Opinion
# 2015-010-001 Claim No. 119960
01-21-2015
DENISE BLASI v. THE STATE OF NEW YORK
CARUSO GLYNN, LLC By: Lawrence C. Glynn, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Lynn A. Tabbott, Assistant Attorney General
Synopsis
Claimant veered off the road to avoid colliding with the rear-end of a small truck traveling in front of her that had stopped, landed in culvert. No liability, no prior, similar accidents at this location, no rehabilitation of roadway required.
Case information
UID: | 2015-010-001 |
Claimant(s): | DENISE BLASI |
Claimant short name: | BLASI |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 119960 |
Motion number(s): | |
Cross-motion number(s): | |
Judge: | Terry Jane Ruderman |
Claimant's attorney: | CARUSO GLYNN, LLC By: Lawrence C. Glynn, Esq. |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Lynn A. Tabbott, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 21, 2015 |
City: | White Plains |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant seeks damages arising out of a motor vehicle accident that occurred at noon on a clear, dry day on July 6, 2010, as she was driving her car southbound on State Route 22 near the border between Putnam and Dutchess Counties. Claimant veered off the road to avoid colliding with the rear-end of a small truck traveling in front of her that had stopped, without signaling, to make a left turn. Claimant's car landed in a culvert adjacent to the shoulder. Claimant contends that defendant was negligent in failing to provide a turn lane, a traffic control device, and a guide rail and that the culvert was too deep and too close to the road. Defendant maintains that the accident was the result of claimant's negligent driving and that the road, which was built in 1931, had not had any significant accident history to warrant reconstruction. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
In the vicinity of the accident, Route 22 is a relatively flat, two-lane roadway with a northbound and southbound lane divided by a double yellow line. The lanes are 11-feet wide with a white fog line separating the roadway from the shoulder. The shoulder consists of a six-foot paved surface and then approximately two feet of gravel.
Claimant testified that she first noticed the vehicle in front of her approximately five minutes before the accident. Claimant estimated that they were both traveling 35 to 40 mph and were at a distance of approximately one car length between them. Claimant testified that the truck in front of her stopped abruptly, without signaling, and started to turn left into the gas station on the opposite side of the road. In an attempt to avoid hitting the rear-end of the truck, claimant veered to the right. Her car went off the road and into the culvert.
At trial, claimant testified that she applied her brakes to slow down, while at her examination before trial, she testified that she had not applied her brakes. When confronted with this discrepancy, she stated, "[i]f I would have stopped and put my brakes on, I would have hit him in the back" (T:60). Therefore, she swerved to the right because, as she conceded, she was so close to the truck that she could not have stopped or maneuvered around the vehicle.
References to the trial transcript are preceded by the letter "T."
Claimant had traveled Route 22 daily for years prior to her accident. Previously, she had used the shoulder to pass a turning vehicle as she had observed many others make the same maneuver. Claimant noted that there were no signs near the gas station prohibiting a left turn and that there was no turning lane into the gas station. Prior to the accident, claimant never complained to anyone about this configuration or the condition of the road. She was not aware of the presence of the culvert prior to her accident.
Heather Gavin testified that she has lived in Dutchess County for 24 years and traveled Route 22 in the vicinity of the accident often five times a day. On many occasions, Gavin observed cars turning left from the southbound lane into the gas station. Gavin described Route 22 as flat, providing motorists with sufficient sight distance ahead of them. On July 6, 2010, at approximately 12:18 p.m., she was traveling northbound on Route 22 and observed the vehicle ahead of claimant in the southbound lane stopped for a few seconds before turning left into the gas station. According to Gavin, claimant had a panicked look on her face, as if she had not seen the vehicle ahead of her and then suddenly swerved to avoid a collision. Claimant did not slow down on the shoulder.
New York State Trooper Alexander Martinez testified that he has been employed by the New York State Police for nine years and his duties included routine patrol of Route 22. From 2008 through 2010, he traveled Route 22 daily and frequently observed vehicles turning left from the southbound lane into the gas station. He has also witnessed vehicles safely maneuvering on the shoulder to go around a turning vehicle into the gas station.
On July 6, 2010, Martinez responded to claimant's accident while claimant was still in the culvert. Claimant advised Martinez that a vehicle heading into the gas station had stopped abruptly in front of her and therefore she had veered right. Martinez completed a police accident report and noted "following too close" as the only contributing factor of the accident (Ex. 7). He did not recall any problems with the road that would have contributed to the cause of the accident.
Lance E. Robson, a licenced engineer in New York, provided expert testimony on behalf of claimant. Robson, who heads his own forensic consulting business, has never designed a road in New York and has no experience designing a road for any municipality.
Robson opined that the shoulder was inadequate for claimant's evasive maneuver particularly because the road was adjacent to what he characterized as a steep slope. He measured the width of the shoulder as seven and one-half to eight feet and maintained that it should have been 10 feet based upon the standards of the 2002 New York Highway Design Manual. Robson measured the slope at the accident site as 2.67 on one. He testified that this was steeper than three on one which made it a non-transversable, critical slope.
