Awad v County of Onondaga

[*1] Awad v County of Onondaga 2006 NY Slip Op 52638(U) [21 Misc 3d 1115(A)] Decided on January 17, 2006 Supreme Court, Onondaga County Carni, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 17, 2006
Supreme Court, Onondaga County

Maureen T. Awad, Individually and as Administratrix of the ESTATE OF ALFRED J. AWAD, JR., Plaintiff,

against

The County of Onondaga, Defendants.



03-6496



Appearances:

For the Plaintiffs:

Anthony F. Endieveri, Esq.

For Defendant:

Onondaga County Attorney's Office

By: Carol L. Rhinehart, Esq. of Counsel

Edward D. Carni, J.

INTRODUCTION

Defendant County of Onondaga moves for summary judgment pursuant to CPLR § 3212 seeking an order dismissing plaintiff's complaint on the grounds that the County did not receive prior written notice of the existence of the allegedly dangerous snow and ice highway condition on the County highway at issue. Alternatively, the County argues that it is entitled to qualified immunity under the Weiss v Fote doctrine (7 NY2d 579).

FACTS

Plaintiff's decedent, Alfred J. Awad, Jr., sustained fatal injuries on December 6, 2002 when he lost control of his 1998 Toyota Camry automobile and collided with a vehicle driven by another motorist on Newport Road in the Town of Camillus, County of Onondaga. Plaintiff's Complaint and Verified Bill of Particulars allege that the County was negligent in that it failed to [*2]maintain Newport Road in a reasonable and safe condition for persons traveling thereon, caused and permitted Newport Road to become and remain slippery and dangerous and failed to warn persons driving on the road of the allegedly dangerous condition.

The motor vehicle accident occurred at approximately 7:55 a.m. on the morning of December 6, 2002. That morning, the temperature was approximately 23 degrees Fahrenheit at the time of the accident. According to the County, Newport Road had been plowed that morning between 5:15 a.m. and 5:45 a.m. and salt was spread at the rate of 325 pounds per mile. Again, according to the County representatives, Newport Road was again plowed and salted less than one (1) hour prior to the accident. The County submits the deposition testimony of Wayne Recore, the Section No.3 Crew Leader for the County Highway Department who states that when he arrived at the scene after the accident, he observed slush and bare pavement and that the pavement was not slippery.

In opposition, plaintiff submits the statements from numerous emergency and rescue personnel all of whom attest to the extremely slippery conditions of Newport Road upon their arrival at the accident scene. A number of these witnesses indicate they did not observe any salt or snow on the road surface and at least one described it as a "skating rink". Plaintiff also submits the affidavit from a qualified registered professional engineer (Thomas R. Fries, P.E.) who in essence opines that Onondaga County's lack of maintenance was responsible for the slippery, snowy, icy and dangerous condition on Newport Road where the motor vehicle accident and fatality occurred on December 6, 2002.

Mr. Fries also opines that the amount of salt per mile and sanding material that were allegedly applied by the County to Newport Road should have been effective and if this material was in fact applied as alleged by the County, the roadway would not have been so slippery or icy. In other words, Mr. Fries opines that the County of Onondaga could not have applied the quantity of salt and sand it claims to have applied prior to the accident at issue.

Legal Analysis

1. The County's Qualified Immunity Claim

It is well settled that a municipality is accorded a qualified immunity from liability arising out of a highway planning decision (Drake v County of Herkimer, 15 AD3d 834 [4th Dept 2005], citing Weiss v Fote, 7 NY2d 579, 585-586 [1960]). Immunity from liability in the summary judgment context is derived from proof that the municipality carried out a duly executed highway safety plan which evolved with adequate study and a reasonable basis (Drake, 15 AD3d at 834-835). Such immunity is limited to the field of traffic design engineering (Id. At 834).

Here, the accident involved snow and ice removal and the routine maintenance of a county highway. Traffic engineering and design is not involved at all in this claim. As such, the qualified immunity doctrine does not apply to this action. Accordingly, the County's motion for [*3]summary judgment on the grounds of qualified immunity is denied in its entirety.

2. The County's Prior Written Notice Defense

Onondaga County has enacted a local law (Local Law No. 1 of 1984) which requires the filing with the Clerk of the County Legislature written notice of highway defects prior to the commencement of a civil action arising out of such defect. Insofar as snow and ice conditions are concerned, the County's local law provides as follows:

"... no such action shall be maintained for damages or injuries to

person or property sustained solely in consequence of the existence

of snow or ice upon any highway, bridge, sidewalk or culvert, unless

actual notice (as defined in Section 4 herein) was given to the

County Commissioner/Deputy Commissioner of Transportation,

Division of Highways or unless written notice thereof, specifying

the particular place, was actually given to the Clerk of the County

Legislature or the County Commissioner/Deputy Commissioner

of Transportation, Division of Highways, and there was a failure

or neglect to cause such snow or ice to be removed, or to make

the place otherwise reasonably safe within a reasonable time

after the receipt of such notice." (Emphasis supplied).

Section 4 of the local law defines "actual notice" as occurring when:

"... it is established that the County Commissioner/Deputy

Commissioner, Division of Highways, has actual personal

knowledge of the specific defective condition of a highway

prior to damage or injury and adequate time to correct such

condition." (Emphasis supplied).

Here, there is no dispute that the County of Onondaga did not receive prior written notice of this allegedly dangerous condition.

It is also well-settled that insofar as the Highway Law is concerned, actual or constructive notice cannot substitute for written notice where, as here, the conditions of the highway involved snow or ice (See, Pischione v County of Oneida, 159 AD2d 982 [4th Dept 1990]). Here however, the County of Onondaga has enacted a local law pursuant to the Highway Law (See, Highway Law § 139[2]) that allows for actual notice, under very specific and limited conditions, to serve as an exception to the prior written notice requirement in a snow and ice situation.

It is well settled that the Municipal Home Rule Law authorizes local governments to enact local laws relating to municipal property, affairs or government so long as the enactments are not inconsistent with the Constitution or any general law (See, Municipal Home Rule Law § [*4]10 [1]; Bacon v Arden, 244 AD2d 940 [4th Dept 1997]). Here, Onondaga County Local Law No. 1 of 1984 is not inconsistent with Highway Law § 139 [2] in that it provides an exception in favor of claimants not otherwise provided for in Highway Law § 139. The actual notice exception to written notice in Local Law No.1 of 1984 is less restrictive than the provisions of the Highway Law § 139 [2] which do not provide for any actual notice exception to the prior written notice requirement in a highway snow and ice claim against a County (See, Highway Law § 139 [2]). [FN1]

Plaintiff argues that the County received actual notice of the slippery condition through its snowplow operators who drove over the area in question between 5:15 and 5:45 a.m. and again at 7:15 a.m. that morning. [FN2] Plaintiff also points to the testimony of Section #3 Crew Leader, Wayne Recore, in an attempt to establish that Mr. Recore conducted inspections of Newport Road on December 5th and 6th and that those inspections should have resulted in discovery and actual notice of the alleged defective condition.

The court finds that there is an issue of fact as to whether Newport Road was in such a slippery condition due to the snow and ice as to render it dangerous and defective.

However, the threshold material issue for the court is whether plaintiff has produced sufficient evidence to overcome the prior written notice requirement through actual notice of the alleged defect to the appropriate persons or county officers under Local Law No. 1 of 1984 (See, defendant's moving papers at Exhibit E). Those specific individuals are the "County Commissioner/Deputy Commissioner, Division of Highways".

There is no evidence in this record that the County Commissioner or Deputy Commissioner of the Division of Highways had "actual personal [*5]knowledge" (See, Local Law No. 1 of 1984, Section 4) of the existence of the alleged dangerous conditions at any time prior to the accident at issue. In this court's view, the requirement of "actual personal knowledge" by the Commissioner or Deputy Commissioner is not satisfied by imputation of knowledge alleged to have been possessed by other employees of the Highway Department. (Emphasis supplied).

Accordingly, plaintiff's have failed to raise a triable issue of fact on the question of whether the County of Onondaga received actual notice of the alleged dangerous snow and ice conditions as an exception to the prior written notice requirement.

Accordingly, defendant's motion is granted and plaintiff's complaint is dismissed in its entirety.

This constitutes the decision of the court. Counsel for defendant Onondaga County to submit proposed order on notice.

ENTER

DATED: January 17, 2006__________________________

HON. EDWARD D. CARNI, JSC Footnotes

Footnote 1: Highway Law § 139 [2] specifically authorizes the enactment of local laws to allow for constructive notice in the case of highways that are "defective, out of repair, unsafe, dangerous or obstructed" and such "condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence." However, allegedly dangerous snow and ice conditions on highways are treated differently in Highway Law § 139 [2] and the statute excludes constructive notice as an exception to the written notice requirement in snow and ice actions.

Footnote 2: Neither one of the County Highway Department employees was the "County Commissioner/Deputy Commissioner of Transportation, Division of Highways" as delineated under Local Law No. 1 of 1984.