Can State's Liability Be Premised on Its Failure to Warn or Give Notice of a Defective Condition on the Highway ?
In Aetna Casualty and Surety Co. v. State of New York and Oueenan v. State of New York, the claimants suffered injury during the winter months when their vehicles traversed pot holes located on State highways.
In those claims, there were no factual allegations pointing to any specific type of negligence on the part of the State, liability being premised merely on the existence of the pot hole (a "defect") on the highway, and in both cases the winter-month exception in Highway Law 58 was held to bar recovery.
In Aetna Casualty and Surety Co. (supra), the Court held that the effect of the winter-month exception to Highway Law 58 was to define the State's duty "with respect to highway defects developing during the winter; i.e., a legislative declaration that the State has no duty to patrol for and repair potholes during the winter months."
In Queenan (supra), the Court held that liability under Highway Law 58 cannot be premised on the State's failure to warn or give notice of a defective condition on the highway (accord, Belair v. State of New York, 212 App Div 206, 209, 208 N.Y.S. 470. supra).