Opinion
# 2018-015-165 Claim No. 128220 Motion No. M-91949
09-28-2018
KATHERINE MADORE and PHILIP MADORE v. STATE OF NEW YORK (Olympic Regional Development Authority)
Schneider & Palcsik, Esq. By: Drew Palcsik, Esq. Goldberg Segalla, LLP By: Chelsea Manocchi, Esq.
Synopsis
Defendant's motion for summary judgment dismissing claim on the ground of qualified immunity for highway design decisions was denied as allegations of negligence arose from highway maintenance issues.
Case information
| UID: | 2018-015-165 |
| Claimant(s): | KATHERINE MADORE and PHILIP MADORE |
| Claimant short name: | MADORE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK (Olympic Regional Development Authority) |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128220 |
| Motion number(s): | M-91949 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Schneider & Palcsik, Esq. By: Drew Palcsik, Esq. |
| Defendant's attorney: | Goldberg Segalla, LLP By: Chelsea Manocchi, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | September 28, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212.
This is an action for personal injuries sustained by claimant, Katherine Madore (claimant), in a motorcycle accident on July 25, 2014. On that date, claimant, her husband and five friends were sightseeing on their motorcycles in the Lake Placid area. The weather was described as "beautiful" (defendant's Exhibit E, p. 15) and the group intended to conclude their day trip with a tour of a castle at the top of Whiteface Veterans' Memorial Highway, also known as State Route 431. Whiteface Veterans' Memorial Highway is an eight-mile long road, the last five of which are a toll road leading to Whiteface Castle. The motorcycle group paid the required fee to go up the last five miles to the castle, riding in a staggered formation as they did so, with the first in formation riding to the left of the driving lane, the next to the right, etc. Claimant testified that after they passed through the toll, they immediately saw signs indicating a rough road ahead. Claimant testified during an examination before trial that there were so many potholes and "frost heaves" in the roadway that avoiding them was difficult (defendant's Exhibit D, p. 18). The posted speed limit was 25 miles per hour and the claimant testified that her average rate of speed was approximately 15 miles per hour (id. at p. 19). When claimant was approximately 2/10ths of a mile from the top of the mountain she attempted to avoid a bump in the road by turning her wheel to the right. Her front tire hit a pothole, which caused her to lose control of the bike and travel on the broken tarmac shoulder where her engine guard came in contact with a boulder, propelling her approximately 15 feet down what she described as a "cliff" (id. at pp. 24-29). Claimant, though injured, was able to climb back up to the roadway where one of her friends applied a bandage to a wound on her arm. She was thereafter taken to the hospital by her husband. Claimant's motorcycle landed approximately 10 feet down the cliff and was later determined to be a total loss.
Claimant, Philip Madore, asserts a derivitive claim.
Whiteface Veterans' Memorial Highway is a seasonal road open to cars, motorcycles, and bicycles from May through October (defendant's Exhibit F, pp. 14, 50). Trucks and pedestrians are prohibited and the roadway, opened in 1936, was last resurfaced in 1962 (Wood affidavit, ¶ 3). Geoffrey W. Wood is the Director of the Safety Program Management and Coordination Bureau for the Department of Transportation (DOT) and was the Project Manager for a rehabilitation project that was underway at the time of the accident. He testified during an examination before trial that the Olympic Regional Development Authority (ORDA) was the State Agency responsible for maintaining the last five miles of the road that lead to Whiteface Castle - the toll portion of the roadway (defendant's Exhibit F, p. 11, 35). According to Mr. Wood, although both ORDA and the Town of Wilmington had requested financial support from the Governor's office "for several years", it was not until November 2013 that the Governor announced he would make $12 million dollars available for the rehabilitation of the subject highway and facilities (Wood affidavit, ¶ 6; defendant's Exhibit F, p. 49). Although ORDA had fixed potholes and cracks over the years, and had performed "considerable" pavement and shoulder reconstruction (defendant's Exhibit F, p. 51, see also pp. 12-13), Mr. Wood states in an affidavit submitted in support of the instant motion that ORDA "does not have the expertise to take on a project such as the rehabilitation project for Whiteface Veterans' Memorial Highway" (Wood affidavit, ¶ 5). As a result, the rehabilitation project "became a New York State Department of Transportation Capital Project" (Wood affidavit, ¶ 5). According to Mr. Wood, "[t]his was due to the extent of repairs that were needed, which were above and beyond what ORDA operations staff could handle and exceeded the funding they had available for that purpose" (id.).
