Opinion
# 2015-045-501 Claim No. 119158
02-13-2015
DARRYL JEFFRIES v. THE STATE OF NEW YORK
Andrea & Towsky, Esqs. By: Frank A. Andrea, III, Esq. Hon. Eric T. Schneiderman, Attorney General By: Kimberly Kinirons, Assistant Attorney General
Synopsis
MVA, claimant's vehicle struck a downed light pole.
Case information
| UID: | 2015-045-501 |
| Claimant(s): | DARRYL JEFFRIES |
| Claimant short name: | JEFFRIES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119158 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Andrea & Towsky, Esqs. By: Frank A. Andrea, III, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Kimberly Kinirons, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 13, 2015 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
A bifurcated trial concerning the issue of liability only was held in this matter. The subject claim arose on December 3, 2009 at approximately 5:00 a.m. when claimant, Darryl Jeffries, struck a downed light pole that was lying across Ocean Parkway while driving his vehicle.
Claimant testified that after attempting to assist his friend with his disabled vehicle, he drove his 2000 Jeep Grand Cherokee east on Ocean Parkway and approximately 3,000 feet from the turnaround felt a big bump, hit his head on the roof of his vehicle and lost consciousness. He explained that he regained consciousness while his vehicle was still moving toward the grassy center median where it came to a stop on its own. He testified that it was dark outside and that he did not see anything on the roadway prior to his accident. He described the parkway lighting at the location of his accident as low to none. He described the weather as rainy and windy with moderate gusts of wind at times. After he unfastened his seat belt and exited the vehicle, he observed that all four of his tires were flat. He testified that 10 feet behind his vehicle there was a light pole lying across both lanes of the highway. He described the light pole as a wooden square pole approximately 10 inches in diameter and in two pieces with the lamp part no longer attached to the pole. He testified that although he did not call for assistance, a police vehicle responded to the accident within minutes.
He explained that he was at the scene of the accident for over an hour as he waited for his daughter to pick him up. During that time, he observed Welsbach workers remove the pole sections from the roadway, put it on the side of the road where they marked the pole number (433) in orange paint as well as the distance to where it had once stood. Claimant also testified that while at the scene of his accident, he observed that adjacent light pole (435) was down and that it was rotted on one end. Claimant also observed other poles that were down in the general area of his accident on both sides of the highway. He testified that a photo of the pole he struck depicted the break off area to have fresh wood on one end and rotted wood at its other end (Cl Exh 6D).
Phillip Ambrosio, a Grade 12 Electrician who retired from the New York State Department of Transportation (NYSDOT) in 2010, testified that in 1992 he was assigned to the NYSDOT Streetlight Unit. He was responsible for ensuring that the streetlights were in working order on Ocean Parkway. He explained that he tested poles 1-2 times a year and once a month he performed nighttime inspections which consisted of riding in a vehicle to determine if there were any malfunctioning lights. He testified that during his inspections on Ocean Parkway he observed rot on and in the wooden poles and observed wooden poles come down because of that rot on Ocean Parkway. He explained that for the last 15 years, he has observed that the aluminum light poles usually fall down due to being hit by vehicles but that on Ocean Parkway the wooden light poles fall down due to wind, rot and being hit by vehicles. He testified that rotted poles always fall down in Noreasters and hurricanes.
He also testified that he spoke to his supervisor Randy Pearsall on a number of occasions about the poles falling down. He also testified that Paul Kohner knew of the condition of the light poles. He also reviewed pictures in evidence and testified that he has seen the rot shown on the poles in claimant's exhibits 6D and 6E quite a few times on other poles.
Randy Pearsall, testified that he retired from the NYSDOT in 2010. He was employed as a supervising electrician of parkway lighting and was responsible for parkway lighting. He also oversaw the inspectors that repaired the poles and lighting. He stated that the wooden light poles on Ocean Parkway go into the ground approximately 6-7 feet. He testified that he kept records on the condition of poles and on the date of the accident he was alerted that pole 433 had fallen down. He testified that he never received any complaints about the stability of this pole and that he had no knowledge of decay on the pole. He explained that other poles have come down but that no other poles fell across Ocean Parkway and caused an accident. He testified that Phil Ambrosio never complained to him about the condition of the light poles. He explained that poles fall down due to accidents and weather. He stated that wind alone can cause a non-rotted pole to come down and that a 60 mph wind can take a pole down by breaking it at ground level.
After reviewing photograph 6E, he testified that the rot located at the bottom of the pole would have been below ground level because the rot is at the very bottom of the pole. He set forth that either the weather or getting hit caused the pole to come down.
The State of New York has a duty to maintain its roadways in a reasonably safe condition and the breach of that duty can result in liability to the defendant if the ascribed negligence in maintaining the road is a proximate cause of the accident (Friedman v State of New York, 67 NY2d 271 [1986]). In addition, the State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (id.). However, the State is not an insurer of the safety of its roadways, and the mere fact that an accident resulting in injury occurred does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take reasonable measures to correct the condition (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
Whether or not a dangerous defective condition exists on the property of another so as to create liability depends upon the facts and circumstances of each case. "[T]he width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury" are all factors to be taken into consideration when analyzing whether the defect was a dangerous condition so as to create liability (Trincere v County of Suffolk, 90 NY2d 976, 978 [1997] [internal quotation marks omitted]). With respect to fallen trees and poles, an owner will be held liable if a reasonable inspection would have revealed the dangerous condition of that tree or pole (Ivancic v Olmstead, 66 NY2d 349 [1985]); Harris v Village of E. Hills, 41 NY2d 446 [1997]); Figueroa-Corser v Town of Cortlandt, 107 AD3d 755 [2d Dept 2013]; Personius v Mann, 20 AD3d 616, 617 [3d Dept 2005]).
Claimant has failed to establish that defendant had any notice of any dangerous condition of the subject light pole. There was no evidence that there were any visible signs of decay on the pole. The evidence established that the rot on the pole was at the end of the pole that was buried between 6 and 7 feet below ground. As such, a reasonable inspection would not have revealed the dangerous condition of this pole. Claimant's evidence that a witness noticed rot on some of the wooden poles along Ocean Parkway during the last 15 years is insufficient to provide notice regarding the specific pole involved in this accident. In addition, the evidence that there were other poles down alongside the highway with no explanation as to when the poles had fallen or the circumstances of how they fell is insufficient to impute constructive notice of the condition of the pole involved in claimant's accident.
Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, his claim against defendant in this action. Accordingly the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
February 13, 2015
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims