Bursese v State of New York

Annotate this Case
[*1] Bursese v State of New York 2012 NY Slip Op 52452(U) Decided on December 4, 2012 Ct Cl Bruening, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2012
Ct Cl

Jeri L. Bursese and Samuel Bursese, Claimants,

against

The State of New York, Defendant.



117556



For Claimants:

MARTIN, HARDING & MAZZOTTI, LLP

By: Rosemarie Riddell Bogdan, Esq.

For Defendant:

HON. ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

By: G. Lawrence Dillon, Esq.

Assistant Attorney General

Glen T. Bruening, J.



Claimant,[FN1] Jeri L. Bursese, fell from her bicycle immediately after riding over a grate atop a storm drain in the southbound shoulder of Route 30A approximately 265 feet north of the intersection Route 30A makes with Route 67, in the City of Johnstown, Fulton County. Her fall sent her and her bicycle into the vehicular travel lane where she was run over by a tractor trailer. Claimant seeks to recover damages for personal injuries she sustained and alleges that the accident was caused by Defendant's negligence in maintaining the grate, specifically by positioning the grate in a manner that caused the grate to trap her bicycle's tire. The case was bifurcated and the evidentiary trial on the liability phase was held over three consecutive days. A total of 9 witnesses testified, a total of 63 exhibits were admitted into evidence, and post trial submissions were received. Claimant testified on her own behalf and offered the testimony of [*2]two expert witnesses and five employees of the New York State Department of Transportation ("DOT"), while Defendant called the agency's former Regional Transportation Maintenance Engineer to testify.

Claimant's Accident. On the day of the accident, Claimant rode her bicycle to work at Romano's Restaurant on North Comrie Avenue in Johnstown. She frequently commuted to work from her home in Fort Hunter for approximately five weeks throughout the summer, weather permitting. She rode her Nishiki, 10-speed, road touring bicycle that she had owned for approximately 20 years. An experienced cyclist, the commute took Claimant approximately 30 minutes over eight miles of roads familiar to her as a result of living in the area all her life. On any given day, she might take one route to work and a different route home, and such was the case on August 20, 2008. At the end of her shift at work that day at approximately 3:00 P.M., she called her husband and advised him that she was about to start her ride home.

Upon leaving the restaurant, the weather conditions were clear and dry, and Claimant headed south on State Route 30A,[FN2] a route she had traveled many times before. In this area, Route 30A consists of one paved travel lane northbound and another southbound, not counting turning lanes at intersections, with painted yellow lines dividing the opposing travel lanes. Each of the two main travel lanes has a paved shoulder to the right of the lane with a painted white line that demarcates the travel lane from the shoulder. Claimant was riding southbound on the shoulder of the southbound lane as she approached the intersection Route 30A made with State Route 67.[FN3] Here, the shoulder of Route 30A narrows to only 24-28 inches, and a six-inch high curb borders the right edge of the shoulder. The yellow dividing line is approximately 11 feet from the curb at this point. Immediately to the right of the curb is a six-foot wide strip of grass and then a five-foot wide sidewalk, both running parallel to the highway. Seeing the traffic light red at the intersection ahead of her, Claimant began to slow her speed in anticipation of stopping for the red light before continuing on Route 30A through the intersection. She knew that one of the many storm drain grates on her route was immediately ahead of her, and that it spanned the entire width of the narrowed shoulder.

Claimant testified that she has bicycled all her life and twice rode the bicycle leg of a team triathlon. She tries to avoid riding over storm grates and other bumps whenever safe to do so. Further north on Route 30A, for example, the shoulder is considerably wider, allowing her to ride easily around the grates in that area while remaining in the shoulder. Although she had ridden over grates "many times" before (Transcript at 31),[FN4] she had been able to avoid traveling [*3]over this particular grate all summer. Seeing that she would have to leave the shoulder for the main travel lane to again ride around and avoid the grate this day, Claimant looked to her left to see if the travel lane was clear for her to move into, but she observed a congestion of vehicles in the travel lane and concluded it was not safe to ride there. With traffic to her left and the curb to her right, Claimant prepared to travel over this storm grate for the first time.

She could see that the grate was depressed from the surface of the road, so she braced herself for the bumps and lifted her "butt out of [her] seat as you do when you go over a bump" (Transcript at 32). Claimant testified that she did not attempt to stop before the grate because, although she knew it would be an "unpleasant" bump, she "didn't think it was a big deal" (Transcript at 45). Claimant testified that she believed that she could not have stopped safely. As she went down into the middle of the grate, she "felt a series of ba-bump, ba-bump"[FN5] and was unable to steer her bicycle. Her bicycle moved erratically and slowed down. As she came out of the grate, she was unable to regain control, fell to her left into the travel lane and was run over by the rear wheels of an 18-wheeled tractor trailer.[FN6]

The deposition statement of an eyewitness to the accident who did not testify at trial, admitted into evidence upon stipulation, reads, in pertinent part:

I saw a lady riding along the road in front of me and she was along side of a wal-mart tractor and trailer. The tractor and trailer was stopped for a red light and he just started to accelerate and the lady was riding slowly beside the truck. The lady was going slowly and she hit a storm drain and she started to wobble and then she looked like she was starting to catch herself but she never did and she just tipped over and fell under the back tires of the trailer of the Wal-mart truck. . . .

(Claimant' Exhibit 57).

The cast iron storm grate involved in the accident is the top part of a storm drainage control device known as a "catch basin" (Transcript at 63). The grate itself is circular, slotted, and weighs roughly 250 pounds. The narrow rectangular slots in the grate that allow water to drop below measure approximately one and one-half inches wide by four inches long. It fits snugly into a circular cutout in a cast iron frame that measures roughly 28 inches square and weighs 300 pounds. Once placed, vehicular traffic is insufficient to move the grate. The grate in its frame sits on top of a concrete box in the ground under the highway. Storm water flowing on the highway and over the grate falls through the slots in the grate and into the concrete box below, also known as a "sump" (Transcript at 62). The catch basin also contains a cast iron curb box that sticks up above the frame and is integrated into the concrete curb, making what is referred to as a "curb inlet" (Transcript at 86). This curb inlet is open to the highway allowing any water that is not captured by the grate but reaches the curb to drop down to the sump. A pipe located about 18 inches above the bottom of the sump conveys water out of the sump and away from the highway, leaving behind whatever debris fall to the bottom. [*4]

The slotted grate spans the entire highway shoulder and the frame extends a few inches beyond the shoulder into the white line of the travel lane. To facilitate drainage, the grate itself is slightly concave so that the center of the grate is one inch below the outside edge of the grate. However, the edge of the grate is not level with the road, but rather depressed below the road surface approximately one and one-half inches as a consequence of a new layer of pavement that was put down without raising the catch basin. Consequently, the entire drop from the road surface to the top center of the grate measures two and one-half inches.

The catch basins require periodic cleaning to remove debris that might otherwise build up in the sump and obstruct the flow of draining water. The DOT publishes Highway Maintenance Guidelines to inform and guide staff in their maintenance duties. At the time of the accident, DOT staff was using a 1972 publication of the guidelines, updated through April 1995 (Claimant's Exhibit 42). The agency distributed the guidelines to its Regional Transportation Maintenance Engineers under cover memorandum from the Transportation Maintenance Division dated February 29, 2000. The third section of the Highway Maintenance Guidelines is entitled "Roadside and Drainage Maintenance" and includes guidelines for the maintenance of pipe culverts, catch basins, manholes, drop inlets, and french drains. Sections 3.432, 3.433 and 3.434 provide, in relevant part:

3.432 Inspection: A thorough inspection should be made each spring after the snow and ice season has ended and after each heavy rainfall. Check C.B.'s [catch basins], M.H.'s [manholes], and D.I.'s [drop inlets] to determine structural repair work necessary. Frames and grates should be properly seated and sumps which need cleaning should be noted for scheduled cleaning . . .

3.433 Method: All castings should be seated properly . . . The sumps for structures should be cleaned to maintain storage so that silt, sand, and stones will not be washed into pipes causing possible plugging . . .

3.434 Standard: To maintain drainage structures in a safe structural condition and to efficiently carry runoff away from traffic areas. All drainage facilities should be maintained so that there is structural soundness and each facility should be clean to allow free flow of water . . . Sumps are to be cleaned when 50% filled to allow a free and efficient flow with adequate storage for debris.

(Claimant's Exhibit 42, Highway Maintenance Guidelines, page 3-10 [underline added for emphasis]).

Maintenance of Route 30A is the responsibility of DOT's Region 2 and is assigned to a subdivision of the Region referred to as the Fulton/Montgomery Residency, which includes approximately 750 lane miles of highway. On July 7, 2008 a DOT maintenance crew was assigned to clean all the catch basins on both sides of Route 30A between Route 67 and Route 29. The three-person crew would drive up to each catch basin with the regional vacuum truck, known as "catch vac truck," pry the grate out of its frame with a six-foot crowbar, lower the vacuum line into the catch basin and vacuum out any material in the sump (Transcript at 211). Once the sump was clean, they would place the grate back into the frame. Each member of the crew testified that they performed this work on the grate involved in this case, but none could recall which member of the crew did which task on this grate, as they frequently switched tasks during the day. [*5]

The construction of this section of Route 30A was completed in 1955 pursuant to plans prepared in 1953. According to Paul Obernesser, P.E., who was the Regional Transportation Maintenance Engineer and Director of Operations for the DOT Regional Office with responsibility for Route 30A at the time of the accident, the highway

was built as an arterial highway to bypass downtown Johnstown and Gloversville. Since that time the geometrics of the highway have remained basically the same. The curb lines and so on have stayed consistent. There's been time periods where it's been overlayed with asphalt, then it was milled and overlayed with asphalt. And most recently, it was a single course overlay on top of the existing surface.

(Transcript at 346). Mr. Obernesser, a licensed engineer and graduate of Clarkson University in 1977 with a Bachelor of Science in Civil and Environmental Engineering, retired from DOT in 2010 after 33 years of service in various roles starting as a Junior Engineer. His responsibilities over time included "highway design, structures design, highway maintenance, structural maintenance, construction engineer, traffic engineer" (Transcript at 340), until assuming his role as DOT Region 2 Regional Transportation Maintenance Engineer and Director of Operations. In the latter capacity he was responsible for administering the Region's budget for maintenance operations, and for assisting in the development of the Region's capital program. Mr. Obernesser testified that his predecessor had, at one point, over 600 employees, whereas when Mr. Obernesser retired in 2010, he had under 300. These extensive staff reductions over time meant that "instead of doing preventative maintenance, which half of our workforce used to do, we were doing basically all demand maintenance" (Transcript at 344). As a result, DOT maintenance staff was unable to comply with the maintenance guidelines calling for inspections of catch basins annually each spring and after heavy rainfall. Because his region had only one vacuum truck, they did not "get around to every catch basin every year" (Transcript at 349).

The 1953 construction plans for this portion of Route 30A includes a detail sheet that depicts the components and dimensions of the catch basin involved in this case (Claimant's Exhibits 16 and 17). The detail sheet contains multiple diagrams of the components of the catch basin, and one of the diagrams is a "plan view" diagram of the top of the catch basin (Transcript at 353). This diagram depicts the grate in its frame as one would look upon it from above, and the diagram includes a curb inlet on the right-hand side of the catch basin. This curb inlet would be set into and become part of the curb on the right-hand side of the shoulder. Consequently, the catch basin depicted in the detail sheet is in the same position relative to the curb as the catch basin involved in the accident. Moreover, the detail sheet depicts the grate with the four-inch dimension (length) of the slots perpendicular to the curb, and the one and one-half inch dimension (width) of the slot parallel to the curb. In this orientation, a bicycle tire crossing the grate would ride over the shorter of the two dimensions of the gap in the grate. However, the grate involved in the accident was positioned so that the slots were running in the opposite direction, that is, as if the grate in the diagram was turned 90 degrees clockwise (or counter-clockwise). In this orientation, a bicycle tire crossing the grate would ride over the longer of the two dimensions of the gap (Claimant's Exhibit 1).

The edge of the grate was originally set about one-half inch below the top of the original highway pavement. On the date of the accident, however, it was depressed an additional one [*6]inch below the surface of the pavement because a one-inch layer of new pavement was placed on top of existing pavement in 1971, and the grate and frame were not raised to restore its one-half inch proximity to the top of the pavement as originally designed and constructed.[FN7] This created a bump across the entire width of the shoulder. Moreover, on the date of the accident, this area of pavement around the grate was deteriorating such that there was a roughness, also called "raveling" (Transcript at 352 and 372). Despite the conditions, Mr. Obernesser testified that he was not aware of any prior accidents at this location, although he conceded that accident records from the period from 1955 to 1987 were not searchable, however.

Claimant's first expert witness, Mr. Conrad Hoffman, is a licensed professional engineer and licensed land surveyor in New York State with over 50 years of work experience as a civil engineer. He earned his Bachelor of Civil Engineering from Rensselaer Polytechnic Institute (RPI) and after college worked for two years as a post engineer with the U.S. Army Corps of Engineers. For two years he served as the City Engineer for Troy, for 20 as the City Engineer for Mechanicville, and for 10 as the Town Engineer for Stillwater. Mr. Hoffman also engaged in private practice where he served as a consulting engineer for a number of municipalities. Throughout his career he has been responsible for highway design and maintenance, in addition to other infrastructure, and has had his submitted highway designs approved by the DOT. In these various positions he has been responsible for the design and installation of hundreds of catch basins.

Mr. Hoffman testified that he reviewed the police report, accident scene photographs, witness deposition, design drawings, work reports and other materials provided through discovery. On September 11, 2008, he conducted an investigation of his own at the accident scene which included taking measurements of and around the catch basin. Mr. Hoffman noted that the catch basin with curb inlet at the scene bears the name of its maker, "Utica Steam Engine & Boiler Wks" (Claimant's Exhibit 35), and is referred to in a textbook of his from his studies at RPI as the "Utica grate" (Transcript at 64 and 85).

The DOT periodically creates a photographic record of the highways under its supervision. Mr. Hoffman obtained from the agency two photographs of the grate and curb inlet that were taken by DOT on August 9, 2005. According to Mr. Hoffman, the 2005 photographs show the grate oriented, and depressed below grade level to roughly the same point, as when he inspected it shortly after the accident. These photographs also show that the surface of the highway near and around the grate had been repaired by filling with tar cracks that formed in and around the area of the depression in which the catch basin is situated. Mr. Hoffman also testified that the police photographs taken at the accident scene depict the grate in the same position as the day he inspected it, and also depicted the area around the grate depressed to the same extent as the day he inspected it.

As a result of his investigation, Mr. Hoffman noted that, given the size of the grate spanning the entire shoulder, Claimant "had no choice but to drive over the drainage grate" [*7](Transcript at 59). During his inspection of the bicycle, he measured the tire width with a micrometer and determined that the maximum width of the tire was "a few thousandths over" one inch (Transcript at 73). He opined that the rectangular slots in the grate "were aligned in the wrong direction" because the four inch long slots running parallel with the highway, rather than perpendicular to the highway, could trap the tire of a road-touring bicycle like Claimant's (Transcript at 59). Mr. Hoffman explained that as Claimant reached the grate, the first thing she encountered is the drop of her bicycle into the two and one-half inch depression, and that this created a "dangerous - - hazardous situation where the tire would enter into one of these slots, and during that movement, that millisecond or that second or however long it would take [to ride out of the slot], she would not have control of that front tire, which she normally would have. The control now is being taken over by the confinement of the tire in the slots" (Transcript at 73-74).

Mr. Hoffman testified that this hazard to bicycles has been known in the practice of civil engineering not only for the 53 years since he graduated from RPI, but possibly "back close to 100 years" (Transcript at 102). For example, he noted that his college textbook, dated 1949, depicts the Utica grate oriented in the same direction as the grate is oriented on the construction plans for Route 30A, which he contends is safe to bicyclists. In his opinion, the engineer responsible for the construction plans purposefully drew the grate in the orientation depicted in the detail sheet, with the length of the lots running perpendicular to the curb, so that it would allow sufficient water flow without trapping a bicycle tire. He believes that the concave shape of the grate is further support for his opinion because it was known that the bicycle-safe orientation of the grate in this location in the highway reduces efficiency in capturing water, and the concave shape would enhance water capture. In contrast, the concave shape would have been unnecessary if the slots ran parallel to the curb. Furthermore, he testified that the construction plan detail sheet does not include engineering notes to explain how the grate is to be oriented in its frame because engineering "notes are meant to explain in words what doesn't fit properly on the drawing," and here the drawing is very specific in showing how the grate is to be positioned (Transcript at 131). Moreover, Mr. Hoffman testified that it is proper engineering practice to follow the construction plans as drawn when building and maintaining the highway, and that Defendant had not maintained the orientation of the grate as required by the construction plans. Accordingly, Mr. Hoffman opined, with a reasonable degree of engineering certainty, that the position of the grate on the day of the accident was neither "bicycle safe" nor "in a reasonably safe condition," but rather "posed a hazard to bicyclist[s]" because the slots were oriented parallel to the direction of travel and could trap a bicycle tire (Transcript at 90 and 109). Conversely, he believes that "if it was positioned properly with the slots running perpendicular to the curb face, that it would have been bicycle safe" (Transcript at 102-103). He further opined with a reasonable degree of engineering certainty that the asphalt around the grate was also not in a "reasonably safe condition" because it had "a sheer drop off of one and a half inches right at the edge of the catch basin frame," and an additional one-inch drop to the top of the center of the grate, and this condition compounded the danger of the grate itself (Transcript at 110). Mr. Hoffman was also of the opinion that DOT staff did not comply with Section 3.432 of the Highway Maintenance Guidelines, discussed above, because the grate was not aligned properly [*8]and therefore not seated properly.[FN8] Finally, he expressed an opinion with a reasonable degree of engineering certainty that "the catch basin as it existed on the time of the accident with the grate oriented in the position that it was, was a substantial factor in causing Mrs. Bursese to lose her balance when bicycling" (Transcript at 111).

In contrast, Mr. Obernesser testified that, while the construction plan detail sheet indeed depicted the slotted grate in a specific orientation, and the grate involved in the accident was "not in conformance with the plan as drawn" (Transcript at 371), in his opinion, such depiction did not require that the grate be installed in any specific orientation. In his opinion, if a specific orientation was critical, either an engineering note would have explained that on the detail sheet, or the grate and frame would have been designed with "a notch in it so it only could set one way" (Transcript at 357). When asked by Defendant's Counsel whether there was a preference for the orientation of the grate as depicted in the detail sheet as compared to the orientation of the grate involved in the accident, Mr. Obernesser testified that "[t]here's no indication that there's a preferred way one way or another on it" (Transcript at 365). When Counsel next asked the witness: "[w]ould it be safe to say that each way is equally safe for the usage of bicycles and/or other persons that may travel over it?," Mr. Obernesser answered: "I don't - - I haven't seen anything that would tell us that it would have to be one way or another" (Transcript at 365).[FN9]

In addition to its Highway Maintenance Guidelines, DOT also publishes a Highway Design Manual, the primary functions of which are to "provide requirements and guidance on highway design methods and policies . . . and assure uniformity of design practice throughout" the agency (Claimant's Exhibit 43, Highway Design Manual, Chapter 1 [Revised May 10, 1996], page 1-1). The manual expressly recognizes the need of design professionals to vary from the manual for special or unusual circumstances, for the exercise of engineering judgment to address site-specific conditions, for documentation of the basis of variations from the manual, and to consult other appropriate design references. Conversely, deviations from design criteria for certain new or reconstructed highways set forth in Chapter 2 of the manual require prior review and approval. The manual contains a chapter on highway drainage (Chapter 8) and specifically addresses drainage grates. Section 8.7.4 provides specific direction on the types of grates to be [*9]used for storm drainage devices. Relating to bicycle safety, Section 8.7.4.2 specifically provides:

Bicycles and pedestrians should be accommodated on all highways with uncontrolled access by providing one of the following types of grate:

a.Reticuline. This grate is superior for pedestrian and bicycle safety.

b.Rectangular. Similar to reticuline.

c.Parallel bar with cross bars. The cross bars shall be specified in the drainage structure table.

(Claimant's Exhibit 45, Highway Design Manual, Chapter 8 [Revised September 22, 2006], page 8-72.[FN10] Included in Claimant's Exhibit 45 are the DOT standard design sheets for the three grates prescribed by this section. A grate similar to the Utica Grate is neither referenced nor depicted among those suited to accommodate bicycle safety. Both Mr. Obernesser and Mr. Hoffman testified that the Defendant would install bicycle safe grates in conformance with this section when constructing a new road or reconstructing an existing highway. According to Mr. Obernesser, the State of New York has been using the reticuline grate for approximately "the last 30 years or so" (Transcript at 357). However, both believe that Section 8.7.4.2 does not require the State to replace existing grates because the Highway Design Manual applies only to the construction of a new highway or the reconstruction of an existing highway.

However, the Court notes that the manual also contains chapters applicable to resurfacing, restoration and rehabilitation of highway surfaces (Chapter 7), which are distinct projects from new construction or reconstruction. Moreover, provisions relating to bicycle safe designs are not expressly confined to Chapter 2, and therefore applicable only to new or reconstructed highways, but rather are set forth in a separate chapter on bicycle facility design (Chapter 17). Regarding the accommodation of bicycle traffic on highways, Section 17.4.4 of the Highway Design Manual provides:

Many existing highways were not designed with bicycle travel in mind. However, there are usually reasonable ways in which they may be improved to more safely accommodate bicycle traffic. Therefore, roadway conditions should be examined during scoping and design whenever highways are being constructed, reconstructed or resurfaced. The need for drainage grates, railroad crossings, pavements, traffic control devices, railings, and other roadway adaptations that are responsive to bicyclists' requirements should be discussed in the scoping and design approval. documents. These documents should discuss any decisions made regarding whether or not improvements that would better accommodate bicycling are incorporated into projects.

(Claimant's Exhibit 44, Highway Design Manual, Chapter 17 [Revised March 30, 2006], page 17-5 [underline added for emphasis]). This provision, and others in Chapter 17, make plain that it is the State's policy to make cost-effective accommodations for bicycles on State highway [*10]projects undertaken on both new and existing highways.[FN11]

Section 17.4.3 of the manual adopts the current edition of the Guide for the Development of Bicycle Facilities published by the American Association of State Highway and Transportation Officials (AASHTO) as the minimum requirements for the design and construction of bicycle facilities on DOT projects. And with respect to drainage grates specifically, Section 17.4.10.7 of the Highway Design Manual provides:

All drainage grates should be of a design that does not catch a bicycle wheel when the grate is crossed. For guidance on bicycle safe drainage grates, FHWA's Selecting Roadway Treatments to Accommodate Bicycles and Bicycle Safe Grate Inlet Study, Volumes 1-4 [FN12] should be consulted, as well as Chapter 8, Section 8.7.4 of this manual.

(Claimant's Exhibit 44, Highway Design Manual, Chapter 17 [Revised March 30, 2006], page 17-18). Finally, the AASHTO Guide for the Development of Bicycle Facilities, adopted as the minimum requirements on DOT projects, provides:

Drainage inlet grates with slots parallel to the roadway, or a gap between the frame and the grate, can trap the front wheel of a bicycle, causing loss of steering control. If the slot spacing is wide enough, narrow bicycle wheels can drop into the grates. Conflicts with grates may result in serious damage to the bicycle wheel and frame and/or injury to the bicyclist. These grates should be replaced with bicycle-safe, hydraulically efficient versions. When this is not immediately possible, a temporary correction is to weld steel cross straps or bars perpendicular to the parallel bars at 100-mm (4-inch) center-to-center maximum spacing to provide a maximum safe opening between straps

(Claimant's Exhibit 46, Guide for the Development of Bicycle Facilities [AASHTO 1999], page 18). Despite his belief that the Highway Design Manual applies only to new or reconstructed highways, a legal conclusion the Court cannot fully accept, Mr. Hoffman testified that the AASHTO standards incorporated by the Highway Design Manual, should be considered the standard for professionals responsible for highway maintenance (Transcript at 105). According to Mr. Hoffman, some municipalities, including New York City, have modified existing parallel grates by welding metal strips perpendicular to the parallel slots and bars as suggested by AASHTO, which effectively "restricts the area where a tire could get trapped down to about two and a half inches" (Transcript at 108). While Mr. Obernesser testified that DOT [*11]generally did not remove and replace grates unless the highway was being reconstructed or the catch basin needed repair, he conceded that his agency had replaced parallel bar grates on existing highways over the years because they posed a hazard to bicyclists in that two-inch slots ran the "entire length of the grate where a tire would actually be able to drop into the hole, completely into the hole and come to a stop and you'd end up having the rider fly over the handlebars" (Transcript at 377). He pointed out however, that the grate involved in the accident was not a parallel bar grate through which a bicycle tire could fall completely since "a 27-inch tire can't fit in a four inch opening" (Transcript at 381).

Each of the three members of the maintenance crew testified that when they replaced the grate on the catch basin after cleaning it, they did not intentionally place the grate in any specific orientation. One member said that he tried to replace the grate in the same orientation it was in when they pried it off. However, all testified that they were not aware of whether there was a correct or incorrect orientation of the grate for purposes of bicycle safety, and were not aware of what a bicycle-safe grate was.

Paul H. Unczur, P.E., is a licensed engineer with a Bachelor of Science in Civil Engineering who has worked for DOT since 1983. For the last 12 years he has been the Resident Engineer for the DOT Region 2 Fulton/Montgomery Residency. He is responsible for the day-to-day operations of the maintenance crew in the Residency which includes Route 30A and the accident scene. He testified that there is no "inspection of the drainage inlet grates on a regular schedule" (Transcript at 225) and that they are not inspected each spring as required by the DOT Highway Maintenance Guidelines. Mr. Unczur stated that he did not know "of any particular way that [the grate involved in the accident] should be positioned" in its frame, or whether it is "important to position the rectangular openings [of the grate] in any particular way relative to the travel way" (Transcript at 231-232). However, he testified that he was aware of the term "bicycle-safe grate" and that the term applied to the reticuline grate which is now in use by the agency (Transcript at 233). When asked if the grate involved in the accident "could catch a bicycle wheel," Mr. Unczur answered "I would guess it might be able to catch a bicycle wheel" (Transcript at 234). When asked whether the grate would pose less of a hazard to a bicyclist riding over it if it had been in the position shown on the construction plans, he answered "I don't know if I have an opinion one way or the other on that" (Transcript at 245). Claimant's Counsel then refreshed Mr. Unczur's recollection with his deposition testimony. When asked at trial:

"Do you remember being asked this question:

Question: Do you agree that if this grate was positioned 90 degrees from where it is positioned in [Claimant's Exhibit 1], that it would pose less of a hazard to a bicyclist traveling across the grate on the shoulder of the road?

Answer: Yes, they would be traversing over a shorter opening,' "

Mr. Unczur answered, "[n]ow that you refreshed my memory, yes" (Transcript at 246-247). Mr. Unczur testified that he had not seen the construction plans for Route 30A prior to this case, had not read Chapter 17 of the Highway Design Manual relating to bicycle facility design, and was not familiar with the AASHTO guidelines for bicycle safe grates. Although he conceded that it is known in the engineering field "that drainage inlet grates with slots parallel to the [*12]roadway can trap bicycle wheels that go over the grates," Mr. Unczur testified that the Residency has taken no steps to periodically check that grates are aligned properly (Transcript at 253). On cross-examination by Defendant's Counsel, Mr. Unczur testified that although the construction plans show the length of the grate slots running perpendicular to the curb, in his opinion, the drawing does not suggest "any right or wrong way for that [grate] to be seated in its frame" (Transcript at 264). Like Mr. Obernesser and Mr. Hoffman, Mr. Unczur believes that the Highway Design Manual only applies to highways that are "reconstructed or newly constructed" (Transcript at 267), even though it contains a chapter on highway resurfacing and even though it incorporates AASHTO bicycle requirements as the State standard and the AASHTO requirement calls for replacing hazardous grates.

Regarding the condition of the pavement around the grate, Mr. Unczur testified that, while there was no guidelines or criteria for determining when a height differential between the grate and surrounding pavement — creating a bump — requires repair, he considered a differential of "two and a half to three inches" as warranting attention (Transcript at 254). However, maintenance staff is not tasked to measure the differential or inspect the pavement conditions around the grates to "determine if any repair work needs to be done" (Transcript at 256). Neither does he instruct maintenance employees on what to look for when they are cleaning the catch basins to determine whether any repair work needs to be done around the catch basins. Nevertheless, if signs of a failing catch basin are reported by maintenance staff or a member of the public, such as "the uneven settlement of the top of the structure, possibly a hole along the structure," the catch basin would be inspected and repaired if warranted (Transcript at 259). Following the accident, he declined to request accident history information regarding this catch basin.

Lawrence Staring has almost 31 years of service with DOT and is currently a Highway Maintenance Supervisor II in the Fulton/Montgomery Residency. He is responsible for the summer maintenance of the State highways in both counties and responsible for the winter snow and ice removal in Fulton County. He supervises about 18 staff in the summer and about 26 in the winter, and schedules their daily work assignments. Mr. Staring testified that there is no regular schedule for the work that he does, and no "written maintenance procedure or maintenance policy" that he follows for the purpose of inspecting drainage structures (Transcript at 149). He described the general condition of the catch basins in his residency as "[f]air to poor" and agreed that "[a] good percentage of them" are in "disrepair" primarily because they are old (Transcript at 150). Mr. Staring testified that he was not aware of "whether there's a right way or a wrong way to place that grate" within its frame (Transcript at 154). He stated that he did not consult the DOT Highway Maintenance Guidelines during the course of his work and did not know what information was contained in them. While he has consulted construction plans in the course of his work, he has not reviewed the plans for Route 30A, including the detail sheet for the catch basin involved in the accident.

Mr. Staring testified that prior to the maintenance crew's cleaning of the catch basins, he performed a visual inspection of the catch basins while driving his vehicle to determine whether the catch basin or asphalt around it needs to be repaired. No measurements were taken to determine the elevation differential between the edge of the grate and the top of the pavement, nor are there criteria for Mr. Staring to use to determine whether the pavement condition around [*13]the grate needed repair, such as a maximum allowable elevation difference. Nevertheless, Mr. Staring testified that the catch basin "was not going to require repair at that time . . . [because] the drainage structure itself was in fairly decent shape" (Transcript at 162), and the asphalt condition around the grate was "not terribly bad" (Transcript at 165). However, he allowed that if the grate had dropped two inches from the surface of the highway, it probably needed to be repaired. Finally, Mr. Staring testified that he was not aware of the term "bicycle-safe grate" and did not know if the position of the grate involved in the accident was safe for bicycles (Transcript at 165).

Claimant called a second expert witness, Eugene R. Camerota, who holds a Master of Science degree in mechanical engineering and a Bachelor of Science degree in mechanical and aerospace engineering, both from Syracuse University. He has been reconstructing accidents in his private consulting business for approximately 30 years and is also a Professor of Engineering Science at Onondaga Community College. After being retained by Claimant, Mr. Camerota reviewed the police accident report, photographs and witness statements, investigated the scene, inspected the bicycle, reviewed deposition transcripts, and conducted an engineering analysis.

As Mr. Camerota explained, a bicycle is

a single track vehicle, which means you have one wheel in front of the other. And it has to maintain balance by keeping the center of gravity in a vertical plane above the bike . . . So if you're going - - particularly at slower speeds . . . you tend to want to maybe go one way or the other, and let's say you started leaning to the left a little bit, you need to physically steer the wheel, the handlebars or the front wheel to the left to regain that [balance] and bring you back up. And then if you try to go over to the right, you have to steer to the right so that the wheel brings you back up this way, to your left. So it's a constant adjustment process on a bicycle at slower speeds.

(Transcript at 277-278).

The bicycle wheel and tire had a diameter of 27 inches and was one-inch wide. During Mr. Camerota's visit to the accident scene, in August of 2010, he measured the grate and determined that the largest slots in the grate, located in the middle section of the grate, measured four inches long by one and three-quarters inches wide. The grate is 25 and one-half inches in diameter and sits in a frame that spans the width of the shoulder. The drop from the surface of the pavement to the grate is about two and one-quarter inches. Based on the diameter of the wheel and tire, Mr. Camerota calculated that the wheel and tire would drop approximately 0.65 inch into the slot of the grate as the tire flattens and widens somewhat upon impact. This interaction of the tire going down into the grate would "greatly impede the ability of the wheel to turn to maintain balance" (Transcript at 285). Moreover, as the tire falls into one of the slots and then rolls out, it will slow down. In the center of the grate, there are several rows of three of these larger slots in sequence. Consequently, as it rolls in and out of several of these slots consecutively, the bicycle will continue to slow, requiring more and more steering to retain balance, but the steering will be restricted. "[T]he effect all adds to creating instability and a loss of control" (Transcript at 286). Mr. Camerota testified that Claimant's testimony regarding the bumps she felt going over the grate was consistent with her traveling into and out of these [*14]consecutive four-inch slots. Mr. Camerota gave his opinion as an accident reconstructionist, with a reasonable degree of accident reconstruction certainty, that the grate posed a hazard to bicyclists because it could trap a tire. He similarly opined that the grate was a substantial factor in causing Claimant to fall from her bicycle and under the tractor trailer because it restricted her ability to steer and retain balance, and it also caused her to slow down which, in turn, required more steering.

To prove a prima facie case of negligence, Claimant must establish the existence of a duty, the breach of the duty, and that the breach of the duty was a proximate cause of the damages sustained (see Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981], rearg denied 54 NY2d 831 [1981]). "In the absence of duty, there is no breach and without a breach there is no liability" (Pulka v Edelman, 40 NY2d 781, 782 [1976], rearg denied 41 NY2d 901 [1977]). Here, the State, in providing a paved highway, owes a nondelegable duty to the public to maintain it and any adjacent shoulder in a reasonably safe condition (see Bottalico v State of New York, 59 NY2d 302, 305 [1983]; Friedman v State of New York, 67 NY2d 271, 283 [1986]). The duty of maintaining such roadways and their shoulders does not vary with the status of the person who utilizes it but "rather, with the foreseeability of [its] use and the possibility of injury resulting therefrom" (Basso v Miller, 40 NY2d 233, 241 [1976]). Accordingly, when the State provides a paved shoulder adjacent to a highway, "[i]t must maintain the shoulder in a reasonably safe condition for the foreseeable uses of it" (Bottalico v State of New York, 59 NY2d at 305). DOT staff responsible for maintaining Route 30A testified that it is common to see bicycles on that highway and its shoulder. Moreover, Section 1234 (a) of the Vehicle and Traffic Law requires bicycles to travel in the shoulder of Route 30A. Thus, the Court concludes that bicycle use of the Route 30A shoulder is foreseeable and, therefore, Defendant has an obligation to maintain the shoulder in a reasonably safe condition for bicycle travel.

The State, however, "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d 1137, 1137-1138 [2008]) and generally, liability will only attach when Defendant created the dangerous condition or had actual or constructive notice of a dangerous condition and failed to take appropriate remedial action (see Quintanilla v State of New York, 94 AD3d 846, 847 [2d Dept 2012]; Fowle v State of New York, 187 AD2d 698, 699 [2d Dept 1992]).[FN13] Notice is not required, however, when a defendant creates the dangerous condition (see Cook v Rezende, 32 NY2d 596, 599 [1973]; Viele v Vyverberg, 83 AD3d 1428, 1429 [4th Dept 2011]), because the creation of such a condition constitutes actual notice (see Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [*15][1984], affd 64 NY2d 670 [1984]).[FN14]

In this case, Claimant's two experts gave credible opinions with a reasonable degree of engineering certainty and accident reconstruction certainty, respectively, that the position of the grate involved in the accident created a dangerous condition because the length of the slots ran parallel to the highway and could trap a bicycle tire. Had the grate been turned only 90 degrees either clockwise or counterclockwise, it would have been a bicycle-safe grate. The Court credits the uncontroverted testimony of these two experts. In addition, the DOT Resident Engineer conceded that the grate would pose less of a hazard to bicyclists if it was positioned as drawn on the construction plans. While this concession does not, by itself, establish that a dangerous condition existed, it lends support to the basis behind the conclusion of Claimant's experts. Therefore, the Court concludes that the position of this particular grate spanning the entire shoulder created a dangerous condition for the Claimant who was forced to travel over it.

The Court also concludes from the undisputed proof that Defendant placed the grate in the position that created the dangerous condition. While the construction plans, including the detail sheet depicting the grate in its frame with the four inch slot running perpendicular to the curb, are retained by DOT and should be consulted for purposes of highway maintenance, all the DOT witnesses testified that they had not consulted the construction plans for the purposes of maintaining the catch basins. Moreover, the maintenance crew was not trained in or familiar with bicycle safety as it relates to the highway or highway drainage structures. Furthermore, DOT officials, and even Claimant's expert Mr. Hoffman, were of the opinion that the Highway Design Manual applies only to new construction and reconstruction of highways even though portions of it relating to bicycle safety apply to all types of highway projects, including resurfacing. Thus, the Court is left to conclude that the placement of the grate in its dangerous condition was the product of several omissions. The Director of Operation's testimony that the diagram in the construction plans was not mandatory is simply not credible in light of the fact that the designer took the time to specifically depict the orientation of the grate in the frame, and to choose a concave shape, and that it is good engineering practice to follow the construction plans even when undertaking highway maintenance. In contrast, Claimant's expert testified that staff should have installed the grate in accordance with the plans because the maker would not have taken the time to show it on the plans if it was not important. Given the importance attributed to construction plans, it seems likely that the diagram would have been followed if DOT staff had consulted the plans for guidance in maintaining the catch basins. Accordingly, the Court concludes that Defendant breached its duty of care when it positioned the grate in its frame on July 7, 2008.[FN15]

[*16]Turning to the final element in this negligence action, in order to establish proximate cause, a claimant in a premises liability action is not required to exclude every other possible cause. "Rather, the proof must render those other causes sufficiently remote or technical to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence. A [claimant] need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency" (Gayle v City of New York, 92 NY2d 936, 937 [1998] [internal quotation marks and citations omitted]; see Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550 [1998]). Based on Claimant's testimony about what she felt as she rode over the grate, and the corresponding analysis of Mr. Camerota, the Court concludes that Claimant's tire rode into the slots of the grate. Further, Claimant offered the testimony of two experts, a civil engineer and a mechanical engineer/accident reconstructionist, who opined with a reasonable degree of engineering and accident reconstruction certainty that the grate was a substantial factor in the cause of Claimant's accident because it trapped her tire as it traveled into successive slots long enough to destabilize her so that she lost control and fell under the tractor trailer. The Court credits this testimony because it appears logical and credible and because no contrary expert opinion was offered at trial.

The Court must next address Defendant's affirmative defense, specifically that Claimant assumed the risk of her injuries, thus barring any recovery. As background, CPLR § 1411, enacted in 1975, abrogated the common law rule that barred a claimant from recovering because of his or her own culpable conduct (see Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161, 165 [1985]). Section 1411 provides that

In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.

Against this backdrop there are two distinct doctrines of assumption of risk. The first — referred to as implied assumption of risk — is not an absolute defense and does not bar recovery, but rather, like comparative negligence "reduces the recovery of [a Claimant] in the proportion that his [or her] culpable conduct contributed to the accident" (Weller v Colleges of the Senecas, 217 AD2d 280, 283 [4th Dept 1995]; see CPLR § 1411).[FN16] The second — referred to as primary assumption of risk — "is not a measure of [a claimant's] comparative fault, but a measure of the defendant's duty of care . . . [and operates to] eliminate[] or reduce[] [that] duty . . . and, in the former case, constitutes a complete bar to recovery, notwithstanding CPLR article 14-A" (Lamey [*17]v Foley, 188 AD2d 157, 163 [4th Dept 1993] [citations omitted]). However, "the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises" (Sykes v County of Erie, 94 NY2d 912, 913 [2000]). For primary assumption of risk to apply, a claimant must have "knowledge of the injury-causing defect [and] also appreciation of the resultant risk ... [which is] assessed against the background of the skill and experience of the particular [claimant]" (Morgan v State of New York, 90 NY2d 471, 486 [1997] [internal quotation marks and citations omitted]).

The Court of Appeals in Trupia v Lake George Cent. School Dist. (14 NY3d 392 [2010]), in acknowledging the conflict between CPLR § 1411 and the survival of the doctrine of primary assumption of risk, stated that the Court had not applied the doctrine outside of the limited context of "athletic and recreative activities" and cautioned that its "application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation that the Legislature has deemed applicable to any action to recover damages for personal injury, injury to property, or wrongful death" (Id., at 395-396 [internal quotation marks and citations omitted]; see Custodi v Town of Amherst, 20 NY3d 83, __, 2012 NY Slip Op 07225 [2012] ["As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues"]). Accordingly, the doctrine of primary assumption of risk operates to bar recovery by eliminating a defendant's duty of care "where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks' " (Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012], quoting Morgan v State of New York, 90 NY2d at 484). Participants, however, "will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks" (Morgan v State of New York, 90 NY2d at 485 [internal citations omitted]).

With this setting, the question for this Court is whether the activity of biking to work on the paved shoulder of a State roadway constitutes an activity that is subject to the doctrine of primary assumption of risk. While remote and off-road biking and biking for competitive and tour purposes has been held to be subject to the doctrine of primary assumption of risk, thus barring recovery (see e.g. Cotty v Town of Southampton, 64 AD3d 251, 256-257 [2d Dept 2009]; Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 820—821 [2d Dept 2007], lv denied 9 NY3d 817 [2008]; Restaino v Yonkers Bd. of Educ., 13 AD3d 432, 432 [2d Dept 2004]; Goldberg v Town of Hempstead, 289 AD2d 198, 198 [2d Dept 2001]; Furgang v Club Med, 299 AD2d 162, 162 [1st Dept 2002], lv denied 99 NY2d 504 [2003]), bicycling on a paved public roadway as a means of transportation and for noncompetitive and leisure purposes has been held not to constitute a sporting activity for purposes of the doctrine of primary assumption of risk (see Cotty v Town of Southampton, 64 AD3d at 256; see also Caraballo v City of Yonkers, 54 AD3d 796, 796-797 [2d Dept 2008], lv dismissed 13 NY3d 788 [2009]; Moore v New York, 29 AD3d 751, 752 [2d Dept 2006]; 816 NYS2d 131; Weller v Colleges of the Senecas, 217 AD2d at 284). Accordingly, under the circumstances of this case, and in acknowledging the limited context in which the doctrine of primary assumption of the risk should apply (see Trupia v Lake George Cent. School Dist.,14 NY3d 392), the Court finds that, rather than constituting primary assumption of risk, Claimant's activity in riding her bicycle on a paved shoulder of a paved [*18]roadway "is simply a factor relevant in the assessment of culpable conduct" (Weller v Colleges of the Senecas, 217 AD2d at 284).

In its answer, Defendant has pleaded the affirmative defense that Claimant's own "culpable conduct" caused or contributed to the injuries claimed. Along these lines, a Claimant has the duty to use reasonable care to observe his or her surroundings and will be "bound to see what by the proper use of her senses she might have seen" (Weigand v United Traction Co., 221 NY 39, 42 [1917]). Ultimately, the question of contributory negligence comes down to whether a reasonable person would have acted as Claimant did in the situation under consideration (see Sundt v New York State Elec. & Gas. Corp., 103 AD2d 1014, 1015 [4th Dept 1984], appeal dismissed 63 NY2d 771 [1984]). At the trial of this action, Claimant established that the roadway on which she was traveling was heavily congested in the travel lane to her left and bounded by a curb on her right, thus relegating her to the road's shoulder and preventing her from maneuvering her bicycle to avoid the storm grate. There is no evidence that Claimant was aware that the grate was not aligned in conformance with the construction plans or otherwise hazardous. She had no reason to stop and, in any event, Claimant doubted that she could stop safely. Upon approaching the grate, Claimant slowed her bicycle speed and braced herself in anticipation of riding over the grate, as she had done with other grates. Based on this undisputed evidence, the Court concludes that Claimant proceeded with the amount of caution of a reasonably-prudent bicyclist, and finds that Defendant failed to establish that Claimant was contributorily negligent, particularly in light of Section 1234 (a) of the Vehicle and Traffic Law, which requires a person to operate a bicycle on a roadway "near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder in such a manner as to prevent undue interference with the flow of traffic."

The case law relied on by Defendant for the proposition that "Courts have consistently dismissed cases strikingly similar to the case at bar," are distinguishable from the facts in the instant action as, in those cases, there was either no evidence of a dangerous condition,[FN17] or no evidence that Defendant created or had the requisite notice of a dangerous condition.[FN18] [*19]

Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant established, by a preponderance of the credible evidence, that Defendant was negligent and that Defendant is 100% liable for Claimant's accident. All motions not previously decided are hereby denied. The Court will schedule a conference to address any outstanding discovery issues and schedule a trial date on damages.

Let interlocutory judgment be entered accordingly.

Albany, New York

December 4, 2012

GLEN T. BRUENING

Judge of the Court of Claims Footnotes

Footnote 1: The Claim of Samuel Bursese is derivative in nature.

Footnote 2: Route 30A is also known as North Comrie Avenue in this stretch of highway, and becomes South Comrie Avenue a little way to the south. There is no dispute that bicycles are allowed to travel on Route 30A, as it is considered a "shared roadway" (Transcript at 140). However, bicyclists are required to ride in the shoulder when it exists, unless it is unsafe to do so (Vehicle and Traffic Law § 1234 [a]).

Footnote 3: Route 67 is also known as East State Street in this stretch of highway.

Footnote 4: The trial transcript (hereinafter "Transcript") consists of three volumes: Volume I contains pages 1-192, Volume II contains pages 193-335, and Volume III contains pages 336-395.

Footnote 5: The audio recording of the trial reflects that Claimant used "ba-bump, ba-bump" to describe what she felt when her bicycle went down into the middle of the grate, while the written transcript of the trial reflects that description as "boom-boom, boom-boom." (Transcript at 32).

Footnote 6: There was no allegation made and no evidence presented that the driver of the tractor trailer was negligent in any fashion.

Footnote 7: Subsequent to the 1971 one inch overlayment pavement, this portion of the highway was milled and paved in 1981. However, because that project removed an equivalent amount of pavement as it added to the highway, there was a no net effect to the height of the pavement relative to the grate.

Footnote 8: Claimant's expert also opined that the lack of a smooth riding surface should be considered a contravention of the DOT Highway Maintenance Guidelines § 1.110 which provides that "[r]oadway surfaces should be maintained true to type, cross section, alignment and grade, as originally constructed or subsequently reconstructed, or resurfaced in order to provide the highway user with a safe, convenient and smooth riding surface at all times" (Claimant's Exhibit 42, Highway Maintenance Guidelines page 2). That specific provision, however, applies only to pavement in the travel lane. Maintenance of the shoulder is provided elsewhere in the guidelines.

Footnote 9: Mr. Obernesser also testified that, in his opinion it was "pretty unlikely" that the orientation of the grate in the construction plans was done with bicyclists in mind. However, the basis of his opinion was only that "in the early 70s bikeways and bike paths and different guidelines that were developed by AASHTO came into being" (Transcript at 355). Mr. Obernesser did not provide any specific support or seek to introduce any evidence to support his summary conclusion, but conceded that bicycle safety has been an issue for the last 30 or 40 years.

Footnote 10: While the cover page to Chapter 8 of the manual indicates that limited revisions were made on September 22, 2006, the page 8-72 containing Section 8.7.4.2 is dated June 23, 1997. Consequently, Section 8.7.4.2 prescribing drainage grates to accommodate bicycle safety was apparently in use by DOT for at least 11 years prior to Claimant's accident.

Footnote 11: For example, Section 17.1 of the manual provides, in part: "Bicycling is a reasonable, legitimate and increasingly significant mode of transportation in New York State. . . .Therefore, it is the Department's policy to consider bicyclists as an integral part of our intermodal transportation systems. . . Despite the importance of bicycling, many existing streets and highways do not adequately provide for this mode of travel. Therefore, the scoping and design approval documents for projects that are used by bicyclists should identify their needs, the objectives for meeting those needs, the design criteria, and all feasible alternatives" (Claimant's Exhibit 44, Highway Design Manual, Chapter 17 [Revised March 30, 2006], page 17-1).

Footnote 12: This document is not in evidence.

Footnote 13: Actual notice is "[n]otice given directly to, or received personally by, a party" (Black's Law Dictionary 1090 [8th ed 2004]). To constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

Footnote 14: Insofar as Claimant has abandoned her negligent design claim and has limited her claim to negligent maintenance, Defendant is not entitled to governmental immunity pursuant to Weiss v Fote (7 NY2d 579 [1960]).

Footnote 15: In light of this finding, the Court need not conclude whether the elevation differential between the top of the pavement and the edge of the grate, in and of itself, constituted a dangerous condition. However, the Court credits Mr. Hoffman's undisputed testimony that the differential and condition of the asphalt was itself not reasonably safe for bicyclists and exacerbated the dangerous condition already posed by the grate.

Footnote 16: The doctrine of implied assumption of risk is akin to comparative negligence. However, "the latter involves a failure to use reasonable care under the circumstances, while the former involves a voluntary encounter with a known risk of harm or a failure to appreciate a known danger" (PJI 2:55).

Footnote 17: (see Mandell v State of New York, UID No. 2010-033-602 [Ct Cl, Lack, J., April 20, 2010] [The Court dismissed the Claim finding that the Claimant, who sustained injuries when his bicycle tire became stuck in the 1¼ inch space between the edge of a drainage grate and the frame of the box which holds the grate, where the roadway specifications permitted the gap to be up to 1¼ inches]; Ballerini v State of New York, UID No. 2005-033-538 [Ct Cl, Lack, J., March 30, 2005] [The Court dismissed the Claim finding that the Claimant, who sustained injuries when his bicycle tire became stuck in the one inch space between the edge of a drainage grate and the frame of the box which holds the grate, failed to prove that a dangerous condition existed, where roadway specifications permitted the gap to be up to two inches]).

Footnote 18: (see Arato v State of New York, UID No. 2009-016-020 [Ct Cl, Marin, J., March 31, 2009] [The Court dismissed the Claim finding that the Claimant, who sustained injuries when his bicycle tire dropped into a gap between a rectangular drainage grate and its frame parallel to the road, failed to prove either that Defendant created the gap, or that it had actual or constructive notice thereof.]; see also Cotter v State of New York, UID No. 2001-001-511 Ct Cl [Read, J., April 12, 2001] [The Court dismissed the Claim finding that the Claimant, who sustained injuries when his bicycle tire became trapped in a gap located in a discrete portion of an otherwise intact drainage grate, failed to establish a dangerous condition and there was no evidence that Defendant had notice of the defect.]). The remaining caselaw cited by Defendant in string cite fashion in its post-trial memorandum is also distinguishable. None of those cases involve Defendant's creation of a dangerous condition.