New York State Court of Claims

New York State Court of Claims
WYSOCKI v. STATE OF NEW YORK, # 2019-053-003, Claim No. 120931


After a bifurcated trial on the issue of liability, the Court found that claimant failed to establish negligence and the claim against the State was dismissed.  Claimant was injured after being ejected from a motorcycle that encountered a section of raised or buckled pavement.  The Court found that there was no proof to establish when the pavement was damaged or that the State had actual or constructive notice of its condition prior to claimant's accident.

Case information

UID: 2019-053-003
Claimant(s): EVAN M. WYSOCKI and JANET WYSOCKI, Individually
Claimant short name: WYSOCKI
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : The title of the claim was amended at trial to reflect that Evan M. Wysocki, who was 16 years old at the time of the filing of the claim, is no longer a minor and may bring this claim in his individual capacity. In addition, it is also amended to reflect that the State of New York is the only proper defendant and the New York State Department of Transportation is removed from the title of the claim as it is an agency of the State. Finally, in that the accident that is the subject of this claim took place on I-990, a state highway, the New York State Thruway Authority and the New York State Canal Corporation, both of which are public authorities and have no ownership or maintenance responsibilities concerning this state highway, are removed from the title of the claim.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 120931
Motion number(s):
Cross-motion number(s):
BY: Katherine A. Gillette, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 9, 2019
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


On July 22, 2011, claimant Evan Wysocki(2) was a passenger on a motorcycle driven by his grandfather when he was ejected from the motorcycle after it struck a damaged portion of pavement along New York State Interstate 990 (I-990) in the Town of Amherst, County of Erie and State of New York. The claimants allege that the New York State Department of Transportation (DOT) was negligent in failing to properly construct, maintain and repair that portion of I-990 where the incident occurred and creating a dangerous condition and failing to close the highway or otherwise warn drivers of the dangerous condition caused by the raised or buckled pavement. The claim was filed on February 15, 2012 and the answer was filed on March 27, 2012.

The trial of this claim was bifurcated and addressed the issue of liability only. The trial was held in Buffalo on November 13, 14 and 15, 2018. During the trial, testimony was provided by: claimant Evan Wysocki; John Wind, a DOT associate construction engineer; John Elmore, a DOT professional engineer 1; and David Christopher, formerly the DOT resident engineer for northern Erie County. Exhibits that were received into evidence included the police accident report, nine photographs, four DOT daily work reports, and the transcript of the examination before trial of claimant's grandfather, David Wetzler. Following the trial, the parties requested and were granted until March 4, 2019 to prepare and submit post-trial memoranda.


Mr. Wysocki, who is presently 23 years old, testified that he was 16 years old at the time of the July 22, 2011 accident. He testified that he was then attending Sweet Home High School and was in his junior year. Claimant testified that immediately prior to the accident, he had been at his grandparents home, David and Betty Wetzler, performing yard work. When it was time for him to return home, he was driven by his grandfather on his motorcycle. Claimant testified that he was seated directly behind his grandfather on the motorcycle and was wearing a helmet, T-shirt and shorts. He testified that they entered I-990 at the North French Road entrance ramp. Claimant described the weather that day as very dry and very humid with the temperature in the upper nineties (TT: 9-12)(3) .

The claimant testified that I-990 is a three lane highway in each direction and that his grandfather was traveling in the middle lane. He testified that from his passenger position, he was able to observe motor vehicles in the lanes to their left and right. Claimant was not able to see if there was a motor vehicle in the middle lane in front of his grandfather. He estimated that his grandfather was traveling at approximately 65 miles per hour prior to the incident. Claimant testified that his grandfather lost control of the motorcycle when it came into contact with a buckled section of highway that caused him to be ejected from the motorcycle across the right lane of travel onto the shoulder of the highway near an entrance ramp. He testified that he landed on his upper right shoulder, right arm and that both legs, hands and abdomen came into contact with the highway. Claimant was able to get up after he landed and testified that he immediately ran to his grandfather to see if he was all right (TT: 12-15).

Claimant identified photo Exhibit 3 as depicting the condition of the pavement on the day of the incident. He testified that photo Exhibits 5, 6 and 10 depict the area where the incident occurred. The area where the highway had buckled or broken where claimant was injured was described by him as being two lanes from the white lane depicted in photo Exhibit 10 (TT: 15-18). Claimant testified that the vehicles in the lanes to their left and right prevented his grandfather from avoiding the buckled section of highway (TT: 18-19).

On cross-examination, claimant testified that he recalled that there were cars traveling behind the motorcycle. He testified that the last time he was on I-990 prior to the incident was a week or two earlier and he did not notice any defects in the road at that time. Claimant was shown photo Exhibit 4 and clarified that he was traveling in the center lane of the highway depicted in that photograph, not the right lane where the highway pavement had heaved up (TT: 19-21).


John Wind was formerly employed by the DOT for over 35 years as an associate construction engineer until his retirement in September 2018. Wind testified that he was familiar with the construction of concrete highways and that I-990 was a concrete highway. He testified that it was his understanding that most of the joints in this highway were placed 60 feet apart. Wind also testified that he was familiar with the term "thermal expansion" and that heat can cause concrete pavement to heave, crack or break apart (TT: 26-28). He testified that what is depicted in photo Exhibit 6 can result from thermal expansion, although he did not recall whether he personally viewed the highway at the time this photograph was taken in 2011 (TT: 28-29).

Wind testified that he was involved in a construction project to rehabilitate the concrete surface on I-990 in 2007 and 2008. His role in that project was as a construction supervisor. During the course of this project, Wind testified that he visited the construction site every two or three weeks. He testified that there were areas of damage to the concrete pavement on I-990 but he did not know the cause of the damage (TT: 29-31). Wind identified the DOT engineers in charge of this project as John Elmore and Timothy Haynes and that they were on-site daily. He also testified that he witnessed a couple instances of the concrete pavement heaving during the course of this project. On cross-examination, Wind testified that heaving is a common form of damage to a roadway but that it does not occur frequently (TT: 31-32).


John Elmore testified that he has been employed by DOT since 2000 and his title presently is a professional engineer 1. He has a bachelor of science degree in civil engineering and a masters degree in engineering. Elmore testified that prior to 2012, he was employed by DOT in the Region 5 construction unit (TT: 38-40). He also testified that concrete expands and contracts as a result of temperature changes and that expansion to concrete caused by heat is known as thermal expansion. Elmore testified that when thermal expansion occurs, it can cause concrete pavement to heave, crack or break and that the purpose of the joints in concrete pavement is to control the cracking (TT: 40-42). He testified that the difference between an asphalt and a concrete road surface is that concrete is considered a rigid pavement, i.e., less flexible and forgiving of cracks than asphalt pavement. Elmore also testified that he has witnessed asphalt pavement heaving, including an asphalt overlay (TT: 42-44).

Elmore testified concerning his involvement in two construction projects on I-990, the first in 2000 and the second in 2007 and 2008 where he was the engineer-in-charge (EIC). He testified that the duties of the EIC include management of the DOT employees, contract administration and monitoring the contractor's work to see that it is performed in accordance with contract specifications. Elmore testified that the EIC prior to him on this project was Timothy Haynes. In his role as EIC, Elmore testified that he would be on-site daily to follow the progress of the work. He testified that this project was a rehabilitation contract for the entire length of I-990, which entailed performing small concrete repairs, replacing joint material and diamond grinding the concrete pavement (TT: 44-46). Elmore identified a joint that was damaged in photo Exhibit 2. He also testified that he had seen damage to a concrete joint on I-990 similar to that depicted in photo Exhibit 3. He testified that the damage to the joint depicted in this photograph could be caused either by thermal expansion, a joint malfunctioning or poor workmanship. Elmore testified that there were two joint repairs performed during the summer of 2008 with damage similar to what is depicted in photo Exhibit 3. In each case, he had concluded that the damage was caused by a joint malfunctioning (TT: 49-52). Elmore explained the method to repair a joint, which requires cutting down into the concrete adjacent to the joint and replacing the full depth of the pavement section. He testified that the two instances of heaving he observed on I-990 during the summer of 2008 occurred in the southbound lane near its split with I-290 and the northbound lane between the Audubon exit and the Campbell Road bridge (TT: 53-54).

On cross-examination, Elmore testified that the concrete pavement on I-990 is nine-inches thick and is reinforced with welded metal mesh and longitudinal bars or transverse joints that tie the joints together. He also testified that when joints are created they are cut in about three inches and then filled with a hot tar material or with a thin piece of foam called a backer rod that is placed into the joint with a silicone material. Elmore also described the concrete repair material utilized for this work, which is known as TechCrete (TT: 56-58). Elmore testified that only expressways are constructed with concrete because it is a lot more expensive to build than with asphalt. He stated that it is preferred for expressways because of their high volume and heavy truck traffic. He testified that the benefit of concrete roadways is that they can better handle heavy truck traffic and will experience greater longevity than asphalt (TT: 58-60).

Elmore testified that when he witnessed the heaving damage on I-990 in 2008, it had occurred sometime during a 16 hour period between 3:00 p.m. when work had ended for the day and 7:00 a.m. the next morning. Elmore testified that heaving as is depicted in photo Exhibit 3 is not a common occurrence and can occur instantaneously (TT: 61-62). On redirect, Elmore agreed that the only roadway that he had ever seen heaving pavement was on I-990 (TT: 63).


David Christopher is currently employed by Clark Patterson Lee. He was previously employed by DOT for a period of 36 years between 1991 and 2017. At the time of the July 22, 2011 accident, Christopher was the resident engineer for DOT in north Erie County. He testified that he went to the accident scene and viewed the roadway where the motorcycle accident occurred. Christopher testified that photo Exhibits 4 through 7 depict the roadway as it appeared that day. After viewing the damaged pavement, he testified that he determined that the deteriorated concrete needed to be removed and a temporary patch placed in that area (TT: 65-69).

Christopher testified that it was his determination that the damage to the roadway was caused by a failed concrete joint and agreed that it could have been caused by thermal expansion. He testified that the damage depicted in photo Exhibit 7 was the result of a failed concrete joint as there appeared to be compression in that area that caused the pavement to heave and crack. He stated that as it is the purpose of the joint to prevent the concrete from expanding, in this instance the joint failed and caused the pavement to expand and heave. Christopher stated that this section later received a permanent repair in early September 2011 by removing concrete on both sides of the joint and replacing it with asphalt concrete pavement (TT: 69-71).

On cross-examination, Christopher defined asphalt concrete as a combination of aggregate and asphalt emulsion combined to make a solid, concrete type product. He testified that cold patch is a form of asphalt concrete and that a temporary repair with cold patch is depicted in photo Exhibits 4 through 7. Christopher also testified that prior to this incident in July 2011, he had never been called to any roadway that had been damaged in the way that this section of I-990 was on that date. He testified that it was his belief that several days of extremely warm temperatures in the area had caused thermal expansion of the concrete pavement. Christopher testified that prior to this accident, he had not received any complaints regarding I-990 (TT: 72-74).


The parties stipulated into evidence the transcript of the examination before trial of David Wetzler, the grandfather of claimant Evan Wysocki (Exhibit 15)(4) . Wetzler testified that on July 22, 2011, he was driving his motorcycle in order to take the claimant home. He testified that he was driving about 60 m.p.h. on I-990 when the motorcycle came upon a section of the highway that had buckled up. Wetzler testified that it had been hot, in the 90's, for several days and he did not see that the highway had buckled until he hit it and they were both ejected from the motorcycle. He testified that he only saw the buckling after the accident occurred when he walked back to look at the highway. Wetzler testified that the concrete was pushed up about 10 inches and that he was certain that he had hit the buckled concrete and did not drive over a pothole. He testified that the buckled pavement caused his motorcycle to go airborne before they were both ejected (EBT: 5-7). Wetzler testified that the reason he did not see the buckling pavement before striking it was because he was watching down the highway and there was a lot of traffic around him and he wasn't looking down. He stated that the location of the buckled pavement was about one mile from the French Road entrance. Wetzler testified that he had never previously seen buckled pavement on I-990 before this date (EBT 11-12).


The State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579 [1960]). The State is not, however, an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]). The claimant has the burden to show that the State either created a dangerous condition or had actual or constructive notice of the presence of a dangerous condition and then failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to constitute constructive notice, it has been held that a defect must be visible, apparent and exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Finally, the State cannot be held liable "unless its ascribed negligence is a proximate cause of the accident" (Ring v State of New York, 270 AD2d 788, 789 [3d Dept 2000]).

Applying these legal principles to the proof submitted at trial and after evaluating the exhibits received into evidence and the testimony of the witnesses and their demeanor while testifying, the Court finds that claimant has not proven negligence by a preponderance of the evidence. The Court finds that the proof at trial established that on July 22, 2011 at approximately 3:45 p.m., the motorcycle driven by Mr. Wetzler was traveling about 60 m.p.h. in the middle lane of I-990 when he came upon a damaged portion of the roadway, lost control of the motorcycle and he and claimant Evan Wysocki were ejected from the motorcycle onto the roadway and shoulder. I also find that Wetzler did not observe the damaged section before coming upon it as his attention was diverted to the vehicles in the lanes to his immediate left and right.

I further find that there was no proof at trial to establish when the damage to this section of I-990 occurred as depicted in the photo exhibits. There was testimony provided by three present and former DOT representatives, including Mr. Christopher, who was the DOT resident engineer for north Erie County at the time of the subject accident and went to the accident scene. Christopher, whose testimony I found credible, stated that he had not received any complaints regarding I-990 and in fact, had never observed damage to the roadway as he observed on that date. Neither of the other DOT representatives, Mr. Wind or Mr. Elmore, whose testimony I also found credible, were present on the day of the subject accident. Elmore testified that he had seen damage to a concrete joint on I-990 in two instances that was similar to that depicted in photo Exhibit 3 when in 2008 he was the EIC for a rehabilitation project entailing the entire length of I-990. He testified that this type of damage is caused either by thermal expansion, a joint malfunctioning or poor workmanship. There was testimony to establish that Western New York had experienced several successive days of temperatures in excess of 90 degrees; that concrete roadways can experience thermal expansion that will cause the roadway to heave, crack or break; and that thermal expansion can occur instantaneously if the joints between the concrete sections of highway do not permit sufficient expansion. The DOT witnesses, Wind, Elmore and Christopher, all agreed that the damage to I-990 depicted in the photo exhibits could very well have been the result of thermal expansion. Claimants did not offer any proof to establish that the State had constructive notice of the existence of this damaged pavement on I-990 prior to claimant's accident.

Claimants contend that Wind and Elmore's testimony that they observed similar damage to concrete joints on I-990 during the summer of 2008 establishes that the State had actual notice of the existence of a dangerous condition. Relying upon the Court of Appeals decision in Brown v State of New York, 31 NY3d 514 [2018], claimants contend that the State was aware of a dangerous highway condition in 2008 and failed to take corrective action to remedy it. The Court disagrees. Unlike the facts in Brown, claimants did not establish that a pattern of damage and/or accidents occurred on I-990 due to the existence of damaged joints. In Brown, it was undisputed that there was both a pattern of accidents at the subject intersection and that the State had failed to complete a traffic study, reduce the speed limit at that intersection or take any steps to improve safety at that intersection (Id at 520). In the present action, claimants did not establish that there was a prior accident history of a similar nature that would place the State on notice of a dangerous condition or a duty to take remedial action (Martin v State of New York, 305 AD2d 784, 785 [3d Dept 2003].

Wind and Elmore's testimony was that they had observed similar damage affecting two concrete joints at two different locations along I-990 during the summer of 2008. Elmore, the EIC on a rehabilitation project described the work as including concrete repairs, replacing joint material and diamond grinding the concrete pavement along the entire length of I-990. He testified that the joints between concrete pavement sections existed every 60 feet along I-990. Neither Wind nor Elmore testified that the failure of the concrete joints at these two locations required that DOT take any other remedial or corrective action along the entire length of I-990 apart from the work already contemplated in the rehabilitation project. Claimant did not offer any expert witness testimony to establish that the State was required to do anything more at that time other than repair the two joints that had failed or that the work performed during the 2007 and 2008 rehabilitation project was in any manner deficient or precipitated the damage that occurred in 2011. Simply put, claimant offered no proof to establish that the existence of the two joint failures observed in 2008 required that the State do anything more than repair and replace those two failed joints. The uncontested testimony of these DOT representatives was that heaving concrete from joint malfunction or failure or by thermal expansion does not occur frequently. As such, the Court finds that the two prior instances in 2008 do not establish the existence of a dangerous condition and do not constitute actual notice of the damaged concrete section involved in the subject accident or that the State otherwise failed to maintain I-990 in a reasonably safe condition prior to this accident.


Accordingly, by a preponderance of the credible evidence presented at the trial, the Court finds for the State and that claimant failed to establish negligence and as such, the State is not liable for the personal injuries of claimant Evan Wysocki or for the derivative claim of his mother, Janet Wysocki.

For all of the foregoing reasons, the claim is hereby DISMISSED in its entirety.

Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied. All objections upon which the Court reserved determination that were not previously addressed herein, are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

April 9, 2019

Buffalo, New York


Judge of the Court of Claims

2. References to claimant are to Evan Wysocki as the claim of Janet Wysocki is derivative in nature.

3. References to the trial transcript will be made with the designation "TT" and the page number(s).

4. References to the transcript of this examination before trial will be made with the designation "EBT" and the page number(s).