Following the State's removal and subsequent loss of a metal rod which had been imbedded in the highway pavement and allegedly caused claimant to trip and fall, the Court granted claimant's motion for imposition of a spoliation sanction to the extent of granting him an adverse inference that the defendant or its agents caused the metal rod to become imbedded in the pavement during the course of its paving operations. Claimant's motion for partial summary judgment on the issue of liability was denied as claimant was not relieved of his burden of demonstrating the existence of a defect and the causal relationship between the defect and the accident.
|Claimant short name:||STICKELMYER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Robert A. Becher, Esq.|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Michael T. Krenrich, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 16, 2020|
|See also (multicaptioned case)|
Claimant moves to strike the defendant's answer based upon spoliation of evidence, and for partial summary judgment in his favor on the issue of liability.
Claimant seeks damages for personal injuries allegedly sustained on March 26, 2017 at approximately 9:00 p.m. when he tripped on a metal rod protruding from the paved shoulder of State Route 22 in the Town of Berlin, County of Rensselaer, New York. Claimant's counsel served a notice of intention to file a claim which was received in the Office of the Attorney General on April 26, 2017. Thereafter, Blake Buckner, an Assistant Resident Engineer for the Department of Transportation (DOT), received a call from a representative of the Attorney General's Office, went to the scene and inspected the area on June 6, 2017 (claimant's Exhibit F, p. 23-24). Mr. Buckner measured the length of the metal rod, which was approximately 4 inches, and took two photographs (defendant's Exhibit K). Jeff Wager, a light foreman, removed the rod from the shoulder pavement and Mr. Buckner's foreman, Scott Foster, brought it to his office where Mr. Buckner stored it in his desk. Mr. Buckner testified at an examination before trial that the rod appeared a little longer than it did when he saw it imbedded in the pavement but otherwise looked the same as it did on the day he observed it in the road (claimant's Exhibit F, p. 30). He testified that he did not know what the rod was and had no idea where it came from (id.). Sometime after he received the metal rod and placed it in his desk, DOT personnel remodeled the office and Mr. Buckner's desk was removed and disposed of. Mr. Buckner does not know what happened to his old desk following its removal nor is he able to locate the metal rod.
Claimant testified at an examination before trial that within two weeks of the accident he returned to the site to take pictures of the metal rod, which were submitted as claimant's Exhibit C and defendant's Exhibits I and J. Claimant described the rod as a "[j]agged L" shape approximately four to six inches in length (claimant's Exhibit G, p. 39). Claimant also returned to the accident site a second time, although by that time the rod had been removed from the pavement (id. at p. 58). He testified that although he had occasionally walked in this area before the accident, he had not previously observed the metal rod and made no prior complaints concerning the condition of the road (id. at p. 68).
The instant claim, filed on May 14, 2018, alleged that the defendant affirmatively created the defective condition or had actual or constructive notice of its existence (claimant's Exhibit A, ¶ 30). In a Bill of Particulars dated August 15, 2019, claimant alleged that the defendant "affirmatively created the dangerous condition by imbedding the metal rod in the westerly shoulder portion of State Route 22 approximately 60 feet south of the intersection of State Route 22 and Elm Street during paving operations" (claimant's Exhibit D, ¶ 15 [c]).(1) In this regard, Mr. Buckner testified that "cold-in-place recycling" was performed in July 2015 and final paving was accomplished in late August 2015 (claimant's Exhibit F, p. 9). Cold-in-place recycling involves grinding up four inches of pavement, laying it back down and then adding stone and asphalt emulsion to create a new binder. A half-inch shim course is applied followed by a one and one-half inch layer of pavement (id.). The shoulders of Route 22 in the area of claimant's accident were paved at the same time as the road surface (id. at pp. 12-13). The shoulders were later backed-up with stone and driveway aprons were paved (id. at p. 10).
Claimant contends that DOT's disposal of the metal rod has rendered him without the means to prove that it became imbedded in the road during the course of paving operations. Claimant's expert, Alden P. Gaudreau, indicated that the cold-in-place recycling of the paved roadway in 2015 "involved the use of a variety of machinery and equipment including an emulsion tanker, a milling machine, sometimes a crusher and an asphalt paver" (affidavit of Alden P. Gaudreau, ¶ 6). With respect to his ability to determine the origin of the metal rod, Mr. Gaudreau stated, in pertinent part, the following:
"7. That the photographs of the metal object that I reviewed suggested that the metal object could have come from one of the machines involved in the paving operation, perhaps a handle grip or bracket for a shoe of a paver or a component part of a dump truck, roller or grader.
8. That my suggestion of the potential origin of the metal object is purely speculative because it is impossible for me to make any reasonable determination of the origin of the metal object without conducting an actual physical inspection and testing of the metal object.
9. That such an inspection would determine the precise nature of the material, the precise size, shape, texture, and color of the metal object, as well as the presence of welds and the location of any physical damage, the extent of corrosion, bends, wear, cuts, fractures and hardness.
10. That such testing and inspection would provide a great deal of information from which it may have been possible to accurately identify the origin of the metal object. However, without such testing and inspection, as heretofore indicated, it is impossible for me to reach any reasonably accurate conclusion regarding the origin of the metal object" (id. at ¶¶ 7-10).
In opposition to the claimant's motion, defense counsel contends that without a list of the trucks or equipment utilized by the third-party contractor that performed the work, it is impossible for claimant's expert to determine the origin of the metal rod. Defense counsel indicates that claimant never sought discovery with respect to the equipment utilized on the job site, and that it is equally likely the metal rod came from "some other vehicle simply passing by after the paving project was completed" (affirmation of Michael T. Krenrich, ¶ 28). Defense counsel alternatively posits, "the metal could have come from the parking lot of the laundromat adjacent to the area where claimant fell" (id.). Defendant contends further that claimant's assertion of prejudice arising from the spoliation is speculative because Mr. Gaudreau failed to demonstrate that an inspection of the metal rod would have definitively revealed its origin (id. at ¶ 29).
The Court of Appeals in Pegasus Aviation I, Inc. v Varig Logistica S.A. (26 NY3d 543 ) adopted a three-prong analysis for determining whether spoliation sanctions are appropriate. The party moving for the imposition of spoliation sanctions must show: (1) "that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction," (2) "that the evidence was destroyed with a 'culpable state of mind,' " and (3) "that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (26 NY3d at 547, quoting VOOM HD Holdings, LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [1st Dept 2012]; accord LaBuda v LaBuda, 175 AD3d 39, 41 [3d Dept 2019]). With regard to the first prong, an obligation to preserve evidence arises when a party is on notice that the matter will likely result in litigation (Gitman v Martinez, 169 AD3d 1283, 1287 [3d Dept 2019]; Page v Niagara Falls Mem. Med. Ctr., 167 AD3d 1428, 1430 [4th Dept 2018]). Here, it is undisputed that defendant received the claimant's notice of intention to file a claim on April 26, 2017 and its employees removed the rod from the pavement in June 2017 at the request of an investigator employed by the Office of the Attorney General. Consequently, defendant should have been aware of the likelihood of litigation at the time the metal rod was removed from the pavement (see Strong v City of New York, 112 AD3d 15 [1st Dept 2013] [filing of notice of claim, among other things, placed City of notice of the need to preserve certain recordings]). In fact, according to Mr. Buckner the metal rod was removed from the pavement after he was advised "there was a possible litigation pending" (claimant's Exhibit F, p. 22). As to the state of mind component of the analysis, the rod was placed in a desk drawer and was lost when the DOT offices were renovated and the desks were removed. At the very least, the DOT's loss of the metal rod was the product of negligence, if not gross negligence, and it is well settled that " '[a] culpable state of mind for purposes of a spoliation sanction includes ordinary negligence' " (Hirschberg v Winthrop-University Hosp., 175 AD3d 556, 557 [2d Dept 2019], quoting VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d at 45; see also Richter v BMW of N. Am., LLC, 166 AD3d 1029, 1030 [2d Dept 2018]). The last factor, relevance of the lost evidence to a claim or defense, is presumed if the alleged spoliator acts intentionally, willfully or with gross negligence (Pegasus, 26 NY3d at 547; Siras Partners LLC v Activity Kuafu Hudson Yards LLC, 171 AD3d 680 [1st Dept 2019]; Arbor Realty Funding, LLC v Herrick, Feinstein LLP, 140 AD3d 607, 609 [1st Dept 2016]; VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d at 46). Here, the relevance of the metal rod need not be presumed inasmuch as the claimant demonstrated through the submission of his expert's affidavit that without an inspection and examination of the rod, he is unable to establish that the defendant caused it to become imbedded in the pavement through its paving operations. Moreover, the rod is relevant for the obvious reason it is the instrument of claimant's injury. While defendant contends that claimant's expert's opinion fails to demonstrate that an inspection of the metal rod would have "definitively" determined its origin (Krenwich affidavit, ¶ 29), such a showing is unnecessary (see Pegasus Aviation I, Inc. v Varig Logistica S.A., supra) as claimant established through the submission of his expert's affidavit that the metal rod was relevant and a physical inspection was necessary to establish how it came to be imbedded in the roadway (see Cardinale v Watervliet Hous. Auth., 302 AD2d 666 [3d Dept 2003] [to prevail in a slip and fall case, claimant has the burden of demonstrating that defendant either created the condition or had actual or constructive notice thereof]). Defendant submitted no contrary expert opinion and while photographs of the rod exist, claimant's expert indicates that physical examination and testing of the rod is necessary to determine its origin. The criteria for the imposition of a sanction having been met, the Court will turn to the appropriate sanction to be imposed.
In determining an appropriate sanction, Courts are required to consider "the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of evidence, and the degree of prejudice to the opposing party" (Delmur, Inc. v School Constr. Auth., 174 AD3d 784, 786 [2d Dept 2019], quoting Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 714 [2d Dept 2013]). While the striking of a pleading is generally reserved for instances of willful or contumacious conduct (Giambrone v Niagara Mohawk Power Corp., 175 AD3d 1808, 1809 [4th Dept 2019]), it may nevertheless be appropriate for the negligent spoliation of crucial items of evidence where the movant is prejudicially bereft of a means of proving his or her case (Kirkland v New York City Hous. Auth., 236 AD2d 170 [1st Dept 1997]). Key to the determination is the extent of "prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness" (Delmur, Inc., 174 AD3d at 786; Giambrone v Niagara Mohawk Power Corp., 175 AD3d at 1809). Where the loss of evidence does not deprive the movant of the means of establishing his or her claim, a less drastic sanction than dismissal of the responsible party's pleading may be imposed (Squillacioti v Independent Group Home Living Program, Inc., 167 AD3d 673, 675 [2d Dept 2018]; Burke v Queen of Heaven R.C. Elementary Sch., 151 AD3d 1608, 1609-1610 [4th Dept 2017]).
Here, claimant established through the submission of his expert's affidavit that without an inspection of the metal rod, he is no longer able to demonstrate that defendant or its agents(2) caused it to become imbedded in the roadway during the course of its paving operations. Inasmuch as claimant's case rests, in part, on his ability to establish that the defendant or its agents caused the allegedly defective condition (Cardinale, 302 AD2d 666), defendant's loss of the metal rod has left him prejudicially bereft of a means of proving this element of his negligence cause of action. The loss of the metal rod has not, however, deprived claimant of a means of proving a pavement defect. Multiple photographs of the metal rod imbedded in the pavement exist so that the loss of the rod has not impaired claimant's ability to prove the existence of a defective condition (Neve v City of New York, 164 AD3d 1458, 1460 [2d Dept 2018]). Consequently, the Court finds an adverse inference that the defendant or its agents caused the metal rod to become imbedded in the pavement during the course of paving operations is appropriate (see id; Neve v City of New York, 117 AD3d 1006 [2d Dept 2014]; cf. Squillacioti v Independent Group Home Living Program, Inc., 167 AD3d 673 [2d Dept 2018] [plaintiff did not demonstrate that they were deprived of the ability to establish their case, thereby warranting the lesser sanction of an adverse inference]; Burke v Queen of Heaven R.C. Elementary Sch., 151 AD3d 1608 [4th Dept 2017] [disposal of allegedly defective stairs did not leave plaintiff prejudicially bereft of the means to prove her case given the existence of photographs taken after action was commenced thereby warranting the lesser sanction of an adverse inference]). Claimant is not relieved of his burden of establishing the existence of a defect and the causal relationship between the defect and the accident (Neve, 164 AD3d at 1460).
Based on the foregoing, claimant's motion is granted to the extent of granting him an adverse inference that the defendant or its agents caused the metal rod to become imbedded in the pavement during the course of paving operations. The motion is in all other respects denied.
January 16, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Claimant also alleged, upon information and belief, that the rod imbedded in the pavement is visible in various photo logs taken by the DOT after the completion of the paving project (claimant's Exhibit D, ¶ 15 [c]). Aside from the photo logs provided by the defendant (defendant's Exhibit N, photo log of July 12, 2016), which either do not depict the rod imbedded in the pavement or are insufficiently clear to depict the rod, neither claimant nor defendant has provided a photo log which depicts the imbedded rod.
2. The State of New York owes the public a non-delegable duty to maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271, 283 ; Rockenstire v State of New York, 135 AD3d 1131, 1132 [3d Dept 2016]).