Opinion
03-31-2014
CROOTE v. STATE OF NEW YORK
Law Offices of John R. Seebold, PLLC By: John R. Seebold, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York By: Belinda A. Wagner Assistant Attorney General 2
Synopsis
: Defendant's motion for summary judgment is denied. Defendant failed to meet its initial burden of establishing that the State, or its designated agent for ice and snow control, did not have actual or constructive notice of the alleged dangerous condition on SR 7 that is claimed to have caused the instant accident.
Case information
UID: | 2014-039-404 |
Claimant(s): | JANET L. CROOTE, INDIVIDUALLY AND AS ADMINISTRATOR OF THE GOODS, CHATTELS AND CREDITS OF JAMES T. CROOTE, DECEASED |
Claimant short name: | CROOTE |
Footnote (claimant name) : | |
Defendant(s): | STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | JEREMY J. KILLENBERGER |
Third-party defendant(s): | |
Claim number(s): | 113320 |
Motion number(s): | M-84269 |
Cross-motion number(s): | |
Judge: | James H. Ferreira |
Claimant's attorney: | Law Offices of John R. Seebold, PLLC By: John R. Seebold, Esq. |
Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Belinda A. Wagner Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 31, 2014 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) | 2014-039-405 |
These claims arise from a traffic accident that occurred at approximately 10:00 A.M. on March 2, 2005 on New York State Route 7 (hereinafter SR 7) near the intersection of Kelly Station Road in the Town of Princetown, Schenectady County, New York. Kevin P. Miller, Jr. was driving a motor vehicle traveling westbound on SR 7 when he lost control of his vehicle and entered the eastbound lane, colliding with a Schenectady County snow plow operated by Edward S. Kuras. James T. Croote (hereinafter decedent), a front seat passenger in Miller's vehicle, was killed as a result of the accident, and claimant Jeremy J. Killenberger (hereinafter Killenberger), a rear seat passenger in Miller's vehicle, was injured.
Claimants Janet L. Croote, individually and as administrator of decedent's estate, and Killenberger filed these claims on February 13, 2007, seeking damages arising from the traffic accident. Claimants allege that defendant State of New York was negligent for failing to maintain the roadway in a safe condition, failing to remove drifting snow and ice, failing to erect a snow fence, barricade, and/or tree line to prevent snow from drifting on the roadway, failing to warn of the defective condition of the roadway, and failing to inspect the roadway to ensure its safety.2
. Claim No. 113320 is the Croote claim, and Claim No. 113321 is the Killenberger claim. Claimants are represented by the same attorney.
Issue was joined and, following a conference with the parties, the Court ordered that the two actions would be joined for trial. Discovery is complete, and defendant now moves for summary judgment dismissing the claim pursuant to CPLR 3212. Claimants oppose the motion, and defendant has submitted a reply affirmation.
Summary judgment is a drastic remedy which should only be granted where there are no doubts as to the existence of a triable issue of fact (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept 2011]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 50 [2d Dept 2011]). If the proponent's burden is met, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324). In considering a summary judgment motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]; Dorival v DePass, 74 AD3d 729, 730 [2d Dept 2010]).
The State "has a nondelegable duty to maintain its roadways in a reasonably safe condition" (Harjes v State of New York, 71 AD3d 1278, 1279 [3d Dept 2010]). This includes a duty to "adequately deal[] with . . . snow and weather conditions as they affect[] the roadway" (Barrett v State of New York, 13 AD3d 775, 775 [3d Dept 2004]). However, the State "is not required to act as an insurer against all accidents[, and n]egligence is not established by the mere occurrence of an accident on an icy [or snowy] roadway" (Harjes v State of New York, 71 AD3d at 1279;see Freund by Freund v State of New York, 137 AD2d 908, 909 [3d Dept 1988]). "During winter driving conditions, the State is obligated to timely remove snow and ice from its highways in a manner which is reasonably diligent under all of the existing circumstances" (Langhorne v State of New York, UID No. 2012-044-009 [Ct Cl, Schaewe, J., May 7, 2012]; see Valentino v State of New York, 62 AD2d 1086, 1087 [3d Dept 1978] ["[T]he pertinent question is not whether snow or ice has been permitted to accumulate on the highway, but whether the State has exercised reasonable diligence to cure the situation"]). "[I]n order for liability to attach, defendants must have had actual or constructive notice of the condition, meaning that the alleged dangerous weather condition must have existed for a sufficient period of time to allow defendants to discover and rectify the problem" (Barrett v State of New York, 13 AD3d at 776). Thus, "[a] property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy [or snowy] condition occurring during an ongoing storm or for a reasonable time thereafter" (Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]).
The State may be held liable, however, "[w]here the State has actual or constructive notice of a recurrent hazardous condition in a specific area [and fails] to correct or warn of the condition" (Freund v State of New York, 137 AD2d at 909; see Harjes v State of New York, 71 AD3d at 1279; Hart v State of New York, 43 AD3d 524, 525 [2007]). "[A] general awareness that snow and ice may accumulate or is present is insufficient to provide constructive notice of the injury-producing condition" (Cardinale v Watervliet Hous. Auth., 302 AD2d 666, 667 [3d Dept 2003]). However, "[a] defendant may be charged with constructive notice of a hazardous condition if it is proven that there was a recurring condition of which the defendant has actual notice" (Roman v Met-Paca II Assoc., L.P., 85 AD3d 509, 510 [1st Dept 2011]). "To prevail on its motion for summary judgment, defendant [is] required to establish that its property had been maintained in a reasonably safe condition, and that it did not create a dangerous condition that caused plaintiff's [injuries] or have actual or constructive notice of that condition" (Stewart v Canton-Potsdam Hosp. Found., Inc., 79 AD3d 1406, 1406 [3d Dept 2010]; see Riozzi v 30 Kingston Realty Corp., 112 AD3d 1033, 1033 [3d Dept 2013]; see also Meyers v Big Six Towers, Inc., 85 AD3d 877, 877 [2d Dept 2011]).
In support of its motion, defendant has submitted, among other things, portions of several depositions, portions of the transcript from a hearing conducted by the New York State Department of Motor Vehicles (hereinafter NYSDMV) with respect to the accident, other documentary evidence, the affidavit and collision reconstruction report of New York State Police investigator Bruce R. McLaughlin, and the affidavit of licensed professional engineer Duane E. Amsler. The relevant evidence is summarized as follows.
Vincent Budinas testified during his April 2010 deposition that he is currently employed by the New York State Department of Transportation (hereinafter NYSDOT) as the Resident Engineer (hereinafter RE) in Schenectady County. He has been employed in that position since January 2005. As the RE, Budinas is responsible for the maintenance of all of the State highways in Schenectady County. Budinas testified that the State contracted with Schenectady County to provide snow and ice control on SR 7 for the November 1, 2004 through April 15, 2005 snow and ice season, and had done so since 1999. Under the contract, the County was to "follow[ NYSDOT Highway Maintenance Guidelines, Snow and Ice Control (hereinafter the Guidelines)] for snow and ice control" (Affirmation in Support of Motion, Exhibit P, at 35). He testified that, prior to March 2, 2005, he did not conduct any patrols or inspection of, and did not supervise, the plowing/salting operations of the County.
Budinas testified that he was familiar with the accident at issue in these matters. According to Budinas, the area of the accident is an area of "special consideration" as referenced in the Guidelines, because of "blowing snow" (id., at 41). He did not believe that NYSDOT had received any complaints with respect to the accident location and was not aware of any communications from any other State agencies regarding the snow/ice condition in this area of SR 7 prior to March 2, 2005. He did not know when the area of SR 7 was inspected or patrolled by the County prior to the accident. Budinas testified that he was not aware whether a snow fence had ever been erected in the area of the accident and unaware that the State had not used snow fences in Schenectady County.
Edward S. Kuras testified in his February 2011 deposition that he had worked for the Schenectady County Department of Public Works for 38 years and had retired in 2008. He was employed as a truck driver at the time of the accident, a position he had held since 1981. His normal work hours were 7:00 A.M. to 3:30 P.M., Monday through Friday. His shift would change if there was a weather event. On the day of the accident, he was driving a dump truck equipped with a wing plow on the front passenger side and a spinner underneath the cab that delivered salt onto the road. He had been operating this truck since 2004. Kuras' regular route encompassed SR 7 between Kellar Avenue and Route 30 (near the Schoharie County line); he had been assigned that route since 2001. This route was approximately 18 miles each way. He had been trained to plow SR 7 in sections or loops; he made three loops in each direction. Kuras testified that it took him approximately one hour to plow from Kellar Avenue to the county line, and that it would also take him about an hour to get back to Kellar Avenue from the county line. His pace could be slowed, however, due to wind blowing snow on the road; in such circumstances, he "might have to make three trips just to get that stuff back off the road" (Affirmation in Support of Motion, Exhibit Q, at 24). He would spread salt the entire time, and by the time he got back to Kellar Avenue, he would be "pretty much" out of salt (id., at 21). Kuras also testified that he did not "take very many breaks or very long ones" during his shift and ate lunch "[o]n the run" (id., at 43).
Kuras testified that there are "at least seven different parts of [SR] 7 that . . . drift[] and [the area near South Kelly] was one of them. The day of the accident was one of them" (id., at 28). According to Kuras, the drifts got "stronger" as one traveled west because there was "more open field, and nothing resists the snow to stop it" (id., at 30). When asked which drift area was the largest, Kuras testified that "the accident scene one is one large one" (id., at 29). According to Kuras, "[i]t does drift there no matter what" (id., at 48). He explained that it "[i]t's an open spot, and the wind always blows in there and always pushes the snow back on the road" (id., at 60). He affirmed that snow had been drifting in that location since at least 2001 and testified that it was his understanding that "they tried using a snow fence and everything else to try and block the snow to no avail" (id., at 49). He did not recall seeing a snow fence in the area of the accident prior to 2005. He also could not recall having any conversations about the particular area of SR 7 when he took over the route and testified that he had not discussed that particular area with a supervisor. He did not recall the police talking to anyone about the accident area. The only person he spoke to about the condition was a County maintenance boss in 1970 when Kuras first started. Kuras asked the maintenance boss whether the location always drifted, and the maintenance boss said that it did. Kuras did not have personal knowledge of any accidents that had occurred in that area due to snow or ice conditions.
Kuras recalled that it was "pretty snowy" on March 1, 2005 (id., at 11). Later in his deposition, he testified that it was "snowy, a little bit of freeze" on March 1, 2005, but "not as strong as the next day" (id., at 24). He testified that he plowed during his entire shift on March 1, 2005. He was shown two documents that he identified as snow and ice control operation sheets dated March 2, 2005. Kuras testified that the documents indicated that he started plowing his route at 4:00 A.M. on March 2, 2005 and plowed the route until the accident at 10:00 A.M. He recalled that he had been called in "[b]ecause of the snow conditions" but could not recall the specifics of any directions given by his supervisor aside from "just hit [SR] 7" (id., at 41). He further recalled that there was "light snow" in the morning of March 2, 2005 "and then it finally did stop, but the wind did pick up in intensity" (id., at 44). His supervisor that day was Rick Kietlinski; Kuras testified that the only communication he got from Kietlinski on the day of the accident was the initial call to plow SR 7.
Kuras testified that the accident occurred as he was on his return trip to Kellar Avenue; he was heading eastbound on SR 7. Kuras testified:
"I s[aw] a car coming around on the dry part of [SR] 7 from Kellar up. And I said, This guy's going too fast, in my own opinion. I've got my plow up because there's no snow, but I know the drift[] is coming, and I had my wing down, clearing off the shoulder. And I see a car . . . that in my opinion, was going too fast for the conditions of the road. It fishtailed . . . once. Fishtailed a second time. The third time is when we collided" (id., at 49-50).
The accident occurred about ½ mile from Kelly Station Road. According to Kuras, the vehicle first started to fishtail "before the curve, right before the bridge" on SR 7 when it was in a white - or snow-covered - area of the roadway (id., at 76). Both vehicles were on snow when the impact occurred. Kuras testified that he had almost made three complete rounds on his route between 4:00 A.M. and the time of the accident. He had made two passes in the area of the accident during each round, meaning that he had plowed the westbound portion of SR 7 at the accident location six times that day. He also salted "at least three times;" Kuras explained that he "strictly plowed off" during the first part of the loop but "put the material down" on his second round (id., at 57-58). To his knowledge, he was the only one plowing and salting the accident area that day. When asked about the condition of the roadway that day, Kuras testified:
"At . . . [4:00] in the morning, the first round . . . , the drift was very small; it was just starting. Next loop that I made was getting a little bit thicker and a little bit wider. And by the third time, that's when it was fully covered, and it didn't seem to matter what I had done or tried to do; the wind was beating me instead of me beating it and the road. . . . The more I plowed off, the more it moved back on. Like I never touched it. . . . The stronger the wind, and there's no restrictions, it's going to blow just as fast as I took it off" (id., at 58-59).
At the time of the accident, both lanes of the road were "completely covered" (id., at 65). Kuras testified that he had experienced that condition prior to the accident.
At the NYSDMV hearing, held on February 7, 2006, Miller, the driver of the car involved in the collision, testified, in relevant part, that, on the morning of the accident, he picked up decedent and Killenberger, intending to go to work at a construction site in Latham, New York. Miller got onto the Thruway and proceeded towards Albany. His car began smoking while they were on the Thruway; he got off at the Schenectady exit, Exit 25-A, and pulled over at a gas station to check on his car. His car was smoking and leaking oil. Miller filled his car with oil; he testified that he "was forced to drive home" because he could not procure a tow truck (Affidavit in Support of Motion, Exhibit K, at 52). He testified that, at the time of the accident "it was so windy you couldn't see five feet in front of you. . . . And I was going well below [the] speed limit, because I was listening to the sounds of my engine. And I lost control of the car over the bridge because of black ice" (id., at 53). He testified that he believed that there was black ice on the road because he had put brand new tires on his car a week and a half before the accident and he "can't think of any other reason why I'd be going [20] miles an hour and my car would just start sliding out. I believe it was black ice. I don't know for sure" (id.). When asked whether there was any snow on the road, Miller stated that he "believed so" (id.).
Vincent Romano testified in his November 2010 deposition that he was employed as a senior road maintenance supervisor at the Schenectady County Department of Public Works. He had held that position since 2000 and had worked for the County for 35½ years. His duties included setting up maintenance and plowing crews. Romano testified that he called Kuras in around 3:30 or 4:00 A.M. on March 2, 2005 because he had been notified by either the State police or the third shift foreman that "there were conditions that they needed assistance with" (Affirmation in Support of Motion, Exhibit S, at 26). Romano was shown a document that he identified as a "snow sheet" filled out by the plow operator during a normal workday, dated March 2, 2005. He testified that the "snow and ice event" listed on the sheet was listed as "LS," or "light snow," and the highway conditions were listed as "SS," or "slippery spots" (id., at 34-35). Romano affirmed that the documentation showed that Kuras plowed continuously from 4:00 A.M. until the time of the accident on March 2, 2005. He dispensed 30 tons of salt from 4:00 A.M. until 7:00 A.M., and dispensed 5 tons of salt from 7:00 A.M. until 10:00 A.M. (see also Affirmation in Support of Motion, Exhibit R).
Romano testified further that the accident occurred on SR 7 "within a half mile west" of the Kelly Station Road intersection (Affirmation in Support of Motion, Exhibit S, at 13). The Normanskill bridge is about 100 yards east of the accident site. Romano testified that he arrived at the accident scene around 10:25 A.M. At that time, "[i]t was cold and the wind was blowing, but the sun was shining" (Affirmation in Support of Motion, Exhibit S, at 14). There was no precipitation. Romano estimated that the wind was blowing "north to south at good gusts: 20, 25 miles an hour" (id., at 46). When asked whether there was any drifting snow in the westbound lane, Romano testified that "[t]here was a light film of snow on the road at that time" (id., at 50). Romano did not know when Kuras had last passed through the westbound lane of SR 7 at the accident scene.
When asked whether the County had received any calls from the State police or Schenectady County sheriff from November 1, 2004 until March 2, 2005 regarding the condition of the roadway in the area where the accident occurred, Romano responded "To the best of my knowledge, I would say yes" (id., at 56). The calls concerned "snow, drifting snow" (id., at 57). Romano affirmed that the area of the accident had been a problem area with respect to drifting snow for as long as Romano had worked for the County. He explained that "it's an area that constantly has blowing snow going across the road" (id., at 57). He affirmed that the County was aware of the condition and that the State police were aware of the condition prior to March 2, 2005. He testified that, to the best of his knowledge, no snow fence had ever been installed in the area of the accident. Romano testified that the County did not install snow fences on County roads, explaining that "we found that [snow fences] worked for a little while, then when the snow builds up on them, they're actually useless; the snow just goes over them and creates another hazard" (id., at 71). He testified that the County also had not constructed any living fences.
Richard L. Kietlinski, Jr., testified during his November 2010 deposition that he has been employed as a road maintenance supervisor with the Schenectady County Department of Public Works for 10 years. He had worked for the County for 37 years. His duties included doing a monthly inspection of the coverage area that he was assigned to and lining up snowplowing, sanding and salting. His assigned area included the entirety of the Town of Princetown. During a weather event, he would patrol the area in a pickup truck checking on the snowplow operators and the road conditions. Kietlinski testified that he had passed through the area of the accident about a half an hour before the accident occurred. At that time, both the eastbound and westbound lanes of travel were snow covered. It was not precipitating at that time. Kietlinski testified that, during the 2004-2005 snow season, the County had received "more than one" call or complaint from the State police regarding "[d]rifting and slippery conditions" on the stretch of roadway on SR 7 where the accident occurred (Affirmation in Support of Motion, Exhibit T, at 47-48). According to Kietlinski, the accident area was prone to drifting "because of the openness of the field on the northern side of the accident scene and the prevailing winds" (id.). The drifting occurred from the eastbound lane to the westbound lane, and the area of drifting spanned from the Normanskill Bridge westward 500 to 600 feet. This was the whole span of the open field. He had been aware of the drifting condition for 33 years. In those 33 years, there was never a snow fence erected.
In his affidavit, New York State police investigator Bruce R. McLaughlin states that he has been trained in the field of accident reconstruction; he investigated the collision at issue in this matter and prepared an accident reconstruction report, which is appended to the affidavit. In relevant part, McLaughlin's report states that he arrived at the scene of the accident around 10:39 A.M. on March 2, 2005. The scene was located approximately .4 mile from the intersection of Kelly Road and SR 7. While en route to the accident scene, McLaughlin "encountered blowing snow and wet roads. The weather was 32 degrees (F) with sun and clouds and blowing snow" (Affirmation in Support of Motion, Exhibit I, Report at 1). McLaughlin states that SR 7 is a two-lane asphalt highway that runs in an east-west direction. It has a posted speed limit of 55 miles per hour. The road was straight and level in the area of impact. There is a curve in the road east of the collision scene that has a suggested speed of 40 miles per hour. The roadway was wet in the area of impact, but SR 7 was
"covered with blowing and accumulating snow in the curve immediately east of the collision scene. The roadway on either side of the drifted area had wet snow on the surface. The area of blowing and accumulating snow was clearly visible to westbound traffic for a minimum of 0.25 mile" (id., at 2).
McLaughlin describes the dimensions of the snowdrift as follows:
"The area of accumulating snow originated in a curve 541 feet east of the area of impact. It covered both lanes of [SR] 7 and was 402 feet long at the center of the westbound lane. It ended 139 feet east of the area of impact" (id.).
He further states that the visibility in the location was reduced due to blowing snow and that he observed snow on the roadway east of the snow-covered section.
With respect to the mechanics of the accident, McLaughlin concludes that Miller's vehicle, a 1992 Dodge Shadow, "entered a clearly visible area of blowing and drifting snow and lost control" and then "exited the area of blowing and accumulating snow traveling west in the eastbound lane with the passenger side presenting the leading edge," colliding with the driver side front corner of the snowplow (id., at 10). McLaughlin opines that "[t]he primary cause of this collision was failure to maintain the designated lane of travel due to speed not reasonable and prudent for the existing conditions on the part of" Miller (id.). McLaughlin's report includes a diagram of the accident area depicting the location of the snowdrift and the two vehicles involved in the accident. The report also includes several color photographs.
. It is unclear whether the diagram depicts the vehicles at the point of impact or in their final resting positions.
. The Court notes that none of the photographs included in McLaughlin's report clearly depict the area of drifted snow at issue in this case.
Among the documentary evidence submitted by defendant is an amended Police Accident Report prepared with respect to the instant accident.The accident report states that Miller's vehicle, proceeding westbound on SR 7, "was going around a snow covered turn at a[n] unsafe speed for the conditions of the rd and was unable to gain control striking a snowplow" (Affirmation in Support of Motion, Exhibit L, Police Accident Report). The report indicates that the roadway surface condition at the time of the accident was "Snow/Ice" and that the weather conditions were "Cloudy" (id.). The accident report further indicates "Unsafe Speed" and "Pavement Slippery" as "apparent [contributing] factors" to the accident (id.). It also states that the accident occurred at reference marker 7-1605-1109, "4/1" miles west of Kelly Station Road.
. Defendant has also submitted the original Police Accident Report generated as a result of this accident. It appears that the police officer who filled out the report originally circled "sideswipe" in the "accident diagram" space on the form. On the amended report, "sideswipe" is crossed out and, in the "accident diagram" space, the officer wrote "see the second page for the accident diagram" and included a separate accident diagram on a supplemental sheet. This appears to be the only substantive difference between the original and amended accident reports.
. The Court assumes that the notation "4/1" miles is a typographical error, and that the writer intended to state that the accident occurred 4/10 miles west of Kelly Station Road, as was stated in the original police accident report.
With respect to the accident history at reference marker 7-1605-1109, defendant's evidence demonstrates that three motor vehicle accidents occurred at that particular reference marker between January 1, 1999 and March 2, 2005. The first accident occurred on January 9, 2001. According to the Police Accident Report, a vehicle proceeding westbound on SR7 "skid[ded] on snow covered pavement" and entered a ditch (Affirmation in Support of Motion, Exhibit N, at Police Accident Report, dated January 9, 2001). The accident occurred at the curve in the roadway 1/4 mile west of Kelly Station Road. There is an accident diagram on the accident report which indicates that the vehicle encountered a "heavy snow drift" in the curve prior to going off the roadway (id.). A second accident occurred on July 23, 2002 when a vehicle struck a deer at reference marker 7-1605-1109. A third accident occurred on September 24, 2003 at reference marker 7-1605-1109. The manner of collision is described in the NYSDOT Summary Report as a "sideswipe" and the road surface condition is listed as "slush" (Affirmation in Support of Motion, Exhibit M, at 3).
. Defendant has not included in its motion papers the Police Accident Report with respect to the September 24, 2003 accident.
Defendant's evidence also establishes that the Normanskill bridge referenced by several witnesses is located at reference marker 7-1605-1112 (Affirmation in Support of Motion, Exhibit H ¶ 6). Prior to March 2, 2005, several snow-related accidents occurred at reference markers 7-1605-1110 and 7-1605-1111. Specifically, on March 12, 1999, at reference marker 7-1605-1110, a vehicle proceeding westbound on SR 7 lost control "due to unsafe speed for road/weather conditions (curve & blowing/drifting snow)" went into the eastbound lane and then into a creek bed (Affirmation in Support of Motion, Exhibit N, at Police Accident Report, dated March 12, 1999). Additionally, among others, the following five accidents occurred at reference marker 7-1605-1111: (1) on March 8, 1999, a vehicle proceeding eastbound on SR 7 "at unsafe speed for Road/Weather Conditions (Blowing & Drifting snow)" lost control and went into the westbound lane and struck the guide rail; (2) on February 7, 2000, a vehicle proceeding westbound on SR 7 "rounding curve in roadway covered by drifted snow lost control," struck a snowbank and overturned; (3) on December 25, 2000, a vehicle proceeding westbound on SR 7 "rounding left hand curve . . . lost control on snow covered road" and struck a fence and power pole; (4) on December 15, 2003, a vehicle proceeding eastbound on SR 7 "encountered heavy snow drift rounding curve in roadway" and lost control, striking the guide rail; and (5) on January 15, 2004, a vehicle proceeding eastbound on SR 7 "rounding slight curve . . . lost control on snow covered road" and struck the guide rail (id., at Police Accident Reports, dated March 8, 1999, February 7, 2000, December 25, 2000, December 15, 2003 and January 15, 2004). Each of the accident reports for the above five accidents that occurred at reference marker 7-1605-1111 references a curve in the road and states that the accident occurred between 1/5 to 1/2 mile west of Kelly Station Road.
Finally, defendant has submitted the affidavit of professional engineer Duane E. Amsler. Amsler states therein that his opinions are based upon his review of the accident scene, the pleadings, discovery exchanged, transcripts, photographs, police accident report, McLaughlin's reconstruction report, various NYSDOT documents and records, the Guidelines and weather information. Amsler avers that, on March 1, 2005, "there was a significant snow event with snow accumulations in the range of 10 inches. That storm wound down overnight and into the morning of March 2 with increasing winds and blowing snow traversing [SR] 7 in several locations" (Affirmation in Support of Motion, Exhibit H ¶ 7). He concludes that, at the time of the accident, there was a storm in progress in the form of blowing snow on SR 7 and that "the constant patrolling of the snowplow on the morning of March 2, 2005 was a reasonable means to address the storm in progress (id. ¶ 5). Amsler further concludes that "the actions taken by the County . . . on March 1 and 2, 2005 on [SR] 7 in the vicinity and including the accident site were in conformance with good and accepted engineering practices and standards including those standards for highway maintenance" (Affirmation in Support of Motion, Exhibit I ¶ 3).
Amsler asserts that the use of passive snow control, as set forth in the Guidelines,
"is offered as another means to control persistent snow drifting on roadways and to improve visibility during blowing snow conditions but is not a requirement and is optional. Passive snow control is an evolving science and another tool in the toolbox of snow and ice operations. Schenectady County was performing snow and ice control operations in accordance with the NYSDOT Highway Maintenance guidelines for snow and ice control and those operations were performed in an acceptable and reasonable manner and were a reasonable response to the conditions present" (id. ¶ 10).
Amsler states that "[p]assive measures are not 100% effective in eliminating blowing snow from highway sections" and are not extensively used because they have an unfavorable cost/benefit ratio (id. ¶ 15). Amsler opines that Kuras "was describing a blow-over area at the accident site" in his deposition testimony and that "[b]ecause of the locations of the blow-over areas throughout the beat, the proper method of snow and ice control was by the patrolling undertaken by Mr. Kuras" (id. ¶ 11). Amsler notes that the Guidelines distinguish between blow-overs and drifts, and states that the accident site "was never a drifting location" where snow accumulates significantly on the roadway and must removed using heavy equipment (id. ¶ 13). With respect to accident history, Amsler states that, although accidents have occurred in the vicinity of the accident site on SR 7, there was no "pattern" of accidents in the vicinity of the accident site that could be attributable to blowing snow and, as such, the use of passive measures was not mandated (id. ¶ 10). Amsler concludes that "this accident is due to the fault of Mr. Miller and not the County or the State of New York" (id. ¶ 18).
In support of its motion, defendant argues that summary judgment is warranted because the evidence establishes that there was a "storm in progress" in the form of blowing snow at the time of the accident, and Kuras' continuous plowing and salting of SR 7 on the day of the accident was a reasonable means of addressing the conditions as a matter of law. Defendant also argues that it is entitled to qualified immunity with respect to the procedure that the County employed with respect to the location - continuously plowing and salting the area - because such procedure complied with the Guidelines. Defendant also urges that its evidence establishes that it was not on notice of any dangerous condition at the location of the accident.
In opposition, claimants argue that summary judgment should be denied because the accident history and the deposition testimony demonstrates that the State had actual and/or constructive notice of the dangerous condition - drifting snow - that was present at the time of the instant accident. Claimants also argue that defendant submitted insufficient evidence establishing that there was a "storm in progress" at the time of the accident. Claimants further assert that defendant has failed to establish its entitlement to qualified immunity, where it offered no proof that it engaged in a deliberate decision-making process with respect to the subject roadway.
As an initial matter, it is undisputed that the State owns SR 7 and contracted with Schenectady County for snow and ice control on that roadway during the winter season when the instant accident took place. Because the State's duty to maintain its roadways in a reasonably safe condition is nondelegable, the actions of Schenectady County "in carrying out its contractual duty to clear ice and snow from the roads in the area of this accident must be attributed to the State" (Lettelleir v State of New York, UID No. 2003-013-501 [Ct Cl, Patti, J., Mar. 19, 2003]). Defendant does not contest this point.
The Court concludes that the evidence submitted by defendant, as detailed above, is insufficient to establish its entitlement to judgment as a matter of law on these claims. In particular, defendant has failed to meet its initial burden of establishing that the State, or its designated agent for ice and snow control, Schenectady County, did not have actual or constructive notice of the alleged dangerous condition on SR 7 that is claimed to have caused the instant accident. Defendant proffered evidence establishing that, at the time of the accident, windy and/or blowing snow conditions had created a snowdrift at the accident location and that the westbound lane of SR 7 was snow-covered in the accident area at the time of the accident, despite having been plowed six times in approximately six hours. However, notwithstanding evidence that the snow drift alleged to have caused the accident was "the result of weather conditions which occurred close in time to the accident itself" (Goldman v State of New York, 158 AD2d 845, 846 [3d Dept 1990], appeal dismissed 76 NY2d 764 [1990]), the Court disagrees with defendant that it is entitled to summary judgment on the basis of the "storm in progress" doctrine, where there is evidence before the Court raising factual issues as to whether defendant had actual or constructive notice of a recurrent hazardous condition in the area of the accident and failed to correct or warn of the condition (see Harjes v State of New York, 71 AD3d at 1279; Hart v State of New York, 43 AD3d at 525; compare Roche v State of New York, UID No. 2001-005-007 [Ct Cl, Corbett, J., Oct. 29, 2001] [holding that the "storm in progress" principles applied in the absence of evidence that defendant was on notice of a dangerous condition]).
Specifically, several County employees testified during their depositions that they were aware that the area where the accident occurred was known for drifting and/or blowing snow. Additionally, both Romano and Kietlinski testified that the State police were aware of the drifting condition and that the County had received calls or complaints regarding drifting snow at the accident location prior to March 2, 2005. Moreover, Budinas, a NYSDOT employee, testified that the area of the accident is considered an area of "special consideration" as referenced in the Guidelines because of blowing snow (Affirmation in Support of Motion, Exhibit P, at 41).
. Section 5.1303 of the 1993 Guidelines, "Locations that require special consideration when planning for snow and ice operations," states, in relevant part, that "highways subjected to abnormal drifting are . . . special conditions that warrant individual consideration" (Affirmation in Support of Motion, Exhibit J, at 3).
Defendant's evidence also suggests that other, similar accidents have occurred in the vicinity of the instant accident. Although the police accident report pertaining to the instant accident refers to a specific reference marker, defendant's evidence suggests that there is a larger "accident area" at play in this case. Specifically, the snow drift alleged to have caused the accident was rather large - one witness testified it was 500 to 600 feet long - and there was evidence that the Miller vehicle lost control in the drift, traveled some distance in the drift after losing control and had exited the drift before striking the snowplow. Thus, the Court does not find that its analysis of accident history should be confined to accidents that occurred at the exact reference marker noted in the police accident report. Defendant's evidence generally reflects that the instant accident occurred in a curve in the roadway on SR 7 approximately 4/10 to1/2 mile west of Kelly Station Road and that, according to police accident reports, at least four other accidents occurred between March 8, 1999 and March 2, 2005 in a curve in the roadway on SR 7 between 1/5 mile and 1/2 mile west of Kelly Station Road that involved drifting or blowing snow.
. In light of this accident history and evidence that the County had received complaints regarding drifting snow at the accident site, the Court finds the instant case distinguishable from its recent decision in Frechette v State of New York, UID No. 2013-039-382 [Ct Cl, Ferreira, J., Sept. 25, 2013]), a case with similar underlying facts. In Frechette, Stacey Frechette was proceeding on a State roadway when she encountered a snowdrift in her lane of travel, lost control of her vehicle and collided with a truck traveling in the opposite lane. Ms. Frechette was killed as a result of the accident, and the administrator of her estate thereafter filed a claim alleging that the State of New York was negligent for, among other things, failing to remove the snowdrift from the roadway. This Court granted defendant's motion for summary judgment and dismissed the claim. Among other things, the Court found that defendant had met its burden of establishing that it did not have actual notice of the alleged recurrent dangerous condition on its property, where "NYSDOT had not received any complaints about blowing and/or drifting snow at the accident location, and that there had not been any prior accidents at that location that were attributable to blowing and/or drifting snow" (id.).
The Court discredits Amsler's opinion that there was no "pattern" of accidents in the vicinity of the accident site that could be attributable to blowing snow, as Amsler did not provide any factual support or explanation for this conclusion, and the accident history belies this assertion (Affirmation in Support of Motion, Exhibit H ¶ 10).
In sum, the Court cannot find for defendant as a matter of law in light of the testimony of County employees that the accident area was a problem area with respect to drifting snow and that complaints had been made regarding the issue of drifting snow in the accident location and in light of the evidence suggesting that a number of similar accidents have occurred in the vicinity of the instant accident. Considering defendant's evidence in the light most favorable to claimants, the Court finds that defendant failed to meet its initial burden of establishing that it did not have actual or constructive notice of the alleged dangerous condition on its property.
Defendant also seeks summary judgment on the ground that it is entitled to qualified immunity because the actions of the County with respect to the accident location complied with the Guidelines, which constitute NYSDOT's "discretionary determination[as to] how conditions such as those which existed on the date of the incident were to be addressed" (Memorandum of Law in Support of Motion, at 7). In support of this argument, defendant has submitted Amsler's affidavit, in which he states that he was the author of the 1993 Guidelines, explaining:
"I was responsible for all facets of [NYS]DOT's snow and ice operations including the development of guidelines to be used throughout the State for uniform and reasonable responses to various snow and ice events. I used my expertise, experience and judgment and the advice of other exerts and engineers to provide guidance for . . . all [the NYS]DOT residencies and those municipalities that have entered into contracts with the [NYS]DOT to be responsible for snow and ice operations for certain State highways. These guidelines are a model for other entities and I have made countless presentations to discuss the practices found therein" (Affirmation in Support of Motion, Exhibit H ¶ 4).
. The Court received no evidence specifically establishing what version of the Guidelines was in effect at the time of the instant accident. However, Amsler states that the Guidelines were promulgated in 1993 and revised in 2006 and 2012, and the Court will assume, for purposes of this motion, that the 1993 version of the Guidelines was the version in effect at the time of the accident.
It is well settled that the State is accorded qualified immunity from liability arising out of a highway planning decision and can only be found liable for injuries "arising out of the operation of a duly executed highway safety plan" where there is "proof that the plan either was evolved without adequate study or lacked reasonable basis" (Weiss v Fote, 7 NY2d 579, 589 [1960]; see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Lifson v City of Syracuse, 41AD3d 1292, 1293 [4th Dept 2007]). Thus, "[w]hen a municipality studies a dangerous condition and determines, as part of a reasonable plan of governmental services that certain steps need not be taken, that decision may not form the basis of liability" (Friedman v State of New York, 67 NY2d at 286). Conversely, "the doctrine of qualified immunity will not apply where the [State] has not conducted a study which 'entertained and passed on the very same question of risk' " (Kuhland v City of New York, 81 AD3d 786, 787 [2011], quoting Weiss v Fote, 7 NY2d at 588 ). Defendant bears the initial burden of "demonstrating, prima facie, its right to judgment on the basis of qualified immunity; it must show that the decisions [with regard to snow control on SR 7 were] the product of a deliberative decision-making process, of the type afforded immunity from judicial interference" (Appelbaum v County of Sullivan, 222 AD2d 987, 989 [3d Dept 1995]; see Estate of Hamzavi ex rel. Farrell v State of New York, 43 AD3d 1430, 1431 [4th Dept 2007]).
The Court finds defendant's proof on this point inadequate to meet its burden on the issue of qualified immunity. Defendant argues that Amsler's "involvement in the promulgation of the [G]uidelines should suffice to meet the burden of proof that defendant must bear on this issue" (Memorandum of Law in Support of Motion, at 7). However, the Court finds Amsler's general and conclusory statement that he "used [his] expertise, experience and judgment and the advice of other exerts and engineers" (Affirmation in Support of Motion, Exhibit H ¶ 4) in authoring the Guidelines insufficient to demonstrate the process that went into the promulgation of the Guidelines, specifically the process that resulted in the particular Guidelines at issue in this case concerning NYSDOT's approach to blowing or drifting snow. Thus, defendant has failed to establish that it is entitled to qualified immunity from liability arising from its decisions taken pursuant to the Guidelines (compare Cartwright v State of New York, UID No. 2008-031-047 [Ct Cl, Minarik, J., Sept. 30, 2008]; Tuchrello v State of New York, 190 Misc 2d 664, 672 [Ct Cl 2001]). Defendant has also submitted no proof that it has conducted a study which "entertained and passed on the very same question of risk" at issue in this lawsuit, namely recurrent drifting and/or blowing snow at this location on SR 7 (Weiss v Fote, 7 NY2d at 588). The Court thus finds that defendant has failed to meet its burden of establishing its entitlement to judgment on the basis of qualified immunity.
Based upon the foregoing, it is ordered that defendant's motion (M-84269) is denied in its entirety. Following the filing of this Decision and Order, the Court will contact the parties to set up a conference to schedule trial in this matter.
March 31, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion dated November 14, 2013;
2. Affirmation in Support of Motion by Belinda A. Wagner, AAG, dated November 14, 2013, and attached exhibits;
3. Memorandum of Law in Support by Belinda A. Wagner, AAG, dated November 14, 2013;
4. Affirmation in Opposition to Motion by John R. Seebold, Esq., dated January 8, 2014, and attached exhibits;
5. Affidavit in Opposition by Jerome J. Thomas, sworn to January 3, 2014, and attached exhibits;
6. Memorandum of Law in Opposition by John R. Seebold, Esq., dated January 8, 2014;
7. Reply Affirmation by Belinda A. Wagner, AAG, dated January 15, 2014.