In addition to the New York State Highway Design Manual, Robson used the standards of the Roadside Design Guide published by the American Association of State Highway and Transportation Officials (AASHTO). Robson conceded that the clear zone concept in road design was not identified in 1931, when Route 22 was built. Nonetheless, he maintained that the slope was a hazard because it was too close to the travel lane and too steep. Noting that there was damage to the underside of claimant's car, Robson concluded that claimant was slowed down as she hit the slope. Robson concluded that either the slope should have been flattened or a guide rail should have been installed. The culvert in question was not part of the original roadway plans and was installed after 1931; therefore Robson considered the culvert to be a reconstruction which necessitated compliance with current roadway standards.
Robson testified that there were prior similar accidents in the general vicinity of claimant's incident over the previous 10 years (Exs. 8, 10-12, 17-22). He concluded that they were similar because a number of them involved emergency actions.
Robson conceded that if claimant had been following behind the truck too closely, then her actions could have contributed to the cause of her accident. Robson, however, did not consider claimant's role in the accident because he felt the roadside condition caused her accident and he maintained that, absent negligence attributable to defendant, an errant driver should always be able to stop on a shoulder.
Nicholas Pucino, a professional engineer with the New York State Department of Transportation (DOT) and its predecessor agencies for over 30 years before retiring in 1991, offered expert testimony on behalf of defendant. Pucino began his career at DOT in 1958 as a junior engineer culminating in 1989 with his appointment as Regional Construction Engineer for Region 8, a five-county area including the accident site. During his state career, Pucino's duties covered nearly all aspects of road operations including construction, maintenance, accident studies, traffic and signing.
In consideration of this claim, Pucino reviewed, among other items, the original road plans and a listing of highway reconstruction or rehabilitation contracts since 1931 that would have included Route 22 in the vicinity of the accident. According to Pucino, there were no reconstruction or rehabilitation projects for this area. The only activity was a resurfacing project that converted the road from three lanes to two. Pucino noted resurfacing is not reconstruction and therefore the roadway need only conform to the standards existing at the time of its construction.
Pucino explained that while new safety standards evolve, they are not applicable to existing roads. Rather, engineering judgment and accident history are utilized to determine whether a roadway improvement is necessary and cost effective. He described Route 22 near the gas station as a typical rural, two-lane divided highway with a mild alignment and a pretty flat grade that provided ample sight distance to the traveling vehicles.
Pucino maintained that, in the absence of any reconstruction or major rehabilitation, the applicable standards for the road date back to its construction in 1931. The Highway Design Manual was not published until 1972 and, therefore, had no relevance to this road. Furthermore, the manual is aimed toward designing a new road or reconstructing an older one. Similarly, the AASHTO Roadside Design Guide, also published after 1931, had no applicability to this roadway. Pucino, who had been a member of AASHTO, explained the Roadside Design Guide is promulgated by a national organization, while a useful tool, is still only a guide.
Pucino opined that Route 22 conformed to the standards at the time of its construction. Originally, lanes were only ten-feet wide and the record plans allowed for an even steeper slope than what exists today. As Pucino related, in 1931 the State was just beginning to develop standards. The prevailing philosophy at the time was focused on building a safe roadway for travel, "but once you went off the road, that was your decis[ion] - your problem that you created yourself" (T:288). Since the 1930's, that philosophy has evolved and, in the 1960's, the concept of clear zones, which considers areas free of obstacles, came into existence.
Pucino disagreed with Robson as to the severity of the slope and his analysis of the current requirements. Pucino maintained that the difference between a 2.67 on one versus a three on one slope was insignificant. Even today, Pucino continued, a guide rail would be inappropriate in that area because a guide rail would only be necessary at a three on one slope when the drop-off was 12 feet. Here, the slope was mild and the drop-off was only two to three feet. Further, Pucino noted that a guide rail itself would pose a hazard to motorists.
Pucino reviewed the road's accident history. He did not find any accidents which he considered to be similar to claimant's. Specifically, there were no other accidents where a vehicle traveling in the southbound lane had left the roadway and, in his view, a vehicle proceeding in the northbound lane was not at all relevant. Additionally, the prior accidents all involved driver error and did not suggest any deficiencies in the grade or sight distances (Exs. 8, 10-12, 17-22).
Pucino disagreed with Robson's analysis that if vehicles use the shoulder, it increased the hazard because of the deep slope alongside the road. Pucino stated that passing on a shoulder to drive around a stopped car is a common occurrence and a turning lane was not warranted because the gas station was not a major traffic generator. He further maintained that the slope was not steep and that there was no evidence of emergencies arising from it. According to Pucino, the slope was mild and traversable because it was only two to three feet deep. Pucino also noted that Route 22 maintenance records showed that the area adjacent to where claimant had left the road, had been mowed a month prior to claimant's accident and, in any event, the height of the foliage did not play a role in claimant's accident. Pucino noted that claimant's car slowed down as she drove through the marsh, her vehicle did not overturn, and the air bags did not deploy.
