Opinion
# 2013-010-064 Claim No. 115807
04-14-2014
YESICA AGUSTINA ESCOBAR FUENTES, and LEYDI ARELY FUENTES PAZ v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY
SIMON, EISENBERG & BAUM, LLP By: Sagar Shaw, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: J. Gardner Ryan, Assistant Attorney General
Synopsis
Roadway design was not contributing cause of fatal accident with cargo van of 13 passengers going over guide rail and hitting concrete pillar.
Case information
| UID: | 2013-010-064 |
| Claimant(s): | YESICA AGUSTINA ESCOBAR FUENTES, and LEYDI ARELY FUENTES PAZ |
| Claimant short name: | FUENTES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 115807 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | SIMON, EISENBERG & BAUM, LLP By: Sagar Shaw, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 14, 2014 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) | 2013-010-065, 2013-010-066, 2013-010-067, 2013-010-068, 2013-010-069 |
On June 14, 2008, Juana Rodriguez-Hernandez was driving an eight-year-old cargo van with two loosely secured benches, without safety belts, that had been placed in the back of the van for 13 female passengers who worked as cocktail waitresses at bars located in Newburgh, New York. The owner of the bars provided the vehicle to transport the young women, who were picked up in the early evening from their homes in New Jersey and returned home after the bars closed at 4:00 a.m. At approximately 4:30 a.m., as the driver proceeded southbound on the New York State Thruway in the Town of Tuxedo, she left the roadway at mile marker 39.9, between exits 15A and 16. Crossing over the roadway's rumble strips, a 10-foot-wide paved shoulder, and continuing onto the grassy median, the van then struck the tapered end of a corrugated beam guide rail and went over it. The van continued on the median toward a 30-inch-wide concrete, central-support pillar of a pedestrian bridge. The pillar was struck head-on and the driver of the van and two passengers were killed. The surviving passengers sustained serious injuries.
At trial, the passengers testified that they had no recollection of the events leading to the accident because they had fallen asleep shortly after getting into the van and were asleep at the time of impact. Thus, they could not provide any information as to the speed of the van, the flow of traffic or the condition of the roadway. Claimants allege that defendants were liable in the design, construction and maintenance of the roadway. Specifically, claimants contend that the guide rail was insufficient to deflect the van and prevent it from hitting the concrete pillar. Defendants maintain that the accident was not due to any negligence attributable to them and that the guide rail complied with the applicable engineering standards.
. A joint trial of the six claims was ordered to address the issue of liability (Fuentes v State of New York & ano., Ct Cl, July 10, 2013, Sise, APJ., Motion No. M-83230).
New York State Trooper Keith Page responded to the scene at approximately 6:00 a.m. He has been employed by the New York State Police since 1991 and has been a collision reconstructionist since 1999. He took photographs and measurements at the site which he included in his report (Ex. 8). In the vicinity of the accident, the Thruway had three southbound lanes and three northbound lanes separated by a grassy median. There were rumble strips on the road to alert motorists if they left the travel lane. A cross-beam guide rail ran adjacent to the bridge pillar in the grassy median. Approaching the bridge from the north, a vehicle would first pass 35 feet of tapered guide rail and then 75 feet of full height (32 inch) guide rail. Page testified that there were tread marks on the grass, however, there were no skid marks on the pavement and therefore he could not estimate the speed of the van. Based upon his examination of the van and its brake lights, Page determined that the brakes had not been applied at the time of impact and there was no indication that the driver had attempted to steer the van prior to impact. He concluded that driver inattention and subsequent improper lane usage was the primary cause of the accident and that the van drove over the guide rail within the tapered section and then struck the north side of the bridge pillar.
Thomas Gemmiti, a licensed professional engineer employed by the New York State Thruway Authority (NYSTA) for 31 years, testified that in 1990 he was the squad leader for a repaving contract (TANY 90-48) on the Thruway which included the accident site. Gemmiti explained that the highway rehabilitation project included resurfacing the roadway and replacing the existing guide rail to meet current safety standards and conform with the engineering standards of the New York State Department of Transportation's Design Manual (the State's Design Manual). Referring to the calculation made by the engineer-in-charge of the project, who used a 15-degree angle from the edge of the pavement to the pillars in determining the length of a full-height guide rail necessary to deflect an errant motorist, the contract called for 87 feet of full-height guide rail and 25 feet of tapered guide rail north of the bridge pillar to meet the State's Design Manual. At the time of the accident, there was 90 feet of full-height guide rail north of the pillar and 25 feet of tapered guide rail. According to Gemmiti, the goal is to install the most forgiving guide rail system. Corrugated beam guide rail, as used here, is most common, followed by box beam and concrete jersey barriers.
Christopher Richards, Assistant Traffic Supervisor for the New York Division of the NYSTA for 13 years, testified that his division covered the area surrounding the accident site between exits 15A and 16. Richards' responsibilities included responding to accident scenes with fatalities and serious physical injuries. In testimony elicited by claimants' counsel, Richards testified that he became aware of accidents in his territory whether or not he personally responded to them. Richards did not recall any accidents prior to 2008 between exits 15A and 16.
Marvin Specter offered expert testimony on behalf of claimants. Specter, a licensed, professional engineer in seven states, has had a long career dating back to the 1940's. He has had extensive experience in highway design. Specter opined that the NYSTA had departed from good and acceptable design and engineering practice by relying upon the State's Design Manual which he described as inadequate. He further testified that he was puzzled as to why the State had never adopted the American Association of State Highway Transportation Officials (AASHTO) standards. In Specter's view, the NYSTA should have relied upon the AASHTO guide in selecting the length of the guide rail. Specter opined that had the NYSTA followed the AASHTO guidelines, the full-height guide rail would have been over 200 feet, more than double the existing length, and the guide rail would have deflected the van. According to Specter, since the van had traveled over the tapered section of the guide rail, the guide rail was not sufficient to deflect a motorist from hitting the pillar. Specter did concede that the guide rail met the criteria set forth in the State's Design Manual and that guide rails themselves pose a hazard to motorists.
Nicholas Pucino, a professional engineer with the New York State Department of Transportation and its predecessor agencies for over 30 years until his retirement in 1991, offered expert testimony on behalf of defendants. Pucino explained that the purpose of the State's Design Manual is to provide uniform safety criteria to municipalities for their design of roadways and guide rails. He further maintained that it was reasonable for the NYSTA to follow the standards set forth in the State's Design Manual. Pucino reviewed the calculations made by the engineer-in-charge of the 1990 TANY 90-48 rehabilitation project and concluded that they complied with the State standards. Pucino criticized the AASHTO formula used to calculate the required length of a guide rail because it is based upon the assumption that any vehicle leaving the roadway should be stopped by the guide rail. Pucino characterized this as "overkill" because it failed to consider that the guide rail itself poses a hazard to errant motorists and it does not allow for a motorist's efforts to regain control of the vehicle and avoid impacting the guide rail (T:340).
. References to the trial transcript are preceded by the letter "T."
Pucino also criticized Specter's opinion that a longer guide rail would have deflected the van. On the contrary, Pucino stated that it was impossible to determine the effect that a longer guide rail would have had. Pucino further noted that in 1990, guide rails were designed for passenger cars and not cargo vans which are taller. Therefore, a longer guide rail would not have necessarily helped in this situation as it could have caused the van to rollover rather than deflect the van. Pucino explained that, according to the State Design Manual, guide rail projects are designed to adopt the most forgiving systems and that the intended function of a guide rail is to promote the overall safety of the traveling public rather than to stop every vehicle that makes contact with the guide rail. Pucino reasoned that it is always a tradeoff in balancing the need to prevent an errant vehicle from getting around a guide rail and hitting a fixed object and the risk posed by an extended guide rail.
On cross-examination, it was elicited from Pucino that the only barrier that could have contained the van was a full-wall concrete barrier (T:371-372). Pucino further stated that such a barrier was not very forgiving and was not appropriate for this roadway. He described the balancing between using a massively strong barrier, which could contain a van or a tractor-trailer, and the effect that such a barrier would have on a lighter vehicle (T:372-374). Pucino further explained that, in designing the barriers appropriate for a roadway, you address the "predominant vehicle" because "[i]f you pick a heavy or a larger vehicle and try to stop that, you're going to serious [sic] injure or kill people in smaller and lighter vehicles. So it's that tradeoff" (T:374).
Pucino further noted that a review of the accident history in the location at issue did not reveal an unusual number of accidents or any prior similar accidents where an errant vehicle entered the area intended to be shielded by the guide rail. Pucino concluded that the guide rail in place at the time of the accident met the applicable standards and the configuration did not pose an unreasonable danger to motorists.
Analysis
A municipality has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition and that duty encompasses the guide rails and the area adjacent to the roadways (see Gomez v New York State Thruway Auth., 73 NY2d 724 [1988]; Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579, 584 [1960]). The roadway in issue was owned, designed, constructed, maintained and operated by the NYSTA, a separate legal entity from the State. The NYSTA is not an insurer of the safety of its roadways and the mere happening of an accident does not render it liable (see Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). In the field of traffic design engineering, a government entity is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (see Friedman, 67 NY2d 271; Weiss, 7 NY2d 579; Schwartz v New York State Thruway Auth., 61 NY2d 955 [1984] [planning decision not to extend the guide rail was upheld]).
. The State does not own, operate or maintain the roadway and claimants have not shown any basis for liability against the State.
--------
The evidence presented established that the NYSTA had adequately considered its design plan in accordance with the applicable safety standards and its rehabilitation project did not lack a reasonable basis and was not plainly inadequate (see Jones v County of Niagara, 15 AD3d 1002 [4th Dept 2005] [municipality's decision as to placement and design of guide rail comported with standards at time of construction and its planning decision prevails absent any indication that due care was not exercised by the municipality]; Steenbuck v State of New York, 111 AD3d 819 [2d Dept 2013] [claimant failed to show any negligence ascribable to the State proximately caused accident]). The Court rejects claimants' argument that the NYSTA was negligent in failing to follow the AASHTO guidelines or that the design of the roadway and its guide rail was a contributing cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-22 [1987]).
Further, absent proof of a dangerous condition, the NYSTA is not required to upgrade any roadway to conform to new standards which evolved subsequent to the original construction (see Merino v New York City Tr. Auth., 218 AD2d 451 [1st Dept 1996], affd 89 NY2d 824 [1996]; Trautman v State of New York, 179 AD2d 635 [2d Dept 1992]). While proof of prior accidents at the same location and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice, in this case, there was no proof presented to establish that there had been a significant number of accidents to warrant a change in the area of the accident (see Martin v State of New York, 305 AD2d 784 [3d Dept 2003] [the number of prior accidents was insufficient to put defendant on notice of a dangerous condition or impose a duty to take remedial action]; Light v State of New York, 250 AD2d 988 [3d Dept 1998] [no evidence of unusual number of accidents to support a finding that the State had notice of a dangerous condition requiring remedial action]). Indeed, "[s]omething more than a mere choice between conflicting opinions of experts is required" before the NYSTA "may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public"(Weiss, 7 NY2d at 588).
It is well established that:
"[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury"
(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]). Claimant must prove negligence for liability to attach (Tomassi, 46 NY2d 91).
Here, the driver, traveling a familiar route, was obligated to operate the van at a rate of speed and in such a manner of control as to avoid an accident (see Woolley v Coppola, 179 AD2d 991, 992 [3d Dept 1992]). Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the accident was due to several possible causes, including a lapse on the part of the driver. Thus, the Court cannot impose liability against the NYSTA because such an inference would be based upon mere speculation (see Johnson v State of New York, 27 AD3d 1061 [4th Dept 2006] [liability will not be inferred where there are several possible causes of the accident, including driver error]; Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [3d Dept 1983] [court rejected argument that failure to have a longer guide rail extending where claimant left the roadway was a proximate cause of injuries; rather it was driver's negligence in failing to bring vehicle to halt or to change its direction of travel], affd 61 NY2d 955). Equally speculative and unsupported by the evidence is the conclusion that a longer guide rail would have deflected the van and circumvented the resulting accident.
Accordingly, Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.
All other motions not previously ruled upon are DENIED.
LET JUDGMENTS BE ENTERED DISMISSING CLAIM NOS. 115807, 118314, 118506, 118507, 118508 AND 120544.
April 14, 2014
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims