Opinion
# 2016-053-004 Claim No. 098768
01-27-2017
RICHARD H. WARNER, Individually and as Guardian of MARY DOROTHY WARNER, an incapacitated person v. THE STATE OF NEW YORK
COSGROVE LAW FIRM By: J. Michael Lennon GIBSON McASKILL & CROSBY, LLP By: Michael J. Willett, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Gregory P. Miller, Esq. Assistant Attorney General
Synopsis
A wrongful death action and claims for personal injuries arising from a motor vehicle accident were dismissed following trial. The Court finds that claimants failed to establish that a dangerous condition existed at the intersection where the accident occurred. Additionally, even if a dangerous condition was found to exist, claimants failed to establish that the State had actual or constructive notice.
Case information
| UID: | 2016-053-004 |
| Claimant(s): | RICHARD H. WARNER, Individually and as Guardian of MARY DOROTHY WARNER, an incapacitated person |
| Claimant short name: | WARNER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 098768 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | COSGROVE LAW FIRM By: J. Michael Lennon GIBSON McASKILL & CROSBY, LLP By: Michael J. Willett, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Gregory P. Miller, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 27, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) | 2016-053-005 |
Decision
DECISION
These two claims arise from a motor vehicle accident that occurred on September 2, 1997 on New York State Route 20 (a/k/a and hereafter "Southwestern Boulevard") at its intersection with Crofton Drive in the town of West Seneca, County of Erie, New York. On August 7, 1998, Claimant Richard H. Warner filed claim no. 98768 for personal injuries sustained by his wife, Mary Dorothy Warner (Mrs. Warner), from this motor vehicle accident. At the time of the accident, Mrs. Warner was in her vehicle in the left lane heading eastbound on Southwestern Boulevard allegedly waiting to make a left turn onto Crofton Drive when she was struck from behind by another vehicle operated by Dale R. Walter (Mr. Walter). As a result of this incident, Mrs. Warner was hospitalized from September 2, 1997 until her death on January 23, 2001. On March 8, 2002, Claimant, as the Executor of his wife's Estate, filed a second claim, claim no. 105712 for the wrongful death of Mrs. Warner. Both claims allege that the State was negligent in the design, construction, reconstruction and maintenance of Southwestern Boulevard at or near its intersection with Crofton Drive.
The trial of this claim was bifurcated and addressed the issue of liability only. The trial was held in Buffalo between April 25 and April 29, 2016. Following the trial, the parties requested and were granted additional time to obtain and review the trial transcript and to submit post-trial memoranda.
FACTS
At the time of the incident, Southwestern Boulevard at its intersection with Crofton Drive was a four lane state highway with a posted speed limit of 55 m.p.h. (Trial Transcript (TT: 15-16). The Claimant testified that on September 2, 1997, his wife was driving home from work. (TT:13). He testified that as you drive east on Southwestern Boulevard past the intersection of Angle Road, you go uphill and as you crest the hill, the road then dips down to where the Crofton Drive intersection is located (TT:16-17).
The accident report indicated that the incident happened at approximately 12:57 p.m. on September 2, 1997. The operator of the other vehicle involved in the accident, Dale Walter, was intending to drive to work from his home. He testified that Mrs. Warner was in the left lane on Southwestern Boulevard near the intersection with Crofton Drive when he struck her vehicle. Mr. Walter was in the left lane as he proceeded along Southwestern Boulevard towards the Crofton Drive intersection. He testified that the intersection immediately before Crofton Drive is Angle Road and that there is an incline or hill as you proceed east past Angle towards Crofton Drive. Mr. Walter testified that he was familiar with this section of Southwestern Boulevard and knew that there was an intersection ahead at Crofton Drive.
The only testimony provided regarding the motor vehicle accident came from Dale Walter, the driver of the other vehicle.
As Mr. Walter was proceeding towards the crest of the hill, a pickup truck had moved alongside him in the right lane. In response, Mr. Walter testified that he took his foot off the accelerator so as to allow the pickup truck to pass him and keep the lane to his right clear. He then took what he described as "just a few seconds" to look out his sideview and rearview mirrors before again looking forward through the windshield, all the while traveling between 50 and 55 m.p.h. (TT: 46). Mr. Walter testified that when he looked forward, he first saw Mrs. Warner's vehicle, which he described as being only "a few feet" in front of him. On cross-examination, however, he was more specific, indicating it was approximately two car lengths in front of him (TT: 46, 58). He could not recall whether the vehicle operated by Mrs. Warner was still moving or stopped (TT: 58). Mr. Walter did not know where Mrs. Warner's vehicle had come from and had not previously observed it (TT: 46, 56, 58, 59). He did not know whether Mrs. Warner's vehicle was at the intersection of Crofton or still approaching the intersection when the collision occurred (TT:60). Mr. Walter testified that at impact, his speed was approximately 50 m.p.h. and the front driver's side of his vehicle contacted the rear passenger side of the Warner vehicle. He testified that he applied the brake and attempted to avoid Mrs. Warner's vehicle by steering his vehicle towards the right shoulder. The Walter vehicle then flipped over on the driver side and slid several feet before coming to a stop (TT: 46-47, 58-59). Photographs were received into evidence detailing the extensive physical damage caused to both vehicles from the collision.
The damage to Mrs. Warner's vehicle is detailed in photograph exhibits 7 through 11 and 13-15. The damage to Mr. Walter's vehicle is detailed in photograph exhibits 23 through 25 and 27-29. Both vehicles are observable in photograph exhibits 21 and 22.
Claimant offered the testimony of Catherine H. Breen, a resident of West Seneca (TT:72). Ms. Breen's two children attended St. John Vianney School, which was located on Southwestern Boulevard near the intersection of Michael Road. In March 1996, Ms. Breen contacted the New York State Department of Transportation (DOT) with respect to concerns she had (TT:75-76). She testified that her concerns were going in and out of the school and making a left turn from Southwestern Boulevard at Leydecker (TT:77). Ms. Breen spoke with DOT employee, Kenneth Kosnikowski and then wrote to him on March 11, 1996 to put in writing her concerns (Exhibit 67A). In this letter, Ms. Breen referenced three specific concerns that she understood would be investigated by Mr. Kosnikowski, including: (1) the discrepancy in the speed limits on Southwestern Boulevard between Orchard Park Road and Leydecker (the speed limit was 45 m.p.h. in one direction but 55 m.p.h. in the opposite direction); (2) the possibility of reducing the speed limit to 45 m.p.h. in both directions "for obvious safety issues" and because the 55 m.p.h. is only for a short distance between the intersections with Leydecker and Reserve; and (3) the possibility of placing a school sign on both sides of Southwestern Boulevard in front of St. John Vianney school.
The penultimate paragraph of Ms. Breen's letter stressed that the school was located in the portion of Southwestern Boulevard that had a speed limit of 55 m.p.h. and that school buses and cars exit and enter from Southwestern Boulevard in order to gain access to the school and her three proposed changes "would make this thoroughfare much safer". Ms. Breen admitted that her letter did not state any concern about making a left turn from Southwestern Boulevard at Leydecker (TT:93). She also testified that the three concerns stated in the letter were what she discussed with Mr. Kosnikowski (TT: 89).
On March 18, 1996, Mr. Kosnikowski responded to Ms. Breen's letter and advised that a traffic engineering study had been initiated (Exhibit 67A). On April 19, 1996, Ms. Breen received a letter from another DOT employee, Richard E. Pratt, an assistant regional traffic engineer. In this letter, Mr. Pratt stated that they had completed their traffic engineering investigation relative to her three concerns. As to the need for a reduced speed limit, after considering the data collected in their traffic engineering study, he stated that DOT did not believe that a reduction in the speed limit along this section of Southwestern Boulevard would be appropriate at that time. As to her request for school signs in the vicinity of the St. John Vianney school, he advised that a DOT maintenance crew would be installing these signs in both directions. Ms. Breen testified that after receiving this letter, she called Mr. Pratt and told him that she was very disappointed that DOT would not be reducing the speed limit or eliminating the speed differential for east and westbound traffic (TT:86).
Kenneth Kosnikowski was a traffic operations engineer for DOT Region 5 (TT: 245-246). In 1996, his primary duty was to respond to individuals or elected officials who had contacted DOT about state highway traffic issues (TT: 205-208). He indicated that accident information is not always obtained as part of the traffic engineering study as not every study needs that type of information (TT: 208, 213). Instead, he indicated that their data collection is determined by the individual or elected official's request. The people in his department would use their professional judgment to determine what data was appropriate and needed to be collected in order to respond to the concern (TT:208-210).
With regard to the request from Ms. Breen, Mr. Kosnikowski testified that he believed that she had two concerns, namely, the speed limit on Southwestern Boulevard and the need for signage for the school (TT:225). A speed study was conducted prior to responding in writing to Ms. Breen on April 19, 1996 (Exhibit 67A). Mr. Kosnikowski indicated that the speed study consisted of observing a minimum of 100 vehicles traveling by a location one-half mile east of Michael Road and Southwestern (TT: 228-229). On direct examination, Mr. Kosnikowski agreed that the speed study was not conducted between Reserve and Leydecker Roads, the area in which Ms. Breen's letter expressed concern, but at a point east of that area (TT: 230). He was also shown another letter within Exhibit 67 to Assemblyman Francis Pordum that referenced his letter of September 27, 1996 regarding a request for a reduction of the speed limit on Southwestern Boulevard in the Towns of Hamburg and Orchard Park. A speed study was conducted on October 16, 1996 at four locations, one being at Crofton Drive, which is located between Reserve and Leydecker Roads. This speed study also concluded that no reduction in speed was appropriate (TT: 234-236).
No accident data was reviewed by DOT in response to Ms. Breen's complaint letter (TT: 244). Based upon his review of the complaints and investigation performed by DOT as contained in Exhibits 67 and 67A, Mr. Kosnikowski testified that prior to September 2, 1997, there was nothing indicating that rear-end accidents were a problem in this vicinity (TT: 248-249). He also testified that if he had received a complaint letter specifically referencing Crofton Drive, that he would have looked at information specific to this intersection and would not have looked at other nearby intersections such as Leydecker Road or Michael Road (TT: 249-250).
The claimant offered testimony from Richard W. Siepel, a licensed surveyor in the State of New York for almost 40 years. In January 2013, Mr. Siepel was retained by claimant to take measurements of Southwestern Boulevard between Michael Road and Leydecker Road (TT:100). The survey (Exhibit 4) sets forth measurements indicating that when traveling eastbound on Southwestern Boulevard, there is an increase in elevation of approximately 23 feet from Angle Road to the crest of the elevation at Hazel Court, a distance of approximately 2,049 feet. Hazel Court is located on the south side of Southwestern Boulevard and is almost directly opposite Crofton Drive on the north side of Southwestern Boulevard.
The defendant objected to the testimony of Mr. Siepel and to the receipt of the survey (Exhibit 4) into evidence. The Court reserved decision on the objection and permitted claimant to offer the testimony of Mr. Siepel and his survey. In response to the Court's pretrial conference order, the claimant's submission listed Mr. Siepel as a fact witness during the pretrial conference held on April 22, 2016, three days before the trial commenced. At the trial, defendant objected to Mr. Siepel's testimony on the basis that he would be offering expert testimony and that no expert disclosure was made by claimant 30 days prior to trial in accordance with CPLR § 3101 (d). In response, claimant's attorney indicated that Mr. Siepel was providing factual testimony concerning measurements on the survey prepared by him for the relevant portion of Southwestern Boulevard. Mr. Siepel's survey had previously been provided to defendant's attorney in 2013 as an exhibit in opposition to defendant's summary judgment motion. As defendant previously had the survey in its possession and since Mr. Siepel's testimony would be limited to the survey and the measurements contained on that survey, it is the ruling of the Court that the defendant is not prejudiced by the admission of Mr. Siepel's testimony or by the survey prepared by him, which will be received into evidence.
Nimish Shah, a professional engineer employed by DOT since 1994 testified concerning the procedures followed at that time for the issuance and retention of permits. Mr. Shah began working for DOT in Buffalo in 1995 and was a regional permit engineer. In this position, Mr. Shah was responsible to issue highway work permits and special hauling permits (TT:123-124). Mr. Shah testified that these records are retained in the office for a period of seven years and that there is a retention policy to maintain these records off site for a period of 20 years, then they are destroyed (TT: 132-133).
David Priebe, a civil engineer employed in planning and program management with DOT from 1972 to 2014, testified that in 1997 he was responsible for maintaining what DOT refers to as the five year program (TT: 165-167). He testified that the five year program compiles and tracks the projects that are being constructed in the current year and those that will be built over the coming five years. Mr. Priebe testified that by continuously updating the five year program, DOT then knows which projects are planned for completion on an on-going basis over the coming five years (TT: 169-172).
Mr. Priebe was shown Exhibit 62 for identification, an Initial Project Proposal (IPP) in Region 5 prepared in November 1997, subsequent to Mrs. Warner's accident, that pertained to a proposed project on Southwestern Boulevard between Orchard Park Road and Transit Road. The IPP described the problem to be addressed as "pavement deterioration" and that the project objective was "to correct identified pavement deficiencies, extending the useful life of the pavement and maintaining a structurally sound highway using cost effective pavement treatments which provide low life cycle costs. Pavement resurfacing incorporating appropriate safety features including a two-way center turn lane, if necessary."
Claimant's counsel sought to admit Exhibit 62 into evidence. Defendant's counsel objected to the admission of this exhibit into evidence on the basis that this IPP report was prepared after Mrs. Warner's accident and thereby was a post-accident report not relevant to this litigation. Claimant's counsel contended that since the IPP was assigned to Mr. Priebe in August 1997 prior to the accident, it was not a post-accident report. In addition, he alleged that the deposition transcripts for two individuals that would be later introduced at the trial would reveal that some preliminary study had been performed prior to the completion of the IPP relating to the two-way center turn lane and as such, the IPP was probative on the issue of whether the State had notice of a hazardous condition existing in the four lane section of Southwestern Boulevard prior to Mrs. Warner's accident. Since Mr. Priebe had prepared the IPP, claimant's counsel contended that he would be a person with knowledge of whether there was some sort of preliminary study. Defendant's counsel objected to the characterization of the yet to be introduced deposition testimony and asserted that no such studies were ever shown to have been performed (TT: 182-185). The Court sustained the objection on the basis that claimant had not yet provided a sufficient foundation for the introduction of this exhibit into evidence but permitted claimant to further question Mr. Priebe and then later seek to introduce this exhibit into evidence.
Mr. Priebe was questioned by claimant's counsel as to why the IPP included the addition of a continuous center turn lane. In response, he stated that he was asked to look at the cost of a five-lane section in order that the IPP would cost out the maximum amount of work to be performed. He further indicated that this was done to ensure that there would be enough money when the time came to assess the various projects in the five year plan and decide whether to add a fifth lane to this section of Southwestern Boulevard. As to whether a traffic study regarding a continuous center turn lane had been conducted prior to preparing the IPP, Mr. Priebe testified that he did not have any accident information when preparing the IPP and that he was not told that any traffic study had been performed prior to the preparation of this IPP (TT: 196-198).
Upon the completion of this questioning, claimant's counsel again sought to offer Exhibit 62 into evidence and the defendant's counsel renewed his objection. Although Mr. Priebe's testimony did not confirm that a traffic study had been conducted to determine a need for a continuous left turn lane prior to preparation of the IPP, the Court reserved decision based upon the representation of claimant's counsel that the deposition transcripts to later be introduced into evidence would demonstrate that a traffic study had been performed prior to the assignment of the IPP to Mr. Priebe (TT: 198-200). At the end of the trial, claimant's counsel introduced deposition transcripts of James J. Barnack, P.E. (Regional Traffic Engineer for the DOT) (Exhibits P and Q) and the transcript of the deposition of Charles Getz of the DOT Traffic Engineering and Safety Division (Exhibit II), which were received by stipulation. The Court finds that the deposition testimony of Mr. Barnack and Mr. Getz do not support claimant's contention that a traffic study was prepared prior to the preparation of the IPP that had concluded the need for a continuous center turn lane on this section of Southwestern Boulevard, which would include the intersection at Crofton Drive. In addition, the IPP was first assigned to Mr. Priebe about one month prior to Mrs. Warner's accident, the IPP process was not completed until December 1, 1997, almost two months after the subject accident. As such, it is the ruling of the Court that Exhibit 62 is a post-accident report that is not admissible.
The deposition transcript of Charles Getz that was received into evidence by stipulation indicates that he was employed by DOT Region 5 in the traffic engineering and safety division (Exhibit II at p. 5). Mr. Getz testified that he was not aware of any studies performed with respect to the intersection of Crofton Drive or of any study of Southwestern Boulevard that would have included Crofton Drive prior to Mrs. Warner's accident (Exhibit II at pp. 22-26). Finally, Mr. Getz was not aware that DOT received any complaints or requests for a left turn lane at Crofton Drive prior to Mrs. Warner's accident (Exhibit II at pp. 26-27).
The final fact witness to testify was Patricia H. Pericak, a licensed professional engineer employed by DOT as a safety evaluation engineer in Region 5. Ms. Pericak testified that she was requested in January 1998 to conduct a highway safety investigation and prepare a report for a reconstruction project on Southwestern Boulevard from Route 240, Orchard Park Road to NY Route 187, Old Transit Road, in the towns of Orchard Park and West Seneca, Erie County (Exhibit 65). She testified that three years of accident data were typically reviewed to assist them in identifying any prevalent accident types. The three years of accident data that was available for this investigation included the time period October 1, 1993 through September 30, 1996. The accident history data focused upon the five lane section and the four lane section of Southwestern Boulevard (which included the four major intersections of Michael, Reserve, Angle and Leydecker). Crofton Drive intersects Southwestern Boulevard between Angle and Leydecker. The accident history data compiled was attached to the final report and listed 112 accidents. The final report was dated February 26, 1998, over five months after the subject accident (TT: 305-309).
Ms. Pericak testified that with respect to the project assignment for the section of Southwestern Boulevard included in Exhibit 65, they would go through their files to see if they had received any complaints within the project limits. No complaints were found (TT: 356-357). In answer to a hypothetical question, she responded that in order to determine if the intersection of Crofton Drive was a problem area, they would perform an accident analysis that would only look at accident reports involving Crofton Drive at Southwestern or from Southwestern onto Crofton Drive (TT: 364).
Ms. Pericak testified that at the request of the defendant's counsel, she had computed the average accident rate for the intersection of Crofton Drive at Southwestern Boulevard and then compared it to the statewide average. She examined MV-104A forms between October 1993 and September 1996 and found that only three accidents occurred at the Crofton Drive intersection. Based upon this information, she computed the accident rate for this intersection, which was 0.17 accidents per million vehicle miles entering Crofton Drive (TT: 366-367). Ms. Pericak testified that the comparable statewide average for this type of road was 0.18 accidents per million vehicle miles (TT: 367). In arriving at the accident rate for Crofton Drive, Ms. Pericak testified that she examined the MV-104A forms for each of the accidents and that of the three accidents that occurred at the Crofton Drive intersection, only two involved rear-end accidents. Ms. Pericak found that the accident rate at Crofton Drive was about the same as the statewide average. As a result, she testified that she would not consider the Crofton Drive intersection a problem area that required attention (TT: 370-372).
The claimant's attorney moved to introduce this safety investigation report (Exhibit 65) into evidence, contending that all of the accident history data relied upon in the report occurred prior to the subject accident and was thereby available to the defendant prior to Mrs. Warner's accident on September 2, 1997. As such, claimant contended that this report and the accident history data referred to in it were relevant to determine whether this section of highway was in a dangerous condition, the condition of the road at the time of the accident, the manner in which safety investigations are conducted, and whether or not a dangerous condition existed at the time of Mrs. Warner's accident (TT: 308-310). The defendant objected to the receipt of Exhibit 65 into evidence on the ground that this report was prepared post-accident, that the accident history data and information for this safety investigation report was only obtained after the September 2, 1997 accident, and that it was prepared for use in determining the scope of a potential road reconstruction project that was to commence at some unknown future date. In addition, defendant objected that there was no testimony providing any foundation that the defendant was on notice of any problem with rear-end accidents at the intersection of Southwestern Boulevard and Crofton Drive (TT: 308-311). The Court reserved decision at the trial.
Upon reviewing the proposed exhibit and consideration of the testimony of Ms. Pericak and the deposition transcript of James J. Barnack, it is the ruling of the Court that defendant's objection to the admission of Exhibit 65 is overruled to the extent that the accident history data included in that exhibit prior to January 1, 1995 and the collision diagrams relating to the placement of those accidents occurring prior to January 1, 1995 would have been available to Mr. Kosnikowski had he requested them in March 1996 and are thereby relevant to the issue of notice. Accordingly, the Court will admit and consider that portion of Exhibit 65 that references the accident history data for the accidents numbered 1 through 50, which represent accidents occurring between October 20, 1993 and December 26, 1994. However, the Court will sustain the defendant's objection to the extent that I will exclude and not consider the comments and recommendations section of the report which is based upon all of the accident history data, including accidents numbered 51 through 112 as these would not have been available to defendant at the time of Ms. Breen's letter. Claimant has provided no testimony or other evidence to establish that prior to the date of the subject accident, September 2, 1997, the defendant was on notice or had any other reason to access the accident history data such as that contained in the report attached to Exhibit 65.
Exhibit 65 contains accident history data for 112 accidents, but contains data including 77 accidents that occurred beyond the time period that Mr. Kosnikowski could have received accident history data, i.e., any accident after March 18, 1994. Within this data, the only rear-end accidents that occurred with vehicles turning left from Southwestern Boulevard onto Crofton Drive, accident history data #74 and #82, did not occur until September 14, 1995 and November 29, 1995, respectively. Thus, neither of these two accident reports would have been available to Mr. Kosnikowski had he requested them after receiving Ms. Breen's letter in March 1996.
EXPERT WITNESS TESTIMONY
Claimant produced two expert witnesses to testify in support of the claim. The first expert witness was Alfred W. Bachner, a professional engineer licensed in the State of New York (TT: 411). Mr. Bachner began working for DOT in 1970, holding several job titles, the last of which prior to his retirement was civil engineer 3, where he was responsible for supervising the capital projects section in the regional traffic office. He also served as the regional permit coordinator and regional claims engineer in Region 10 (TT: 402-403). Mr. Bachner was asked about DOT's permit practice between 1970 and 1979 as it relates to the creation of an intersection such as Crofton Drive. He responded that if an intersection was being created by an entity other than DOT, they would require a highway work permit. One of the steps in the permit process would require the preparation of a traffic impact study. A traffic impact study is to assess what the impacts of the new roadway will be upon traffic and dependent upon the volume, what improvements would be needed to handle the increased traffic with the primary concern being safety (TT: 414-416). He indicated that the safety specifications that would be addressed before a permit would be issued was making certain that the roads drain properly, that there are good stopping sight distances to permit vehicles to enter and exit the highway safely, and adequate turning radiuses for left and right turns (TT: 416-417). Mr. Bachner stated that when a traffic impact study was completed, it was submitted to DOT and became part of the files concerning permit applications and would go in the design review section of the file. In turn, the design review section would make copies of the traffic impact study and distribute them to the various sections within DOT for comments (TT: 419-420). Once all of the comments were adequately addressed and DOT had all of the required plans, a permit would be issued (TT: 421-422).
Once a permit was issued for an intersection like Crofton Drive, Mr. Bachner testified that the DOT had an obligation to send out a DOT employee to monitor the traffic in order to make certain that any traffic control devices needed were installed and to continue to maintain any traffic control devices or signs (TT: 423-424). Mr. Bachner testified that he did not see any documents relating to the granting of a permit for the creation of the intersection of Crofton Drive with Southwestern Boulevard or any records relating to any follow-up work that was done after the intersection was created (TT: 425).
Mr. Bachner was then shown Ms. Breen's letter (Exhibit 67A) and asked if in his opinion as a traffic and safety engineer whether conducting a speed study was a reasonable and adequate response to this letter. He stated that a speed study was one element to be carried out and that he would also have looked for metrics to determine if there was a safety problem. He disagreed with the testimony of Mr. Kosnikowski and Ms. Pericak that all that was required in response to this letter was a speed study. Mr. Bachner testified that the data that he would have examined would be accident data, i.e., the information found in MV-104 A forms. He also indicated that he would have sent someone out to view the site to get a clear idea of the traffic patterns, how traffic is flowing and any conflicts where a vehicle encounters any intersections or merging conflicts that would impact vehicle flow (TT: 425-434). Mr. Bachner confirmed the testimony of Ms. Pericak and Mr. Barnack that when gathering accident data, you would examine at least three years of data (TT: 435). In his opinion, if you had a section of highway with multiple intersections, accidents occurring at more than one intersection could form a pattern (TT: 437).
Mr. Bachner testified that he reviewed the MV-104A forms produced by the towns of West Seneca and Orchard Park Police Departments, Exhibits 71 and 72, respectively for that portion of Southwestern Boulevard between Michael Road and Leydecker Road. Mr. Bachner further testified that he found a pattern with those three years of accident records from 1992 through 1994 involving vehicles either making a left turn from Southwestern Boulevard or vehicles attempting a left turn from Crofton Drive in order to enter the highway. He testified that in the 1992 accident records produced by the Orchard Park Police Department, Mr. Bachner testified that he found 11 accidents and three of the 11 were rear-end accidents where a vehicle struck a left turning vehicle. In 1993, he found three rear-end accidents involving left turns, with one at Angle Road. In 1993, the West Seneca Police reported three rear-end accidents with two at Leydecker. In 1994, the Orchard Park Police reported a total of seven accidents, with four of them involving rear-end accidents with left turning vehicles, two at Leydecker and one at Angle Road and at Hazel Court. In 1994, the West Seneca Police reported five accidents and one involved a vehicle entering Southwestern Boulevard making a left turn (TT: 450-451). Based upon his review of these accident reports, Mr. Bachner's opinion was that the percentage of rear-end accidents reported between 1992 and 1994 in this section of Southwestern Boulevard was a safety issue that required that action be taken (TT: 451-452). Mr. Bachner did not compute an accident rate for Crofton Drive as was performed by Ms. Pericak nor did he compare his computations with any statewide average for similar roads or highways.
In response to the Breen complaint, he stated that he would have looked into installing a left turn lane throughout this section of Southwestern Boulevard (TT:442-444). In his opinion, a continuous two-way left turn lane was needed on Southwestern Boulevard between Reserve and Leydecker Roads (TT: 446-447). Mr. Bachner stated that DOT had two ways to accomplish a center two-way left turn lane. The first method was to reduce the number of travel lanes from four to three, leaving one eastbound travel lane, one center left turn lane and one westbound travel lane. He admitted that based upon the volume of traffic in this area that this would not be a viable solution. The second alternative would be to reconfigure the lanes and restripe the road as from his review of the plans, there was 52 feet of pavement capable of carrying wheel loads and presently four 13 foot travel lanes. His recommendation was to reconfigure Southwestern Boulevard to four 10 foot lanes, two eastbound and two westbound, with a 12 foot left turn lane. The striping contractor already retained by DOT could take out the old markings with a grinder and replace them with new striping, which could have been done either in the spring or summer of 1997, prior to the subject accident (TT: 448-450). On cross-examination, Mr. Bachner agreed that whether or not a construction project could be undertaken would require a review of other proposed projects, prioritizing all projects, and putting together an Initial Project Plan. He agreed that if a project was required, it would have to compete with other worthy projects. He also agreed that the testimony of Ms. Pericak was accurate as to the length of time it would take for a project to progress (TT: 486-487). Ms. Pericak had testified that a simple project would on average take two years to complete and if not simple, much longer (TT: 357-358).
In the April 2002 deposition transcript of James J. Barnack (Exhibit P), he was also questioned by claimant's counsel about what could be done in order to include a center two-way left turn lane on Southwestern Boulevard at Crofton Drive. He testified that it would require a construction project as the addition of a center two-way left turn lane required at minimum 55 to 60 feet of useable pavement and that in 1997, there was not sufficient useable pavement on this section of Southwestern Boulevard. He further stated that shoulders are not constructed for motor vehicle traffic and that the shoulders would need to be repaved to an adequate depth before a center two-way turn lane could be incorporated (Exhibit P at pp. 46-49, 52). Finally, when questioned by claimant's counsel whether anything could be done in the interim in order to put in a center two-way left turn lane without a pavement project, his response was "no" (Exhibit P pp. 52-53).
On cross-examination, Mr. Bachner was also questioned concerning his experience in DOT Region 10 conducting speed studies. He testified that data collection for a speed study typically took no more than 25 to 30 minutes and that to analyze the data to complete the report would take not more than one day (TT:467-468). In order to conduct a study of accident data in addition to a speed study would take approximately four to five weeks. Mr. Bachner testified that when he was supervisor of traffic control he conducted both a speed study and a metric study in response to a complaint regarding speed (TT: 466-469). He was also asked whether he was aware of DOT's retention policy for permits and if he had ever seen the DOT retention policy set forth in Exhibit Z, to which he replied that although he was aware of their retention policy in Region 10, he was not aware of a general DOT policy for the retention of permits and had never before seen that exhibit (TT: 474-476). Mr. Bachner also testified that he had no reason to disbelieve what was set forth in Exhibit Z (TT: 476-477). Mr. Bachner also agreed that nowhere in Ms. Breen's letter did she indicate any concern about rear-end accidents (TT: 479). He also testified that there was only one accident at the intersection of Crofton Drive in the accident reports that he examined from the Orchard Park and West Seneca Police Departments (TT: 482). Mr. Bachner agreed that prior to the September 2, 1997 accident, there were no complaint letters relating to Crofton Drive in the DOT files (TT: 483).
Lawrence M. Levine was the second expert witness to testify on behalf of claimant. Mr. Levine is a professional engineer licensed in the State of New York (TT: 501-503). He was retained by claimant in 1999 (TT: 505). Mr. Levine was shown a series of photo log photograph exhibits of Southwestern Boulevard in the vicinity of Crofton Drive that were taken by DOT on July 8, 1998 (Exhibits 42 through 58). The photographs were taken traveling eastbound on Southwestern Boulevard, which was then a four lane highway with a double yellow line median and are taken proceeding up the hill prior to the Crofton Drive intersection. Mr. Levine testified that he could not see the intersection of Crofton Drive until photograph Exhibit 50, where it is depicted on the left side of the photograph along the edge of Southwestern Boulevard and adjacent to a sign. He testified that photograph Exhibit 53 shows the intersection more clearly to the left of the red truck depicted in the photograph and that in photograph Exhibit 56, the street sign is now more visible (TT: 515-516).
Mr. Levine testified that these photo logs are taken every hundredth of a mile or every 52.8 feet (TT: 510).
Mr. Levine then testified about what a traffic impact study would have included and with respect to the issue of sight distances, he testified regarding the required sight distances for a vehicle exiting Crofton Drive onto Southwestern Boulevard by utilizing the Institute of Traffic Engineers sight distances that would require 950 feet to the left and 1,050 feet to the right (TT: 520-521, 524, 623). He later testified that when this intersection was constructed in the 1970's, Southwestern Boulevard was considered a rural road, so it would be increased 10% and require 1,050 feet to the left and 1,155 feet to the right (TT: 556). Mr. Levine then opined that if a proper traffic impact study had been conducted at the time of the creation of the Crofton Drive intersection, that location would have been found to have insufficient sight distances. He testified that the sight distance for a motor vehicle stopped at Crofton Drive turning left onto Southwestern Boulevard, which he measured by eye to be about 600 feet was insufficient (TT: 523-526). In addition, he opined that cars on Southwestern Boulevard could not see a motor vehicle turning left out of Crofton Drive in enough time to avoid having to slow down dramatically (TT: 526-527). He testified that the sight distance is limited for vehicles traveling eastbound on Southwestern Boulevard because of what he described as "a substantial hill" that crests west of Crofton Drive (TT: 527). Mr. Levine then opined that a reasonable traffic engineer would have several options: not placing the intersection of Crofton Drive in that location or relocate the intersection so that you have sufficient sight distances; restrict Crofton Drive to right turns only; sign the intersection with no left turns; or put an intersection ahead sign to warn traffic (TT: 528-529). Another option would be to reduce the 13 foot travel lanes to 10 or 10.5 foot lanes and create a 12 foot two-way left turn lane (TT: 530).
All the measurements taken by Mr. Levine were by sight and his testimony regarding required sight distances were for a vehicle exiting Crofton onto Southwestern Boulevard.
With respect to relocating the intersection, Mr. Levine later testified that relocating would require placing it on another road within the subdivision and denying a permit to place the access road onto Southwestern Boulevard (TT: 539).
Mr. Levine was then questioned concerning the September 2, 1997 accident and his review of the accident photographs and provided his opinion that the unsafe conditions he described at the intersection of Crofton Drive were the cause of the subject accident. He testified that if Crofton Drive did not exist, the accident would not have occurred and that if a two-way left turn lane existed, the accident would not have happened (TT: 536-537). Mr. Levine also opined that the presence of an intersection ahead sign on Southwestern Boulevard would have prevented this accident (TT: 547-548). He opined that the absence of the two-way left turn lane was the cause of this accident because Mrs. Warner had to stop her vehicle in the left lane in a location which had critically limited stopping sight distance because of the hill located to the west of Crofton Drive (TT: 550-551). At the end of his direct testimony and in response to a question whether he had an opinion whether there was an unreasonably dangerous condition for eastbound drivers turning left at the intersection of Southwestern Boulevard and Crofton Drive as of September 2, 1997, Mr. Levine responded that he did and that it was his opinion that "there was a hazardous condition for Crofton and every other intersection along that stretch of road near that hill" (TT: 571). He based this opinion on three factors, testifying that (1) "any review of the accident history would show a high number of rear-end accidents in the left lane"; (2) "just the fact that it's a four-lane highway and the left lane's being used to turn left and vehicles have to stop"; and (3) "there is a hill preceding [sic] eastbound which severely limits the stopping sight distance and the intersection sight distances for all the intersections there, including Crofton." (TT: 573).
On cross-examination, Mr. Levine agreed that there were less accidents at Crofton Drive and Southwestern Boulevard than the other adjacent intersections (TT: 582-583). He agreed that the MV-104A forms prepared by the Orchard Park Police Department were for the period beginning November 25, 1991 through June 27, 1997 and that there were only four accidents marked with tabs on his copies of the accident reports that related to Crofton Drive (TT: 585).
Defendant's counsel then cross-examined Mr. Levine utilizing several of the photo log exhibits. Mr. Levine agreed that the pavement of the Crofton intersection was visible on the left side of the photo, beginning with photo log photograph Exhibit 51 (TT: 591-592). On Exhibit 57A, Mr. Levine marked in green the location where a vehicle would be stopped to make a left turn (TT: 596-597). He agreed that all of the photo log exhibits were taken by a vehicle operated in the right lane, so that the views from the photos would be a different perspective than it would appear to someone driving in the left lane (TT: 597-599). Mr. Levine agreed that if a vehicle was stopped to make a left turn into Crofton Drive in photo log Exhibit 56, that it would be visible to someone traveling in the left lane eastbound on Southwestern Boulevard (TT: 599). He agreed that Exhibit 56 was 52.8 feet back from Exhibit 57. Similarly, Mr. Levine agreed that a vehicle stopped to make a left turn onto Crofton Drive would be visible to someone traveling in the left lane eastbound on Southwestern Boulevard in photo log Exhibits 55, 54, 53, 52, 51, 50 and 49 (TT: 599-605). As a result, Mr. Levine agreed that by utilizing the photo log photographs where each photo is taken every 52.8 feet, the distance that a vehicle stopped in the left lane to make a left turn onto Crofton Drive would be visible to someone traveling in the left lane eastbound on Southwestern Boulevard would be at least 422.4 feet.
Mr. Levine was then cross-examined regarding the record plans for this part of Southwestern Boulevard in 1975 (Exhibit 2). He explained that the project plans in Exhibit 2 called for putting in a top and binder course of new pavement 52 feet wide. He agreed that this project would have required a safety investigation and an Initial Project Proposal (TT: 607-608). He also agreed that in reviewing these plans that the pavement project that was performed in the mid-1970's was done with four travel lanes without a two-way left turn lane and that this included the area between Michael and Leydecker Roads going eastbound (TT: 610-611). Mr. Levine agreed that when this road was re-paved in 1975, there was no change in the number of lanes and that it remained four lanes (TT: 611-612). He reluctantly agreed that in his review of records of complaints along Southwestern Boulevard between Michael and Leydecker Roads that there were no specific complaints regarding Crofton Drive (TT: 618-620).
Mr. Levine was then shown the DOT Policy and Standards manual effective January 1, 1973 (Exhibit 70), which he understood to be the official policy of DOT governing entrances to state highways and how to lay them out and install them. He agreed that nowhere in this manual does it utilize the Institute of Traffic Engineers sight distance numbers he utilized or specify in numbers how far a driveway (or intersection) has to be in terms of sight distances (TT: 623). In addition, Mr. Levine testified that in his opinion the fact that rear-end accidents occurred at other intersections near Crofton Drive was relevant (TT: 635-636). He also opined that there can be more than one substantial cause of an accident and that the design of Southwestern Boulevard at Crofton Drive was a hazardous condition and a substantial factor in causing the accident of September 2, 1997 (TT: 636).
The defendant offered the testimony of expert witness William Logan. Mr. Logan is a licensed civil engineer who began working for DOT in 1970 and was the Region 1 traffic and safety engineer at the time of his retirement in 2005 (TT: 645-647). He described the retention policy for the highway work permit section, referencing a June 15, 1995 memo from DOT's main office permit section (Exhibit Z). Mr. Logan testified that in 1999 the retention period would be 20 years (TT: 653). As a result, he testified that the testimony provided earlier in the trial by Mr. Shah was consistent with his understanding of the statewide policy (TT: 653-654). Based upon his examination of the photo logs, (Exhibits A and B), it was Mr. Logan's opinion that the intersection at Crofton Drive was constructed sometime after June 15, 1976 and before September 11, 1979 (TT: 655-656). Mr. Logan further testified that if the permit for Crofton Drive had been approved prior to 1979, the records for the highway work permit would have been destroyed by the time claimant requested these records in 1999 based upon the DOT retention policy (TT: 658-659).
Based upon his experience handling citizen complaints at DOT, Mr. Logan testified that Ms. Breen was complaining in her letter (Exhibit 67A) about a discrepancy in speed limits on Southwestern Boulevard between Orchard Park Road and Leydecker Road, that she was requesting a speed limit study, and third, that she was requesting school zone signs be installed (TT: 659-662). Mr. Logan contradicted the opinion of Mr. Bachner, who had stated that he conducts a safety investigation with every speed study, testifying that it is not a statewide policy of DOT to do so. He reiterated his opinion that the testimony of Mr. Kosnikowski and Ms. Pericak was correct, that all that was required in response to Ms. Breen's letter was to perform a speed study (TT: 662-664). Mr. Logan also opined that in evaluating whether Crofton Drive was a hazardous or dangerous intersection, he would not look at accident records for Michael, Angle, Reserve or Leydecker Roads (TT: 664-665). He was shown the complaints received by DOT for Southwestern Boulevard between Michael and Leydecker Roads (Exhibit 67) prior to the subject accident. The only complaints in the exhibit related to requests for a speed limit reduction, so in his opinion no complaint warranted DOT requesting accident history data (TT: 669-670). Mr. Logan also disputed the opinion of Mr. Levine that Southwestern Boulevard in this section was unsafe because it was a four-lane highway, stating that a four-lane undivided highway is a standard design by DOT and not necessarily unsafe (TT: 671). He also disputed Mr. Levine's use of the Institute of Traffic Engineers Guidelines for Driveway Design and Location (Exhibit 76) as definitive on the issue of sight line distances. He testified that the distances referenced from this exhibit were not DOT standards and they were not required to follow them (TT: 671-672). Instead, Mr. Logan stated that DOT Policy and Standards For Entrances to State Highway set forth the standard that was in effect at the time that the Crofton Drive intersection was created and it did not specify a specific number of feet for sight distances. He opined that you would not consider the intersections of Michael, Angle, Reserve and Leydecker when considering whether the intersection of Crofton Drive is a dangerous intersection. He was also of the opinion that the intersection of Crofton Drive with Southwestern Boulevard was not a dangerous intersection (TT: 673-674).
Exhibit 70 at page 6 sets forth three criteria for the location and layout but does not set forth any specified number of feet for sight distances, stating only that it should provide "[t]he most favorable vision, grade and alignment conditions for motorist using the proposed driveway and the highway."
On cross-examination, Mr. Logan stated that he did not review the accident records of the Orchard Park and West Seneca Police Departments to arrive at his opinion (TT: 678). He agreed that with respect to Ms. Breen's letter, her concern was whether the speed limit was properly set on the section of Southwestern Boulevard between Reserve and Leydecker. He did not agree that DOT employees were required to do some investigation into safety along that section of Southwestern Boulevard (TT: 698). He agreed that the traffic speed study in response to Ms. Breen's letter was performed 0.5 miles east of Michael Road and thereby outside of the section of road between Reserve and Leydecker, but that the study did not necessarily have to be done directly within that section (TT: 699-700). In his opinion, Ms. Breen's safety concern had to do with the speed limit, she was asking to reduce the speed limit and as a result, a speed study was the proper investigation (TT: 711). On redirect, Mr. Logan opined that with respect to the location of the intersection of Crofton Drive, it was significant that DOT had not received any complaints or letters with regard to the ability of vehicles to exit or enter Crofton Drive (TT: 731-732).
LAW
The State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579 [1960]). The State is not, however, an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]).
The State is also immune from liability and negligence for acts involving judgment or discretion (Id. at 97). In the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision (Friedman v State of New York, supra at 283; Alexander v Eldred, 63 NY2d 460, 465-466 [1984]). The State is liable only when its highway plan or design was adopted without adequate study or lacked a reasonable basis (see Weiss v Fote, 7 NY2d 579 [1960]; Spanbock v Trzaska, 287 AD2d 496 [2d Dept 2001], lv denied 97 NY2d 610 [2002]).
It has also been held that with respect to the area of highway safety, "something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (Weiss v Fote, supra at 588 [1960]).
The claimant has the burden to show that the defendant either created a dangerous condition or had actual or constructive notice of it, and failed to take reasonable measures to correct it (Lee v State of New York, UID No. 2013-039-370 [Ct Cl, Ferreira, J., April 30, 2013], citing Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to constitute constructive notice, it has been held that a defect must be visible, apparent and exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
ANALYSIS
The Court will first address the issue of whether the defendant is afforded the benefit of the qualified immunity defense with respect to the location of the Crofton Drive intersection with Southwestern Boulevard. The claimant contends that the defendant never issued a permit for the construction of the Crofton Drive intersection since neither the permit nor any documentary proof of its existence was produced. The proof at trial included the record plans for a highway project on Southwestern Boulevard between Transit Road and Lake Avenue, where the intersection at Crofton Drive would later be constructed. Those record plans indicate that construction was completed for this project and accepted by DOT on July 5, 1976, but that Crofton Drive did not yet exist (Exhibit 1). The subdivision map for the Oakbrook Park 2 project was also received into evidence (Exhibit 2). This subdivision map included Crofton Drive and its intersection with Southwestern Boulevard. The project was approved by the West Seneca Town Board on September 21, 1976. These plans do not indicate the date when Crofton Drive came into existence. From the photo log photos received into evidence, defendant's expert, Mr. Logan, testified that he was able to determine that Crofton Drive was constructed sometime after June 15, 1976 and before September 11, 1979.
In 1999 and during the course of pretrial discovery, Mr. Shah, the DOT regional permit engineer, was requested to produce the permit that was issued for the construction of the Crofton Drive intersection. Mr. Shah testified at trial that he was unable to produce the permit or the permit file as the statewide retention policy in effect at that time required that permit records for roads like Crofton Drive be maintained only for 20 years and then destroyed. As a result, by the time that claimant requested the production of the permit file from the State, that file would have already been destroyed. Claimant's expert witness, Mr. Bachner did not dispute the memorandum setting forth the retention policy that was received into evidence (Exhibit Z and Bachner testimony at TT: 476-477). The Court finds the testimony of Mr. Shah and Mr. Logan believable and concludes that even though the permit and permit file were not produced by defendant, it cannot be concluded from the failure to produce a permit that none was ever issued, only that any permit and permit file for the intersection of Crofton Drive would have been destroyed in accordance with the DOT retention policy before claimant made his pretrial discovery request. However, in order to invoke the qualified immunity defense, the defendant has the burden of demonstrating that its decision was the product of a deliberative decision-making process (Evans v State of New York, 130 AD3d 1352 [3d Dept 2015]; lv denied 26 NY3d 910 [2015]). In that the defendant is unable to produce the permit file which would include documents to establish the deliberative process that transpired before issuance of a permit to construct the Crofton Drive intersection or provide any witness testimony familiar with and involved in that process, the defendant is not entitled to raise the qualified immunity defense with respect to the construction of the Crofton Drive intersection (Matter of Estate of Hamzavi v State of New York, 43 AD3d 1430 [4th Dept 2007]).
Mr. Filonczuk, the DOT permit engineer also described this same retention and destruction policy would be applicable to the Crofton Drive intersection (Exhibit JJ: 30-31).
In the absence of the qualified immunity defense, it has been held that the defendant's liability can still be established by ordinary negligence principles (Melkun v State of New York, UID No. 2007-030-031 [Ct Cl, Scuccimarra, J., June 27, 2007]; Meyer v State of New York, UID No. 2004-009-136, [Ct Cl, Midey, J., Dec. 20, 2004]). As a result, in order to establish the defendant's liability, the claimant has the burden to establish that a dangerous condition existed at the Crofton Drive intersection; that defendant either created the dangerous condition or had actual or constructive notice of its existence and failed to take steps to alleviate it or warn motorists; and that this condition was the proximate cause of the accident (see Redcross v State of New York, 241 AD2d 787, 789 [3d Dept 1997], lv denied 91 NY2d 801 [1997]; Rockenstire v State of New York, 135 AD3d 1131 [3d Dept 2016]; Brown v State of New York, 79 AD3d 1579, 1582 [4th Dept 2010]).
The claimant contends that the Crofton Drive intersection was unreasonably dangerous from the time of its construction. Claimant's expert witness, Mr. Levine offered his opinion that "there was a hazardous condition for Crofton and every other intersection along that stretch of road near that hill." (TT: 571). He based this opinion upon three factors, namely, that (1) "any review of the accident history would show a high number of rear-end accidents in the left lane"; (2) "just the fact that it's a four-lane highway and the left lane's being used to turn left and vehicles have to stop"; and (3)"there is a hill preceding [sic] eastbound which severely limits the stopping sight distance and the intersection sight distances for all the intersections there, including Crofton." (TT: 573).
As to the first factor cited by Mr. Levine, the high number of rear-end accidents in the left travel lane, he did not testify during his direct examination what the basis was for this opinion or what accident reports he reviewed prior to his testimony. On cross-examination, he agreed that he had the MV-104A forms produced by the Orchard Park and West Seneca Police Departments in his file, that the Orchard Park records were for accidents occurring between November 25, 1991 and June 27, 1997, and that there were only four accidents tabbed that related to Crofton Drive (TT: 585). Mr. Levine did not describe these accidents, what he found in these accident records to conclude that there was a high number of rear-end accidents, nor did he indicate in what manner these accidents were the same or similar to the subject accident. It has been held that in order to establish the existence of a dangerous condition on a highway, it is the claimant's burden to establish not only the number of prior accidents at the subject location but also to produce evidence that the prior accidents were of a similar nature and were caused by the same or similar contributing factors that caused the instant accident (Brown v State, supra at 1583; Hough v State of New York, 203 AD2d 736, 738-739 [3d Dept 1994]). The Court finds that Mr. Levine's opinion with respect to this factor is conclusory and unsupported in that his testimony did not establish any basis for his conclusion that there was a high number of rear-end accidents in the left lane.
As to the second factor cited by Mr. Levine, namely, "the fact that it's a four-lane highway and the left lane's being used to turn left and vehicles have to stop", Mr. Levine did not state the basis for this opinion or upon what evidence he arrived at this conclusion. He did not reference any study by him or anyone else that concludes that a four-lane highway is unreasonably dangerous where vehicles are permitted to make left turns. On cross-examination, he was questioned about Exhibit 2, the record plans for a highway project on Southwestern Boulevard between Transit Road and Lake Avenue, where the intersection at Crofton Drive would later be constructed. He agreed that the purpose of this project was to pave Southwestern Boulevard and that when it was completed in 1976, it remained a four-lane highway with two lanes in each direction (TT: 610-611). Mr. Levine also agreed that before going forward with this project, DOT would have performed a safety investigation, an Initial Project Proposal and perhaps an Extended Project Proposal and that no changes were made to the highway (TT: 611-612). During the direct examination of defendant's expert witness, Mr. Logan, he specifically addressed Mr. Levine's opinion, stating that just by being a four-lane undivided highway does not mean that it is unsafe and that a four-lane undivided highway, like Southwestern Boulevard was a standard DOT highway configuration (TT: 671). The Court finds that Mr. Levine's opinion with respect to this second factor is conclusory and unsupported by his testimony.
As to the third factor cited by Mr. Levine, he concluded that there is a hill for eastbound vehicles which severely limits the stopping sight distance and intersection sight distances for all the intersections on Southwestern Boulevard, including Crofton. In his direct examination, Mr. Levine opined that sight distances were limited for vehicles traveling eastbound on Southwestern Boulevard due to a "substantial hill" that crested west of Crofton Drive. He characterized it as "steep enough on both sides that you can't see the car coming up the hill until it just pops over the crest." (TT: 527). Mr. Levine did not indicate that he made any measurements of this elevation to arrive at his conclusion, nor did he otherwise describe what he meant by a substantial hill. He also did not indicate that his opinion was based upon any examination of the measurements set forth in the survey performed by Mr. Siepel. Mr. Levine also provided no factual support or basis for his opinion that this same hill impacted all of the intersections on Southwestern (which include Michael Road, Cherokee Drive, Reserve Road, Angle Road, Hazel Court, Crofton Drive and Leydecker Road). The Court has viewed the 17 photo log photos that were received into evidence, which depict the view every 52.8 feet traveling eastbound on Southwestern Boulevard with Exhibit 58 being at the intersection of Crofton Drive and each preceding photograph being 52.8 feet back or west of Crofton Drive (Exhibits 42 through 58). From viewing the survey, Exhibit 4, and comparing it with the location of photo log photo Exhibit 42, it appears that the elevation at the point that this photo was taken is approximately 12 feet above the Michael Road elevation and that the elevation at Hazel Court as seen in photo log photo Exhibit 56 is about 21 feet above the Michael Road elevation. Accordingly, utilizing the survey the Court finds that the photo log photos show an increase in elevation of about nine feet between the first photograph, Exhibit 42 and the intersection of Hazel Court as depicted in Exhibit 56. The Court also finds from an examination of the survey and the photo log photos that the hill has a gradual elevation and crests just west of the intersection of Hazel Court, without any abrupt steepness at Crofton Drive. As a result, the Court rejects Mr. Levine's opinion that there was a "substantial hill" or that the elevation was steep on either side.
Exhibit 4, the survey prepared by Mr. Siepel tracks the change in elevation between Michael and Leydecker Roads. From Michael Road to the next four-way or major intersection traveling eastbound, Angle Road, there is about a five foot decrease in elevation over a distance of about 3,600 feet or about 6/10 of a mile. From Angle Road to the next intersecting street, Hazel Court, there is about a 25 foot rise in elevation over a distance of about 2,043 feet or about 4/10 of a mile. The majority of that change occurs in the first 1,191 feet, about midway between Angle Road and Hazel Court. There is then only about a nine foot increase in elevation the final 857 feet to reach Hazel Court. As depicted on the survey, Hazel Court is on the south side of Southwestern Boulevard and Crofton Drive is almost directly across from it on the north side. The elevation heading eastbound crests just before the intersection of Hazel Court and the difference in elevation from Hazel Court to Crofton Drive is only about one foot.
Altogether, the 17 photo log photos depict Southwestern Boulevard from Crofton Drive west a total of about 898 feet.
This is depicted between the beginning log photo in Exhibit 42 to the crest of the hill as it appears between photo Exhibits 49 and 50.
With respect to the issue of the stopping sight distances and intersection sight distances, Mr. Levine testified that in 1972, the Institute of Transportation [sic] Engineers came out with a guide that established specific site distances based upon the speed and type of road for the design and location of driveways (TT: 521; Exhibit 76 at p. 31). Mr. Levine represented that the sight line distances were, in fact, legal requirements (TT: 523). He testified that the applicable sight distance requirements for passenger cars exiting Crofton Drive onto Southwestern Boulevard were 950 feet to the left and 1,050 feet to the right. Mr. Levine also testified that the same sight distance measurements were in "the New York State policy book." (TT: 524-525). He later testified that since this intersection was constructed in the 1970's, Southwestern Boulevard was at that time considered a rural road, so an additional ten percent would need to be added to the sight distances, which he computed as requiring 1,050 feet to the left and 1,155 feet to the right (TT: 556). He then testified that on his second visit to the accident scene in 1999, he "measured it from my own eye" that the sight distance from Crofton Drive looking right was about 600 feet (TT: 556). Mr. Levine concluded that if a proper traffic impact study had been performed at the time of its construction, the defendant would have found that this intersection location would not provide sufficient sight distances (TT: 523).
On cross-examination, Mr. Levine was shown the DOT Policy and Standards manual effective January 1, 1973, which he understood to be the official policy of DOT governing entrances to state highways, including how to lay them out and install them (Exhibit 70). He then agreed that nowhere within this manual does it utilize the Institute of Traffic Engineers sight distance requirements that he previously testified to or specify in numbers how far a driveway (or intersection) has to be in terms of sight distances (TT: 623). Accordingly, the Court rejects Mr. Levine's testimony that the sight distances specified by the Institute of Traffic Engineers were applicable to the intersection of Crofton Drive when it was constructed in the late 1970's. Instead, the Court finds that the applicable standard at the time of the construction of Crofton Drive was as set forth in the DOT Policy and Standards for Entrances to State Highways, which requires that the driveway or intersection be located so as to provide "[t]he most favorable vision, grade and alignment conditions for motorist using the proposed driveway and the highway" with "no undue interference with the free and safe movement of highway traffic." (Exhibit 70 at p. 6).
Finally, Mr. Levine testified that in 1999, he measured the sight distance looking to the right from Crofton Drive to be 600 feet. As previously stated, the 17 photo log photos depict Southwestern Boulevard from Crofton Drive west a total of about 898 feet, with the first photo log (Exhibit 58) being almost directly adjacent to the Crofton Drive intersection. Utilizing these photos, 600 feet back from the intersection would be photo log exhibit 47. When cross-examined with the use of the photo log photo exhibits, Mr. Levine made a mark on photo log photo Exhibit 57 to indicate where a vehicle stopped to make a left turn onto Crofton Drive would be located (Exhibit 57A). He testified that he could only observe the Crofton Drive intersection back to photo log photo Exhibit 49, which would be the equivalent of 497 feet.
The Court finds that utilizing the photo log photographs, Exhibits 42 through 58, provides a reliable method by which to calculate the sight stopping distance for a vehicle traveling eastbound on Southwestern Boulevard towards the Crofton Drive intersection at the time of the subject accident. The sign on the northwest corner adjacent to Crofton Drive, as well as the left traffic lane heading eastbound is visible to the Court in Exhibit 48, but difficult to locate in Exhibit 47 (which would be about 600 feet away). Mr. Bachner testified that at a speed of 60 m.p.h., a vehicle will travel a little bit less than 90 feet per second (TT: 445). Mr. Walter testified that prior to the accident, he was operating his vehicle between 50 and 55 m.p.h. (TT: 46). As a result, if Mr. Walter had not been distracted by the pickup truck passing him in the right eastbound lane and then looking in his sideview and rearview mirrors before again looking forward through the windshield, he would have been able to observe Mrs. Walter's vehicle for over six seconds.
The Court finds that for vehicles traveling eastbound in the left lane of Southwestern Boulevard towards Crofton Drive at the time of the subject accident, a sight distance of at least 528 feet but less than 600 feet existed and that this provided a driver traveling eastbound at 55 m.p.h. more than six seconds to observe a vehicle waiting to make a left turn and react by either slowing or switching to the right lane before encountering the left turning vehicle. No testimony was provided by Mr. Levine or Mr. Bachner that a stopping sight distance of at least 528 but less than 600 feet for a vehicle traveling 55 m.p.h. would violate the DOT standard set forth in Policy and Standards for Entrances to State Highways (Exhibit 70). Accordingly, the Court finds that the opinions of Mr. Levine were conclusory and that he did not establish that the intersection of Crofton Drive was a hazardous or dangerous condition for vehicles traveling eastbound on Southwestern Boulevard approaching the intersection of Crofton Drive.
During the trial, claimant introduced into evidence the MV-104A accident forms prepared by the Towns of Orchard Park and West Seneca Police Departments for the section of Southwestern Boulevard between Michael and Leydecker Roads, which includes within it the intersection at Crofton Drive. Claimant's other expert witness, Mr. Bachner testified concerning his review of those records for 1992, 1993 and 1994. His opinion was that there was a pattern of accidents involving vehicles either making a left turn from Southwestern Boulevard or vehicles attempting a left turn in order to enter the highway, citing to records of rear-end accidents at Crofton Drive, as well as Angle Road, Leydecker Road and Hazel Court. The pattern that Mr. Bachner described was that they were rear-end accidents where a vehicle struck a left turning vehicle. His opinion was that the percentage of rear-end accidents reported between 1992 and 1994 was a safety concern that required that action be taken (TT: 452).
Mr. Bachner testified that he identified 11 accidents in 1992 reported by the Orchard Park Police Department, three of which were rear-end accidents; three rear-end accidents in 1993 reported by Orchard Park and two by the West Seneca Police Department; and in 1994, a total of seven rear-end accidents reported by Orchard Park and one out of five accidents reported by West Seneca was a rear-end accident (TT: 450-451).
The Court has reviewed the individual MV-104A records of the Orchard Park Police Department, which indicate that between January 5, 1991 and September 30, 1997, a total of 52 accidents occurred and of those, only three accidents were recorded at Crofton Drive, two of which were characterized as rear-end accidents (Exhibit 72). Claimant did not establish by witness or through expert testimony that the one rear-end accident on March 16, 1992 was of a similar nature or caused by the same or similar contributing factors that caused the subject accident involving Mrs. Warner. A plain reading of the "Accident Description" of this MV-104A form indicates that the circumstances of the rear-end collision were not similar to the circumstances involving the accident between the vehicles operated by Mr. Walter and Mrs. Warner. The Court has also reviewed the records of the West Seneca Police Department, which indicate that through the same 1991-1997 time period there were 41 reported accidents, of which only two accidents occurred at the intersection of Crofton Drive and neither involved a rear-end collision (Exhibit 71). Thus, for the time period examined by Mr. Bachner, 1992 through 1994, there was only one rear-end accident at Crofton Drive and that one accident did not occur under circumstances similar in nature to the subject accident. It has been held that the lack of proof of prior accidents of a similar nature that were caused by the same or similar contributing factors suggests that the highway is reasonably safe for use by those exercising reasonable care (Melkun v State of New York, supra at 16).
The two rear-end accidents occurred on March 16, 1992 and September 14, 1995. The second rear-end accident was outside the 1992-1994 time period upon which Mr. Bachner based his opinion.
In the "Accident Description" for the March 16, 1992 MV-104A, the driver of vehicle #2 struck the rear-end of vehicle #1 because "he was blinded by early AM sun." Similarly, even if the September 1995 accident was considered, the "Accident Description" for the September 14, 1995 MV-104A indicates that "an unknown and uninvolved vehicle stopped in front" of vehicles 1 and 2; the operator of vehicle #2 stating that the unknown vehicle "had no brake lights."
In order to overcome the lack of accidents at the Crofton Drive intersection where the decedent's accident occurred, the claimant contends that the entire section of Southwestern Boulevard between Michael and Leydecker Roads should be evaluated. However, other than the letter of Ms. Breen (Exhibit 67A), claimant produced no other complaints concerning the major intersections of Michael, Reserve, Angle or Leydecker that could have possibly led to the defendant accessing the accident history data at one or more of these intersections. Similarly, no safety investigation studies were produced by claimant for any of these intersections prior to the time of Mrs. Warner's accident that proposed or recommended the construction of a continuous left turn lane on this section of Southwestern Boulevard.
The letter from Ms. Breen (Exhibit 67A) stressed that school buses and cars exit and enter from Southwestern Boulevard in order to gain access to the school and that her concern was making a left turn was only from Southwestern Boulevard into the school (TT: 93). The letter did not mention Crofton Drive. In response to this letter, Mr. Kosnikowski concluded that Ms. Breen had two concerns, the 55 m.p.h. speed limit on Southwestern Boulevard and the need for signage for the school. He ordered a traffic engineering study be conducted, which consisted of a speed study on Southwestern Boulevard. Following this study, a determination was made by DOT that a reduction in speed along this section of Southwestern Boulevard was not warranted. Mr. Kosnikowski's boss, Ms. Pericak, testified that she too would have concluded that Ms. Breen was seeking to have the speed limit reduced on Southwestern Boulevard and would have similarly ordered a speed study (TT: 383-385).
The claimant's expert, Mr. Bachner disagreed with Mr. Kosnikowski and Ms. Pericak, testifying that in addition to a speed study, it was standard DOT practice to also request accident history data to determine if there was a safety problem (TT: 429-433). However, he did not cite to any DOT rule, policy or procedure to support his opinion and to establish that the defendant violated it in this instance. The defendant's expert, Mr. Logan, disagreed with Mr. Bachner and stated that it was not a statewide policy or procedure at DOT that a safety investigation be performed with every speed study. He agreed that all that was required in response to Ms. Breen's letter was to conduct a speed study (TT: 662-664). The Court finds that the judgment exercised by Mr. Kosnikowski in response to the complaint of Ms. Breen was reasonable under the circumstances and although it may have been the general practice of Mr. Bachner when employed by DOT in Region 10 to conduct a safety investigation with each speed study, it was not established to be a statewide DOT policy or practice, nor was it one followed in Region 5. The claimant has not shown that the discretion exercised by the defendant in conducting a speed study in response to Ms. Breen's letter lacked a reasonable basis (Weiss v Fote, supra at 589).
However, even if a safety investigation had been conducted in response to Ms. Breen's letter and even if that safety investigation would have included accident history data for the additional intersections east of St. John Vianney School and Michael Road, the claimant did not demonstrate that the accident history data for the relevant time period that would have been available to Mr. Kosnikowski, i.e., 1992 through 1994, would show that a safety issue existed. Mr. Bachner testified that he reviewed the records of the Orchard Park and West Seneca Police Departments and from that review concluded that the percentage of rear-end accidents reported between 1992 and 1994 in the section of Southwestern Boulevard from Michael Road to Leydecker Road was a safety issue that required that action be taken (TT: 451-452). Mr. Bachner based his opinion solely upon the percentage of rear-end accidents that occurred as compared with the total number of accidents reported during this time period. He did not provide any support for his methodology that this simple percentage calculation was utilized as a general practice by DOT to determine whether a safety issue exists. He also did not calculate an accident rate for any of the seven intersections between Michael and Leydecker Roads and compare that accident rate to the statewide average for similar roads as Ms. Pericak had testified to performing and which was a part of the safety investigation report prepared by her in January 1998 that was contained in Exhibit 65.
Ms. Pericak testified that the accident history data is used to calculate an accident rate at a particular location, which is defined as being the number of accidents per million vehicle miles of travel. Mr. Bachner, though employed by DOT for over 30 years did not compute an accident rate for any of the intersections utilizing the accident history data from the Orchard Park and West Seneca Police Department records so that a determination could be made whether or not the accident rate at Michael Road or any other intersection was greater than the statewide average for a similar state highway. Accordingly, even if the Court were to determine that a safety investigation should have been conducted by Mr. Kosnikowski, which I do not, the Court finds that Mr. Bachner's opinion that a safety issue existed based upon his simple calculation is too speculative and based upon an unproven methodology not recognized or utilized by DOT when preparing a safety investigation report.
Other than the complaint letter by Ms. Breen, the proof at trial indicated that there were no other complaints filed for any of the seven intersections between Michael and Leydecker Roads, including Crofton Drive, nor any safety investigation study prior to the subject accident. The only safety investigation study conducted was the one prepared by Ms. Pericak four months following the subject accident in January 1998. But even if a complaint had been made subsequent to Ms. Breen's letter that specifically concerned vehicles making a left turn from Southwestern Boulevard onto Crofton Drive and accident history data could have been obtained for a three year period that would include October 1993 through September 1996, claimant still could not establish that a hazardous or dangerous condition existed at the Crofton Drive intersection. Ms. Pericak testified that there were only three accidents at this intersection during this time period, two of the three were rear-end accidents. From this data, she computed the accident rate to be 0.17 accidents per million vehicle miles traveled. She testified that this accident rate was about the same as the statewide average of 0.18 accidents per million vehicle miles traveled (TT: 366-367). As a result, Ms. Pericak testified that Crofton Drive would not have been considered by DOT a problem location and it would not be an intersection that would make the project list of intersections that needed to be addressed (TT: 370-372). Thus, the Court finds that claimant has failed to establish that an unusual number of accidents occurred so that it could be concluded that a hazardous or dangerous condition existed at the intersection of Crofton Drive (see Marshall v State of New York, 252 AD2d 852, 853-854 [3d Dept 1998]). Accordingly, claimant did not establish by a preponderance of the evidence that the State was negligent (id. at 854; see, Pursel v State of New York, 226 AD2d 872 [3d Dept 1996]; Cipriano v State of New York, 171 AD2d 169 [3d Dept 1991], lv denied 79 NY2d 756 [1992]).
The Court has determined that claimant failed to establish that a hazardous or dangerous condition existed at the intersection of Crofton Drive prior to the subject accident. However, even if claimant had established that a hazardous or dangerous condition existed, the proof at trial failed to establish that the defendant had actual or constructive notice. As earlier stated, the proof at trial established that there were no safety investigations or studies conducted regarding the intersection of Crofton Drive with Southwestern Boulevard or of a section of Southwestern Boulevard that included the intersection at Crofton Drive prior to the September 2, 1997 motor vehicle accident that claimed Mrs. Warner's life. Likewise, there were no complaints filed specifically concerning the intersection of Crofton Drive prior to the subject accident. Claimant contends that the letter of Ms. Breen dated March 11, 1996 was notice to the defendant of the hazardous or dangerous condition that existed on Southwestern Boulevard and that a safety investigation should have been conducted in addition to the speed study ordered by Mr. Kosnikowski as referenced in his reply letter to Ms. Breen on March 18, 1996.
And as earlier stated, even if the complaint letter of Ms. Breen was considered and if a safety investigation study had been performed in April 1996 that included the intersection at Crofton Drive, the accident rate would not have exceeded the statewide average. --------
If a safety investigation study had been pursued, three years of accident history data would have been reviewed and the testimony of Mr. Barnack and Ms. Pericak indicates that there was at least a 16 month lag time between the time of the request for accident data and the MV-104A forms that would be received from the Department of Motor Vehicles. It was the ruling of the Court with respect to the accident history data contained in Exhibit 65 that only accident numbers 1 through 50, ending with an accident date of December 26, 1994, would be relevant and admissible. In fact, claimant's counsel conceded that only 1992, 1993 and 1994 records would be available to the defendant (TT: 282). Of the accident data in Exhibit 65 ruled admissible by the Court, i.e., accident no. 1 - 50, there were no accidents at the intersection of Crofton Drive between October 20, 1993 and December 26, 1994 (Exhibit 65, pp. 7-9). A review of the MV-104A forms produced by the Orchard Park and West Seneca Police Departments for the period January 1, 1992 (Exhibits 71 and 72) through December 31, 1994 indicate that only one accident occurred at the Crofton Drive intersection. Accordingly, even if claimant had established the existence of a hazardous or dangerous condition, he failed to establish that defendant had actual notice of any safety issue at the Crofton Drive intersection.
In addition, there would also be no proof of constructive notice to defendant as claimant did not introduce evidence or witness or expert testimony to establish that an accident rate existed at Crofton Drive or any other adjacent intersection that exceeded the statewide average. The occurrence of one prior rear-end accident at the Crofton Drive intersection in 1992, 1993 or 1994 would not be considered as constructive notice of a dangerous condition (Fan Guan v State of New York, 55 AD3d 782, 785 [2d Dept 2008]). Similarly, there was no proof submitted that an unusual number of accidents occurred at Crofton Drive that would have supported a finding that the defendant had notice of a dangerous condition requiring remedial action (Light v State of New York, 250 AD2d 988, 990 [3d Dept 1998]).
If claimant had established that a dangerous condition existed at the Crofton Drive intersection of which the defendant had notice, claimant would still have to establish that the defendant failed to take action to remedy it and that the dangerous condition was the proximate cause of the accident (Brown v State of New York, 79 AD3d 1579, 1582 [4th Dept 2010]). The Court finds that even if claimant had established a dangerous condition of which the defendant had actual or constructive notice, he failed to establish that a continuous two-way left turn lane would have been completed prior to the subject accident. Mr. Bachner's opinion was that the defendant could have completed a continuous two-way left turn lane if the work had begun following the receipt of Ms. Breen's letter in March 1996. He was of the opinion that Southwestern Boulevard could be re-striped to create four ten foot travel lanes with a 12 foot left turn lane and that the striping contractor on retainer with the defendant could have performed this work in either the spring or summer of 1997 (TT: 448-450). Similarly, Mr. Levine also was of the opinion that the defendant could reduce the 13 foot travel lanes to 10 to 10.5 feet and create a 12 foot two-way left turn lane (TT: 530). However, neither Mr. Bachner nor Mr. Levine took into account the deposition testimony of Mr. Barnack, who testified that a construction project would have been required before any re-striping to create a continuous two-way left turn lane as there was not sufficient useable pavement on this section of Southwestern Boulevard and that the existing shoulders were not of a sufficient depth to be useable and incorporated into the travel lanes (Exhibit P at pp. 46-49, 52). Mr. Barnack was asked if anything could be done on an interim basis without a pavement project and his answer was "no" (Exhibit P, pp. 52-53).
Claimant's expert, Mr. Bachner did not dispute the testimony from the DOT employees that the time period to perform a pavement project, from the Initial Project Proposal process through to completion would take several years (TT: 486-487). Mr. Barnack testified that the addition of a continuous two-way left turn lane required between 55 and 60 feet of useable pavement capable of carrying wheel loads and claimant's two experts agreed that there was only 52 feet of useable pavement. Therefore, a construction project as described by Mr. Barnack would be necessary before re-striping could occur and it was not possible to complete it prior to the subject accident on September 2, 1997. Accordingly, the Court finds that claimant failed to establish the likelihood that a re-striping of Southwestern Boulevard could be accomplished prior to the subject accident.
If claimant had established that a dangerous condition existed at the Crofton Drive intersection of which the defendant had notice, claimant still would be required to establish proximate cause. Vehicle and Traffic Law § 1129 requires a driver of a motor vehicle approaching another motor vehicle from the rear to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid striking the other vehicle. It has been held that in an action involving a rear-end collision with a stopped or stopping vehicle, a prima facie case of liability is established against the operator of the rearmost vehicle, imposing a duty of explanation on that operator to provide an excuse such as mechanical failure, a sudden stop of the vehicle ahead, unavoidable skidding on wet or icy pavement, or other reasonable cause (Hearn v Manzolillo, 103 AD3d 689 [2d Dept 2013]; Filippazzo v Santiago, 277 AD2d 419 [2d Dept 2000]). In this claim, the testimony of the other driver, Mr. Walter, established that he was very familiar with Southwestern Boulevard and traveled this section of highway each day. Immediately prior to the accident he testified that he was in the left lane heading eastbound when a pickup truck moved alongside him in the right lane. Mr. Walter testified that he took his foot off the accelerator to allow the pickup truck to pass him on his right. He then described that he took "a few seconds" to look out his sideview and rearview mirrors, before looking forward through the windshield and at that point saw Mrs. Warner's vehicle only two car lengths in front of him. At impact, Mr. Walter testified that he was traveling at 50 m.p.h. and attempted to apply his brake and swerve to his right, but was unable to do so and struck the rear of Mrs. Warner's vehicle.
The Court finds Mr. Walter's testimony that he took only "a few seconds" as not believable. It is clear that Mr. Walter took more than "a few seconds" as he was first distracted by the pickup truck and then looked in his sideview and rearview mirrors. Mr. Walter testified that when he again looked forward that he was approximately two car lengths from Mrs. Warner's vehicle, a distance of only 20 to 25 feet. The photo log photo exhibits establish that had he been focused looking forward as he traveled towards Crofton Drive, Mr. Walter would have first seen Mrs. Warner's vehicle at least 528 feet away and that he would have had over six seconds to observe Mrs. Warner's vehicle as she waited to make a left turn. A driver has a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident (Byrne v Calogero, 96 AD3d 704, 705 [2d Dept 2012]). It is the finding of the Court after hearing the testimony of Mr. Walter, evaluating his demeanor and reviewing the photo log photos and testimony relating to them that the preponderance of the evidence establishes that Mr. Walter breached his duty and that he violated Vehicle and Traffic Law § 1129 by failing to exercise and observe what was clearly in front of him and that his actions were the sole proximate cause of this tragic accident (see Blasi v State of New York, UID No. 2015-010-001, [Ct Cl, Ruderman, J., Jan. 21, 2015]; Steiner v State of New York, UID No. 2014-029-020, [Ct Cl, Mignano, J., May 14, 2014]; Terrazas v State of New York, UID No. 2011-018-222, [Ct Cl, Fitzpatrick, J., June 30, 2011]).
CONCLUSION
By a preponderance of the credible evidence presented at the trial, the Court finds for the defendant and that claimant failed to establish negligence and as such, the defendant is not liable for the personal injuries of Mary Dorothy Warner, the derivative claim of Richard H. Warner or for the wrongful death claim filed by Richard H. Warner, as Executor of the Estate of Mary Dorothy Warner.
For all of the foregoing reasons, both claims are hereby DISMISSED.
Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied. All objections upon which the Court reserved determination that were not previously addressed herein, are now overruled.
The Chief Clerk is directed to enter judgments accordingly.
January 27, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims