Brooks v. New York State Thruway Authority

• Citation: 73 A.D.2d 767,423 N.Y.S.2d 543
• Decision Date: 27 December 1979
• Docket Number: No. 59821,No. 59820,59820,59821
• Parties: Roger N. BROOKS, Individually and as Executor of the Estate of Ella M. Pease, Deceased, Respondent, v. NEW YORK STATE THRUWAY AUTHORITY, Appellant. (Claim) Robert F. GRIFFITH, Jr., as Executor of the Estate of Donald J. Pease, Deceased, Respondent, v. NEW YORK STATE THRUWAY AUTHORITY, Appellant. (Claim)
• Court: New York Supreme Court Appellate Division

Page 543

423 N.Y.S.2d 543

73 A.D.2d 767

Roger N. BROOKS, Individually and as Executor of the Estate

of Ella M. Pease, Deceased, Respondent, v. NEW YORK STATE THRUWAY AUTHORITY, Appellant. (Claim No. 59820.)

Robert F. GRIFFITH, Jr., as Executor of the Estate of Donald

J. Pease, Deceased, Respondent, v. NEW YORK STATE THRUWAY AUTHORITY, Appellant. (Claim No. 59821.)

Supreme Court, Appellate Division, Third Department.

Dec. 27, 1979.

Robert Abrams, Atty. Gen. (J. Lawson Brown, Asst. Atty. Gen., of counsel), for appellant.

Thaler & Thaler, Ithaca (Manley H. Thaler, Ithaca, of counsel), for respondent.

Before MAHONEY, P. J., and GREENBLOTT, MAIN, HERLIHY and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeals from judgments of the Court of Claims, entered August 9, 1978, in favor of claimants.

At about 10:15 A.M. on September 2, 1975, a bright, clear and dry day, the deceased, Donald Pease, was proceeding westerly in light traffic on the Berkshire extension of the New York State Thruway with the deceased, Ella Pease, as his only passenger, in his 1968 Plymouth automobile. The Berkshire extension is a divided, four-lane highway and while crossing a bridge, the Pease car traveled to its left across the westbound passing lane, collided with the curbing, several guardrails and a bridge abutment, and ejected both occupants before finally coming to a stop. Donald Pease was killed instantly and Ella Pease, critically injured, died some 35 days later.

The record reveals that at the time of the accident, at a point slightly to the right of the middle of the driving lane and near the expansion joint where the bridge and highway connect, there was a break or hole in the road surface. There was testimony to the effect that the hole occurred as a result of a crumbling process brought about by the application of blacktopping material which was not compatible with and would not adhere to the underlying concrete. The hole measured six inches in length in the direction of travel, two feet perpendicular to same, and it was three and three-quarter inches deep at its deepest point. There is some proof that the hole had been forming for approximately three or four weeks, and all of the testimony was to the effect that the hole could not be seen by westbound travelers before they reached it because of the contour of the bridge and highway.

The court found, Inter alia, that the State was negligent in its maintenance of the subject highway, that the negligence gave rise to and caused the formation of the hole in the road's surface and that the car struck the hole, causing the driver "to impulsively trod on the brake and erratically turn the steering wheel". It awarded damages and apportioned the liability 75% To the State and 25% Against the deceased driver. The State appeals.

This case was tried before the court without a jury and, accordingly, if it appears upon all of the credible evidence that a finding different from that of the trial court is not unreasonable, then this court must weigh the relative probative force of conflicting testimony and inferences (Shipman v. Words of Power Missionary Enterprises, 54 A.D.2d 1052, 388 N.Y.S.2d 721). Furthermore, it is within the power of this court to grant the judgment which, upon the evidence, should have been granted by the Court of Claims (Grow Constr. Co. v. State of New York, 56 A.D.2d 95, 391 N.Y.S.2d 726). This weighing of the evidence leads us to conclude that the judgments must be reversed.

The law is clear and long established that the mere happening of an accident, even one causing death, creates no presumption of liability against the State (Tortora v. State of New York, 269 N.Y. 167, 199 N.E. 44). The State is not an insurer of the safety of those who travel its highways. It has a duty to construct and maintain its highways in a reasonably safe condition in accordance with the terrain encountered and the traffic conditions to be reasonably apprehended. Even so, a certain risk is unavoidable (see Boyce Motor Lines v. State of New York, 280 App.Div. 693, 117 N.Y.S.2d 289). However, liability will attach when the State has had actual or constructive notice of a dangerous condition (Harris v. Village of East Hills, 41 N.Y.2d 446, 450, 393 N.Y.S.2d 691, 693, 362 N.E.2d 243, 245) and then fails to take reasonable measures to correct the condition (Rinaldi v. State of New York, 49 A.D.2d 361, 363, 374 N.Y.S.2d 788, 790).

Our perusal of this record reveals that the claimants have failed to establish the existence of any unsafe or dangerous condition. The experts for both sides testified that a hole of the size and dimensions described in the testimony herein would in no manner deflect a tire passing through it and that the tire of a 1968 Plymouth traveling at the speed ranges testified to would drop no more than seventy-five thousandths of an inch. There is no evidence that...