        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

63
CA 11-01698
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.


PETER E. GREVELDING, JR., AS EXECUTOR OF THE
ESTATE OF JASON M. RHOADES, DECEASED,
CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 109855.)


MACKENZIE HUGHES LLP, SYRACUSE (W. BRADLEY HUNT OF COUNSEL), FOR
CLAIMANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PAUL GROENWEGEN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Diane L.
Fitzpatrick, J.), entered November 8, 2010 in a wrongful death action.
The judgment dismissed the claim after a trial on liability.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the claim is
reinstated, judgment on liability is granted in favor of claimant and
the matter is remitted to the Court of Claims for a new trial on the
issues of decedent’s contributory negligence, if any, and damages in
accordance with the following Memorandum: Claimant commenced this
wrongful death action seeking damages for the fatal injuries sustained
by decedent when the vehicle he was driving slid across the roadway
while passing over the Park Street bridge (bridge) on Interstate 81 in
the City of Syracuse, struck a snowbank packed against the concrete
barrier guard at the edge of the bridge, and vaulted off the bridge
onto the road below. The evidence presented at trial established that
defendant removed the snowbank from the bridge only after a second
fatal vaulting accident occurred, approximately 36 hours after
decedent’s accident. According to claimant, defendant was negligent
in, inter alia, creating the dangerous condition of the snowbank,
which rendered the concrete barrier guard ineffective, failing to
maintain the bridge in a safe condition, failing to warn of that
dangerous condition, and failing to close the bridge in the event that
it could not be made safe for travelers.

     Following the trial, the Court of Claims determined that the
snowbank, which had a hard core and extended above the highway’s
concrete barrier, constituted a dangerous condition and was a
proximate cause of decedent’s accident. The court found that
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                                                         CA 11-01698

defendant created the snowbank by its snow plowing methods, but that
it did not thereby create the dangerous condition, which resulted from
“passive accumulation to an unsafe height and consistency, or
nonfeasance in removal,” coupled with the extreme and persistent
weather. The court also found that defendant did not have actual or
constructive notice of the dangerous condition and that, even if it
could be deemed to have constructive notice, defendant did not have an
opportunity to remedy the condition. Viewing the evidence in the
light most favorable to the prevailing party, we conclude that the
court’s conclusions could not have been reached under any fair
interpretation of the evidence (see generally Matter of City of
Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d 168, 170; Farace v
State of New York, 266 AD2d 870).

     Defendant has a duty to maintain its roadways “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 NY2d 889, 891; see Carollo v Town of Colden, 27 AD3d 1077,
1078). That duty includes “an obligation to provide and maintain
adequate and proper barriers along its highways” (Gomez v New York
State Thruway Auth., 73 NY2d 724, 725). We conclude that defendant
was negligent in creating the dangerous condition by its snow plowing
methods. As we determined in Gardner v State of New York (79 AD3d
1635), the case involving the fatal accident on the same bridge that
occurred 36 hours later, defendant’s reliance on New York State
Department of Transportation guidelines for snow and ice removal is
misplaced. “[T]hose guidelines were ‘evolved without adequate study
or lacked reasonable basis’ . . . inasmuch as they provide for the
correction of a dangerous condition, such as a slippery roadway,
before the correction of a deadly condition, such as the snowbank
‘ramp’ at issue” (id. at 1636-1637; see generally Weiss v Fote, 7 NY2d
579, 589, rearg denied 8 NY2d 934).

     As demonstrated by the evidence presented at trial, vaulting
accidents are rare. Nevertheless, although they are rare, the
evidence presented at trial also established that certain state
highway bridges are much more susceptible than others to winter
vaulting accidents, and it is undisputed that a vaulting accident had
previously occurred on the instant bridge 10 years earlier. We
further note that decedent’s accident was the first of two accidents
that occurred on the instant bridge over a single weekend. We thus
conclude under the circumstances of this case that defendant is liable
for creating the dangerous condition, which was a proximate cause of
decedent’s accident. However, we reject claimant’s further contention
that there is no evidence that decedent was negligent or that his
negligence was a proximate cause of the accident. We therefore
reverse the judgment, reinstate the claim, conclude as a matter of law
that defendant was negligent and that its negligence was a proximate
cause of decedent’s accident, and remit the matter to the Court of
Claims for a new trial on the issues of decedent’s alleged
contributory negligence and damages, to be apportioned in the event
that contributory negligence on the part of decedent is found (see
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                                             CA 11-01698

CPLR 1411).




Entered:   January 31, 2012         Frances E. Cafarell
                                    Clerk of the Court
