Walter Rutland, Jr. (hereinafter referred to as "Claimant") and Joanne Rutland (hereinafter collectively referred to as "Claimants") bring the instant claim seeking damages for Defendant's allegedly negligent highway maintenance at the intersection of State Route 18 and County Route 237 in the Town of Kendall, New York. Claimants allege that Defendant's negligence in maintaining that intersection permitted a condition to exist that caused Claimant to crash his bicycle and sustain significant and permanent injuries causing quadriplegia. Trial of this claim was bifurcated, and the liability portion of the trial was held before me in Rochester over five days between February 14 and February 21, 2012.

FACTS:

The subject accident occurred on July 30, 2008. On that day, Claimant, an avid cyclist who had ridden bicycles since childhood, left his house on East Kent Road at approximately 5:30 p.m. to go on his regular long bicycle ride of approximately two hours on his Nishiki bicycle. Claimant had owned two Nishikis, and purchased the bicycle involved in this accident about one to one-and-one-half years earlier from a man on the internet. After taking possession of the bike, Claimant, who repaired and maintained his bicycles on his own, installed new tires, adjusted the derailer, added aerobars, which are padded armrests used by riders to lean forward and support themselves on long rides, and gave the bicycle an overall tune-up. Additionally, there was a broken quick-release mechanism, which allows a person to take off or put on the wheel with a simple flip of a lever and twist of an adjusting nut, on the front wheel, and Claimant replaced that as well. Claimant testified that he had no issues with the subject bicycle at any time prior to the July 30, 2008 accident.

In July 2008, Claimant's practice prior to going on a long ride was to park the bicycle in his garage, check the air pressure on the tires, make any other necessary adjustments, and ride the bicycle a short distance to make sure that everything worked properly. If he noticed any problems during that short ride, he would take the bicycle back to the garage and make further adjustments. Claimant testified that, he could not recall specifically, but he likely removed the front wheel of the subject bicycle one or two days prior to July 30, 2008 as part of this usual check-up on the bicycle. Before he left the house for the ride on July 30, 2008, Claimant performed his normal check-up, put on a helmet, mouth guard, padded shorts, and a reflective and bright colored shirt. He rode with his arms resting on the aerobars. Claimant rode from his house on East Kent Road to Route 18, then Peter Smith Road to Route 104, down County Line Road back to Route 18, and eventually reached the intersection of Route 18 with Route 237. About two weeks prior to the accident, a six to seven mile portion of Route 18 was re-paved with approximately one inch of fresh blacktop in a vendor placed paving ("VPP") project performed by Keeler Construction, although the intersections with other roads, including Route 237, had not yet been "aproned", or leveled out for smooth transition onto side roads, by the New York State Department of Transportation (hereinafter referred to as "NYSDOT") for transition from the State road onto the County road. As he approached the intersection with Route 237, Claimant rode his bicycle in the middle of the westbound shoulder of Route 18, but heard a vehicle approaching on his left that he believed was getting close to him, so he moved to the right. As he approached a series of white markings in the shoulder (see Exhibits 9A and 11A), the bicycle [*2]dropped from the new pavement onto the old pavement and Claimant testified that he lost control, recalling a "bouncing" sensation (T.92 ^[FN1], at Lines 12-14) before losing consciousness. When Claimant came to, he was in a lot of pain all over his body, and had the taste of asphalt in his mouth. He recalled laying on top of the bike, with the front wheel attached and something in the front wheel area poking him in the area of his stomach and ribs. Claimant recalled that a number of people were at the scene at that time, and he begged for someone to move the wheel because it was hurting him. Claimant testified that he had no issues with the front wheel at any time during the ride before the accident.

The only eye witness to the accident who testified was Ashley Willis, a local high school student. Her testimony was gleaned primarily from a statement she gave on November 21, 2008 (see Exhibit 161), as she recalled very little about the accident when questioned at trial. Willis driving eastbound on Route 18 on her way home from a friend's house when she noticed both a cyclist and a dark-colored van proceeding westbound on Route 18. The right-hand turn signal was activated on the van, indicating a turn north on Route 237; the bicycle was riding north of the fog line on Route 18. Both the van and the bicycle were side-by-side at one point. As Willis went to take the right-hand turn to go south on Route 237, she saw the cyclist lose control in what she believed was the pavement edge between the old and new pavement, although she conceded that she did not recall actually seeing the front wheel get caught in the pavement. After the van completed its turn onto Route 237, the cyclist was laying on the ground, possibly straddling the bicycle, in the east half of the northbound lane of Route 237. Willis saw the van's brake lights go on and she assumed it was stopping, so she continued to proceed home. Another van also appeared to pull over as she drove away. Willis later came to learn that Claimant, who is married to Willis' former cheerleading coach, was the cyclist involved in the accident.

There was also testimony from several people who were at the scene shortly after Claimant's accident, but who did not actually witness the accident. Michael Kludt, an officer and past chief of the Kendall Fire Department, was one of the first responders to the scene; he arrived about seven minutes after the call went out reporting the accident. Kludt testified that Claimant was "entangled" with the bicycle when he arrived (T.19, at Lines 24-25), and was laying in the northbound lane of Route 237 approximately eight or nine feet north from a bit of deteriorated pavement adjacent to the edge of the new pavement on Route 18. Claimant's head was pointed south. Kludt also noted that he saw a strip of skin approximately three feet from Claimant's head. The front wheel of the bicycle was laying in the grass to the side of Route 237. Kludt had previously marked each of these areas on Exhibit 139A.

Russell Barthel, a long-time friend of Claimant's, came upon the accident scene at approximately 7:30 p.m. while riding home on his motorcycle along Route 237. He saw Claimant on the ground, "entangled" in his bicycle (T.30, at Lines 7-8), so he parked his motorcycle and went over to talk to Claimant. Claimant told Barthel that his face hurt, and he wanted the bicycle taken out from underneath him. Barthel had previously marked Claimant's position in the road on Exhibit 136A, and he placed Claimant much closer to Route 18 than Kludt did in Exhibit 139A. He also noted that the front tire was in the grass to the side of Route [*3]237. Barthel also marked the deteriorated pavement in Exhibit 137A, which he described as adjacent to the old pavement and approximately 8 to 12 inches long. Barthel took Claimant's bicycle and the front wheel, which he reattached with the quick-release mechanism, and brought it home with him.

Richard Jewsbury, a retired fireman, came upon the accident scene while riding along Route 18 as a passenger in a friend's vehicle. He saw Claimant laying on the side of the road on top of a bicycle, with the front wheel underneath him. Jewsbury did not observe anyone moving the wheel, but recalled later seeing it laying to Claimant's left. He did not recall if the front wheel was attached to the bicycle when he arrived at the scene. With regard to the pavement at the intersection, Jewsbury testified that the right-hand turn onto Route 237 from Route 18 felt a little rough.

Thomas Drennan, an Orleans County Sheriff's Deputy and volunteer of the Kendall Fire Department, testified on behalf of Defendant that he responded to the accident scene after receiving a 911 call at approximately 7:15 p.m. on July 30, 2008. When he arrived at the scene, Claimant was still attached to the bicycle with blood on his face, and he was not responsive to questions. The front wheel of the bicycle was unattached, and laying a bit to the northeast from where Claimant lay in the road; on cross-examination, however, it was shown that Drennan testified in October 2008 that the front wheel was underneath the bicycle when he arrived. Drennan testified that Claimant's head was towards the shoulder, with the bicycle and his legs facing north. He also recalled that Claimant's body lay on two different surfaces, although he could not state this with any specificity aside from his belief that Claimant's legs were in the grass.

One of the key issues in this trial, of course, was the condition of Route 237 adjacent to Route 18 in approximately the area where Claimant's accident occurred. Briefly, as of the date of the accident, there was an area on Route 237 approximately seven inches north of the new pavement edge on Route 18 that was described variously by the witnesses as "spalled", "rutted", "deteriorated", or simply "a small pothole" (see e.g. Exhibit 14A). For the sake of consistency, I shall hereinafter refer to it as the "deteriorated pavement." Essentially, after Keeler Construction completed its part of the VPP project on Route 18, there was a pavement-edge drop-off of approximately one to one-and-one-half inches from the new pavement to the old pavement, and then a second drop varying from one to one-and-one-half inches from the old pavement into the deteriorated pavement. The VPP project was completed on July 18, 2008; the aproning of intersections along Route 18 did not commence until August 12, 2008.

David Eibl, a 33-year employee of NYSDOT and currently a Highway Maintenance Supervisor II ("HMS II") in the Albion Residency, testified that, at the time of the Route 18 VPP project, he operated as an inspector, meaning that his job duties were to make sure that the contractor, Keeler Construction, was compliant with traffic and crew safety, the placement of the pavement, pavement density, and other matters. Eibl explained that, under the contract, Keeler Construction was responsible for laying one inch of fresh pavement on Route 18, while NYSDOT was responsible for, among other things, the aproning of intersections and driveways, prep work, and shoulder backup along the pavement edge of Route 18. The prep work, in which Eibl assisted in overseeing, involved looking for areas in the driving lanes that were cracked or had rutting, and inspecting the road for deteriorated conditions, such as broken or cracked [*4]pavement, before paving commenced. If an area needs to be patched, a crew would be sent out to repair the area in question to correct it so that the new paving would not take place over a deteriorated subsurface.

On this VPP project, there was a pre-planning meeting a few weeks beforehand. That meeting involved getting together with Keeler Construction to discuss the contractor's requirements that must be met regarding quantity, material, paving caps, and traffic and safety controls, but also to coordinate scheduling of work between the contractor and NYSDOT. Eibl stressed that, when a project like this is scheduled, it was important for him to speak with NYSDOT's regional equipment coordinator to make sure that proper materials and equipment were available to complete all tasks involved in the project. Eibl recalled assigning crews to patch potholes and other deteriorated conditions before Keeler Construction began paving, and his pre-paving inspection of Route 18 found that the prep work performed by NYSDOT was satisfactory. When shown the deteriorated pavement in Exhibit 15A, Eibl agreed with Claimants' counsel that it was a condition in need of repair, although he did not recall seeing it during the pre-paving inspection. Eibl testified that, had he seen the deteriorated pavement, he would have put it down to be repaired as it was a condition that he normally would have had patched and repaired. Repair of the deteriorated pavement would have provided a smooth transition from Route 18 onto Route 237. Eibl believed that his office was responsible for maintenance of the deteriorated pavement shown in Exhibit 15A.

Claimants' counsel presented Eibl with a number of work reports, dated between June 10, 2008 and August 12, 2008 (Exhibits 152 and 154), which showed that NYSDOT crews were working in the area of the intersection of Route 18 and Route 237 on various dates as both part of the pre-paving prep work and after Keeler Construction had completed its paving in the VPP project. Eibl acknowledged that the NYSDOT work crews could have chosen to repair the deteriorated pavement at any of those times but, for whatever reason, did not do so.

With regard to aproning intersections, such as the intersection of Route 18 and Route 237, Eibl testified that it can be done by hand using charcoaling blacktop, a small roller, and a rake. Eibl agreed with Claimants' counsel's assertion that NYSDOT has undertaken the aproning of the intersection of Route 18 and Route 237 at some time during his career with NYSDOT. Typically, the goal was to complete aproning of intersections as soon as possible following a resurfacing project.

On cross-examination, Eibl testified that, to the best of his recollection, all of the prep work repairing potholes was on Route 18 itself, and that he was aware that the deteriorated pavement would ultimately be aproned.

Richard Lovelace, a NYSDOT Assistant Resident Engineer for Region Four since June 2006, was Eibl's supervisor as of July 2008, and part of his responsibility was supervision over paving projects, including the VPP project on Route 18. Lovelace affirmed that NYSDOT was responsible for aproning all Route 18 intersections and providing shoulder back-up, to protect the edge of the pavement, as part of the project.

Lovelace testified that his understanding was that Orleans County, not NYSDOT, was responsible for the deteriorated pavement shown in Exhibit 15A, and further testified that, even if NYSDOT was responsible for the deteriorated pavement, it would be good highway maintenance practice to simply perform the mainline paving in that area without first fixing the subbase. [*5]Lovelace did not believe that New York State Highway Maintenance Guidelines required repair of any condition outside of the existing travel lane. He did later testify, however, that it would be sound highway maintenance practice to cut out and repair the deteriorated pavement before aproning, because it could break without a good subbase, and the purpose of aproning is to provide a smooth transition from one road to another for all vehicles.

Lovelace believed that he probably inspected the intersection of Route 18 and Route 237 at some time prior to the commencement of the VPP project, but he could not recall a date, and in any event typically inspections were performed by the two HSM IIs who worked underneath him. He would make an inspection after a paving project to ensure that the work contracted for had been performed. Lovelace did not recall the deteriorated pavement standing out when he performed his post-VPP project inspection, but after reviewing a photograph of the deteriorated pavement, he testified that he did not consider it to be a severe condition, but would call it "deteriorated" and "cracked and broke" (T.174, at Lines 15-19). He also stated, however, that it looked like a "pothole" and was in need of repair. Lovelace testified that, had he seen the deteriorated pavement and considered it an absolute hazard, he would have directed someone to repair it. He did not, however, believe that the deteriorated pavement was of sufficient magnitude to constitute a hazard, and believed that it was traversable, although not smooth, by bicycle. Lovelace testified that NYSDOT specifications consider a drop of 50 millimeters, approximately 1.9 inches, to be hazardous, and so a total pavement edge drop-off of over two inches would be considered hazardous.

Lovelace visited the accident scene some time after the accident and saw the deteriorated pavement and, while he acknowledged that it was in need of repair, he did not see it as so severe of a condition that it required him to call someone out to fix it. In any event, he knew that it would be repaired once the intersection was aproned, although he did not know precisely when that would occur. Lovelace was unable to state offhand the total depth of the pavement edge drop-off to the deteriorated pavement.

On cross-examination, Lovelace testified that, during the prep work for the VPP project, Eibl would have seen the deteriorated pavement without the additional one inch or more of overlay from the new pavement.

Patricia Reinhold, NYSDOT's Resident Engineer for Region Four as of July 2008, testified that her job duties include management of highway maintenance workers in Genesee and Orleans Counties, as well as maintenance of the roadways in the region, including Route 18. Regarding the inspection of Route 18 and its intersections, Reinhold testified that NYSDOT has no formal policy with regard to frequency and, rather, HMS IIs, such as Eibl, routinely drive the roadways and make notes of conditions in need of repair. The HMS IIs did not have specific instructions on what conditions to look for, it was left to their professional judgment. Reinhold testified that conditions they look for include cracked pavement, fallen trees, potholes, drainage problems, flooding, erosion, pavement edge drop-offs; basically, "everything within our right-of-way lanes" (T.215, at Lines 6-7).

Reinhold's responsibility on the Route 18 VPP project was to make sure it was completed, meaning that she made sure a contractor was hired, prep work was performed, and post-contractor work was completed, including aproning of intersections. Reinhold explained that NYSDOT was responsible for repairing any deteriorated or defective conditions on the State [*6]roadway as part of the prep, as it is good highway maintenance practice. With regard to the deteriorated pavement at issue here, Reinhold testified that it would be good highway maintenance practice to dig out the area and then lay pavement over it prior to aproning the intersection, although she would defer to Eibl's expertise with regard to paving maintenance matters. Reinhold agreed that the deteriorated pavement was an area in need of repair, and that it is a type of condition that an HMS II would look for when inspecting a roadway. She would consider it "spalling" and not a pothole, but conceded that it was in bad shape, and that it could pose a hazard to bicyclists in that area. Reinhold believed that the deteriorated pavement was within New York State's right-of-way on Route 237.

On cross-examination, Reinhold explained that the prep work performed prior to the VPP project was for that project and entirely in furtherance of the project. She also testified that it was always contemplated that there would be aproning of the intersection of Route 18 and Route 237, and that it was within Eibl's discretion to not address the spalled area during the pre-VPP project prep work. Reinhold further believed that, after Keeler Construction completed its paving work on July 18, 2008, it appeared from work reports that crews were aproning driveways and intersections through at least August 12, 2008, and she noted that not all of the aproning can be done at the same time.

Edward Houseknecht, who was the former County Highway Superintendent for Orleans County, testified briefly on the issue of whether the State was responsible for the part of Route 237 that contained the deteriorated pavement. He testified that the State's right-of-way on the northbound side of Route 237 is 33 feet from the centerline of Route 18, that the State was responsible for maintenance in that area, and that Orleans County has never regularly maintained that area.

Claimants' first retained expert witness was Eugene Camerota, a mechanical engineer who consults in the areas of accident reconstruction and product liability. In performing his investigation of Claimant's bicycle accident, Camerota reviewed documents, photographs, reports, deposition testimony, and witness statements, examined the bicycle, and visited the scene on August 20, 2008, after the aproning was in place. Camerota testified that he understood that Claimant was traveling westbound on the north side of Route 18, and that he lost control of the bicycle in an area off of the shoulder that contained rutting and loose gravel, as well as a drop-off from the new pavement to the old pavement below.

On his visit to the accident site, Camerota measured the total drop-off from the new road surface to the bottom of the deteriorated pavement at four different points, finding a total drop-off of anywhere from 2.5 to 3 inches. His opinion, to a reasonable degree of certainty as an accident reconstructionist, is that this area constituted a hazardous condition for bicyclists, because it created a rutted area where it inhibited the ability of a bicyclist to steer the bicycle properly to maintain balance. Camerota explained that, because a bicycle needs to be steered to maintain balance, particularly at low speeds, rutted pavement would prevent proper steering to maintain center of gravity, the bicycle will move to either the right or left, and the result is generally a loss of control. Additionally, any loose gravel in the area could cause issues with braking and possibly cause wheel lockup, causing a loss of control of the bicycle.

Camerota's examination of Claimant's bicycle also took place on August 20, 2008. As part of the examination, Camerota removed the front wheel of the bicycle two or three times, [*7]testing the quick-release mechanism each time. He had no difficulty removing or replacing the front wheel, and testified that the quick-release mechanism worked properly on both the front and rear wheels. Camerota checked if the front wheel was secure by picking up the front of the bicycle and pounding on the wheel; he testified that, if the wheel stayed secure, then it is properly seated in the forks. Camerota also testified that his examination of the quick-release mechanism revealed no defects, and he found no damage to the front forks or spokes; the only noticeable defect was that the front wheel had a "very, very slight wobble to it when you rotate it" (T.289, at Lines 12-13). There was no residual rubber scraping in the area from the head stock to underneath the forks, the presence of which would be indicative of the fork coming off at some point and the head stock dropping onto the tire. Camerota testified that the forks have some marks from where the quick-release engaged, and scrapes from normal usage, but showed no bending or other sign of impact load. Camerota demonstrated the use of the quick-release mechanism for the Court, and explained that the cam mechanism should rotate 180 degrees to release the wheel, and the nut on the opposite side can be adjusted to get the handle approximately perpendicular to the forks, at which time the user should feel some resistance. If the user feels resistance sooner than 180 degrees, it means that the mechanism will be too tight; any later than 180 degrees means that the mechanism is too loose.

Camerota also opined, to a reasonable degree of certainty as an accident reconstructionist, that the transition from the new pavement to the drop-offs into the deteriorated pavement restricted Claimant's ability to steer the bicycle properly and, in conjunction with the loose gravel in the area, resulted in a loss of control that caused Claimant to fall. He also opined that the rutted pavement, loose gravel, and change in elevation posed a hazardous condition for a bicyclist, and that the accident would not have happened had the aproning of the intersection been completed by July 30, 2008.

Camerota testified that he reviewed the expert disclosure for Defendant's accident reconstructionist, James M. Green, and he did not agree with Green's opinion that the quick-release skewer and adjusting nut were defective, or Green's opinion that the adjusting nut did not allow the wheel to stay on the front drop-offs of the fork at 1.2 foot pounds or below. He further disagreed with Green's opinion that the accident was caused by the front wheel separating from the bike, causing Claimant to rotate over the front of the bicycle. Camerota testified that his disagreement with Green's theory of the cause of the accident was the total lack of damage to the wheel or the front forks, which would be indicative of the front wheel coming off.

Regarding Claimant's position on the bicycle - leaning forward with his arms on the aero bars - Camerota testified that this resulted in 60% or more of Claimant's weight on the front end of the bicycle, which would mean that there would be additional downward force on the front of the bicycle when encountering a sudden drop, and so there was no mechanism to lift the front forks out of the axle. Even if the quick-release mechanism was slightly loose, Camerota testified that the downward force would still push the axle into the forks instead of releasing the front wheel. Camerota opined that Claimant was thrown forward and ended up entangled in the bicycle after encountering the deteriorated pavement; the fact that the front wheel was off of the fork after the accident was not indicative of that being the cause of Claimant's loss of control and accident. Camerota testified that other factors could have caused the wheel to come off, but that it did not cause the accident. [*8]

On cross-examination, Camerota testified that, with respect to the kinetics of Claimant's fall from the bicycle, there was a good possibility that Claimant went over the handlebars and ended up intertwined with the bicycle, but he could not say in which direction Claimant fell. Camerota also acknowledged that, if a bicycle has forward momentum, sudden deceleration would cause the rider to keep moving forward. He did not know what the rate of deceleration would have to be in order to propel a rider over the front wheel. Camerota explained that Claimant continued to go forward because his steering was inhibited in the deteriorated pavement, the bicycle was decelerating on a low friction surface, and so Claimant's body would tend to want to go straight. The fact that there is flattening on the front of Claimant's bicycle helmet means that one could expect a head-first hit on the ground, and it is consistent and compatible with Claimant's injuries.

Camerota testified that he took the quick-release mechanism apart and examined it, but he did not take any torque measurements. He also clarified that the aproning was in place at the time that he took measurements of the pavement drop-offs.

With respect to Claimant's testimony about experiencing a "bouncing" feeling as he dropped off of the new pavement, Camerota acknowledged that could suggest an "up and down" movement, but it was not his opinion that this was the case here because the bicycle was moving down and there was no mechanism to bring it back up.

Camerota also testified that, in his bicycle accident reconstruction career, he had never performed crush analysis or simulated any accidents. He also acknowledged that he had read about the factors of a bicycle accident caused by premature release of a front wheel, including Green's book, which is considered a reliable source in the accident reconstruction community.

Claimant's second retained expert witness was Jerome Thomas, a consulting engineer and formerly a 33-year employee of NYSDOT, who was at one time the Director of the Highway Maintenance Division. Thomas was retained in August 2008 to investigate the accident, and he reviewed numerous photographs, deposition testimony, NYSDOT work records, and contracts, in addition to visiting the accident scene.

Thomas testified that, in looking for unsafe road conditions, the first thing he looks for is the condition of the pavement, including cracks and broken areas. In viewing Exhibit 14A, Thomas testified that the pavement in that area was both disintegrated and deteriorated, and that it was likely undermined by water seeping into the cracks and traffic over that area breaking the pavement apart. Thomas opined, to a reasonable degree of engineering certainty, that the deteriorated pavement posed a hazard to bicyclists because it was so disintegrated, and that it should have been fixed during the prep work for the VPP project, prior to the aproning. Thomas explained that the deteriorated pavement should have been fixed during the prep work so that it would be ready for aproning as soon as the mainline paving was completed. The deteriorated pavement, as it appeared in the various photographs in evidence, was not stable or smooth riding, and posed a hazard to bicyclists. Thomas opined that the deteriorated pavement did not meet the New York State Highway Maintenance Guidelines for pavement maintenance, which call for intersections to be properly and smoothly paved.

Assuming that the VPP project was completed on July 18, and the deteriorated pavement existed on July 30, Thomas opined that the deteriorated pavement should have been repaired prior to July 30, 2008 because it constituted a safety hazard on the highway that should have been [*9]repaired as soon as it was determined that it was there. Thomas believed that the condition should have been readily apparent to an experienced HMS II and that, from both a practical and a safety perspective, there was no question that it should have been addressed during the prep work. Thomas opined that NYSDOT did not properly maintain the deteriorated pavement, based on its condition - "[i]t speaks for itself" (T.352, at Line 17). Thomas also believed that, if the deteriorated pavement had been either properly prepped or maintained before July 30, 2008, Claimant's accident would not have occurred.

With regard to the expert disclosure of Defendant's retained professional engineer, William Logan, Thomas stated that he disagreed with Logan's conclusion that there was no violation of acceptable highway maintenance practices here, because the deteriorated pavement was clearly disintegrated and no longer smooth. Thomas also testified that Logan's citation to a driveway design manual was inapplicable, because the area in question was not a driveway.

Thomas further testified that two inches is the general rule for an acceptable pavement edge drop-off, although the preference is to have no drop-off at all. He also testified that, with the total drop-off here, which was from the new pavement to the old pavement, then from the old pavement into the deteriorated pavement, and separated by approximately seven inches of pavement, both drops have to be considered together as a single drop-off.

Defendant's first witness was Harold Banker, a 34-year employee of NYSDOT who was employed as a Highway Maintenance Worker II as of July 2008, and was involved in the prep work for the VPP project as well as the aproning of intersections that took place afterward. Banker testified that the prep work consisted of pavement repairs on the mainline, which is normal procedure, with the purpose of providing a smooth surface for the contractor to pave over. After Keeler Construction's paving of the mainline took place, the aproning encompassed approximately 170 driveways and 12 to 14 intersections along Route 18. Banker explained that, after a paving project, and as long as men and equipment were available, crews were deployed to begin the aproning of driveways. Here, Banker believed that the aproning likely began at the west end of the project and progressed east along Route 18. In a situation where there is spalled pavement, typically what occurs is that material is applied to the spalled area, raked around, smoothed, and paved down. Banker was present for the aproning of Route 18 and Route 237 on August 12, 2008, and his description of the aproning was very much as he described the typical aproning of any other driveway or intersection.

On cross-examination, Banker testified that he worked under Eibl's supervision in July 2008. At that time, Banker's normal practice, if he saw any defect in highway travel lanes, was to patch it with hot-mix asphalt, level it, and roll it to ensure a smooth surface. Banker agreed with Claimants' counsel that the deteriorated pavement, as seen in photographs, was in need of repair, and if he thought it was a serious enough condition, he would have recommended that it be patched. Banker also agreed with Lovelace's description of the deteriorated pavement as a "small pothole." Banker believed that the deteriorated pavement may not have been patched up during prep work for the VPP project because it was not deemed a serious enough condition to require repair at that time, with the understanding that crews would be back with a blacktop machine to go over that area when it was aproned. This was a choice made by the work crews that went through that intersection in the time before, during, and after the VPP project; the crews may not have seen it, or made the conscious decision to not fix it because it was not considered a serious [*10]hazard. Banker conceded that the deteriorated pavement could have been repaired earlier than August 12, 2008, when it was finally repaired.

The State's first retained expert witness to testify was William Logan, a retired NYSDOT employee and licensed professional engineer. In preparation for his testimony, Logan reviewed witness depositions, photographs, New York State policies on intersections and driveways, the Manual of Uniform Traffic Control Devices, and the State's VPP contract with Keeler Construction.

Logan testified that the prep work for any VPP involves providing a smooth surface for the paver to run over, which means that NYSDOT must correct potholes, drop-offs, and raveling in the existing pavement, as well as sweep the travel lanes clean and level out any dips in the road. The prep work is necessary to clean up potholes on the roadway itself and the shoulders where the VPP paving is occurring. Aproning occurs after the VPP is completed, and normally does not address potholes in driveways and side roads, because the focus of the prep work is to get the State road prepped for the contractor to do its work. Logan testified that it is the State's responsibility to have the prep work done before the predetermined start date for the vendor's paving work.

Logan testified that the deteriorated pavement would not ordinarily be treated as part of the prep work because it is outside the limit of the shoulder; as noted above, NYSDOT work crews would limit the prep work to the roadway and the shoulder and nothing outside of that. Those workers have discretion, however, in determining whether a condition is sufficiently hazardous that it would require immediate repair. Logan opined, to a reasonable degree of engineering certainty, that the deteriorated pavement was not a condition in need of immediate repair. It did not appear critical in the photographs in evidence, and it is the sort of condition that exists alongside many highways. Logan also noted that a one-inch drop-off, which he believed to be the approximate drop-off from the old pavement into the deteriorated pavement, is not considered a hazard by NYSDOT.

Logan also opined that the aproning occurred in a reasonable period of time following completion of the VPP project on July 18, 2008. This opinion is based on SAFETAP, which stands for "Safety Appurtances", and is a program where the State identifies work to be done after a resurfacing job, and it is generally expected that such work will be done in two months. Logan held to his opinion that the time frame was reasonable given the approximately seven-inch gap between the drop-off of the new pavement and the drop-off into the deteriorated pavement. Logan further opined that NYSDOT's activities with respect to the prep work prior to the VPP project and the later aproning of the intersection of Route 18 and Route 237 was within good and accepted engineering practice.

On cross-examination, Logan acknowledged that he neither visited the accident site nor did he review the NYSDOT work records from the VPP project. He was, however, aware that NYSDOT crews were in the area of Route 18 and Route 237 patching poor pavement conditions in the month prior to the accident. He agreed with Claimants' counsel that the deteriorated pavement was a condition in need of repair, but did not agree that NYSDOT was required to repair it by July 30, 2008; Logan could not say that the deteriorated pavement should have been repaired by any one particular date. Perhaps if the condition had been known of and existed in, for example, April 2008, Logan would then concede that it should have been repaired by July 30, [*11]2008. In any case, Logan testified that it was not a condition that would be patched during NYSDOT's prep work and, rather, it would have been patched prior to aproning the intersection. The focus during prep was getting the State road ready for Keeler Construction, so it would not have been good highway maintenance practice to patch the deteriorated pavement at that time.

Logan also testified that he would not consider the deteriorated pavement as a condition requiring a rush job, but that it would be the judgment call of an HMS II. Logan further testified that, if Eibl stated that he considered it a condition that should be repaired, he could not disagree with Eibl's opinion.

Defendant's other retained expert witness was James Green, the President of G.E. Engineering in Asheville, North Carolina. Green is a licensed professional engineer and former professional bicycle racer who specializes in bicycle accident reconstruction, having performed between 2,000 and 3,000 bicycle accident reconstructions, 300 bicycle crush analysis studies, and authored a textbook on engineering. In reconstructing Claimant's accident, Green reviewed the pleadings, discovery materials, witness statements regarding the location of the front wheel after the accident, and photographs, as well as performed an inspection of both the accident scene and Claimant's bicycle. Green also tested the front quick-release mechanism and the lower design values of the front wheel and front forks.

On his inspection of the bicycle, Green found that the scour marks and crimping patterns on the front forks indicated that the front wheel had been properly fastened by the quick-release at some times, but improperly fastened at other times. "Crimping patterns" are serrated edges on the inside of a quick-release mechanism that leave a distinct pattern on the face of the drop-out of the front forks. By way of comparison, Green referred to Exhibit K, Photo #22, which shows the front forks from Claimant's bicycle, Exhibit K, Photo #20, which purports to show that the crimping patterns were destroyed because the wheel was held into the front forks by the downward force of the rider, not the quick-release mechanism, and Exhibit K, Photo #44, which shows the expected crimping pattern from a properly fastened quick-release mechanism.

On the basis of his own experience and knowledge of quick-release mechanism technology, Green identified the quick-release mechanism on Claimant's bicycle as a Joytech brand skewer that was found to have a defective adjusting nut in the mid-1980s and was eventually pulled from the market in 1985. Specifically, the adjusting nut did not contain a Swagelok fitting, which meant that there was no tension on the adjusting nut and, consequently, no torque value on that side of the quick-release mechanism. The relevance of absence of the Swagelok fitting is that there is no material inside the Joytech adjusting nut that would allow it to have resistance against the threads. What this means is that, when the quick-release mechanism got to its lower design limit of 1.2 foot pounds of torque on the adjusting nut side, the wheel would prematurely release because there was no tightness on that side. Green explained that a "lower design limit" is the point to which the quick-release mechanism can be tightened and will appear to be clamped, but it really is not clamped. Green went through a series of photographs (see Exhibit L) showing crimping patterns on front forks using the same quick-release skewer, and illustrating how the crimping patterns were destroyed by the front wheel moving around inside the front fork. Green also testified that the front forks of Claimant's bicycle had no positive retention device built into them, so if the quick-release skewer was at the lower design limit, the wheel would prematurely release and cause the rider to rotate over the front of the [*12]bicycle.

Green opined, to a reasonable degree of engineering certainty and based on his examination of the bicycle, that the cause of Claimant's accident was the premature release of the front wheel. He had previously tested the quick-release mechanism from Claimant's bicycle with a micro torque wrench, which showed that it had no torque value. Green also had me attempt to tighten the quick-release mechanism from Claimant's bicycle and it did not tighten after a few turns, which is apparently in contrast to a quick-release mechanism that is not defective, which should tighten after only a few turns of the adjusting nut. Green used a Shimano quick-release mechanism from the same period that was apparently not defective (Exhibit O) in comparison to the Joytech skewer; Green averred that the devices were interchangeable as all quick-release mechanisms are made to the same specifications. Green further opined that the only way Claimant could have fallen and ended up where he did was because of the premature release of the front wheel. This was not the sort of premature release where the front wheel came off and the forks drove into the ground; it was instead a premature release where the wheel got hung up in the front forks. Green explained that "hung up in the front forks" means that the wheel comes loose and migrates back toward the bottom bracket where the pedals are located, causing the bike to stop suddenly. This latter scenario will cause deceleration of 11 miles per hour per second or greater, which will raise the rider's center of gravity 2 to 4 inches above the saddle, rotating the rider over the front and landing on the top of his head. By looking at the helmet, Green testified that the crush profile shows that the impact occurred on the front of the helmet, both on and to the right of the "Bell" sticker on the helmet (see Exhibit V).

Green disagreed with Camerota's testimony that the front forks would have to be damaged in any premature release situation involving the front wheel. With the type of premature release situation that Green believed occurred here, the front forks never touch the ground. Green also testified that the absence of any rubber scraping on the inside of the front forks also does not mean that there was no premature release, because the rotation of the front wheel stops completely and there is no scouring. Green testified that he has never seen scouring on the front forks in this type of premature release.

With respect to Claimant's testimony that he felt some part of the front wheel jabbing him in the stomach while he was on the ground, Green testified that the only way Claimant could have felt that was if the front wheel had released from the front forks. If the front wheel was still attached, it would have been impossible for the wheel to be underneath him.

Finally, Green opined that the deteriorated pavement could not have caused Claimant's accident, because there was nothing about that pavement condition that could have caused the bicycle to stop suddenly and rotate Claimant forward over the front of the bicycle. Green further opined that there would not have been an accident if the front wheel had been attached properly.

On cross-examination, Green conceded that there was no way of knowing if the marks on the front forks were there from Claimant's use of the bicycle or from the previous owner. He also conceded that the front wheel would not have released prematurely if Claimant had passed over smooth, flat, level pavement, and that the deteriorated pavement may have exacerbated the premature release of the front wheel, because a weight shift is required to cause the premature release, particularly where, as here, Claimant had 60% of his weight resting on the aerobars on the front of the bicycle. Green further conceded that application of the front brakes could also [*13]cause a sudden stop that rotates a rider over the front of a bicycle.

Green testified that he did not review any physiological data in making his conclusions, although on redirect examination he testified that the impact damage on the helmet was at the level of engineering certainty to show a rotation over the front. Also on redirect examination, Green testified that bouncing tends to occur on the type of premature release that he believes happened here - the bicycle goes up and down as the wheel is coming through the forks and back into the system.

ANALYSIS:

The State owes a non-delegable duty to keep its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271). The State, however, is not an insurer of the safety of its roadways and the occurrence of an accident does not create a presumption of negligence (see Tomassi v Town of Union, 46 NY2d 91). To establish liability, Claimants must show that the State either created or had actual or constructive notice of a dangerous condition and failed to remedy it before that condition proximately caused Claimant's injuries (see Kuhland v City of New York, 81 AD3d 786; Meeker v State of New York, 17 Misc 2d 288 [Ct Cl 1959]). In the area of highway planning and design, the State is afforded a limited or qualified immunity for its highway planning decisions (see Weiss v Fote, 7 NY2d 579; Friedman v State of New York, 67 NY2d 271). Liability may only be imposed where it is shown that the plan either evolved without an adequate study or lacked a reasonable basis (see Weiss, supra).

Here, after Keeler Construction finished putting a one to one-and-one-half inch overlay on Route 18 on July 18, 2008, thereby completing its portion of the VPP project, the Court finds that there was left behind a portion of the intersection of Route 18 and Route 237 that contained a pavement edge drop-off of approximately one to one-and-one-half inches from the new pavement to the old pavement underneath, and an additional pavement edge drop-off from the old pavement to the bottom of the deteriorated pavement that resulted in a total pavement edge drop-off of anywhere from two-and-one-half to three inches from the new pavement to the deteriorated pavement.^[FN2] This is above the 50 millimeters, or approximately two inches, that NYSDOT considers to be a hazardous pavement edge drop-off. The Court finds that the existence of this hazard was, indeed, a dangerous condition as it existed at that time.

The evidence at trial also demonstrated that NYSDOT had notice, either actual or constructive, of this dangerous condition. Richard Lovelace testified that he did not recall the dangerous condition standing out on his post-VPP project inspection of Keeler Construction's work, he certainly would have or should have noticed the condition when inspecting Route 18. Moreover, work records offered by Claimants demonstrate that NYSDOT work crews were out working in the area of the intersection of Route 18 and Route 237 on a number of days following the completion of the mainline paving on July 18, 2008 (see Exhibit 152). In reviewing the photographs in evidence of the deteriorated pavement as it appeared at the time of the accident, the Court notes that it was clearly visible and apparent. [*14]

Defendant urges that qualified immunity, under Weiss,should attach here, in that NYSDOT employees clearly exercised their professional discretion in determining that the deteriorated pavement was not such a hazard to users of the roadway that it required immediate repair. To the extent that the deteriorated pavement was not repaired prior to July 18, 2008 as part of the prep work performed prior to Keeler Construction's paving, the Court can agree with Defendant's assertion. There was credible testimony from David Eibl, Patricia Reinhold, Harold Banker, and William Logan that the prep work for the VPP project was focused only on repairing areas within the mainline and shoulders of Route 18, where the vendor would actually be working, and not on the driveways and intersections that would be aproned after the fact. Even though the deteriorated pavement existed at the time that the prep work was taking place, it measured only one to one-and-one-half inches in depth, which would not be deemed a "hazardous condition" under NYSDOT standards, and would be something that NYSDOT work crews could, in their discretion, choose not to address at that time.

Qualified immunity under Weiss simply cannot attach, however, once the mainline paving was completed and, as discussed above, a dangerous condition existed at the intersection of Route 18 and Route 237. It cannot be deemed "reasonable" for NYSDOT crews to allow a condition to exist that, under its own standards, is deemed "hazardous" to users of the roadways, and, without imposing any sort of timeline upon NYSDOT, the matter should have been addressed as soon as possible. The Court does not find credible William Logan's assertion that NYSDOT had as much as two months to address this dangerous, hazardous condition in the roadway. There was no testimony or evidence that the necessary materials, equipment, and crews were unavailable to fix the hazardous condition until aproning finally occurred in mid-August, approximately 25 days after the paving was completed. Rather, a dangerous, hazardous condition was allowed to exist at the busy intersection of Route 18 and Route 237 up until that time, including July 30, 2008, when Claimant's accident occurred. Accordingly, there is no reasonable basis for the delay in repairing this dangerous condition, and so Defendant is not afforded qualified immunity under Weiss v Fote.

The existence of this dangerous condition is of no moment here, of course, unless it is determined that Claimant's bicycle encountered this dangerous condition and such encounter resulted in his accident. This is a determination made somewhat difficult by the lack of concrete eyewitness testimony; the only testifying eyewitness ^[FN3] was Ashley Willis, who saw Claimant fall while she drove along the opposite side of Route 18, and believed that his wheel got caught up in between the new and old pavement, but also conceded that she could not actually see if that was the case. Willis' testimony was not unreliable, but not particularly helpful in determining where Claimant went off of the shoulder. In any event, the Court now finds that the preponderance of the evidence demonstrates that Claimant's bicycle dropped off of the new pavement on the shoulder of Route 18 into the deteriorated pavement on Route 237. Claimant recalled that his bicycle started to drop off of the shoulder at the approximate location of some white markings, as seen in Exhibits 9A and 11A, just before the deteriorated pavement on Route 237, and he [*15]experienced a "bouncing" sensation just before losing consciousness, which appears to be consistent with the bicycle dropping off approximately three inches into the deteriorated pavement. Additionally, all but one of the witnesses who were at the scene after the fact, plus Willis, placed Claimant and his bicycle as lying in the roadway of Route 237 when they came upon him, which also appears to be consistent with Claimant falling after coming into contact with the deteriorated pavement, not at an earlier point. The sole testimony of Thomas Drennan, upon which Defendant relies in arguing that Claimant was, at least in part, lying in the grass to the east of Route 237 and, therefore, must have dropped off of the shoulder at an earlier point, was equivocal and a clear outlier from the several other witnesses who placed Claimant and the bicycle within the intersection.

Having found that Claimant and his bicycle came into contact with the deteriorated pavement, the Court now also finds that the drop-off from Route 18 into the deteriorated pavement caused Claimant's accident, although not the sole cause of the accident. Defendant's retained accident reconstructionist, James Green, offered the theory that, due to a defective quick-release mechanism, Claimant's front wheel prematurely released from the front forks as the bicycle dropped from the new, smooth pavement into the deteriorated pavement, moving back into the body of the bicycle, and causing a sudden deceleration of at least 11 miles per hour per second that propelled Claimant forward over the handlebars. The weight shift caused by Claimant's drop from the new pavement into the deteriorated pavement would have enabled the front wheel to come off of the front forks, even with 60% of Claimant's weight shifted forward due to his use of the aerobars. The "bouncing" experienced by Claimant at that time was caused by the wheel exiting and reentering the bicycle framework. Green's opinion is consistent with the evidence at trial, including the damage on the front of Claimant's bicycle helmet (see Exhibit V), and Claimant's own testimony that he felt something from the front wheel jabbing in his stomach while he was still attached to the bicycle and on the ground, something which would be physically unlikely unless the front wheel had come loose from the front forks at some point during the accident. Additionally, having viewed the accident bicycle, which was admitted into evidence as Exhibit U, and having had the opportunity to compare a working quick-release mechanism (Exhibit O) to the apparently defective Joytech quick-release mechanism on Claimant's bicycle, the Court finds Green's opinion is credible and his theory is plausible.

Eugene Camerota, on the other hand, agreed that it was a "good possibility" (T.311, Lines 20-21) that Claimant fell forward over the handlebars, but was unable to say with any certainty how exactly Claimant fell. He opined that the transition from the new pavement into the deteriorated pavement restricted Claimant's ability to steer the bicycle properly and, in conjunction with Claimant likely braking at that time and the loose gravel in the area, this resulted in a loss of control causing Claimant's fall. Between the two theories proffered by the parties' experts, the Court finds that Green's theory is the more plausible of the two. Claimant was moving to the right at the time that he dropped off of the new pavement into the deteriorated pavement, and the Court did not receive a satisfactory explanation from Camerota as to how Claimant would be propelled forward in this scenario, as opposed to either right or left. Camerota simply asserted that the loss of control would cause Claimant to continue to move forward, even though he was falling downward and to the right. The Court finds this to be somewhat counterintuitive, whereas Green's theory of the front wheel prematurely releasing due [*16]to the defective quick-release mechanism and the introduction of the weight shift provided by the pavement edge drop-off ^[FN4] was both plausible and persuasive.

In accepting Green's opinion with respect to premature release of the front wheel, the Court cannot ignore Green's acknowledgment that the premature release would not have occurred on smooth, flat, level pavement. So, as the Court understands Green's testimony, but for Claimant dropping off of the shoulder of Route 18 into the deteriorated pavement, this accident would not have occurred, because that provided the necessary weight shift to cause the front wheel to prematurely release due to the defective quick-release mechanism. The Court notes that Claimant rode his bicycle for approximately 90 minutes or so on July 30, 2008 without experiencing any issues with his front wheel. It was only when he dropped off of the smooth pavement on Route 18 into a hazardous, dangerous condition, one that should not have existed at the time he came upon it, that caused the premature release of his front wheel and, consequently, his tragic accident. Accordingly, the Court finds that both the hazardous drop-off into the deteriorated pavement and the premature release of the front wheel due to a defective quick-release mechanism contributed to Claimant's accident.

Defendant cites a number of cases in support of its position that it is not liable, cases that the Court finds inapposite of the situation here. In Spataro v State of New York, UID No. 2011-045-508 [Ct Cl, Lopez-Summa, J., Nov. 9, 2011] and Cotter v State of New York, UID No. 2001-001-511 [Ct Cl, Read, P.J., Apr. 12, 2001], which both involved bicycle accidents caused by grates in roadways, it was found that the State was not required to maintain its roadways "in such a state of repair and unmarred smoothness that a bicycle may travel over them with assured safety" (Spataro, supra, citing Cotter, supra). Here, however, Claimant encountered a condition, a three-inch pavement edge drop-off, that was deemed hazardous by NYSDOT's own standards. Even if "unmarred smoothness" is a bridge too far for NYSDOT to maintain for bicyclists, certainly providing a roadway free of NYSDOT-defined hazardous conditions is to the benefit of both bicyclists and motorists using the roadway. Similarly, a number of other cases cited by Defendant involve drop-offs of two inches or less (see Nussbaum v State of New York, UID No. 2008-040-041 [Ct Cl, McCarthy, J., June 26, 2008] [no liability for 2 inch drop-off from bicycle path]; DeSoye v State of New York, UID No. 2008-010-011 [Ct Cl, Ruderman, J., June 6, 2008] [no liability for 2 inch drop-off between shoulder and gutter]), or drop-offs of indeterminate dimensions (see Ginyard v State of New York, Claim No. 115062 [Ct Cl, Marin, J., March 28, 2012]).

The recent claim of Ball v State of New York, UID No. 2011-041-512 [Ct Cl, Milano, J., Nov. 14, 2011], also cited by Defendant, is also inapplicable to the facts of the instant claim. In Ball, the Court determined that the State was not liable for injuries suffered by a claimant who crashed his motorcycle on a defect-free travel lane and paved shoulder after it was determined that the claimant had a bout of coughing fits just prior to losing control of his motorcycle. The situation involving Claimant here did not involve any such external factor - he merely moved to [*17]the right of the shoulder to ensure he was out of the way of an approaching motor vehicle, and his bicycle dropped off of the roadway into a hazardous condition. Similarly, my own previous decision in Smith v State of New York (Claim No. 101368 [Ct Cl, Patti, J., June 29, 2004]), does not apply to the facts here. Defendant urges that it does, because there are other, equally likely causes for the accident that occurred here - either Claimant was distracted by the approaching motor vehicle and caused his own weight shift with an evasive maneuver, or he could have slammed on his brakes and caused himself to decelerate and rotate forward over the front handlebars - and so the State cannot be held liable. Neither one of these theories, however, has any support in fact in the record, and as it was noted inSmith, "[s]peculation may not be substituted for proof" (id.).

In light of the above, the Court finds that Defendant is 90% responsible for Claimant's July 30, 2008 accident. The additional 10% culpability for the accident is attributable to the premature release of the front wheel due to the defective quick-release mechanism.

A trial on the issue of damages will be scheduled.

All motions not previously decided are hereby denied.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.