Frechette v. State

129 A.D.3d 1409, 13 N.Y.S.3d 266

This text of 129 A.D.3d 1409 (Frechette v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frechette v. State, 129 A.D.3d 1409, 13 N.Y.S.3d 266 (N.Y. Ct. App. 2015).

Opinion

Garry, J.

Appeal from an order of the Court of Claims (Ferreira, J.), entered October 31, 2013, which granted defendant’s motion for summary judgment dismissing the claim.

On February 24, 2007, Stacey L. Frechette (hereinafter decedent) was killed when the vehicle she was operating passed through a patch of windblown snow on a stretch of State Route 9 in the Town of Beekmantown, Clinton County. Decedent’s vehicle spun out of control and crossed into the southbound lane where it was struck on the passenger side by an oncoming pick-up truck. Thereafter, claimant, the administrator of decedent’s estate, brought this action alleging that defendant was negligent in, among other things, failing to warn motorists of the danger of windblown snow or to take reasonable measures to prevent it from accumulating on the roadway. Following discovery, defendant moved for summary judgment dismissing the claim, which the court granted. Claimant appeals.

Claimant argues that the Court of Claims erred in relying on the storm in progress doctrine in granting defendant’s motion for summary judgment. This doctrine provides a landowner with a reasonable period of time following the cessation of a storm in which to remediate dangerous conditions that have resulted (see Edick v General Elec. Co., 98 AD3d 1217, 1220 [2012]). Here, defendant advances the novel argument that the defense — customarily applied in cases involving frozen precipitation — is equally applicable to windblown snow that has accumulated on a public highway during periods of high winds. This Court has not previously addressed whether the storm in progress doctrine may be applied to hazards created solely by wind, nor whether it may be invoked by defendant to modify its “nondelegable duty to maintain its roadways in a reasonably safe condition” (Harjes v State of New York, 71 AD3d 1278, 1279 [2010]). Instead, it is a matter of established law that “[t]he pertinent inquiry is whether [defendant] exercised reasonable diligence in maintaining [the roadway] under the prevailing circumstances” (Freund v State of New York, 137 AD2d 908, 909 [1988], lv denied 72 NY2d 802 [1988]; see Barrett v State of New York, 13 AD3d 775, 776 [2004]; but see Mazzella v City of New York, 72 AD3d 755, 756 [2010]). Applying this analysis, ongoing adverse conditions do not excuse defendant from its duty to remediate dangerous conditions, but are relevant to the inquiry as to whether it exercised reasonable diligence in doing so (see e.g. Freund v State of New York, 137 AD2d at 910). Here, defendant submitted evidence showing [1411]*1411that the snow plow operator assigned to the roadway had made 12 passes through the area in the hours leading up to the accident in an attempt to clear the roadway of windblown snow, with the last pass occurring approximately 30 minutes prior to the accident. Claimant argues that, notwithstanding defendant’s “herculean efforts” on the morning of the accident, defendant had received notice of the dangerous recurrent hazard of windblown snow on the roadway well before that date, but nonetheless failed to take reasonable measures to remedy the hazard or warn motorists of the danger.

Defendant may be held liable in negligence where it “failed to diligently remedy [a] dangerous condition [ ] once it was provided with actual or constructive notice or [where] it did not correct or warn of a recurrent dangerous condition of which it had notice” (Harjes v State of New York, 71 AD3d at 1279 [internal quotation marks and citation omitted]; see Hart v State of New York, 43 AD3d 524, 525 [2007]). “Once [defendant] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” (Friedman v State of New York, 67 NY2d 271, 284 [1986] [citations omitted]). With respect to defendant’s notice of the hazardous condition, the evidence showed that in the 10 years preceding the accident, defendant’s agents were contacted on several occasions regarding concerns about the safety of Route 9 in the vicinity of the accident. In 1997, the State Police contacted the Department of Transportation (hereinafter DOT) to advise it of concerns regarding the formation of black ice near the scene of the accident. Additionally, in response to a 1999 resolution passed by the Town of Beekmantown, the Beekmantown Town Supervisor sent a letter to DOT requesting that a hill near the accident scene be reconstructed to improve roadway safety in light of the fact that “[t]here ha[d] been several accidents in that vicinity.” Claimant further points to the history of snow and ice-related accidents in the vicinity of the crash site as sufficing to provide defendant with constructive notice of a recurrent dangerous condition. The evidence revealed that there had been at least 10 reported accidents along the subject stretch of Route 9 caused by wintry conditions in the 11 years preceding decedent’s accident. We agree with defendant that, although this evidence may have established its “general awareness” of hazardous winter conditions on Route 9, it would be, in itself, insufficient to demonstrate notice of the specific hazard of windblown snow (Hart v State of New York, 43 AD3d at 525; see Barrett v State of New York, 13 AD3d at 776).

However, in addition, claimant submitted the testimony of [1412]*1412two DOT supervisors and the snow plow operator assigned to the subject roadway. All three testified that the area was prone to windblown snow prior to decedent’s accident. Most notably, the snow plow operator stated that the problem of windblown snow on the roadway occurred “[e]very time the wind blows, it’s in the same spot every year.” Claimant also submitted an affidavit from the mother of a child who was killed in a 1997 accident at the same location on Route 9 where decedent’s accident occurred. The mother averred that she met with DOT officials in 2003 regarding her concerns about the subject roadway and that she had suggested, among other things, “putting up snow fences to prevent drifting of snow onto the roadway in question” and “[ejnsuring that salt and/or sand was available ... as it was an area that was known for its propensity for icy, snowy, drifting and blowing snow conditions.” One DOT official present at this meeting testified that he knew that the mother wanted to share her concerns about the safety of the roadway, but viewed the meeting as being intended to provide the mother with some comfort. The other official present similarly testified that he “viewed [the meeting] as an airing for the parents.” Notably, neither of the officials disputed the mother’s sworn statement that she had raised concerns about the hazard posed by windblown snow at the site or that she had suggested that snow fences be considered. Upon review, we conclude that this evidence was sufficient to present factual issues as to defendant’s notice of the dangerous recurring condition of windblown snow at the site of the accident (see Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 672 [1999]; Slaughter v State of New York, 238 AD2d 770, 771-772 [1997]).

We further hold that, viewing the evidence in the light most favorable to claimant, an issue of fact exists with respect to whether defendant’s actions in seeking to remedy the recurring hazard of windblown snow by relying solely on plowing were reasonable.

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Related

Ernest v. Red Creek Central School District
717 N.E.2d 690 (New York Court of Appeals, 1999)
Friedman v. State of New York
493 N.E.2d 893 (New York Court of Appeals, 1986)
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124 A.D.3d 975 (Appellate Division of the Supreme Court of New York, 2015)
Turturro v. City of New York
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Weiss v. Fote
167 N.E.2d 63 (New York Court of Appeals, 1960)
Parochial Bus Systems, Inc. v. Board of Education
458 N.E.2d 1241 (New York Court of Appeals, 1983)
Winney v. County of Saratoga
8 A.D.3d 944 (Appellate Division of the Supreme Court of New York, 2004)
Barrett v. State
13 A.D.3d 775 (Appellate Division of the Supreme Court of New York, 2004)
Hart v. State
43 A.D.3d 524 (Appellate Division of the Supreme Court of New York, 2007)
Harjes v. State
71 A.D.3d 1278 (Appellate Division of the Supreme Court of New York, 2010)
Mazzella v. City of New York
72 A.D.3d 755 (Appellate Division of the Supreme Court of New York, 2010)
Freund v. State
137 A.D.2d 908 (Appellate Division of the Supreme Court of New York, 1988)
Slaughter v. State
238 A.D.2d 770 (Appellate Division of the Supreme Court of New York, 1997)
Martin v. State
305 A.D.2d 784 (Appellate Division of the Supreme Court of New York, 2003)

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Bluebook (online)
129 A.D.3d 1409, 13 N.Y.S.3d 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frechette-v-state-nyappdiv-2015.