While I understand and appreciate the argument that municipalities need to have some level of immunity to cover their actions in order to avoid endless second-guessing - and lawsuits - when that argument is taken to the point where the municipalities are not answerable for their clear negligence, then that is taking it too far.

Fortunately, in Gardner v. State of New York, the appellate court saw it this way too.

In Gardner, the plaintiffs sought to recover damages for the wrongful death of their family member who was tragically killed in a car accident. This was no ordinary car accident, however.

In this case, while crossing a highway bridge in bad, snowy weather, the driver's car skidded into a snowbank that had been packed against the concrete guardrail at the edge of the bridge by New York State workers. But since the snowbank was packed in a negligent manner, it acted like a ramp, causing the plaintiff's car to be launched into the air, off the highway, and onto a roadway below.

Lest you think this was a freak, unforeseen occurrence, consider this: a different accident that resulted in a fatality, which occurred in precisely the same manner at the same location happened just 36 hours earlier.

Yet the defendant didn't see fit to fix or remove that snowbank until after the second accident occurred.

In dismissing the case and finding that the municipality had fulfilled its duty to maintain the roadway, the trial court agreed with the municipality's defense that "the defendant did not have 'resources and manpower' to remedy the dangerous condition between the time of the first fatal accident and decedent's accident."

Nonsense, said the appellate court. And in reversing the trial court's decision, it stated as follows:

"[The] New York State Department of Transportation guidelines for snow and ice removal (upon which defendant relied) ...  evolved without adequate study or lacked reasonable basis inasmuch as they provide for the correction of a dangerous condition, such as a slippery roadway, before the correction of a deadly condition, such as the snowbank "ramp" at issue.

"Although defendant's expert witness testified that defendant had no option following the first fatal accident other than to continue regular snow and ice removal from the traveling lanes of the bridge, we conclude that his testimony is not supported by the meteorological evidence ... Only 2.1 inches of snow fell between the two accidents, including 0.2 inches of snow that fell on the day of decedent's accident. There is no fair interpretation of the evidence that defendant's response to a deadly condition by removing minimal snow and ice accumulations while failing to remove the snowbank that had caused the fatality was reasonable (cf. Hart v State of New York, 43 AD3d 524, 525; Farace, 266 AD2d 870)."

This decision is certainly encouraging.
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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