeth, on the scooter and that she was standing between her mother's legs as she was seated on the scooter. She also testified that she had previously seen Elizabeth on the scooter with her mother, but had no recollection of how many times. Mekkelson testified that her mother had owned the scooter for about a year and that she was not involved in its purchase.

Shawn Whitney testified that he has been employed with DOT for the past 25 years and is presently the Assistant Resident Engineer for DOT Residency 61. He testified that he has held this position since the time of the subject incident and is second in command behind the Resident Engineer, Jonathan Engels. Whitney testified that photo exhibit 7 accurately depicts the T-intersection of Route 446 and 305 looking southbound. He stated that Highway Maintenance Supervisor 2 (HMS2) employees report directly to him and that Ken Spinks was the HMS2 responsible for Route 305 at that time. He also testified that Kim Faulkner was the HMS1 for Route 305. Whitney identified the reference marker system utilized for state highways, which contain the designation RM and these markers are placed every 1/10 of a mile. He stated that the closest RM to the subject intersection was RM 13.4.

Whitney also identified the Daily Work Reports for the area of the subject intersection, which were received in evidence collectively as Exhibit 11. He testified that the Daily Work Report for January 18, 2017 (Bates stamp 16) detailed pothole repairs between RM 12.8 and 13.3 that were performed with cold patch and was indicated to be "demand work," meaning that it was work not planned but was performed based upon need. Whitney also identified Daily Work Report (Bates stamp 17) dated January 19, 2017 as detailing pothole repairs in the subject area and that 2 tons of cold patch was utilized. Similarly, he identified Daily Work Report (Bates stamp 21-22) as detailing pothole repairs between RM 13.0 and 13.3 that utilized six tons of cold patch. Whitney testified that there were issues that winter with the highway just south of the subject intersection and that this section was in bad condition. He also testified that spring is typically the worst time of year for potholes. Whitney further identified Daily Work Reports for March 13, 27 and 31, 2017 for the subject area (Bates stamp 24, 25-26 and 27-28, respectively). He stated that there was no documented work performed during April 2017 on this section. Whitney testified that the Daily Work Report for May 16, 2017 (Bates stamp 31) involved the subject area and that the work performed on that date was the inspection of signs.

Whitney was then shown photo exhibits 2 and 4 of the pothole and identified the location as being on Route 305 near Route 446. He testified that he was not aware of this pothole existing prior to May 16, 2017 and did not know how long that it would take to form. Whitney testified that there was no public sidewalk on the side of the road where the restaurant was located, only a gravel path. He stated that DOT did not construct the gravel path. Whitney stated that the white hash lines in photo exhibits 2 and 4 were to indicate to motor vehicle traffic to move over and that it is not to be used as a driving lane. He testified that he has seen people drive onto the white hash lanes to pass vehicles even though they are not supposed to do so.

On cross-examination, Whitney testified that the issue they were dealing with on Route 305 was the brick underlayment and that this issue started a couple hundred feet south of the subject intersection. He stated that the intersection of Routes 305 and 446 did not have that same issue with the brick underlayment as the intersection had a concrete base. Whitney testified about the formal and informal inspection process for potholes during the winter months between November and April. He stated that there was no DOT documentation indicating that they were aware of this pothole prior to the claimant's accident. Whitney identified photo exhibit Q as depicting Route 446 and the crosswalk with Route 305 from the restaurant side of the street. Once again, he stated that DOT had no prior knowledge of this pothole and if they had, it would have been filled with cold patch.

Kim Faulkner testified that he retired from DOT in 2019 and that he was employed by DOT at the time of the incident. He stated that his title was HMS1 and he was responsible for inspecting, maintaining and repairing highways. Faulkner stated that he was given his work assignment daily by Kenneth Spinks, who was a HMS2 and that he would prepare the Daily Work Report. Faulkner also testified that he was not aware of the subject pothole prior to claimant's accident. He could not provide any time frame as to when this particular pothole formed. Faulkner testified that inspecting for potholes was part of his job. He could not recall the last time he inspected the area of the subject intersection prior to claimant's accident. Finally, he testified that he was not aware of any complaints about the pothole that was depicted in photo exhibit 2.

Kenneth Spinks testified that he is employed by DOT and that as of the time of claimant's accident, his title was HMS2. He stated that his job responsibilities included the inspection of roads and rights of way and that he assigned work daily to two work crews under his direction. Spinks stated that 70% of his work was in the field and that Kim Faulkner was a HMS1 who reported to him. He testified that he was on medical leave at the time of claimant's accident and did not return until the middle of June 2017. Spinks testified that it was the duty of the HMS1 to prepare the Daily Work Report and he did not prepare any portion of it. He was shown photo exhibit 2 depicting the subject pothole and testified that he was not personally aware of its existence at the time of the incident. Spinks testified that several factors contributed to the formation of a pothole dependent upon the time of year. He stated that in the spring, a pothole could come into existence overnight or it could take two to three weeks to form. Spinks stated that if he had come across a pothole like this in the spring of 2017, he would have filled it with cold patch. He also testified that Faulkner was the HMS1 responsible for Routes 305 and 446. Spinks testified that prior to the subject incident they had received no complaints about a pothole at this intersection and that he had personally never observed it.

Jonathan Engels testified that he has been employed by DOT for 22 years and is the DOT Resident Engineer in Allegany County, known as Residency 6-1. He stated that he has held this position for nine years, including the day of the claimant's incident. Engels testified that he was responsible for all highway maintenance activity, including inspection, maintenance and repair of the highways situated in this area, which includes Routes 305 and 446. He confirmed that Faulkner was responsible for the subject intersection. Engels identified the subject intersection in photo Exhibit 7 and had not seen the pothole depicted in photo Exhibit 2 prior to claimant's incident. He was aware that there were issues with a section of Route 305 that was 200 to 300 feet south of the subject intersection. Engels testified that the responsibility to inspect roads for potholes was delegated to the HMS1 and HMS2 employees.

Engels was questioned about Route 305 at the restaurant and its intersection with Route 446 where claimant's accident occurred. He testified that he was aware that the side of Route 305 where the restaurant was situated did not have a public sidewalk and that claimant's only option was to use the shared use lane (the white hash marked area) to travel up to the intersection crosswalk. He stated that motor vehicle traffic is discouraged from using the shared use lane but that there were no signs directing who could use this shared use lane. Engels stated that alternatively, claimant could go from the restaurant driveway across Route 305 to the hardware store or cross diagonally to the subject intersection as she attempted to do on the day of the incident.

On cross-examination, Engels reiterated that the only known problem with Route 305 was 200 to 300 feet south of the Route 446 intersection and dealt with the brick base underlayment that was constructed around 1911. He testified that the subject intersection was constructed in 1965 and that it had an 8 inch concrete base. Engels stated that the roadway at Route 446 would have asphalt to a depth of 1 inches, with an underlayment of 8 inches of gravel and 8 inches of concrete. He identified Exhibit G as the Record Plan for the reconstruction of Route 305 from Route 446 north. Engels also identified Exhibit H, a portion of this Record Plan that he had prepared. He identified Exhibit J as the DOT Highway Safety Investigation Report for the Cuba area, including Route 305. Engels stated that this was prepared for a paving capital project performed on Route 305 in 2014, the last paving project prior to claimant's incident. He also identified Exhibits M and O, a detail of the accident history and collision diagram between January 2016 and December 2018 for the subject area. Engels was questioned with the use of photo Exhibit 6 as to what was depicted in the pothole at the subject intersection. He testified that it was difficult to be certain but that it appeared to be mud or part of the underlying concrete base. He testified that from this photograph it appeared that the asphalt had deteriorated and had exposed the concrete base.

Steven Schneider is an engineer who was retained by claimant and testified as an expert witness. Schneider testified that he was provided with photo Exhibits 1 through 6 in preparation for his testimony. He testified that photo Exhibit 2 showed that there was a complete deterioration of that section of Route 305 that would have occurred over a period of six to eight weeks and that this deterioration occurred as a natural process. Schneider opined that based upon his observations of these photo exhibits, the defendant should have been aware of the existence of this pothole prior to the date of claimant's accident.

On cross-examination, Schneider stated that he never visited the accident site and was aware that claimant was driving a scooter at the time of her fall. He was also asked why he believed that the pothole took six to eight weeks to form and stated that it was because traffic was not that heavy at this intersection and that there were many possible causes for it to form, including weather conditions. Finally, Schneider opined that based upon the size of the pothole, it would not have formed quickly.

John R. Williams testified as an expert witness on behalf of the defendant. Williams testified that he was previously employed by DOT for 35 years and that his last position was as Regional Director of Region 9. He stated that he was provided with and reviewed the record plans (Exhibits G and H), the accident data, diagrams and other DOT records (Exhibits M, O, J and K), and the deposition transcripts. Williams was also present to listen to the testimony of Engels.

Williams testified that he went to the accident scene and found similar conditions at the subject intersection when he was viewing it. Referencing to photo Exhibit Q, he testified that he found the pavement to be in good shape. Williams identified Route 305 in photo Exhibit 7 and testified that the markings on the shoulder of the southbound lane were placed to discourage vehicles from going onto it and that he found all signs and markings were in good operating condition at the time of claimant's accident. Williams testified that claimant had two options to cross Route 305, one going straight across the street to the hardware store driveway where there was a useable sidewalk. The second option was to travel southbound on the delineated hash marked shoulder facing traffic until she reached the crosswalk at the Route 305 and 446 intersection.

When viewing the pothole depicted in photo Exhibit 2, Williams testified that it was located close to the curb and it exhibited stress to the concrete overlayment that was evidenced by a longitudinal crack. He also stated that based upon his experience, this photo exhibit detailed loose aggregate on the edge and there was a remnant of cracked sealer in the middle of the pothole. Williams could not opine as to how long the pothole had existed and was equivocal as to whether it had existed for a short or long period of time. He also testified about DOT's sufficiency rating classification to highways and that in 2017, this intersection had a rating of 6, meaning that its condition was fair with some distress present. Williams review of Exhibits M and O indicated that there were no pedestrian or bicycle accidents at this intersection during the relevant time period.

Based upon his inspection of the accident scene, his review of exhibits and deposition testimony, it was Williams opinion that the road had been properly maintained and the Daily Work Reports indicated that the subject intersection was in fair condition and operating safely. It was also his opinion that you could not tell from the photo exhibits how long it took for the pothole to form or whether it was caused by a singular event or a series of events. Finally, Williams opined that claimant had alternative paths to safely cross Route 305 and reach the Route 446 intersection on her scooter other than the path she chose.

On cross-examination, Williams testified that he visited the subject intersection on September 14, 2020, about three years after the claimant's accident. He agreed from review of the Daily Work Reports that there was no presence of DOT personnel working at this intersection during the first 15 days of May 2017. Williams admitted that an accident involving a pedestrian that did not involve a motor vehicle, such as claimant's accident, would not be included in the Accident History for Location Report (Exhibit M). As a result, he agreed that not all accidents at the subject intersection involving pedestrians would be documented, only traffic related accidents. Williams testified that if the pothole had been in existence for six to eight weeks as testified to by claimant's expert witness, he believes DOT would have been aware of it and repaired it. With respect to the delineated shoulder markings on the southbound lane of Route 305, Williams stated that the shoulder markings are not meant to discourage pedestrian use, but that he did not know how pedestrians would be aware of that fact. Finally, with respect to the DOT pavement classification score of 6, Williams testified that the fair rating meant that there was some deterioration on the entire roadway and that the rating did not score specific points or locations.

LAW AND ANALYSIS

The State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579 [1960]). The State is not, however, an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]). The claimant has the burden to show that the State either created a dangerous condition or had actual or constructive notice of the presence of a dangerous condition and then failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to constitute constructive notice, it has been held that a defect must be visible, apparent and exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Finally, the State cannot be held liable "unless its ascribed negligence is a proximate cause of the accident" (Ring v State of New York, 270 AD2d 788, 789 [3d Dept 2000]).

The claimant contends that her scooter struck a dangerous pothole on Route 305 causing it to tip and her ensuing personal injuries. She alleges that the State had constructive notice of the pothole prior to the accident because of its size and proximity along this state highway in the Village of Cuba. Steven Schneider, claimant's expert witness testified that photo Exhibit 2 showed that there was a complete deterioration of that section of highway where the pothole formed and that due to its size, this was a natural process that would have occurred over a period of six to eight weeks. He opined that it took six to eight weeks for the pothole to form because traffic was not heavy at this intersection and based upon its size, the pothole would not have formed quickly. Schneider opined that given the period of time it took for this pothole to become this size, the State should have been aware of its existence prior to the date of claimant's accident.

The State's expert witness, John R. Williams, was also questioned about photo Exhibit 2 and testified that he found that the pavement exhibited stress to the concrete overlayment as evidenced by a longitudinal crack. He also testified that there was loose aggregate on the edge and a remnant of cracked sealer in the middle of the pothole. Williams did not offer an opinion as to how long the pothole had existed and would not commit to how long he believed that it had been present.

Upon listening to and evaluating the testimony of Mr. Schneider and Mr. Williams and viewing photo exhibits 1 through 6, I found Mr. Schneider's expert testimony more convincing and thus find that the size and depth of the subject pothole indicates that it existed for at least six weeks prior to claimant's accident. Also, Mr. Whitney, whose testimony I also found credible, testified that the spring season when the subject pothole formed is the worst time of year for pothole formation due to freeze and thaw cycles. Whitney also testified that no work was performed by any DOT employees in the vicinity of the intersection of Routes 305 and 446 during April 2017 and the first two weeks of May 2017, the six week period prior to claimant's accident. I find that it was in all likelihood during this time period that the subject pothole formed. Accordingly, I find that the preponderance of the evidence at trial established that the subject pothole was visible and apparent and had existed for a sufficient length of time prior to claimant's accident to constitute constructive notice to the defendant of its existence, and that the defendant was responsible to discover and remedy it (Gordon, supra at 837).

Upon listening to the testimony of the claimant, I find that the preponderance of the credible evidence established that the rear right tire of claimant's scooter passed over the subject pothole causing the scooter to tip and that this was a proximate cause of this accident and claimant's resulting injuries. The defendant argues that claimant should be held wholly responsible for causing this accident in that she chose to carry her granddaughter on her mobility scooter, which obstructed her ability to see any potential hazards on the roadway in front of her, including the subject pothole. The Court takes judicial notice of Vehicle and Traffic Law 1272 and finds that claimant violated this statute by permitting her granddaughter to stand in front of her and between her arms and legs as she crossed Route 305.(1) The photo exhibits clearly depict that the subject pothole was open and apparent to a pedestrian crossing Route 305. Although it would not have been visible from the restaurant parking lot, if claimant had been riding her mobility scooter without the granddaughter obstructing her view, she would have noticed the pothole as she approached it and have been able to steer around it without incident. Accordingly, I find that claimant was negligent in failing to exercise due care in the operation of the mobility scooter and that her inability to see the road surface as she crossed Route 305 to reach the crosswalk at the intersection of Route 446 was also a proximate cause of the accident and her injuries.

As to the issue of comparative negligence, I find that claimant must bear primary responsibility for her injuries. In this regard, CPLR 1411 provides that in any action to recover damages for personal injury, the culpable conduct attributable to the claimant, including contributory negligence, shall not bar recovery but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant bears to the culpable conduct which caused the damages. I therefore conclude based upon the evaluation of all proof offered at trial that liability should be apportioned between the parties with 25% liability against the State and 75% liability against claimant for her comparative negligence.

In addition to the allegations of negligence against the State, claimant also alleged that the State was negligent in the design and construction of the subject highway. I find that claimant failed to offer sufficient proof at trial to establish liability against the State for this cause of action and it is dismissed. As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.

March 15, 2021

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims


1. Specifically, I find that claimant violated subdivision 1 of this statute, which provides that "[n]o electric personal assistive mobility device shall be used to carry more persons at one time than the number for which such device is designed and equipped. No person operating an electric personal assistive mobility device shall carry any person as a passenger in a pack fastened to the operator or fastened to such device."