Pucino concluded there was nothing wrong with the road or its configuration. There was no history of accidents and no evidence of sight distance problems. The road had good geometrics, curvature, sight distance and pavement. There was nothing done to the road to require upgrading, corrective action or the application of new standards. The fact that the culvert was constructed after 1931 did not change the standards for the road. Construction of a culvert did not constitute reconstruction of the road and the road continued to be safe for motorists as originally constructed. Pucino opined that there were no deficiencies of the road that had contributed to claimant's accident. Rather, the accident was caused by claimant's speed and the fact that she was following behind the other vehicle too closely. Had she been farther back, she could have safely maneuvered around the truck and maintained control of her vehicle.
Analysis
The State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition and that duty encompasses the area adjacent to the roadways (see Gomez v New York State Thruway Auth., 73 NY2d 724 [1988]; Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579, 584 [1960]). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). In the field of traffic design engineering, a government entity is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (see Friedman, 67 NY2d 271; Weiss, 7 NY2d 579; Schwartz v New York State Thruway Auth., 61 NY2d 955 [1984] [planning decision not to extend the guide rail was upheld]).
"As a general rule, the State is not required to undertake expensive reconstruction of highways simply because the design standards for highways have been upgraded since the time of original construction" (Vizzini v State of New York, 278 AD2d 562, 563 [3d Dept 2000]). Additionally, it has been held that, "[t]he replacement of the median, the repaving of the road surface, and the improvements made to the drainage system did not materially alter the roadway itself and did not constitute significant repair or reconstruction such that compliance with modern highway design standards was required" (Fan Guan v State of New York, 55 AD3d 782, 784-785 [2d Dept 2008]). Absent proof of a dangerous condition, the State is not required to upgrade any roadway to conform to new standards which evolved subsequent to the roadway's original construction (see Hay v State of New York, 60 AD3d 1190 [3d Dept 2009]).
While proof of prior accidents at the same location and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice, in this case, the record is devoid of any prior, similar accidents (see Martin v State of New York, 305 AD2d 784 [3d Dept 2003] [the number of prior accidents was insufficient to put defendant on notice of a dangerous condition or impose a duty to take remedial action]; Light v State of New York, 250 AD2d 988 [3d Dept 1998] [no evidence of unusual number of accidents to support a finding that the State had notice of a dangerous condition requiring remedial action]). Indeed, the prior accidents relied upon by claimant's expert were not at the same location as claimant's accident and clearly involved different circumstances.
It is well established that, "[s]omething more than a mere choice between conflicting opinions of experts is required before the State . . . may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public"( Weiss, 7 NY2d at 588). Additionally, "[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury" ( Ingersoll v Liberty Bank of Buffalo , 278 NY 1, 7 [1938]). Claimant must prove negligence for liability to attach ( Tomassi , 46 NY2d 91).
Here, claimant failed to show any negligence ascribable to the State proximately caused her accident or that the roadway required rehabilitation (Bernstein v City of New York, 69 NY2d 1020, 1021-22 [1987]; Steenbuck v State of New York, 111 AD3d 819 [2d Dept 2013]). Rather, upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the accident was due to several possible causes, including a lapse on the part of the driver. Thus, the Court cannot impose liability against the State because such an inference would be based upon mere speculation (see Johnson v State of New York, 27 AD3d 1061 [4th Dept 2006] [liability will not be inferred where there are several possible causes of the accident, including driver error]; Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [3d Dept 1983] [court rejected argument that failure to have a longer guide rail extending where claimant left the roadway was a proximate cause of injuries; rather it was driver's negligence in failing to bring vehicle to halt or to change its direction of travel], affd 61 NY2d 955). Equally speculative and unsupported by the evidence is the conclusion that a longer guide rail would have deflected claimant's vehicle and circumvented the resulting accident.
A driver has a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident (see Byrne v Calogero, 96 AD3d 704, 705 [2d Dept 2012]). Further, a driver approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed to avoid colliding with the other vehicle (see Hearn v Manzolillo, 103 AD3d 689 [2d Dept 2013]. "A trailing driver's conduct in failing to leave reasonable distance creates the possibility that a sudden stop will be necessary" (Cajas-Romero v Ward, 106 AD3d 850, 851 [2d Dept 2013]; see also Filippazzo v Santiago, 277 AD2d 419 [2d Dept 2000]). Claimant was traveling a familiar route and failed to operate her vehicle at a rate of speed and in such a manner of control as to avoid an accident (see Woolley v Coppola, 179 AD2d 991, 992 [3d Dept 1992]).
Accordingly, Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.
Any other motions not previously ruled upon are DENIED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 119960.
January 21, 2015
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims