Roque v. State

199 A.D.3d 1092

156 N.Y.S.3d 557

Gregory J. ROQUE, Appellant,

v.STATE of New York, Respondent.

531531

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 17, 2021

Decided and Entered: November 4, 2021

Mainetti & Mainetti, PC, Kingston (John T. Casey Jr., Troy, of counsel), for appellant.

Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a judgment of the Court of Claims (Collins, J.), entered May 28, 2020, upon a decision of the court in favor of defendant.

In May 2017, claimant was seriously injured when his 2010 Harley Davidson Street Glide motorcycle struck a guide rail along State Route 23A in the Town of Catskill, Greene County. The accident occurred near the intersection of Route 23A and Old Kings Road after a motor vehicle turned left from Old Kings Road into claimant's travel lane. Taking evasive action, claimant passed the vehicle on the right, proceeded into the shoulder area and then collided with the guide rail. Claimant commenced this action seeking to recover for his injuries, claiming that defendant was negligent in, among other things, failing to maintain an adequate sight distance at the intersection, allowing the shoulder to contain a drop-off and an unpaved gravel section, and inappropriately placing a guide rail along this section of Route 23A.

Following a bench trial, the Court of Claims dismissed the claim. As to the drop-off between the paved and unpaved portions of the shoulder, the court emphasized that claimant was unable to identify the location where he encountered the condition and that the height differential between these two areas varied along the shoulder. Accordingly, the court held that the proof with respect to the drop-off was "inadequate to support a finding of liability." Furthermore, the court noted that claimant's motorcycle became unresponsive when he lost traction in the unpaved portion of the shoulder after he had already cleared the drop-off. As such, the court reasoned that the drop-off was not a proximate cause of the accident since "any effect [that] the change in elevation encountered by ... claimant had upon the operation of his motorcycle had ceased prior to his actual loss of control." The court also rejected claimant's argument that defendant was negligent in permitting a portion of the shoulder to be unpaved,¹ emphasizing that he presented no evidence "that the use of gravel adjacent to a paved shoulder in a rural area such as the site of the accident herein was in any way inappropriate" or inconsistent with the "industry norms or customs" of the Department of Transportation (hereinafter DOT). In any event, given the lack of prior accidents at the subject location, the court found that claimant did not establish that defendant had actual or constructive notice of any danger posed by the unpaved portion of the shoulder. As to claimant's assertion that the placement of the guide rail was unwarranted, the court accepted the opinion of defendant's expert that the guide rail was appropriately installed to protect errant vehicles from a slope and culvert parallel to the highway and rejected the opinion of claimant's expert to the contrary. Finally, the court found that there was insufficient evidence to conclude that the sight distance at the intersection was a proximate cause of the accident. Claimant appeals.

Claimant argues that the decision of the Court of Claims is not supported by a fair interpretation of the evidence.² We disagree. "In reviewing a nonjury verdict on appeal, we have broad authority to independently review the probative weight of the evidence, while according appropriate deference to the court's credibility determinations and factual findings" ( Driscoll v. State of New York, 160 A.D.3d 1240, 1242–1243, 74 N.Y.S.3d 675 [2018] [internal quotation marks and citations omitted]; see Burpoe v. McCormick, 190 A.D.3d 1070, 1071, 139 N.Y.S.3d 693 [2021] ). Defendant "owes the public a nondelegable duty to maintain its roadways in a reasonably safe condition" ( Schleede v. State of New York, 170 A.D.3d 1400, 1401, 96 N.Y.S.3d 383 [2019] [internal quotations marks and citation omitted]; see Friedman v. State of New York, 67 N.Y.2d 271, 286, 502 N.Y.S.2d 669, 493 N.E.2d 893 [1986] ). "This duty extends to conditions adjacent to [a] highway, and if [defendant] ... undertakes to provide a paved strip or shoulder alongside the roadway, it must maintain that shoulder in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver's negligence or an emergency" ( Stiuso v. City of New York, 87 N.Y.2d 889, 891, 639 N.Y.S.2d 1009, 663 N.E.2d 321 [1995] [citation omitted]; see Bottalico v. State of New York, 59 N.Y.2d 302, 305–306, 464 N.Y.S.2d 707, 451 N.E.2d 454 [1983] ; Marrow v. State of New York, 105 A.D.3d 1371, 1373, 964 N.Y.S.2d 330 [2013] ). "On the other hand, where the paved road surface is more than adequate for safe public passage, travel beyond those limits on unimproved land adjacent to the roadway is generally not contemplated or foreseeable and therefore [defendant] is under no duty to maintain it for vehicular traffic" ( Stiuso v. City of New York, 87 N.Y.2d at 891, 639 N.Y.S.2d 1009, 663 N.E.2d 321 [internal quotation marks and citation omitted]).

Moreover, defendant is not an insurer of the safety of its roads and no liability will attach unless "[defendant's] alleged negligence in maintaining its roads in a reasonable condition is a proximate cause of the accident" ( Steenbuck v. State of New York, 111 A.D.3d 819, 819, 975 N.Y.S.2d 348 [2013] [internal quotation marks and citations omitted]; see Redcross v. State of New York, 241 A.D.2d 787, 789, 660 N.Y.S.2d 211 [1997], lv denied 91 N.Y.2d 801, 666 N.Y.S.2d 563, 689 N.E.2d 533 [1997] ). Additionally, no liability will inure in the absence of defendant's actual or constructive notice of the allegedly dangerous condition (see Gray v. State of New York, 159 A.D.3d 1166, 1167, 72 N.Y.S.3d 208 [2018] ), unless defendant created the condition by its own affirmative acts of negligence (see O'Brien v. City of Schenectady, 26 A.D.3d 655, 656, 809 N.Y.S.2d 294 [2006], lv denied 7 N.Y.3d 707, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006] ; Mercer v. City of New York, 223 A.D.2d 688, 689–690, 637 N.Y.S.2d 456 [1996], affd 88 N.Y.2d 955, 647 N.Y.S.2d 159, 670 N.E.2d 443 [1996] ).

The trial evidence established that, on a clear, dry afternoon, claimant was driving his motorcycle in the westbound lane of Route 23A, a two-lane road with a 55 mile-per-hour speed limit. As he approached the intersection at Old Kings Road, he noticed a vehicle begin to turn left onto Route 23A into his traffic lane, estimating that it was between 75 and 100 feet away. Claimant testified that he blew his horn, hit the brakes and downshifted, but the vehicle stopped at a 45–degree angle in the middle of his traffic lane. Explaining that he had limited time to react, claimant passed the vehicle in the right-hand shoulder. He described the paved portion of the shoulder as "[d]eteriorated" and "very crumbled" and testified that, when he attempted to maneuver back to the travel lane, "the front right rim of [the] bike dipped off [of] a curb" onto the unpaved shoulder. The back wheel followed, producing a "jolt" and bringing his motorcycle completely within the unpaved area. Claimant indicated that he was driving around 30 or 35 miles per hour at that time. He further explained that, since the unpaved area contained loose gravel and asphalt, his bike "wasn't responsive" as he tried to maneuver back into the travel lane, describing the conditions as akin to driving "on a sandy beach." At some point, he struck a guide rail that ran parallel to the unpaved shoulder, travelled another 30 feet or so and eventually hit the ground near the intersection of Will Palmer Road. Referencing his 30 years of experience as a motorcycle rider, claimant averred that the condition of the shoulder was unsafe to ride a bike on. He conceded, however, that he did not know the precise location where he hit the drop-off, instead estimating a 30 to 40–foot area where this event might have occurred. Claimant did not use his antilock brakes to deaccelerate on the shoulder and a police-generated accident report indicated that he had been driving too fast for the conditions.

As to the condition of the shoulder, claimant relied on measurements taken by Andre Stuart, the chief executive officer of 21st Century Forensic Animations. Stuart used a laser scanner to measure the shoulder along Route 23A near the accident scene, revealing that the width of the paved portion spanned between 2 feet 6 inches and 3 feet 7 inches. Claimant also offered into evidence a series of photographs of Route 23A between the intersections of Old Kings Road and Will Palmer Road, which he testified accurately depicted the condition of the shoulder on the date in question. The pictures depict smooth asphalt in certain areas of the paved portion of the shoulder, and cracks, erosion and loose asphalt in other areas, particularly along the outer edge.

With respect to defendant's maintenance obligations over the shoulder, claimant called Stephen Clinton, DOT's acting regional director of operations, to testify. Clinton confirmed that DOT was responsible for maintaining Route 23A in the vicinity of the accident, from the center line of the highway to the outer edge of the paved portion of the shoulder. Clinton agreed that having a shoulder with a uniform width was generally sound highway design and relayed that "[i]deally ... the shoulder would be uniform grade." He explained that "[t]he big concern" for DOT would be "any kind of drop-off between ... the fog line" of the travel lane and the paved portion of the shoulder, and that the degree of concern would correlate with the height of the drop-off....