Nelson v. State

• Decision Date: 08 September 1980
• Citation: 105 Misc.2d 107,431 N.Y.S.2d 955
• Parties: Kenneth R. NELSON, Gloria A. Nelson, by her Guardian ad Litem, Kenneth R. Nelson, and Sheryl Nelson, by her parent, Kenneth R. Nelson, Claimants, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 955

431 N.Y.S.2d 955

105 Misc.2d 107

Kenneth R. NELSON, Gloria A. Nelson, by her Guardian ad Litem, Kenneth R. Nelson, and Sheryl Nelson, by her parent, Kenneth R. Nelson, Claimants, v. The STATE of New York, Defendant.

Court of Claims of New York.

Sept. 8, 1980.

Bonney & Nicit by John Nicit, Waterloo, for claimants.

Robert Abrams, Atty. Gen., by Michael J. Pekarsky, Asst. Atty. Gen., for defendant.

DECISION

THOMAS J. LOWERY, Jr., Judge.

These timely filed negligence claims were brought against the State of New York for personal injuries sustained when the claimant, Kenneth R. Nelson, lost control of his vehicle after encountering an accumulation of water on a section of Route 89, north of the City of Ithaca, Tompkins County, New York.

Factual Background

The accident occurred shortly before 2:00 p. m. on August 14, 1977. The claimants were returning to their home in Waterloo, New York. Kenneth R. Nelson was operating his 1970 Plymouth station wagon in a northerly direction on State Route 89. His wife, Gloria, was seated beside him and two of his children were lying down in the rear of the car. Route 89 was a two lane undivided macadam highway. Pavement markings separated the opposing lanes. Mr. Nelson was generally familiar with the highway, having driven over it four to five times a year since 1970. No evidence was presented, however, that he had driven over the highway when it was raining. Just south of the accident site, Mr. Nelson encountered heavy rain. ¹ At this point, the road commenced a downhill grade. Mr. Nelson reduced his speed to approximately 40 miles per hour and proceeded down the hill. Near the bottom of the hill the road curved to the left. As he rounded the curve, Mr. Nelson heard a splashing of water. His vehicle drifted to the left, approximately one to two feet over the center line. He then observed a southbound vehicle approaching, one to three hundred feet away and attempted to steer his vehicle back into the northbound lane. His automobile did not respond. He then turned his wheel further to the right. His steering control then abruptly returned and his vehicle was propelled sharply to the right, whereupon it spun around, left the east side of the highway, struck a utility pole, and was demolished.

The highway was constructed in 1932. A macadam overlay was placed on the road surface in 1956. The hill south of the accident site was 3700 feet in length and had a relatively steep grade of 6.3 per cent. Approximately 400 feet south of the utility pole struck by the Nelson vehicle, the steepness of the grade began to diminish. The low point in the road was some 150 feet south of the aforesaid pole. From here the road commenced a very slight upgrade towards the pole. The left hand curve in this area commenced approximately 650 feet south of the pole. This curve had a radius of 2292 feet and had 2.5 degrees of curvature. There existed very little super-elevation on the curve. That which did exist, fluctuated from a slight positive to a slight negative reading over the course of the curve. On the hill, south of where the curve began, tire tracks were worn in the macadam surface of the northbound lane for a distance of 900 feet. These ranged in depth from one-eight to three-eighths of an inch. At the time of the accident, the only warning signs in place were a standard hill and curve sign. The speed limit in the area was 55 miles per hour.

During periods of rain, water was collected in the tire tracks and was channeled down the hill. Due to the lack of super-elevation along the curve, and the low point in the road, water would accumulate in the northbound lane. The standing water covered the northbound lanes for a distance of approximately 200 feet, commencing at a point 100 feet south of the utility pole struck by the Nelson vehicle, to a point 300 feet south of the pole. It was within this area that the claimant, Kenneth R. Nelson, lost control of his vehicle.

The accumulation of water in this area had been observed over a period of several years prior to the Nelson accident. This condition was not readily observable to northbound motorists. Other vehicles had experienced similar difficulties, when encountering the standing water. ² Because of the recurrence of the condition and the accidents that were observed, Charles E. Houghton, a resident of the area, personally complained to the State's resident engineer in 1974. Moreover, it is noted that Mrs. Lillias Hinshaw, another resident of the area, also informed the State's resident engineer of the condition of the road surface and the accidents that were being caused as a result. This report was apparently incidental to a complaint concerning a drainage problem in her driveway. In response to the latter complaint, the State's resident engineer visited the scene. As a result of this visit, certain corrective action was taken. This consisted of placing a swale in front of the Hinshaw property, some 300 to 400 feet south of the aforesaid utility pole. Although this somewhat corrected the drainage problem in the driveway, it tended to cast additional water north onto the highway. No remedial action was taken to prevent the accumulation of water on the highway, nor were any warning signs placed to warn motorists of the danger.

Liability

It is the general rule that the State is under a duty to construct and maintain its highways in a reasonably safe condition. (Lopes v. Rostad, 45 N.Y.2d 617, 412 N.Y.S.2d 127, 384 N.E.2d 673; Boyce Motor Lines Inc. v. State of New York, 280 App.Div. 693, 117 N.Y.S.2d 289, affd. 306 N.Y. 801, 118 N.E.2d 819.) Where existing conditions have rendered the highway unreasonably dangerous, the State must correct or warn against the danger if it had a reasonable opportunity to do so. (Hicks v. State of New York, 4 N.Y.2d 1, 171 N.Y.S.2d 827, 148 N.E.2d 885; McDevitt v. State of New York, 1 N.Y.2d 540, 154 N.Y.S.2d 874, 136 N.E.2d 845; Stuart-Bullock v. State of New York, 38 A.D.2d 626, 326 N.Y.S.2d 909, affd. 33 N.Y.2d 418, 353 N.Y.S.2d 953, 309 N.E.2d 419.) Violation of this duty constitutes negligence (Canepa v. State of New York, 306 N.Y. 272, 117 N.E.2d 550; Eastman v. State of New York, 303 N.Y. 691, 103 N.E.2d 56; Vande Walker v. State of New York, 278 N.Y. 454, 17 N.E.2d 128), for which the State may be held liable, provided such negligence was the proximate cause of the injuries for which damages are sought. (Lyle v. State of New York, 44 A.D.2d 239, 354 N.Y.S.2d 35; Stuart-Bullock v. State of New York, 38 A.D.2d 626, 326 N.Y.S.2d 909, affd. 33 N.Y.2d 418, 353 N.Y.S.2d 953, 309 N.E.2d 419, supra ; Leboeuf v. State of New York, 169 Misc. 372, 7 N.Y.S.2d 621, affd. 256 App.Div. 798, 12 N.Y.S.2d 640, affd. 281 N.Y. 737, 23 N.E.2d 550.)

In the present case there is no doubt that the standing water constituted an unreasonably dangerous condition. (See Bono v. State of New York, 1 N.Y.2d 885, 154 N.Y.S.2d 643, 136 N.E.2d 715; Torrey v. State of New York, 266 App.Div. 900, 42 N.Y.S.2d 567, revg. 175 Misc. 259, 23 N.Y.S.2d 370; see generally, Anno. 61 A.L.R.2d 425.) The next question, then, is whether the State knew or should have known of this condition. The evidence presented was insufficient to establish that the accumulation of water was caused by the improper construction of the highway in 1932 or its resurfacing in 1956. There is no doubt, however, that water tended to accumulate on the highway, particularly in the area of the Nelson accident, during periods of rain. Moreover, this condition was recurrent, and had existed for many years. The State clearly had actual notice of the condition by reason of the complaints of both Mr. Houghton and Mrs. Hinshaw. Even if the complaints had not been received, certainly the State had constructive notice of the condition because of the long period of its recurrence. This being the case, the State was under a duty to take remedial action. ³ Instead, the only action taken by the State, the construction of the swale in 1974, aggravated the dangerous condition by diverting additional surface water onto the highway. Hence, the court must conclude that the State was negligent in the maintenance of the highway.

The State argues that, even assuming that it was negligent, such negligence was not a proximate cause of the accident. It contends that the sole proximate cause was the negligence of the defendant, Kenneth R. Nelson. Preliminarily, the court notes that there was no evidence that Kenneth R. Nelson was traveling at an excessive rate of speed for the circumstances then existing, or that his vehicle was not in good working order. Further, there was no evidence that a reasonably prudent driver would have observed the standing water within a sufficient time to have avoided it.

The cause for the Nelson vehicle being slightly to the left of the center line, however, bears closer examination. The claimants contend that the vehicle was diverted to the left by the standing water. The unrefuted testimony of the State's expert was that, given the circumstances presented here, the vehicle would tend to travel in a straight line and, because of centrifugal force, leave the highway to the right. Presented with this testimony, the court must conclude that it was driver error that caused the Nelson vehicle to travel to the left of the center line. Moreover, it was foreseeable that an attempt to return to the correct lane of travel might cause a vehicle to skid on a wet highway. Therefore, the court must conclude that Kenneth R. Nelson's conduct constituted negligence and that such was a proximate cause of the accident.

The aforesaid finding, however, does not relieve the State from liability here. The loss of steering control, that occurred upon Mr. Nelson's attempt to return to his correct lane of travel, was consistent with the condition of standing water existing at the time. Hence, the court must conclude that the standing water was also a substantial factor in...