Principles Governing the State’s Highway Liability & Reduced Salt Usage

By: James L. Gelormini, Esq.

This Presentation is Rated:

PG-13 • --------------------------------------------------------------------------------------

• AUDIENCE STRONGLY CAUTIONED• --------------------------------------------------------• Contains strong legal language • Frightening court decisions• A stripping bare of ideas• Intense legal concepts

General Rules re: Liability • The State’s maintenance responsibility is not

absolute but is limited to maintaining its highways “in a reasonably safe condition for travel” which includes “adequately dealing with the snow and weather conditions as they affect the roadway.”

• The State’s liability is limited to injuries “resulting from the negligent maintenance of a highway.”

• Negligent = not reasonably safe condition

NEGLIGENCE

• Negligence is the “failure to use the degree of care that a reasonably prudent person would have used under the same circumstances.”

• Negligence is generally a question of fact determined by a jury.

• Exception - money damage claims against the State of New York, where a Court of Claims judge determines the issue of negligence.

General Rules re: Liability

• “The maintenance of public highways is entrusted to the sound discretion of [governmental] authorities and so long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the [State] is satisfied.”

• Tomassi v. Town of Union, 46 N.Y.2d 91, 97 (1978).

General Rules re: Snow/Ice • “[T]he pertinent question is not whether snow or

ice has been permitted to accumulate on the highway, but whether the State has exercised reasonable diligence to cure the situation”

• Whether the State exercised reasonable diligence depends on "whether the ice was present as the result of the State's lack of reasonable care and diligence in its snow and ice removal activities, or whether it was there in spite of” the State’s reasonably diligent snow removal activities.

General Rules - Notice• “ The State must have had actual or constructive

notice of the condition, meaning that the alleged dangerous weather condition must have existed for a sufficient period of time to allow [the State] to discover and rectify the problem.”

• “A general awareness that snow and ice may accumulate or is present is insufficient notice of the specific condition causing plaintiff's injury.”

• The State may be held liable, however, "[w]here the State has actual or constructive notice of a recurrent hazardous condition in a specific area [and fails] to correct or warn of the condition.”

Court developed Principles• Courts evaluate these issues “with an

awareness of the realities of the problems caused by winter weather”

• “Complete snow and ice removal from the roads is impossible given the weather conditions in this State.“

Court developed Principles

• Negligence is not established by the mere occurrence of an accident on an icy or snowy roadway.

• The presence of snow or ice on a highway is not evidence of negligence or a lack of reasonable care to maintain the highway.

Storm in-Progress Defense• Duty to remove or treat snow/ice conditions

does not arise during a “storm” - responsibility arises only after the lapse of a reasonable time for taking protective measures.

• It is not necessary that a "major winter storm" to have occurred or that “ blizzard conditions existed” but only that “an ongoing hazardous weather condition” was prevailing or “inclement weather.”

Qualified Immunity Defense

• The NYS DOT Highway Maintenance Guidelines reflect the planning decisions of the defendant’s transportation experts regarding snow and ice control.

• Courts have afforded the State a qualified immunity from liability arising from certain policy decisions in those Guidelines.

See cases at page 7 of handout; Skehan, and Roche cases in Appendix at pp 20 and 26 .

Case Study – Skehan v. StateAppendix page 26

• A car encountered a patch of ice claimed to be present because DOT did not use enough salt to treat the highway. Appendix p. 27.

• It was undisputed that DOT “used an abrasive mixture of sand or cinders mixed with salt …instead of a pure chemical application of salt, which claimant maintains would have melted the ice and prevented the accident.” Appendix p. 27.

Case Study – Skehan v. StateAppendix page 26

Claim dismissed for two (2) reasons:• (1) Highway properly maintained

because of regular plowing and salting runs “Five snow plow trucks were continuously plowing and applying abrasive mixtures” Appendix page 46 ;

• (2) qualified immunity defense applied to decision to reduce use of salt in favor of abrasive mixture - Appendix at page 46

Case Study – Boyd v. State• Driver on an icy/snow covered highway re-

entered passing lane at about 40 miles per hour, skidded into a snowbank, flipped over, slid down an embankment into the frigid waters of the Susquehanna River.

• Claim was based on the fact that temperature was about 10 ° F. but calcium chloride was not used although recommended in the DOT Highway Maintenance Guidelines at temperatures below 20 degrees F. Appendix pages 48-49.

Case Study – Boyd v. State

• Claim dismissed - State was not negligent for failing to treat the highway surface with calcium chloride.

• There was a justified departure from the guidelines - the county resident engineer testified that experience had shown that for its terrain, climate and traffic conditions, the recommendations in the Guidelines for temperatures below 20 ° F. were not effective in Otsego County.

Case Study – Boyd v. State

• This decision was reasonable because temperature was dropping on this particular morning, making the threat of refreezing very real.

• The decision not to apply calcium chloride to the roadway was made in good faith, is supported by the then prevailing weather conditions, and was a reasonable exercise of discretion as to what materials to use.

Case Study - Hart v. State

• A vehicle encountered a patch of ice which caused it to leave the highway. Appendix at page 1.

• The Court dismissed the claim because: (1) the State did not have enough prior notice of the icy condition; and (2) when the State did receive notice that ice may be forming, the State reasonably responded. Appendix at pp. 1-2.

Case Study Hart v. State• Court stated that DOT’s “decision to salt or

sand is not based solely on temperature, but is also based on overall atmospheric conditions, environmental, budgetary and manpower considerations.” See Appendix at page 2. (emphasis supplied)

• Based on trial testimony of DOT Supervisor that he “has environmental concerns … we have an environmental officer that monitors salt usage.” Appendix page 9, lines 11-12 [trial testimony].

NYS DOT Snow & Ice Control Guidelines

• Guidelines §5.4403[G]:

“Areas adjacent to certain bodies of water and certain aquatic creatures can be adversely affected by the use of abrasives.”

Appendix page 18.

Written Notice Laws• Legislative change to court developed liability

rules.

• Such laws “prevent any possibility of liability for nonfeasance” in the absence of written notice.

• “nonfeasance” is the failure to act in maintaining. a highway (as opposed to affirmatively doing an act

that creates a dangerous condition).

Written Notice Laws

• Written Notice laws prohibit civil actions against a municipality for damages “sustained solely in consequence of the existence of snow or ice upon any highway …”

Appendix page 51 for an example

Written Notice Laws

• Currently, only municipalities have the protection of written notice laws

• State Legislature has the power to enact a written notice law for State highways generally, or only those within the Adirondack Park

Thank YouJames L. Gelormini, Esq.

September 4, 2014

“It depends ….”

How do Judges decide cases?

Some Facts Can Not Be

Overlooked.

We Need To Deal Honestly With

Them.

James L. Gelormini, Esq. of counsel

McConville, Considine, Cooman & Morin, P.C.25 East Main Street Rochester NY

585-512-3528