State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 520198 

________________________________

MATTHEW EVANS,

Appellant,

v MEMORANDUM AND ORDER

STATE OF NEW YORK,

Respondent.

________________________________

Calendar Date: June 5, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

__________

Tuttle Law Firm, Latham (James B. Tuttle of counsel), for

appellant.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M.

Arnold of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the Court of Claims (Hard, J.),

entered February 28, 2014, upon a decision of the court following

a bifurcated trial in favor of defendant on the issue of

liability.

Claimant, who was a Warren County Deputy Sheriff, was

injured on May 16, 2009 while responding to a call at

approximately 3:00 a.m. on State Route 8 in the Town of Horicon,

Warren County. It is not disputed that it had been raining

steadily throughout the evening. Claimant alleged that the

roadway washed out, creating a sinkhole that caused his car to

bottom out, launch into the air and land with such force that he

injured his back. Following a nonjury trial on the issue of

liability, the Court of Claims made certain factual findings and
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dismissed the claim, finding that defendant was entitled to

qualified immunity. Judgment was entered upon the court's

decision and claimant now appeals. 

Municipalities unquestionably have a duty to maintain roads

in a reasonably safe condition (see Friedman v State of New York,

67 NY2d 271, 283 [1986]). With respect to highway safety and

design, however, defendant is "accorded a qualified immunity from

liability arising out of a highway planning decision" (id. at

283; see Graff v State of New York, 126 AD3d 1081, 1083 [2015];

Winney v County of Saratoga, 8 AD3d 944, 945 [2004]). Here, the

gravamen of the claim is that the 9-foot-high, 15-foot-wide oval

culvert that carried the Spuytenduiveil Creek underneath Route 8

was too small and should have been replaced. Plaintiff maintains

that this condition presented a maintenance and repair issue that

defendant was required to address in its proprietary capacity for

which basic negligence and not sovereign immunity principles

apply (see Wittorf v City of New York, 23 NY3d 473, 479 [2014]). 

We disagree.

Generally, when reviewing nonjury verdicts by the Court of

Claims, we have "broad authority to independently review the

probative weight of the evidence," but we should defer to the

court's credibility determinations and factual findings (Ball v

State of New York, 106 AD3d 1248, 1249 [2013] [internal quotation

marks and citations omitted]). Here, the evidence at trial

established that the culvert was installed in approximately 1969

in accordance with the design standard that required culverts to

be built to withstand a "50 year storm," meaning the worst storm

on record in the past 50 years. Defendant's engineers inspected

the culvert periodically, beginning in at least 1994 in

accordance with an established culvert inspection program. After

these inspections, the culvert was assigned satisfactory ratings

until 2008, when defendant's engineers determined to assign it

the lowest possible rating that a functioning culvert could

receive. 

It is not disputed that, despite the satisfactory ratings,

the road around the culvert on Route 8 washed out at least four

times before 2006. Testimony by defendant's engineers confirmed

that each time the road and fill washed away, the culvert
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remained structurally intact. When the road washed out in 2004,

defendant's engineers went to the scene and determined to repair

the road, but not to replace or redesign the culvert. The

completed repairs were significant and involved not only

rebuilding and repaving the road, but also fortifying the

embankments around the culvert. Similarly, after the 2006

washout, a Department of Transportation (hereinafter DOT)

engineer requested an emergency road repair contract and, at the

same time, also recommended that the culvert, which was described

as undersized, be placed on the "program for replacement." 

Testimony by the DOT engineer confirmed that the culvert was, in

fact, placed on the list in accordance with this recommendation. 

DOT's regional director, Thomas Werner, testified that the

replacement of the culvert would require a "new analysis"

incorporating current design standards and qualified as a capital

project addressed in a separate capital program. He explained

that the capital program replacement list was a compilation of

"all of the [highway] needs in the region" that "would be looked

at in terms of . . . all of the bridge needs, highway needs,

[and] the available money . . . [to determine] whether or not

[something] should . . . be replaced." He further explained that

the list was discussed monthly with a committee of engineers, and

requests were prioritized against the available budget. While he

could not recall specifics with regard to the culvert, he

recalled that there were hundreds of culverts in the region, and

that there were "dozens, if not hundreds[,] of these situations

going on all the time in the region" with "dozens of requests

going on at any particular time." He recalled that, in general,

once a repair request was granted, it would be scheduled for

completion within five to seven years. Werner confirmed that the

Route 8 culvert was replaced in 2010. 

In order to successfully invoke the qualified immunity

defense, defendant had the burden of demonstrating that its

decision with regard to the replacement of the culvert "'was the

product of a deliberative decision-making process'" (Matter of

Estate of Hamzavi v State of New York, 43 AD3d 1430, 1431 [2007],

quoting Appelbaum v County of Sullivan, 222 AD2d 987, 989

[1995]). Even with design planning issues, liability may exist

where the municipality does not adequately analyze the condition

or if there is no reasonable basis for its plan (see Friedman v
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State of New York, 67 NY2d at 284; Winney v County of Saratoga, 8

AD3d at 945). If a remedial plan is developed, "liability may

result from a failure to effectuate the plan within a reasonable

period of time," but "a reasonable delay justified by design

considerations [or] a legitimate claim of funding priorities

would not be actionable" (Friedman v State of New York, 67 NY2d

at 286-287; see Graff v State of New York, 126 AD3d at 1083).

Based upon our review of the probative evidence, we agree

with the Court of Claims that the replacement of the culvert

presented a design and not a maintenance issue and that defendant

was entitled to qualified immunity. While Werner could not

specifically recall defendant's plan for the Route 8 culvert, the

evidence was clear that, when faced with road damage, defendant's

engineers determined that the appropriate plan was to first

repair and reopen the road. In 2006, the plan to replace the

culvert was included on the list of capital projects for

consideration. In addressing this response, we may neither

substitute our judgment for that exercised by defendant's expert

engineers, nor can we view their determinations with the benefit

of hindsight (see Friedman v State of New York, 67 NY2d at 286). 

In our view, the evidence supports the Court of Claims'

assessment that the timing of the replacement was due to

legitimate funding priorities and, thus, the delay in ultimately

replacing the culvert was not unreasonable. Accordingly, we find

that, because defendant's plan was deliberative and adequate, the

Court of Claims properly dismissed the claim based on defendant's

qualified immunity (see Smythe v Woods, 41 AD3d 1130, 1131-1132

[2007]).

McCarthy, J.P., Egan Jr. and Devine, JJ., concur.
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ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court