New York State Court of Claims

New York State Court of Claims
SCHLEEDE v. THE STATE OF NEW YORK, # 2018-038-107, Claim No. 121526

Synopsis

Claim for injuries from a bicycle accident on a State highway dismissed after trial. Claimant did not prove that defendant's construction of roadway seams was negligent, or that this accident was caused by a dangerous condition in the roadway.

Case information

UID: 2018-038-107
Claimant(s): TODD SCHLEEDE
Claimant short name: SCHLEEDE
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 121526
Motion number(s):
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: BASCH & KEEGAN, LLP
By: Eli B. Basch, Esq.
Defendant's attorney: ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Douglas Kemp, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 24, 2018
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This claim seeks compensation for personal injuries sustained by claimant on July 17, 2011 when he fell from a bicycle while riding on a roadway in the City of Kingston. The trial of liability on this claim was conducted on December 14 and December 15, 2015 and May 2, 2017 in Albany, New York. Claimant presented his testimony and that of his experts, Alden Gaudreau and Lawrence M. Levine, both of whom are professional engineers (PEs) licensed in New York.(1) Defendant presented the testimony of its expert witness, William FitzPatrick, also a PE licensed in New York, and read into evidence certain portions of claimant's testimony from his examination before trial (EBT). Numerous documentary and photographic exhibits offered by the parties were received into evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence, all of the other evidence, the applicable law, and the parties' arguments as submitted after trial, the Court concludes that defendant is not liable to claimant for his injuries.

FACTS

At approximately 11:00 p.m. on July 17, 2011, claimant departed his house in the City of Kingston on his mountain bike for a 15-minute ride to his mother's house, on what he described as "a nice summer night" (T1:12).(2) Claimant testified that he rode eastbound on Delaware Avenue over an overpass above Route 9W, and that at the end of the overpass he encountered a triangular traffic island intersection at which he bore to the right. Claimant testified that as he went around the bend, his front wheel caught in a rut in the roadway surface, causing him to fall from his bike and sustain injuries. At trial, claimant circled an area in a photograph to identify the rut, which is located in the roadway surface a slight distance beyond the intersection (see Claimant's Exhibit 23). Concerning the location of his fall, claimant testified at his EBT that he bore to the right after he rode over the overpass and that he had "not made it a foot after that. I don't know. That's when I fell" (T3:76).

Documentary and photographic evidence received in evidence at trial shows that the intersection near where claimant's accident occurred is an unusual T-intersection involving Delaware Avenue and access and exit ramps to and from Route 9W northbound. At the top left horizontal part of the T-intersection, traffic would approach from the west (as claimant did) on Delaware Avenue, a two-lane east-west roadway, and travel over Route 9W on an overpass that ended just shortly before the T-intersection. Traffic intending to continue eastbound on Delaware Avenue would bear to the right onto a ramp ("Delaware Avenue exit ramp") that proceeded in a southeasterly direction, past a triangular traffic island on the left, and down a hill, at which point the roadway - which now forms the vertical part of the T-intersection - became the Delaware Avenue Connector and thereafter became Delaware Avenue. Traffic approaching from the west on Delaware Avenue that did not take the Delaware Avenue exit ramp to the Delaware Avenue Connector would continue in an easterly direction past the triangular traffic island to an access ramp that led to Route 9W northbound. At the top right horizontal part of the T-intersection, traffic would approach from the east from the Route 9W northbound exit ramp and could turn left at the intersection into a lane ("Route 9W traffic lane") that proceeded in a southerly direction, past the triangular traffic island on the right and down a hill, at which point the roadway became the Delaware Avenue Connector. Alternatively, traffic approaching the intersection from the east on the Route 9W exit ramp could continue straight past the intersection and continue westbound on Delaware Avenue. Just southeast of the traffic island, the Delaware Avenue exit ramp and the Route 9W traffic lane merged into one lane on the Delaware Avenue Connector. Delaware Avenue traffic approaching the intersection from the east would travel northwest on the Delaware Avenue Connector to the intersection and could make either a right turn onto the Route 9W northbound access ramp or a left turn onto Delaware Avenue westbound.

The rut identified by claimant in Exhibit 23 is a long and irregular defect - or "discontinuity" - in the roadway surface that begins slightly beyond the traffic island on the Delaware Avenue Connector, at just about the point where traffic that is turning onto the Delaware Avenue Connector from the Delaware Avenue exit ramp and the Route 9W traffic lane merge. The discontinuity runs longitudinally (i.e. parallel to the flow of traffic) and nearly at the center of the merger of the Delaware Avenue exit ramp and the Route 9W traffic lane. The discontinuity is not uniform in width, being narrower at the top and bottom and considerably wider nearer its center (see Claimant's Exhibits 5, 6, 23). At trial, claimant identified the exact location where his tire went into the discontinuity at approximately its midpoint, just below its widest point (see Claimant's Exhibit 23A; T1:37). Claimant marked the same photograph to illustrate the direction in which his bike was traveling, demonstrating that the bike struck the discontinuity at an angle (see Claimant's Exhibit 23A; see also T1:16-19, Claimant's Exhibit 3A). Claimant testified that he did not know the depth of the discontinuity where his tire struck it, and as to its width, "[i]f [he] had to guess, [he would] say [that the discontinuity was] maybe three, four inches wide" (T1:30). At his EBT, claimant testified that the discontinuity was approximately one-half of an inch to an inch in width (see T1:39), which he later corrected to 3 inches "or so" (T1:128-129).

Claimant testified that the roadway was smooth prior to encountering the discontinuity, that there was lighting in the area, that he had a light on his bike that was illuminated and that he could see the roadway, but that he was not observing the road conditions and did not see the discontinuity before his tire encountered it. There were no mechanical problems with claimant's mountain bike, and he did not know the thickness of its tires. Claimant was hospitalized for six months after the accident and his mountain bike, which was in the back yard, was missing when he returned home. Grainy photographs of the mountain bike taken with a cell phone camera were received in evidence (see Claimant's Exhibit 12).

The roadway surface of the Delaware Avenue Connector was made of asphalt concrete. Photographs of the intersection taken approximately one month after the accident reveal that the roadway is largely intact, with the exception of the discontinuity. Pictures in evidence reveal a few longitudinal and latitudinal (perpendicular to the flow of traffic) cracks in the Route 9W traffic lane before the discontinuity and in the southbound lane of the Delaware Avenue Connector below the defect. The roadway was constructed by defendant in 1981 according to specifications that were drafted in 1978 and pursuant a contract awarded by the New York State Department of Transportation (NYSDOT) to Yonkers Contracting Company in 1979. The "as built" plans for the construction project show that the asphalt roadway of the Delaware Avenue Connector consisted of six inches of subbase material, one and one-half inch of asphalt comprising a "binder" layer - or "course" - and one inch of asphalt comprising the top course (see Defendant's Exhibit C, at 7R).(3) It was stipulated at trial that the City of Kingston was responsible for the maintenance of the roadway on which claimant's accident occurred.

Claimant presented Alden Gaudreau, PE as an expert in accident reconstruction, who has analyzed approximately 3,000 automobile accidents and 150 bicycle accidents. Gaudreau testified that he visited the accident site on three separate occasions in August and September of 2011, once with a family member of claimant who identified where claimant and his bicycle were found after the accident, once with Randall Hajeck, who Gaudreau testified was an expert in paving, and once by himself. On July 15, 2015, Gaudreau visited the site with a technician to take light readings in the late evening hours. Gaudreau testified that during his initial visits he inspected the accident scene, looked at the traffic patterns, took photographs (see Claimant's Exhibits 5-11), and took measurements of the intersection and the discontinuity.

According to Gaudreau, the Delaware Avenue exit ramp was 18 feet 6 inches wide, and it narrowed to 13 feet 6 inches approaching the discontinuity, and then to 12 feet after the Delaware Avenue exit ramp and the Route 9W traffic lane had completely merged. Gaudreau testified that the discontinuity was 18 feet in length and that he measured the width of the discontinuity at two foot intervals, finding that the width varied in size from 1 inches at its narrowest to 7 inches at its widest. The depth of the discontinuity varied from one inch to two inches deep. Gaudreau was never told by claimant the precise location where his tire entered the discontinuity, and he testified that while it would be helpful to know exactly where claimant's bike struck the discontinuity, it was "obvious" to Gaudreau where the accident occurred because the "whole bad area was suspect" (T1:135). Gaudreau testified that he believed that he measured the exact spot where claimant's tire entered the discontinuity, which was between eight feet and nine feet from the start of the discontinuity, an area that varied in width from 3 inches to 7 inches. Gaudreau was not able to measure the width of the tires on claimant's mountain bike, but he testified that they were between 1 and 2 inches wide based upon their 26 inch size tire, as claimant had previously testified. Gaudreau testified that he had observed that vehicles that had used the Delaware Avenue ramp onto the Delaware Avenue Connector "would drive in the center of the exit lane and then would actually drift to the left and cross the discontinuity with their left front wheel as they went around that turn" (T1:76). Gaudreau testified on cross-examination that during his July 15, 2015 visit, adequate lighting levels at the scene of the accident were recorded.

Gaudreau testified that a longitudinal joint - one that runs in the same direction as the flow of traffic - is formed when asphalt is laid down by a paving machine that is not as wide as the entire road being paved because more than one pass of the machine will be required, and that the discontinuity at issue is a deteriorated longitudinal joint. Although Gaudreau did not know what type of paving equipment was available at the time of the construction of the road in 1981, he testified that at least two courses - or layers - of asphalt could be seen in the discontinuity, a wear course at the top and a binder course at the bottom (see Claimant's Exhibits 8-10). The wear course measured between 1 and 1 inch in depth, and the depth of the binder course was unknown to Gaudreau. It appeared to him that the two courses were laid directly one on top of another and butted together and that the joints for the wear course and the binder course were directly on top of one another. Gaudreau further testified that since the joint was directly in the wheelpath of the vehicles from the exit ramp lane, more stress was placed on the joint as wheels ran over it, and that there was no separation of longitudinal joints in other parts of the roadway surface.

Gaudreau opined that the circumstances of claimant's accident, i.e. that claimant's bike wheel got caught in the discontinuity causing the wheel to lock and eject claimant off his bike, were consistent with the discontinuity having caused the accident. It was also Gaudreau's opinion that the longitudinal joint would have been stronger if the joints of the two courses had been staggered or offset 6 or more inches apart so that the longitudinal joints for the two courses were not directly one on top of another, and that it was reasonably foreseeable that laying the courses with their longitudinal joints directly on top of one another would result in deterioration of the joint. Gaudreau further opined that the placement of the longitudinal joint in the wheelpath of the Delaware Avenue exit ramp and the vertical alignment of the longitudinal joints of the two courses contributed to the deterioration of the joint that caused claimant's accident. On cross-examination, Gaudreau acknowledged that a defect in a roadway is a maintenance issue, and he further testified that it would not be unusual to see defects in a roadway that was constructed 30 years earlier, but that this discontinuity was the only defect in this roadway. Gaudreau admitted on cross-examination that he was not qualified to render an opinion as to whether the roadway was properly constructed.(4)

Claimant's expert in roadway design and construction was Lawrence M. Levine, PE, who had previously testified as an expert for the State over 100 times in the areas of traffic engineering and safety and highway and bridge design work. Levine was retained by claimant in February 2016 to replace claimant's previous expert Randall Hajeck (see footnote 1, above). Levine testified that to prepare to testify and opine at trial, he had reviewed the plans for the subject roadway, the relevant standards of practice for the period of 1978 to 1985, Hajeck's expert report, Gaudreau's measurements, and depositions that had been conducted in this matter. Levine visited the subject intersection and scene three times, once by himself, once with Gaudreau and once with claimant.

It was Levine's opinion that the defect - or "separation" of the pavement as he referred to it - was caused by an error in the construction process, namely that when the top layer was placed on top of the binder layer, the longitudinal joints - or "seams" as he referred to them - were placed directly on top of one another and not offset. Levine testified that seams are supposed to be offset so that if water gets into the top coat seam, it will not get into the binder layer seam and "get under the road and ruin the whole road" (T3:22). Levine testified that if the layers are not overlapped the pavement does not "work . . . as a unified [w]hole" and that the overlapping of layers helps to tack or glue the pavement layers together (T3:24). Levine testified that overlapping layers was more crucial at the scene of claimant's accident because it was a curved and downward sloped roadway and that there was a lot of centrifugal force from vehicle tires "trying to shove the asphalt to the left" (T3:25). Levine testified that since there was no overlapping of seams, the centrifugal force was "just going to move the seams apart" because "[t]hey're just kind of butted together at that point. There's nothing tacking them or taping them or connecting them together" (id.). Levine further testified that the placement of the joint in the wheelpath of vehicles in the exit ramp lane contributed to the separation in the seam. Levine testified that the layers of pavement that created the longitudinal joint were butted together to form a "butt joint," and that an alternative and more effective technique involves creating a "wedge joint" where the two layers of adjoining pavement are tapered such that the joint is not vertical, but diagonal (see T3:27-29; Claimant's Exhibit 13).

Levine testified that the industry standard at the time that the road was constructed called for a minimum of a six inch offset of the longitudinal joints, which would have made the road stronger, reduced the likelihood of water getting into the subbase of the roadway, and enhanced roadway durability and safety. Levine testified that the 6 inch offset was an industry standard set by the Asphalt Paving Manual published by the Asphalt Institute in 1978 (see Claimant's Exhibit 29) that dated back to the 1920s, and perhaps even back to Roman times. Levine offered his opinion that the failure to offset the layers and placement of the joint in the wheelpath of vehicles at this location caused the separation in the pavement. He testified that it "was a combination of field errors" during construction of the roadway that led to the layers not being offset, and that "[i]t's not something that you would see in the plans, but it's something that an inspector of the job and the people watching the paving operation, the State inspectors, would be watching for" (T3:40).

On cross-examination Levine testified that the life expectancy of the type of roadway where the accident occurred would depend upon many factors, such as construction conditions, its location, traffic and weather, and that the freeze-thaw cycles in New York can contribute to potholes and other discontinuities over time, depending upon how the road was constructed and other environmental factors. Levine did not believe that the project plans and the standard specifications for the construction of the subject roadway referenced the Asphalt Institute's 1978 Asphalt Paving Manual, but he "believe[d]" that the Asphalt Paving Manual was referenced in the NYSDOT Highway Design Manual (T3:53). Levine acknowledged on cross-examination that the placement of joints would be a "field decision," with the inspectors and engineer in charge planning the placement of joints with the contractor based upon "field conditions" (T3:54).

Levine further testified on cross-examination that the width of the asphalt courses would be dictated by the size of the asphalt spreading machine that was available for the job, which would therefore have an impact on the placement of the joint, but that engineers would plan the placement of the joint ahead of time and adjust the plan in the field to offset joints. Levine testified on cross-examination that the six inch offset would not appear in the plans as it is a rule that applies no matter what the field conditions dictate. Levine testified that it is his understanding that the roadway surface in 2012 is the original pavement that was laid in 1981 when the road was originally constructed and that with the exception of the discontinuity the roadway was in "really good shape" (T3:63). Levine testified on cross-examination that other than some intervening force, which he did not see at the accident location, he had never seen a break in more than one layer of asphalt roadway unless it was improperly constructed. Levine acknowledged that he had not been provided, and therefore had not reviewed, any road repair history or photographs showing the historical progression of the defect in the road.

William D. FitzPatrick, PE, testified as defendant's expert in roadway design and construction. FitzPatrick was employed by NYSDOT from 1969 through 2004, most recently as the NYSDOT Region 8 Traffic and Safety Engineer. Prior to trial, FitzPatrick reviewed the plans and specifications for the subject roadway and all of the documents that were exchanged by the parties during the litigation, including EBT testimony, photographs, reports and aerial maps. FitzPatrick also visited and photographed the subject intersection.

Based upon his experience while employed as a PE in various capacities at NYSDOT, FitzPatrick testified that he was familiar with the good and accepted standards that applied to the construction of the subject roadway back when it was built in 1981, that NYSDOT was not required to comply with the standards in the Asphalt Institute's 1978 Asphalt Paving Manual to which claimant's expert Levine had referred in his testimony, and that those standards were not referenced in the 1978 specifications for the project, the contract plans or design plans. On cross-examination FitzPatrick refused to concede that the 1978 Asphalt Paving Manual was an authoritative source of asphalt paving for the contract for the construction of the subject roadway. FitzPatrick further testified that there was nothing in the 1978 specifications for the project, or in the "as built" plans that required longitudinal joints to be offset, and that based upon his professional experience, the use of offsetting joints was not required on roadway projects at the time that the subject roadway was constructed. On cross-examination FitzPatrick testified that he did not know whether there was anything that prevented the contractor from offsetting joints on the roadway in 1981 when the subject roadway was constructed, but that it was a current good and accepted practice to offset joints and that offsetting is a good practice if it can be done.

FitzPatrick testified that it is ideal to place asphalt down from curb to curb in one pass with a paving machine, but that multiple passes with paving machines are sometimes necessary depending upon the comparative width of the roadway and available paving machines. FitzPatrick testified paving machines would be selected upon what made the most sense for the entire project, not just a portion of the project. FitzPatrick testified that based upon his experience that if a particular paving machine was not wide enough to put down asphalt from curb to curb, the practice in 1981 when the subject roadway was constructed was that the paving machine would make two passes alongside each other to create a longitudinal butt joint, and that the 1978 specifications called for "joint heaters" to heat up the joint to make the asphalt bind together (see T3:109-110). FitzPatrick further testified that when the asphalt is put down it is compacted, that the courses and joints bind together during the compaction process, and that "you'd be hard pressed to find a seam," especially in the upper courses of pavement (T3:119). FitzPatrick testified that wedge joints were not approved to be used on construction projects until 1995 and that butt joints were the only type that was authorized at the time when the subject roadway was constructed (T3:111).

FitzPatrick testified that it was good and accepted engineering practice at the time of construction to place the longitudinal joints on top of each other if necessary, i.e. depending upon the field conditions, available equipment and the geometry of the road. FitzPatrick further testified that the Delaware Avenue Connector was difficult to pave because of its dimensions and geometry. FitzPatrick testified at its widest point - which is approximately at the location of the discontinuity - the roadway had three lanes measuring approximately 36 feet in width, and it would have taken three passes with a 12 foot wide paving machine to put down asphalt. Based upon the dimensions and geometry of the intersection, FitzPatrick testified that the engineers would "plan [the paving] out as best they could to eliminate any seams over one another, but under certain circumstances it might be necessary and it was not prohibited" (T3:128). FitzPatrick further testified that it would have been within good and accepted engineering practice to place longitudinal joints in successive courses directly on top of each other.

FitzPatrick testified that his review of claimant's photographs did not reveal to him where the joint was in the courses of pavement, whether the different courses could be visualized, or where the joint was located. He further testified that the presence of the discontinuity does not necessarily indicate the presence of a joint. FitzPatrick testified that while the centrifugal forces of vehicles can cause discontinuities in roadway surfaces, other forces such as movement in the subsurface, speed and volume of traffic, and water seeping into the road can cause such a defect. FitzPatrick testified that the life expectancy for the wear course of asphalt is 20 years and that "it's a lot" (T3:140) if a top course lasts for 15 years. FitzPatrick testified that if the top layer of the asphalt in the subject roadway was the original pavement that was 30 years old, it was in "remarkable shape," and that he believed that the road had been repaved (see T3:139).

DISCUSSION

Claimant asserts that defendant's agents were negligent in the construction of the Delaware Avenue Connector because the layers of asphalt should have been staggered or offset and not been placed directly on top of one another. Claimant's theory is that had they done so, a dangerous condition - the discontinuity -- would not have existed in the roadway, and thus, defendant's negligence resulted in claimant's injuries.

The State has a nondelegable duty to design and construct its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978]), but it is not an insurer for motorists who travel on those roadways (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Rooney v State of New York, 111 AD2d 159, 160 [2d Dept 1985]) and "the mere happening of an accident, without more, is insufficient to establish liability" (Politi v State of New York, UID No. 2012-015-535 [Ct Cl, Collins, J., Mar. 16, 2012], citing Tomassi, 46 NY2d at 97). While the State may be held liable for the negligent construction of a roadway that results in injury, provided that it is shown that it did not conform to specifications, plans or standards in its construction, it is accorded qualified immunity for its discretionary decision-making with respect to highway design and planning decisions (Weiss v Fote, 7 NY2d 579, 584-588 [1960]; Friedman v State of New York, 67 NY2d 271, 283 [1986]). To establish liability for highway design and planning decisions, "something more than a mere choice between conflicting opinions of experts is required" (Weiss v Fote, 7 NY2d at 588), and claimant "must show not merely that another option was available but also that the plan adopted lacked a reasonable basis" (Affleck v Buckley, 96 NY2d 553, 557 [2001]). It is claimant's burden to prove his claim by a preponderance of the credible evidence (see Tomaino v State of New York, 22 Misc 3d 1013, 1019 [Ct Cl 2008]; Kosinski v State of New York, UID No. 2000-028-0012 [Ct Cl, Sise J., Nov. 30, 2000]). For the reasons that follow, the preponderance of the credible evidence does not establish that the defendant was negligent in its construction of the roadway, or that claimant's injuries were caused by the discontinuity.

The evidence presented at trial does not persuasively demonstrate that offsetting joints were required in 1981 when the road was originally constructed. Defendant's road design expert FitzPatrick, who actually worked at NYSDOT when the road was constructed, persuasively testified that NYSDOT was not required to comply with the standards set forth in the 1978 Asphalt Paving Manual, and thus, that the subject roadway was not required to have offset the joints by six inches or more. Claimant's experts Levine and Gaudreau did not point to any provision in the specifications or plans for the construction project, or in the NYSDOT Highway Design Manual in effect at the time of construction that addressed, much less mandated, that the joints be offset by a minimum of six inches. Although Levine "believe[d] [that the 1978 Asphalt Paving Manual] may be referenced in the [NYSDOT] Highway Design Manual" (T3:53), he did not provide any citation to such a reference, nor did he specifically testify that the Highway Design manual required offset joints. To be sure, FitzPatrick acknowledged that offsetting joints is a good practice if it can be done, but that it was not required at the time of construction, and that it was good and accepted practice to place joints directly on top of each other if field conditions dictated. FitzPatrick credibly testified that wedge joints were not authorized by NYSDOT until 1995, and thus, defendant's failure to use a wedge joint in the 1981 construction cannot serve as a basis of liability.

In addition, the evidence does not demonstrate that the decision to place joints directly on top of one another lacked a reasonable basis. FitzPatrick testified that based upon the unusual geometry of the intersection, engineers would plan the paving "as best they could to eliminate any seams over one another, but under certain circumstances it might be necessary and it was not prohibited" (T3:128). While Levine opined that the joints should have been offset rather than placed on top of one another, he acknowledged that the decision by the engineers regarding joint placement would be a "field decision" based upon "field conditions" (T3:54), and his cursory statement that there was "a combination of field errors" (T3:40) does not demonstrate that any decision to forego staggered joints lacked a factual basis or that any such decision was otherwise unreasonable.

Finally, the Court is not persuaded by a preponderance of the credible evidence that the pavement that existed at the time of claimant's accident was the pavement that was laid as part of the original construction of the Delaware Avenue Connector. Both Levine and FitzPatrick testified that the roadway was in extremely good shape, and the photographs depict a road that has very few defects and a smooth riding surface despite its apparent advanced age. The condition of the roadway is thus inconsistent with FitzPatrick's credible testimony that an asphalt surface has a life expectancy of 20 years or less (see T3:140). Thus, the Court is not persuaded that the asphalt surface that was present in 2012 was the same surface that was laid by the State in 1981, more than 30 years before claimant's accident.

Moreover, even assuming that claimant proved that defendant's negligence was the cause of the discontinuity in the pavement, he has not persuaded the Court by a preponderance of the credible evidence that his accident was caused by the discontinuity, or that if it was, that his accident was caused by a dangerous condition. As an initial matter, claimant's demeanor while testifying at trial failed to instill confidence in his testimony as to the exact location of his accident. Although claimant identified the location of the defect as within the long and irregular discontinuity in the travel surface of the Delaware Avenue Connector as observable in the photographs, the Court found his testimony to be tentative and unconvincing and therefore not worthy of significant weight. Further, claimant's trial testimony differed from his EBT testimony, in which he testified that he had "not made it a foot" beyond the end of the overpass when he fell, a substantial distance from the location of the discontinuity.

Assuming even further that claimant's bike struck the discontinuity on the Delaware Avenue Connector, there is insufficient persuasive proof as to which part of the discontinuity was struck by claimant's front tire, or that the defect he struck was significant enough to constitute a dangerous condition. Claimant speculated at trial that his front tire struck a gap that was between three and four inches wide "[i]f [he] had to guess" (T1:30), which is inconsistent with his EBT testimony that the defect was only between one-half of an inch to an inch wide. His subsequent effort after the EBT to "correct" his estimate to 3 inches "or so" (T1:128-129) casts further doubt on the reliability of claimant's assessment of its width. Although Gaudreau testified that the narrowest width of the discontinuity was 1 inches, he measured the width of the discontinuity only every two feet, and there are portions of the discontinuity that appear to be little more than hairline cracks, thus undermining Gaudreau's testimony that it was 1 inches wide at its narrowest point. Moreover, even assuming that the smallest width was 1 inches and claimant's tire was 1 inches wide, claimant's marks on the photographic evidence indicate that his bike struck the discontinuity at an angle, meaning that the tire would have likely traversed over the discontinuity, and not become lodged within it. Finally, the Court found it peculiar that Gaudreau - an expert in accident reconstruction - testified only that he thought it "obvious" where claimant's front tire struck the discontinuity, and made no attempt or effort to ascertain or pinpoint the precise location that claimant's tire struck the discontinuity. In sum, the credible evidence does not preponderate in favor of finding that claimant's bike struck the discontinuity, or that if it did, that it did so at a location where it was wide enough to constitute a dangerous condition.

CONCLUSION

While it is truly unfortunate that claimant was injured after falling from his mountain bike, the preponderance of the credible evidence at trial does not demonstrate that defendant breached the good and accepted standards of road construction that applied in 1981. Nor does it demonstrate that claimant's fall was caused by a dangerous condition in the roadway. Accordingly, the Court concludes that defendant is not liable to claimant for his injuries. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim. Any motions not previously ruled upon are hereby DENIED.

Let judgment be entered accordingly.

April 24, 2018

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims


1. On the first day of trial, claimant called Randall Hajeck as an expert witness. Defendant objected to Hajeck's testimony on the ground that it was prohibited under Public Officers Law 73 (3) (a) because he was employed by defendant. Claimant withdrew Hajeck as his expert witness and requested an adjournment of the trial so that he could retain another expert. The adjournment was granted with certain stipulated conditions, and claimant subsequently retained Levine as an expert and offered his testimony at the resumption of the trial.

2. All references to the trial transcript are designated by "T1" for the proceedings on December 14, 2015 (the cover page of which incorrectly recites the year as 2016), "T2" for the proceedings on December 15, 2015, and "T3" for the proceedings on May 2, 2017. The Court notes that while the first volume of the transcript includes a notation during the cross-examination of Alden Gaudreau that the "[a]udio [recording of the proceedings] stops for approximately four minutes, then resumes with redirect examination" (T1:127), there is no such gap in the audio recording maintained by the Court.

3. Although another sheet of the "as built" plans show that the binder course was three inches in depth (see Defendant's Exhibit C, at 45R), the cross section plan shows that the binder course consisted of one and one-half inch of asphalt (see id., at 7R; see also T3:96).

4. This testimony is omitted from the first volume of the trial transcript, but is recorded in the audio recording (see footnote 1 above).