Opinion
# 2015-015-602 Claim No. 119747
09-22-2015
DINA L. BROOKS and CHRISTOPHER BROOKS, her husband v. THE STATE OF NEW YORK
Jeff Brody Injury Law By: Jeff Brody, Esquire Honorable Eric T. Schneiderman, Attorney General By: Joan Matalavage, Esquire Assistant Attorney General
Synopsis
Claimant failed to establish by a preponderance of the evidence at trial that defendant had a duty to provide a guide rail where her car went off the road or that any such breach was a substantial factor in causing her injuries.
Case information
| UID: | 2015-015-602 |
| Claimant(s): | DINA L. BROOKS and CHRISTOPHER BROOKS, her husband |
| Claimant short name: | BROOKS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119747 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Jeff Brody Injury Law By: Jeff Brody, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Joan Matalavage, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 22, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The accident giving rise to this claim occurred on December 12, 2010 when a motor vehicle operated by claimant Dina L. Brooks (hereinafter referred to as claimant) went off the paved portion of State Route 28 in inclement weather and down an embankment before coming to rest. Claimants allege in support of their claim that a guide rail should have been installed at the point on Route 28 where claimant's vehicle left the roadway. The trial was bifurcated and this Decision relates solely to the issue of liability.
Claimant Christopher Brooks is the husband of Dina L. Brooks and asserts a derivative claim for loss of services.
On the date of her accident Dina Brooks resided in Shokan, New York and was employed as a pharmacist at a Walgreens pharmacy in the Kingston Plaza, Kingston, New York. She estimated the travel time between her home and workplace at approximately 20 minutes although she testified that she allowed additional time during periods of inclement weather. Ms. Brooks testified that the weather was dry and clear when she left her home and entered Route 28 on the morning of December 12, 2010. As she passed the intersection of Route 375 the two lanes of Route 28 became four, two lanes in each direction, and the speed limit was reduced from 55 mph to 45 mph. Claimant testified that she operated her 2004 Dodge minivan at the speed limit and at some point it began to rain and she engaged her windshield wipers. Ms. Brooks testified that she did not observe ice on the roadway and did not experience any difficulties in controlling her vehicle. When asked whether she could recall the point at which she lost control of her vehicle she responded "my only recollection was approaching the Tibetan Center and then I have no other recollection - other than waking up in the hospital after" (Tr. 30). She related that she lost consciousness following the accident, was initially taken to a Kingston area hospital and subsequently transported to Albany Medical Center.
Indicates page references in the trial transcript.
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On cross-examination, claimant testified that she was scheduled to begin her shift at Walgreens at 8:00 a.m. on the date of her accident, and was aware that the police report stated that her accident occurred at 8:00 a.m. She stated that she was quite familiar with Route 28 and used the roadway frequently to drive to work, go shopping and engage in other activities in and around the Kingston, New York area. Claimant testified that she has no memory of her accident. She did, however, recall that the weather was cold and dry at the time she left her house. She had no recollection of slushy or icy conditions existing on Route 28 prior to her accident.
Claimant called Sergeant Kenneth A. Ward, the New York State Trooper who responded to Ms. Brook's accident on December 12, 2010. Sergeant Ward stated that he was first notified of claimant's accident at 8:00 a.m., the time indicated on the police accident report received as Exhibit 1. He responded to the scene and observed that the claimant's vehicle had proceeded down an embankment off the north shoulder of westbound Route 28 traffic, coming to rest when the rear of the vehicle struck a tree. Sergeant Ward interviewed a witness to the accident, Debra Sylvester, and entered various observations of the scene on the police accident report. Among those observations were that it was raining and the road surface was slippery due to "snow/ice" (Exhibit 1, Tr. 65). At trial he explained that "it was more of an ice" and stated that he listed "unsafe speed" as an apparent contributing factor to the accident "based upon my own driving experiences, as well as just driving to the scene myself" (Tr. 66).
On cross-examination Sergeant Ward stated that he was employed as a Trooper at the State Police Barracks in Kingston, New York from 2008 through 2012. During that time Route 28 was part of his regular patrol area and, as a result, he was quite familiar with the roadway. He began his shift at 7:00 a.m. on the morning of the accident and testified that the road was slippery as a result of either sleet or an "ice mixture" (Tr. 70). When he arrived at the scene Sergeant Ward observed a vehicle belonging to Debra Sylvester parked on the side of the roadway. He also observed that the claimant's vehicle had left the road surface, slid down an embankment and came to rest with the nose of the minivan pointing toward Route 28. He went down the embankment to where the claimant's minivan was located, opened the side door and made contact with the claimant. He agreed that the police accident report which he completed indicates that the road surface was affected by "snow, slush, ice", identifies reference marker 2046 as the location of claimant's accident and includes latitude and longitude coordinates further identifying the place where the accident occurred. According to the witness, the police accident reports self-generate information regarding the closest reference marker and latitude and longitude coordinates to identify accident locations.
