Fasano v. State

• Decision Date: 23 September 1985
• Citation: 113 A.D.2d 885,493 N.Y.S.2d 805
• Parties: In the Matter of Robin C. FASANO, Appellant, v. The STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 805

493 N.Y.S.2d 805

113 A.D.2d 885

In the Matter of Robin C. FASANO, Appellant, v. The STATE of New York, Respondent.

Supreme Court, Appellate Division,

Second Department.

Sept. 23, 1985.

Lester Schwab Katz & Dwyer, New York City (Eric A. Portuguese and Steven B. Prystowsky, of counsel), for appellant.

Robert Abrams, Atty. Gen., Albany, (Peter J. Dooley and Michael S. Buskus, of counsel), for respondent.

Before GIBBONS, J.P., and THOMPSON, WEINSTEIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a claim to recover damages for personal injuries, etc., claimant appeals from a judgment of the Court of Claims, dated March 9, 1984, which, after a nonjury trial on the issue of liability only, granted the State's motion to dismiss the claim.

Judgment reversed, on the law and the facts, without costs or disbursements, motion to dismiss the claim denied, claimant is awarded judgment against the State on the issue of liability to the extent of 50% thereof, the remaining 50% of liability is apportioned to claimant, and matter remitted to the Court of Claims for further proceedings consistent herewith.

On March 17, 1979, at approximately 1:00 A.M., claimant was driving home on the Palisades Interstate Parkway after spending the evening with her girlfriend at a local discoteque. According to claimant, she had not consumed any alcoholic beverages during the evening, and her car was in proper working order. While traveling southbound on the parkway, claimant's vehicle left the roadway just south of the New York State Thruway intersection and eventually overturned in the center mall of the highway. Claimant, who was the only occupant of the vehicle, sustained serious injuries in the accident including severe cranial trauma which caused retrograde and post traumatic amnesia. As a result, claimant lacks recollection of any of the events which transpired after she left the discoteque and prior to the accident.

At trial, however, claimant maintained that the accident occurred when her vehicle became trapped in a ditch immediately abutting the left lane of the parkway thereby causing her to lose control of her vehicle. The evidence adduced at trial established that the ditch in question was approximately 110 feet in length, 12 inches wide and 8 inches deep and had existed for several months prior to the accident. There was no curbing on the left shoulder on the portion of the roadway in question, nor were there any barricades or lights surrounding the ditch. Claimant, who had traveled this same route approximately four times a week over a two year period, testified that she had observed construction vehicles in the area of the ditch for several months prior to the accident. Several other witnesses also testified that repair crews had been seen in the area.

Although there were no eyewitnesses to the events which transpired shortly before the accident, claimant offered the testimony of one Francis Leale who had been traveling southbound in the parkway immediately ahead of claimant's vehicle. Leale testified that when his vehicle was approximately one tenth of a mile south of the accident site, he looked in his rear view mirror and observed "a dust cloud with lights flashing". In Leale's estimation, the dust cloud was located in the middle of the rutted left shoulder of the highway's southbound lanes. When Leale returned to the area, he observed claimant's vehicle overturned on the center mall of the highway.

Several hours after the accident, Police Officer Vincent Lavarna, who had responded to the accident earlier that morning, conducted an investigation of the accident site. Based on his postincident observations, the officer concluded that the accident occurred when the claimant's vehicle, "travelling south, ran off into a ditch, along [the] left side of [the] roadway, re-entered and crossed both lanes, ran up onto [the] right shoulder, striking [the] guide rail, re-entered and crossed both lanes again in [the] other direction and entered [the] center mall, turned over and came to rest on its roof facing a northerly direction". The officer also noted that the road conditions at the time of the accident were dry, the road grade was straight and level, and the weather conditions were cloudy.

An expert on highway design and maintenance testified that the existence of the rutted roadway shoulder for weeks or months constituted a departure from proper and accepted highway maintenance procedures. If the condition could not be repaired immediately, the expert noted that recommended procedure would have been to place warning traffic control devices, such as barricades and lights, around the rutted area. Finally, the expert opined that based on Leale's testimony as well as the investigating officer's postincident observations, claimant's vehicle, in all probability, left the roadway in the vicinity of the ditch on the left shoulder.

At the close of claimant's case, the State moved to dismiss the claim on the basis that claimant failed to prove a prima facie case of negligence. The court reserved decision and the State rested without offering any evidence on its behalf.

The trial court subsequently rendered a memorandum decision in which it granted the State's motion to dismiss the claim. Although the court acknowledged that an amnesiac claimant is held to a lower standard of proof than a claimant who could testify to the events (see, Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744), it determined that claimant failed to present sufficient evidence to establish that she drove off the left shoulder of the roadway into the rutted area. In view of its conclusion, the trial court did not reach the issue of whether the State was negligent in...