A death and an injury resulted from a rock slide on a New York highway. The injured driver and the husband of the deceased passenger sued the State of New York for damages. The Court of Claims entered a judgment for the plaintiffs; the State appealed. The Supreme Court, Appellate Division, Second Department held that the State of New York was liable for the rock slide and that the wrongful death portion of the trial court's award should be amended in favor of the dead woman's husband.

THE INCIDENT

A boulder at the site of a rock slide at milepost 10.8 on the New York State Thruway struck a car in which Phyllis Neier and Judith R. Klein were traveling on January 21, 1988. The incident killed Judith Klein and injured Neier. Neier brought a personal injury action against the State of New York (State); Paul E. Klein (Klein), Judith Klein's husband, sued the State for damages for his wife's death.

TRIAL COURT DECISION

The Court of Claims entered a judgment for Neier and Klein based on the State's negligence in its failure to protect users of the highway from the rock slide conditions at milepost 10.8. The State appealed this judgment.

APPEALS COURT DECISION

The State argued it was immune from liability because it had used its "expert judgment" in the "bolting and strapping project" that took place on the rock slope at milepost 10.8 in 1975. The project used straps to secure the rocks and boulders in the rock cut to the slope. The State further stated that this decision to proceed with the bolting and strapping project was "not reviewable by the court."

Citing Alexander v. Eldred, 63 N.Y.2d 460, 466, 483 N.Y.S.2d 168, 472 N.E.2d 996, and Weiss v. Fote, 7 N.Y.2d 579, 588-589, 200 N.Y.S.2d 409, 167 N.E.2d 63, the Supreme Court, Appellate Division, Second Department responded:

The court found from the trial evidence that the State's bolting and strapping project "lacked a reasonable basis," and that the project occurred "without adequate study." In reaching this determination, the court considered a study of the rock slope at milepost 10.8 completed in 1957 by a geologist then employed by the State's Department of Transportation (DOT). The geologist foresaw a possibility of rock slides at this location. He recommended that the State either set back the slope or flatten it to prevent future rock slides from reaching the thruway. Based on the geologist's report, the court determined that the bolting and strapping procedures that the State performed in 1975 had no reasonable basis.

The court then examined a study of the rock slide site conducted by the State in 1974. DOT engineers employed by the State failed at that time to perform geologic mapping, take drill core samples, or use bore-hole cameras. The engineers also failed at that time to consider the safety measures suggested by the geologist in 1957.

In addition, the court found that "even though the bolting and strapping project had an estimated life span of 20 years, at no time after the date of installation did the defendant [State] inspect or maintain the bolts and straps (see, Hesse v. City of New York, 185 App.Div. 707, 173 N.Y.S.827)."

In its review of the trial court's award to Klein for the loss of his wife's future homemaking services, the appeals court held that this award was "inadequate, insofar as the court failed to consider that these services would have been provided to her husband for the remainder of his life (see Gonzalez v. New York City Hous. Auth., 77. N.Y.2d 663, 668, 569 N.Y.S.2d 915, 572 N.E.2d 598; DeLong v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717; Brown v. Horn, 179 A.D.2d 1073, 1074, 578 N.Y.S.2d 951)."

In its October 10, 1995 decision, the appeals court awarded Klein past damages of more than $156,000, plus future damages of $291,000, to compensate for the loss of his wife's homemaking services. The court affirmed the judgment of the trial court as modified, remitted the case to the Court of Claims for a determination of the interest due Klein and for entry of an amended judgment, and awarded the claimants one bill of costs.