The witness testified that codes entered upon the police accident report, Exhibit 1, indicate that both the point of impact and point of most damage was to the rear of claimant's vehicle. The coding also indicates that additional damage occurred to the undercarriage of claimant's vehicle. No codes were entered in the boxes provided in the police accident report for indicating damage to either the driver's side or passenger's side of the vehicle. Finally, Sergeant Ward identified Exhibits D and E as photographs depicting the location of claimant's accident which were taken sometime after December 12, 2010, when he returned to the scene with an investigator.
On redirect examination the witness testified that Exhibit 3 did not depict the location of claimant's accident, which he indicates occurred further east than the area shown in the photograph. However, he identified the point at which claimant's vehicle left the shoulder of westbound Route 28 as the approximate location of the vehicle depicted in Exhibit 4. He did not recall observing any break in the reeds on the shoulder of Route 28 where the vehicle may have passed through, nor did he recall observing tire tracks where the vehicle left the roadway. Sergeant Ward testified that when it came to rest, the nose of the vehicle was pointed toward Route 28, stating "[i]t wasn't perfectly perpendicular. It was close" (Tr. 100). He identified Exhibit 29 as accurately depicting the position of the claimant's vehicle as he observed it upon arrival at the scene. When asked whether the accident occurred precisely at the reference marker (2046) identified in the police accident report, he responded "[a]ctually, I don't recall the reference marker at all" (Tr. 102).
Christopher Brooks, Dina Brooks' husband, testified that on the morning of December 12, 2010 he received two telephone calls from the claimant's workplace explaining that his wife had not yet arrived at work. After the second call, Mr. Brooks called his wife's cell phone, which was answered by Trooper Ward who explained that she had been involved in an accident. He exited his house at approximately 8:30 a.m. and noticed that it was snowing "big heavy - heavy wet snow" (Tr. 107). He turned on his windshield wipers, engaged his vehicle's four wheel drive, and proceeded to enter Route 28 on his way to Kingston Hospital. He described the road conditions driving east on Route 28 as slushy and testified that he observed a State Trooper vehicle and tow truck at the location on Route 28 where his wife's accident occurred. When he arrived at the Kingston Hospital emergency room his wife was "totally unresponsive" (Tr 110).
Mr. Brooks testified that he returned to the location of his wife's accident on December 24, 2010. He stated that he was able to identify the proper location because reeds which bound the northern shoulder of Route 28 were "broken down" (Tr. 113). He also observed tire tracks on the embankment adjacent to the shoulder as depicted in one of two photographs (Exhibits 19, 20) which he took at the scene. In addition, he observed debris at the bottom of the embankment which he believed to have come from his wife's vehicle (Exhibits 22, 23, 24), including a piece of her minivan's blue exterior. The witness testified that Exhibits 25, 26, 27 and 28 are photographs of the claimant's vehicle following the accident which he also took on December 24, 2010.
On cross-examination Mr. Brooks testified, as he had on direct, that he engaged his vehicle's four wheel drive while driving on Route 28 because the roads were covered with a slushy, wet snow.
On redirect examination the witness testified that he was not aware that his wife's minivan had sustained any damage in a prior accident in which her minivan was rear-ended in May of 2010. On re-cross-examination he stated that he was unaware that a police accident report prepared with regard to the prior accident indicates that claimant's vehicle sustained damage to its rear end.
The claimant called Steven Roberts, a certified consulting meteorologist employed by the Fleet Weather Group. He identified Exhibit 30 as a report prepared at the claimant's request which describes the weather conditions existing at 8:00 a.m. on December 12, 2010 at a location one-tenth of a mile east of Beesmer Road on Route 28 in Kingston, New York. In preparing the report the witness examined all relevant and available certified weather records as well as records produced by Doppler radar. This information was collected by weather authorities at Dutchess County Airport, Albany International Airport and numerous daily reporting sites including one site approximately five miles southeast of the location studied. Mr. Roberts testified that based upon available data, at approximately 8:00 a.m. on December 12, 2010, "[s]kies were cloudy, there was some freezing rain falling at the time, and the temperature was approximately as stated before, 32 degrees Fahrenheit" (Tr. 152). It was his opinion that given these conditions, freezing rain would result in glazed-ice accumulation upon untreated road surfaces. According to the witness, Doppler radar data indicates that freezing rain began to fall at approximately 2:45 a.m. and continued intermittently thereafter until ending sometime around 10:00 a.m.
