| Harjes v State of New York |
| 2010 NY Slip Op 01873 [71 AD3d 1278] |
| March 11, 2010 |
| Appellate Division, Third Department |
| Wendy L. Harjes, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Court of Claims (DeBow, J.), entered February 18,2009, upon a decision of the court in favor of defendant.
During a winter storm in February 2000, claimant was traveling westbound on State Route213 in the Town of Esopus, Ulster County when an eastbound van lost control on a curve,crossed the center line, and struck her vehicle. Defendant had not salted, plowed, or otherwisetreated the roadway's eastbound lane for almost four hours before the accident occurred, andwitnesses at the accident scene reported that the roadway was slippery due to slush, compactedsnow, ice, or some combination of these. Claimant, who was seriously injured, commenced thisaction alleging that the accident was caused by defendant's negligence in, among other things,allowing the roadway to become dangerously slippery. After a nonjury trial, the Court of Claimsdetermined that defendant was not liable because it neither created the condition nor hadconstructive notice of it, and claimant did not establish that the slippery state of the accident sitewas a recurring condition of which defendant had notice. Claimant appeals.
Our inquiry here "is not limited to whether the verdict is against the weight of the evidence,for we may factually assess whether the Court of Claims granted the judgment warranted by theevidence" (Freund v State of New York, 137 AD2d 908, 909 [1988], lv denied72 NY2d 802 [1988]). Further, although we customarily accord deference to the court's [*2]opportunity to assess evidence and witness credibility (see e.g.Cordts v State of New York, 125 AD2d 746, 750 [1986]), we note that the decision in thiscase was not issued by the same judge who presided over the trial. However, upon review of therecord, we agree with the Court of Claims that claimant did not establish either that defendanthad constructive notice of the roadway's slippery condition or that a recurrent hazardouscondition existed of which defendant had notice.[FN1]
Defendant has a nondelegable duty to maintain its roadways in a reasonably safe condition(see Fisher v State of New York, 268 AD2d 849, 850 [2000]; Montgomery v State ofNew York, 206 AD2d 737, 739 [1994]), but it is not required to act as an insurer against allaccidents (see Freund v State of New York, 137 AD2d at 908-909). Negligence is notestablished by the mere occurrence of an accident on an icy roadway; claimant must alsodemonstrate "that defendant failed to diligently remedy the dangerous conditions once it wasprovided with actual or constructive notice" (Hart v State of New York, 43 AD3d 524, 525 [2007]) or that it didnot correct or warn of a recurrent dangerous condition of which it had notice (see id.;Freund v State of New York, 137 AD2d at 909). We disagree with claimant's contentionthat notice was established by defendant's knowledge that a winter storm was in progress in thearea. "[C]onstructive notice is not established through defendant's general awareness that icyconditions may exist" (Hart v State of New York, 43 AD3d at 525), nor does defendant'sknowledge that a winter storm is taking place in the general area establish notice of a specificdangerous 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], appealdismissed 46 NY2d 1072 [1979]). Contrary to claimant's assertions, Slaughter v State ofNew York (238 AD2d 770, 770-772 [1997]) does not hold otherwise. There, we found thatdefendant was or should have been aware of dangerous conditions at the site of a highwayaccident because its employee had patrolled the site several hours before the accident at a timewhen icy conditions prevailed according to several witnesses who lived along the roadway "inthe immediate vicinity of the accident site" (id. at 771). Here, by contrast, there was nowitness testimony establishing any icy or slippery conditions at or near the site of claimant'saccident at any time before it occurred.
Because of weather forecasts calling for snow and sleet on the day of the accident, a plowoperator employed by defendant was called in several hours before his shift ordinarily began. Atabout midnight, he began treating a "beat" or route that, pursuant to defendant's snow and icecontrol plan, included State Route 213, as well as another more heavily traveled state highway.He testified that, at first, the roads were lightly dusted with snow, and that he began to noticeslush as the night progressed. By 6:00 a.m., he had, among other things, treated both lanes ofState Route 213 three times. He applied salt to the roadway each time he treated it and used theplow to clear a light accumulation of snow or slush on one of the first two traverses. On the thirdand last traverse of State Route 213 before the accident—completed at 6:00a.m.—the operator applied salt but did not plow because, at that time, the roadway was"only wet." He did not revisit the accident site or treat State Route 213 again before the accidentoccurred at about 8:45 a.m. No other witness testimony or other evidence was provided as toconditions at the accident site between 6:00 a.m. and the time of the accident. By that time,witnesses agreed that the road surface on the curve where the accident occurred had becomeslippery (although they [*3]disagreed in their particulardescriptions).[FN2]Although these conditions clearly formed at some time between 6:00 a.m. and the time of theaccident, there was no evidence that the conditions had "existed for a sufficient period of time toallow defendant[ ] to discover and rectify the problem" (Barrett v State of New York, 13AD3d at 776). Further, the fact that the plow operator did not see a supervisor patrolling his"beat" before the accident occurred does not establish either that inadequate patrolling occurredor that it caused defendant to fail to discover a condition that would otherwise have beenremedied; defendant "is not obligated to employ a constant vigilance over its highway network,but only to pursue reasonably plausible measures" (Freund v State of New York, 137AD2d at 910-911). Thus, constructive notice was not established (see Hart v State of NewYork, 43 AD3d at 525-526; Barrett v State of New York, 13 AD3d at 776).
Further, claimant did not establish that the accident was caused by a recurrent hazardouscondition of which defendant had notice. Although claimant's expert opined that cold waterflowing from a roadside rock cut and under State Route 213 through a culvert would have causedthe area where the accident occurred to freeze before the rest of the roadway, there was noevidence that icy or slippery conditions had, in fact, previously recurred at the site or thatdefendant had any notice of such a recurring condition (see Hart v State of New York, 43AD3d at 525; Freund v State of New York, 137 AD2d at 909-910; cf. Farrell v Stateof New York, 46 AD2d 697, 698 [1974]; Wydysh v State of New York, Ct Cl, Sept.29, 2003, Midey Jr., J., claim No. 91169, UID No. 2003-009-121). Accordingly, the Court ofClaims correctly determined that defendant was not liable.
Mercure, J.P., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: Claimant does not claim onappeal that defendant created or had actual notice of the roadway's condition.
Footnote 2: As described by aninvestigating State Trooper, the road was wet and slushy, while as described by a passenger inthe van, it was covered by "a sheet of ice."