Nixon v. State

Appeal from an order of the Court of Claims (Hanifin, J.), entered June 1,1984, which dismissed the claim.

Claimant filed a claim against the State alleging that the State had been negligent in failing to erect signs or other safety devices “warning of the heavy fog condition which existed at the *1047site of the accident”. The claim stated that claimant was involved in an automobile accident on State Route 17 on November 11, 1983 at about 1:05 p.m. The claim also asserted that the State was aware of the fog condition. The State’s motion to dismiss the claim for failure to state a cause of action was granted. This appeal followed.

The order of the Court of Claims should be affirmed. The claim alleges that the accident was caused by the presence of a heavy fog. The State is not an insurer for people who choose to proceed through fog on otherwise safe roads (Johnson v State of New York, 104 Misc 395, 403, affd 186 App Div 389, affd 227 NY 610; see, Elansky v State of New York, 133 Misc 331, affd 226 App Div 713). Further, the State does not have a duty to warn of a transitory natural condition which can be readily observed by the senses (see, Olsen v State of New York, 30 AD2d 759, affd 25 NY2d 665). This accident occurred at 1:05 p.m. and it is not alleged that claimant did not see the fog ahead. The instant factual situation is readily distinguishable from that found in Rindfleisch v State of New York (27 NY2d 762): and claimant’s reliance on Rindfleisch is misplaced.

Order affirmed, without costs. Casey, J. P., Weiss, Mikoll, Levine and Harvey, JJ., concur.