On cross-examination Mr. Roberts stated that he was unaware claimant's husband had testified to heavy, wet snow falling at the couple's home in Shokan, New York on the morning of December 12, 2010. Nor was he aware that the police accident report described weather conditions at the scene of claimant's accident as "snow/ice". He agreed that any conclusions regarding conditions at the accident site are necessarily dependent upon readings and reports from areas outside the actual location studied.
On redirect examination the witness testified that the weather data would support earlier testimony by the responding State Trooper who indicated that rain was falling at the time he arrived at the accident scene. He again stated that he would not have expected heavy, wet snow to have been falling at the claimant's residence at Shokan, New York at 8:30 in the morning as reported by Mr. Brooks, given the conditions at the accident location as determined through his study.
Claimant next called Lawrence Levine as an expert witness. Mr. Levine is a consulting traffic and civil engineer engaged in private practice. In preparing to testify Mr. Levine reviewed the police accident report, depositions, project plans for the 1974 reconstruction of Route 28, and the 1972 Highway Design Manual. He also conducted a site visit, locating the site of claimant's accident from information contained in the police accident report, photographs taken by Mr. Brooks, through his observation of a "break in the reeds" at the accident site as well as certain debris and car parts that remained at the scene.
Mr. Levine identified Exhibit 19 as a photograph that depicts the gap in the reeds along the northern shoulder of Route 28, which he concluded indicated the place where the van had left the roadway. He also utilized Exhibit 20 to identify the accident location, a photograph which depicts what he described as tire marks found on the embankment on the north shoulder of Route 28 at the same location where the break in the reeds was depicted in Exhibit 19. The same location and tire marks are depicted in Exhibit 21. Based upon his field study and examination of the photographs, Mr. Levine concluded that at the time the vehicle left the road "it was parallel with the road, or almost parallel with the road and it was going sideways into the reeds" (Tr. 191). He stated that this conclusion is supported by a measurement of the opening in the reeds which he determined was approximately sixteen feet. It was also supported by his observations that the "tire marks are going sideways down the hill and they're digging up the ground" (Tr. 191 - 192). He identified the tire marks he observed on Exhibit 20A. According to Mr. Levine, after the vehicle left the highway in a parallel position, it rotated counter-clockwise and continued down the embankment where "at that point, it's going backwards down the hill, and the tire marks come back together" (Tr. 195). The accident location was further identified by damage to a tree and debris found at the bottom of the embankment which aligned with the opening in the reeds along Route 28. He testified that his investigation led him to conclude that the claimant's vehicle left the road "somewhere between those two arrows" shown on Exhibit 4A. The witness also marked the location where claimant's vehicle left the roadway on Exhibit 6A, and the path of the vehicle as it proceeded down the embankment on Exhibit 5A. It was his opinion that claimant's vehicle followed a 280-foot arc beginning in the eastbound lanes of Route 28 and crossing the westbound lanes while rotating counter-clockwise along its center of mass. The vehicle left the road surface while traveling 15 to 20 mph in a nearly parallel position and continued to rotate counter-clockwise. As it slid down the embankment, the rotation ceased and the minivan proceeded backwards away from the roadway in a position perpendicular to Route 28.
The witness testified that he observed a V-ditch at the bottom of the embankment as well as a culvert pipe. Referencing Exhibit 15, the 1972 Highway Design Manual which was in effect in 1974 when Route 28 was last reconstructed, Mr. Levine testified that fixed objects include trees, abutments and "anything that the vehicle could hit", and roadside hazards include any body of water in excess of two feet deep (Tr. 244). He stated that he measured the pond located near the bottom of the embankment and determined that it was four to five feet deep at its edge. According to the 1972 Highway Design Manual, where there is an embankment adjacent to a highway the factors which need to be considered in determining whether the placement of a guide rail is appropriate include the degree of slope and height of the embankment and the presence of roadside hazards and fixed objects at the bottom or toe of slope. In particular, the 1972 Highway Design Manual required guide rails where there is an embankment with a total height of ten feet and a slope greater than one-on-two within the required clear area, which extends thirty feet from the edge of pavement. The witness testified that there should be no abrupt drop-off such as that created by the placement of a culvert pipe at the bottom of the embankment. Nor should a V-ditch be located at the bottom of such an embankment. According to measurements taken by Mr. Levine in the field, the embankment where the claimant's accident occurred varied between a one-on-one and one-on-two slope and became steeper as it neared the culvert pipe at the bottom of the embankment. He stated that the height of the embankment varied between thirteen and sixteen feet. According to Mr. Levine, "the bottom third to a half is closer to one-on-one" (Tr. 250, 251).
The witness testified that the 1972 Highway Design Manual defines a clear recovery area as a "gently graded area of one-on-six or flatter, where a vehicle can recover control and return to the roadway" (Tr. 259-260). When asked whether the area adjacent to the highway where the Brooks' vehicle left the road surface was constructed consistent with the requirements of the 1972 Highway Design Manual, Mr. Levine responded "No. it was too steep and too high, and it was within the clear area. They - and they needed a guide rail" (Tr. 263). In addition, he identified fixed objects and hazards such as the pond, V-ditch, trees and the "sheer drops by the culvert pipe end" as factors warranting placement of a guide rail at that location on Route 28 (Tr. 263). Notably, Mr. Levine testified that the culvert pipe was located 32 feet from the white line demarcating the edge of the road surface.
Mr. Levine stated that placement of a guide rail "would have redirected the van safely" (Tr. 268). In his view, had a guide rail been in place the passenger side rear corner would have impacted the guide rail at an approximately ten-degree angle and, given its presumed speed of 15 - 20 mph, the guide rail would have prevented the claimant's vehicle from continuing off the side of the roadway where it encountered the embankment and various hazards and fixed objects testified to previously. Because it was a low speed accident and the vehicle impacted the guide rail at "an easy angle like that, it should have had no problem redirecting the van" (Tr. 269). It was his opinion that even had the claimant's vehicle impacted a guide rail in a position perpendicular to the lanes of traffic at a relatively high speed "it's not going to break through" (Tr. 270).
On cross-examination the witness testified that various studies support his conclusion that few, if any, injuries would have resulted had the rear portion of claimant's vehicle come in contact with a guide rail at a ten-degree angle at a speed of 15 - 20 mph. While Mr. Levine did not provide any specific data from the studies referenced, he testified "we're talking 15, 20 miles per hour at ten degree, at 25 - 20 to 25 degrees 60 miles per hour head on, that the guide rail would work" (Tr. 362). He agreed that when it came to rest the nose of claimant's minivan was pointing in the direction of the highway and that the vehicle "went backwards down the hill" (Tr. 367). He did not inspect the claimant's vehicle and relied upon photographs to conclude what damage was incurred as a result of the accident. He did not determine, however, what damage, if any, occurred during the process of removing the vehicle from the bottom of the embankment. When asked his response to the fact that the Police Accident Report identified no damage to either the driver or passenger-side of the vehicle, Mr. Levine responded "that doesn't mean it wasn't there" (Tr. 370). It was his theory that the vehicle was caused to rotate onto its passenger-side as it proceeded down the embankment, although it did not turn over, which resulted in the broken passenger side mirror and "a lot of damage to the back passenger side" (Tr. 397-398). He was aware that a witness had described the vehicle exiting the highway in a position perpendicular to the lanes of travel and addressed the witnesses' description by stating "as soon as the rear end of that car got on this embankment, which is just off the road, it would twist very quickly and go down the hill" (Tr. 395-396). He agreed that the culvert pipe and pond he observed at or near the base of the embankment were in excess of thirty feet from the white line on the edge of Route 28.
Mr. Levine testified that he utilized a computer program to re-create the claimant's accident using the witness statement that claimant's vehicle was perpendicular to the roadway as it entered the westbound lanes of traffic, the location of wheel marks where the vehicle left the roadway and "the width between the reeds, which positioned the car as sideways coming off the road" (Tr. 401).
On redirect examination the witness testified that the relationship between the tire marks found on the embankment and the debris and car parts found on the bottom of the embankment led to his conclusion regarding the place where claimant's vehicle left the highway. He stated that even had the claimant's vehicle impacted a guide rail at a 90- degree angle and at a speed of 15 to 20 mph, the guide rail would have withstood such an impact although the claimant "might have gotten a whiplash from it" (Tr. 420).
The claimant rested at the conclusion of Mr. Levine's testimony and the defendant moved to dismiss alleging the sole proximate cause of the claimant's accident was her loss of control.
The defendant called Debra Sylvester. Ms. Sylvester testified that on the morning of December 12, 2010 she was on her way to work in Ashokan, New York. She described the weather conditions as she operated her vehicle on Route 28 in a westbound direction on the morning of December 12, 2010 as "[i]cy" and "[h]azy" (Tr. 434). The road conditions were "[s]lippery, icy, not a good condition" (Tr. 435).
Ms. Sylvester testified that she first observed claimant's vehicle in the driving or non-passing lane of eastbound Route 28. According to the witness: "It was heading east, it kind of spun out - spun. Next thing I know, she - I - she was losing control, and went backwards across the road in front of me" (Tr. 439).
She testified that she parked her car along the highway shoulder when she observed the claimant lose control of her vehicle. She then observed the claimant's minivan pass approximately three feet in front of her vehicle. When asked the position of claimant's vehicle as it left the road surface, Ms. Sylvester responded "[i]t was backwards" and "[a]t a 90 degree angle" (Tr. 442, 443).
On cross-examination the witness testified that it was not snowing at the time the accident occurred but "[t]here was a mixture on the road" (Tr. 452). She marked Exhibit 4B to indicate the point where her vehicle was parked at the time the claimant's vehicle passed in front of her. When asked whether, perhaps, the vehicle had exited the paved surface "somewhat sideways, as well as backwards", she responded "I can't honestly say that. It just look[ed] like it went right across the road" (Tr. 457). Following the accident, Ms. Sylvester proceeded down the embankment where she observed debris around claimant's vehicle including "the back parts" (Tr. 460).
The defendant next called Keith Savoury, the Resident Engineer in the Department of Transportation's (DOT's) Ulster County residency. Mr. Savoury testified that he conducted a search of records maintained by the Ulster County residency and determined there were no complaints regarding the area of Route 28 where claimant's accident occurred. He also reviewed information from DOT's SIMS System and determined that that section of Route 28 had not been designated as a high accident location. His review of residency records determined that in the early morning hours of December 12, 2010 "we were out there maintaining the roads with salt prior to the accident" at a rate of 275 pounds per lane mile (Tr. p 476). In addition, records describe weather conditions as "a light rain freezing on the pavement" (Tr. 479).
In preparing to testify Mr. Savoury reviewed the record plans for the 1974 reconstruction of Route 28 which, he confirmed, did not call for the placement of a guide rail along the westbound lanes of Route 28 in the vicinity of claimant's accident.
On cross-examination Mr. Savoury conceded that the record plans provide no information regarding the facts considered in determining the location of guide rails as indicated on the record plans.
On redirect examination the witness testified that the plans for the 1974 reconstruction contained the recommendations of the Department of Transportation's Regional Design Engineer, Regional Construction Engineer, Regional Highway Maintenance Engineer, Regional Traffic Engineer and the Regional Director.
The defendant called Michael Schaefer who identified himself as the Regional Design Engineer in charge of design for the DOT Hudson Valley Region, which includes Ulster County. He stated that he is familiar with both Route 28 and the specific area where claimant's accident occurred. Prior to testifying, Mr. Schaefer had searched DOT records for the design report prepared in relation to the 1974 reconstruction of Route 28. He was unable to locate the report and stated that under normal record keeping procedures, records regarding construction projects are routinely deleted or otherwise disposed of after ten years following completion of the project.
The witness testified that in April 2013 he went to the location of reference marker 2046 adjacent to the westbound lanes of Route 28 and walked from the reference marker to the next marker in both directions. He identified Exhibits X and Y as photographs taken during his visit to the site. He also "eyeballed" the slope of the embankment along the north shoulder. Referring to Exhibit X he stated that, from his experience "walking alongside of the road", the embankment was between a one-on-four and a one-on-two slope (Tr. 510). Referring next to Exhibit Y, he testified that the slope of the embankment depicted in the photograph appeared to be one-on-two. He stated that the 1972 Highway Design Manual required a clear area of thirty feet on roadways with a design speed of 50 mph or greater, and also required that "a traversable slope must be provided within the clear area" (Tr. p 514, Exhibit 15 [Chapter 10]). According to Mr. Schaefer, his review of DOT SIMS data for the ten-year period between 2003 and 2013 revealed no accidents of a similar nature to that experienced by the claimant and no pattern of off-the-road accidents at that location. Finally, the witness testified that Chapter 10 of the 1972 Highway Design Manual contains the warrants for guide rail installation established by the Department of Transportation. Having reviewed the record plans for the reconstruction of Route 28 in 1974, he testified that a thirty-foot clear area was required. While visiting the scene of claimant's accident he measured the two westbound lanes, determining that they were each twelve-feet wide. He also measured the shoulder which he determined varied between eight feet and eight feet, six inches in width .
On cross-examination, the witness testified that he searched for information on studies undertaken as part of the 1974 reconstruction project regarding the placement of guide rails along Route 28. No such studies were found and he agreed that the record plans do not provide any information as to why guide rail was, or was not, installed as part of the project. He stated that he did not utilize any instruments to determine the actual slope of the embankment which he inspected during his site visit. He stated that he went to the site of the reference marker noted in the police accident report and that the measurements he related on direct examination were taken "at the spot where I thought the accident was most likely to happen" (Tr. 548).
Mr. Schaefer agreed that one of the warrants for placement of a guide rail along a state highway is the presence of a body of water deeper than two feet within the clear area. He also agreed that the 1972 Highway Design Manual defines a clear recovery area as "a gently graded area of a 1 on 6 slope or flatter" (Exhibit 15) and stated that the embankment he inspected along the north shoulder of Route 28 varied from one-on-four to one-on-two. According to the witness, a clear area existed for eastbound traffic which included the two lanes of westbound Route 28 traffic, the shoulder which varied between eight feet and eight feet six inches, and the approximately one-and-a-half foot-wide strip of one-on-six area which adjoins the shoulder. When asked whether the 1972 Highway Design Manual explicitly states that the lanes of opposing traffic may be considered part of the clear area, he responded "[i]t does not specify whether it can or cannot be" (Tr. 566). He agreed that utility poles and trees greater than four inches in diameter were included in the warrant governing installation of guide rails under the Highway Design Manual.
On redirect examination Mr. Schaefer testified that trees, water hazards and fixed objects must be located within the clear area for the guide rail warrant to apply.
The defendant called William E. Logan as its final witness. Mr. Logan testified that section 10.01.02 of the 1972 Highway Design Manual identifies three primary warrants in determining whether a guide rail is required including the height of the embankment relative to its slope; fixed objects and roadside hazards. Table 10-2 on page 10-6 of the 1972 Highway Design Manual establishes required roadside clear areas which vary depending upon design speeds. He stated that a clear area must be a traversable slope which is defined in the Highway Design Manual as "a slope a vehicle can pass through without severe damage to the vehicle or occupants. The slope rates and heights given in Table 10-1 are considered traversable" (Exhibit 15, §10.01.02). Only roadside hazards which exist within the clear area are relevant to the determination whether to install a guide rail.
Mr. Logan testified that he used a level and slope meter at three individual locations at or adjacent to reference marker 2046 on Route 28. One of the locations is depicted in Exhibit C and was chosen by the witness because "based on observations, this was the steepest spot along that length, so I figured I'd take the steepest" (Tr. 611). He determined that the slope at the location depicted in Exhibit C was one-on-two. A second measurement taken in the same area at a subsequent site visit, at the point indicated on Exhibit C-1, revealed that the slope in that location was "flatter than one-on-two" (Tr. 619). He also determined during his site visit that a clear area of thirty-two feet existed at the point on Route 28 where his level and slope meter are depicted in a photograph. At no time did Mr. Logan observe a slope greater than one-on-one or an embankment in excess of sixteen feet high. He stated that he did not determine the depth of the pond located near the base of the embankment "[b]ecause the pond is well outside the clear area" (Tr. 630).
The witness stated that he reviewed the DOT SIMS Report for the area on Route 28 where the claimant's accident occurred and determined that no similar accidents had occurred at that location during the three year period preceding December 12, 2010. He testified that the Department of Transportation relies upon both government and private reports regarding crash impacts and guide rails. According to Mr. Logan, none of the studies address impacts occurring at a greater than 25 degree angle.
On cross-examination Mr. Logan testified that both Exhibit 5 and Exhibit 6 depict areas where the embankment slope is traversable, and again stated that a guide rail is not required to protect against hazards and fixed objects which exist outside the clear area.
The State is subject to a nondelegable duty to construct and maintain its highways in a reasonably safe condition, taking into consideration such factors as the traffic conditions, terrain and fiscal practicality (Gutelle v City of New York, 55 NY2d 794, 795 [1981]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). While this duty is generally limited to those portions of the highway intended for vehicular use, "a roadside hazard such as a steep slope or a ditch may be so inherently dangerous [that] a municipality has a duty to prevent vehicles from leaving the road or, if they do, to eliminate the danger " (Madden v Town of Greene, 64 AD3d 1117, 1119 [3d Dept 2009] [internal quotation marks and citations omitted]; see also Hill v Town of Reading, 18 AD3d 913, 915 [3d Dept 2005]; Appelbaum v County of Sullivan, 222 AD2d 987 [3d Dept 1995]). At particular points of danger, such as a gorge adjacent to a curve in the roadway (Ferguson v Sheahan, 71 AD3d 1207 [3d Dept 2010]), a ditch alongside a right-angle curve at the foot of a very steep slope (Popolizio v County of Schenectady, 62 AD3d 1181, 1182-1183 [3d Dept 2009]), a dangerous condition opposite a T-intersection (McDonald v State of New York, 307 AD2d 687, 689 [3d Dept 2003]), and bridges that carry vehicles over deep water (Van Son v State of New York, 116 AD2d 1013 [4th Dept 1986]); Zalewski v State of New York, 53 AD2d 781 [1976]; Brady v City of New York, 39 AD2d 600 [2d Dept 1972]), "[t]he State is obligated to provide barriers of sufficient strength to hold an automobile traveling at a reasonable rate of speed" (Zalewski v State of New York, 53 AD2d 781, 781-782) or otherwise eliminate the danger (Popolizio at 1183). The State may not be found to have breached its duty unless the breach proximately caused the accident (Lindquist v County of Schoharie, 126 AD3d 1096, 1098 [3d Dept 2015]) or was a substantial factor in aggravating claimant's injuries (Gutelle v City of New York, 55 NY2d 794, 796 [1981]; Stuart-Bullock v State of New York, 33 NY2d 418, 421[1974]; Hill v Town of Reading, 18 AD3d at 916 [3d Dept 2005]; Ferguson at 1210; Popolizio at 1183; Temple v Chenango County, 228 AD2d 938, 940 [3d Dept 1996]). So long as the alleged defect is a substantial factor in aggravating claimant's injuries, the fact that it "did not cause [claimant's] vehicle to leave the roadway in the first instance is of no moment" (Gutelle, 55 NY2d at 796; see also Stuart-Bullock, supra; Hill at 915).
Notwithstanding the duties imposed, the State's liability is limited, however, "by the fact that in the field of traffic design engineering, it is accorded a qualified immunity which can only be overcome with proof that a highway planning decision evolved without adequate study or lacked a reasonable basis" (Zecca v State of New York, 247 AD2d 776 [3d Dept 1998]; see also Affleck v Buckley, 96 NY2d 553 [2001]; Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579 [1960]). To successfully invoke the qualified immunity defense, defendant has the burden of demonstrating that its decision with regard to the placement of guide rails "was the product of a deliberative decision-making process" (Evans v State of New York, 130 AD3d 1352 [3d Dept 2015]; Winney v County of Saratoga, 8 AD3d 944 [3d Dept 2004]).
Preliminarily, as there was no proof of a deliberate decision making process with regard to the placement of guide rail on Route 28 during the 1974 reconstruction there can be no qualified immunity (see Dahl v State of New York, 13 Misc 3d 590, 600 [Ct Cl 2006], affd 45 AD3d 803 [3d Dept 2007]; Matter of Estate of Hamzavi v State of New York, 43 AD3d 1430 [4th Dept 2007]; Cordts v State of New York, 125 AD2d 746 [3d Dept 1986]; Cordero v City of New York, 112 AD2d 914 [2d Dept 1985]). Furthermore, the Court resolves the issue of the location where claimant's vehicle left the roadway by finding that the vehicle departed the paved surface at the point indicated by Debra Sylvester on Exhibit 4B. The Court further finds that after losing control in the eastbound driving lane of Route 28, the claimant's vehicle spun and crossed the westbound lanes and shoulder proceeding backward "at a 90 degree angle", "right across the road" as described by Ms. Sylvester (Tr. 443, 457). The Court credits Ms. Sylvester's clear and credible testimony that she observed claimant's vehicle from the point at which it lost control to the place where it left the shoulder of the westbound lanes of traffic, three feet in front of her vehicle. The Court rejects, therefore, Mr. Levine's reconstruction of the event which determined claimant's minivan left the road surface in a posture essentially parallel to the westbound lanes of Route 28 and that the rear of the vehicle would have impacted a guide rail, had one been present, at a 10 degree angle and a speed of 15 - 20 mph.
It was undisputed that a 30-foot clear area is required for highways having a design speed of 50 mph or more, as is the case here. Chapter 10 of the Highway Design Manual makes clear that a traversable slope must be provided within the clear area. The Manual defines a "traversable slope" as "a slope a vehicle can pass through without severe damage to the vehicle or occupants. The slope rates and heights given in Table 10-1 are considered traversable" (Exhibit 15, p.10-5). According to Table 10-1, entitled "Guide For Fill Heights Without Guide Rail", slopes measuring 1 on 2 with an embankment height of 10 feet do not require a guide rail. While Mr. Schaefer only "eyeballed" the area to estimate the height and slope of the embankment, which was located within the clear area, Mr. Logan measured the slope of the embankment to be one-on-two at its steepest (Tr. 611) and the height of the embankment to be no more than ten feet (Tr. 627-629). Based on this data, Mr. Logan opined that the installation of guide rails in the area of the accident was not required and, in fact, would increase the risk of harm to operators of errant vehicles. It was uncontested at trial that the pond, culvert pipe and V-ditch were located outside the required clear area.
While Mr. Levine testified that the height of the embankment was between 13 and 16 feet and that the slope varied from one-on-two near the top to one-on-one at the bottom, his testimony was conclusory and unpersuasive. He failed to indicate how the slope or height of the embankment were determined and his overall testimony at trial was imprecise and equivocal. Insofar as a factfinder is entitled to "reject an expert's opinion if it finds the facts to be different from those which formed the basis for the opinion" (Curry v Hudson Val. Hosp. Ctr., 104 AD3d 898 [2d Dept 2013] [quotation marks and citation omitted]), the Court rejects Mr. Levine's opinion as conclusory and unsupported by the credible evidence (see also Matter of Estate of Hamzavi v State of New York, 79 AD3d 1689, 1690 [4th Dept 2010] [court was entitled to resolve conflicting expert opinions based upon the competing testimony]; Krafchuk v State of New York, 250 AD2d 962 [3d Dept 1998] [court's conclusion was based upon resolution of factual dispute as to nature and extent of hazard posed by embankment and adequacy of guard rail]; Ring v State of New York, 270 AD2d 788 [3d Dept 2000] [court may disregard conclusory expert opinion regarding the need for a guide rail]; Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [1983], affd 61 NY2d 955 [1984] ["varying opinions of the experts support the reasonableness of defendant's actions in installing the guide rails"). Rather, the Court finds Mr. Logan's opinion, that none of the warrants set forth in the 1972 version of the Highway Design Manual for the installation of a guide rail at the accident site were met, was both credible and supported by the facts.
Nor does the Court find that the accident occurred at a particular point of danger so as to require the installation of a guide rail. The roadway in the area of the accident was not a sharp curve like the facts in Ferguson and Popolizio but a gentle arc as can be seen in the photographs. Nor did the accident occur in the area of a T-intersection as in McDonald or on a bridge as in Van Son, Zalewski and Brady. In all of these cases the need for a guide rail was necessitated by a known dangerous condition or a history of accidents at the site. In the instant matter, photographs depict only a gently-sloping embankment which Mr. Logan credibly testified was no more than 10 feet in height. In addition, Mr. Logan testified that there was a clear area of 32 feet and no record of similar accidents in the area. In short, nothing in either the character of the roadway or the roadside conditions warranted the installation of guide rails at this location. Rather, like the facts in Gladstone v State of New York (23 AD2d 593, 593 [3d Dept 1965], affd 18 NY2d 987 [1966]) "[t]he chance that a skidding car would cross the highway and crash through guardrails on the opposite side of the road as the result of contact with a solitary icy spot on its pavement, unattributable to any negligent conduct on the part of the State, was a contingency too remote reasonably to be anticipated." The State is not required to guard against accidents which, in the exercise of ordinary care, could not be foreseen (see Shevalier v Bentley, 268 AD2d 622 [3d Dept 2000]; Epstein v State of New York, 124 AD2d 544, 549 [2d Dept 1986], lv denied 69 NY2d 605 [1987]).
Moreover, the Court finds that claimants failed to establish by a preponderance of the evidence that the absence of a guide rail was a substantial factor in aggravating claimant's injuries (Gutelle at 796). Mr. Levine's opinion that claimant would have sustained few if any injuries had a guide rail been in place was premised upon his conclusion that the claimant's vehicle left the paved surface in a position nearly parallel with the highway and rotated counter-clockwise as it descended the embankment. Given the position of the vehicle as it left the road, Mr. Levine opined that the rear portion of the vehicle would have contacted the guide rail at a 10-degree angle at a speed of 15 - 20 mph. Based on these facts, Mr. Levine opined that claimant would have sustained few if any injuries had a guide rail been installed. In the Court's view, the factual predicate for Mr. Levine's conclusions is flawed.
As discussed earlier, the only eyewitness to the accident, Debra Sylvester, credibly testified that she was approximately three feet from the claimant's vehicle when it passed in front of her moving backward in a position perpendicular to the highway. Based upon Ms. Sylvester's eyewitness account of the manner in which the vehicle left the highway, the Court finds that claimant's vehicle was perpendicular to the highway when it left the travel portion of the road. To the extent Mr. Levine's opinion that claimant would have sustained few if any injuries had there been guide rail is based upon his conclusion that the vehicle left the highway in a nearly parallel position, the opinion is unsupported by the credible evidence and hereby rejected (see Curry v Hudson Val. Hosp. Ctr., supra). Similarly, his sole statement that even if the claimant's vehicle exited the highway in a perpendicular position she would have sustained only a whiplash is wholly unsupported by reference to expert medical evidence and failed to establish that the failure to install a guide rail was a substantial factor in aggravating claimant's injuries (cf. Popolizio, 62 AD3d 1181, 1183 [plaintiff's expert medical witnesses opined that brain injury was caused by impact]).
Based on the foregoing, the Court finds that claimants failed to establish by a preponderance of the credible evidence that defendant had a duty to provide guide rail where the accident occurred or that any such breach was a substantial factor in aggravating claimant's injuries.
Accordingly, the claim is dismissed. Any motions not decided herein are denied.
Let judgment be entered accordingly.
September 22, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims