Dubacs v. State, 63180
| Decision Date | 27 May 1988 |
| Docket Number | No. 63180,63180 |
| Citation | 140 A.D.2d 968,529 N.Y.S.2d 643 |
| Parties | Stephen DUBACS, Appellant-Respondent, v. STATE of New York, Respondent-Appellant. (Claim) |
| Court | New York Supreme Court — Appellate Division |
Paul William Beltz, P.C. by Robert Nichols, Buffalo, for appellant-respondent.
Robert Abrams, State Atty. Gen. by Michael Buskus, Albany, for respondent-appellant.
Before DENMAN, J.P., and GREEN, PINE, BALIO and DAVIS, JJ.
On appeal in his action against the State alleging negligent failure to remove ice from the Father Baker Bridge, a State roadway, claimant challenges the finding of the Court of Claims that he was 20% responsible for his own injuries as a result of negligent driving and an additional 40% contributorily negligent in leaving his vehicle after the initial collision and walking in the roadway, where he was struck by another vehicle. On its cross appeal, the State challenges the court's finding that it was 20% negligent in failing to maintain the roadway properly. We affirm the finding of liability against the State, but modify the judgment to delete the provision reducing claimant's recovery by 60%.
The finding that the State was negligent in failing to correct the icy road condition is supported by the evidence. It was established that the bridge had a propensity to freeze over before other roads in the area and that this was a recurrent and unusually severe condition of which the State had notice ( see, Rooney v. State of New York, 111 A.D.2d 159, 160, 488 N.Y.S.2d 468). Further, it was shown that the State did not adopt and implement a reasonable plan for dealing with that specific hazard ( see, Friedman v. State of New York, 67 N.Y.2d 271, 283-284, 502 N.Y.S.2d 669, 493 N.E.2d 893; Weiss v. Fote, 7 N.Y.2d 579, 585, 586, 200 N.Y.S.2d 409, 167 N.E.2d 63).
There is no basis, on the other hand, for finding claimant contributorily negligent in driving his vehicle. The proof established that claimant was driving in a prudent manner, that he took reasonable measures to evade a fishtailing vehicle in front of him, and that he lost control of his vehicle and struck a guardrail solely as the result of an icy road condition of which he had no forewarning. Further, there was no basis for finding claimant contributorily negligent for leaving his car and walking in the roadway. Following the initial collision, claimant was confronted with an emergency situation not of his own making. His car was disabled and was situated in the travel lane of a high speed roadway just beyond the crest of the bridge (cf., Brown v. Bracht, 132 A.D.2d...
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