Opinion
# 2019-015-205 Claim No. 130721
02-21-2020
GREGORY J. ROQUE v. STATE OF NEW YORK
Mainetti, Mainetti & O'Connor, PC By: Michael A. Mainetti, Esq. Honorable Letitia James, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General
Synopsis
Case information
| UID: | 2019-015-205 |
| Claimant(s): | GREGORY J. ROQUE |
| Claimant short name: | ROQUE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130721 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Mainetti, Mainetti & O'Connor, PC By: Michael A. Mainetti, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 21, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claim alleging improper highway maintenance was dismissed following trial inasmuch as claimant failed to establish, by a preponderance of the credible evidence, that his motorcycle accident was proximately caused by lack of traffic control devices at an intersection, the drop-off from the paved lane to the adjacent shoulder or the maintenance of the highway shoulder or guardrail.
Claimant seeks damages for personal injuries sustained on May 19, 2017 when the motorcycle he was operating struck a guide rail on Route 23A in the Town of Catskill, New York. At the time he was attempting to avoid a vehicle which had allegedly made a left turn into his lane of travel. Claimant alleges the accident was due, in whole or in part, to the negligence of the New York State Department of Transportation (DOT) in failing to maintain the highway shoulder in a reasonably safe condition, in improperly installing a guardrail, and in failing to maintain adequate sight distance at the intersection.
In addition to testifying himself, claimant called as witnesses Mark Pyskadlo, Regional Traffic Engineer for the DOT; Andre Darwin Stuart, an expert; Dillon Edward McAvoy, a co-worker who happened upon the accident scene after the accident; claimant's wife, Deborah Doersch; Judith Dushane, the operator of the left-turning vehicle; Paul B. Rosenblatt, Jr., the responding State Trooper; Stephen Clinton, the Greene County Resident Engineer on the date of claimant's accident and John Serth, Jr., P.E., an expert. Defendant called Mr. Pyskaldo, Dominick J. Gabriel, P.E., a former Resident Engineer for DOT in both Saratoga and Washington Counties and John McManus, an expert, as witnesses.
Claimant, age 58, testified that he was in the Air Force for 21 years, that he received his motorcycle license in either 1980 or 1981, completed motorcycle safety courses while in the military and has experience operating "everything from Hondas, Kawasakis, to three . . . different Harley-Davidsons" over the course of 35 years (Tr. 117). At present, claimant is employed as a second-shift plant manager for a manufacturing company in Coxsackie, New York. He began his employment in that capacity approximately eight months prior to his accident.
References to the trial transcript are indicated herein by (Tr.)
Claimant testified that his normal route from his home in Saugerties, New York to his workplace was to follow Route 23A to Route 9N. He estimated that he had driven that same route by motorcycle "[a] couple of dozen times" and by various other vehicles "probably two, three dozen times" (Tr. 118). On the day of the accident, a Friday, claimant left work at approximately 2:20 p.m. He testified there were no cars in front of him and that the weather was "[n]inety-three degrees, sunny, no rain, no wind" (Tr. 122). Operating a Harley Davidson motorcycle he traveled westbound on Route 23A, crossed a bridge over the New York State Thruway at 45 miles-per-hour (m.p.h.), and began to lean into a "lazy S-turn" when he observed a vehicle turn left into his lane of travel from Old Kings Road (located on the south side of Route 23A) (Tr. 121). Claimant stated that while there were no traffic control devices on Route 23A, there was a stop sign and a stop line for traffic entering Route 23A from Old Kings Road. Claimant testified that he was less than 100 feet from the other vehicle when it entered the intersection. At that point, claimant blew his horn which caused the other vehicle to come to a stop at an approximate 45-degree angle across the westbound lane of travel. He leaned his motorcycle to the right, downshifted, and succeeded in passing the vehicle on the right side while traveling at approximately 40 m.p.h. Claimant explained that because there was very little room in the traffic lane to pass the vehicle, he attempted to go around the vehicle on the right shoulder. Although he avoided contact with the vehicle, when he began to lean his motorcycle in order to return to the travel lane " the front right rim of my bike dipped off -- [what] I would call a curb . . . follow[ed] by the rear -- the rear tire, and it was like -- for lack of a better term, it wasn't a shoulder, it was a washed out streambed, just like trying to control a bike on a sandy beach" (Tr. 125). Claimant testified that he felt "a jolt" when his front tire transitioned from the paved to the unpaved portion of the shoulder, and that when his rear tire encountered the unpaved portion of the shoulder it became unresponsive (Tr. 125). According to the claimant it was like being stuck in a "rut" because "the gravel was so loose" (Tr. 125). In addition, "there was a lot of large obstacles in the shoulder, asphalt, I recall seeing a bumper, other vehicle pieces and parts, and at that point in time, I made contact with the -- the guardrail on the right-hand side of my bike" (Tr. 125-126). Claimant described the paved portion of the shoulder as "[d]eteriorated . . . . The sides were collapsed, and there was very, very large separated pieces of asphalt" (Tr.126). He testified that had he applied the front brake his wheel would have spun in the "loose, heavy gravel," so he did his "best to control the bike at roughly 40 miles-an-hour to stay off the throttle, to guide the bike back up on the road" (Tr. 126-127). Claimant was not able to return his motorcycle to the paved portion of the road, and his right leg and right side of the motorcycle struck the guardrail. Claimant later testified on cross-examination that he used only his rear brake to slow down, and estimated he had slowed to approximately 40 m.p.h. as he went around the other vehicle, and was traveling approximately 30 to 35 m.p.h while on the shoulder. Once claimant struck his right foot against the guardrail he no longer had the ability to use his rear brake.
Route 23A contains single lanes for both westbound and eastbound traffic.
Claimant identified Exhibit 57 as a photograph depicting his motorcycle immediately after the accident. Will Palmer Road, which intersects Route 23A from the north, can be seen in the background of Exhibit 57. According to the claimant, his motorcycle came to rest several feet from the "terminating section of the guide rail into the ground" on the north side of Route 23A (Tr. 131). He testified that Exhibits 23 through 42 depict "[t]he shoulder area where I traversed my bike" and identified Exhibits 27 through 30 as fair and accurate depictions of the shoulder on the north side of Route 23A (Tr. 132). He also testified that Exhibits 36 and 37 show the area just west of the intersection of Old Kings Road where claimant's motorcycle physically departed the pavement. Claimant placed an arrow on Exhibit 36, received in evidence as Exhibit 36A, to show the general area where his motorcycle left the roadway. However, he was unable to identify the precise location where his motorcycle left the road, stating "I could give you a 30-foot, 40-foot good idea. I was a little busy trying to control the bike" (Tr. 143). Claimant further identified Exhibit 34 as depicting the portion of the shoulder alongside the westbound lane of Route 23A that he traversed before coming in contact with the guardrail. Claimant testified that Exhibit 31 shows the place where he physically came to rest following the accident (Exhibit 31B), and he placed an arrow on the photograph, received in evidence as Exhibit 31A, to show the approximate location of his motorcycle after the accident. Claimant testified that the conditions he encountered on the shoulder that day -- lack of substructure, an elevation differential from the paved road to the unpaved shoulder, the streambed-like terrain, and debris -- all affected the operation of his motorcycle adversely. Claimant concluded by stating "you can't ride a bike on a beach" (Tr. 157-158) and, when questioned by the Court, provided the following response:
"THE COURT: Where did your loss of control begin?
THE WITNESS: The true loss of control, what I noticed was once the front and rear tire separated, and I realized that I was in a sand pit, it was only
THE COURT: Separated
THE WITNESS: Separated the -- the hardened surface of the road
THE COURT: Mm-hmm.
THE WITNESS: -- on -- onto the shoulder, and it was trying -- I did try to lean the bike, and it gets very squirrely, so I straightened the bike up, and then immediately was sucked into the guardrail by the debris" (Tr. 158).
Claimant and his then-girlfriend (now wife), Deborah Doersch, returned to the accident scene in August 2017 to retrieve his personal property from the site of the accident. Claimant identified Exhibit 55 as a photograph taken that day which provides a fair and accurate representation of the westbound shoulder of Route 23A as it existed on the date of the accident. Claimant testified parts of his motorcycle were found along the shoulder beginning approximately 50 feet east of Will Palmer Road and that pieces of his saddlebag were found approximately 25 to 30 feet east of the area depicted in Exhibit 55.
Deborah Doersch, claimant's wife, testified that she and the claimant have been married for two years and resided together on the date of his accident. She testified that approximately five to seven days after the accident she went to the junkyard where claimant's motorcycle was being stored and took photographs of the bike (Exhibits 1-5). Ms. Doersch stated that she and the claimant returned to the scene of the accident in August 2017, where they found claimant's insurance manual, tool kit, small pieces of his saddlebag and a first aid kit.
Judith Dushane was the operator of the vehicle that claimant testified made a left turn from Old Kings Road into the westbound lane of Route 23A. Ms. Dushane has lived on Old Kings Road for 22 years and is very familiar with the intersection of Old Kings Road and Route 23A. She testified that on the day in question she stopped at the stop sign on Old Kings Road, looked both ways, saw no traffic, and proceeded to make a left turn onto Route 23A. After Ms. Dushane began her left turn onto Route 23A a motorcycle came "[o]ut of nowhere . . . on the side of me" (Tr. 198). Ms. Dushane stated that she had completed her left turn and her vehicle was entirely within the westbound travel lane of Route 23A when the motorcycle came up along the passenger side of her vehicle. According to Ms. Dushane, claimant passed her on the right or passenger side of the vehicle while driving on the shoulder, reentered the travel lane in front of her, and then traveled back over to the shoulder of the road before making a right turn onto Will Palmer Road. Ms. Dushane testified that she was traveling at approximately 15 to 20 m.p.h. and did not travel far on Route 23A before she heard the motorcycle crash. At that point she backed-up her car, got out, and observed the motorcycle operator sitting on Will Palmer Road.
On cross-examination, Ms. Dushane testified that the claimant's accident occurred at approximately 2:45 p.m. while she was on her way to pick up her granddaughter from school, an approximate 20 minute drive. Ms. Dushane testified that nothing blocked her view when she stopped at the stop sign on Old Kings Road and looked to her right, that she could see all the way to the thruway bridge, and that she observed no oncoming vehicles in either direction. Ms. Dushane reiterated that she had completed her left turn and was completely in the westbound lane of travel when she saw the claimant for the first time appear on the passenger side of her car. According to Ms. Dushane, claimant was traveling at approximately 15 to 20 m.p.h. when he passed her vehicle on the right, traveled onto the shoulder, and then pulled into the westbound travel lane in front of her car before returning to the shoulder of the road. Ms. Dushane testified that the claimant was not in front of her car for long before he returned to the shoulder of the road. Ms. Dushane did not see the claimant strike any object or lose control of his motorcycle, and no operational problems were apparent during the brief time she observed the claimant in front of her.
Dillon Edward McAvoy worked with the claimant at their mutual place of employment. He related that the claimant was a second-shift supervisor and, while they were acquainted and would occasionally talk at work, they were not personal friends. Mr. McAvoy testified that he came upon the claimant's accident while proceeding westbound on Route 23A on his way home from work. He pulled his car over to the side of the road and heard the claimant call his name. Emergency personnel had not yet arrived and the claimant was leaning against a man who was holding a tourniquet on his leg. Also at the scene upon his arrival was a woman whose identity he did not know. Mr. McAvoy placed an arrow on a photograph received as Exhibit 18A to indicate the location where he observed claimant's motorcycle while at the accident scene (see Exhibit 18A). He testified that Exhibit 57 also fairly and accurately depicts the location of claimant's motorcycle. Mr. McAvoy testified that Exhibit 56 is a photograph taken looking east toward the thruway bridge and shows the claimant's saddlebag located near the end of the guardrail, and other property of the claimant's scattered east of the saddlebag for a distance of approximately 40 feet toward the bridge. Shortly after Mr. McAvoy arrived on the scene, other vehicles stopped to render assistance and the State Police arrived. Mr. McAvoy testified that he spoke briefly with a state trooper after claimant was removed from the scene.
Mr. McAvoy left this job in April, 2019.
Paul R. Rosenblatt, Jr., is a state trooper employed by the New York State Police since 2006. He first learned of claimant's accident through a 911 call received by Greene County 911 and responded to the scene as the closest available unit. Claimant was in the ambulance upon Trooper Rosenblatt's arrival and he was informed by a paramedic that although there was no possibility the claimant would die from his injuries, he might lose his leg. Trooper Rosenblatt testified that Exhibit 57 depicts the area where he observed the motorcycle near the entrance to Will Palmer Road. Trooper Rosenblatt spoke to the claimant but did not recall him mentioning any details of the accident, only that he had property to turn over for safekeeping - a registered handgun, wallet and jacket. He also spoke to Ms. Dushane who was visibly shaken. She informed the trooper that she turned left onto Route 23A from Old Kings Road and "she said she looked up in the mirror and that she saw Mr. Roque with the motorcycle behind her is what she told me . . . . She said the (sic) she believed that he went around to the right, and that was the last she saw of him, and then she -- and he went in front of her " (Tr. 252-253). Ms. Dushane did not tell Trooper Rosenblatt that claimant turned down Will Palmer Road and Trooper Rosenblatt took no measurements at the scene. Nor did he call for an accident reconstruction because he was informed there was no possibility the claimant would die from his injuries. Trooper Rosenblatt observed Ms. Dushane's car and the motorcycle and testified that there was no evidence of contact between the two vehicles. Nor were there any skid marks on the road surface. He could not recall observing any debris on the north shoulder of Route 23A.
Trooper Rosenblatt testified that he completed a MV104A form based upon information obtained from Ms. Dushane. The report (see Exhibit 86) states that "OPV2 (Ms. Dushane) stated OPV1 (claimant) came around the corner at an unsafe speed and took evasive action to avoid striking V2 in the rear. OPV1 drove to the right, lost control of motorcycle on the gravel shoulder and drove off roadway" (Exhibit 86). Trooper Rosenblatt was unable to determine where the claimant's motorcycle left the paved portion of the road or where it made contact with the guardrail. On cross-examination Trooper Rosenblatt testified that he considered Ms. Dushane to be credible when he spoke with her at the accident scene. Contrary to her trial testimony, Trooper Rosenblatt testified that Ms. Dushane told him that she first saw claimant when she looked in her rearview mirror, which contributed to Trooper Rosenblatt's conclusion that claimant "was going fast for the road conditions" (Tr. 262). On redirect examination, Trooper Rosenblatt reiterated that Ms. Dushane had told him that she first saw claimant's motorcycle in her rearview mirror. He also confirmed that he does not know claimant's exact speed at the time of the accident. Ms. Dushane gave him no estimate of his speed and there was no physical evidence by which to determine the speed of the Roque vehicle at the scene.
Mark Pyskadlo, P.E., testified that he is employed as "the regional traffic engineer for the State DOT in the Capital Region" which includes Greene County where the subject accident occurred (Tr. 13). He previously supervised the Capital Region Traffic Signal Operations Group and Traffic Management Center. The DOT maintains Route 23A and Mr. Pyskadlo first became familiar with the area of the accident, the intersection of Route 23A and Old Kings Road, as the result of a traffic study performed in 2001. The study was conducted at the request of Gary Harvey, the Greene County Highway Superintendent, who forwarded to the DOT a petition from concerned citizens regarding the safety of the intersection (see Exhibit 59). The 2001 petition, signed by 19 nearby residents, stated the following:
"We hereby petition the Catskill Town Board/Greene County Highway Department to install a Red Light at the intersection of Greene County Route 47 (Old Kings Highway) and New York State Highway 23A. Numerous accident's (sic) have occurred at this intersection and will continue, until something is done to correct the situation. PLEASE!!! Take action, before a fatality" (part of Exhibit 59).
As the then-Supervisor of the Traffic Signal Operations Group, Mr. Pyskadlo assigned Paul Mayor, a Civil Engineer, to study the intersection. Mr. Pyskadlo testified that he ordered traffic counts and an accident history of the intersection, and Mr. Mayor took measurements at the scene and completed a diagram and Signal Investigation Data Sheet. As recorded on the Signal Investigation Data Sheet, the sight distance from the stop line of Old Kings Road was 325 feet to the left and 285 feet to the right. Mr. Pyskadlo testified that sight distance is measured using a device placed at a height of 42 inches, 12 feet back from the stop line. After the device is placed, an engineer travels east and west to determine at what point the device may be observed. The Signal Investigation Data Sheet also identifies the width of the entering approach lanes for both east and westbound traffic as 11 feet, the speed limit for Route 23A as 55 m.p.h., and the "curb or shoulder width" as "4' asphalt + 4' gravel to w rail" (Exhibit 59, unnumbered p. 15).
Claimant called Stephen Clinton, Acting Regional Director of Operations for the DOT. Prior to his appointment as Acting Regional Director, Mr. Clinton served as the DOT Resident Engineer in Greene County from 2013 to 2017 where he was responsible for the maintenance of state highways and highway shoulders in Greene County including snow, ice and litter removal, pothole patching, guide rail repair and tree removal. Mr. Clinton testified that he is familiar with the area of Route 23A between Will Palmer Road and Old Kings Road, which he described as a "windy stretch" with 12-foot lanes and three-foot shoulders located between the thruway bridge and the town of Catskill (Tr. 270). Mr. Clinton testified that the State of New York maintained both the travel lanes and paved shoulders of Route 23A as well as, albeit "to a lesser degree," the area between the paved shoulder and the guardrail which he identified as "roadside" and not as a "gravel shoulder" (id.). According to the witness a three-foot wide paved shoulder existed on the north side of Route 23A. He testified that although the DOT would patch potholes in the paved shoulders "[t]he big concern would be any kind of drop-off between the travel lane and the shoulder" as well as drop-offs within the shoulder itself (Tr. 271). If part of the three-foot wide shoulder began to erode, action would be taken depending on the severity. If the erosion occurred on the outside edge of the shoulder, it would be less of a priority than if the erosion occurred closer to the travel lane. Mr. Clinton testified that if two to three inches eroded away on the outside edge of the shoulder "[i]t'd be worth wanting to address, but it would have to be prioritized with all the other work in the -- in the county" (Tr. 273). If a portion of the three-foot shoulder eroded the DOT would not just maintain what was left, but would restore it to its full three-foot width.
Mr. Clinton testified that a shoulder is intended to provide lateral support for the travel lanes, "a decel area for car emergency stopping," an area for snow storage and to aid in drainage of the travel lane (Tr. 275). He also acknowledged that a shoulder is expected to be used for evasive maneuvers during an emergency situation. Looking at the photograph received in evidence as Exhibit 27, which depicts the north shoulder of the westbound lane of Route 23A just before Old Kings Road, Mr. Clinton testified that the area between the paved shoulder and guardrail was never maintained as a shoulder in the four years he was the Greene County Resident Engineer. Looking at the area depicted in Exhibit 10, a photograph showing the north shoulder of Route 23A across from Old Kings Road, Mr. Clinton testified that it appeared to him that the fog line or white edge line had been "pushed over" when the line was repainted (Tr. 280). He did not agree that the shoulder depicted in the photograph was "narrowed at that location and deteriorated" (Tr. 281). Viewing Exhibit 37, another photograph depicting the north shoulder of Route 23A between Old Kings Road and Will Palmer Road, Mr. Clinton did agree that the pavement appeared to be "missing a few inches" (Tr. 283). The witness stated that whether a one-foot discrepancy in shoulder width should be addressed depends upon whether the discrepancy was due to striping or to the footprint of the road. Mr. Clinton did not measure the area but agreed that having a uniform shoulder width is consistent with good highway design. He testified that the DOT maintenance guidelines include a chart establishing criteria applicable to height differentials between the paved travel lane and the paved shoulder, but do not contain similar criteria for height differentials within the paved shoulder, which would be addressed according to engineering judgment. Mr. Clinton stated that the shoulder depicted in the photograph received as Exhibit 29 would not be immediately addressed because it was on the outside edge of the paved shoulder; rather, it would be prioritized "with all of the other work" (Tr. 292). He reiterated that the area between the outside edge of the paved shoulder and the guardrail as depicted in Exhibit 29 is "roadside" and not a part of the road shoulder (Tr. 293). Roadside is not maintained to the same degree as a shoulder because vehicles are not expected to travel there.
The witness testified that the purpose of a guardrail is to deflect errant vehicles in areas where there is a drop-off, water, or other roadside hazard. A slope "steeper than a one-on-three with a greater than a six-foot drop" warrants installation of a guardrail (Tr. 298). Mr. Clinton was unaware whether the slope across from Old Kings Road warranted a guardrail and agreed that a guardrail itself is a roadside hazard.
On cross-examination Mr. Clinton again stated that maintenance issues pertaining to the area beyond the shoulder edge involve the application of engineering judgment and are considered a lesser priority than the maintenance and repair of the road surface and paved shoulders. A shoulder is intended to permit vehicles to decelerate or stop, but they are not travel lanes nor are they intended to be used as a passing lane. Mr. Clinton testified on redirect that it is understood shoulders may be used by operators of either automobiles or motorcycles for evasive maneuvers and a shoulder should therefore be kept in a safe condition to permit such maneuvers. Claimant called as an expert witness Andre Darwin Stuart, Chief Executive Officer of 21st Century Forensic Animations. Mr. Stuart was retained to measure and record the area where the accident took place. For this purpose, he used a laser scanner on a tripod to collect three-dimensional photos. Mr. Stuart testified that Exhibits 7 through 21 depict views taken by the laser scanner and are a fair and accurate depiction of the shoulder and pavement in the area of the subject intersection. Exhibit 60 depicts measurements recorded with the laser at the location of each of the 22 vertical guardrail supports on the north side of Route 23A in order to measure the perpendicular distance between the white fog line and the asphalt edge, and from the asphalt edge to the guardrail on the north side of Route 23A (see Exhibit 60). The sum of the two measurements constitutes the distance between the white fog line and the guardrail. The smallest distance recorded between the white fog line and the asphalt edge was two feet, six inches and the greatest distance was three feet, seven inches. Mr. Stuart explained that while the digital scanner does not distinguish between the edge of asphalt and debris such as rocks or leaves lying immediately adjacent thereto, any such debris would be depicted in the photographs generated as part of the laser scanning process. He also testified that the distance between where the double yellow lines on Route 23A ended and then began again at the intersection of Old Kings Road was 111.54 feet.
The parties stipulated that each of their experts were qualified in their field.
Mr. Stuart stated there is a one-half inch margin of error.
Claimant called John Serth, Jr., P.E., as an expert in the field of engineering, highway design, and maintenance. Mr. Serth conducted field investigations of the accident site in 2017 and took various measurements and photographs of the westbound shoulder of Route 23A. Mr. Serth identified the area depicted in Exhibits 23 through 26 as fair and accurate depictions of the area from the thruway bridge to Old Kings Road. Exhibits 39 and 42 through 51 depict the north shoulder of Route 23A between Old Kings Road and Will Palmer Road, and Exhibit 62 depicts the north shoulder of Route 23A and guardrail near where it terminates in the area of the intersection of Route 23A and Will Palmer Road. Mr. Serth took measurements every 50 feet of the elevation differential between the paved shoulder of the westbound lane of Route 23A and the gravel area which extends to the guardrail and testified that, by way of example, Exhibit 49 depicts a location with a more than four inch drop from the asphalt edge. Mr. Serth also described what he observed as "gullies" in the gravel formed by water run-off from the thruway bridge, which resulted in steeper elevation differentials of up to seven inches in the gravel area farther removed from the paved shoulder (Tr. 335). Reviewing the DOT's historical photo log of Route 23A (see Exhibit 65), Mr. Serth testified that photo number 236 from 1976 shows a bituminous stabilized tar-gravel shoulder, a short segment of guardrail on the westbound shoulder across from Old Kings Road, and a slope less than one on four to the right of the guardrail. As of 2001, however, the westbound shoulder of Route 23A near the intersection of Old Kings Road was no longer paved all the way to the guardrail. According to Mr. Serth, asphalt was used on the lanes but gravel was applied to the shoulders. Reviewing § 10.01.06 (c) of the 1973 Highway Design Manual (HDM) (see Exhibit 70), which Mr. Serth stated applied to the guardrail in issue, he testified that the paved shoulder was required to extend all the way to the guardrail. This section states, in pertinent part, the following:
"Where guide rail is installed at the outside edge of the shoulder, extend the shoulder paving material 6" beyond the back of guide rail posts. When isolated runs of guide rail are installed away from the shoulder to protect fixed objects and grass mowing is anticipated in the area of the guide rail, provide a 2' wide paved strip under the guide rail of 3" of bituminous stabilized gravel or 2-1/2" of asphaltic concrete. If bituminous stabilized gravel is used, it must be surface sealed. Seal the hole where the posts are driven with liquid asphalt." (Exhibit 70).
Mr. Serth also cited a section of the HDM entitled Nominal Stabilized Width of Shoulder to support the assertion that pavement was required up to and beneath the guardrail. This section, which Mr. Serth identified as a mandatory provision, states the following:
"Generally, the stabilized width and graded width are equal, except when guide railing is used immediately adjacent to the shoulder and on the inside shoulders of four and six lane highways. Where guide railing is used, the posts shall be placed six inches beyond the nominal stabilized shoulder width shown on the typical section data sheets, and the stabilized shoulder material extended to six inches beyond the back side of the guide railing posts to eliminate the need for mowing under the guide rail" (Exhibit 73).
Mr. Serth testified that Route 23A was realigned to the thruway bridge when the thruway was constructed in the 1950's. By 1982, according to the photo log, the short metal guardrail section on Route 23A across from Old Kings Road had been replaced with a cable rail. The parties stipulated that the present guardrail on the outside shoulder of the westbound lane of Route 23A spanning the distance from the thruway bridge, past Old Kings Road and ending several feet before Will Palmer Road was installed in 1990. Mr. Serth testified that guardrails are intended to protect motorists from roadside hazards. Inasmuch as a guardrail is itself a hazard, Mr. Serth stated that attempts should first be made to remove or relocate any roadside hazard before installing a guardrail. Here, there was no warrant for the guardrail, according to Mr. Serth. Although a slope of one-on-two (one foot vertical drop for every two horizontal feet) over a distance of six feet would warrant a guardrail, Mr. Serth stated the roadside slope here was less than one-on-four throughout the entire area (see Exhibit 89). Admittedly, however, Mr. Serth did not traverse nor did he take measurements of the entire area because of the existence of large areas of poison ivy throughout the slope. Nevertheless, Mr. Serth opined with a reasonable degree of engineering certainty that a guardrail on the westbound shoulder of Route 23A was unnecessary. Mr. Serth stated further, however, that even if a guardrail was necessary, it was required to be placed at the outside edge of the paved shoulder, which was not done. According to Mr. Serth, the entire seven to nine-foot shoulder should have been maintained for the emergency operation of vehicles. Instead, gravel was placed over the bituminous stabilized pavement which effected a decrease in the co-efficient of friction.
Mr. Serth reviewed two sight distance studies which the DOT conducted in 2001 and 2002 in order to evaluate whether a traffic light or additional traffic control devices were necessary at the intersection of Old Kings Road and Route 23A (Exhibits 58 and 59). The 2001 study, according to Mr. Serth, determined that the sight distance from a vehicle stopped at the stop line of Old Kings Road to the right (easterly toward the bridge) was 285 feet. Sight distance for a vehicle "with the front of the car at the edge of the road" in the same direction was 320 feet (Tr. 368). Mr. Serth also measured sight distance using cones at this location and agreed that the DOT's measurements were generally accurate. The 2002 study yielded similar results.
According to Mr. Serth, sight distance to the right was obstructed by a guardrail, which the HDM specifically identifies as a potential obstruction (see Exhibit 69). Reviewing the applicable DOT sight distance standards (Exhibit 92), Mr. Serth testified that given a speed limit of 55 m.p.h. (presumed 85th percentile speed), the recorded sight distance at the intersection was "critically limited" pursuant to criteria contained in the Manual of Uniform Traffic Control Devices (MUTCD) used "to warrant whether they should be putting up intersection signs" (id.; Tr. 389). Viewing the DOT's historical photo log of the westbound lane of Route 23A (1993, photo No. 0234; 1997, photo No. 0235; 2003, photo No. 02350; 2006, photo No. 2340; 2007, photo No. 2350; 2010, photo No. 2340), Mr. Serth identified multiple skid marks which he opined were consistent with the existence of a limited sight distance at that location.
Mr. Serth stated that in his opinion and to a reasonable degree of engineering certainty the north shoulder adjacent to the westbound lane of Route 23A was negligently maintained in that the defendant failed to maintain a fully paved shoulder and, instead, placed gravel in the area between the outside edge of the paved shoulder and guardrail which he likened to putting "marbles on top of the pavement" (Tr. 396). In addition, Mr. Serth also opined regarding the height differential between the outside edge of the paved shoulder and gravel that "the drop-off should not have been there" (Tr. 397). Mr. Serth also testified that he examined the slope of the shoulder and adjacent area behind the guardrail on the north side of Route 23A. Although some actual measurements of the slope were taken, detailed measurements were not available due to the prevalence of poison ivy at the location. Nonetheless, Mr. Serth opined that based upon his observations "[t]his slope was not close to where you're allowed to put a rail up for the slope" (Tr. 404).
On cross-examination, Mr. Serth acknowledged that the 1953 plans for the realignment of Route 23A showed an eight to nine-foot wide dirt shoulder. Mr. Serth clarified, however, that the full width of the westbound shoulder was subsequently paved up to the guardrail. According to Mr. Serth, the guardrail at this location, if required, was appropriately placed at the back edge of the shoulder in accordance with the requirements existing in 1990 when it was installed, although it was his opinion that guardrail was neither necessary nor appropriate at that location. With respect to Mr. Serth's field investigation, he testified that he placed 18-inch cones on the pavement in order to measure sight distances (see Exhibit 90) and that both the results of his investigation and those from the DOT studies reached the same conclusion, that the sight distances measured indicated a critically limited sight distance at the intersection of Old Kings Road and Route 23A. When evaluating limited sight distance complaints, Mr. Serth testified that the MUTCD is one reference point for determining what remedial measures should be taken. Mr. Serth agreed that one of the remedial measures the MUTCD calls for is the placement of an intersection warning sign, which in fact had been previously installed on the east side of the thruway bridge to warn westbound motorists of the upcoming left hand intersection with Old Kings Road. Mr. Serth also agreed that there was no history of accidents attributable to the condition of the shoulder on the north side of Route 23A between Old Kings Road and Will Palmer Road, and he was unaware of any prior accidents attributable to the limited sight distance at the intersection of Old Kings Road and Route 23A. On redirect examination, Mr. Serth testified that although there were complaints concerning the limited sight distance, he was unaware of any prior accidents related thereto. He also reiterated that the replacement of the guardrail in 1990 was subject to the existing standards set forth in the HDM, which required the rail posts to be installed six inches beyond the nominal stabilized shoulder.
Claimant called John McManus as an expert in accident reconstruction and motorcycle dynamics. In preparation for his testimony, Mr. McManus discussed the case with claimant's counsel, reviewed examination before trial transcripts, a police accident report, John Serth's report and photographs and the DOT's historical photo log of Route 23A. Mr. McManus visited the accident scene and took photographs of the area where the accident occurred (see Exhibits 75-85) which he testified fairly and accurately depict the area on the date of his visit -- October 18, 2018. He described the westbound shoulder of Route 23A as consisting of two and one-half to three and one-half feet of asphalt with a gravel surface extending from the asphalt edge to the guardrail. At the time of his site visit, the height differentials from the shoulder edge to the gravel surface were less than an inch, significantly less than the differential depicted in the photographs taken by Mr. Serth. In the prior photographs, "[t]here was a definite shoulder drop. The gravel was -- the gravel was only -- most of it had washed away, and there was a significant shoulder drop between the paved portion and the gravel/dirt area of the shoulder at that time" (Tr. 421). The gravel in the shoulder he observed during his site visit was "tapered down" where the pavement met the gravel (Tr. 422).
Mr. McManus testified that he was unable to perform a reconstruction of the accident as "[t]here was insufficient information" (id.). There was no police investigation and there were no tire markings and no physical evidence at the scene indicating where the claimant struck the guardrail or the angle of his approach as he left the roadway. Aside from the claimant's testimony, Mr. McManus was unable to determine his speed of travel as there was no "concrete physical evidence to make a determination into exactly what his speed was" (id.). He testified that Mr. Serth's photographs (see Exhibits 43 through 51) show that the westbound shoulder dropped by four or more inches onto a dirt and gravel surface. Mr. McManus testified that numerous studies have shown that unlike a four-wheeled passenger car, when a motorcycle traverses a shoulder of this type both wheels make contact with the sand and gravel shoulder which has a much lower coefficient of friction than pavement. He also described the destabilizing effect encountering the height differential between the paved and unpaved portions of the shoulder would have upon a motorcyclist as he attempted to return to the roadway surface. According to the witness, the decreased coefficient of friction of the sand and gravel surface could cause the rear wheel to "kick out," and it would be difficult to generate enough lateral friction to overcome the height differential and safely return to the travel lane (Tr. 427). Mr. McManus opined, with a reasonable degree of certainty as an expert in the field of motorcycle dynamics, that a shoulder drop-off of three to five inches "would be a destabilizing influence on the motorcycle" (Tr. 428). Based on the photographs and measurements taken by Mr. Serth, Mr. McManus testified that the westbound shoulder of Route 23A was not safe for motorcycles. Asked to assume that another vehicle pulled out from Old Kings Road approximately 75 to 100 feet from the claimant on Route 23A, Mr. McManus opined that even if the other vehicle accelerated rapidly, considering perception and response time, claimant would not be able to bring his motorcycle to a stop. Rather, the best course of action for an experienced motorcyclist in such a situation was to swerve to avoid the vehicle. Mr. McManus opined that claimant, faced with those facts, acted reasonably in avoiding contact with the vehicle driven by Ms. Dushane. Although Mr. McManus did not know where the claimant went off the paved portion of the shoulder, based on his review of the photographs taken by Mr. Serth, there was no part of the shoulder which could be safely traversed by a motorcycle.
Mr. McManus testified that the coefficient of friction is "the friction you develop between the tire and the particular surface, in this case, the shoulder area" (Tr. 427).
On cross-examination, Mr. McManus agreed that the "jarring effect" experienced by a motorcyclist encountering a height differential varies depending upon the height of the drop-off (Tr. 432). As a result, it is necessary to determine the location where a motorcyclist went off the pavement in order to reach a conclusion as to the effect he or she would experience. With respect to the coefficient of friction, the witness testified that although he did not measure the coefficient of friction of either the paved surface or the gravel portion of the shoulder, he estimated the coefficient of friction of the paved surface to be approximately .8 depending upon a vehicle's tires. Mr. McManus also testified that claimant could have slowed down "significantly" if he observed the Dushane vehicle at a distance of 75 feet and immediately applied his brakes (Tr. 436). He agreed that claimant's motorcycle was equipped with an Anti-lock Braking System (ABS) which would permit him to apply maximum pressure to the brakes without locking them up. Mr. McManus could not state to what speed claimant could have slowed his motorcycle in 75 feet had he applied his brakes. He agreed that aside from claimant's testimony, there is no evidence to indicate the claimant attempted to return to the paved portion of the roadway after entering the westbound shoulder. On redirect examination, Mr. McManus testified that even with ABS brakes, there is a danger that application of "full panic stop brakes" may destabilize the bike (Tr. 441). Downshifting the gears would reduce the speed as well. This concluded claimant's case in chief.
Defendant called Mark Pyskadlo, P.E., as an expert in the field of traffic safety. Mr. Pyskadlo supervised the DOT Region 1 traffic signal operations and maintenance group in the years 2001 and 2002. He first identified Exhibit 59 as a 2001 study performed at the request of the Greene County resident engineer who forwarded to the DOT a petition from concerned residents requesting a traffic light at the intersection of Route 23A and Old Kings Road. In response to the request, Mr. Pyskadlo ordered area traffic counts and an accident history for accidents occurring within one-tenth of a mile both east and west of the intersection from the Department of Motor Vehicle's (DMV) data base. Mr. Pyskadlo testified that the traffic volume at the intersection was recorded over a period of seven days and found to be insufficient to warrant a traffic signal. In addition, the accident history at the intersection revealed that there was not a single right-angle accident, the type of accident most readily correctable by a traffic signal, in the four-year period studied. The MUTCD requires a minimum of five such accidents within a 12-month period to warrant the installation of a traffic signal, according to Mr. Pyskadlo. Mr.Pyskadlo also testified that the accident history reflected that there were no guide rail accidents, no shoulder accidents and no accidents in the clear area between the paved shoulder and the guardrail during the four year period examined. The Signal Investigation Data Sheet prepared by the DOT as part of the 2001 study (Exhibit 59, p. 15) notes the placement of a left-intersection warning sign posted 850 feet east of the intersection of Route 23A and Old Kings Road, a 28-inch stop sign on Old Kings Road and a stop sign ahead warning sign posted on Old Kings Road on the approach to the intersection with Route 23A. The speed limit on Route 23A is noted to be 55 m.p.h., the condition of the asphalt is noted as "good" for both roads, and the width of the entering and approach lanes is 11 feet, according to the notations on the Signal Investigation Data Sheet (id.). The measurements for "Curb or shoulder and width" for the westbound lane of Route 23A were recorded as four feet of asphalt and four feet of gravel (id.). Sight distance measurements recorded "At Stop Line" on Old Kings Road were 325 feet for eastbound traffic (looking to the left) and 285 feet for westbound traffic (looking to the right) (id.). Measurements "With Front of Car at Edge" on Old Kings Road indicate the sight distance relative to eastbound traffic (looking to the left) was 350 feet and the sight distance for westbound traffic (looking to the right) was 320 feet (id.). Following the site investigation and after obtaining the accident history and traffic volumes described previously, DOT denied the request for a traffic signal in a letter dated May 21, 2001:
"We have completed our investigation of the intersection. We reviewed the accident records for the period of January 1, 1996 through December 31, 1999, collected traffic vehicle counts for each approach to the intersection, examined the intersection's geometric design, inspected the existing signs and pavement markings, and determined the sight distance at the intersection. The pavement markings are complete and there are intersection warning signs on both of the Route 23A approaches. There is also a stop ahead warning sign on County Route 47. Although the intersection sight distance is partially restricted due to the rock cut and the curve of the highway, there is sufficient sight distance to the existing signs and at the intersection. There has not been an accident problem at this location and the traffic vehicle counts do not warrant the installation of a traffic signal at this time" (claimant's Exhibit 59).
The witness identified Exhibit 58 as a certified copy of a 2002 field investigation study performed in response to a second citizen request for a traffic signal or three-way stop sign at the intersection of Route 23A and Old Kings Road. In response to the request for review of the intersection, received one year following completion of the 2001 intersection study, Mr. Pyskadlo testified that DOT updated the accident history and again sent out an engineer to document measurements in the field. The accident history reflected that in the 40-month period from January 1, 1998 to April 30, 2001 there were two turning accidents at Route 23A and Old Kings Road. As he had testified previously, Mr. Pyskadlo stated that the MUTCD requires five such accidents within a 12-month period to warrant installation of a traffic signal. In fact, none of the requirements for the installation of additional traffic control devices were met, according to Mr. Pyskadlo. A hand-drawn map on page three of the exhibit sets forth various field measurements taken at the scene, including those for sight distances taken from Old Kings Road. At a distance of eight feet behind the stop line on Old Kings Road, sight distance for eastbound traffic was 289 feet and for westbound traffic was 296 feet. At a distance of four feet from the curb line, the measured sight distance was 338 feet for eastbound traffic and 368 feet for westbound traffic.
While the sight distances measured from Old Kings Road fall within the category of "critically limited" pursuant to criteria contained in Part 232 of the MUTCD (see Figure 232-1), Mr. Pyskadlo testified that in the absence of warrants supporting the installation of traffic control devices, the MUTCD requires only the placement of an intersection warning sign. The MUTCD states the following in this regard:
"(iii) A plotted point in the blue area below the lower curve indicates an intersection approach with critically limited sight distance. Except as otherwise provided in paragraph (1) above, an intersection sign should be used" (Exhibit A, p. 3).
Mr. Pyskadlo testified that an intersection warning sign was already in place at the time the 2001 and 2002 intersection studies were completed. Later, after it was informed of claimant's accident, DOT looked back five years from the date of the accident to determine whether there was a pattern of accidents that should be addressed. Although there were seven accidents involving deer during the five year period, no other pattern of accidents was identified. With respect to the intersection of Old Kings Road and Route 23A, and the area one-tenth of a mile east and west of the intersection, there were no accidents involving vehicles turning from Old Kings Road, and no accidents involving the guardrail, shoulder or clear area between the paved shoulder and the guardrail. Mr. Pyskadlo testified that based upon his review of the studies and accident history, and through the application of engineering judgment, in his opinion no additional traffic control devices were needed at the intersection of Old Kings Road and Route 23A. Mr. Pyskadlo testified that the lack of accident history is a "very significant" part of his assessment (Tr. 483).
On cross-examination, the witness acknowledged that the 2001 study of the subject intersection was performed in response to a petition from local residents expressing concern that "numerous accidents have occurred at this intersection" and seeking the installation of a traffic signal (Tr. 485-486; Exhibit 59). Mr. Pyskadlo denied that the westbound shoulder of Route 23A was eight feet in width, stating that the notation on the signal investigation data sheet indicating four-feet of asphalt and 4-feet of gravel in the column headed "Curb or shoulder and width" is merely what was documented in the field (see Exhibit 59). With respect to Figure 232-1 in Exhibit A, Mr. Pyskadlo testified that using the established 55 m.p.h. speed limit on Route 23A, sight distances which fall below 475 feet would be considered "critically limited" (Tr. 494-495). Sight distances between 475 feet and 1100 feet are considered "less than desirable" (Tr. 495). He agreed that sight distances were critically limited from all points of the intersection of Old Kings Road and Route 23A, but testified that even where sight distances fall significantly below the 475 feet "critically limited" level (e.g., 100 feet), other criteria such as accident history would be evaluated (Tr. 495-496). If there were no significant pattern of accidents at the intersection, Mr. Pyskadlo testified that no further action would be taken because intersection warning signs, first installed in the 1970's or 1980's, were already posted. The fact that complaints regarding the intersection were made long after the intersection warning signs were posted was not indicative of a problem, according to Mr. Pyskadlo, because critically limited sight distance is appropriately addressed with an intersection warning sign. Mr. Pyskadlo agreed that additional measures to increase sight distance can sometimes be undertaken, such as clearing brush, but in this case a rock cut is listed as an obstruction, which is not easily moved. In addition, a flashing beacon can be placed on an intersection warning sign. However, Mr. Pyskadlo stated that if the only problem is sight distance, and no other factors are involved, the installation of intersection warning signs is the appropriate action to take.
With respect to the study performed in 2002, Mr. Pyskadlo testified that although the DOT knew, based on the 2001 study, that no traffic signal was warranted, they wanted to determine whether or not any additional concerns had developed. No significant change in the sight distance measurements was recorded during the 2002 study and no further action was necessary, according to Mr. Pyskadlo. He then testified that the skid marks reflected in the photo log of Route 23A (see Exhibit 65) were not considered in the DOT analysis because "I wasn't the one in the field that saw them" (Tr. 507). He testified that skid marks are not necessarily something that should be considered because the reason for the skid marks is unknown. Mr. Pyskadlo stated that skid marks are "not something that would make some kind of remediation an option" (Tr. 508). However, at an examination before trial, Mr. Pyskadlo testified that the skid marks depicted in the photo log " should have been noted by the engineer who went out in the field" (Tr. 509). Mr. Pyskadlo also acknowledged that a collision diagram included in the 2001 study (Exhibit 59) identifies five rear-end accidents at the intersection of Route 23A and Old Kings Road in the five-year, 10-month period from January 1, 1986 through October 31, 1991. The witness testified that since the diagram shows less than one such accident per year, it does not reflect what would be considered a pattern of accidents.
Defendant called Dominick J. Gabriel, P.E., as an expert on issues pertaining to highway maintenance and engineering. Mr. Gabriel has been a licensed civil engineer for 31 years and was employed by the DOT for 32 years. He retired in April 2015 and, at present, is employed part-time by the Town of Waterford and also as an independent consultant. During his tenure with the DOT, Mr. Gabriel was the Resident Engineer for Washington and then Saratoga counties, responsible for all aspects of highway maintenance including the travel lanes, shoulders and guide rails. Mr. Gabriel performed field inspections of Route 23A at its intersections with Old Kings Road and Will Palmer Road in July and October of 2018. He testified that, based upon his review of historical records, the travel lanes of Route 23A near Old Kings Road are "striped at approximately twelve feet," the width of the paved shoulder averaged three feet, and the guide rail on the north side of Route 23A ran from the thruway bridge to a point just east of Will Palmer Road (Tr. 520). Mr. Gabriel testified that in addition to the paved shoulder, there is a "clear area" between the shoulder and the guide rail which is intended as an area where errant vehicles can recover and reenter the highway prior to striking the guide rail (Tr. 521). The guide rail on the north side of Route 23A was installed to protect traffic from a rock-cut outcrop near the bridge, and from a one-on-two slope and a culvert located across from the intersection of Old Kings Road.
While the claimant's counsel referred to the existence of "guardrails" on Route 23A, defendant's counsel referred to "guide rails." None of the record evidence defines these terms.
Mr. Gabriel testified that the current alignment of Route 23A is set forth in the 1953 record plans (see Exhibits B and C). The plans required two rock cuts and a fill area across from Old Kings Road where the curve is superelevated. Exhibit E shows a typical banked section applicable to the curved area across from Old Kings Road. According to Mr. Gabriel, a one-on-two slope is shown in the plans on the north side of Route 23A directly across from Old Kings Road (see Exhibits G and H).
Mr. Gabriel testified that the guide rail on the north shoulder of Route 23A has not been replaced or modified since it was installed in 1990. Two sections of the Highway Design Manual (HDM) bear upon the appropriateness of the guide rail, according to Mr. Gabriel. Section 3 entitled Side Slopes and Roadside Clear Area (Exhibit J, p. 3-24) states in part:
"If it is not possible to provide traversable slopes due to excessive embankment heights, right of way limitations, the close proximity of roadside hazards or other considerations, guide railing should be placed at the outside edge of shoulder. However, when it is possible to provide a clear area in advance of fixed objects, it is desirable to install the guide railing adjacent to the fixed object and grade the area in front of the railing to 1 on 6 or flatter" (Exhibit J, p. 3-25).
Mr. Gabriel stated that the dangers requiring guide rail on Route 23A were the rock outcrop after the bridge and the 325 foot fill area across from Old Kings Road created to superelevate the curve. The material used for the guide rail, corrugated metal, was appropriately used at this location. The witness related that when Route 23A was originally constructed there was a section of guide rail located across from Old Kings Road to protect against the one-on-two slope and a culvert at the bottom of the slope. Mr. Gabriel stated that he personally observed the slope when he walked the area in 2018, and that nothing he saw was contrary to the determination made in 1990 that a guide rail in that location was appropriate.
According to Mr. Gabriel, the term "clear area" as used in section 3 of the HDM means "an area for an errant vehicle to recover prior -- before it hits the guide rail" (Tr. 536-537). Mr. Gabriel testified that Figure 3-G in Exhibit J was applicable in 1990 when the present guide rail was installed. While the guide rail installed on the westbound shoulder of Route 23A was not installed in complete conformity with Figure 3G because it was missing a two-foot wide paved strip underneath the guide rail, the guide rail was otherwise appropriately placed according to Mr. Gabriel's testimony. The guide rail in place on the westbound shoulder of Route 23A was 32 inches high and measured a distance of approximately 220 feet from where it terminates at Will Palmer Road to a point adjacent to where the double yellow line starts at the west side of the intersection with Old Kings Road.
According to Mr. Gabriel, the requirement that the slope in front of the guide rail be one-on-six or flatter was revised in 1983 to require a slope of one-on-ten or flatter.
According to the DOT's historical photo log (Exhibit 65), in 1976 there was a short span of cable rail on Route 23A across from Old Kings Road which had been replaced with a corrugated metal guide rail by 1982. The parties stipulated that the guardrail in place at the time of claimant's accident was placed in 1990.
The other HDM provision referenced by Mr. Gabriel is section 10.01.04 (Exhibit I, p. 10-13). This section states, in part, the following:
"In some instances, where traversable slopes have been provided prior to the fixed object, it will be advantageous to place the guide rail adjacent to the fixed object. This will result in additional recovery area and allow some of the errant vehicles to recover prior to encountering the fixed object" (id.).
Mr. Gabriel testified that where there is a fixed object which is not immediately adjacent to the road, this section permits the placement of a guide rail at or in close proximity to the fixed object in order to give an automobile an opportunity to reenter the road before hitting the guide rail. The guide rail on the north side of the westbound lane of Route 23A was appropriately placed in conformity with this section, according to Mr. Gabriel's testimony. Here, the slope was traversable for five feet from the shoulder edge. Beyond the guide rail, however, was a one-on-two slope which was not traversable. Without the guide rail, therefore, an errant vehicle would encounter a one-on-two slope and, ultimately, a culvert and trees. The culvert runs perpendicular across Route 23A and the culvert outlet is located at the bottom of the slope directly across from Old Kings Road. Mr. Gabriel testified that the material between the edge of the westbound paved shoulder and the guide rail, as depicted in the photographs taken by Mr. Serth, "appeared to be the standard shoulder backup that the Department uses, which is a title they select, granular fill" (Tr. 547). The purpose of the fill is to provide a transition from the pavement to the clear area and to provide a place for water run-off. Mr. Gabriel testified that the clear area on the north side of Route 23A between Old Kings Road and Will Palmer Road is approximately five feet wide, and that select granular fill is appropriate for this location. The area in which the granular fill is applied is not considered a driving surface, but instead affords the opportunity for errant vehicles to recover and reenter the road. At the time the guide rail at issue was installed in 1990, there was no requirement to pave the area from the fog line to the guide rail, and Mr. Gabriel testified that there is no written guidance as to when additional material may be necessary to fill height differentials between the paved shoulder and clear area. Repairs are made when the Department is notified or discovers a condition which, in the judgment of the engineer, requires repair. Mr. Gabriel stated that highway maintenance work is prioritized from the center line out. The travel lanes are addressed first and then "everything else after that" (Tr. 550).
Mr. Gabriel testified that the drop-off differentials Mr. Serth measured were incorrect because the level was not placed flush against the edge of the paved shoulder and did not follow the slope of the shoulder. According to Mr. Gabriel, there was a space between the edge of the pavement surface and the bottom of the level, as shown in Exhibits 47 and 49. This is significant, according to Mr. Gabriel, because a car tire follows the slope of the shoulder.
On cross-examination, the witness testified that studies are performed before guide rail is installed in most circumstances. In this case, however, Mr. Gabriel has seen no studies for the subject guide rail, only the 1950's plans which required it. Mr. Gabriel walked the area and observed a slope steeper than one-on-three but took no measurements. Nevertheless, he testified "I've walked enough embankments that I can tell pretty much if that warrants guide rail or not" (Tr. 561). Mr. Gabriel's attention was directed to Exhibit G, page 116 from the 1950's plans. Guide rail is indicated thereon for a distance of 135 feet in the area of the one-on-two slope yet, as depicted in the photolog from 1976 (see Exhibit 65), the rail was approximately 20 feet long. Mr. Gabriel testified that had the guide rail at that location been built properly, it should have been 135 feet long. When asked whether it was possible that the guide rail was unnecessary because there was no one-on-two slope at that location, Mr. Gabriel responded "I don't believe so, looking at the growth that was out there," although he agreed he took no measurements of the area (Tr. 568).
Mr. Gabriel reiterated that he has seen no warrants or studies for the installation of the guide rail installed across from Old Kings Road and is relying entirely on the HDM provisions which applied when the guide rail was installed in 1990. Looking at Exhibit E, a typical section of Route 23A from the 1953 plans, Mr. Gabriel agreed that guide rail is appropriately placed at the back of the shoulder. He also agreed that this previous guide rail was replaced (sometime before 1982, according to the photo log) and the replacement guide rail was installed at the same location at the back of the shoulder. The guide rail claimant collided with was installed in 1990 at the same distance from the edge of the travel lane as the previous guide rails, but in 1990 "[t]hey paved a three-foot shoulder. Prior to that, there was no definitive shoulder" (Tr. 576-577).
Mr. Gabriel's attention was then directed to Exhibit J, p. 3-16, under the heading Nominal Stabilized Width of Shoulder, which states, in part, the following:
"Where guide railing is used the posts shall be placed six inches beyond the nominal stabilized shoulder width shown on the typical section data sheets, and the stabilized shoulder material extended to six inches beyond the back side of the guide railing posts to eliminate the need for mowing under the guide rail" (Exhibit J, p. 3-16).
Mr. Gabriel testified that this requirement refers to the immediately preceding sentence dealing with guide railing placed adjacent to the inside shoulders of four and six lane highways. Mr. Gabriel agreed, however, that the guide railing on the eastbound shoulder of Route 23A appears to have been placed six inches beyond the nominal stabilized shoulder as a matter of engineering discretion.
Upon viewing Exhibit 85, Mr. Gabriel testified that the shoulder looks as if it had been "backed-up" since the date of his first inspection and the drop-off he previously observed is no longer as evident. He stated that the shoulder drop-off he observed when he first inspected the area had been filled in when he went back in October. Mr. Gabriel testified he would not consider the shoulder drop-off he observed to be a reasonably safe condition to operate either a vehicle or motorcycle at 40 m.p.h. However, he then explained that if a motor vehicle was "decelerating as you're supposed to be when you're breaking down or you're errant, then it would be fine" (Tr. 589).
Mr. Gabriel reiterated that the slope directly across from Old Kings Road is one-on-two and comes back up to one-on-three and one-on-four near Will Palmer Road. The reason for the extension of the guide rail toward Will Palmer Road, in his opinion (admittedly unsupported by any plans, studies or measurements), was the danger posed to eastbound motorists by the end-section of a shorter guide rail section. Reviewing again Exhibit J, p. 3-25, Mr. Gabriel testified that although this section requires guide railing to be placed at the outside edge of the shoulder where it is not possible to provide a traversable slope, this is not the case when it is possible to provide a clear area " 'in advance of fixed objects' " (Tr. 594, quoting Exhibit J, p. 3-25). While Mr. Gabriel admitted that a non-traversable slope is not a fixed object, he testified that it is nevertheless a danger that warrants installation of a guide rail. Mr. Gabriel agreed that "unless there was a fixed object . . . , the Highway Design Manual states that this rail should have been placed at the back of the shoulder" (Tr. 596).
The law is settled that the State has a duty to construct and maintain its highways in a reasonably safe condition "taking into account such factors as the traffic conditions apprehended, the terrain encountered, [and] fiscal practicality" (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). In the field of traffic design engineering, however, the State is accorded qualified immunity from liability arising out of highway planning decisions (Friedman v State of New York, 67 NY2d 271, 283 [1986]; Weiss v Fote, 7 NY2d 579 [1960], rearg denied 8 NY2d 934 [1960]). The rationale for the rule was set forth by the Court of Appeals in Weiss as follows:
"To accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts" (id. at 585-586).
Unlike the absolute immunity accorded public entities acting in a discretionary governmental capacity (Valdez v City of New York, 18 NY3d 69, 75 [2011]), highway planning, design, and maintenance activities are proprietary functions arising from the State or municipality's " 'proprietary duty to keep its roads and highways in a reasonably safe condition' " (Turturro v City of New York, 28 NY3d 469, 479 [2016], quoting Wittorf v City of New York, 23 NY3d 473, 480 [2014]). The immunity accorded the State and its governmental subdivisions in highway planning decisions is a qualified one in recognition of the principle that " '[o]nce [the State] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger' " (Turturro v City of New York, 28 NY3d at 480, quoting Friedman v State of New York, 67 NY2d at 284). Liability may only attach where a highway planning decision "evolved without adequate study or lacked reasonable basis" (Weiss v Fote, 7 NY2d at 589; Friedman v State of New York, 67 NY2d at 284; Affleck v Buckley, 96 NY2d 553 [2001]). "Once a decision has been reached to go forward with a plan intended to remedy a dangerous condition, liability may result from a failure to effectuate the plan within a reasonable period of time" (Friedman v State of New York, 67 NY2d at 286). Once a plan is implemented, the State is under a continuing duty to review the plan in light of its actual operation (id. at 284). Thus, absent an unreasonable delay in the implementation of a highway safety plan, reasoned discretionary determinations which are the product of a "deliberate decision-making process" may not form the basis for liability (Gagliardi v State of New York, 148 AD3d 868, 869 [2d Dept 2017]; Madden v Town of Greene, 64 AD3d 1117 [3d Dept 2009]; Smythe v Woods, 41 AD3d 1130, 1132 [3d Dept 2007]; Norton v Village of Endicott, 280 AD2d 853, 854 [3d Dept 2001]).
To the extent claimant seeks to predicate liability on the limited sight distance at the intersection of Old Kings Road and State Route 23A, the DOT's 2001 and 2002 studies of the intersection determined that no further remedial action was necessary. Although sight distance from Old Kings Road was critically limited, a left-turn warning sign was posted on Route 23A and a stop sign was in place for vehicles exiting Old Kings Road. Moreover, there was no pattern of accidents at the intersection nor any accident directly attributable to sight distances. Under these circumstances, Mr. Pyskadlo testified, referring to the relevant MUTCD provision, that the installation of intersection warning signs is the appropriate action to take. Such signs were in place for both the east and westbound approaches to the intersection long before the subject accident occurred. Considering the lack of any significant pattern of accidents at the intersection, the low traffic counts in the area, and the fact that the sight-distance obstruction was the result of a rock outcropping and the curvature of the road, neither of which are readily capable of remediation, the Court cannot conclude the DOT's determination to take no further remedial action was unreasonable or the product of insufficient study. Defendant is therefore immune from liability for its alleged failure to implement changes to ameliorate the critically limited sight distance at the intersection.
Even were the defendant not immune from liability arising from the limited sight distance, claimant is unable to prove the traditional elements of a negligence cause of action. " '[T]he State is not the insurer of the safety of its roads and [that] no liability will attach unless the ascribed negligence of the State in maintaining its roads in a reasonable condition is the proximate cause of the accident' " (Hough v State of New York, 203 AD2d 736, 737 [3d Dept 1994], quoting Hearn v State of New York, 157 AD2d 883, 885[3d Dept 1990], appeal denied 75 NY2d 710 [1990]; see also Stanford v State of New York, 167 AD2d 381, 382 [2d Dept 1990], appeal denied 78 NY2d 856 [1991]). Proximate cause arising from the alleged absence of a traffic control device may be found only where it is shown that it was the very absence of the traffic control device which rendered the driver unaware of the need to stop or otherwise proceed with caution (Atkinson v County of Oneida, 59 NY2d 840 [1983], rearg denied 60 NY2d 587 [1983]; Applebee v State of New York, 308 NY 502, 507 [1955]; Noller v Peralta, 94 AD3d 830 [2d Dept 2012]; cf. Alexander v Eldred, 63 NY2d 460 [1984] [question of fact existed regarding motor vehicle operators' familiarity with the intersection]). Ms. Dushane testified without contradiction that nothing blocked her view when she stopped at the intersection of Old Kings Road and that when she looked to her right she observed no oncoming vehicles. Further, claimant testified that he observed a left-turn warning sign as he came over the bridge. As a result, the testimony of both Ms. Dushane and the claimant negates limited sight distance as a proximate cause of the accident. Under these circumstances, claimant failed to establish that limited sight distance was a "substantial factor" in causing his injury (Brown v State of New York, 31 NY3d 514, 519 [2018]).
With respect to claimant's contention that the placement of guardrails was unnecessary and posed an unwarranted hazard to motorists such as the claimant, the State has a duty to maintain its roadways "in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver's negligence or an emergency" (Stiuso v City of New York, 87 NY2d 889, 891 [1995]; Bottalico v State of New York, 59 NY2d 302 [1983]). This duty includes providing guardrails to protect against foreseeable risks to motorists (Gomez v New York State Thruway Auth., 73 NY2d 724 [1988]; Gutelle v City of New York, 55 NY2d 794 [1981]; Pinter v Town of Java, 134 AD3d 1446 [4th Dept 2015], lv denied 137 AD3d 1633 [4th Dept 2016]; Kirisits v State of New York, 163 AD2d 860 [4th Dept 1990]). At trial, claimant did not contend that the guardrail with which he collided was unsafe or improperly designed, but that it was unwarranted. Both Mr. Serth and Mr. Gabriel agreed that because guardrail is itself a hazard, the State must first evaluate a roadside hazard and determine whether removal or relocation is possible. While the State cannot invoke qualified immunity because it did not justify the placement of the guardrail by reference to any studies (Brown v State of New York, 31 NY3d 514 [2018]; Marrow v State of New York, 105 AD3d 1371, 1372 [4th Dept 2013]; Gonzalez v City of New York, 268 AD2d 214215 [1st Dept 2000]), claimant failed to demonstrate defendant's breach of duty under ordinary negligence principles (Warner v State of New York, 166 AD3d 1525 [4th Dept 2018], rearg denied 169 AD3d 1461 [4th Dept 2019], lv denied 33 NY3d 905 [2019], rearg denied 33 NY3d 1132 [2019]). Both Mr. Clinton and Mr. Gabriel testified that the existence of a one-on-two slope on the superelevated curve directly across from Old Kings Road was a non-traversable slope which required a guardrail. In addition, the 1953 plans (Exhibit G) for the realignment of Route 23A required the placement of a short section of rail across from Old Kings Road which was later extended toward Will Palmer Road so as not to create a hazard for errant eastbound vehicles, according to Mr. Gabriel. While Mr. Serth acknowledged the existence of a slope beyond the north shoulder of Route 23A opposite Old Kings Road, he testified that it was graded at no more than a one-on-four slope and, therefore, did not require the installation of a guardrail. Admittedly, however, Mr. Serth took no meaningful measurements of the slope due to the existence of poison ivy. While Mr. Gabriel also failed to take measurements of the slope, he testified that based upon his long experience the slope he observed beyond the northern shoulder of Route 23A was one-on-two and warranted installation of a guide rail. While neither gentleman's testimony on this issue is compelling, the burden here is upon the claimant to establish the material elements of his claim by a preponderance of the evidence. In the Court's view, claimant failed to meet his burden of establishing that installation of the guardrail was unnecessary or inappropriate and that the defendant's negligence in installing the guardrail was a proximate cause of his injuries. As Mr. Serth failed to effectively measure the slope, his opinion is factually unsupported and lacks probative value (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Hardsog v Price Chopper Operating Co., Inc., 99 AD3d 1130,1132 [3d Dept 2012]).
The State's duty to maintain its roads in a reasonably safe condition "extends to conditions adjacent to the highway, and if the State or governmental subdivision undertakes to provide a paved strip or shoulder alongside the roadway, it must maintain that shoulder in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver's negligence or an emergency" (Stiuso v City of New York, 87 NY2d 889, 891 [1995]; Stiggins v Town of N. Dansville, 155 AD3d 1617, 1618 [4th Dept 2017]; Johnson v State of New York, 151 AD3d 1672 [4th Dept 2017]; Corollo v Town of Colden, 27 AD3d 1077 [4th Dept 2006], appeal and rearg denied 30 AD3d 1115 [4th Dept 2006]). In other words, the State is not relieved of liability for failure to keep its roadways in a reasonably safe condition "whenever [an accident] involves driver error" (Turturro, 28 NY3d at 482). Thus, "[i]njuries arising from a traveler's use of an improperly maintained roadway shoulder may be compensable through application of general principles of negligence and comparative negligence" (Bottalico v State of New York, 59 NY2d at 304-305; see also Brown v State of New York, 284 AD 1014 [3d Dept 1954], affd 308 NY 980 [1955]; Goodwin v State, 298 NY 873 [1949]).
To prove that the State was negligent, claimant must demonstrate the existence of a defective condition "of which the State was actually aware or constructively aware and which it failed to take reasonable measures to correct" (Jones v State of New York, 124 AD3d 599, 600 [2d Dept 2015]; see also Rockenstire v State of New York, 135 AD3d 1131 [3d Dept 2016]; Warner v State of New York, 125 AD3d 1324 [4th Dept 2015]). Here, the Court is unpersuaded that the shoulder of Route 23A was defective or that the defect contributed to the claimant's unfortunate accident.
With regard to claimant's allegations concerning the area adjacent to the westbound lane of Route 23A, the Court accepts that this area constitutes a shoulder, partially paved and partially unpaved. With respect to the paved portion of the shoulder, claimant alleges that the height differential he encountered caused or contributed to his accident and subsequent injuries. The claimant was, however, unable to identify the place where he encountered the condition. In this regard he testified only that the place where he exited the paved shoulder was within a 30 to 40-foot area beginning generally where the double yellow striping of Route 23A resumed west of the Old Kings Road intersection. Such a description of the location of the alleged injury-producing condition is inadequate to support a finding of liability in light of claimant's own proof that the elevation differential between the paved and unpaved portions of the shoulder varied significantly throughout its length (see Exhibits 43-50). Furthermore, claimant's testimony failed to establish that the height differential caused or contributed to his loss of control. Although claimant testified that he experienced a "jolt" which he described as "surprising," he stated that after completing the transition from the paved to the unpaved portion of the shoulder "I started to get my lean to the left to put the back onto the -- the hardened surface, and she wasn't responsive" (Tr. 125). After hearing claimant's testimony and reviewing the transcript, the Court finds that any effect the change in elevation encountered by the claimant had upon the operation of his motorcycle had ceased prior to his actual loss of control. It was thus not a proximate cause of his accident. Rather, the actual condition which precipitated claimant's loss of control was, according to the claimant, the material composing the unpaved portion of the shoulder which rendered his motorcycle unresponsive. Claimant testified that the shoulder "wasn't a shoulder, it was a washed out streambed, . . . like trying to control a bike on a sandy beach" (id.). When asked how the conditions he encountered affected his ability to maneuver his motorcycle the claimant stated "adversely," referencing "very heavy debris" and "loose, heavy gravel" (Tr. 126). When asked by counsel the specific manner in which the conditions he encountered affected his ability to operate his motorcycle, claimant responded, in part, "you can't ride a bike on [a] beach" (Tr. 157-158). When asked by the Court where his loss of control began he testified "[t]he true loss of control, what I noticed was once the front and rear tire separated [from the paved shoulder], and I realized that I was in a sand pit" (Tr. 158).
Contrary to the proof adduced at trial, the claim alleges that "a guardrail was improperly placed at the far side of the sloping and eroded unpaved shoulder rather than at or near the paved section of the roadway" (claim, ¶ 3, p. 2) and that the guardrail "failed to create a proper barrier or protection to motorists and motorcyclists from the dangerous drop off existing between the paved roadway and the unpaved shoulder" (claim, ¶ 3, p. 3)
The unpaved portion of the westbound Route 23A shoulder was generally referred to at trial as being composed of gravel. There was, however, no proof regarding the actual material used to construct the unpaved shoulder; its nature, depth or composition. Importantly, there was no testimony that the use of gravel adjacent to a paved shoulder in a rural area such as the site of the accident herein was in any way inappropriate. Nor was there any discussion of industry norms or customs or DOT rules, regulations or guidelines relative to the installation and maintenance of unpaved shoulders. In the absence of such proof the claimant has failed to establish that the unpaved shoulder was defective, or that the defendant failed to perform any required duty.
Moreover, claimant's expert proof is at odds with his own testimony regarding the effect of the unpaved shoulder upon the operation of his motorcycle. While claimant testified that his bike became unresponsive due to the "loose, heavy gravel" of the shoulder, when asked his expert opinion whether the shoulder was properly maintained claimant's expert responded in the negative, stating "[t]his is gravel with the old pavement underneath, so it's like going out and throwing gravel across a paved road. You're going to lose the friction . . . you've put marbles on top of the pavement here" (Tr. 126, 395-396). The defective condition described by the expert is entirely unrelated to the condition encountered by the claimant, who likened his experience to riding a motorcycle "on a sandy beach" (Tr. 125), and his testimony on this issue is, therefore, of no effect.
Finally, claimant has failed to establish notice of the existence of the allegedly defective shoulder, a prerequisite to liability (Gray v State of New York, 159 AD3d 1166 [3d Dept 2018]; Martin v State of New York, 305 AD2d 784 [3d Dept 2003], lv denied 305 AD2d 784 [2003]; Fowle v State of New York, 187 AD2d 698 [2d Dept 1992]). There is no proof that the defendant had actual knowledge of any danger posed by the unpaved portion of the shoulder. There were no prior accidents involving the road shoulder, nor were there complaints concerning the area, the citizen complaints received by the DOT in 2001 and 2002 regarding the intersection of Route 23A and Old Kings Road did not in any way address the westbound shoulder of Route 23A. As to constructive notice, the Court finds claimant's proof inadequate to establish such notice on the part of the defendant. Claimant was familiar with the area where his accident occurred as he traveled on Route 23A to and from work on multiple occasions. He did not submit any complaint to the DOT regarding the condition of the shoulder; and he did not testify at trial that he observed a dangerous condition or defect in the unpaved portion of the shoulder at any point previous to the date the accident occurred. Nor do the photo logs depict anything other than what appears to the Court to be roadside conditions typical or representative of rural locales around the state. There is simply no basis in the record upon which it could reasonably be concluded that the injury-causing condition described by the claimant was "visible and apparent" for a sufficient period of time that it should have reasonably been discovered and remedied (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Rubio v State of New York, 168 AD3d 892 [2d Dept 2019]). As a result, the Court concludes that the claimant failed to establish either the existence of a dangerous condition which proximately caused him injury or that the defendant had actual or constructive notice of any defect or dangerous condition within the unpaved portion of the westbound shoulder of Route 23A.
Based upon the proof presented at trial, the Court concludes that the claimant failed to establish defendant's negligence by a preponderance of the evidence.
Based on the foregoing, the claim is dismissed.
Let judgment be entered accordingly.
February 21, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims