Opinion
# 2016-018-743 Claim No. 124952 Motion No. M-88687
10-31-2016
JABARI PENDA v. STATE OF NEW YORK
ROBERT E. LAHM, PLLC By: Robert E. Lahm, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General
Synopsis
Issues of fact regarding the duration and type of precipitation and whether State had actual notice of regular accumulation of water at this location to permit inference of constructive notice required denial of Defendant's summary judgment motion.
Case information
| UID: | 2016-018-743 |
| Claimant(s): | JABARI PENDA |
| Claimant short name: | PENDA |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124952 |
| Motion number(s): | M-88687 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | ROBERT E. LAHM, PLLC By: Robert E. Lahm, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 31, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for summary judgment and the Claimant opposes the motion. Claimant filed a note of issue on February 5, 2016, and this motion is timely (CPLR 3212 [a]).
The claim filed on September 10, 2014, alleges that on April 15, 2014, at approximately 12:45 p.m., Claimant was a passenger in a car driven by Lekeisha N. Denman-Duvall (Denman-Duvall) traveling eastbound on I-690 in the Town of Geddes, County of Onondaga. Claimant alleges that I-690, is a State six-lane highway with three lanes eastbound and three lanes westbound. Ms. Denman-Duvall was in the far left, or northern most eastbound lane, when she came upon six to eight inches of water which had accumulated in her lane of travel causing her to lose control of her vehicle. She struck the guide rail to the north, twice, before her vehicle crossed into the middle eastbound lane where it was struck on the passenger's side by a truck driven by Michael F. Bartowski. Ms. Denman-Duvall's vehicle then crossed to the south side of the road and hit the guide rail on the south side of the highway where the vehicle came to rest.
Claimant alleges that he suffered serious injuries as a result of the State's negligence in designing, building, inspecting, and maintaining I-690. Claimant specifically alleges that the State failed to use reasonable care in designing I-690 to handle rainfall and remove water from the roadway, failed to maintain I-690 in a reasonably safe condition, failed to remove debris covering storm or sewer drainage grates near the area of the collision, failed to remove debris from drain grates after a rainfall, failed to ensure that sewer or storm drains remained clear to allow water to drain off of the highway, failed to prevent or remove the accumulation of six to eight inches of water on the roadway, failed to take suitable precautions to prevent or correct the buildup of water, failed to give adequate warning of the accumulation of water to the traveling public, failed to prevent or correct the unsafe and dangerous condition, knew or should have known that debris builds up on the side of the highway in the winter, and spring rains will cause flooding if the debris is not removed, failed to inspect I-690 for debris covering the drains on the highway at the end of the winter snow and ice conditions and the advent of spring rains, knew or should have known of the accumulations of six to eight inches of water on the northern most eastern bound lane of I-690, in the area of the collision, which was present for a long enough period of time before Claimant's accident for the State to have removed the debris from the drainage grates and remove the water, the State knew or should have known that I-690, at this point, is low-lying and knew or should have known that drainage was insufficient at the site of the accident as it is lower than the surrounding and abutting terrain, and the design and building of the highway failed to remedy that condition by adjusting the terrain, or installing sufficient drains for the conditions, such as a Trench drain, to adequately drain the water that did accumulate in this low area, and otherwise failed to exercise reasonable care.
Defendant interposed an Answer and raised 12 affirmative defenses including governmental immunity for discretionary decisions, the negligence of Claimant or some third party caused or contributed to Claimant's injuries, and Defendant lacked actual or constructive notice of any defective condition.
The facts surrounding the accident are not in dispute and are consistent with Claimant's allegations in the claim. Deputy Sheriff John O'Neil responded to the scene of Claimant's accident and investigated. He prepared a diagram of the accident attached to his report which describes the accident as just west of a footbridge over I-690 East. Deputy O'Neil notes in the report that the accident occurred at reference markers 690I, 3301, and 1010. Diana L. Graser, P.E., Regional Traffic Engineer for the New York State Department of Transportation (DOT) for Region 3, which includes Onondaga County, indicates in her affidavit that the reference markers in the report do not correlate with Deputy O'Neil's drawing of the accident in close proximity to the pedestrian bridge. The reference marker, according to Ms. Graser, based upon DOT records, is .3 miles east of, or past, the western footbridge. Relying upon Deputy O'Neil's drawing and the notation of the time and location of the accident with the Transportation Management Center (TMC) of DOT, the actual location of the Claimant's vehicle's point of impact with the southern guide rail was at Mileage Marker 9.5 which corresponds to Marker 1007. Claimant does not dispute this clarification and, for consistency, going forward Mile Marker 9.5 will be used.
