Opinion
# 2012-040-006 Claim No. 115614
01-31-2012
FISTER v. THE STATE OF NEW YORK
Synopsis
The Court finds Defendant 75% and Claimant 25% responsible for Claimant's motorcycle accident. Court finds Defendant failed to maintain roadway in a reasonably safe condition and that Claimant was traveling too fast. Case information
UID: 2012-040-006 Claimant(s): ANDREA M. FISTER Claimant short name: FISTER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115614 Motion number(s): Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY BASCH & KEEGAN, LLP Claimant's attorney: By: Eli B. Basch, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Glenn C. King, Esq., AAG Third-party defendant's attorney: Signature date: January 31, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The Court finds, by a preponderance of the credible evidence, that Defendant is 75% responsible for personal injuries sustained by Claimant, Andrea M. Fister, on May 23, 2008, in a motorcycle accident on State Route 212 where it crosses over the Beaver Kill in the Town of Woodstock, Ulster County, New York. The State failed to maintain its roadway in a reasonably safe condition. The Court also concludes, by a preponderance of the credible evidence, that Claimant is 25% responsible for her accident because she was traveling too fast. Claimant alleges multiple injuries as a result of her accident.
Claimant's name is now Andrea M. Stene. For ease of reference, however, Claimant will be referred to in the Court's decision by her name as it appears in the caption of her Claim.
A bifurcated trial, addressing liability issues only, was held on June 28, 2011, at the Court of Claims in Albany, New York. There were three witnesses who testified at trial: Claimant; Town of Woodstock, New York, Police Sergeant David W. Downes (who responded to the accident); and Alden Gaudreau (Claimant's expert). In addition, deposition testimony was received from three witnesses: Deborah Kriksciun (who witnessed the accident); Paul Schade (New York State Department of Transportation ["DOT"] bridge engineer for the DOT region where the accident occurred); and Keith C. Savoury (DOT's resident engineer for Ulster County). Thereafter, the parties requested and were granted additional time to order transcripts and to submit post-trial memoranda.
A video of Ms. Kriksciun's June 20, 2011 examination before trial ("EBT") was admitted into evidence (see Ex. E), as well as a transcript of her EBT (see Ex. B).
A transcript of Mr. Schade's March 29, 2010 EBT was admitted into evidence (see Ex. 26).
A transcript of Mr. Savoury's April 3, 2009 EBT was admitted into evidence (see Ex. 27).
FACTS
On May 23, 2008, Claimant rode her 1993 Honda Shadow motorcycle, intending to travel from Saugerties to Shandaken, where she worked as an Ulster County Deputy Sheriff. She turned onto State Route 212 in the Lake Hill/Shady area, heading west towards State Route 28 (see Ex. 29). Ms. Fister reported that it was "a beautiful day" (Tr., p. 27). She was operating her first motorcycle, which she had owned for a few months. She estimated that she had ridden it on that route "a couple of times a week, probably about 20 to 25 times" (id., p. 25). Claimant did not encounter difficulties with any of the road surfaces she traversed until she reached a bridge where State Route 212 crosses over the Beaver Kill, about 500 feet East of Vicino Road, in the area between Hoyt Hollow and Mount Tremper (see Exs. 28, 29 and A). Sergeant Downes noted that there is a slight downgrade and curve to the left along State Route 212 at the place where Claimant approached the bridge (see Ex. 13; Ex. 28, box 5; Ex. A [key on second page]).
Claimant and Ms. Kriksciun were the only two eyewitnesses to the accident. Ms. Kriksciun said that, at the time of the accident, she was in the front yard of her home along State Route 212 cutting the grass with a gasoline-powered lawn mower. The witness marked with an "X" and her initials her location in her yard on the photograph that is Exhibit 11. She was facing east, towards Woodstock, and Claimant's motorcycle attracted her attention because she "could hear the engine" (Ex. B, p. 13) and it "sounded to be going fast" (id., pp. 21-22). It was coming around the bend and down the hill (see Ex. 10 [showing direction witness was looking. She marked with an "X" where Claimant's motorcycle was when she first noticed it]). She said that the bike "appeared to be going very, very fast" (Ex. B, p. 10; see also p. 14). Sergeant Downes, likewise, testified that Ms. Kriksciun told him that the noise of the motorcycle attracted her attention to the road. It was Ms. Fister's testimony, by contrast, that the speed limit in the area was 45 miles per hour ("mph"), but that it would have been her "normal standard of practice" to slow down to about 35 mph to take the turn (Tr., p. 39; see p. 29).
Ms. Fister said that she drove on the extreme right side of the travel lane, parallel with the white-striped fog line, about where the passenger-side tires on a four-wheeled vehicle would be. Ms. Kriksciun also said that Claimant's motorcycle rode "very close to my side [of the road] … right along [the] white line as it was coming by" (Ex. B, p. 34).
Claimant testified that "nothing was out of the ordinary until I got to the bridge. I felt as if I hit a pothole and then I wasn't able to turn, … the handles started to pull me to the right, and I was trying to correct to the left," but was "unable to do so" (Tr., p. 30). Ms. Fister identified the pothole she struck (see Ex. 8-A [larger yellow circle indicating the pothole]; Ex. 9 [Claimant's initials next to pothole]), as well as the place where her motorcycle hit the guide rail along the side of the bridge apron (see Ex. 8-A [smaller yellow circle]). She agreed that she "felt" the pothole, rather than saw it, on the day of the accident (Tr., p. 40). Claimant has no recollection of hitting the guide rail (Tr., p. 43).
Ms. Kriksciun continued to watch Claimant's motorcycle as it passed by her. The witness said that the bike lost control someplace between the lilac bush closest to her mailbox and the shrub by the bend leading into her driveway (Ex. E, 11:15, 11:31 [in both instances the witness traced the route with her finger on the photograph that is Exhibit 11]; see also Ex. B, pp. 15-16, 27). The transition from the asphalt roadway to the concrete pavement of the bridge approach also occurs at the beginning of Ms. Kriksciun's driveway (see Ex. 12; Ex. 37). The witness indicated that the motorcycle lost control on the dark patch of pavement in the photograph that is Exhibit 12 and that Ms. Fister came to rest on the white patch landing in the middle of the roadway, closer to the bridge (Ex. E, 11:17; Ex. B, pp. 16, 28). She also testified, however, that, at that point, she could not see the wheels of the motorcycle, which were obscured from her view by the fence at the edge of her lawn, as well as by the shrubs and bushes (Ex. B., pp. 28-29; see Exs. 11, 14-15). Ms. Kriksciun told her husband to call 911. She then went to stay with Ms. Fister and kept talking to her to engage her attention "because her eyes kept kind of rolling back in her head" (Ex. B, p. 18).
Sergeant Downes responded to an emergency call and arrived at the scene five to seven minutes after the accident. He saw Claimant lying in the driving lane of State Route 212 some 20-25 feet away from the defect Ms. Fister identified on the photograph that is Exhibit 9. He spoke briefly with Ms. Fister, but reported that she was "in a lot of pain, kind of in and out of consciousness" (Tr., p. 54; see p. 74; Ex.28, box 16). Sergeant Downes prepared two police accident reports, one by hand on the day of the accident (see Ex. 28) and a second, typed version, created several weeks later so that it could be transmitted electronically to DOT in Albany (see Ex. A). In the reports, Sergeant Downes stated that Claimant's motorcycle "struck defective pavement, a [pothole], while entering a slight curve which did cause [Claimant] to [lose] control and strike a guide rail. [Claimant] was ejected at the point of impact. The motorcycle continued through the guide rail. [Claimant] was airlifted to Albany Medical Center" (Ex. A; see Ex. 28 [virtually identical wording with some terms abbreviated]). He noted defective pavement as the only apparent contributing factor to the accident (see Ex. 28, box 19 [apparent contributing factors]; Ex. A, box 19 [and key on p. 2]). He identified the pothole in several photographic exhibits (see Ex. 20, p. 1 [at lower left]; Ex. 3; Ex. 8 [pothole visible at the bottom center of Exhibit 8]). Sergeant Downes said that Exhibits 3 and 8 are fair and accurate depictions of the pothole he saw. He further stated, however, that Claimant was his sole source of information about how the accident occurred and that she never pointed out a specific defect to him, though he believed (without any independent knowledge) that the pothole Claimant identified on the photograph that is Exhibit 9 was a factor in the accident (Tr., pp. 74-75, 99).
Sergeant Downes' testimony was a bit confusing about his source(s) of information because he also indicated at other points that he spoke with Ms. Kriksciun and described what she said (Tr., pp. 55, 80-81, 93-94, 100). Elsewhere, however, he stated that he obtained the name and contact information for Ms. Kriksciun and her husband, but that it was an Officer Lane who interviewed them. He did not see a written deposition of Ms. Kriksciun taken either by him, or by Officer Lane, in the police file (id., pp. 87-88). In any event, Sergeant Downes stated that he did not include Ms. Kriksciun's description of the accident in either of his reports that are Exhibits 28 and A (id., p. 81).
Mr. Gaudreau testified that he is a registered professional engineer. He trained in mechanical engineering and applies variables such as mechanics, friction, velocity, acceleration, and strengths of materials, in reconstructing accidents. He also stated that he has testified as an expert in court proceedings approximately 50 times prior to the instant proceeding. Mr. Gaudreau examined the accident site on June 25, 2008 and again on July 27, 2008, during which he noticed the pothole, examined the guide rail, made measurements, and took photographs (see Exs. 30-34). On June 25, 2008, Mr. Gaudreau also drove along State Route 212 from Saugerties, New York to State Route 28. In formulating his opinion, the witness related that he also reviewed the police accident report, area photographs from New York State and other internet websites, manuals regarding geometric highway design of rural highways, as well as the New York State Highway Maintenance Guidelines (see Ex. 21), New York State guidelines for ice control, the 2007 highway sufficiency ratings (see Ex. 23), the 2003 federal manual on uniform traffic control devices and the 2008 New York State addendum, the bridge maintenance work history (see Ex. 22), various deposition transcripts, and the State's 2006 photographic log referenced therein (see Exs. 16-19).
Based upon his examination, Mr. Gaudreau stated that the bridge appeared to be "one of the worst" on the portion of State Route 212 that he observed (Tr., p. 137). There had been "extensive cracking" to the concrete roadway on the bridge approach, evidence that many patch repairs had been made, and he also saw several potholes (Tr., p. 126; see p. 132; see Ex. 34).
The witness stated that the pothole is on the bridge approach, about nine feet beyond where the asphalt portion of State Route 212 gives way to the concrete pavement. It also is about nine feet from the center line of the roadway and about 10 inches from the white fog line at the far right-hand side of the travel lane (see Ex. 30, Ex. 30-A [witness circled pothole in blue]). Mr. Gaudreau also identified the pothole on a photograph from Defendant's 2006 photo log (see Ex. 18-A [again, witness circled pothole in blue]). He further described the pothole as being approximately rectangular in shape, about 18 inches long and eight inches wide (see Ex. 7 [a close-up photograph of the pothole with a person's foot next to it. The toe of the shoe is pointed in the opposite direction that Claimant was traveling]). Mr. Gaudreau explained that the pothole was rough on the inside, with a one inch vertical drop on its deepest side, nearest the shoe visible in the photograph that is Exhibit 7 (in other words, the side from which Claimant approached it). From there, the pothole tapered upwards towards its shallowest depth where it was closest to the white fog line, with the exception of a lump in the center of the hole that might have been from a prior patch job.
Mr. Gaudreau opined as follows: the front tire of Claimant's motorcycle was 4.4 inches and, thus, would have fit into the depth of the pothole; such a pothole, being one inch deep, eight inches wide, and 18 inches long, was sufficient to destabilize the motorcycle's front wheel; it would have caused the handlebars to be jerked out of the operator's hands, causing an immediate loss of control over the motorcycle, especially if the pothole's existence had not been anticipated; in fact, the pothole was not very visible, either when he inspected it in person, or in Defendant's 2006 photo log and, moreover, there were no warning signs to apprise Claimant of rough road conditions ahead; the vehicle then would have proceeded into the guide rails; and Claimant would have been ejected at some point in time. He believed that the chunk of material in the bottom of the pothole redirected the wheel of the motorcycle, turning it to the right at perhaps a 20 or 30 degree angle, and calculated that the point where the motorcycle hit the guide rail was about 22 feet from the pothole identified in Exhibit 30-A (see also Exs. 7, 8-A).
Mr. Gaudreau did not find any history of accidents in the area where the accident occurred, other than collisions with animals. Mr. Schade stated that he did not receive any complaint letters regarding the area of the bridge.At the same time, no bridge maintenance work had been done since 2005 (see Ex. 22). Mr. Savoury explained that the State's highway sufficiency ratings provide "an overall picture of the conditions" of the State's roads and said that the 2007 ratings were "fair" for the asphalt pavement of the highway in the area by the bridge and "poor" for the concrete roadway on the bridge and bridge approach (Ex. 27, pp 13-18; see also Ex. 23 [with Mr. Savoury's handwritten notations]). A rating of "poor" indicates that distress "is frequent and may be severe. These sections [of roadway] are flagged by [DOT] computers for further investigation and possible action" (Ex. 24, p. 4).
LAW
When the State engages in a proprietary function, such as highway and road maintenance, it is held to the same duty of care as private actors engaging in similar functions (Lynch v State of New York, 21 Misc 3d 1127[A], *3 [Ct Cl 2005], affd on other grounds, 37 AD3d 772 [2d Dept 2007]; Coco v State of New York, 123 Misc 2d 653, 655-656 [Ct Cl 1984]; see Sebastian v State of New York, 93 NY2d 790, 793 [1999]; Oeters v City of New York, 270 NY 364, 368 [1936]; Kamnitzer v City of New York, 265 AD 636, 638-639 [1st Dept 1943]; Murphy v Incorporated Vil. of Farmingdale, 252 AD 327, 329 [2d Dept 1937], appeal denied 13 NE2d 480 [1938]). Thus, Defendant has an absolute, "nondelegable duty to maintain its roads and highways in a reasonably safe condition, and … liability will flow for injuries resulting from a breach of that duty" (Levine v New York State Thruway Auth., 52 AD3d 975, 976 [3d Dept 2008], quoting Nurek v Town of Vestal, 115 AD2d 116, 116-117 [3d Dept 1985]; see Friedman v State of New York, 67 NY2d 271, 286 [1986]; Maldonado v New York State Thruway Auth., 86 AD3d 785, 786 [3d Dept 2011]). The duty "is intended to protect the traveling public" (Lopes v Rostad, 45 NY2d 617, 624 [1978]) and Defendant may be held liable for any such breach of duty in accordance with "general principles of negligence and comparative negligence" (Bottalico v State of New York, 59 NY2d 302, 305 [1983]; see Weiss v Fote, 7 NY2d 579, 585 [1960]).
Defendant is not an insurer of public safety, however, and negligence cannot be inferred solely from the occurrence of an accident on its roadway (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]).
In order to establish Defendant's liability, therefore, it is Claimant's burden to establish that: (1) a dangerous condition existed that constituted a breach of Defendant's duty to maintain its roadway in a reasonably safe condition; (2) Defendant either created the dangerous condition, or had actual or constructive notice thereof, and failed to take reasonable steps either to alleviate it or to warn approaching motorists; and (3) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Redcross v State of New York, 241 AD2d 787, 789 [3d Dept 1997], lv denied 91 NY2d 801 [1997]; Merrill Transp. Co. v State of New York, 97 AD2d 921, 922 [3d Dept 1983]; Brooks v New York State Thruway Auth., 73 AD2d 767, supra at 768; Rinaldi v State of New York, 49 AD2d 361, 363 [3d Dept 1975]; Lomax v State of New York, 15 Misc 3d 1105[A] [Ct Cl 2007]; Witko v State of New York, Ct Cl, Claim No. 114489, November 25, 2009, Ferreira, J. [UID No. 2009-039-154]). "The highway may be said to be reasonably safe when people who exercise ordinary care travel over it in safety" (Boulos v State of New York, 82 AD2d 930, 931 [3d Dept 1981], affd 56 NY2d 714 [1982]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, Claim No. 107632, June 19, 2006, Hard, J. [UID No. 2006-032-505]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
DISCUSSION
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant established, by a preponderance of the credible evidence, that Defendant was negligent in failing to maintain the concrete pavement on the bridge approach in a reasonably safe condition. At the same time, as discussed below, the Court further determines that Claimant must bear some measure of culpability for her accident. Each witness provided generally sincere and forthright testimony. The Court concludes that Defendant owed a duty to keep its roadways in a reasonably safe condition. The record establishes that the condition of State Route 212 deteriorated markedly after the asphalt pavement gave way to the concrete surface of the bridge approach, which was pock-marked with potholes and defects of various sizes. The Court credits Claimant's identification of the pothole and determines that the front tire of her motorcycle, in fact, did strike that pothole. While Claimant "felt" rather than saw the pothole as she rode over it and was understandably dazed at the accident scene, nevertheless the Court finds that she was credible in her identification of the pothole. Furthermore, Ms. Fister and Ms. Kriksciun agreed that Claimant's motorcycle was riding right along the white fog line and the pothole is directly adjacent to that stripe on the far right-hand side of the travel lane. In so finding, the Court concludes that Ms. Kriksciun was mistaken when she indicated that the motorcycle lost control on the dark, asphalt pavement or, in other words, before it reached the lighter concrete pavement that contains the pothole. The Court does so for two reasons. First, as Ms. Kriksciun herself noted, the accident "happened so fast," in the space of a second or two (Ex. B, pp. 10, 27). Mr. Gaudreau calculated that, at 35 miles per hour, Claimant's motorcycle was traveling at a rate of 52.5 feet per second (Tr., p. 173). If, as Ms. Kriksciun testified, the bike was going very fast, it would have been traveling even faster. The pothole is only nine feet beyond the end of the asphalt portion of the roadway. Thus, it would have been a mere fraction of a second's difference between when the motorcycle left the dark asphalt, and when it would have hit the pothole on the light concrete. Second, Ms. Kriksciun also testified that she could not see the wheels at the point where Claimant lost control of the motorcycle because they were obscured from her view by the fence at the edge of her lawn, as well as by the shrubs and bush (Ex. B, pp. 28-29). Accordingly, the Court determines that Ms. Kriksciun's impression that the motorcycle began to wobble while still on the black asphalt roadway is subject to question and cannot be relied upon.
Next, the Court concludes that the pothole, with the dimensions and characteristics described by Mr. Gaudreau, constitutes a dangerous condition, the existence of which constituted a breach of Defendant's duty to maintain the roadway in a reasonably safe condition.
The Court further concludes that Defendant had constructive notice of the pothole. Mr. Gaudreau identified the pothole in one of the pictures from Defendant's 2006 photo log (see Ex. 18-A). In addition, Ms. Kriksciun said that the condition of the concrete bridge approach prior to the day of the accident was similar to how it appears in the photograph that is Exhibit 12. She had noticed "three little ruts" where concrete had come out and believed the condition had existed since earlier that spring and might have been caused by snowplowing (Ex. B, pp. 33-34). Finally, the bridge and its concrete approach received a "poor" highway sufficiency rating in 2007, meaning that frequent distress was noted generally and the area was flagged by DOT for further investigation and possible action. Thus, the Court determines that the pothole had existed for a sufficient period of time prior to the date of the accident to charge Defendant with constructive notice of its existence and, moreover, that the State failed to meet its nondelegable obligation to take reasonable steps either to alleviate the condition, or to warn against it.
The Court concludes that the pothole Ms. Fister encountered on the concrete pavement of the bridge approach was a substantial cause of her accident, which caused her to lose control over her motorcycle.
At the same time, the Court finds that Claimant was traveling too fast and, therefore, must bear some culpability for her accident. In that regard, the Court found the testimony of Ms. Kriksciun that Claimant appeared to be going very fast more persuasive than Ms. Fister's assertions that it would have been her usual practice to slow down as she approached the bend in the road leading to the bridge. Moreover, Claimant was familiar with the condition of the pavement on the bridge approach, having traveled over it on her motorcycle 20-25 times during the preceding couple of months. Accordingly, the Court apportions 25% of the liability for this accident to Claimant.
CONCLUSION
By a preponderance of the credible evidence that was presented, the Court finds Defendant 75% responsible for its failure to address a dangerous condition of which it had notice and Claimant 25% responsible because she was driving too fast.
All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.
The Chief Clerk is directed to enter interlocutory judgment accordingly. Instructions concerning the creation of a discovery schedule and trial date on damages will be provided under separate cover.
January 31, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims