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CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY.

The Second Department determined the claim alleging negligent highway design was properly dismissed after trial:

“[A] municipality owes to the public the absolute duty of keeping its streets in a reasonably safe condition” … . However, “in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision” … . Under the qualified immunity doctrine, liability may arise where there is proof that the State’s traffic design plan “evolved without adequate study or lacked a reasonable basis” … . Moreover, “something more than a mere choice between conflicting opinions of experts is required before the State . . . may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public” … .

Here, the Court of Claims properly dismissed the claim based upon the evidence the State submitted at trial, which showed that the design and placement of the guardrail were the result of a deliberate decision-making process after an adequate study and had a reasonable basis … . Gagliardi v State of New York, 2017 NY Slip Op 01845, 2nd Dept 3-15-17

 

COURT OF CLAIMS (CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/IMMUNITY (HIGHWAY DESIGN, CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/NEGLIGENCE (HIGHWAY DESIGN, CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/HIGWAYS AND ROADS (CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/GUARDRAILS (CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)

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ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW WAS PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS.

The Second Department, reversing Supreme Court, determined the town’s action pursuant to the Environmental Conservation Law seeking reimbursement for litigation costs incurred in defense of discrimination suits was properly and timely brought. Supreme Court had ruled the town should have brought an Article 78 action in Supreme Court:

In 1991, the New York State Legislature adopted article 44 of the Environmental Conservation Law (hereinafter the Greenway legislation), which created the Hudson River Valley Greenway (hereinafter the Greenway). The purpose of this article was to “protect and enhance the special places of scenic, cultural and ecological importance” in the Hudson River Valley (ECL 44-0101). Among other things, the Greenway legislation created a regional planning council and gave communities within its range the opportunity to enter into the “Greenway Compact,” a voluntary regional compact among municipalities to facilitate cooperative planning (see ECL 44-0103[2], [4]; 44-0119). To encourage communities to participate in the compact, the State of New York agreed that participating communities (as defined by ECL 44-0103[10]) would be entitled to indemnification in actions arising from their participation in the compact (see ECL 44-0119[7]). In 1992, this provision was amended to limit the indemnification in actions alleging, among other things, unlawful discrimination. The amendment provided that communities would be entitled to reimbursement for all reasonable attorneys’ fees and litigation expenses only if they prevailed in the underlying action. * * *

… ECL 44-0119(7) speaks of reimbursement and indemnification, and expressly states that, “[i]n any claim against a participating community of unlawful discriminatory practice, the attorney general shall not represent” the Town. Instead, pursuant to ECL 44-0119(7), if the Town prevails in litigating against “any claim” of unlawful discriminatory practice, it “shall” be reimbursed by the State for all reasonable attorneys’ fees and litigation expenses incurred in the defense of the action. … [T]he gravamen of the Town’s claim herein was for reimbursement of attorneys’ fees and litigation costs incurred by it in the defense of the two subject actions. The Town’s claim at bar is one for money damages against the State—a claim that was timely brought in the Court of Claims, which has exclusive jurisdiction of such matters … . Town of Rhinebeck v State of New York, 2017 NY Slip Op 00502, 2nd Dept 1-25-17

 

COURT OF CLAIMS (ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)/MUNICIPAL LAW (ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)/ENVIRONMENTAL LAW (ENVIRONMENTAL CONSERVATION LAW, ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)

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STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES.

The Second Department determined the state did have a duty to warn swimmers of rip currents. Claimant’s decedent drowned after a rip current pulled him away from shore:

Turning to the merits, “the State must act as a reasonable [person] in maintaining [its] property,'” such as a park, ” in a reasonably safe condition'” … . “The duty goes beyond the mere maintenance of the physical condition of the park” … , as there is a “recognized duty of general supervision” … . The degree of general supervision must be “adequate” … . Here, in support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure … . In opposition, the claimant failed to raise a triable issue of fact … .

Furthermore, the defendant has no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor … , including rip currents … . Seetaram v State of New York, 2017 NY Slip Op 00336, 2nd Dept 1-18-17

 

NEGLIGENCE (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/COURT OF CLAIMS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/SWIMMERS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/RIP CURRENTS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/STATE PARKS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)

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STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY.

The Third Department affirmed the Court of Claim’s determination that the absence of a guide rail was not the proximate cause of claimant’s injuries, and the state was entitled to qualified immunity because it had reasonably concluded after a study that a guide rail was not necessary. Claimant was injured when the ambulance in which he was riding struck a stone wall near the roadway:

Defendant’s duty to maintain roads in a reasonably safe condition includes the installation of guide rails when necessary … . With respect to highway safety and design, defendant is “accorded a qualified immunity from liability arising out of a highway planning decision” … . “Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” … . Schroeder v State of New York, 2016 NY Slip Op 08263, 3rd Dept 12-8-16

COURT OF CLAIMS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/IMMUNITY (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/QUALIFIED IMMUNITY (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/HIGHWAYS AND ROADS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/GUIDE RAILS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/GUARD RAILS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)

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DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL.

The Second Department, affirming the Court of Claims, determined the state was protected from suit by the doctrine of qualified immunity. Plaintiffs were injured when a van in which they were riding struck a highway guardrail and concrete pillar. The complaint alleged the guardrail was not long enough:

To establish its entitlement to qualified immunity, the governmental body must demonstrate “that the relevant discretionary determination by the governmental body was the result of a deliberate decision-making process” … . “A municipality is entitled to qualified immunity where a governmental planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury'” … . Accordingly, where the decision made by the municipality or governmental body was not the product of a governmental plan or study, the doctrine of qualified immunity is inapplicable … .

Here, the Court of Claims correctly applied the doctrine of qualified immunity based on the evidence the defendants submitted at trial that the guardrail was designed pursuant to the design standards set forth by the New York State Department of Transportation, which were the result of a deliberate decision-making process of the type afforded immunity from judicial interference … . Ramirez v State of New York, 2016 NY Slip Op 06815, 2nd Dept 10-19-16

 

COURT OF CLAIMS (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)/IMMUNITY (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)/GOVERNMENTAL IMMUNITY (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)/QUALIFIED IMMUNITY (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)/HIGHWAYS (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)/GUARDRAILS (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)

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STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS.

The Fourth Department, reversing the Court of Claims, determined the Court of Claims did not have the power to order the state to pay for liability insurance to allow claimant’s expert to test soil and water for contamination by highway deicing agents. Under the Court of Claims Act, the state cannot be required to pay fees for claimant’s witnesses:

In this real property tort action, claimants assert that deicing agents have run off of the Thruway and onto their farm located adjacent to the Thruway, thereby contaminating the soil and water. In order to prove their claim, claimants sought to inspect, test, and sample the Thruway shoulder and median adjacent to their farm. The testing would include, among other things, air, soil, and water testing and would involve “six visits to the site during the winter and early spring.” Claimants located a professor who agreed to perform the testing as their expert in exchange for permission to use the tests in his research and teaching; however, neither claimants nor the professor could afford the liability insurance routinely required by defendant in connection with inspections performed on its property.

Defendant moved for a protective order “requiring [c]laimants to provide satisfactory liability insurance in connection with proposed testing.” The Court of Claims issued an order stating, inter alia, that “[d]efendant shall be required to obtain or pay the costs of the insurance necessary to cover the anticipated testing activities” and that “the amount of insurance necessary shall be as determined by [d]efendant.” * * *

Under Court of Claims Act § 27, “costs, witnesses’ fees and disbursements shall not be taxed . . . by the court to any party.” Frederick v New York State Thruway Auth., 2016 NY Slip Op 06585, 4th Dept 10-7-16

COURT OF CLAIMS ACT (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/ENVIRONMENTAL LAW (HIGHWAY DEICING AGENTS, STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/REAL PROPERTY (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/HIGHWAYS (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/DEICING AGENTS  (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)

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IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT.

The Third Department determined the notice of claim, although “bare bones,” was sufficient under the circumstances because defendant Office of Mental Retardation and Developmental Disabilities (OMRDD) had conducted an investigation into the fire at a residential care facility with caused the death of claimant’s decedent:

Court of Claims Act § 11 (b) “places five specific substantive conditions upon [defendant’s] waiver of sovereign immunity by requiring the claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . These statutory requirements are “strictly construed” … . The guiding principle and “purpose of the notice of claim requirement [is] to allow [defendant] to investigate the claim and to estimate its potential liability” … . “‘Absolute exactness'” is not required …, but the claim must enable prompt investigation and be “sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability” … . Moreover, defendant is not required “to ferret out or assemble information that section 11 (b) obligates the claimant to allege” … . * * *

Where an agency of defendant has performed the internal investigation of an incident and is therefore the primary or, perhaps, even the sole source of information upon which a claim is based, it cannot be readily found that a lack of specificity has interfered with defendant’s ability to investigate a claim … , nor that defendant has been improperly required to “assemble” information regarding a claim … . Davila v State of New York, 2016 NY Slip Op 04752, 3rd Dept 6-16-16

 

NEGLIGENCE (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)/COURT OF CLAIMS (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)/NOTICE OF CLAIM (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)

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Where the State Is a Potential Joint Tortfeasor Which Cannot Be Joined In the Supreme Court Action with the Other Defendant (Because the State Must Be Sued in the Court of Claims), the Jury in the Supreme Court Trial Should Be Allowed, If Appropriate, to Apportion Damages Between the Defendant and the State

Plaintiff was injured when a tree limb fell and struck her car while she was driving on a state highway. Plaintiff sued both the defendant (the property owner) and the state. However, the state could be sued only in the Court of Claims, so two separate actions were brought against the two potential tortfeasors. The Third Department, in a case of first impression, in a full-fledged opinion by Justice McCarthy, over a partial dissent, determined that evidence of both the defendant’s and the state’s liability could be presented in the Supreme Court trial and the jury should, if appropriate, be allowed to apportion damages between the defendant and the state:

“Under CPLR article 16, a joint tortfeasor whose culpability is 50% or less is not jointly liable for all of [a] plaintiff’s noneconomic damages, but severally liable for its proportionate share” … . The provision was promulgated as a modification of the common-law theory of joint and several liability, the purpose of which was to “remedy the inequities created by joint and several liability on low-fault, ‘deep pocket’ defendants” … . However, where potential tortfeasors are not joined in an action, the culpability of a nonparty tortfeasor may be imposed upon the named defendant if the plaintiff can show that he or she is unable to obtain jurisdiction over the nonparty tortfeasor (see CPLR 1601 [1]). Here, plaintiffs do not face a jurisdictional limitation in impleading the State as a codefendant, but instead cannot do so due to the doctrine of sovereign immunity … . Plaintiffs’ only recourse against the State is to pursue an action in the Court of Claims (see Court of Claims Act §§ 8, 9). Likewise, if defendant is found liable in Supreme Court, it could seek indemnification from the State relative to its share of actual culpability as an additional claimant in the subsequent Court of Claims action … .

CPLR 1601 (1) is silent in regard to whether the State’s proportionate share of liability should be considered in calculating a defendant’s culpability in an action like the one at bar, and we have never decided the issue. * * *

Although we recognize the possibility of inconsistent verdicts as to the apportionment of fault in Supreme Court and in the Court of Claims, we note that this risk arises regardless of whether or not the jury is entitled to apportion liability between defendant and the State … . Given the statutory purpose of CPLR 1601 (1) to “limit[] a joint tortfeasor’s liability for noneconomic losses to its proportionate share, provided that it is 50% or less at fault” …, we find that juries in this scenario should be given the option to, if appropriate, apportion fault between defendant and the State. Artibee v Home Place Corp., 2015 NY Slip Op 06556, 3rd Dept 8-13-15

 

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Failure to Adequately Describe Location of Slip and Fall Rendered Notice of Intention Jurisdictionally Defective

The Third Department determined claimant’s notice of intention was jurisdictionally defective because it did not adequately describe the location of plaintiff’s alleged slip and fall on ice and snow:

Court of Claims Act § 11 (b) requires that a notice of intention to file a claim set forth, among other things, “the time when and place where such claim arose” … . While “absolute exactness” is not necessary … a claimant must “provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of [its] liability” … . “Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result” … .

Claimant’s notice of intention states that he slipped and fell on unseen ice on a sidewalk “on the campus of the State University of New York at Oneonta.” While we recognize that notices of intention are reviewed less strictly than claims …, we nevertheless find that this generalized description of the location at which claimant fell was insufficient to permit defendant to investigate its liability … . Because claimant’s notice of intention was deficient, claimant did not receive the benefit of the two-year extension and was obligated to file his claim within 90 days of its accrual … . As claimant failed to do so, his claim was properly dismissed. Sommer v State of New York, 2015 NY Slip Op 06472, 3rd Dept 8-6-15

 

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Road Washout Was Due to a Highway Design Issue for Which Adequate Remedial Planning Had Been Made—The Washout Was Not, Therefore, Caused by a Highway Maintenance Deficiency to Which the Negligence Standard Applies—State Entitled to Qualified Immunity Re: a Vehicle Accident Caused by a Sinkhole

The Third Department determined the maintenance and construction of a culvert, around which the road repeatedly washed out, was a highway design issue, for which the state was protected by qualified immunity, not a highway maintenance issue, for which a negligence standard applies. Claimant was injured when his vehicle went into a sinkhole near the culvert.

Municipalities unquestionably have a duty to maintain roads in a reasonably safe condition … . With respect to highway safety and design, however, defendant is “accorded a qualified immunity from liability arising out of a highway planning decision” … . Here, the gravamen of the claim is that the 9-foot-high, 15-foot-wide oval culvert that carried the Spuytenduiveil Creek underneath Route 8 was too small and should have been replaced. Plaintiff maintains that this condition presented a maintenance and repair issue that defendant was required to address in its proprietary capacity for which basic negligence and not sovereign immunity principles apply … . * * *

In order to successfully invoke the qualified immunity defense, defendant had the burden of demonstrating that its decision with regard to the replacement of the culvert “‘was the product of a deliberative decision-making process'” … . Even with design planning issues, liability may exist where the municipality does not adequately analyze the condition or if there is no reasonable basis for its plan … . If a remedial plan is developed, “liability may result from a failure to effectuate the plan within a reasonable period of time,” but “a reasonable delay justified by design considerations [or] a legitimate claim of funding priorities would not be actionable” … .

Based upon our review of the probative evidence, we agree with the Court of Claims that the replacement of the culvert presented a design and not a maintenance issue and that defendant was entitled to qualified immunity. Evans v State of New York, 2015 NY Slip Op 06288, 3rd Dept 7-23-15

 

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