Opinion
# 2020-015-058 Claim No. 131423
05-28-2020
JOSEPH STICKELMYER v. THE STATE OF NEW YORK
Robert A. Becher, Esq. Honorable Letitia James, Attorney General By: Michael T. Krenrich, Esq., Assistant Attorney General
Synopsis
In a trip and fall accident over a metal rod imbedded in the shoulder of a State roadway, claimant established at trial that the State was negligent in the maintenance of a highway shoulder.
Case information
| UID: | 2020-015-058 |
| Claimant(s): | JOSEPH STICKELMYER |
| Claimant short name: | STICKELMYER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131423 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Robert A. Becher, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Michael T. Krenrich, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 28, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim seeks damages for injuries sustained when the claimant tripped and fell on an object located in the shoulder of Route 22 in Berlin, New York. Trial on the issue of liability was held on March 3, 2020.
Claimant testified that he left his residence on March 26, 2017 and drove approximately three and one-half miles to a Stewart's store located in Berlin, New York, intending to take what he described as an "exercise walk". Claimant arrived at the Stewart's store parking lot at approximately 9:00 p.m., exited his vehicle and began walking in a northbound direction on the shoulder of Route 22, a route he had walked previously on 10 to 12 occasions over the prior two to three months. Claimant was wearing hiking shoes and described the weather as clear, stating that there was no snow on either Route 22 or the adjacent shoulder. Approximately two to three minutes after he left the Stewart's parking lot he felt his left foot strike an object, causing him to fall to the ground. As he lay on the ground he observed a metal bar which he described as imbedded into the asphalt shoulder and extending approximately two to three inches above ground. He had not seen the object during his prior walks and did not observe it prior to his left foot striking it on the night in question. Claimant returned to his vehicle and went home. He was seen the next day by a physician employed by The Medical Center of Clifton Park-Emergent Care complaining of a right knee injury occasioned when he tripped over a metal bar on the side of a highway (Exhibit 1, p. 1). He acknowledged that the area in which he was walking at the time he was caused to trip was unlighted and he did not at the time possess a flashlight.
All quotes are taken from the audio transcript of the trial unless otherwise noted. --------
Exhibit C is composed of photographs taken by the claimant approximately two weeks following the incident. The photographs depict a metal bar, with varying degrees of clarity, one end of which is embedded in asphalt and the other protruding above ground level. He returned to the scene a second time "weeks and months" after his accident at which time he observed that the metal bar had been removed from the pavement and a small hole remained where the bar had been removed.
The defendant called two witnesses on its behalf at trial. The first, Blake A. Buckner, testified that he has been employed as the New York State Department of Transportation (DOT) Assistant Resident Engineer in Rensselaer County for the past 20 years, overseeing paving projects, highway crews and contractors. Mr. Buckner testified that in June 2017 he was advised that a trip and fall accident had occurred in the shoulder area of Route 22 in Berlin, New York. He traveled to the area described and walked along the shoulder of Route 22 where he observed "an object in the pavement." The object is depicted in two photographs received in evidence as Exhibit A and Exhibit B. The photographs show a metal bar approximately four inches long which has been flattened to a position roughly horizontal to the asphalt surface. Mr. Buckner estimated the diameter of the metal bar as approximately one-eighth inch in diameter. He did not attempt to remove the metal bar from the pavement and, instead, instructed staff to remove the object when he returned to the office.
Defendant's second witness, Jeffrey Wagar, testified that he has been employed by DOT since 2001, and since 2012 has been a Highway Maintenance Supervisor in Rensselaer County. He testified that he was directed by his superiors to remove a small piece of metal in the shoulder of Route 22 in Berlin, New York. He went to the scene where he observed the object depicted in Exhibit A, which he described as a metal "wire" approximately four inches long and one-eighth to one-quarter inch in diameter laying flat to the road surface. Mr. Wagar testified that he used a screwdriver to elevate the metal bar which he then pulled out from the pavement. There was no damage to the pavement and no repair or patch was required.
The State is subject to a nondelegable duty to construct and maintain its highways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271, 283 [1986]; Gutelle v City of New York, 55 NY2d 794, 795 [1981]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). This duty extends not only to the highway itself, but also to conditions adjacent to the highway including a shoulder or paved strip, if one is provided (Stiuso v City of New York, 87 NY2d 889, 891 [1995]). When the State has notice of a hazardous highway condition in need of maintenance or repair it is required to take reasonable measures to timely correct the condition, and the State is not immune from liability for its failure to timely do so (see Rockenstire v State of New York, 135 AD3d 1131 [3d Dept 2016]; Pesce v City of New York, 147 AD2d 537 [2d Dept 1989]). Unlike highway design determinations, routine highway maintenance does not require the exercise of expert judgment and the doctrine of qualified immunity is therefore inapplicable (Gutkaiss v Delaware Ave. Merchants Group, Inc., 173 AD3d 1327, 1329 [3d Dept 2019]; Selca v City of Peekskill, 78 AD3d 1160, 1161 [2d Dept 2010]). Indeed, the Court of Appeals made clear in Weiss v Fote (7 NY2d 579 [1960]) that "[i]t is proper and necessary to hold municipalities and the State liable for injuries arising out of the day-by-day operations of government -- for instance, the garden variety injury resulting from the negligent maintenance of a highway" (id. at 585). In such cases, "liability will attach when the State has had actual or constructive notice of a dangerous condition . . . and then fails to take reasonable measures to correct the condition" (Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]; Schleede v State of New York, 170 AD3d 1400 [3d Dept 2019]; Gray v State of New York, 159 AD3d 1166, 1167 [3d Dept 2018]). Where the State creates a dangerous condition, actual notice of the condition is deemed satisfied (see Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [1st Dept 1984], affd for reasons stated below 64 NY2d 670 [1984]; see also Parietti v Wal-Mart Stores, Inc., 29 NY3d 1136 [2017]; Mercer v City of New York, 88 NY2d 955 [1996]; Phelan v State of New York, 11 Misc 3d 151, 165 [Ct Cl 2005]).
Here, the court granted claimant's pre-trial motion for the imposition of a spoliation sanction permitting an inference that the defendant or its agents caused the metal rod to become imbedded in the pavement during the course of its paving operations. The Court found this relief appropriate as claimant had established, through the submission of an expert's affidavit, that the rod was relevant and that a physical inspection was necessary to establish how it became imbedded in the roadway. Claimant contended in this regard that defendant or its agents caused the rod to become imbedded in the pavement during the course of its paving operations. Inasmuch as the loss of the metal rod by defendant's employees left the claimant without a means of proving this element of his case, an inference that defendant or its agents caused the metal rod to become imbedded in the pavement during the course of its paving operations was permitted. Claimant was not relieved of his burden of proving the existence of a defect and that the defect was a proximate cause of his accident.
Given the nature of the condition claimant described and photographed, the Court has no difficulty concluding that it constituted a dangerous defect which was a proximate cause of his accident. The Court of Appeals has made clear that whether a pavement defect is actionable depends on the specific facts and circumstances of each case, as well as "the width, depth, elevation, irregularity and appearance of the defect along with the 'time, place and circumstance' of the injury [citation omitted]" (Trincere v County of Suffolk, 90 NY2d 976, 978 [1997]). The dimensions of the defect alone cannot determine liability, which must be based upon all the specific facts and circumstances of the case (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 77 [2015]). Thus, even slight defects may be actionable when other factors make the defect difficult to see or traverse safely (id. at 79). Whether the metal rod at issue here was sticking up two or three inches from the pavement as claimant described or bent to a position approximately horizontal to the pavement as described by Messrs. Buckner and Wagar, it constituted a dangerous condition for foreseeable users of the roadway. Moreover, considering claimant's undisputed description of the accident, the Court concludes that the defect was a substantial cause of his accident. However, a considerable degree of comparative fault is properly attributable to the claimant, who was walking on the shoulder of the road, at night, without the benefit of a flashlight or other means of illumination. Accordingly, the Court apportions 50% of the fault to the State and 50% to the claimant.
A trial on the issue of damages will be scheduled in the near future.
Let interlocutory judgment be entered accordingly.
May 28, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims