Opinion
# 2016-051-509 Claim No. 123928
07-05-2016
EDWARD P. SOUTO v. STATE OF NEW YORK
EDWARD P. SOUTO, PRO SE HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: HEATHER R. RUBINSTEIN, ESQ. Assistant Attorney General
Synopsis
Claimant alleged that the State had notice of a dangerous pothole, failed to repair or warn of its existence and is responsible for damage to claimant's car. Following a trial, the Court finds that claimant has failed to establish his negligence claim against the defendant and his claim was dismissed.
Case information
| UID: | 2016-051-509 |
| Claimant(s): | EDWARD P. SOUTO |
| Claimant short name: | SOUTO |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123928 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DEBRA A. MARTIN |
| Claimant's attorney: | EDWARD P. SOUTO, PRO SE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: HEATHER R. RUBINSTEIN, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 5, 2016 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Edward P. Souto, Esq. filed this claim with the Chief Clerk of the Court of Claims on February 14, 2014. In it, claimant seeks to be compensated for damage to his motor vehicle which he alleges occurred when on January 11, 2014 his vehicle struck a crater-like pothole on the Palisades Interstate Parkway approximately 50 to 75 feet east of the traffic circle that connects the off ramp from the northbound lanes of the Palisades Interstate Parkway to Orange County Route 6 and Seven Lakes Drive, in Orange County, New York. Claimant alleges that the roadway was in a defective, dangerous and/or hazardous condition and that the defendant State of New York was on notice of such condition and was negligent in failing to address it.
The trial of this claim was conducted by video on May 19, 2016 at the New York State Court of Claims in White Plains, New York. Claimant offered his own testimony and the testimony of William Babcock, a Supervisor of the Orange County 911 Call Center, and two documents were received into evidence. Defendant presented Jeffrey Strike, Department of Transportation (DOT) Highway Maintenance Supervisor 2 as its sole witness, and five documents were received into evidence.
Mr. Babcock from the County 911 Call Center testified that the Center utilizes a Computer Aided Dispatch system (CAD), which consists of electronic notes made by the 911 operator taking the call. Exhibit 1 consists of three pages of CAD entries for 911 calls on January 11, 2014 pertaining to the area of the Palisades Parkway where the accident occurred. Page one of Exhibit 1 indicates the first call regarding the pothole at issue came in at 18:41 hours (6:41 p.m.) The CAD entry was created at 18:44 hours (6:44 p.m.) stating "multiple cars with flat tires is (sic) area of traffic circle".
Mr. Babcock testified that he knows that the CAD entry was electronically transmitted to the New York State Police (NYSP) because the County CAD computer system is provided to the State Police, in addition to other local police departments. However, he cannot say whether anyone at State Police was in a position to actually view the entry.
Although the recording of the first 911 call was descriptive of a problem, the actual entry into the CAD does not mention a pothole or any other roadway hazard. Although one could assume something in the road was causing a problem, there is no indication of urgency. Mr. Babcock testified that the record indicated the Highlands Police Department was dispatched.
The second 911 call came in at 18:49 hours (6:49 p.m.) and Mr. Babcock testified that the CAD report in Exhibit 1 indicates that it is coded as a "disabled vehicle" and a "duplicate" of the prior call.
The third call came in at 20:02 hours (8:02 p.m.) and was reported through the CAD at 20:05 hours (8:05 p.m.). The CAD indicates a "large pothole", and a "hazard". The emergency police program was utilized to indicate that there are 4 vehicles with flat tires. Five police units that were the closest were notified. The Town of Highlands Police Department was dispatched per the CAD report and the NYSP would have also received the transmission.
The claimant's accident involving contact with the large pothole occurred at 21:15 hours (9:15 p.m.). Claimant described it as 8 inches deep, and 18-22" long and wide, although, admittedly, it was dark and he did not get close to it. There were three other cars at the roadside with blown tires, one also had a deployed airbag. As claimant was changing his tire, he heard another car hit the pothole. After changing his tire, claimant left the scene.
Mr. Jeffrey Strike, DOT Highway Maintenance Supervisor 2 testified that the DOT does not have access to the County's CAD system. DOT was notified at 9:02 p.m. by the New York State Park Police of a pothole that had damaged several cars. The DOT report, Exhibit A, indicates that this was to be repaired by 10:00 p.m. He also described the extra shift called in to deal with potholes on other roadways on January 11.
The issues are whether the State had actual or constructive notice of the pothole prior to the claimant's accident at 9:15 p.m. and, if so, whether their response was reasonable. There is no indication that there was actual notice of the condition before the first 911 call; given the events that unfolded as soon as it became dark on January 11, it is probable that the condition did not exist for very long or there would have been accidents on the prior night.
Claimant argues that the NYSP had notice via the CAD system at 6:44 p.m., which was 2½ hours before claimant's accident. This, he asserts is sufficient time to repair or warn of the hazard. However, even assuming that NYSP was connected to the 911 system via the CAD, one must assume that there is a protocol in place for response by the various law enforcement agencies. Otherwise, multiple agencies would respond to investigate every incident. Not only does the 6:44 p.m. call not indicate that there is a pothole, but Mr. Babcock testified that the incident was directed to the Town of Highlands Police Department for a response. There is nothing in that first entry to indicate an urgent problem and would not be notice to the State of a hazardous condition. The second call is entered as a "duplicate", so that is not alerting the NYSP of an increasingly hazardous situation.
Indeed, it is not until the third CAD entry that there is information about the large pothole, creating a "hazard" and 5 different police units are identified as being in the vicinity. This is the first clear notice of a hazardous condition communicated to a state agency. However, without knowing the established protocol for response to such an entry, the Court cannot conclude that NYSP was under a duty to respond.
Claimant argued that the NYSP could have responded and placed flares or cones around the hazard. However, these activities fall under general police powers and the state is immunized for the failure to perform governmental functions:
"Rather, plaintiff specifically hinges her negligence action against the City on the responding police officers' failure to close the roadway, redirect traffic or place warning flares or cones in the area of the icy condition prior to her accident. Like crime prevention, traffic regulation is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers (Clinger v New York City Tr. Auth., 85 NY2d 957, 959; Kamnitzer v City of New York, 265 App Div 636; Parsons v City of New York, 248 App Div 825, affd 273 NY 547). That the function has traditionally been assumed by policerather than by private actors is a tell-tale sign that the conduct is not proprietary innature (Miller v State of New York, 62 NY2d, at 512, supra). Thus, like the unsuccessful claim that a public entity failed to properly police or close off a tunnel that was historically troubled by criminal attacks (see, Clinger v New YorkCity Tr. Auth., 85 NY2d 957, 959, supra), the challenged police failure to close the roadway or divert traffic here similarly falls well within the immunized 'govern-mental' realm of municipal responsibility." (Balsam v Delma Eng'g Corp., 90 NY2d 966, 968 [1997].)
Arguably, the notice to the NYSP at 8:05 p.m. is notice of the need for repairs, which is a proprietary function not covered by governmental immunity. Since the claimant's accident occurred at 9:15 p.m., a delay in dispatching a road crew to the scene for repairs for 1 hour and 10 minutes is not unreasonable. (Citta v State of New York, 35 AD2d 288, 290 [4th Dept 1970] ["the delay of the State for a period of 2½ to 4 hours in sanding the bridge after having received actual notice of its icy condition constituted negligence"].)
Based on the testimony of the witnesses and exhibits, the claim is dismissed. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
July 5, 2016
White Plains, New York
DEBRA A. MARTIN
Judge of the Court of Claims