It appears that the project had not progressed beyond the toll booths when the accident occurred.
Mr. Wood described the project as "very complicated" and subject to a short schedule (defendant's Exhibit F, p. 22). Following the Governor's announcement in November 2013, Mr. Wood and his team immediately began the design process which was completed in 61 days (Wood affidavit, ¶ 7). After the design was complete, it went out for public bid. The work thereafter commenced in April, 2014 and was completed in June, 2015 (Wood affidavit, ¶ 10; defendant's Exhibit F, p. 31). It is undisputed that prior to the completion of the project, rough-road signs were posted every mile after the toll booths.
In support of its motion for summary judgment dismissing the claim, defendant contends that it is protected by qualified immunity because the delay in effectuating its rehabilitation plan was justified by legitimate funding priorities. Claimant, on the other hand, contends that the doctrine of qualified immunity applies to cases involving the field of traffic design engineering, not to cases limited to allegations of negligent maintenance. The Court agrees.
The State is subject to a nondelegable duty to construct and maintain its highways in a reasonably safe condition, taking into consideration such factors as the traffic conditions, terrain and fiscal practicality (Gutelle v City of New York, 55 NY2d 794, 795 [1981]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). The State's duty to construct and maintain its highways in a reasonably safe condition extends to foreseeable users of the highway, including motorcycles (see Rodriguez v State of New York, UID No. 2015-030-019 [Ct Cl, Scuccimarra, J., Nov. 19, 2015]). In the field of traffic design and engineering, however, the State is accorded a qualified immunity which can only be overcome with proof that a highway planning decision "evolved without adequate study or lacked reasonable basis" (Weiss v Fote, 7 NY2d 579, 589 [1960], rearg denied 8 NY2d 934 [1960]; see also Friedman v State of New York, 67 NY2d 271, 283-284 [1986]; Politi v State of New York, 112 AD3d 1257 [3d Dept 2013]; Zecca v State of New York, 247 AD2d 776, 777 [3d Dept 1998]). The Court of Appeals made clear in Weiss v Fote that while the anachronistic concept of sovereign immunity lost its legal force and effect upon passage of the Court of Claims Act, the State retained its immunity for highway planning decisions involving the exercise of expert judgment (see also Joyce v State of New York, 152 AD2d 306 [1989], appeal denied 76 NY2d 703 [1990]). The Court explained that "[t]o accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts" (Weiss v Fote, 7 NY2d at 585-586). Thus, to establish liability arising from highway planning decisions, "something more than a mere choice between conflicting opinions of experts is required" (id. at 588). The claimant must show "not merely that another option was available but also that the plan adopted lacked a reasonable basis" (Affleck v Buckley, 96 NY2d 553, 557 [2001]).
Unreported decisions from the Court of Claims are available via the internet at www.NYSCourtofClaims.State.NY.US.
When the State's analysis of a hazardous condition results in the formulation of a remedial plan, a delay in implementing the plan may form the basis for liability unless the defendant demonstrates that the delay "was necessary in order to study and formulate a reasonable safety plan, that the delay was itself part of a considered plan of action taken on the advice of experts, or that the delay stemmed from a legitimate ordering of priorities with other projects based on the availability of funding" (Friedman, 67 NY2d at 287). Following Friedman, several cases have found the State or a municipality immune from liability for the delayed implementation of a highway planning decision due to funding priorities. In Evans v State of New York (130 AD3d 1352 [3d Dept 2015], lv denied 26 NY3d 910 [2015]), a case on which defendant relies, the State made a deliberate determination to repair a washed-out roadway without replacing a culvert that no longer conformed to current design standards. Claimant alleged that, because the road subsequently washed out, his car bottomed out and was launched into the air, landing with sufficient force to cause personal injuries. The culvert replacement work had been placed on a list of capital projects and was completed after the accident. The Court specifically found that "the replacement of the culvert presented a design, and not a maintenance issue and that defendant was entitled to qualified immunity" (id. at 1355). Inasmuch as the State had specifically addressed the design defect, and placed the project on a list of capital projects, the Court found "the timing of the replacement was due to legitimate funding priorities and, thus, the delay in ultimately replacing the culvert was not unreasonable" (id.). Other cases in which the State or a municipality was found immune from suit due to legitimate funding priorities all involved traffic design cases, not highway maintenance (see Palloni v Attica, 278 AD2d 788 [4th Dept 2000], lv denied 96 NY2d 709 [2001] [defendant demonstrated that seasonal road was reasonably safe but defendant in any event was immune from suit for its determination not to install guard rails due to funding priorities]; Trautman v State of New York, 179 AD2d 635 [2d Dept 1992], lv denied 79 NY2d 758 [1992] [failure to install median barrier stemmed from a legitimate ordering of priorities with other projects]). Here, by contrast, the claim is limited to the contention that the defendant failed to maintain the roadway in a reasonably safe condition and "[t]he doctrine of qualified immunity is not applicable to those causes of action" (Selca v City of Peekskill, 78 AD3d 1160, 1161 [2d Dept 2010]). Indeed, when the State has notice of a hazardous highway condition in need of maintenance or repair, its duty to take reasonable measures to timely correct the condition is triggered and the State is not immune from liability for its failure to timely do so (see e.g. Rockenstire v State of New York, 135 AD3d 1131 [3d Dept 2016]; Pesce v City of New York, 147 AD2d 537 [2d Dept 1989]; cf. Christy v City of Niagara Falls, 103 AD3d 1234 [4th Dept 2013] [case in which motorcyclist hit pothole was dismissed for lack of notice]; Mitchell v Town of Fowler, 231 AD2d 170 [3d Dept 1997], lv denied 91 NY2d 805 [1998]).
Unlike highway design determinations, routine highway maintenance does not require the exercise of reasoned judgment which could typically produce different acceptable results (see Tango v Tulevich, 61 NY2d 34 [1983]). 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, the rationale supporting the application of qualified immunity is simply lacking. Inasmuch as expert decision-making is unnecessary in the ordinary highway maintenance case, defendant's invocation of the qualified immunity doctrine here is misplaced.
Moreover, defendant's assertion that the delay in maintaining the roadway surface was the result of funding priorities was completely unsupported by reference to any of the factors which entered into its funding assessment (see Giske v State of New York, 191 AD2d 675 [2d Dept 1993]; Ames v City of New York, 177 AD2d 528 [2d Dept 1991]). The mere assertion that both the Town of Wilmington and ORDA had requested funding for the rehabilitation project "for several years" is insufficient (Wood affidavit, ¶ 6).
Accordingly, defendant's motion is denied.
September 28, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion, dated March 9, 2018;
2. Affidavit of Chelsea E. Manocchi, Esq., sworn to March 9, 2018, with Exhibits A - F;
3. Affidavit of Geoffrey W. Wood, P.E., sworn to March 8, 2018, with Exhibit A;
4. Memorandum of Law, dated March 9, 201[8];
5. Affirmation in opposition, dated March 26, 2018;
6. Memorandum of law, dated March 27, 2018, with Exhibit 1;
7. Reply Affidavit of Chelsea E. Manocchi, Esq., dated April 3, 2018.