Opinion
# 2017-032-017 Claim No. 124736 Motion No. M-89128
04-04-2017
ELIZABETH DIAZ, as Administratrix of the Estate of FERNANDO DIAZ, JR, and ELIZABETH DIAZ, individually, v. THE STATE OF NEW YORK
Martin & Collin, P.C. By: William Martin, Esq. Of Counsel Hon. Eric T. Schneiderman, NYS Attorney General By: Joan Matalavage, Assistant Attorney General, Of Counsel
Synopsis
Claim alleging wrongful death and conscious pain and suffering based upon defendant's negligent maintenance of a State highway is dismissed on summary judgment.
Case information
| UID: | 2017-032-017 |
| Claimant(s): | ELIZABETH DIAZ, as Administratrix of the Estate of FERNANDO DIAZ, JR, and ELIZABETH DIAZ, individually, |
| Claimant short name: | DIAZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124736 |
| Motion number(s): | M-89128 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Martin & Collin, P.C. By: William Martin, Esq. Of Counsel |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Joan Matalavage, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | April 4, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The underlying claim arises out of a motor vehicle accident that occurred on State Route 9W in the Town of Lloyd, Ulster County on May 2, 2013. Immediately prior to the incident, claimant's husband, Fernando Diaz, Jr. (hereinafter "decedent"), was operating his motorcycle southbound on Route 9W, while Francisco J. Vasquez-Cruz was operating a 2002 Chevrolet Trailblazer (hereinafter "SUV") northbound along the same highway. At approximately 10:40 p.m., the vehicles collided when Vasquez-Cruz crossed into in the southbound driving lane and struck decedent's motorcycle in a head-on manner. The motorcycle was then dragged beneath the SUV for some distance, causing decedent to sustain numerous severe injuries. Following his transport to St. Francis Hospital in the City of Poughkeepsie, Duchess County, decedent was pronounced dead at 11:17 p.m. that same evening.
Claimant Elizabeth Diaz, decedent's spouse and the administratrix of his estate, brings the instant claim alleging that the State negligently constructed, operated, maintained, controlled, repaired, and/or inspected the roadway of Route 9W, and, additionally, that the State Police failed to timely respond to the scene of the accident. Defendant moves for summary judgment on the grounds that the State is immune from liability with respect to the design of Route 9W, and furthermore, the sole proximate cause of the accident was the conduct of Vasquez-Cruz. For the reasons that follow, the Court grants the motion and dismisses the claim.
"Summary judgment is a drastic remedy that 'should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable'" (Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept 2017], quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept 2011]). The proponent of the motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Robinson v Kingston Hosp., 55 AD3d 1121, 1123 [3d Dept 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept 2011]). In considering the motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept 2011]).
As a general matter, defendant's "proprietary duty to keep its roadways in a reasonably safe condition is well settled" (Turturro v City of New York, 28 NY3d 469, 479 [2016]; see Friedman v State of New York, 67 NY2d 271, 286 [1986]; see also Campbell v City of Glen Cove, 19 AD3d 632, 634 [2d Dept 2005], lv denied 8 NY3d 814 [2007]). "With respect to highway safety and design, however, defendant is 'accorded a qualified immunity from liability arising out of a highway planning decision'" (Evans v State of New York, 130 AD3d 1352, 1353 [3d Dept 2015], lv denied 26 NY3d 910 [2015], quoting Friedman v State of New York, 67 NY2d at 283; see Graff v State of New York, 126 AD3d 1081, 1083 [3d Dept 2015]; see also Winney v County of Saratoga, 8 AD3d 944, 945 [3d Dept 2004]). To that end, "[a] governmental body may be liable for a traffic planning decision only when its study is 'plainly inadequate or there is no reasonable basis for its [] plan'" (Affleck v Buckley, 96 NY2d 553, 556 [2001], quoting Friedman v State of New York, 67 NY2d at 284; see Weiss v Fote, 7 NY2d 579, 589 [1960]). "Once the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger" (Friedman v State of New York, 67 NY2d at 284; see Kerns v State of New York, 226 AD2d 1046, 1046 [4th Dept 1996], appeal dismissed 91 NY2d 827 [1997]). "Moreover, after the State implements a traffic plan it is 'under a continuing duty to review its plan in the light of its actual operation'" (Friedman v State of New York, 67 NY2d at 284, quoting Weiss v Fote, 7 NY2d at 587; see Turturro v City of New York, 28 NY3d at 480).
Although not entirely clear from the contents of the claim, claimant appears to be alleging that the portion of Route 9W where the accident occurred was unduly dangerous in that there was inadequate signage, lighting, and/or barriers to reduce the risk of crossover accidents. In support of its motion for summary judgment, defendant has submitted the affidavit of Michael K. Schaefer, a Professional Engineer with the New York State Department of Transportation (DOT), who supervises a part of the Design Office for Region 8, which includes Ulster County. Defendant has also provided detailed reconstruction plans for Route 9W from the years 2003 and 2010 (Exhibit D-1). Schaefer avers that he conducted a visit to the accident site on August 1, 2016, and "the roadway in question was built, signed and the travel lanes were marked in complete compliance with the drawn and approved plans" (Schaefer Aff. ¶ 6). With respect to the need for a median barrier, Schaefer refers to Section 10.2.4 of the Highway Design Manual, which provides, as relevant here, that median barriers should be installed at locations with high-speed, high-volume traffic, a history of median crossover accidents, or potential hazards within the median of a limited access highway (Exhibit D-2, p. 146). According to the plans submitted by defendant, as of 2010, the speed limit for the area of Route 9W where decedent's accident occurred was 40 miles per hour, which is approximately 10 miles per hour less than the baseline limit provided in the Highway Design Manual for installing a median barrier (Exhibit D-1; Exhibit D-2, p. 146). Schaefer further avers that, in reviewing the records maintained by DOT regarding accidents at the location in question, "there was no history of crossover head-on accidents along th[e] one-mile stretch of roadway that was reviewed in relation to this incident" for the three years preceding decedent's accident (Schaefer Aff. ¶ 7; Exhibit D-3). Accordingly, Schaefer opines that because the State fulfilled its duty to construct, maintain, and operate the roadway in question in a reasonably safe condition, the instant claim should be dismissed.
Section 10.2.4 of the Highway Design Manual defines "high-speed" as 80 kilometers per hour or greater, which equates to roughly 49.7 miles per hour (Exhibit D-2, p. 146). --------
The Court finds that the foregoing evidence is sufficient to satisfy defendant's prima facie burden that there existed a reasonable basis for its highway planning decisions with respect to Route 9W (see Blaze v State of New York, UID No. 2012-015-378 [Ct Cl, Collins, J., Dec. 18, 2012]). Defendant has shown that the roadway in question did not meet any of the criteria set forth in the Highway Design Manual for requiring a median barrier at the time of its construction, nor that there was a history of crossover accidents so as to necessitate a barrier, increased lighting, signage, or other reconstruction at the precise location of decedent's accident (see Friedman v State of New York, 67 NY2d at 285). Moreover, the law is firmly established that "the State is not required to undertake expensive reconstruction simply because the standards have changed since the time of the original construction" (Holscher v State of New York, 59 AD2d 224, 227 [3d Dept 1977], affd 46 NY2d 792 [1978]; see Friedman v State of New York, 67 NY2d at 284-286; Hubbard v County of Madison, 93 AD3d 939, 943 [3d Dept 2012], lv denied 19 NY3d 805 [2012]). Rather, "upgrades are necessary only when a roadway has a history of accidents or undergoes significant repairs or reconstruction," which defendant has clearly established was not the case here (Hubbard v County of Madison, 93 AD3d at 943; see Hay v State of New York, 60 AD3d 1190, 1192 [3d Dept 2009]; Fan Guan v State of New York, 55 AD3d 782, 784 [2d Dept 2008]; Guzov v State of New York, 48 AD3d 751, 752 [2d Dept 2008], lv denied 11 NY3d 710 [2008]).
For her part, claimant has not submitted any proof to indicate the existence of material issues of fact as to the question of whether Route 9W was constructed, operated, or maintained in a reasonably safe condition (see Alvarez v Prospect Hosp., 68 NY2d at 324; Town of Kirkwood v Ritter, 80 AD3d at 945-946). Indeed, in the attorney affirmation in opposition to the motion for summary judgment, claimant's counsel concedes, "I have consulted with my expert and he is not able to provide an affidavit to controvert the contentions of defendant's expert" (Aff. in Opposition to Motion, ¶ 3). Accordingly, inasmuch as claimant as failed to prove that "due care was not exercised in . . . the design or that no reasonable official could have adopted it," defendant is entitled to summary judgment with respect to the claim of negligent highway design (Friedman v State of New York, 67 NY2d at 283 [internal quotation marks and citation omitted]; see Briggs v State of New York, UID No. 2015-018-617 [Ct Cl, Fitzpatrick, J., Apr. 22, 2015]; Blaze v State of New York, UID No. 2012-015-378 [Ct Cl, Collins, J., Dec. 18, 2012]; Pierce v State of New York, UID No. 2011-031-049 [Ct Cl, Minarik, J., Nov. 3, 2011]).
Turning briefly to claimant's vague allegations that the State Police failed to timely respond to the scene of the accident and/or render adequate assistance to decedent, it is well settled that, "[a]bsent a special relationship or the assumption of a special duty toward the [decedent], [defendant] is not liable for the failure to provide police protection" (Kircher v City of Jamestown, 142 AD2d 979, 979 [4th Dept 1988], affd 74 NY2d 251 [1989]; see Cuffy v City of New York, 69 NY2d 255, 260 [1987]; DeLong v County of Erie, 60 NY2d 296, 304-305 [1983]). Here, defendant has submitted the affidavit of Daniel S. Bates, a Technical Lieutenant with the State Police, who avers that "the police agency initially on the scene of this collision was the Town of Lloyd Police Department, and not the New York State Police" (Bates Aff. ¶ 4). Additionally, the incident report produced on the night of the accident indicates that the State Police were called to assist the Town of Lloyd Police Department immediately following the accident (Exhibit E-1). Bates further avers that, in his opinion, the primary contributing factor for the collision was the conduct of Vasquez-Cruz, who was found to have been over the legal limit in a toxicology screen following the accident, "for failing to keep right and crossing hazard markings on the roadway" (Bates Aff. ¶ 5). The Court finds that this evidence satisfies defendant's prima facie burden of demonstrating that "there was no direct contact between defendants and the [decedent] upon which a special duty could be based" (Kircher v City of Jamestown, 142 AD2d at 979-980; see Cuffy v City of New York, 69 NY2d at 260). Accordingly, as claimant has raised no material issue of fact indicating that decedent relied upon an assurance of protection to his detriment or that defendant engaged in any affirmative acts giving rise to a duty, defendant is therefore entitled to summary judgment as to the remaining allegations in the claim (see Cuffy v City of New York, 69 NY2d at 260; Kircher v City of Jamestown, 142 AD2d at 979-980; compare Stata v Village of Waterford, 225 AD2d 163, 167-169 [3d Dept 1996]).
Based upon the foregoing, it is hereby
ORDERED, that defendant's motion (M-89128) is granted and the claim (124736) is dismissed.
April 4, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, dated July 16, 2014. 2. Verified Answer, dated August 28, 2014. 3. Affirmation in Support of Defendant's Motion for Summary Judgment, affirmed by Joan Matalavage, AAG, on August 29, 2016, with exhibits, and Memorandum of Law. 4. Affirmation in Opposition to Defendant's Motion for Summary Judgment, affirmed by William Martin, Esq., on November 17, 2016.