Opinion
# 2020-045-005 Claim No. 126995 Motion No. M-93885
02-05-2020
VIRGINIA ELDER, as Administratrix of the Estate of JOHN ELDER, deceased v. THE STATE OF NEW YORK
Sullivan, Papain, Block, McGrath & Cannavo, P.C. By: Deanne M. Caputo, Esq. Hon. Letitia James, Attorney General By: John L. Belford, IV, Assistant Attorney General
Synopsis
Defendant's motion for summary judgment dismissing negligent design, downed sign, and police involvement case.
Case information
| UID: | 2020-045-005 |
| Claimant(s): | VIRGINIA ELDER, as Administratrix of the Estate of JOHN ELDER, deceased |
| Claimant short name: | ELDER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126995 |
| Motion number(s): | M-93885 |
| Cross-motion number(s): | |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Sullivan, Papain, Block, McGrath & Cannavo, P.C. By: Deanne M. Caputo, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: John L. Belford, IV, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 5, 2020 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion for Summary Judgment; Defendant's Affirmation in Support with annexed Exhibits A-I; and Claimant's Affirmation in Opposition with annexed Exhibits A-T.
Defendant, the State of New York, has brought this motion pursuant to Court of Claims Act § 11 and CPLR 3212, seeking an order granting it summary judgment. Claimant, Virginia Elder, as Administratrix of the Estate of John Elder, deceased, opposes the motion.
The underlying claim in this matter involves an accident which occurred on March 4, 2013 on the southbound Meadowbrook State Parkway, between Exit M6 for the Southern State Parkway and Exit M7 for Babylon Turnpike. At the time of the accident John Elder's vehicle had become disabled and was parked within the hazardous markings on the shoulder portion of the southbound Meadowbrook State Parkway. While Mr. Elder was standing outside of his vehicle making repairs with his friend, Edward L. Ross, a vehicle traveling southbound on Meadowbrook State Parkway operated by Robert Beodeker, failed to merge and struck Mr Elder as well as Mr. Ross. Mr. Elder and Mr. Ross both died as a result of the injuries they sustained from the accident.
Mr. Beodeker testified at his deposition that on the day of the accident he was operating his motor vehicle traveling southbound on the Meadowbrook State Parkway when he struck two pedestrians, Mr Elder and Mr. Ross, who were located in a marked shoulder portion of the roadway. Mr. Beodeker was traveling on the Meadowbrook State Parkway with the intention to go to the Southern State Parkway eastbound exit, the M-6 exit. He stated that he did not see the marked shoulder until he came around a curve and down a hill a little. He testified that he was in the right lane just prior to the accident and that the right lane ended just prior to the shoulder. Mr. Beodeker stated that he was unable to merge into the middle lane because the shoulder came up faster than he thought it would and that he did not see any signs warning him to merge. He did not see any merge, lane change or upcoming curve signs prior to the accident. He stated that he did not see Mr. Elder or Mr. Ross until two to three seconds prior to striking them. He estimated that they were approximately 300 feet away when he first saw them. The accident took place after Mr. Beodeker passed the M-6 exit. When asked why he did not get off at the M-6 exit, Mr. Beodeker explained that he simply drove past the exit since it came up faster than he expected. He continued that he could not get over in time to get off at the exit even though he was traveling in the right lane of traffic and knew the Southern State Parkway exit was coming up. After he missed the M-6 exit, Mr. Beodeker turned to his right and looked through the woods. He then turned to look back in a forward direction and saw Mr. Elder and Mr. Ross. Mr. Beodeker pleaded guilty to driving under the influence of drugs, specifically methamphetamine. He pleaded guilty to aggravated vehicular homicide and was sentenced to 4 to 12 years in prison.
Sergeant Gary Lewis, a New York State Trooper, testified at a deposition in this matter. On the date of the accident, Sergeant Lewis was a State Trooper whose assignment area included the Meadowbrook State Parkway and the Southern State Parkway. Sergeant Lewis' responsibilities at that time included traffic and highway safety, vehicle traffic enforcement, responding to accidents, responding to requests for assistance by citizens and motorists, as well as general police duties on the highways of Long Island.
Sergeant Lewis stated that there was a specific protocol that he followed when he observed a disabled vehicle on the highway. He explained that he would pull over behind the disabled vehicle, make sure the operator was safe and determine if there was an emergency going on. Sergeant Lewis would talk to the operator of the vehicle to determine if the operator needed assistance. Depending on the area the disabled vehicle was in, Sergeant Lewis would either call for a tow truck or let the operator of the disabled vehicle receive his own assistance. Sergeant Lewis might even push the disabled vehicle from the area it was in depending on the distance and safety concerns.
On the date of the accident, Sergeant Lewis observed Mr. Elder's disabled vehicle on the southbound Meadowbrook State Parkway and pulled his patrol vehicle behind the disabled vehicle. Sergeant Lewis determined that Mr. Elder's vehicle was visible and located on the hazard markings on the right side of the road outside of the lane of traffic. He believed that it would not have been safe to push the disabled vehicle across the other lanes of the highway. Sergeant Lewis spoke to Mr. Elder who informed him that his battery was not working and that he was waiting for his friend to bring a new battery. Sergeant Lewis asked Mr. Elder if he needed a tow truck but he stated that he did not need one. Sergeant Lewis could not recall if he reported the disabled vehicle to headquarters. In the midst of discussing the situation with Mr. Elder, Sergeant Lewis received a call regarding another accident on the northbound side of the Meadowbrook State Parkway. Sergeant Lewis asked Mr. Elder if he would be alright, to which he replied that he would be. Sergeant Lewis told Mr. Elder to be careful and to stay in his vehicle. Sergeant Lewis then left the scene and went to the other accident location. Sergeant Lewis stated that the purpose of the striped area where Mr. Elder's vehicle was parked was to be a "hazard disabled vehicle lane." Sergeant Lewis stated that his vehicle was equipped with flares but he did not employ them behind Mr. Elder's vehicle. He stated that the flares were typically used when visibility is poor, or at night or when there is a blind curve. He continued that none of those factors were involved in this case. Sergeant Lewis further testified that he was not sure if the fact that the right lane ends several hundred feet north of the disabled vehicle posed more of a risk to the safety of Mr Elder and Mr. Ross.
Although this portion of Sergeant Lewis' testimony was objected to by claimant as non-responsive at the deposition, claimant specifically refers to this testimony in support of his opposition to defendant's motion.
Byron Alava testified at his deposition that he has been employed by the New York State Department of Transportation and has been the signs crew supervisor for the past ten years. He explained that his crew is responsible for the maintenance and placement of signs based on work orders. He stated that the Meadowbrook State Parkway was part of the region covered by his crew at the time of the accident. Mr. Alava testified that prior to March 2013 he and his crew would inspect the signs located on the Meadowbrook State Parkway southbound where it would intersect with the Southern State Parkway once a week. They did not keep records of these inspections. Mr. Alava first learned that a reduction lane sign was down in the vicinity of the subject accident one month after the accident occurred. The downed sign was specifically located on the Meadowbrook State Parkway, southbound, right shoulder near its intersection with the Southern State Parkway. Mr. Alava did not recall ever seeing the downed sign prior to the accident. New signs were placed on the highway on or about May 6, 2013. These new signs were positioned further north of the accident location than the old signs allowing motorists to see the signs sooner.
Alexander Mirsakov, a Department of Transportation traffic engineer, was also deposed in this matter. Mr. Mirsakov was the manager of Traffic Control and Safety Evaluation. He would conduct traffic studies and make recommendations for operational or safety improvements. After the subject accident he went to the scene and recommended that the right lane ends sign be moved further north from the accident location. There was also a right lane ends symbolic sign on the left side of the southbound Meadowbrook State Parkway. There should have been a right lane ends symbolic sign on the right side of the Parkway however the sign was missing. Mr. Mirsakov recommended that these signs should also be moved further north on the parkway. He also made recommendations to update pavement markings in the area of the accident. Mr. Mirsakov testified that new highway safety standards came out in 2009 and his department was responsible for making updates as needed.
Henry Palomeque, an employee of the New York State Department of Transportation, was also deposed in this matter. He explained that his duties included patrolling the Meadowbrook State Parkway to look for downed or faded traffic signs. He checked the Meadowbrook State Parkway 4 to 5 times a month. He did not recall seeing a downed sign in the area of the subject accident prior to March 4, 2013. After the accident, Mr. Palomeque repaired the downed sign in the area of the accident.
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Med. Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In determining a summary judgment motion, the Court must view the evidence in the light most favorable to the nonmoving party (Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634 [2d Dept 2010]).
"When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" (Turturro v City of New York, 28 NY3d 469, 477 [2016]). The State of New York has a duty to maintain its roadways in a reasonably safe condition and the breach of that duty can result in liability to the defendant if the ascribed negligence in maintaining the road is a proximate cause of the accident (Friedman v State of New York, 67 NY2d 271 [1986]). In addition, the State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (id.). However, the State is not an insurer of the safety of its roadways, and the mere fact that an accident resulting in injury occurred does not render the State liable (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 order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take reasonable measures to correct the condition (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
Highway planning, design, and maintenance are proprietary functions, arising from a municipality's well settled proprietary duty to keep its roadways in a reasonably safe condition (id.; Friedman v State of New York, 67 NY2d 271, 283 [1986]). "In the specific proprietary field of roadway safety, a municipality is afforded a qualified immunity from liability arising out of a highway planning decision. The qualified nature of the immunity is based on the principle that '[o]nce [a municipality] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger'. The immunity arises only " 'where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury' " Even if the municipality conducts a traffic study, it 'may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan' Furthermore, "after the State implements a traffic plan it is 'under a continuing duty to review its plan in the light of its actual operation' " In addition, "an unjustifiable delay in implementing [a remedial] plan constitutes a breach of the municipality's duty to the public just as surely as if it had totally failed to study the known condition in the first instance" (id. [internal citations omitted] see also Weiss v Fote, 7 NY2d 579 [1960]). Once the State is made aware of a dangerous traffic condition it must undertake a reasonable study with an eye toward alleviating the danger and after the State implements a traffic plan it is under a continuing duty to review its plan in light of its actual operation (Friedman v State of New York, 67 NY2d 271, 284 [1986]). The qualified immunity may be overcome by a showing that the State was negligent in failing to implement a remedial highway planning decision once it has been made or that the plan was either evolved without adequate study or lacked a reasonable basis (see Brown v State of New York, 79 AD3d 1579 [4th Dept 2010]). To meet this burden, claimant must evince something more than a mere choice between conflicting opinions of experts (Weiss v Fote, 7 NY2d 579, 588 [1960]).
Defendant initially argues that it was not negligent and that the sole proximate cause of the accident was the actions of Robert Beodeker. Defendant points to Mr. Beodeker's testimony where he admits that he missed his exit, turned his head to the right to look through the woods, and then looked back forward when he first saw Mr. Elder and Mr. Ross in front of his vehicle. He was unable to swerve to avoid striking them.
In further support of its argument defendant submits the affidavit of New York State Trooper Joseph Mitchell, a New York State Police Investigator, wherein he states that he was a member of the Collision Reconstruction Unit from 2012 until 2017. Trooper Mitchell conducted an accident reconstruction on March 4, 2013 regarding the subject incident. He states that the Meadowbrook State Parkway is a six lane highway with three lanes traveling northbound and three lane traveling southbound. At the area of the collision, the southbound lanes merge from three lanes down to two lanes. The right lane had three clearly marked and unobstructed white pavement arrows pointing towards the left, directing traffic from the right lane to merge into the center lane. In the center median there was a clearly marked and unobstructed New York State DOT yellow diamond shaped traffic control sign with black graphics, showing the traffic pattern which indicates vehicles in the right lane are to merge left. In the shoulder, a similar New York State DOT traffic control sign was lying face down in the grass. The sign on the west side of the guardrail was observed to be down prior to Trooper Mitchell's arrival at the scene. Trooper Mitchell determined that all of the roadway factors made it clear and convincing that Mr. Beodeker had an unobstructed view of the roadway and oversized hazardous markings. Trooper Mitchell concluded that Mr. Beodeker failed to observe the three other traffic control means that were clearly marked and unobstructed that warned that the right lane was merging from three lanes down to two lanes. Trooper Mitchell concluded that based on all the evidence, the primary causative factor of the collision was the failure of Mr. Beodeker to maintain and use the designated lane, by driving through the hazardous markings. Trooper Mitchell also concluded that Mr. Beodeker's drug impairment was an additional contributing factor. Defendant attached Trooper Mitchell's accident reconstruction report to its motion papers.
Defendant also submitted the affidavit of Tom Temistokle, a licensed professional engineer employed by the New York State Department of Transportation as the Evaluation Engineer for Nassau and Suffolk Counties, in support of its motion. Mr. Temistokle stated that his responsibilities include supervising the Traffic and Engineering and Safety Group staff as well as conducting safety studies of New York State roadways. Mr. Temistokle explained that the New York State Highway Design Manual was first published in 1972 to provide guidance to engineers on various matters with regard to State roadways. He pointed out that the Manual's recommendations are not mandatory. Mr. Temistokle explained that a traffic study compares the existing conditions of a State roadway to the applicable standards recommended by the New York State Highway Design Manual and the Manual on Uniform Traffic Control Devices (MUTCD). Additionally, traffic studies review accident history or safety concerns on State roadways. Mr. Temistokle stated that the traffic volume for the southbound Meadowbrook State Parkway in the area of the collision was 46,073 vehicles per day. He reviewed the accident history of the southbound Meadowbrook State Parkway in the area of the collision for a period of three years prior to the subject accident. He found twenty-three accidents on the southbound Meadowbrook State Parkway within the area of the Southern State Parkway interchange during that period. After a review of the accident types, he determined that none of the accidents were of the kind that occurred in the subject accident. Mr. Temistokle reviewed all traffic control cases or complaints for the Meadowbrook State Parkway and found only two traffic control cases in their files regarding the Meadowbrook State Parkway at the Southern State Parkway prior to March 4, 2013. However, both those cases, dated 2009, involved the northbound Meadowbrook State Parkway exit to the westbound Southern State Parkway. Mr. Temistokle further explained that the alignment of the Meadowbrook State Parkway in the area of the accident existed since the 1950's and was widened in the 1960's. He also stated that the traffic control signs and pavement markings at the location of the accident were MUTCD compliant at the time of the accident. Mr. Temistokle concluded that the location of the accident on March 4, 2013 was not a dangerous or defective condition since there were no complaints or requests for studies prior to the accident and there is no accident history in the three years prior to the accident.
Defendant has established its prima facie entitlement to summary judgment as a matter of law. Mr. Beodeker, who pleaded guilty to driving under the influence of drugs, admitted that he was not looking in the direction he was traveling just prior to striking decedents. The evidence presented established that Mr. Beodeker entered the hazardous area after passing three white pavement arrows directing vehicles in the right lane to merge left and two traffic control signs indicating a lane merge. The evidence also established that, in the three years preceding the subject accident, defendant did not receive any complaints regarding the accident location. Additionally, defendant established that, in the three years preceding the subject accident, the location of the accident lacked a history of similar accidents. If a particular location of roadway lacks a significant accident history of similar accidents, the State is not on notice of a dangerous condition requiring study or remediation (Friedman v State of New York, 67 NY2d 271, 284 [1986]).
In regard to the actions of Sergeant Lewis, the record also establishes defendant's prima facie entitlement to summary judgment as a matter of law pursuant to the governmental function immunity defense (Farrago v County of Suffolk, 151 AD3d 935 [2d Dept 2017]). "[A] municipality will be deemed to have engaged in a governmental function when its acts are 'undertaken for the protection and safety of the public pursuant to the general police powers'" (Turturro v City of New York, 28 NY3d 469, 478 [2016]). Even if claimant proved the existence of a special duty, a municipality acting in a discretionary governmental capacity may rely on the governmental function immunity defense (id.) The governmental function immunity defense provides immunity for the exercise of discretionary authority during the performance of a governmental function (id.). It is clear from the evidence presented that the complained of conduct of Sergeant Lewis involved the exercise of the police officer's professional judgment and was therefore discretionary (Farrago v County of Suffolk, 151 AD3d 935 [2d Dept 2017]). Thus, defendant is shielded from the imposition of liability for the actions of Sergeant Lewis.
Accordingly the Court finds that defendant has established its prima facie entitlement to summary judgment as a matter of law and that the actions of Mr. Beodeker were the sole proximate cause of this tragic accident.
In response, claimant has failed to raise a triable issue of fact.
Therefore, based on the foregoing, defendant's motion is granted and the claim is dismissed.
February 5, 2020
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims