New York State Court of Claims

New York State Court of Claims

WYDYSH v. THE STATE OF NEW YORK, #2003-009-121, Claim No. 91169


These claims were joined for a trial on liability, alleging that the State failed to properly salt, sand, and patrol a portion of NYS Route 11, thereby creating a dangerous condition which proximately caused the motor vehicle accident in which claimants' decedents were killed. The Court found that the State was on notice that the area of the roadway in which the accident occurred was subject to a recurring icing condition, that it was reasonably foreseeable that ice could develop on the roadway due to the existing weather conditions, that the State failed to patrol the area, all of which constituted a deviation from reasonable standards of highway maintenance. The Court further found no evidence of any comparative negligence on the part of the vehicle operator, and therefore found the State fully liable for the accident.

Case Information

GREGORY F. WYDYSH and DONNA M. WYDYSH, Administrators of the Estate of CHRISTIAN B. WYDYSH, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
BY: Matthew E. Whritenour, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Christopher Wiles, Esq., and
Heather R. Rubinstein, Esq.,
Assistant Attorneys General,Of Counsel.
Third-party defendant's attorney:

Signature date:
September 29, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

These claims arise from a two-vehicle accident which occurred on November 23, 1994, on New York State Route 11 in the Town of Cicero, Onondaga County. On that date, Christian B. Wydysh was driving his vehicle southbound on Route 11 when he lost control of his vehicle, and slid across the center of the highway into oncoming traffic where he collided with a northbound vehicle. Nicole E. Dawson was a passenger in the Wydysh vehicle. Tragically, both Mr. Wydysh and Ms. Dawson died as a result of the injuries suffered by them in this accident.

Separate claims were brought by the estate representatives of Mr. Wydysh and Ms. Dawson. Since there were no separate issues of law or fact affecting these claims, by order of this Court the claims were joined for the limited purpose of a bifurcated trial as to liability. This decision, therefore, addresses that issue only.

On November 23, 1994, decedent Christian B. Wydysh was proceeding southerly on Route 11, accompanied by a passenger, Nicole E. Dawson, at approximately 10:00 p.m.
In an area approximately one mile north of the intersection of Route 11 with New York State Route 31, Mr. Wydysh lost control of his vehicle at a point in the highway where there existed a slight curve and downgrade. His vehicle then proceeded to slide sideways, entering the northbound line of traffic, where it then collided with a northbound vehicle operated by one Raye S. Farrar, Jr.
New York State Trooper Paul F. Carney and Investigator Jack R. Baum responded to the accident. Both Trooper Carney and Investigator Baum testified at trial, and the police accident report prepared by them for this accident was admitted into evidence (see Claimants' Exhibit 2).

Although he described the road conditions at the point of impact as clear and dry, Investigator Baum testified that there was a section of glare ice which covered the entire road surface approximately 100 feet north of the final position of the vehicles involved in the accident. Based upon his observations at the scene, including the area of glare ice as well as the distinct tire marks which had been left on the roadway surface from the Wydysh vehicle, Investigator Baum concluded that the Wydysh vehicle had lost control and started to slide on the icy surface, and not on the clear and dry roadway. In his report, Investigator Baum attributed two factors to the accident: (1) the ice-covered roadway combined with the curve and downgrade, and (2) driver inexperience.

Trooper Carney, in his accident report, listed unsafe speed and slippery pavement as contributing factors to the accident.

Other witnesses at the trial also confirmed that glare ice covered the highway a short distance north of the accident location. Darren L. Ladue, Chief of the Town of Cicero Fire Department, had also responded to the accident scene. He testified that it was very difficult for people and vehicles at the scene to traverse the area because of the glare ice condition.

Based on the testimony produced at trial, and the documents entered into evidence, this Court finds that claimants have established that the accident was caused when Mr. Wydysh lost control of his vehicle on the extremely icy roadway on Route 11.

Claimants allege in their respective claims that the State failed to properly salt, sand, and patrol the area in question, thereby breaching its duty to maintain Route 11 in a reasonably safe condition. Specifically, claimants contend that the State failed to properly spread a mixture of salt and sand as provided by relevant Highway Maintenance Guidelines developed for the State Department of Transportation, thereby creating a hazardous condition at the site of the accident. Additionally, claimants allege that the State had actual and/or constructive notice of a recurring hazard at the accident location, and failed to timely remedy it.

Claimants produced the testimony of William R. Sherman, a certified meteorologist. He testified that on the day of the accident, November 23, 1994, there was a general snowfall over the Syracuse area, including the accident site, from approximately 8:30 a.m. until approximately 12:00 noon. There was no further snowfall, except for a trace of snow precipitation at approximately 6:30 p.m. to 6:45 p.m. The temperature steadily dropped during the day, from the low 30's (F.) to 19 degrees (F.) at 10:00 p.m., or approximately one degree per hour. Additionally, Mr. Sherman testified that there were windy conditions in the area throughout the day, with the winds coming from the northwest or west, and gusting from 25 to 30 miles per hour.

Richard A. Panek, an employee of the State Department of Transportation, also testified. He testified that he was the plow operator who, on the day of the accident, was assigned to the route which included the accident location. He testified that he made three "runs"[1]
. He began each run at the intersection of Route 11 and Route 31, proceeding north on Route 11 to the Onondaga County line in Brewerton. He then turned his truck around and plowed south on Route 11 back to the intersection of Route 31 and Route 11. He then proceeded west and plowed Route 31 to a location just past the Great Northern Mall in Onondaga County, and then turned around and plowed east on Route 31 back to the intersection with Route 11. Once he completed this route, Mr. Panek testified, he then plowed Route 11 north to the county line, turned his vehicle around again, and plowed Route 11 south back to its intersection with Route 31. Mr. Panek testified that his first run began at approximately 8:15 in the morning, and lasted close to two hours; his second run began at 11:00 a.m. and ended at approximately 12:30 p.m.; and his third run began at roughly 4:00 p.m. and ended at approximately 6:40 p.m.
On each of these runs, Mr. Panek testified, he spread salt only on the road. He further testified that the load of salt enabled him to plow and salt his first run north and south on Route 11, and west and east on Route 31. However, when he plowed Route 11 north and south the second time during each run, he did so without spreading any salt, since there was none left on the truck. He further testified that during his second trip up and down Route 11 at the end of each run, he noticed that there were approximately four or five areas that he termed "blow-over" areas, in which the winds from the west blew snow across and onto the roadway.

Mr. Panek testified that after completing his third and final run, he remained at the garage from approximately 6:40 p.m. until 9:30 p.m., when he was sent home by the head foreman, Lynn Webb.

It is well settled that the State, as a landowner, has an affirmative duty to maintain its property, including its roads and highways, in a reasonably safe condition (see,
Friedman v State of New York, 67 NY2d 271; Basso v Miller, 40 NY2d 233). The State, however, is not an insurer of those using its highways, but instead must exercise reasonable diligence in maintaining its highways against foreseeable hazards. (Slaughter v State of New York, 238 AD2d 770). The mere fact that an icy area is present in a roadway, combined with the fact that a claimant lost control of this vehicle, does not establish, without more, negligence against the State (Freund v State of New York, 137 AD2d 908, lv denied 72 NY2d 802; Johnson v State of New York, 265 AD2d 652).
In these claims, claimants contend that the State created the hazard by spreading salt only on Route 11, rather than a mixture of salt and sand as called for in Department of Transportation Highway Maintenance Guidelines (see Claimants' Exhibit 35).

Claimants produced the testimony of Alan Gonseth, a professional engineer who qualified as an expert in highway maintenance practices. He testified that the use of salt alone under the existing weather conditions during the afternoon of November 23
rd was a deviation from accepted highway maintenance practices, and in violation of the State's own maintenance guidelines, and created a hazard. He testified that using salt only, without a mixture of sand, when combined with the falling temperatures during the course of the day, actually created a hazard, because the salt created a brine on top of the roadway which then refroze, causing the icy conditions and glare ice on the highway. A mixture of salt and sand should have been used, according to Mr. Gonseth, with the sand acting as an abrasive to prevent the creation of the glare ice.
Interestingly, however, this case cannot be decided by determining whether a mixture of sand and salt should have been applied to the road, rather than the salt only which was applied during Mr. Panek's three runs on November 23
rd. Based on all of the testimony and records produced, it is undisputed that no applications of any materials for ice control were made at any time after 6:30 p.m. on the night of the accident. There was no proof introduced establishing that the treatments of salt only created the icy condition which was the cause of this accident. It was equally possible that the icy condition was created by the "blow-over" snow, which could have then first melted on the highway, and then refrozen. In other words, claimants have not established, beyond a preponderance of the evidence, that the application of the salt only during Mr. Panek's three runs on November 23rd created the icy condition which caused this accident.
However, because the record is clear that no application of any type was made after 6:30 p.m. on that evening, the issue to be resolved is whether any liability should attach to the State for its failure to salt or sand the roadway between the hours of 6:30 p.m. and 10:00 p.m. in view of the existing weather conditions.

Liability can only attach against the State if claimants can establish that the State had either actual or constructive notice of a dangerous condition (see,
Brooks v New York State Thruway Auth., 73 AD2d 767), and that it had a reasonable opportunity to correct the condition and failed to do so (Citta v State of New York, 35 AD2d 288). The notice requirement, however, may be satisfied if it is established that the State had notice of a recurrent condition in a specific area (Rooney v State of New York, 111 AD2d 159; Dubacs v State of New York, 140 AD2d 968; Loguidice v Fiorito, 254 AD2d 714).
In this matter, it has been established through the testimony of Mr. Panek, the plow operator, and others that the area of the accident site along Route 11 was known to be a blow-over area, subject to icing conditions. Because of the weather conditions existing at the time (gusting winds, blowing snow, and falling temperatures), the State can be charged with constructive notice that a hazardous condition could develop, and that ice could form on the roadway.

Additionally, it has also been established that Mr. Panek applied salt and plowed the roadway on three separate occasions earlier on the day of the accident, and that each time he noticed that snow was accumulating on the roadway in four or five established blow-over areas (including the blow-over area which caused the accident) while making his second pass on Route 11 during each run. Mr. Panek, therefore, had actual notice of the recurring, and potentially hazardous, condition during each of these runs.

Based on Mr. Panek's observations, as well as the existing weather conditions, at a minimum the State had an obligation to patrol these roadways in order to make a reasoned determination as to whether any further applications of ice preventive materials, or additional snow removal operations, were required.

Mr. Panek testified that his immediate supervisor, Don Cragin, was charged with the responsibility to patrol his route in order to determine what further actions, if any, were required. Mr. Panek further testified that from the time he returned to the highway garage after completing his third and final run, at approximately 6:40 p.m., Mr. Cragin remained in the garage until Mr. Panek was sent home at approximately 9:30 p.m.

No testimony was produced indicating that Mr. Cragin, who was charged with the responsibility for such patrolling, in fact, made any such patrols along Mr. Panek's route. Rather, Lynn Webb, the head foreman at the garage that day, testified that he relied on information from two other intermediate foremen, Mr. Arnold and Mr. Labarge, when reaching his decision to suspend plowing operations and eventually send the plow operators home at approximately 9:30 p.m. Despite this testimony, however, there is no evidence to indicate that either of these two men, or anyone else, actually patrolled the area of Route 11 between 6:30 p.m. and 10:00 p.m. No evidence or testimony was presented to establish when and where any such patrols were made. In short, this Court is not convinced that any patrolling actually occurred along Route 11 once Mr. Panek had completed his final run at approximately 6:30 p.m.

According to the testimony of claimants' expert, Mr. Gonseth, as well as that of the State's expert, Duane Amsler, a failure to patrol this area from 6:30 p.m. to 10:00 p.m. would be unreasonable under the circumstances, given the weather conditions existing at that time, and combined with the existence of known blow-over areas. Since the State was on notice that this entire stretch of roadway, including the site of the accident, was subject to a recurring icing condition and since it was reasonably foreseeable that under the existing weather conditions, ice could very well form on the roadway, the State had a duty to develop and implement a plan for ice removal.

The Court therefore finds and concludes that under these circumstances, the State's failure to patrol the area, even though it had ample opportunity to do so, constituted a deviation from reasonable standards of highway maintenance, resulting in a breach of the State's duty to reasonably maintain its roadways (see,
Rooney v State of New York, supra; Dubacs v State of New York, supra).
Since the Court has found the State liable for the accident which occurred, it must also assess the comparative fault, if any, of Christian Wydysh as the operator of the vehicle involved in this collision[2]
. As previously noted herein, Investigator Baum, the investigating officer of this accident, concluded that driver inexperience, in addition to the icy conditions, was a contributing factor to the accident. Similarly, Trooper Carney listed unsafe speed as a contributing factor on his accident report. At trial, however, there was no testimony or evidence presented to establish that Mr. Wydysh operated his vehicle in an improper manner or at an imprudent speed. Based on the extremely icy conditions of the roadway, as established at trial, and the lack of any such evidence implicating excessive speed or driver inexperience, this Court finds no basis on which to attribute any comparable fault against Mr. Wydysh.
Accordingly, the Court finds the State 100% liable for the injuries and unfortunate deaths of both Mr. Wydysh and Ms. Dawson, and the State must therefore respond in damages. A separate trial limited to the issue of damages will be scheduled for each claim as soon as reasonably practicable.


September 29, 2003
Syracuse, New York

Judge of the Court of Claims

[1] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
[2] There was no evidence even remotely suggesting that Nicole Dawson, as a passenger, contributed to the occurrence of this accident, or that Raye S. Farrar, Jr., the other driver involved, was at fault in any manner whatsoever.