Klimek v. Town of Ghent
| Decision Date | 19 November 1987 |
| Citation | 134 A.D.2d 740,521 N.Y.S.2d 558 |
| Parties | Charles F. KLIMEK, Individually and as Father and Natural Guardian of Peter E. Klimek, an Infant, Respondent, v. TOWN OF GHENT, Defendant and Third-Party Plaintiff-Appellant, et al., Defendant, Charles F. Klimek, et al., Third-Party Defendants-Respondents. (And Another Related Action.) |
| Court | New York Supreme Court — Appellate Division |
O'Connell & Aronowitz (Cornelius D. Murray, of counsel), Albany, for defendant and third-party plaintiff-appellant.
Donohue, Donohue & Sabo, P.C. (Kenneth G. Varley, of counsel), Albany, for third-party defendants-respondents.
Mc Clung, Peters & Simon (Stephen J. Arlington, of counsel), Albany, for respondent.
Before MAHONEY, P.J., and CASEY, WEISS, YESAWICH and LEVINE, JJ.
Appeal from a judgment of the Supreme Court (Cobb, J.), entered July 22, 1986 in Columbia County, upon a verdict rendered in favor of plaintiff.
Peter E. Klimek (hereinafter the infant) was severely injured on July 19, 1978 when the farm tractor he was driving partly on and partly off the paved portion of Harlemville Road in defendant Town of Ghent, Columbia County, deviated from the path of the road, hit a tree and then fell down an embankment. Harlemville Road was a two-lane rural Town highway. Originally a dirt road, it had been improved in 1967 in a reconstruction funded by the State under a plan and specifications approved by the State and Columbia County. At the time of the accident, the infant was 13 years old and was staying for the summer with his grandparents, third-party defendants John and Catherine Burfeind, to help in the operation of their farm. The infant had been assigned the task of driving the tractor to haul a hay wagon over Harlemville Road to another farmland.
Following the accident, the infant's head injuries caused him to suffer total amnesia as to the happening of the accident. There were no eyewitnesses. Therefore, at trial of this action commenced by the infant's father, plaintiff was held to a lesser degree of proof than otherwise in establishing a right to recover (see, Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 333-334, 502 N.Y.S.2d 696, 493 N.E.2d 920; Schechter v. Klanfer, 28 N.Y.2d 228, 230-231, 321 N.Y.S.2d 99, 269 N.E.2d 812). With this principle in mind, we find that the evidence in the record was sufficient to support plaintiff's theory that the infant lost control of the tractor when its wheels went into a large hole located in the shoulder of the road about 1 1/2 feet from the roadway, at the point where the road crossed a culvert for a stream under the roadway. There was evidence that the hole was the result of substantial erosion of the shoulder at the culvert. Expert testimony was given to the effect that the severe erosion was caused by the improper positioning of the culvert in terms of depth and angle, and the failure of the Town to have taken measures to prevent the erosion in providing for drainage from the downstream end of the culvert. There was also evidence that the tractor had been driven partly on the shoulder for some 50 feet before reaching the hole. The jury fixed the infant's total damages at $600,000, apportioning fault 75% against the Town and 25% against the infant. Its verdict rejected the Town's third-party claim that the Burfeinds were liable for all or part of the infant's injuries because of their negligence in entrusting him with the tractor and wagon, and permitting him to operate the tractor without supervision upon a public highway.
On appeal, the Town seeks reversal and dismissal of the complaint on the grounds that plaintiff failed as a matter of law (1) to provide a factual basis for overcoming the Town's affirmative defense of noncompliance with the prior written notice of defect requirement of its local law (Local Laws, 1976, No. 1 of Town of Ghent) (see, Klimek v. Town of Ghent, 71 A.D.2d 359, 423 N.Y.S.2d 517), and (2) to prove that the Town breached any duty in the construction and/or maintenance of Harlemville Road which contributed to causing the accident. As to the defense based upon the Town's local law requiring prior written notice of defect, there was proof at the trial from which the jury could have found the Town responsible for originally installing the culvert, or repositioning it during the 1967 reconstruction or shortly thereafter. Since the erosion was at least partly attributed to the positioning of the culvert itself, the dangerous condition could have been found to have been created by the negligent acts of the Town, in which event liability will attach...
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...instruments" ( Nolechek v. Gesuale, 46 N.Y.2d 332, 340, 413 N.Y.S.2d 340, 385 N.E.2d 1268 [1978] ; see Klimek v. Town of Ghent, 134 A.D.2d 740, 742–743, 521 N.Y.S.2d 558 [1987], lv denied 71 N.Y.2d 801, 527 N.Y.S.2d 767, 522 N.E.2d 1065 [1988] ). Finally, inasmuch as the jury necessarily de......
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