Opinion
# 2013-045-502 Claim No. 120135
04-02-2013
DENISE RIVERA v. THE STATE OF NEW YORK
Synopsis
Clmt. tripped and fell in pothole in roadway outside of crosswalk.
Case information
UID: 2013-045-502 Claimant(s): DENISE RIVERA Claimant short name: RIVERA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120135 Motion number(s): Cross-motion number(s): Judge: Gina M. Lopez-Summa Meyerson & Levine, LLP Claimant's attorney: By: Michael C. Levine Hon. Eric T. Schneiderman, Attorney General Defendant's attorney: By: Kimberly A. Kinirons, Assistant Attorney General Third-party defendant's attorney: Signature date: April 2, 2013 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
A bifurcated trial concerning the issue of liability only was held in this matter. The subject claim arose on May 17, 2008 at approximately 11:50 a.m. when claimant, Denise Rivera, tripped and fell after she stepped into a pothole on Middle Country Road aka State Route 25 in Centereach, New York.
Claimant testified that the day of her accident she was walking to a store and was crossing Middle Country Road. She described Middle Country Road as having two lanes eastbound, a middle turning lane and two lanes westbound. There was no traffic signal, stop sign or crosswalk where claimant crossed the street. Claimant explained that the street closest to where she fell is Hammond Drive which is approximately 500 feet east of the accident location. Claimant testified that she checked for oncoming traffic and started crossing the street. Once she arrived at the middle turning lane, she checked again for oncoming traffic and started walking. Claimant testified that as she began to walk, she fell to the ground when her right leg went down. She explained that she looked at the ground after she fell and observed that her foot was in a pothole. She described the pothole as being approximately a foot long, nine inches wide and deep enough for her entire foot to fit in.
Claimant testified that the photographs of the pothole depicted the condition of the pavement on the date of the accident (Cl Exhs 3, 7, 8, 9 and 10). The court notes that the photographs depict a paved roadway which contains a pothole near the center turning lane. The pothole appeared to be about a foot long and six inches wide. The exact depth is more difficult to discern as there is water in the bottom of the pothole in the photographs.
Richard Berkenfeld, a licensed professional engineer in the State of New York, testified on behalf of claimant at trial. He stated, inter alia, that in his professional opinion the pothole came into existence at the end of February 2008. He set forth that the combination of 5.5 inches of snow and below freezing temperatures during February 22 through February 23, 2008 could have created the pothole. He also reviewed the photographs and he estimated that the pothole was 4-6 inches wide, 10-12 inches long and 2-3 inches deep. Mr. Berkenfeld opined that this pothole while safe for vehicles to cross over was a significant tripping hazard for pedestrians.
Portions of the deposition testimony of Michael Bahnsen, Highway Maintenance Supervisor at the New York State Department of Transportation, were read into evidence at the trial. Mr. Bahnsen testified that his duties and responsibilities involved maintaining and patrolling the roadways, including Middle Country Road at the accident location. He explained that there were no regularly scheduled road inspections but that daily drive-by observations were conducted to check for litter, debris and hazards including potholes. He stated that Middle Country Road in the area of the accident would be visited several times a week. If there was an immediate hazard, a pothole would be filled that day, otherwise it would be scheduled for repair in the next few days or when material was available. He explained that if a patch was done to repair a pothole, there would be a record of it in the daily work report. However, exact locations are not noted in the report, rather the locations are described as being between a set of mile markers.
When Mr. Bahnsen was shown a photograph of the pothole, he testified that it was not an immediate hazard and was the type of pothole that would be filled as soon as it could be scheduled.
Roy Reissig a licensed professional engineer in the State of New York and an employee of the Department of Transportation also testified on behalf of defendant at trial. He explained that the roadway at Middle Country Road was made of composite pavement which is a layer of asphalt between 1 and 2 1/2 inches laid over the extant concrete. He viewed photographs of the pothole and indicated that the pothole is in a travel lane near the left wheel path of vehicular traffic. He described the pothole as approximately 12 inches in length and between 6 to 8 inches wide. He could not determine the depth but stated that it could not be more than 2 ½ inches in depth. He based his opinion on the fact that he could see the concrete pavement in the photographs. He continued that the pothole could only be as deep as the asphalt overlay which would not be more than 2 ½ inches deep. He testified that it is not possible to determine how long a pothole has been in existence and that the subject pothole could have been created the week of the accident. He explained that to the left of the pothole the asphalt is cracked and if a sufficient number of vehicles drive over the cracked asphalt, a section of pavement could be displaced overnight which would create the pothole.
Mr. Reissig opined that the pothole was not a dangerous condition because it is not so large as to be dangerous to a vehicle. It is not of a size, shape or condition to cause a flat tire or to cause a car to veer as a result of encountering it. He testified that defendant received no complaints about the pothole prior to the date of the claimant's accident and there were no reports of accidents in that area prior to that date. He also testified that in the 2 ½ mile stretch along Middle Country Road which included the area of the accident, defendant filled potholes on 16 occasions between January 22, 2008 and May 12, 2008.
The State of New York has a duty to maintain its roadways in a reasonably safe condition and the breach of that duty can result in liability to the defendant if the ascribed negligence in maintaining the road is a proximate cause of the accident (Friedman v State of New York, 67 NY2d 271 [1986]). However, the State is not an insurer of the safety of its roadways, and the mere fact that an accident resulting in injury occurred does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). The duty of keeping the roads in repair does "not vary with the status of the person who uses them but, rather with the foreseeability of their use and the possibility of injury resulting therefrom" (Basso v Miller, 40 NY2d 233, 241 [1976]). The duty to provide pedestrians with a reasonably safe place to travel extends to the foreseeable uses of a roadway by a pedestrian. However no liability arises where the injured pedestrian's presence is not reasonably foreseeable and not every use of a roadway by a pedestrian is within the scope of the State's duty (Hamilton v State of New York, 277 AD2d 982 [4th Dept 2000], Perez v State of New York, UID No. 2009-040-081 [Ct Cl, McCarthy, J., October 28, 2009]).
In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take reasonable measures to correct the condition (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
A property owner may not be held liable in damages for trivial defects that do not constitute a trap or nuisance over which a pedestrian might merely stumble, stub their toes or trip (Zalkin v City of New York, 36 AD3d 801 [2d Dept 2007]). Whether or not a dangerous defective condition exists on the property of another so as to create liability depends upon the facts and circumstances of each case. The width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury are all factors to be taken into consideration when analyzing whether the defect was a dangerous condition so as to create liability (Trincere v County of Suffolk, 90 NY2d 976, 978 [1997] [internal quotations and citations omitted]).
Defendant's duty to provide pedestrians with a reasonably safe place to travel does not extend to the facts as presented in this case (Hamilton v State of New York, 277 AD2d 982 [4th Dept 2000]). The subject pothole was not in close proximity to a crosswalk or intersection and it was not reasonably foreseeable that pedestrians would be crossing in the roadway at that location. Additionally, claimant has failed to establish that the pothole was of a sufficient size and character to constitute a dangerous condition (Trincere v County of Suffolk, 90 NY2d 976 [1997]) Both claimant's and defendant's experts were of the opinion that the condition of the roadway was reasonably safe for vehicular traffic. Even assuming that there was a duty owed to claimant and that the pothole constituted a dangerous condition, claimant has failed to establish that defendant either created or had actual or constructive notice of the dangerous condition and that it failed to take appropriate remedial action (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Defendant did not have notice of any other accidents on the roadway caused by the pothole prior to claimant's fall. Defendant also did not receive any complaints about the pothole prior to claimant's accident. The Court found Mr. Berkenfeld's testimony concerning the time frame for the creation of the subject pothole to be speculative and incredible. The Court accepted the testimony of Mr. Reissig wherein he stated that the pothole could have come into existence overnight.
Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, her claim against defendant in this action. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
April 2, 2013
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims