Opinion
# 2013-031-067 Claim No. 116272 Motion No. M-82947 Cross-Motion No. CM-83004
09-30-2013
MARTIN FLICKNER and EILEEN FLICKNER v. THE STATE OF NEW YORK
Claimant's attorney: E. ROBERT FUSSELL, ESQ. Defendant's attorney: CARTAFALSA, SLATTERY, TURPIN & LENOFF BY: SHAWN P. MARTIN, ESQ.
Synopsis
Claimant failed to adequately rebut competent evidence submitted by Defendant demonstrating that no material question of fact exists relating to the signing, design or maintenance of highway where accident occurred. Defendant's cross motion for summary judgement granted. Claimant's motion for summary judgment denied.
Case information
UID: 2013-031-067 Claimant(s): MARTIN FLICKNER and EILEEN FLICKNER Claimant short name: FLICKNER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116272 Motion number(s): M-82947 Cross-motion number(s): CM-83004 Judge: RENÉE FORGENSI MINARIK Claimant's attorney: E. ROBERT FUSSELL, ESQ. CARTAFALSA, SLATTERY, TURPIN & LENOFF Defendant's attorney: BY: SHAWN P. MARTIN, ESQ. Third-party defendant's attorney: Signature date: September 30, 2013 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers, numbered 1 to 18, were read on motion by Claimants and on cross motion by Defendant, both for summary judgment:
1) Claimant's Notice of Motion (M-82947), filed January 30, 2013;
2) Affirmation of E. Robert Fussell, Esq., dated January 21, 2013, with exhibits;
3) Affirmation of E. Robert Fussell, Esq., dated April 25, 2012, with exhibits;
4) Affirmation of E. Robert Fussell, Esq., dated May 22, 2012;
5) Affidavit of James D. Orr, sworn to April 20, 2012, with exhibits;
6) Affidavit of James D. Orr, sworn to May 21, 2012;
7) Affidavit of Martin Flickner, sworn to April 23, 2012;
8) Affidavit of Brandan Flickner, sworn to April 23, 2012;
9) Affidavit of Brandan Flickner, sworn to May 21, 2012;
10) Claimants' Memorandum of Law, dated April 25, 2012;
11) Defendant's Notice of Cross Motion (CM-83004), filed February 11, 2013;
12) Affirmation of Shawn P. Martin, Esq., dated February 6, 2013, with exhibits;
13) Affidavit of Daniel S. Farrelly, sworn to November 30, 2011, with exhibits;
14) Defendant's Memorandum of Law, dated February 6, 2013;
15) Reply Affirmation of E. Robert Fussell, Esq., dated February 25, 2013;
16) Claimants' Memorandum of Law, dated February 25, 2013;
17) Reply Affirmation of Shawn P. Martin, Esq., dated March 13, 2013, with exhibit;
18) Filed Documents: Claim and Answer.
BACKGROUND
In their underlying claim, filed on January 5, 2009, Martin and Eileen Flickner allege that, on October 25, 2008, Martin was injured in a single car motor vehicle accident that occurred at the site of a reconstruction project undertaken by Defendant on Route 63 in the town of Covington, New York. Claimants allege that Mr. Flickner's injuries were proximately caused by Defendant's failure to properly maintain, light and sign the area where the roadway had been redesigned.
Claimant Martin Flickner was the sole occupant of the vehicle. Claimant Eileen Flickner's claims are entirely derivative.
The project was undertaken to address an "elbow bend" in Route 63 which had a relatively high accident history. The Department of Transportation decided to remove the "elbow bend" and straighten out Route 63. After realigning Route 63, however, it was necessary to leave a portion of this "elbow bend" open, to permit local access by the people whose houses were on that section of road. This section of "Old 63" that contained the "elbow bend" and was left open for local access is called Big Tree Road. While access to this old section was available, it was converted to a dead end, with access from Peoria Road in the center and with a cul-de-sac turnaround placed at either end. As part of the project, the Defendant placed a "dead end" sign at the entrance to Big Tree Road, and placed reflective delineator posts around the perimeter of each turnaround.
Claimants allege that, although Mr. Flickner was extremely familiar with the area, and well aware of the nature and extent of the realignment of Route 63, on the day in question he simply "forgot about the road [being] permanently closed" (Martin Affirmation, Exhibit E). He drove past the "dead end" sign, through the cul-de-sac, beyond the reflective posts delineating the perimeter of the cul-de-sac, off the roadway, and into a rock-filled drainage ditch approximately 125 feet away. Mr. Flickner suffered fractures of his right femur, left wrist and several ribs.
CURRENT MOTIONS
Claimants now move and Defendant cross-moves for summary judgment. In support of their motion, Claimants contend that the State breached its duty to ensure that its construction project left Big Tree Road in a reasonably safe condition. Through the affidavits of their expert, James Orr, Claimants assert that the signage in place after completion of the project was not sufficient to notify the traveling public that Big Tree Road was a dead end.
This is the second such motion for each party, as similar motions were denied without prejudice when Claimant identified a witness who potentially had information relating to Defendant's limited immunity defense.
--------
In support of its cross motion, the State contends that the project was designed and constructed in accordance with all appropriate standards and that Defendant, in addition to not being negligent, enjoys qualified immunity based upon the doctrine set forth in Weiss v Fote (7 NY2d 579 [1960]), which requires dismissal of the claim. Whether this Weiss v Fote qualified immunity applies in this case was the main issue addressed by the parties.
ANALYSIS
In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The proponent of a motion for summary judgment 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 (Winegrad, 64 NY2d 851, 853).
When the moving party has successfully met its burden, the party who opposes a summary judgment motion must "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and are capable of being established upon a trial" (Di Sabato v Soffes, 9 AD2d 297, 301 [1st Dept 1959], appeal dismissed, 11 AD2d 660 [1st Dept 1960]). Bald, conclusory assertions (Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970]) and the shadowy semblance of an issue cannot, by themselves defeat a motion for summary judgment (Di Sabato v Soffes at 300).
Although the State does have a duty to maintain its highways in a reasonably safe condition, it is not the insurer of the safety of its roads, which means that no liability will attach to the State unless its ascribed negligence is the proximate cause of the accident (see Redcross v State of New York, 241 AD2d 787, 788 - 789 [3d Dept 1997], lv denied 91 NY2d 801[1997];Hough v State of New York, 203 AD2d 736 [3d Dept 1994]).
As mentioned above, the State's liability is further limited by the fact that, in the field of traffic design engineering, it is accorded a qualified immunity which can only be overcome with proof that a highway planning decision evolved without adequate study or lacked a reasonable basis (see Friedman v State of New York, 67 NY2d 271, 283 - 284 [1986]; Niles v State of New York, 201 AD2d 774 [3d Dept 1994]). Weiss v Fote (7 NY2d 579) is the seminal case that is often cited for the proposition that, because the State's determinations regarding public works and improvements are quasi-judicial or discretionary, the State is not liable for a "failure to exercise [this power] or an erroneous estimate of the public needs" (id. citingUrquhart v City of Ogdensburg, 91 NY 67). Municipalities are granted qualified immunity from liability for roadway planning decisions unless the plan was "evolved without adequate study or lacked reasonable basis" (Weiss, 7 NY2d 579, 589; see Affleck v Buckley, 96 NY2d 553, 556 [2001]; Friedman, 67 NY2d 271, 284).
Mr. Flickner was familiar with the realignment project and he was aware that Big Tree Road had been closed permanently and was no longer a through street. Claimants argue, however, that because he was so familiar with that roadway (it being within five miles of his home and his having driven it five or six times a week for several years), in the dark of the early morning of the accident, he simply forgot and, out of habit, drove the way he had driven for years before the road had been closed.
Claimants argue that the Weiss v Fote doctrine is not applicable in this matter because Defendant failed to adequately consider what signs should be used, and its decisions with regard to signage it did use lacked a reasonable basis. In support of this position, Claimants have offered two affidavits from Mr. James Orr, an expert in accident reconstruction. Mr. Orr opines that the placement of signs on Big Tree Road after completion of the project was unreasonably dangerous, and that Defendant negligently failed to consider that extra protection was necessary to protect drivers in the habit of traveling through this area on Old Route 63.
Defendant, in support of its contention that the immunities of Weiss v Fote do apply, argues that its actions were both reasonable and based upon an adequate study of the needs and requirements of the project undertaken. Defendant's expert, Daniel S. Farrelly, a Civil Engineer 2, supervised the design and specifications of traffic control devices and safety appurtenances for the project. He states that it was his determination to approve the final plan for signage, and that this determination was made "in conjunction with the Department's Traffic and Safety Group, who provided review and guidance as needed in conformance with the Manual of Uniform Traffic Control Devices ("MUTCD")" (Farrelly Affidavit, ¶ 12).
Deposition testimony from Maret Godfrey, a senior engineering technician employed by Defendant, and the documents identified at her deposition, clearly demonstrate this collaborative back and forth described by Mr. Farrelly. Mr. Farrelly's affidavit also demonstrates, and Claimants do not contest, that the entire project complied with all applicable standards contained in the MUTCD and the Highway Design Manual.
Mr. Flickner clearly sustained his injuries when he drove into the rock (rip rap) covered drainage culvert after he passed through the cul-de-sac and left the roadway. But Claimants do not allege, at least not directly, that this culvert constituted a defective condition. Claimants' counsel does spend considerable time discussing the riprap and what he alleges was Defendant's failure to consider whether or not that constituted a danger. He does not, however, assert, or offer any evidence, to prove that the culvert did affirmatively constitute a defective condition. This is perhaps because the drainage ditch complied with all known and applicable standards, and because it was almost half a football field away from the termination of Big Tree Road at the turnaround. Further, Claimants' own expert is of the opinion that there was no defect in the design of the roadway (Orr April 20, 2012 Affidavit, ¶ 22).
According to Claimants' expert, Mr. Orr, the only defective condition was the lack of appropriate signage to sufficiently warn travelers that the roadway terminated. However, Mr. Orr can identify no standard, rule, guideline or regulation that has been violated. Mr. Orr concedes that the project was adequately signed for the general traveling public, or at least for someone who was not familiar with the area. In fact, Mr. Orr's opinion that the signage was inadequate was limited to only someone in the habit of driving through that area prior to the changes having been made. Accordingly, it appears that Claimants' position is that the manner in which the roadway was signed was not dangerous in and of itself, but it became so when combined with a driver who habitually drove Route 63 prior to the project (Orr April 20, 2012 Affidavit, ¶¶ 17, 22; May 21, 2012 Affidavit, ¶¶ 7, 9).
Importantly, Mr. Orr also candidly concedes that the project was signed in compliance with the MUTCD. This concession is very damaging to Claimants' position as "[t]he reference point for measuring the reasonableness of DOT's decisions herein is the Manual of Uniform Traffic Control Devices" (Zecca v State of New York, 247 AD2d 776, 777 - 778 [3d Dept 1998]; see also Martindale v Town of Brownville, 55 AD3d 1387 [4th Dept 2008]; Fisher v State of New York, 268 AD2d 849 [3d Dept 2000]).
A careful reading of Mr. Orr's affidavits demonstrates that this is really a simple negligence case that has been cast in the posture of a highway design case. Defendant, after completion of the project, and after receiving notice of the alleged problem, took appropriate remedial steps. Defendant didn't receive such notice, however, until after Mr. Flickner's accident. Therefore, Claimants are left with the significantly harder task of demonstrating that Defendant should have anticipated accidents such as Mr. Flickner's prior to the project's completion and incorporated the remedial measures into the project. Claimants have offered no basis for this conclusory statement, however.
Claimants' own expert does opine that the roadway is not sufficiently signed for someone who habitually drove through on Old Route 63. However, he bases this opinion entirely on events and information that was available only AFTER Mr. Flickner's accident. Mr. Orr's affidavit, in numerous places, makes it abundantly clear that his opinion that the signage was inadequate is based upon the post construction accident and "turn around" reports, none of which was available to Defendant when the project was designed and constructed. Mr. Orr's assertion, made with 20-20 hindsight, that employees of the Department of Transportation should have known to alter the customary and admittedly MUTCD compliant specifications for this project because someone with an ingrained habit of traveling via Old Route 63 could be expected to fail to notice the otherwise sufficient highway markings is without merit. First, if it were as obvious as Claimants suggest, one would expect that the situation would be addressed in the MUTCD and the Highway Design Manual. It is not. Further, Mr. Orr identifies no standard, no regulation, no guideline and no custom or practice that Defendant violated.
Defendant did consider and discuss back and forth, between the highway design group and the traffic and safety group, the signage appropriate for this project. Mr. Farrelly and his team determined the appropriate standards for signage and clearly met those standards. It is perhaps reasonable enough to agree with Mr. Orr's unsupported opinion that drivers who habitually drove Old Route 63 might "forget" that the road was now a dead end and turn onto Big Tree Drive. It is quite another thing, however, to accept without support his statement that it was equally foreseeable that such drivers would also: 1) forget/miss the "dead end" sign; 2) forget/miss the reflective delineators marking the perimeter of the turnaround; 3) leave the roadway; and 4) be unable to stop after leaving the roadway for 125 feet before encountering the drainage ditch.
"When highway design comports to the standard applicable at the time of construction or reconstruction, the Authority has met its duty unless there is some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it" (Cipriano v State of New York, 171 AD2d 169, 173 [3d Dept 1991]). Claimant has failed to make such a showing and Defendant is, therefore, entitled to qualified immunity under the Weiss v Fote doctrine.
Accordingly, I find that Mr. Flickner's admitted negligence, coupled with Claimants' failure to demonstrate that the road was either constructed, maintained or signed improperly and Claimants' failure to demonstrate any notice of a dangerous condition to Defendant, require that Claimants' motion for summary judgment be denied and that Defendant's cross motion for summary judgment be granted.
Based upon the foregoing, it is
ORDERED, that Claimants' motion M-82947 is hereby denied. And it is further
ORDERED, that Defendant's cross motion for summary judgment (CM-83004) is granted and the claim is dismissed.
September 30, 2013
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims