THE TRIAL EVIDENCE DEMONSTRATED THE STATE HAD CONSTRUCTIVE NOTICE OF THE POTHOLE WHERE PLAINTIFF FRACTURED HER ANKLE AND FAILED TO REPAIR IT; NONJURY VERDICT REVERSED (THIRD DEPT).

The Third Department, reversing a nonjury verdict in the Court of Claims, determined the evidence demonstrated the defendant (NYS) had constructive notice of the pothole where plaintiff fractured her ankle in September 2017:

All four DOT [Department of Transportation] witnesses acknowledged that they did not know how long the pothole existed prior to [plaintiff’s] accident. One DOT witness, a retired assistant resident engineer, confirmed that with a “freeze/thaw in the winter . . . the actual [popping out [of a pothole] . . . can occur sometime later, even in warmer months.” The key testimony came from George Laundrie, DOT’s resident engineer … . When asked whether the pothole “must have formed sometime prior to the summer” of 2017, Laundrie responded: “I don’t think it’s fair to say it must have formed prior to June of 2017. I think it’d be fair to say it’s likely it probably formed prior to that . . . , I wouldn’t say must have, but it’s probably pretty likely it formed prior to June.” …

In reviewing a nonjury verdict on appeal, this Court has broad, independent authority to weigh the evidence and render a judgment “warranted by the facts” … . In our view, Laundrie’s testimony was not ambiguous and established that it was probable that the pothole existed for several months before Feeney’s accident. Correspondingly, the record shows that defendant’s road maintenance crews worked in this area six times since January 2017, and most recently in July 2017. On this record, we conclude that claimants met their burden of proving that despite having constructive notice, defendants were negligent in failing to repair the pothole (see PJI 1:60). Inasmuch as issues of comparative negligence and damages remain to be determined, the claim must be remitted to the Court of Claims (see Court of Claims Act … . Feeney v State of New York, 2023 NY Slip Op 06574, Third Dept 12-21-23

Practice Point: Here the Third Department reversed a nonjury verdict in the Court of Claims finding that the evidence demonstrated the State had constructive notice of the pothole where plaintiff fractured her ankle and negligently failed to repair. The matter was sent back for determination of the comparative negligence and damages issues.