Exhibit F.
TMC is an operations hub of the department monitoring notifications received involving safety concerns for purposes of dispatching the appropriate DOT personnel group for response.
Ms. Denman-Duvall, in her deposition, stated that prior to the accident the precipitation was a mix of rain and snow. She was driving slightly under the speed limit because of the bad road conditions and did not notice the accumulated water. When she reached it, a lot of water splashed onto the windshield and other windows, and caused her car to hydroplane into the guide rail. Ms. Denman-Duvall traveled I-690 every other day and never saw any standing water at that location before the accident date.
Mr. Bartowski, the driver of the truck, testified that he was on his lunch break and returning to work when the accident occurred. He was driving a 2011 Chevrolet Silverado and said he drove I-690 to work on a regular basis. On prior occasions, Mr. Bartowski noticed water accumulating in the vicinity of the accident. He recalled that it was raining at the time of the accident, and some time shortly thereafter, he noticed snowflakes in the air.
Just before Mr. Bartowski saw Ms. Denman-Duvall lose control of her car, he said he was five to ten car lengths behind her and also traveling below the speed limit. When she started hydroplaning, Mr. Bartowski slowed and moved to the center lane in an effort to avoid a collision but was unsuccessful.
He described the standing water as 10 - 15 feet along the left lane and less than one lane wide. Claimant recalled it being wider than the left lane. Deputy O'Neil noted that the road was flooded with six to eight inches of water. He also indicated it was snowing at the time. Deputy O'Neil requested that DOT clear the drainage grates before the road could be reopened. Gary Druce, a DOT Highway Maintenance Supervisor, went to the scene and he described the water as about 50 feet long covering one-third to one-half of the left lane. He removed debris from the grates which allowed the water to drain from the roadway.
In its summary judgment motion, Defendant contends that it is entitled to have the claim dismissed as a matter of law because: (a) there was a storm in progress at the time so the State had no duty to remove the accumulated water until a reasonable time after the storm ended; (b) that the State is entitled to qualified immunity because I-690 had been the subject of a DOT Safety Appurtenances (SAFETAP) study in 2012, which found no safety issues relating to the drainage of water in the area of Claimant's accident; (c) that DOT had conducted regular and adequate maintenance, clearing the drains and picking up litter on four separate occasions during the six weeks prior to the accident which, as a matter of law, was not negligent since there was no history of similar accidents at that location; and (d) that the State had no prior actual or constructive notice of water accumulation that would constitute a dangerous, recurring condition at the accident location.
"Since summary judgment deprives the litigants of their day in court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues." (Matter of Skelly v Carma Realty, 78 AD2d 1005 [4th Dept 1980]). The movant bears the burden to establish its right to judgment as a matter of law by proof in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence submitted on the motion must be viewed in the light most favorable to the nonmoving party, giving that party the benefit of any favorable inference (Brubaker v Houseknecht, 83 AD2d 1539 [4th Dept 2011]; Russo v YMCA of Greater Buffalo, 12 AD3d 1089 [4th Dept 2004]). The motion should not be granted where there are questions of fact, or where an issue is "arguable." (Sillman v Twentieth Century-Fox Film Corp. 3 NY2d 395, 404 [1957], quoting Barrett v Jacobs, 255 NY 520, 522 [1931]). If the movant fails to make a prima facie showing that it is entitled to judgment as a matter of law, the motion must be denied "regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr. 64 NY2d 851, 853 [1985]). Only after the moving party has shown sufficient proof to support judgment as a matter of law, must the opposing party come forward with evidentiary proof to establish the existence of a material fact which would require a trial (Id.; Zuckerman, 49 NY2d at 562).
Storm In Progress
Defendant submitted numerous DOT personnel depositions, documents, and affidavits. April 15, 2014 was considered the last day of winter operations for DOT, and so snowplows had been removed from some of the DOT trucks. Many of the DOT employees testified that a snowstorm was predicted for the evening of April 15, 2014, so they had to re-equip the vehicles with snowplows. The accident occurred around 12:45 p.m., and at that time some of the witnesses indicated it was raining, while others indicated there was some snow. At 1:47 p.m., an hour after the accident, a winter travel advisory (WTA) was issued, and by 3:30 p.m., DOT variable message signs warned drivers of the slower speeds snowplows travel as the plows went out about 3:00 p.m. to prepare the roads for a snow and ice event.
Ms. Denman-Duvall testified that it was raining and snowing at the time of her accident and that driving conditions were bad. In his report, Deputy Sheriff O'Neil indicated it was snowing. Mr. Bartowski said it was raining as did Claimant. It is clear that after Claimant's accident the weather continued to deteriorate throughout the afternoon and evening. There is no indication that there was any buildup of snow or ice on the roadway at the time of this accident. The dangerous accumulation was water caused by an obstructed drain.
The State owes to the traveling public a nondelegable duty to design, construct, and maintain its roadways in a reasonably safe condition under the circumstances (Friedman v State of New York, 67 NY2d 271, 283 [1986]). Claimant must establish that a dangerous condition existed on the roadway that the State either caused, had actual notice of it, or that the condition existed for a sufficient time to allow the State an opportunity to learn of the danger and remove or warn of the condition (Mazzella v City of New York, 72 AD3d 755 [2d Dept 2010]; Gonzalez v City of New York, 148 AD2d 668, 670 [2d Dept 1989]). Dangerous, slippery conditions that occur during an ongoing storm will not support a finding of the State's liability until the storm ceases and for a reasonable time thereafter (Sherman v New York State Thruway Auth., 27 NY3d 1019 [2016]; Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]; Mazzella, 72 AD3d at 756; Petrowski v Abraham, 265 AD2d 901 [4th Dept 1999] Cerra v Perk Dev., 197 AD2d 851, 602 NY2d 277 [4th Dept 1993]). The storm in progress doctrine is not limited to blizzard conditions but has also been held to apply to less severe, yet still inclement, winter weather (Camacho v Garcia, 273 AD2d 835 [4th Dept 2000]). The doctrine does not relieve Defendant of its duty to maintain its roadways in a reasonably safe condition, but is a recognition of the difficulty of correcting dangerous conditions caused by inclement weather on one's property while the weather event is still occurring and until a reasonable time after a storm ceases (Powell v MLG Hillside Assoc., 290 AD2d 345 [1st Dept 2002]).
Here, Defendant has failed to establish that it is entitled to application of the storm in progress doctrine as a matter of law to negate any potential liability for the accumulation of water on I-690 that day. Defendant did not establish how long it had been raining before Claimant's accident, the witnesses have differing recollections of the type and level of precipitation around the time of the accident, and the evidence reflects that a winter storm was anticipated and weather advisories were issued after Claimant's accident, not before. Whether the weather conditions were such that Defendant was unable to attend to the water accumulation on I-690 because of a storm before the accident is a question of fact (Cappola v Michael's Banquet Facility, 8 AD3d 1100 [4th Dept 2004]).
Qualified Immunity
Defendant also argues that it is entitled to qualified immunity for its design and planning of the highway. The State is afforded qualified immunity for its highway planning and design decisions, unless it can be shown that the State's plan evolved without adequate study or lacked a reasonable basis (Friedman, 67 NY2d at 283; Weiss v Fote, 7 NY2d 579, 584-586 [1960]). As the proponent of this motion for summary judgment, Defendant bears the burden of establishing that the State is entitled to qualified immunity, for its design and planning of the drainage for I-690 at the location of this accident, and that the selection and design of the drainage were based upon adequate study and had a reasonable basis (Lifson v City of Syracuse, 41 AD3d 1292, 1293 [4th Dept 2007]; Urbaniak v Town of Clay, 237 AD2d 875 [4th Dept 1997]).
Defendant submits Ms. Graser's affidavit which reflects that in 2012, DOT conducted a Safety Appurtenance Program (SAFETAP) as part of a resurfacing project for I-690 including the accident site. Ms. Graser states a SAFETAP field investigation was conducted on March 13, 2012, as part of a resurfacing of the I-690 roadway that included the accident location. Field inspections are done by a team of Traffic, Maintenance, and Design professionals to identify roadside safety issues (e.g., guide rail heights, fixed object hazards, etc.) and to have these identified problems addressed by DOT Maintenance Forces or as part of a contract or a future contract. Accident history is reviewed to identify locations with safety issues within the project limits, including a field inspection of those locations, and recommendations for appropriate safety measures. The SAFETAP team included a professional engineer, who exercises professional engineering judgment within accepted engineering practices.
A review of the recommendations of the SAFETAP team, reflects many modifications and maintenance to signs, rumble strips, fencing, median barriers, guide rails, reference markers, edge of pavement holes, exposed concrete headwalls, and foliage. Ms. Graser seems to indicate that because no drainage issues were noted for modification or maintenance in the list of recommendations, drainage issues were considered but no problems were identified. She seems to, therefore, conclude that the drainage system at this location was reasonable and designed based upon adequate study. No evidence was presented as to how, prior to 2012, Defendant designed or developed the drainage system for this location on I-690. There is no indication that Ms. Graser had her current position at the time this study was performed or was a party to the SAFETAP team that conducted the review of I-690 in 2012. Defendant has failed to meet its burden on this motion to insulate from liability its design and construction of the drainage system at this location based upon qualified immunity (Winney v County of Saratoga, 8 AD3d 944, 945 [3d Dept 2004]; compare, Palloni v Town of Attica, 278 AD2d 788 [4th Dept 2000] [county demonstrated adequate study and a reasoned determination, when it considered guide rails at the accident location but it would have drastically reduced the width of the bridge, and county made a reasoned decision to make the road seasonal]).
DOT Lacked Actual or Constructive Notice of a Dangerous Condition at the Accident Location and DOT's Maintenance of the Area During the Six Weeks Prior to This Accident Was Reasonable as a Matter of Law
Defendant also asserts that it lacked actual or constructive notice of a dangerous condition, and its diligent maintenance activities for the drainage of I-690 at the location of this accident in the weeks preceding this accident were reasonable as a matter of law. To support this argument, the State contends that it was not negligent based upon a dearth of similar accidents over a 10-year period and its lack of complaints or documentation of drainage issues at this location prior to this accident. A general awareness of a recurring condition alone does not establish constructive notice of the condition that caused the injury (Solazzo, 6 NY3d at 735). However, actual notice of the recurring condition that caused the injury may be sufficient to infer constructive notice of the specific reoccurrence that caused the injury (Chianese v Meier, 98 NY2d 270, 278 [2002]; Maurer v Tops Mkts., LLC, 70 AD3d 1504, 1506 [4th Dept 2010]).
Here, Defendant's employees all agreed that six to eight inches of water on a roadway is a dangerous condition for motorists. Also any roadway can, on occasion, develop an area of accumulated water if the drainage system becomes compromised or completely obstructed by debris. Areas of I-690 that have repeated occurrences of accumulated water, are not necessarily documented, but are known to DOT based upon "institutional knowledge." In the submissions, there is a discrepancy about the frequency of water accumulating at this location of I-690. Brian Lovell, a Highway Maintenance Supervisor I with DOT in 2014, testified that this location of I-690 had collected water, possibly three or four times before for at least a couple of years prior to 2014. Mr. Larry Hasard, the Resident Engineer for the Onondaga West Residency of DOT and the supervisor for Mr. Lovell, testified that the area of I-690 between the two pedestrian bridges has been a known "DI [drainage inlet or drain interceptor] problem. " Mr. Hasard testified that at this location DOT had a "chronic problem" with debris collecting on the inlets to the drainage system preventing water from leaving the highway. There is no formal documentation of this, only informal notes, and Mr. Hasard testified that he was told about this problem by his predecessor in 2002. Mr. Hasard also testified that this area is monitored during periods of heavy rainfall for obstructed drainage. Mark Bush, a Civil Engineer I, supervises the maintenance crews at the Onondaga West Residency also was deposed and denied any frequent flooding at this location due to obstructions in the drainage system.
Mark Bush deposition transcript, page 46.
See Defendant's submissions, Mark Bush's deposition page 42, and Gary Druce deposition, page 20.
In addition, Mr. Bartowski, who drove this area of I-690 daily for work testified that he regularly noticed water accumulations on the roadway at this location on rainy days. Mr. Hasard agreed that this was consistent with his experience.
The testimony of these witnesses raise questions of fact as to whether there is actual specific historical knowledge that this area regularly accumulated water during rain storms sufficient to permit a finding of constructive notice of the accumulated water that caused this accident. Additionally, although the State did perform inspections and some clean up of debris in the area of this accident prior to April 15, 2014, the evidence does not support a finding that it met its duty as a matter of law, given the questions about the duration and level of precipitation prior to this accident, and the knowledge and experience of DOT regarding the risk of water accumulating on this roadway at this location.
Defendant's motion is hereby DENIED. The trial of this matter will proceed as scheduled for December 5 through December 9, 2016.
October 31, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, in support, with exhibits attached thereto. 3) Defendant's Brief in Support of Motion for Summary Judgment. 4) Schedule in Support of Defendant's Motion for Summary Judgment - Pre-Trial Deposition Transcripts. 5) Affidavit of Robert E. Lahm, Esquire, sworn to August 15, 2016, in Opposition to Motion for Summary Judgment with exhibits attached thereto. 6) Claimant's Memorandum of Law. 7) Reply Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, in Support of Motion for Summary Judgment.