Published: March 28, 2008 01:45 pm         

Trial date set in 2003 death of twins

Sidney Center parents charge Delaware with being liable

By Patricia Breakey
Delhi News Bureau

DELHI _ The parents of twin infants who died Oct. 29, 2003, have been given a trial date for their lawsuit against Delaware County.

Acting Supreme Court Justice Eugene E. Peckham scheduled the case for a jury trial at 9 a.m. Nov. 3.

As part of his decision on a motion filed by Delaware County, Peckham ruled that he was dismissing the complaint against Sheriff Thomas Mills and the county Sheriff’s Department. Grae and Brahm Dykstra, 10 months, of Sidney Center, died after their mother’s car was swept by floodwaters into the Delaware River’s West Branch.

Dawn and Frank Dykstra’s attorney, Christopher Massaroni, of Albany, said, “We are looking forward to having our day in court and finally putting this matter behind us.”

Peckham issued a decision last Nov. 14 addressing motions filed by both sides.

Massaroni said the Dykstras filed for a partial summary judgment seeking a decision on the liability of Delaware County in regard to the factors that led to the accident on county Highway 18. Delaware County’s attorney, Thomas K. Murphy, of Albany, filed asking Peckham to dismiss the complaint.

Dawn Dykstra, 43, drove into floodwaters on county Route 18, just south of Fitch’s Bridge in Delhi, and her car was pulled into the river just after 6 p.m. Oct. 29, 2003.

Dykstra was pulled out of the car by the strong current but got to shore. The bodies of Grae and Brahm, a girl and boy, were recovered from the car Oct. 30.

Peckham wrote that the Dykstras alleged that the county was negligent in three ways: ä The county knew that Highway 18 floods regularly and breached its duty by doing nothing to remedy the condition. ä The county knew the river was rising and might flood Highway 18 and breached its duty by doing nothing to warn motorists of such a dangerous condition.

ä The design plans for Highway 18 called for guide rails at the location where (Dykstra’s) car went into the river and thus the county breached its duty since there were no such rails. The county argued that it was entitled to summary judgment in three respects by claiming: ä The Dykstras cannot prove the county’s negligence was the cause of the accident because Dawn Dykstra could not state the precise location of the accident and thus cannot say she actually encountered flooding within the roadway of Highway 18.

ä The Dykstras cannot prove compliance with the county’s prior written notice law.

ä In relation to the sheriff and the sheriff’s department, the Dykstras cannot prove breach of the required special duty. According to the accident report, which was obtained from the sheriff’s department, Dawn Dykstra said she was blinded by the headlights of an oncoming car and did not see the flooded road surface.

In response to the county’s claims, Peckham wrote, “There is no question there was water across the road on the night of the accident. Summary judgment is denied on the defendant’s first claim regarding the location of the accident.”

Peckham said on the county’s second claim that “There is more than sufficient evidence that Delaware County had constructive notice of a dangerous defect in Highway 18 below Fitch’s Bridge. Summary notice is denied on the defendant’s claim of lack of notice from plaintiff.”

Peckham denied summary judgment on the Dykstras’ motion for summary judgment, saying that there were issues that must be resolved by a jury. The motion filed by Massaroni included statements from various county employees about the conditions of the road the night of the accident and previous flooding at the location where the twins died.

There are also photos of the location gathered from area newspapers and residents, including a photo from The Daily Star taken by former reporter Peter Zicari that appeared Jan. 26, 1978, showing that section of the road with a car engulfed in water.

The county’s attorney, of Murphy, Burns, Barber & Murphy LLT of Albany, could not be reached for comment Monday or Tuesday because he was preparing paperwork on another case, according to a spokeswoman at his office.

___

Patricia Breakey can be reached at 746-2894 or at stardelhi@stny. rr.com.