Opinion
# 2014-028-004 Claim No. 116150
06-23-2014
JACQUELINE K. PHILLIPS, Administratrix of the Estate of PETER A. DEANGELIS, II v. THE STATE OF NEW YORK
DREYER BOYAJIAN, LLP BY: John B. Casey, Esq. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Thomas Monjeau, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2014-028-004 |
| Claimant(s): | JACQUELINE K. PHILLIPS, Administratrix of the Estate of PETER A. DEANGELIS, II |
| Claimant short name: | PHILLIPS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116150 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | DREYER BOYAJIAN, LLP BY: John B. Casey, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Thomas Monjeau, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 23, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Peter A. DeAngelis II, Claimant's decedent, lost his life in the early morning hours of Sunday, January 14, 2007 when he fell from the Patroon Island Bridge. Claimant alleges that Defendant is responsible for this tragic accident because the New York State Department of Transportation (DOT) failed to exercise reasonable care in maintaining the surface of the bridge in a safe condition, specifically in failing to send out trucks to spread salt or similar material in a timely fashion despite knowing that a serious storm was approaching. Defendant denies liability, contending that it fulfilled its duty to maintain the roadway in a reasonably safe condition, that it complied with all relevant ice and snow guidelines and procedures, and that, in any event, its actions and duties were governmental in nature and thus protected by what Defendant refers to as "McLean immunity." Trial of the action was bifurcated and this decision addresses only the issue of liability.
Factual Background
Many of the facts concerning the accident that led to DeAngelis' death are not in dispute. About 10 or 15 minutes before 2:00 a.m., on Sunday, January 14, he was one of two passengers in a Chrysler Sebring that traveled north on I-787 and took the exit ramp onto the eastbound lane of I-90 in order to cross the Patroon Island Bridge into Rensselaer County. Two other cars were stopped on the bridge, and the Chrysler slid into one of them, causing a slight "fender bender." The drivers and passengers in all three cars exited their vehicles and, because the roadway was icy, walked over to the south side of the bridge where there was a curb and the side wall of the bridge with railing onto which they could hold.
Other cars continued to approach the scene from the west. Some made it across the bridge unscathed, but almost immediately there was another collision. That car came to rest on the opposite, northern side of the bridge, with the result that both the right-hand lane and the passing lane were blocked, leaving only the middle lane open for other traffic. Some cars made it through, but a Range Rover hit the car in the passing lane, skidded across the bridge, and headed directly toward the location where DeAngelis and a companion were standing. DeAngelis, attempting to lift himself up against the side of the bridge to avoid being hit, lost his balance, and fell over the railing onto railroad tracks located 90 feet below the bridge.
Fact Witnesses
Claimant, who is DeAngelis' mother and the Administratrix of his estate, testified that Peter was the third of her four children. He was born in January 1985, making him 22 years old at the time of his death. He graduated from Averill Park High School in 2003 and attended Hudson Valley Community College for several semesters. He had worked for Hannaford full-time for approximately a year and a half, but shortly before his death told his mother that he hoped to become an English teacher.
Paul Burke was the driver of a red Jeep Wrangler involved in the first collision. He said that shortly before the accident, I-90 had started to become icy, and he felt that it became significantly worse as he drove onto the bridge. He slowed down, activated his vehicle's four-wheel drive, and was moving over to the far right lane when his car was struck from behind. He then lost control, and his car skidded to the right and stopped. When he got out of the Jeep, Burke noted that the road surface was icy and hard to walk on. After calling 911 and briefly returning to his car, Burke joined some other people who were standing around and preparing to walk off the bridge. He was talking to three young men about events when he became aware of a Range Rover skidding out of control and heading toward them. He and others managed to move away quickly but "one of the gentlemen couldn't get out of the way and tried to lift himself up on the guardrail, and slipped over the side" (Tr 358). The Range Rover, Burke stated, had been heading directly toward that person.
References to the trial transcript are indicated by (Tr).
Brendan Habiniak was the driver of an Acura Integra that ran into the back of Burke's Jeep. He testified that it was "some time after midnight" when he left I-787 and traveled up the ramp onto I-90 east. He estimated that he was traveling approximately 30 miles per hour. As soon as he got onto the bridge he saw two cars ahead of him. The car in the lead, in the middle lane, continued on eastward and successfully drove off the bridge. The car immediately in front of him, a red Jeep, was going very slowly in the right lane and soon began to slide. Both he and the driver of the Jeep attempted to brake, but the cars did not stop. They collided, began to spin, collided again and then came to a stop, with Habiniak's vehicle about 50 feet behind the Jeep. He and the Jeep's driver got out of their cars, and Habiniak observed that the roadway was very slippery and icy.
This was his testimony at trial. At an earlier deposition, however, he had stated that he left his father's house between 1:00 and 1:15 a.m. and was returning home after a brief stop in Albany when the accident occurred (Tr 145). Since the accidents were first reported at 1:46 a.m., this earlier account appears to be more accurate.
As Habiniak was ending a call to 911, another vehicle, a Chrysler, approached. It went past his car but struck the Jeep, spinning around and finally coming to a stop in front of the Jeep. Almost immediately, a Honda drove onto the bridge, and it, too, collided with the Jeep. The Honda slid or spun until it came to rest on the opposite side of the bridge, in the passing lane. Another car came and collided with the stalled vehicles, and then the Ranger Rover came into view. It collided first with the Honda and then veered across the bridge to a point in front of the Jeep. Hearing metal crunching and then screaming, Habiniak went to investigate and learned that someone had fallen off the bridge. Later, as Habiniak and others began to walk to the eastern end of the bridge, to get off the roadway, he found the roadway to be slippery but said that he wasn't "falling all over the place" (Tr 126). It wasn't until he was allowed to go back to his car to get his belongings that he observed two snowplow trucks come through, applying salt or sand to the eastbound lane.
Sean Garavelli had driven his mother's Chrysler Sebring to a holiday party. After leaving the party, he drove to downtown Albany and parked about one-half mile away from the bar on Pearl Street where the partygoers, including DeAngelis and Matthew Kospa, were planning to meet. They stayed at the bar between 45 minutes and an hour and a half, and during that time Garavelli observed that it had started to rain when he went outside for a smoke. They left the bar around 1:30 a.m., intending to go to a place in Schodack where food was served. When he, DeAngelis and Kospa walked back to his car, it was still raining. Garavelli testified that the metal grates on the sidewalk had become icy and were slippery, although the sidewalk was not.
Traveling north on I-787, the streets were wet, but Garavelli said that he was able to drive at a speed of approximately 55 to 60 miles per hour without difficulty. Once on the ramp to I-90, however, conditions became worse. Reaching the top of the ramp, he saw the two vehicles ahead of him crash into one another, spinning out of control. He hit his brakes, but the Chrysler didn't stop because the bridge was icy. As the car continued to slide forward, he tried to steer away from the other vehicles, but his car clipped the back bumper of the Jeep. When his vehicle stopped spinning, it was facing north, perpendicular to the roadway and in front of the Jeep.
