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
On November 23, 1994, decedent Christian B. Wydysh was proceeding southerly on
Route 11, accompanied by a passenger, Nicole E. Dawson, at approximately
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,
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
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"
. 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
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,
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
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
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
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
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
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
Rooney v State of New York
; Dubacs v State of New
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
. 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.
LET INTERLOCUTORY JUDGMENTS BE ENTERED ACCORDINGLY.