Opinion
May 22, 1967
Appeal by the State from a judgment of the Court of Claims which awarded the sum of $20,000 to the claimant, and cross appeal by the claimant on the ground that the award was inadequate. On June 9, 1963, at about 4:00 P.M., the claimant, John Schuster, and a friend, Dewey Jackson, were operating motorcycles at a speed of about 40 miles per hour in the right hand lane of the eastbound section of New York State Route 6, a four lane concrete highway divided by a mall, in the Town of Southeast, Putnam County. At a point about one quarter of a mile east of the intersection of Routes 6 and 22, the claimant, who was riding in the lead in the right hand lane, indicated by hand signal that he was going to turn to the left. He continued along the road about 100 feet or more and, while attempting to cross into the left hand lane, his motorcycle was "knocked out of his hands" and he was thrown to the ground. In the area of the scene of the accident, the left hand lane of the eastbound section of Route 6 was three to four inches higher than the right hand lane, and there appears to be no dispute that it was this difference in elevation which caused the claimant's motorcycle to be upset. As a result of the accident, the claimant suffered, in addition to other injuries, a complete dislocation of the patella, a relatively unusual and severe type of injury which involves a complete tearing of all of the four major ligaments in the knee. The claimant's left leg was in a cast for six weeks, and he was unable to work for six months after the accident. Medical testimony indicates that it is necessary for him to wear a knee brace when working; that he has a 25% residual disability of the knee; that he had an arthritic condition of the knee which was attributable to the accident which would further degenerate and might require further joint surgery. The State contends that the difference in elevation or ridge extended the same height for a distance of 100 to 300 feet west of the point of impact; that the accident happened during daylight on a clear day with good visability; that there was no traffic on the road; that it is inconceivable that this ridge would not have been seen by a motorcylist driving in a reasonable prudent manner; and that the claimant was guilty of contributory negligence by reason of his failure to observe an obvious defect in the highway. The State does not in its brief contest the finding that it was negligent. The claimant and his companion testified that they did not see the ridge until after the accident. The New York State Trooper, who investigated the accident, testified that the condition had existed for at least three months; that it was not obvious to a driver of an automobile; and that he had discovered it when he felt a bump when driving over it. A local police officer testified to the same effect as the trooper, except that he indicated the condition had existed for at least six months. The claimant, operating his motorcycle within the legal speed limit at approximately 40 miles per hour, would not have sufficient time to become aware of a defective highway and thus take precaution to avoid striking the ridge. The proper test is what an average driver would have done under the circumstances. ( Petrozak v. State of New York, 189 Misc. 809.) The record indicates that the deviation in the highway was not an obvious danger, the existence of which was known to the claimant and, therefore, he had a right to assume that the highway was in a reasonably safe condition. ( Murphy v. State of New York, 283 App. Div. 980; Seguin v. State of New York, 13 A.D.2d 857; Cook v. State of New York, 301 N.Y. 780.) Whether the condition was obvious or not was a question of fact to be determined by the court. The court resolved this question in favor of the claimant and, upon the record, we cannot say that the court's finding is against the weight of the evidence. On the question of damages, the award of $20,000, under the circumstances, was fair and adequate. Judgment affirmed, with costs. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.