Freund by Freund v. State

• Decision Date: 18 February 1988
• Citation: 524 N.Y.S.2d 575,137 A.D.2d 908
• Parties: Carolyn M. FREUND, an Adult Incapable of Adequately Prosecuting Her Claim, BY Alfred L. FREUND, Her Guardian ad Litem, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 575

524 N.Y.S.2d 575

137 A.D.2d 908

Carolyn M. FREUND, an Adult Incapable of Adequately Prosecuting Her Claim, BY Alfred L. FREUND, Her Guardian ad Litem, Appellant, v. STATE of New York, Respondent.

Supreme Court, Appellate Division Third Department.

Feb. 18, 1988.

Gurda, Gurda & McBride (John S. McBride, of counsel), Middletown, and Thomas N. O'Hara, Middletown, for appellant.

Robert Abrams, Atty. Gen. (Vernon Stuart, of counsel), Albany, for respondent.

Before KANE, J.P., and WEISS, YESAWICH and HARVEY, JJ.

WEISS, Justice.

Appeal from a judgment in favor of the State, entered December 9, 1986, upon a decision of the Court of Claims (Hanifin, J.).

Claimant, with her father appearing as guardian ad litem, commenced this action against the State to recover for serious personal injuries sustained at approximately 11:00 A.M. on January 16, 1981, when the automobile in which she was a passenger collided with a tractor trailer on State Route 17 in the Town of Colchester, Delaware County. With a snowstorm in progress, the accident occurred on a declining straightaway in the westbound lane of Route 17, a four-lane highway maintained by the Department of Transportation (hereinafter DOT). At a bifurcated trial on the issue of liability, claimant essentially predicated her claim of liability on the State's failure to warn of the icy conditions at the accident scene and to take appropriate maintenance measures. There was testimony presented that the driving lane was icy at the time of the accident, with an accumulation of approximately one inch of snow in the passing lane. The Court of Claims determined that the accident was not due to any negligence by the State and dismissed the claim. This appeal ensued.

As a general rule, the State is charged with the responsibility of maintaining its highways in a reasonably safe condition, but is not otherwise an insurer (see, Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893; Kissinger v. State of New York, 126 A.D.2d 139, 141, 513 N.Y.S.2d 275). The presence of snow and ice on Route 17 and the fact that claimant's vehicle skidded out of control do not alone establish negligence against the State ( see, Valentino v. State of New York, 62 A.D.2d 1086, 1087, 403 N.Y.S.2d 596, appeal dismissed 46 N.Y.2d 1072, 416 N.Y.S.2d 795, 390 N.E.2d 302; La Tournerie v. State of New York, 1 A.D.2d 734, 147 N.Y.S.2d 138; Shaw v. State of New York, 56 Misc.2d 857, 859, 290 N.Y.S.2d 602). The pertinent inquiry is whether the State exercised reasonable diligence in maintaining Route 17 under the prevailing circumstances ( see, Tromblee v. State of New York, 52 A.D.2d 666, 667, 381 N.Y.S.2d 707; Tetreault v. State of New York, 50 Misc.2d 170, 177, 269 N.Y.S.2d 812). In reviewing the underlying determination, our inquiry 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 the evidence ( see, Cordts v. State of New York, 125 A.D.2d 746, 749-750, 509 N.Y.S.2d 166; Arnold v. State of New York, 108 A.D.2d 1021, 1023, 486 N.Y.S.2d 94, appeal dismissed 65 N.Y.2d 723, 492 N.Y.S.2d 29, 481 N.E.2d 569). With these principles in mind, we agree with the determination of the Court of Claims that claimant failed to establish a prima facie case of negligence against the State.

Claimant maintains that the State should have anticipated the icy condition at the accident scene due to the area's accident history and thus was negligent in failing to warn passing motorists by installing an "icy pavement zone" sign. Where the State has actual or constructive notice of a recurrent hazardous condition in a specific area, liability may result for a failure to correct or warn of the condition (see, Farrell v. State of New York, 46 A.D.2d 697, 698, 359 N.Y.S.2d 922; Citta v. State of New York, 35 A.D.2d 288, 290, 316 N.Y.S.2d 105). The record establishes that in 1978 or 1979, following an assessment of the site's accident history, the State "grooved" a 0.8-mile segment of Route 17 encompassing the accident scene to essentially improve the traction on the highway surface. As the Court of Claims astutely observed, however, claimant failed to establish whether the highway was "grooved" prior to the accident history relied upon by claimant. Significantly, a further study completed in 1980 did not identify the relevant segment of Route 17 as an area of concern. As such, the court could reasonably deduce that the grooving was an appropriate response to any perceived problems in this area. Moreover, the State's expert opined that the prevailing accident history did not demonstrate any need for an "icy pavement" sign in the westbound lane within the vicinity of the accident. Nor did claimant's witnesses convincingly establish that the icy conditions in the subject area posed a recurrent problem (see, Quigley v. State of New York, 281 App.Div. 185, 189, 118 N.Y.S.2d 143, affd. 308 N.Y. 846, 126 N.E.2d 180). On the evidence presented, the Court of Claims could readily conclude that a chronic icy condition did not exist at the accident site.

Claimant also maintains that the State was negligent in failing to sand the accident site despite a clear opportunity to do so. The record establishes that the site was not sanded prior to the accident. Nonetheless, we agree with the factual determination of the Court of Claims that the State's maintenance procedures were reasonably conducted under the prevailing weather conditions. DOT maintained this section of Route 17 from its East Branch station, which was located approximately 11 miles west of the Sullivan County-Delaware County line and 10 miles west of the accident site. Two DOT trucks loaded with a combination of salt and cinders proceeded east...