State May No Longer Be Immune From Road Claims

New York state may no longer be immune from claims if a driver’s car is damaged on a state road.

The state Senate approved S. 5422 by a 62-0 vote while the state Assembly approved A. 1235 by a 124-22 vote. It will become law if signed by Gov. Andrew Cuomo. The legislation is sponsored by Sen. Tim Kennedy, D-Buffalo, and Assemblyman Thomas Abinanti, D-Tarrytown. It was proposed in 2014, 2015-16 and 2017-18, never making it out of the Assembly’s Judiciary Committee.

Under current law, motorists who suffer damage due to defects on local roads may pursue damages against the locality at any time during the year so long as the municipality had advance notice of the defect. Under current law, individuals who suffer damages due to defects in state roads may pursue these damages against the state only if the incident occurred between May 15 and November 15.

Assemblyman Joe Giglio, R-Gowanda, voted in favor of the legislation while Assemblyman Andrew Goodell, R-Jamestown, voted against. Goodell also voted against the legislation when it came before the Judiciary Committee.

Goodell reasoned that the state should be held immune during the winter months because there is no good way to patch roads that crumble over the winter. Asphalt plants are closed down and the cold patch costs twice as much and lasts half as long as asphalt.

“So while I’m very sympathetic to this bill having replaced four tires last year coming to and from Albany, some of you know I’m closer to about nine other state capitals than Albany, including Lansing, Mich.,” Goodell said. “So I’m sympathetic to this. My wife, as she is prone to do, gave me good advice. She said why don’t you avoid those potholes. That’s something that apparently never occurred to me. While I”m sympathetic there is a very good reason why we have this limitation on liability. It’s designed to protect all the taxpayers of the state of New York during that period when all the asphalt plants are closed.”

In his legislative justification for the bill, Abinanti wrote that statewide reports of the poor conditions of state roads — some with three-foot wide potholes and other seemingly ongoing defects — highlight the need to modify this statute and permit motorists to seek damages all year long. The bill allows drivers to pursue damages from the state for defects in state roads all year while continuing to exempt the state from liability where it does not have advance actual or constructive notice.

Abinanti said on the Assembly floor that removing the liability exemption will force the state Highway Department to do a better job during the summer months of making sure the roads will stand up to the rigors of New York’s harsh winters.

The legislation is endorsed by the Automobile Association of America and the state Trial Lawyers Association.

“This will improve health and safety for those on the roads,” Abinanti said. “Lastly we should look and say there is a certain amount of accountability that we should demand from our Department of Transportation and from the other agencies of the state. By making them responsible for road conditions that will encourage them to do their jobs a little better, fill in all those potholes that are out there and make our roads safer for the people of the state of New York.”


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