After Garavelli moved the car out of the path of oncoming traffic as best he could, he and his passengers got out onto a wet and icy surface of the bridge. Kospa walked to the west, to try to slow or stop other vehicles as they approached the accident site. Garavelli and DeAngelis remained approximately 25 feet away from their car, standing close to the curb because the roadway was less icy at that location.
Although a number of vehicles were stopped on the bridge because of the several collisions, Garavelli saw others that were able to travel on across the bridge, moving very slowly, no more than 5 miles per hour. When a Ranger Rover, traveling much faster than these other vehicles, came along, however, it crashed into the back of the Honda that was stopped in the left-hand, passing lane, and then skidded and started moving rapidly across the roadway, aimed toward the location where Garavelli and DeAngelis were standing. Garavelli held onto the railing, slid down to the curb, and moved quickly away toward the east. He stayed down by the curb, he said, because he wanted to get away from the oncoming car but was also afraid that he would slip on the ice. He saw DeAngelis, who had been standing about 5 feet to the west, put his arms on the railing and bring his legs up, apparently trying to keep them from being pinned by the oncoming car. It appeared to him that DeAngelis did not have time to move to the side in either direction. Garavelli saw the Range Rover strike the bridge right where DeAngelis was and DeAngelis then slowly flipping backwards. After screaming to his friend and then at the people in the Range Rover, telling them what they had done, Garavelli and Kospa went to the eastern end of the bridge and down an embankment to get to DeAngelis. They stayed with him until the EMTs arrived and took him away in an ambulance.
Matthew Kospa testified that when they left the Holiday Inn to go to downtown Albany, there was a light mist coming down. On two occasions when he left the downtown bar to smoke, he observed that the mist was starting to become rain. When he, Garavelli and DeAngelis left the bar around 1:30 a.m., they had to walk some distance to Garavelli's car. It was still raining, and when Kospa stepped on a metal grate in the sidewalk, he slipped because the metal had iced over.
When their car went up the ramp onto I-90, Kospa was able to see at least one vehicle stopped in the right-hand lane. He saw Garavelli try to use the brakes, but they never engaged and the car continued to slide. Their vehicle almost managed to avoid the other cars but struck the Jeep with its side and then careened into the left-most lane slightly colliding with the median wall. Concerned that they might be in the path of oncoming traffic at that location, Garavelli was able to back up his car and get over to the right-hand lane.
Everyone got out of the car and spoke with the drivers of the other stalled cars, while at the same time "a few vehicles flew by" and made it without incident. One vehicle tried to stop but wound up spinning out and crashing. Kospa then walked westward on the bridge to see if he could get oncoming traffic to stop, but was only marginally successful. When he went back to the accident site, he was walking on the curb, which was not as icy as the roadway, and had his arm over the ice-covered railing.
Arriving back at the accident site, he observed a Range Rover right up against the railing where his friends had previously been standing, and Garavelli was yelling that DeAngelis had fallen over. He went down below the bridge with Garavelli and they stayed with DeAngelis until he was taken away by the paramedics. They then went back up onto the bridge where they waited for almost 20 minutes until a police officer could give them a ride to an exit. Kospa did not see a DOT plow truck of any sort during this time.
Vladimir Ranguelov, the driver of the Range Rover, testified that he, his wife and another couple had gone out for dinner and then had drinks at a bar on Wolf Road. He had a beer with his dinner but only soft drinks thereafter. The vehicle he was driving was one he was considering purchasing for his used car business. He estimated that they left Wolf Road around midnight and got on I-90, by way of I-87, intending to take one in their party to Rensselaer. It had not been raining earlier, he stated, but when they left the bar, there was a light rain, a drizzle. Because of the rain, Ranguelov tapped his brakes lightly and abruptly in order to test the surface of the road, and there appeared to be no problem.
It is unlikely that his memory of the time they left is accurate, as it would not have taken almost two hours for them to reach the Patroon Island Bridge from that location.
As they approached Patroon Island Bridge, he was driving in the left-hand lane and did not see any vehicle traveling in front of him. He saw that cars were stopped, with people standing around them, on the right-hand side of the roadway. When he looked back to the left, he became aware there was a car (the Honda) ahead of him, stopped in the left lane. He followed his instinct, he said, and immediately tried to brake and steer away, but he could tell that the surface was all ice. He was almost able to steer away from the Honda but struck it with his car's left front side. The combination of his steering to try to avoid the Honda and the force from the collision pushed the Range Rover to the right, where it collided with the Jeep, spun around and came to a rest in front of the Jeep.
Ranguelov was aware that there were some people standing in front of the Jeep, but he did not see anyone on the side of the bridge. He got out of his car, quickly realized that the roadway was ice, and jumped back in. Later, when they were directed by State Police to walk to the end of the bridge, he and his party found the roadway to be icy, and he said they "wobbled" a bit as they left the bridge. It was while walking with others who were leaving the bridge that he learned someone had fallen off the bridge. He stated that he did not see any snowplows on the road at any time before they were involved in the accident.
New York State Police Troopers Amy Landy and Ian Henry were notified about the Patroon Island Bridge accident at 1:46 a.m., and they arrived at the accident scene on the bridge after the accidents had occurred and after DeAngelis had fallen. As they approached the scene, coming from the west, they observed several vehicles, including the Range Rover, stopped at all different angles, with approximately 20 people milling about. In addition to getting statements from the motorists and summoning six tow trucks, either Landy or Henry called their dispatcher and requested that DOT be notified there was a road condition that needed an immediate response (Tr 663). Landy made a schematic drawing (Exhibit 4) to show the relative locations of the various vehicles. The Range Rover (Vehicle 5) is not shown as touching the concrete side wall of the bridge, but Landy stated at trial that she had no way of knowing whether prior to their arrival, the vehicle had made contact with the side wall or a nearby car and then bounced back.
Both Troopers testified that a light freezing rain had begun shortly after midnight. They were called to respond to a weather-related accident on Alternate Route 7 about that time, and sometime later were told to cross back over the river to respond to a rollover accident in Rensselaer County. On their way across the Patroon Island Bridge to get to that location, they saw a single car that had "spun out" and stalled on the bridge. They stopped to make sure that the driver was okay, with Landy noting that the road surface on the bridge at that time was "very icy" (Tr 653). She testified that she had a hard time stopping the patrol vehicle because it was sliding. The motorist whose car had spun out was allowed to drive off, and the Troopers continued east toward the reported rollover accident. Almost immediately, however, they were told there had been an accident back on the bridge, and they either volunteered or were told to turn around and go to that scene instead.
Both Troopers described the surface of the bridge when they arrived on the accident scene as being icy, very slippery, and difficult to drive on. When Trooper Henry got out of his cruiser to walk to the center of the collision, the bridge was "completely ice" (Tr 418). He had to walk very slowly in order to stay on his feet. He confirmed that the State Police dispatcher was called, either by Henry himself or by Landy, and asked to have DOT send a salt truck to the bridge. Both on direct and cross-examination, Henry said that prior to the accident, close to midnight, he had seen DOT salt or sand trucks on I-787, Alternate Route 7, and I-90 (Tr 425, 434).
Except for the Patroon Island Bridge and a short section of I-90 west of the bridge, these roadways do not fall within the jurisdiction of the Rensselaer County residency.
At approximately 2:14 a.m., Officer Jeffrey Michael Adams of the City of Rensselaer Police Department, received a call to his patrol car notifying him of the accident on Patroon Island Bridge. Before he reached the accident site, however, there was another dispatch saying that someone had fallen from the bridge. Since he was aware that other officers were at or en route to the bridge site, he drove instead to the area below the railroad tracks. At that time, DeAngelis was still alive, and his friends were with him. Two other officers and then several EMTs arrived, and DeAngelis was taken away in an ambulance. Officer Adams described the weather as cold and raining a light drizzle.
Officer Stephen Boniface, shift supervisor for the City of Rensselaer Police Department, was also in a patrol car east of the river when he was notified of the multi-car accident. To get to the scene, he had to drive west across the bridge on I-90, make a U-turn, and then come back on the eastbound lanes. When asked about driving conditions, he said that it was "ice" and that he was having difficulty controlling his patrol car due to the ice. At one point, he briefly lost control of his own vehicle, and after that he drove extremely slowly. He eventually joined Adams at the location under the bridge.
Investigator David Burns, a 14 year veteran with the New York State Police, testified that part of his duties in 2007 was to investigate any deaths. He was informed about DeAngelis' death some time before dawn on Sunday, January 14, and he subsequently interviewed a number of the witnesses, spoke with the Medical Examiner and the doctor who performed the autopsy, attended the autopsy, and met with Troopers Landy and Henry. At approximately 10:30 a.m. on January 14, roughly 8 hours after the accidents, Burns took photographs of the area (Exhibits 21 - 26). At that time the roadway was wet and there was ice on the curbing and rail area, but no precipitation was falling. Burns testified that the State Trooper who performed the accident investigation determined the causes of the accident to be unsafe speed and slippery road conditions (Tr 402). With respect to his own investigation, Burns found no criminality involved, determining the cause of DeAngelis' death was that he fell over the railing.
Weather and DOT Activity
Section 5.2300 of DOT's 2006 Snow and Ice Guidelines (Exhibit 27) sets forth a "Storm Watch Methodology" which, among other things, provides that in each DOT residency a "continuous telephone watch" be maintained during snow and ice season. In addition, a Storm Manager is to be designated within each residency, and that person is responsible for monitoring all relevant information and taking appropriate action in light of the weather activity, giving consideration to an expected storm's start time, the type of storm it is anticipated to be, and the anticipated pavement and air temperatures. Maintenance responsibility for the Patroon Island Bridge, which connects Albany County to Rensselaer County, is assigned to DOT's Rensselaer County residency. In 2007, Jan Meilhede was the Resident Engineer of this residency. The designated Storm Manager for the shift beginning at 1:00 a.m. during the early morning hours on January 12 (Friday) through the 14th (Sunday) was Michael Rock, a Highway Maintenance Supervisor II.
At trial, Jan Meilhede explained that the Rensselaer residency was not manned at all times during the winter months. Normally there were two shifts: one (Shift A) from 4:30 a.m. to 1:00 p.m. and the second (Shift B) from 1:00 p.m. to 9:30 p.m. In January 2007, the supervisor of Shift A was Mike Rock, and the supervisor of B shift was Kevin Farley (Tr 718). When a snow event was in progress, each shift could be directed to cover 12 rather than 8 ½ hours, making the shifts run from 1:00 a.m. to 1:00 p.m. (A shift) and from 1:00 p.m. to 1:00 a.m. (B shift). The residency was normally not staffed on weekends unless there was a weather emergency in progress. When it was closed, weather monitoring operations were run out of the Saratoga storm watch, a/k/a radio watch, center, located at the Saratoga Springs residency. When the Rensselaer residency was closed, phone calls were automatically rerouted to the Saratoga center, unless and until the local crews had to be called out to handle a weather emergency. The storm watch center, which was staffed around the clock, monitored weather forecasts for a four-county area (Albany, Rensselaer, Saratoga and Schenectady) and served as "the control point where information would be gathered and a decision would be made" (Tr 715-716). The Saratoga staff had a detailed call-out list for DOT personnel in each section of all four counties, and if the threatened weather was going to significantly affect an area, they would place a call directly to the relevant Storm Manager. The Storm Manager would then assess the situation and call out crews as necessary. The Storm Managers also had an independent responsibility to monitor weather conditions.
Meilhede explained that, pursuant to Section 5.2302 of the Guidelines, supervisors were encouraged to patrol areas likely to be affected by an approaching storm, using light vehicles equipped with communications abilities. When a weather event was anticipated, it was also recommended that trucks carrying appropriate material "be pre-positioned to begin spreading on their beats [i.e., routes] as soon as the event starts." (Exhibit 27) Appendix A of the Operator's Guidelines (Exhibit 28) lists different strategies to be used for different types of precipitation and different surface temperature conditions.
He was asked to describe DOT's anti-icing strategy (Section 5.4401 of the guidelines) and said that it calls for placing and maintaining ice control chemicals on the pavement surface "before or very soon after precipitation or ice formation begins" so as to prevent the snow or ice from bonding to the pavement. Rock salt works by raising the temperature of the precipitate that is on the road, preventing it from adhering to the pavement. The combination of the rock salt and precipitate creates a salt brine between the pavement and whatever is coming down so that it doesn't start developing into a hard pack. If the rock salt or rock salt and calcium chloride mixture is ever used prior to a freezing rain, it must be done immediately - within half an hour or less - before the precipitation starts. He stated that this strategy was not often employed, however, because the particles of rock salt do not stay in place on a dry roadway, but instead become scattered by passing vehicles and would wind up being dispersed before it was actually needed. Only when they knew with certainty that bad weather was coming across from a neighboring residency would DOT get some of the mixture out in advance of the storm, and they would do that only if it was, for example, the middle of the night when there would be few vehicles to displace the material.
Although there were a number of different chemicals that could be used, the Rensselaer residency used rock salt mixed with calcium chloride. Rock salt, Meilhede explained, is not effective when the pavement temperature gets below 20 degrees, and therefore the calcium chloride would be added for those lower temperatures.
From residency records, Meilhede testified that on the morning of January 14, Mike Rock was called by the Saratoga storm watch at 12:30 a.m with news of the approaching weather event. The purpose of the call was to give him a general heads up and to inform him that the counties of Albany, Greene and Saratoga had decided to call out their crews. When road crews are called out other than on their normal schedule, they are given one hour to report for duty. Individuals who arrive sooner than that can be sent out to begin working on the roads ahead of the others. The residency's normal practice is to have at least some of the trucks loaded with salt, or salt mixture, at the end of a shift, so there would typically have been loads already in some, if not all, the trucks from Friday evening.
Meilhede identified Exhibit 13 as a portion of the diary or journal that he kept routinely for the entire time he was Resident Engineer. His January 16, 2007 entry indicated that on Saturday the 13th he had seen a forecast calling for an anticipated start of bad weather at dawn on Sunday. He also found a record that Mike Rock had seen a forecast indicating that the weather event would begin between 3:00 a.m. and 6:00 a.m. on Sunday. He noted that if, as happened here, the road crews were at the residency and operational by 2:00 a.m., that would have been sufficient lead time to prepare them for a storm or precipitation event starting at 3:00 a.m. Meilhede had written, apparently based on conversation he had with Mike Rock, that the Patroon Island Bridge accident occurred sometime between 1:30, "when Mike got in and started calling in people", and 2:00 a.m. (Tr 732). It was Meilhede's understanding that the first crew member to report, Lou Delmonico, was told to salt on I-90 near Elliott Road where he (Delmonico) had seen an accident on his way to the residency, and then to proceed to the Patroon Island Bridge. At that point they did not know about the fatality.
Portions of the transcript of the deposition of Peter Melas, Professional Engineer, were read into the record. Melas was the Resident Engineer of DOT's Rensselaer County Residency in 2011, after Meilhede's tenure. He confirmed that in winter, the residency goes to a "shift work" staff that covers a 16-hour portion of the day. Coverage during the times the residency was closed was provided by the Capital District Weather Watch, located in Saratoga County and staffed around the clock. "They would be watching the weather, they would be receiving these Accuweather Reports, they would be taking any phone calls, you know, whether it be a knock[ed] down sign, or debris in the road, or even icy conditions, anything like that" (T 929). At least by 2011, according to Melas, the Accuweather forecasts received at the watch center were e-mailed to Resident Engineers and Assistant Resident Engineers on their Blackberries and to their work computers.
He stated that there were no Saturday, January 13 records for the Rensselaer County residency since it was closed that day. The Saratoga watch center logbook (Exhibit 11) showed only normal entries during Saturday but with more weather related ones late Saturday night and early Sunday morning. The log showed communications about a black ice situation in a remote area of Saratoga County and, at around 12:30 a.m., calls from Greene County and Albany County (south and west of Rensselaer) that icy weather was arriving (id, p 4). Immediately after those communications, at around 12:30 a.m., calls were made to the Storm Managers in both Schenectady and Rensselaer Counties. It was this call that Mike Rock received at his home. Afterwards, during the time period when Rock was mobilizing the Rensselaer crews, there was a report of an accident on I-87 (west and north of Rensselaer) at 1:25 a.m. and on the Collar City Bridge (immediately north of the Patroon Island bridge) at 1:40 a.m. This, of course, was just minutes before the subject accidents on the Patroon Island Bridge, first reported at 1:46 a.m. The records show that Rock had trucks on the road by 2:00 a.m. and that those crews stayed on the job until the B Shift came in at 1:00 p.m. Sunday afternoon.
Melas also explained that the Rensselaer County residency mixes sodium chloride with its salt when there is frozen precipitation, whether it is freezing rain, snow, or sleet. The goal is to have trucks out ahead of a storm and start pre-treating the roads. For this reason, crews are usually called an hour or two in advance of anticipated bad weather so that they would be driving on better roads getting to the residency and therefore less likely to become involved in an accident themselves. Normal procedure at the Rensselaer County residency was to leave the plow trucks clean on Friday nights and to have at least some of them pre-loaded with the salt mixture. When they are called in, the drivers have to do a pre-operation inspection, as required for their commercial driver's licenses, get the trucks loaded with salt if that was not already done, and "sometimes they would sit and wait for their precipitation" (Tr 941).
Michael Rock, the Highway Maintenance Supervisor II who was the designated Storm Manager during the relevant time period, testified that on the weekends, when he was not at the residency, he would try to stay current with weather forecasts and was always available during his shift time to receive calls from the Saratoga watch center. He was in bed when he received the call from Saratoga around 12:30 or 12:45 a.m. on Sunday morning. He recalled that the call came in 15 to 30 minutes before his shift was scheduled to begin. When he had gone to bed several hours earlier, his understanding was that the storm was expected to arrive sometime around 6:00 a.m. on Sunday morning.
After receiving the call, he went to the Residency, arriving in Defreestville around 1:30 a.m. He could not recall the conditions on the road as he drove in. He stated that it was preferable to call the crew from the office where he has more tools, such as his computer. He called all of the crews and said that almost everyone was at the Residency and ready to go by 2:00 a.m. Rock stated that the average amount of time it would take between a call from Saratoga to having crew members at the residency ready to go onto the roads would be one hour, fifteen minutes, and therefore the mobilization on January 14 was within normal expectations. It would take approximately 20 minutes more for a salt truck to get from the residency to the Patroon Island Bridge if it traveled there directly.
Exhibit 29 is comprised of handwritten notes typically made by Rock every day that he was on duty. The note for January 14 lists the day of the week, "freezing rain," the time of Rock's arrival at 1:30 a.m., and then a list of the individuals who were assigned specific tasks, the routes they covered, and the measurement of salt that they used. His narrative note, which he said would have been made around 1:00 p.m. on Sunday at the end of his shift, read as follows:
"Bridges iced up before we could get trucks out. Several bad accidents, Collar City and Patroon Island. One fatality in one of the accidents, on Patroon Island Bridge. Person apparently hit by car and knocked over bridge."(Tr 777.)
If the crews were being sent out to cover their normal routes but Rock became aware of a different area with a particular need, he had the authority to redirect one or more. In the early hours of January 14, he was not aware of any particular need associated with the Patroon Island Bridge before he sent the crews out. When he did learn of the initial accidents, he either stopped one of the crew members (Delmonico) as he was leaving or radioed to him to head to the Patroon Island Bridge after clearing up the first accident that he had been directed to address. The I-90 route ("beat") went from Exit 9 (Route 4 exit) to Exit 5A (Corporate Woods) and then back again, covering approximately 25 to 30 miles. The round trip would take about 50 minutes if they were only salting and up to two hours if they were plowing. There were always two and sometimes three trucks on this particular beat.
Rock noted that in addition to the Saratoga watch center, calls might also be received from the Traffic Management Center, a joint undertaking of DOT and the State Police located on the State Office Campus near SUNY. The Management Center does not monitor weather reports. Rather, it takes in and acts on calls from 911, from the State Police, or from DOT officials who are out on the roads and then notifies the appropriate parties. When Trooper Landy or Trooper Henry asked the State Police dispatcher to notify DOT, the dispatcher's call would have gone to this center.
Expert Testimony
Claimant's expert, Steven Schneider, a Licensed Professional Engineer, said that he had been asked to look at the incident on Patroon Island Bridge as a highway maintenance item, with the actions or omissions of DOT's Rensselaer County residency being the focus of his concern. He did not, therefore, investigate how the accidents occurred but, rather, "review[ed] the guidelines that are used to specify what the State workers were supposed to be doing" and to see if they had been followed (Tr 460-461).
According to Schneider, Region One of DOT encompasses Albany, Rensselaer and Saratoga Counties, in addition to other counties within the Capital Region. At least one of the residencies within any region must be on duty at all times, and on January 13, 2007, it was the Saratoga County residency that had that responsibility for Region One. A continuous telephone watch is to be maintained at each residency during the snow and ice season, although that could be accomplished by use of commercial services, arrangements with other municipal service agencies, another residency, or DOT Traffic Management Centers. Referencing to section 5.2301 of the guidelines (Exhibit 27), Schneider noted the importance of the Storm Manager, someone whose job it is to "monitor all of the available forecast information and determine the approximate start time for the storm," with the goal being to provide a timely response to the conditions that occur (section 5.2200). Once an approximate start time is identified and the type of storm and anticipated pavement and air temperatures determined, a decision can then be made about when to have the necessary people and equipment ready to go out on the roads. Other factors to be considered are traffic volume, since it impacts the degree of difficulty encountered in carrying out procedures (section 5.1302), and whether there are bridges or other special locations that should receive special consideration (section 5.1303).
In Schneider's opinion, the most important information available to DOT prior to the January 13-14 events on the Patroon Island Bridge arrived at 5:10 p.m. Saturday evening when, according to the Saratoga residency report (Exhibit 11, p 111), an Accuweather fax report was received by the Saratoga watch center and then passed along to all of the counties. This weather fax (Exhibit 12) indicated that there had been some precipitation reported as late as 11:30 a.m. on Saturday morning and that another storm was approaching. Specifically, it stated:
"Light mixed precipitation will spread from south to north, across this area Saturday night, into Sunday. Spotty freezing rain in the south will likely turn to plain drizzle Sunday. There could be slick spots, especially in the late night and early morning. . . . Spotty, freezing rain, mixed with sleet in Central and Northern areas could coat the roads. Temperatures should ease above freezing Sunday afternoon."
(Tr 478). On a diagram of the area, a solid line was drawn down through Albany to indicate that 4:00 a.m. was the estimated start time for the arrival of frozen precipitation at that location.
This 5:10 p.m. report should have served as a "big red flag," requiring officials to be careful and diligent in the following hours. According to Schneider, all crew members should have been notified there was a storm coming and that it would cause hazardous conditions, and they should have been in the field, with loaded trucks, by 7:00 p.m. "[A]s it got into the evening hours, they should have gone out and started to put down the chemicals, or sand or salt" and followed the anti-icing strategy, particularly on the Patroon Island Bridge (Tr 508). In his view, therefore, anyone seeing the 5:10 p.m. report and doing nothing would be negligent in failing to respond to the situation before him.
Schneider accepted that Rock was most likely unaware of the 5:10 p.m. fax because no one had been at the Rensselaer County residency to receive it, which, in his opinion, maintaining telephone contact was even more critical. There was no such communication, no "continuous" telephone watch as is required by the guidelines. This, in his opinion, was the most critical of DOT's failures: the absence of any constant ongoing communication between Rock and either the Saratoga dispatcher or any of the other residencies. Specifically, Schneider stated, the Saratoga dispatcher should have alerted Rock, by phone or in some other fashion, to let them know when weather reports showed that temperatures would go below freezing between 8:00 p.m. and midnight. When asked how someone should have monitored any changes in the weather prediction after receipt of the 5:10 p.m. weather fax, he said that local weather forecasts should have been monitored and the Storm Manager should have been notified when conditions became worse, again referencing the supposed drop in temperature that he claims occurred around 8:00 p.m. (Tr 589). The call to Mike Rock at 12:30 or 12:45 a.m. was absolutely untimely, according to Schneider. The very latest Saratoga should have waited before notifying the Rensselaer Storm Manager was perhaps 11:00 p.m.
Schneider repeatedly referred to the fact that the temperature in the area was predicted to and did go below freezing around 8:00 p.m. on Saturday night. However, such an occurrence was not mentioned by any other witness, is not shown in any of the documentary evidence, and, in fact is directly contradicted by records showing that the temperature in this area had dropped below freezing at 3:51 p.m. on Saturday afternoon and stayed below freezing until long after the accident (see, footnote 6, Tr 833). In the posttrial brief, Claimant's counsel makes no reference to these statements by Schneider and bases no argument on this asserted fact.
Upon cross-examination, Schneider acknowledged that the 5:10 p.m. report did not expect freezing precipitation to arrive in the Albany area until approximately 4:00 a.m. on Sunday. When asked why this information would make it necessary for the Storm Manager to be called before midnight, he stated,
"Because this is what's anticipated. And it said in the guidelines that they have to prepare for what is anticipated. And they were not prepared, . . . there was no communication, and the temperature did go below freezing earlier." (Tr 540)
He stated further that if he had received the 5:10 p.m. report, Rock should have "follow[ed] the procedures on getting the manpower ready for a storm" (Tr 552) by going to his post, waiting to find out what was happening around 6:00 to 8:00 p.m., and taking the trucks out some time before 2:00 a.m. When asked if the weather report changed between 5:00 p.m. and 12:30 a.m., Schneider said again that based upon a meteorologist's report, the temperature went well below 32 degrees around 8:00 p.m. In his view, therefore, the Saratoga center did not stay on top of this local weather and did not notify anyone when the problems became worse with the drop in temperature.
Since there was no communication from 5:00 p.m. to 12:45 a.m., there was no preparedness. Schneider acknowledged, however, that Rock's actions after receiving the 12:45 a.m. call were appropriate. And he also acknowledged that if the weather, in fact, the frozen precipitation had arrived around 4:00 a.m. then the timing of Rock's notification and his subsequent actions would have been appropriate (Tr 600). As it turned out, of course, the frozen precipitation began earlier than predicted, and in Schneider's opinion, the actions taken by the Saratoga watch center and, therefore, the Storm Manager of DOT's Rensselaer residency were inadequate.
Howard Altschule, a forensic meteorologist called to testify by Claimant, explained that he provides past weather data, records, opinions, and other information about weather conditions at some fixed location at a specific time in the past. The weather information he uses comes from a number of sources: the Federal National Climatic Data Center; Cooperative Observer Stations aligned with the National Weather Service; storm data maintained by the National Weather Service; and, in this area, hourly observations from Albany Airport, Doppler radar images that are taken every five minutes at Thacher State Park, and a publication, Local Climatological Data, that records the amount of any snowfall at the Albany Airport.
To create a picture of the weather conditions at the time and location of the subject accident, Altschule began with forecasts issued on Friday, January 12. At 4:15 p.m. on Friday, the National Weather Service's forecast called for wintery precipitation for Saturday night and Sunday morning. At 9:30 p.m., Friday, a slightly more detailed forecast was issued, indicating a chance of rain and sleet Saturday evening and possible snow after midnight. Early Saturday morning, at 4:00 a.m., the National Weather Service issued a freezing rain advisory for the period from 3:00 a.m. Sunday morning until 2:00 p.m. Sunday afternoon. For the hours before the advisory began, including Saturday night and early Sunday morning, the weather was predicted to be partly cloudy in the evening, then mostly cloudy with freezing rain likely after midnight. Chance of precipitation for that period was 60 per cent: "[a]lthough the freezing rain is expected to remain light . . . it will be enough to create hazardous driving conditions Sunday morning" (Tr 888).
Shortly after noon on Saturday, the 3:00 a.m. to 2:00 p.m., National Weather Services freezing rain advisory was repeated, with the time period prior to 3:00 a.m. expected to be "partially cloudy in the evening then mostly cloudy, with freezing rain, likely after midnight...lows in the upper 20's", and 60 per cent precipitation (Tr 829). The National Weather Service forecast issued at 4:21 p.m. Saturday, shortened the time of the winter weather advisory to 3:00 a.m. to 12:00 noon on Sunday. For the earlier period, before 3:00 a.m., this forecast projected the weather would be "cloudy, a slight chance of light freezing rain or light sleet this evening...then light freezing rain, or sleet or snow, likely after midnight" with the chance of precipitation still at 60 per cent. This same forecast was repeated at 10:18 p.m. on Saturday.
Asked to explain the different terms used in these forecasts, Altschule stated that "drizzle" refers to precipitation where the water remains suspended in air in mist form and turns into glaze or ice crystals only after it comes into contact with below-freezing surfaces. In contrast, rain and other forms of precipitation involve actual droplets of water or ice crystals formed before they fall to earth and make contact with any surface. The temperature in this area dropped to below freezing at 3:51 p.m. on Saturday, and it stayed below freezing for the rest of Saturday and almost all of Sunday (Tr 832-833). Consequently, when the Patroon Island Bridge accident occurred temperatures had been below freezing for approximately 10 hours. When asked, Altschule stated that the phenomenon of bridges freezing more quickly than other parts of a roadway did not play a role in this instance, because both the bridge and other portions of the roadway had been subjected to below freezing temperatures for many hours before the accidents happened.
The National Weather Service unit at Albany Airport recorded the following temperatures on Saturday evening and Sunday morning: 4:01 p.m. - 30o; 4:51 p.m. - 30o; 5:17 p.m. - 30o; 5:51 p.m. - 30o; 6:51p.m. - 29o; 7:51p.m. - 29o; 8:51 p.m. - 28o; 9:51 p.m. - 28o; 10:51 p.m. - 28o; 11:42 p.m. - 27o; 11:51 p.m. - 27o (Tr 832-833).
The Court recognizes, however, that several of the eyewitnesses testified that the surface of I-90 on the Patroon Island Bridge was more icy and slippery than on other portions of I-90 or nearby roads such as I-787.
Altschule stated that Doppler images for the relevant time period show precipitation moving in from the west and southwest all across the region (T 835). It began around 10:50 p.m. Saturday night, with light freezing rain observed in Schoharie and Greene Counties. By 11:41 p.m., it was found in southern Columbia and Rensselaer Counties and consisted of freezing drizzle and light freezing rain.
It was not until 1:35 a.m., however, that precipitation, in the form of light freezing drizzle, reached Patroon Island Bridge, the accident location. Asked to characterize the weather events around Patroon Island Bridge at the time of the accident, Altschule said that freezing drizzle began to fall at the location at 1:30 a.m. and that this would have been sufficient to create an ice build-up of perhaps 1/10th of an inch or slightly less. Such a build-up would, he said, be sufficient to have an impact on vehicle traffic, making the roads very slippery. He noted that the light blue or almost white markings on the Doppler images of the accident location indicate that the precipitation there was light freezing drizzle, in contrast to other areas where dark blue markings indicate heavier precipitation that would likely turn into ice before falling to the ground (Tr 908). The precipitation that fell at the accident site on January 14 was, he stated, in the form of drizzle.
Altschule also observed that the forecasts from the National Weather Service appear to have been more accurate than the ones compiled by Accuweather, a private forecasting company to which DOT subscribed. The Accuweather forecast did not anticipate any frozen precipitation before 4:00 a.m. Sunday morning. Although the National Weather Service also predicted that weather advisory status would not be reached until around 3:00 a.m., it more accurately anticipated some lighter precipitation beginning at midnight or slightly thereafter.
Richard Westergard, a certified consulting meteorologist with prior experience in the Air Force and the National Weather Service, also presented Doppler radar images for January 13 and 14, 2007, paying particular attention to the area around the accident site. By 11:02 p.m. on Saturday night, there was some moisture in the atmosphere, drizzle began to fall at the airport by 11:21 p.m. "Drizzle" or freezing rain, he explained, means precipitation is above freezing as it falls but suddenly goes below freezing when it hits the colder ground. Saying there will be freezing rain, therefore, means that super cooled precipitation will be falling, and if the temperature of anything it lands on is below freezing, it will crystalize.
By 12:20 a.m. on Sunday, the 14th, there was some actual precipitation in the general area, approaching from the southwest. The first indication of any weather activity over the accident site came at 1:06 a.m., most likely in the form of drizzle or possibly very light rain. At that time, according to Westergard, the bridge deck would have been essentially the same temperature as the air temperature: around 26 to 28 degrees. The precipitation increased around 1:24 a.m., and by 1:41 a.m. there was evident rain at the accident site. By 1:55 a.m., the rain had moved further on. As summarized by Westergard, "light freezing drizzle began, at or near the Patroon Island Bridge a few minutes after one a.m. and had been added to by ten minutes or so of light freezing rain, between 1:45 and 1:55 a.m." (T 1044) The drizzle may or may not have turned to ice in this situation, he said, but the ten minutes or so of light freezing rain would have resulted in some ice, probably slightly less than one tenth of one inch (T 1048).
According to the National Weather Service forecasts, a freezing rain advisory (meaning that freezing rain will accumulate enough to cause a hazard but not become a major hazard) had been announced at 4:00 p.m. Saturday. This was subsequently, at 10:14 p.m. Saturday, changed to a winter weather advisory (which could be any type of winter weather that would create a hazard) for the same time period, 3:00 a.m. until noon on Sunday, the 14th. Westergard noted that neither of the advisories were predicting that the weather would cause a major, life-threatening hazard, only that anyone on the road should take extra care. If a major hazard was anticipated, the term "warning" would have been used instead. When asked what the average layperson should expect the weather to be like in the hours before 3:00 a.m., Westergard said that if he heard this forecast on the car radio, "I'll say to myself, well, by 3:00 a.m., I need to be home" (Tr 1034). As a general rule, he stated, a warning means "if you don't have to go out, don't go out" while an advisory is saying "be careful if you go out" (Tr 1032).
Westergard explained that a weather "warning" means that a major, life-threatening hazard may occur, while an "advisory" means that anyone who goes out on the road should take extra care.
Applicable Law
Municipalities and other governmental entities have a duty to keep their streets in a reasonably safe condition for travel, a duty that includes the removal of dangerous accumulations of snow and ice on the roadways (Williams v City of New York, 214 NY 259 [1915]; see also Mazzella v City of New York, 72 AD3d 755, 756 [2d Dept 2010]; Gonzalez v City of New York, 148 AD2d 668, 670 [2d Dept 1989]). The State is not an insurer against all harm, however (Friedman v State of New York, 67 NY2d 271, 283 [1986]; Kissinger v State of New York, 126 AD2d 139, 141 [3d Dept 1987]). Thus, the presence of snow and ice and the fact that a vehicle skidded out of control do not alone establish negligence against the State (Valentino v State of New York, 62 AD2d 1086, 1087 [3d Dept 1978], appeal dismissed 46 NY2d 1072 [1979]; Timcoe v State of New York, 267 AD2d 375 [2d Dept 1999]). Furthermore, there is no absolute duty placed on the State, or any municipality, to keep all roads completely safe for drivers at all times. For example, the "storm in progress" doctrine, which is most commonly applied to situations involving sidewalks and similar pedestrian travel routes, has also been held to apply, within reasonable limits, to snow and ice clearance on public highways (Mazzella v City of New York, 72 AD3d 755, 756 [2d Dept 2010] [municipality "cannot be held liable for injuries sustained as a result of slippery conditions [on highway] that occur during an ongoing storm, or for a reasonable time thereafter"]; Frechette v State of New York, UID No. 2013-039-382 [Ct Cl, Ferreira, J., Sept. 25, 2013]; Murtiff v State of New York, UID No. 2011-037-503 [Ct Cl, Moriarty, J., March 31, 2011] ["Total vigilance over all its highways during the winter period is not expected, but the State must exercise reasonable diligence in road maintenance"]). Other factors such as existing weather conditions and the criteria used to determine when to call emergency crews must be also considered in determining the reasonableness of any response in areas where large quantities of ice and snow are to be expected in the winter time (Fox v State of New York, 35 Misc 2d 728, 730 [Ct Cl, 1962]; 65 NY Jur 2d Highways, Streets, and Bridges § 537).
This doctrine provides that a property owner's obligation to take reasonable measures to correct storm-created snow and ice conditions does not commence until after the storm has ceased. It has been described as a " 'common sense rule arising from the fact that snow and ice conditions are unpredictable, natural hazards against which no one can insure and which in their nature cannot immediately be alleviated ' " (Hilsman v Sarwil Assoc., L.P., 13 AD3d 692, 693 [3d Dept 2004]).
The governmental entity responsible for maintenance of the roads must also have actual or constructive notice of the icy condition and sufficient time prior to the accident to address the danger (Slaughter v State of New York, 238 AD2d 770 [3d Dept 1997]). The requisite notice must be of a specific condition or situation that poses a danger to motorists and should be remedied:
"[C]onstructive notice is not established through defendant's general awareness that icy conditions may exist" (Hart v State of New York, 43 AD3d at 525), nor does defendant's knowledge that a winter storm is taking place in the general area establish notice of a specific dangerous condition at the site of an accident (see e.g. Barrett v State of New York, 13 AD3d 775, 776 [2004]; Valentino v State of New York, 62 AD2d 1086, 1087-1088 [1978], appeal dismissed 46 NY2d 1072 [1979]).
(Harjes v State of New York, 71 AD3d 1278, 1279 [3d Dept 2010]; see also Gardner v State of New York, 79 AD3d 1635, 1636 [4th Dept 2010]). Consequently, the pertinent inquiry in all highway maintenance cases is whether the State exercised reasonable diligence in maintaining its highways under the prevailing circumstances (Freund v State of New York, 137 AD2d 908, 909 [3d Dept 1988]; Tromblee v State of New York, 52 AD2d 666, 667 [3d Dept 1976]). In cases relating to ice and snow removal, the more specific question is whether the ice was present as the result of the State's lack of reasonable care and diligence in its snow and ice removal activities or in spite of such activities (Chavez v State of New York, UID No. 2013-029-042 [Ct Cl, Mignano, J., Dec. 1, 2013]). Contrary to defendants' contentions, the duty to keep public highways safe for travel is considered to be proprietary in nature and, as such, governmental immunity does not apply (McGowan v State of New York, 41 AD3d 670 [2d Dept 2007]), not even the expanded governmental immunity established in the line of cases commencing with McLean v City of New York (12 NY3d 194 [2009]). A governmental entity is engaged in proprietary activity when it performs an activity traditionally engaged in by the private sector (Bass v City of New York, 38 AD2d 407, 411 [2d Dept 1972], affd 32 NY2d 894 [1973]), and those activities often involve the maintenance and repair of property owned by the municipality or State (Balsam v Delma Eng'g. Corp., 90 NY2d 966 [1997]; Missano v Mayor of City of NY, 160 NY 123, 129 [1899] [in repairing and cleaning its streets, a municipality acts as a "legal individual", rather than as a government]; see also Wittorf v City of New York, 33 Misc 3d 368, 377 (Sup Ct, NY County 2011) affd 104 AD3d 584 [1st Dept 2013] [distinguishing between making repairs and directing traffic, a governmental function]). Examples of proprietary functions cited by claimant include maintenance and repair of water mains (D & D of Delhi, Inc. v Village of Delhi, 47 AD3d 1117, 1118 [3d Dept 2008]), snow removal from steps of State-owned building (McGowan v State of New York, 41 AD3d 670, 671, [2d Dept 2007]), and operating a public park (Vestal v County of Suffolk, 7 AD3d 613, [2d Dept 2004]). While it can be argued that public highways are a type of property owned and maintained only by governments, any uncertainty about this issue has recently been eliminated by the Court of Appeals in Wittorf v City of New York (__ NY3d __, 2014 WL 2515698 [June 5, 2014]).
Nor is defendant entitled to the qualified immunity accorded to highway planning decisions (Weiss v Fote, 7 NY2d 579 [1960]), unless liability is premised on allegations that the safety plans or procedures of the municipality were in some way defective rather than, as here, that there was a failure to comply with such plans and regulations.
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When acting in a proprietary capacity, the governmental entity is "generally subject . . . 'to the same duty of care as private individuals and institutions engaging in the same activit[ies]' " (Sebastian v State of New York, 93 NY2d 790, 793 [1999], quoting Schrempf v State of New York, 66 NY2d 289, 294 [1985]; see also, Kochanski v City of New York, 76 AD3d 1050 [2d Dept 2010]; Signature Health Ctr, LLC v State of New York, 28 Misc 3d 543 [Ct Cl 2010]), "and may be held liable for breach of that duty" (Kochanski v City of New York, supra). That is, the governmental action is subject to ordinary tort liability (Balsam v Delma Eng'g Corp., supra Miller v State of New York, 62 NY2d 506, 511 [1984] [State acting as landlord of college dormitory]).
Discussion
In the instant case, Claimant must establish that the State was negligent when it failed to mobilize road crews and otherwise respond in a timely fashion to a weather situation that resulted in the icy condition on the Patroon Island Bridge. Such negligence, if proven, must also be established as a proximate cause of DeAngelis' death.
The arguments that the State's conduct was negligent are based primarily on the testimony and opinion of Claimant's expert, Steven Schneider. His initial assertion is that the response to the 5:10 p.m. Accuweather fax should have been an immediate mobilization of the Rensselaer road crews, so that the crews would be in place, with loaded trucks, by 7:00 p.m. Saturday night. Such a course of action is, on its face, extremely illogical, as well as wasteful of public resources. The weather fax predicted that a major weather event would arrive Sunday at 4:00 a.m., and that prior to that time there would be "light mix precipitation," "spotty freezing rain turning to drizzle," and "some slick spots." Since the fax provided no more specific information about where the "slick spots" were likely to occur, and in the absence of any credible testimony that the descriptions contained in the fax would automatically trigger a call for emergency crews to be mobilized, the Court must reject witness Schneider's conclusion. If the prediction in the fax had been accurate, the road crews called out at 5:00 p.m. and in place by 7:00 p.m. would have been sitting idle for over 9 hours. As it was, even with freezing rain occurring well before the predicted time, the first instance of any type of precipitation in Rensselaer County was at 11:10 p.m., four hours after, under Schneider's hypothesis, the crews should have been fully mobilized. More to the point, however, at 5:10 p.m., when the fax was received, there was no reason to anticipate anything other than the weather predicted in the fax, a hazardous condition warranting a weather advisory that would commence at 4:00 a.m. A 5:00 p.m. or even 7:00 p.m. mobilization of emergency road crews was not required, or justified, by that prediction.
In apparent recognition of this, Schneider himself backed away from this argument when he suggested later that a proper response would have been for Rock to go into the residency and wait around to see what the situation looked like at 6:00 p.m. and 8:00 p.m. Later in his testimony, he agreed that if the Accuweather forecast had in fact been correct, notification to Rensselaer by 12:30 a.m. and full mobilization by 2:00 a.m. would have been appropriate.
Schneider also testified that the latest the Saratoga watch center should have contacted the Rensselaer residency was 11:00 p.m. The Court recognizes that it is possible, perhaps even probable, that if a call had been made at that time, and the Rensselaer Storm Manager had decided to mobilize the crews so that they were on the road between midnight and 1:00 a.m., the Patroon Island Bridge would have been salted and safe for travel at 1:30 to 1:40 a.m. when the series of collisions began. In hindsight, therefore, this is the course of action that all wish had been taken. However, the reasonableness of a defendant's actions cannot and must not be assessed in hindsight (Provenzo v Sam, 23 NY2d 256, 260 [1968] ["[T]he wisdom of hindsight is not determinative"]). Reasonableness depends on what is logical and foreseeable at the time when decisions are made to act, or not to act. Those decisions must be assessed "under the circumstances existing at the time they were made, without the benefit of hindsight" (Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn.of the State of N.Y., 16 NY3d 360, 372 [2011]).
At 11:00 p.m. Saturday night, the first precipitation in the area had just been reported: light freezing rain in Schoharie and Greene counties, both considerably to the south and west of Rensselaer county. There were also reports of drizzle at the Albany airport. Did this first appearance of the predicted "spotty freezing rain" indicate a worsening of the anticipated situation as to require that the counties be contacted? Between 11:00 p.m. and midnight, there were scattered instances of drizzle and light freezing rain, again matching earlier predictions. It wasn't until shortly after midnight that more significant events occurred: precipitation that some of the witnesses described as "rain," a weather-related accident on Alternate Route 7, and observations of salt trucks in Albany. Shortly thereafter, at 12:30 or 12:45 a.m., the Saratoga watch center had acted and Mike Rock started mobilization of the Rensselaer road crew. Considering the actual events as they occurred, the Court is unable to find any factual basis for concluding that the Saratoga watch center was negligent when it failed to contact Rensselaer officials prior to 12:30 a.m.
Schneider made much of the fact that there was no communication of any sort between the Saratoga watch center and Rensselaer County at any time Saturday evening. It is not clear, however, what there would have been to communicate if more telephone calls or other contacts had been made. As indicated above, the information received between 11:00 p.m. and midnight was not sufficiently new or unexpected to warrant such a call. As far as the earlier period, before 10:51 p.m., was concerned, nothing of note occurred, giving Saratoga nothing of importance to communicate. If, as Schneider maintained, the temperature had gone from above freezing to below freezing in the middle of the evening and that change was unexpected, it would be logical, and reasonable, perhaps even imperative, for the Saratoga watch center to alert the counties. This temperature drop did not occur, however, and failing that, there does not appear to have been any other piece of critical information Saratoga needed to convey to Rensselaer during the period before 12:30 a.m. The records indicate that there was no precipitation anywhere in Rensselaer County before 11:41 p.m. and none at the accident site until 1:06 a.m. Therefore, even if there had been earlier communications, they could not have provided notice of any specific dangerous condition existing at the site of the accident. Without such notice, and a reasonable time in which to effect a cure, there can be no liability.
One final observation must be made. It is true that Mike Rock did not see the 5:10 p.m. Accuweather fax, although his understanding of the situation when he went to bed Saturday night was similar to what it would have been if he had done so. He indicated to the Resident Engineer that based on forecasts he had seen, he anticipated a storm would be arriving between 3:00 a.m. and 6:00 a.m. Sunday morning. Although neither party mentioned the fact, the person who was Storm Manager when the 5:10 p.m. fax arrived and through to the hour after midnight was not Mike Rock but the Highway Maintenance Supervisor II, Kevin Farley. He, not Rock, supervised the "B Shift" from 1:00 p.m. Saturday afternoon to 1:00 a.m. Sunday morning. Rock noted, in fact, that the call from Saratoga arrived 15 or 20 minutes before his shift began. He was not acting as the Storm Manager for the Rensselaer residency before 1:00 a.m. on Sunday or slightly before. Farley was not called to testify, nor did any of the other witnesses discuss whether or to what degree he was aware of the oncoming storm. As there were no documents or log notations indicating that the fax was somehow conveyed to Farley, the Court will accept Claimant's assertion that no one connected to the Rensselaer County residency was aware of the 5:10 p.m. Accuweather report. Because Farley was not called to testify, it is also unknown what, if any, local weather forecasts he was monitoring, whether he had driven out in a light vehicle to determine for himself the condition of the roadways, and in general how actively he was monitoring the situation. In any event, Schneider's implication that because Rock went to bed Saturday evening there was no one in Rensselaer monitoring the situation is simply not supported by the testimony.
Claimant has failed to establish, by a preponderance of the credible evidence and testimony, that the State of New York was negligent by waiting until 12:30 a.m. on Sunday, January 14, to contact the Rensselaer County Storm Manager. Consequently, it cannot be held liable for the tragic circumstances that led to the death of Peter DeAngelis, II.
The Chief Clerk is directed to enter judgment for Defendant, dismissing Claim No. 116150.
June 23, 2014
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims