Opinion
# 2020-040-045 Claim No. 114554 Motion No. M-92488
12-07-2020
BLAKE E. FRECHETTE, As Administrator of the Estate of STACEY L. FRECHETTE, deceased v. THE STATE OF NEW YORK
CONWAY & KIRBY, PLLC By: Elizabeth Graziane, Esq. Andrew Kirby, Esq. LETITIA JAMES Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Synopsis
Following Trial on the issue of liability only, the Court finds the State 95% responsible for the injuries sustained by Decedent as Defendant failed to redress a recurrent dangerous condition of windblown snow on a State highway.
Case information
| UID: | 2020-040-045 |
| Claimant(s): | BLAKE E. FRECHETTE, As Administrator of the Estate of STACEY L. FRECHETTE, deceased |
| Claimant short name: | FRECHETTE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 114554 |
| Motion number(s): | M-92488 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | CONWAY & KIRBY, PLLC By: Elizabeth Graziane, Esq. Andrew Kirby, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 7, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Blake Frechette, as Administrator of the Estate of Stacey L. Frechette (hereinafter, "Decedent"), asserts that Defendant did not address a recurrent dangerous condition of windblown snow on a State highway and, thus, failed to maintain the road in a reasonably safe condition, which was a substantial factor in a motor vehicle accident on February 24, 2007 in which Decedent died. For the reasons set forth below, the Court finds, by a preponderance of the credible evidence, that Defendant is 95% responsible for the injuries sustained by Decedent in this accident and Claimant's Decedent is 5% responsible. A bifurcated trial was held on December 7-8, 2016, and July 31, 2018 at the Court of Claims in Albany, New York, addressing liability issues only. There were six witnesses at trial: Daleanne Wolter (whose son died in a 1997 automobile accident in the same area where Decedent died); Gary McVoy (Director of Maintenance for the New York State Department of Transportation [hereinafter, "DOT"] from 2002 until 2005 and Director of Operations from about 2005-2008); Michael Lashmet (DOT's snow and ice program manager since 2003); Howard Altschule (Claimant's expert meteorologist); Conrad Hoffman (Claimant's expert); and William Logan (Defendant's expert). In addition, portions of examinations before trial (each, hereinafter, an "EBT") were received from 16 witnesses: EBT of Neil W. Cahoon (the driver of the other vehicle), conducted on January 28, 2009 (see Exs. 144, 144-A, 144-B); EBT of Gabrielle Borrie (an eyewitness to the accident), conducted on March 27, 2012 (see Exs. 145, 145-A, 145-B); EBT of Wayne Gonyea (who drove on the roadway on the morning of the accident and was the Town of Plattsburgh highway superintendent in 2007), conducted on March 27, 2012 (see Exs. 146, 146-A, 146-B); EBT of Jeffrey A. Parker (a DOT Highway Maintenance Supervisor 1 at the time of the accident), conducted on January 29, 2009 (see Exs. 147, 147-A, 147-B); EBT of John Trombley (the snowplow operator on the roadway where the accident occurred), conducted on March 24, 2009 (see Exs. 148, 148-A, 148-B); EBT of Paul Drollette (a DOT Highway Maintenance Supervisor 1 on the date of the accident), conducted on March 24, 2009 (see Exs. 149, 149-A); EBT of Terrence LaFrance (DOT's Resident Engineer in Clinton County at the time of the accident), conducted on April 7, 2010 (see Exs. 150, 150-A, 150-B); EBT of Scott Docteur (DOT's Resident Engineer in Clinton County from 1995-2005), conducted on July 20, 2011 (see Exs. 151, 151-A, 151-B); EBT of L. Raymond Powers (DOT's Regional Traffic Engineer for DOT Region 7 from 1990-2003), conducted on July 20, 2011 (see Exs. 152, 152-A, 152-B); EBT of Martin C. Percy (Regional Traffic Engineer for DOT Region 7 at the time of the accident), conducted on July 20, 2011 (see Exs. 153, 153-A, 153-B); EBT of Gregg Chanon (who worked for Mr. Percy in DOT's traffic safety department at the time of the accident), conducted on October 28, 2011 (see Exs. 154, 154-A, 154-B); EBT of Steve Wolter (who had an accident in 1997 in the same area as Decedent's accident), conducted on January 4, 2000 (see Exs. 155, 155-A); EBT of Wendy Burdick, conducted on July 7, 2000 (see Ex. 156); EBT of Gary J. Sorrell (a DOT Highway Maintenance Supervisor 2 on the date of the accident), conducted on March 24, 2009 (see Exs. 157, 157-A, 157-B); EBT of Mr. McVoy, conducted on March 30, 2010 (see Exs. 158, 158-A); and EBT of John Cook (DOT's Resident Engineer in Jefferson County from 1994-2000, and Regional Director of Operations from 2000 until the time of his EBT), conducted on April 7, 2010 (see Exs. 159, 159-A, 159-B). Thereafter, the parties were granted additional time to order a trial transcript, and then to submit post-trial memoranda.
Because neither party submitted a list of portions of Wendy Burdick's EBT that they wished the Court to consider, the Court did not review Ms. Burdick's EBT.
PROCEDURAL HISTORY/PRE-TRIAL MOTION By Decision and Order of the Hon. James H. Ferreira, dated September 25, 2013 (UID No. 2013-039-382), the Court of Claims granted summary judgment to Defendant, dismissing the Claim. Claimant appealed and, by Memorandum and Order dated June 25, 2015 (129 AD3d 1409), the Appellate Division, Third Department, reversed the determination of the Court of Claims and denied Defendant's motion for summary judgment, finding that issues of fact existed as to whether or not: (i) Defendant had notice of a dangerous condition of windblown snow at the location where the accident occurred; and (ii) the State's actions were reasonable in solely relying upon plowing in attempting to address the recurring hazard of windblown snow (id. at 1412). The Third Department agreed with the Court of Claims that Defendant failed to show that it was entitled to summary judgment on the basis of qualified immunity (id., at 1413).
In August 2015, the Claim was restored to the Court of Claims' trial calendar and assigned to the Individual Assignment Calendar of the undersigned. After additional discovery, a trial of this Claim, on the issue of liability only, was scheduled to commence on December 5, 2016 at the Court of Claims in Albany, New York, and, after consultation with the parties, adjourned to December 7, 2016. After the trial session on December 8, 2016, further discovery took place, including the EBT of Mr. Lashmet. A new date was scheduled for the continuation of the trial to commence on March 13, 2018, which was adjourned to March 14, 2018, and finally to July 31, 2018.
By Notice of Motion, dated July 3, 2018 (M-92488), Defendant moved for leave to amend its Answer pursuant to CPLR 3025(b) in order to assert the affirmative defense of qualified immunity. After a telephone conference with the parties, the Court adjourned the return date of the State's Motion to coincide with the parties' post-trial briefs, so that they could address it as part of those submissions (see Tr., pp. 404-405).FACTS
Introduction/Location
On Saturday, February 24, 2007, at about 8:25 a.m., Decedent was killed in a two-car motor vehicle accident on New York State Route (hereinafter, "SR") 9 near Reference Marker (hereinafter, "RM") 9-7114-3059 (hereinafter, "RM 3059"), about 4/10ths of a mile north of Asgard Lane/Road in the Town of Beekmantown, Clinton County, New York (Ex. 44 [Amended Police Accident Report, dated February 27, 2007 (hereinafter, the "Accident Report")], p. 1; Ex. 46 [New York State Police (hereinafter, "NYSP") Collision Reconstruction Findings Report by Trooper Philip A. Heery, dated May 9, 2007 (hereinafter, the "NYSP Report")], pp. 2-3). Decedent's 2004 Honda Civic "passed through a patch of windblown snow" on SR 9, "spun out of control and crossed into the [northbound] lane where it was struck on the passenger side by an oncoming" full-sized, extended cab, 2003 Chevrolet Silverado pickup truck operated by Mr. Cahoon, about 180 feet north of the crest of a hill (hereinafter, "Collins Hill") (Frechette v State of New York, supra at 1410; see Tr., p. 37 [Ms. Wolter]; Ex. 44, p. 1, Box 5; Ex. 46, p.3; Ex. 144, pp. 17-18 [Cahoon]; Ex. 148, p. 18 [Trombley]; Ex. 124 [Town of Beekmantown letter]).
Unless otherwise indicated, all RMs referred to herein begin with the numbers 9-7114. For economy of reference, however, only the final four digits of the RM will be noted.
SR 9
SR 9 in the area of the accident is a rural, two-lane, two-way, individual flow public highway, constructed of asphalt (Ex. 46, p. 3 [NYSP Report]; Ex. 147, pp. 25, 28 [Parker]; Ex. 148, p. 18 [Trombley]). It is about 30 feet wide, with two 12-foot wide traffic lanes, three-foot wide paved shoulders, guide rails on each side, and 10-foot wide ditches on either side of the roadway (see Tr., p. 205 [Hoffman]; Ex. 46, p. 3; Ex. 147, p. 28). The highway is straight and proceeds generally in a north/south direction (Ex. 46, p. 3; Ex. 144, pp. 51-52 [Cahoon]). The posted speed limit was 55 miles per hour (hereinafter, "mph"), and there were lane markings indicating a "passing zone" for northbound traffic and a "no passing zone" for southbound traffic (Ex. 46, p. 4). Southbound vehicles on SR 9 ascend Collins Hill in that area, while northbound vehicles descend (Ex. 146, pp. 12, 27 [Gonyea]; Ex. 147, pp. 25-26 [Parker]; Ex. 157, pp. 63-64 [Sorrell]; see Tr. pp. 171-172 [Hoffman]; Exs. 90, 94 [rise of Collins Hill for southbound vehicles visible in photographs taken by Mr. Hoffman], 103 [and down grade for northbound vehicles from crest of hill]).
There are open fields on either side of SR 9, with some houses toward the crest of Collins Hill on the left (east) side of the road for a southbound traveler (Ex. 148, p. 20 [Trombley]; Ex. 157, pp. 63-64 [Sorrell]; Ex. 154, p. 24 [Chanon]). To the east of the roadway in that area, Mr. Gonyea said that the land appears to have been "possibly mined at one time[,] or dug out to come up with the final roadway they have there," and there is brush land to the west (Ex. 146, p. 13).
An 'Icy Pavement Zone' sign was posted approximately 3/10ths of a mile north of the accident site for southbound vehicles (Ex. 46, p. 4 [NYSP Report]; Ex. 157, p. 49 [Sorrell]).
Mr. Parker said that SR 9 in that area is classified as a "Class C" highway for purposes of snow and ice control, meaning that it has a lower priority road than an interstate highway (Ex. 147, pp. 26-27). Mr. Parker and Mr. Chanon each agreed that DOT maintained SR 9 in the area of the incident and was responsible for snow and ice control, and signage there on February 24, 2007 (Ex. 147, pp. 39-40 [Parker]; Ex. 154, p. 25 [Chanon]).
DOT's Office of Operations Management Highway Maintenance Guidelines, Snow and Ice Control, April 2006 (hereinafter, the "2006 State Manual"), describes Class C highways as "[m]inor State highways with a one-way design hourly volume less than 200 vehicles per hour. On these highways traffic volumes are low, motorists are more apt to be familiar with the highway, and congestion point is rarely reached. Plowing speeds can, generally, be controlled by the plow operator" (Ex. 56, p. 2 [5.1302- Highway Classification for the purpose of Snow and Ice Control]).
The Weather: Temperature and Snow
Weather conditions that morning were mostly cloudy with the wind blowing from the west/northwest at 10 mph, gusting to 17- 25 mph (Ex. 44, p. 1 Box 7 [Accident Report]; Ex. 46, p. 4 [NYSP Report]; Tr., p. 106 [Altschule]). Mr. Altschule agreed that the winds were gusting throughout Clinton County (Tr., p. 115). It was cold, with a temperature in the teens (Ex. 144, p. 33 [Cahoon]; Ex. 146, p. 29 [Gonyea]; Tr., pp. 80-82, 104, 106 [Altschule (9-11 degrees between midnight and 7:00 a.m., 11 degrees at 8:00 a.m., approximately 12 degrees around the time of the accident at 8:15 a.m., 13 degrees at 9:00 a.m., and 16 degrees at 10:00 a.m. )]; Ex. 46, p. 4 [about 18 degrees]). Mr. Sorrell identified a photograph taken inside his truck of a display showing the air and roadway temperatures, but he did not know what time the photo was taken (Ex. 157, p. 37; Ex. 32). Temperatures of 19 and 15 degrees are indicated, although it is not clear which reading applies to the air and which to the pavement (see Ex. 32). It either was not snowing (Ex. 144, p. 33[Cahoon]), or, at most, there were scattered, very light snow flurries on February 23-24, 2007, in trace amounts, but with no measurable accumulation (Tr., pp.101-102 [Altschule]; see Ex. 52 [DOT Weather Event Report, which notes dry roadways, but light snow with drifting between 2:00 a.m. and 2:00 p.m.]).
The Weather: Wind
Mr. Parker, Mr. Sorrell, and Mr. Trombley testified that it was windy in the area when they were called in to work at 2:00 a.m., on the Saturday morning of the accident. Mr. Parker "knew that the road was bad already" because snow had been "drifting since [the previous] Thursday" (Ex. 147, pp. 83, 91-92). Mr. Sorrell recalled that "the wind was blowing and there was some drifting. Then the sun came out and the wind stopped and we were doing our normal work" (Ex. 157, pp. 15-16). Mr. Trombley said that it was "[v]ery windy" (Ex. 148, p. 28), and even after the accident "it was pretty bad. The wind was blowing" (id., p. 56). Mr. Cahoon, Ms. Borrie, and Mr. Gonyea, also said that it was windy that morning (Ex. 144, pp. 33, 143 [Cahoon]; Ex. 145, pp. 12-13 [Borrie]; Ex. 146, p. 29 [Gonyea]).
Prior to the accident, Mr. Gonyea twice that morning drove on SR 9 through the area (Ex. 146, pp. 17-18). The first time, traveling northbound, when he crested onto the north side of Collins Hill (where the accident later occurred), Mr. Gonyea saw "wind blowing snow on the road in sporadic sections" (id., p. 19). A little while later, during his second, southbound, pass through the accident location, he "observed [that] there were multiple areas, sections of the roadway, preceding X amount of feet before the hill up to the base of [Collins Hill], where wind was blowing snow, then clear, and a little section of wind blowing snow; maybe four sections like that," with each snow-blown section covering perhaps 30-50 linear feet of roadway (id., pp. 22, 50-51). He also stated, however, that he did not recall any blowing snow, but knew that the wind was blowing (id., p. 26). He estimated that there were two to four inches of snow on the roadway, but it varied because the roadway was "rutted," at least in the southbound lane, as a result of vehicles driving through the snow (id., pp. 24, 50). After stopping at a store, Mr. Gonyea again drove northbound SR 9, and, on that third trip through the area, came upon the accident scene (id., p. 27). Roadway Maintenance Efforts
Mr. Trombley drove a snowplow route for DOT on SR 9 that morning, designated "Beat 5P," which encompassed about 29 lane-miles from the intersection of SR 191 and SR 9, near Duprey's Feed, in Chazy, south to the Plattsburgh city limits (Ex. 147, pp. 29-30, 33, 58 [Parker]; Ex. 148, pp. 9-10 [Trombley]; see Ex. 49 [Map of Clinton County Snow & Ice Beats]; Ex. 50 [Route Descriptions]). Although Mr. Parker said that drivers were allotted one hour and twenty-five minutes to complete the round trip (Ex. 147, pp. 48-49), Mr. Trombley said that it took him 20 to 25 minutes to plow Beat 5P in one direction, and then he would turn around and go back the other way, or, in other words, between 40-50 minutes for the round trip (Ex. 148, p. 22; see Ex. 54 [Mr. Trombley's Highway Maintenance Operator Daily Report, Snow & Ice Control Operations form for February 24, 2007 (hereinafter, the "Trombley Daily Report")], pp. 1-2 ).
Mr. Trombley began plowing Beat 5P at 2:30 a.m. that Saturday and passed through the location 12 times prior to the accident, six times in each direction (see Ex. 54, p. 1). Mr. Parker also drove through the accident area sometime between 3:00 a.m. and the time of the accident and noticed drifting snow on both lanes of the roadway, but he could not recall the depth of the drifts (Ex. 147, pp. 93, 95, 102-103). He said that the area had been plowed, but snow was still drifting and it was icy (id., pp. 94-95, 101). Mr. Trombley also observed blowing and drifting snow in the area where the accident occurred that morning, but he did not see any ice (Ex. 148, p. 21).
Mr. Trombley, likewise, said that he saw Mr. Parker inspecting SR 9 at some point on the morning of the accident (Ex. 148, pp. 58-59).
Mr. Trombley did not keep the snowplow down continuously as he drove along Beat 5P, but "spot plowed" instead, meaning that he lifted the plow and turned off the salter between snowdrifts (Ex. 148, pp. 22-23). He said that, sometimes, there was blowing and drifting snow in the northbound lane, which was taken care of by the salting (id., pp. 24-25). However, he said that "[t]he wind was so bad, it just kept blowing in that left side [an apparent reference to the southbound] lane. I did everything I could. I threw as much salt as I could" (id., p. 25). He further said "that whole road was nothing but a drift. I want to say there were ten other spots. If [Decedent] was coming [south] from Chazy [as she was], she hit … ten other drift spots that were as bad, if not worse, than that one" (id., pp. 23-24). He agreed, however, that the accident location was one that required special consideration because of the blowing and drifting there (id., p. 24).
Mr. Trombley made his last southbound run prior to the accident, from Chazy south toward Plattsburgh, between 7:41 a.m. and 8:07 a.m. (Ex. 148, pp. 37-38 [Trombley]; Ex. 147, pp. 109-110, 136 [Parker]; see Ex. 54, p. 1 [Trombley Daily Report]). Mr. Trombley estimated that he went through the area where the accident occurred around 7:50 a.m. or 7:55 a.m. (Ex. 148, p. 38; see Ex. 147, p. 135 [Mr. Parker concurred]). When Mr. Trombley went through that location, he put his plow down and cleared the drifts "[t]o the best of [his] ability," and also put down salt (Ex. 148, p. 40; see pp. 38-39). After he plowed, "[t]here was still some snow left there from drifting," but "not very much" (id., pp. 38-39). Mr. Sorrell said that the pavement in the southbound lane was slushy, but not icy, when he arrived at the accident scene at about 9:00 a.m. (Ex. 157, pp. 22, 49).
Blowing/Drifting Snow
Ms. Borrie turned onto SR 9 southbound about one-half mile before the accident location and observed Decedent's Honda directly in front of her (Ex. 145, pp. 14-15, 18). Ms. Borrie estimated that she was traveling at 35-40 mph (id., pp. 16-17). She did not encounter any blowing or drifting snow for the first 1/4 mile as she drove on SR 9, but Ms. Borrie could see snow blowing from adjacent fields onto the roadway as she got closer to the rise of Collins Hill, although she could not recall if it was in both lanes, or which lane, if only one was covered (id., pp. 18, 20-21, 24, 35). The NYSP Report determined that Decedent's southbound Honda encountered accumulating, drifting snow for about 1/4 mile prior to the impact area, and that the southbound lane, where the accumulation was the greatest, was covered with drifting snow (Ex. 46, pp. 3, 8).
Coming from the opposite direction, Mr. Cahoon also encountered intermittent areas of windblown snow across portions of SR 9 where there were open fields. Sometimes, the drifts covered both lanes of the highway and, at other times, only one lane (Ex. 144, pp. 33-38), although it should be noted that the accident occurred before Decedent reached those portions of SR 9. Mr. Cahoon did not observe any icy conditions on the roadway and said that the northbound roadway was dry in areas where there was no drifting snow (id., pp. 55, 139-140). By contrast, the NYSP Report stated that the northbound Cahoon vehicle encountered wet roads prior to the crest of Collins Hill, which then became snow-covered in the area of the impact (Ex. 46, pp. 3-4, 8). Mr. Cahoon said that he did not have any visibility problems as he traveled on SR 9, nor did he have any trouble controlling his pickup truck at any time that morning (Ex. 144, pp. 48, 108).
Mr. Gonyea traveled at 40 to 45 mph that morning (10-15 mph below the posted 55 mph speed limit) because of the general wintery conditions, because he saw snow and wind blowing, because his two-wheel drive 1993 Ford Ranger did not have snow tires and handled poorly in snow, and because he was in no hurry. He could not recall if drifting snow on the roadway was another reason he drove slowly. In any event, he had no problem with visibility, slowed down, and had no difficulty navigating his vehicle through the area (Ex. 146, pp. 16, 20-21, 23, 26, 51, 67). He did not remember seeing any vehicles off the roadway (id., p. 23).
The Accident
At the time of the accident, Decedent's vehicle was traveling southbound on SR 9, approaching the ascent of Collins Hill (Ex. 44, p. 1 [Accident Report]; Ex. 46, p. 8 [NYSP Report]). Ms. Borrie witnessed the accident, and related that Decedent's "Honda hit a snowdrift and lost control" (Ex. 145, pp. 6-7, 22). Ms. Borrie did not know how deep the snowdrift was (id., pp. 29-30).
Mr. Cahoon, similarly, reported that, upon cresting Collins Hill from the opposite direction, he saw Decedent's car and drifting snow in portions of both travel lanes (Ex. 144, p. 59). Ms. Frechette's car was in the southbound lane, perhaps 100 feet away, "fishtailing a little bit" (i.e., the back end was swaying) in a snowdrift (id., pp. 56, 65-66). He applied the brakes on his pickup truck for a moment, slowing down in order to keep his vehicle under control, which he said he was able to do without difficulty. At no time did Mr. Cahoon's vehicle skid (id., pp. 56-58, 67, 70-71, 138, 141).
Mr. Cahoon said that he did not drive over 40 mph that morning because of the drifting snow, which, elsewhere in his testimony, he described as typical winter driving conditions (Ex. 144, pp. 104, 108). However, crash data retrieved from the Silverado indicated that the Cahoon pickup truck actually was traveling at 52 mph five seconds before the accident, the brakes were applied at two seconds before impact, and the speed was 50 mph, both at one and two seconds before the accident (Ex. 46, p. 10).
Then, Mr. Cahoon saw the front end of Decedent's car swing out in front of his vehicle, then back into her lane, and then cross back into his lane, and that is when the accident occurred (Ex. 144, pp. 56, 68). At no time did Decedent's vehicle appear to Mr. Cahoon to be under control (id., p. 114). Ms. Frechette attempted to correct her vehicle, but overcorrected so that her vehicle rotated in a counterclockwise direction across the yellow line into the northbound lane, where it was struck by Mr. Cahoon's truck (Ex. 44, pp. 1-2 [Accident Report]; see Ex. 46, pp. 3, 8 [NYSP Report]; Ex. 145, pp. 22-24 [Ms. Borrie]). He agreed that the diagram attached to the Accident Report fairly and accurately depicts the movements of Decedent's vehicle prior to the impact (Ex. 144, p. 99; see Ex. 44, p.2). The NYSP Report described the motion of Decedent's vehicle as a "side-slide" (Ex. 46, p. 8).
The point of impact was between the passenger side of Decedent's vehicle and the front driver's side of the Cahoon vehicle. The accident was a "T-bone" type collision (Ex. 46, p. 8 [NYSP Report]). Decedent's Honda was equipped with air bags that did not deploy (Ex. 46, p. 9). Ms. Frechette was wearing a lap belt/harness, but died in the accident as a result of internal injuries (Ex. 44, p. 1, Boxes, 10 & 16 [Accident Report]; Ex. 46, pp. 9-10). Both vehicles were demolished (Ex. 44, p. 1; Ex. 144, p. 21 [Cahoon]).
Mr. Gonyea said that a northbound DOT snowplow came upon the scene about five minutes after he did (Ex. 146, pp. 35-36). Mr. Trombley said he arrived as he was making his next northbound run, at about 8:15 a.m. (Ex. 148, pp. 45, 47-48; see Ex. 54, p. 2 [Trombley Daily Report]). Mr. Gonyea stayed at the scene less than 15 minutes, only until first responders arrived (Ex. 146, pp. 37, 42). He did not see anyone slip or slide at the accident scene (id., p. 37).
The NYSP Report states that an "inspection of the roadway and surrounding area revealed no roadway defects, which would have contributed to this collision … There was no visible roadway evidence indicating pre-impact braking for either vehicle" (Ex. 46, p. 5). Tires on each vehicle were examined and found to have adequate tread depth and tire pressure, with the exception of the right front tire of Decedent's Honda, and the left front tire of Mr. Cahoon's Chevy Silverado, each of which was flat from the collision forces (id., pp. 6, 8).
The NYSP Report concluded that the primary cause of the collision was Decedent operating her Honda at a speed greater than the available friction to maintain control and side-sliding into the northbound lane, colliding with the Cahoon vehicle (Ex. 46, p. 12). The Accident Report, similarly, lists Decedent's unsafe speed, as well as slippery pavement, as apparent contributing factors to the accident. No contributing factors are attributed to Mr. Cahoon (Ex. 44, p. 1, Boxes 19-22).The Accident Scene
Mr. Parker and Mr. Sorrell each arrived at the scene within an hour of the accident (Ex. 147, pp., 151-152 [Parker]; Ex. 157, p. 22 [Sorrell]). Each took photographs at the accident scene (Ex. 147, pp. 155, 157, 160 [Parker]; Ex. 157, pp. 28-30 [Sorrell]). Each agreed that the photographs that are Exhibits 25-43 (except as discussed below for Mr. Sorrell) are fair and accurate depictions of the conditions at the accident scene (Ex. 147, pp. 188-189 [Parker]; Ex. 157, pp. 30, 32, 34-45 [Sorrell]; see Exs. 25-43). Mr. Sorrell was not asked if Exhibit 32, a photograph of the air and road temperature readings taken from his truck, was true and accurate (Ex. 157, pp. 37-38). With respect to Exhibit 37, Mr. Sorrell said only that it "could" be a fair and accurate depiction (id., p. 45). Mr. Parker also said that the condition of the roadway was as depicted in the photograph that is Exhibit 10 (Ex. 147, p. 153). Mr. Sorrell agreed that some type of snow is visible covering the southbound lane of SR 9 in the photograph that is Exhibit 26 (Ex. 157, pp. 33-34).
The exhibits Mr. Parker and Mr. Sorrell discussed at their respective EBTs correspond to Exhibits 25-43 at trial (see Ex. 147-A [Parker]; Ex. 157-A [Sorrell]).
Mr. Cahoon, likewise, agreed that various other photographic exhibits fairly and accurately depict the accident scene, the roadway, the damage done to the vehicles, and/or the positions where they came to rest (Ex. 144, pp. 61, 63, 78-84; see Exs. 1-10, 12-24 [Photos]). However, he said that he did not remember such a solid cover of snow on the roadway as is depicted in Exhibit 12. Rather, he said that the snow was more "patchy," with clear portions of pavement alternating with areas with snowdrifts (Ex. 144, pp. 87-89). He did not see any ice on the highway, but did not know if there was any under the snowdrifts. He could not recall if he saw any wet pavement (id., pp. 140-141, 146). He did not see any other vehicles that appeared to have gone off the road (id., p. 141).
The exhibits Mr. Cahoon discussed at his EBT correspond to Exhibits 1-10, 12-24 at trial (see Ex. 144-A).
Initially, Mr. Gonyea was unable to say that the photographs that are Exhibits 10 and 12 fairly and accurately depict the areas of drifting snow that he observed over the last 20 years because he had no memory, or had not taken notice of them, but later said any drifting snow would have been similar to what was depicted (Ex. 146, p. 64). He did agree, however, that Exhibits 10 and 12 fairly and accurately depict the location of the vehicles at the accident scene (id., p. 62).
The exhibits Mr. Gonyea discussed at his EBT correspond to Exhibits 10 & 12 at trial (see Ex. 146-A).
Mr. Altschule is a certified consulting meteorologist (Tr., p. 64). Based upon his review of weather data and records from several sources (id., pp. 70-73; see Ex. 60, pp. 1-11 [U.S. Government weather records]; Exs. 61-84 [Doppler radar images]), as well as sound scientific principles in the field of meteorology, and his training and experience, Mr. Altschule opined that approximately 19 inches of snow and ice were on the ground from previous snowfalls on exposed, untreated, and undisturbed, surfaces in the fields adjacent to SR 9 at the time of the accident (Tr., pp. 99-100, 104, 115; see Ex. 28 [photo of accident scene]). He further opined that photographs of the accident scene evidence that the west/northwest wind deposited blowing and drifting snow from the adjacent fields onto the roadway (Tr., pp. 83-89, 121; see Exs. 6, 6-A [photo looking southbound with snow visible on western 3/4ths of the roadway (right side of photo), but not the easternmost (left) 1/4 of the highway]; Tr., pp. 89-90; Ex. 8 [Altschule said the road appears to be on an incline in the photo where snow was blown/drifted across more of the roadway, indicating higher wind speeds toward the top of Collins Hill]; Tr., pp. 91-93; Exs. 9, 9-A, [Mr. Altschule said that trees reduced the wind's speed, resulting in less snow on roadway]; Tr., pp. 93-96; Exs. 10, 10-A, 12, 14, 14-A [photos looking northbound with snow again visible on west side of roadway (left side of photo)]; Tr., pp. 98-100; Exs 28, 28-A [Altschule circles indicate what he believed to be areas of blowing snow visible in the photograph]). Mr. Altschule opined that the windy conditions around the time of the accident "were sufficient to cause blowing and drifting snow" as seen in the photographic exhibits (Tr., p. 106) and noted the NYSP Report, which states that "[s]now from the fields drifted onto the southbound lane of traffic due to cross winds" (id., p. 118; Ex. 46, p. 12). He agreed, however, that he did not know how long after the accident the photographs were taken that are Exhibits 6, 9, 12, 14, and 28, and that the wind continued to blow during that period (Tr., pp. 116-118).
To the Court's mind, Exhibit 9 appears to be the same scene as depicted in Exhibit 6, magnified to zoom in on the vehicles visible on the roadway.
To the Court's mind, Exhibit 10 appears to be the same scene as depicted in Exhibit 12, magnified to zoom in on the vehicles visible on the roadway.
History of Drifting Snow at Accident Location
Mr. Trombley, Mr. Parker, Mr. Sorrell, Mr. Docteur, Ms. Borrie, and Mr. Gonyea, each was familiar with the portion of SR 9 where the accident occurred and each agreed that it was prone to blowing and drifting snow on a regular basis.
Mr. Trombley agreed that he has observed drifting and blowing of snow in both lanes of
SR 9 in that area, more frequently in the southbound lane (Ex. 148, pp. 19, 24, 68-69). He further agreed that it was a recurrent condition, adding that "[e]very time the wind blows, it's in the same spot every year" (id., p. 19). He did not believe, however, that the area was prone to icy conditions (id., p. 20).
Mr. Parker, similarly, agreed that blowing and drifting snow occurs on a regular basis along Beat 5P, including the accident location, although he also said that area was "[n]ot necessarily" a "drift spot" (Ex. 147, pp. 69-71, 82, 86). He further explained that "[p]eople look at drifts differently. I see deep drifts and then there is just a little bit of drifting. What we call drifting is an inch or two inches on [the road]. It depends on how you define a drift. There are no big drifts on that road" (Ex. id., p. 102).
Mr. Sorrell said that, sometimes, snow covered both lanes of the roadway but, at other times, only one lane (Ex. 157, pp. 10, 12-13, 34). He also said that the area depicted in Exhibit 26 at the accident scene is an area prone to blowing and drifting snow (id., pp. 33-34).
When asked about drifting of snow in the Collins Hill area, Mr. Docteur said that "[a]ll of Route 9 drifts," including in that area (Ex. 151, p. 23).
Ms. Borrie traveled that roadway two or three times a week prior to February 24, 2007 and agreed, based upon that experience, that the portion of SR 9 within 1/4 mile of the crest of Collins Hill is prone to frequent, recurring occasions of drifting snow (Ex. 145, pp. 10-12, 54-55), noting that there "[a]lways" is blowing snow in that area, usually where there are open fields adjacent to the highway (id., pp. 11-12), although, she also said that snow blowing onto the roadway from adjacent fields is common in the North Country (id., p. 35).
Mr. Gonyea drove that portion of SR 9 three or four times per week prior to the accident during the winter of 2007 (Ex. 146, pp. 7, 10). On this point, his testimony was somewhat confused. Initially, he could not recall observing any blowing or drifting snow in the area of the accident during the two years prior to the accident (id., pp. 10-11). Later, however, he agreed, based upon his 20 years of experience traveling SR 9 in the area of Collins Hill, that the area with the open fields was prone to frequent drifting snow (id., pp. 46-47). Snow Fences/Shelterbelts (Living Snow Fences)
There were no snow fences, shelterbelts, trees, or natural snow breaks, on either side of SR 9 in the area of the accident, prior to February 24, 2007 (Ex. 144, p. 39 [Cahoon]; Ex. 147, pp. 71-72 [Parker]; Ex. 148, p. 58 [Trombley]; Ex. 157, p. 13-14 [Sorrell]; Ex. 46, p. 3 [NYSP Report]). Mr. LaFrance did not request, and did not recall any consideration having been given to, erecting snow fences or living snow fences in that area, or flattening Collins Hill, during his tenure as DOT's Resident Engineer in Clinton County from March 2006 to July 2007 (Ex. 150, pp. 11-12, 57-58, 72-73). Similarly, Mr. Powers and Mr. Parker could not recall/were not aware of DOT erecting snow fences in Clinton County during that period (Ex. 152, pp. 76-77 [Powers]; Ex. 147, p. 180 [Parker]). Mr. Powers did remember discussions about installing snow fences along SR 9 at some time, but did not know when those talks occurred, or what area was under discussion (Ex. 152, pp. 75-76).
Mr. Docteur, the Resident Engineer in Clinton County from 1999 to 2005, did not recall getting complaints about Collins Hill while he was the Resident Engineer (Ex. 151, pp. 52-53). He also did not recall whether installation of a snow fence was discussed (id., p. 55). However, Mr. Docteur also said that he is "not a proponent" of snow fences because they are costly, very large, need to be 700 feet from the road, and require rights-of-way (id.). Moreover, he said that other places would have had priority for the erection of a snow fence over the Collins Hill area, including an area south of the Wolter Accident location (see below) where "the snow blew harder" (id.). Even so, he said that snow fences are rarely used by DOT (id., p. 56). Mr. Powers, likewise, thought they are "[n]ot really" a cheap solution to blowing and drifting snow conditions because they need to be erected well away from the highway, often in the middle of farm fields, and it can be difficult to position them in relation to the directions from which the winds blow (Ex. 152, p. 76). He could not recall snow fences being used in that DOT region at that time (id., pp. 76-77). Mr. Docteur, similarly, said that he would not have recommended a living snow fence at that time at that location because, in his view, there was not a blowing snow issue. Rather, he was concerned about any propensity for black ice to form at the top of Collins Hill (Ex. 151, p. 57). Neither Mr. Docteur, nor Mr. Cook, was aware of any study of winter conditions having been done at that location (id., p. 59 [Docteur]; Ex. 159, p. 64 [Cook]). Mr. Percy was unaware of any discussions to place snow fences, living snow fences, or flattening Collins Hill, after the Wolter Accident (discussed below) (Ex. 153, p. 74).
Signage
Prior to February 24, 2007, Mr. Parker and Mr. Sorrell each was unaware of any warning signs on southbound SR 9 in the area of the accident about drifting and blowing snow (Ex. 147, p. 179 [Parker]; Ex. 157, p. 49 [Sorrell]).
Prior Complaints About Blowing/Drifting Snow
Mr. LaFrance, Mr. Parker, Mr. Sorrell, and Mr. Drollette, each was unaware of any oral or written complaints to DOT, prior to February 24, 2007, about blowing and drifting snow in the area of the accident location (Ex. 150, pp. 42-43, 45 [LaFrance]; Ex. 147, pp. 73, 77 [Parker]; Ex. 157, p. 18 [Sorrell]; Ex. 149, p. 52 [Drollette]). Mr. LaFrance, additionally, was unaware of any complaints about icy conditions at the accident location. Mr. Percy, similarly, testified that he did "not recall any pattern of accidents that involved blowing and drifting snow or a vehicle hitting a snowdrift and losing control at that location" (Ex. 153, pp. 59-60).
THE EXPERTS
Mr. Hoffman is a professional engineer licensed in New York, Massachusetts, and Pennsylvania, a land surveyor licensed in New York, and a Fellow of the National Academy of Forensic Engineers (Tr., pp. 131-132; see Ex. 87 [CV]). He related his direct experience with, and participation in, snowplow operations from his time serving in the U.S. Army, and working for the municipalities of Troy, Mechanicville, and Stillwater, New York (Tr., pp. 139-142).
Mr. Logan is a professional engineer licensed in New York, and worked for DOT from 1970 until 2005 (Tr., pp. 465, 470-471; see Ex. A [CV]). From 1977 to 1993, he was head of the traffic and safety group's operations unit in DOT Region 1 (covering eight counties from Greene in the south, to Essex in the north), which responded to public complaints about traffic flow and safety (Tr., pp. 465-467). As supervisor, he tracked each complaint and, after his staff studied the issue, a response was sent to the complainant (id., p. 468).
Site Inspections
Mr. Logan visited the accident site on December 10, 2012 with a DOT employee, during which he made observations, field measurements of the roadway, and took photographs (Tr., pp. 472-473, 476, 533). Mr. Hoffman inspected the accident site on March 24, 2013 and also took certain field measurements, examined the adjacent topography, and took a number of digital photographs (Tr., p. 161, 164; see Ex. 88 [photo log]; Exs. 89-116 [enlargements of individual photos]). Experts' Review
Mr. Logan testified that his computer was hacked in 2012 and he lost most of his files, including measurements he made during his site visit, notes that he made, and most of the photographs he took, with Exhibits B and C constituting only two of those pictures (Tr., pp. 531-532).
Mr. Hoffman reviewed court papers, EBTs, Mr. Logan's affidavit from Defendant's earlier motion for summary judgment, police reports, accident reports for the collision site, witness statements, manuals, and internet reference materials, including: the 2006 State Manual (see Ex. 56); the Strategic Highway Research Program (hereinafter, "SHRP") 1994 Design Guidelines for the Control of Blowing and Drifting Snow (see Ex. 137 [hereinafter, the "1994 SHRP Guidelines"]); and the American Association of State Highway and Transportation Officials' (hereinafter, "AASHTO") Maintenance Manual for Roadways and Bridges 2007 (see Ex. 136 [hereinafter, the "2007 AASHTO Manual"]) (Tr., pp. 144-145, 172-173, 180, 218-220, 224).
Admitted into evidence for the limited purpose of showing a link in the chain of data relied upon by Mr. Hoffman in forming his opinions, and not for the truth of the matters set forth therein (Tr., pp. 177-179).
Admitted into evidence for the limited purpose of showing a link in the chain of data relied upon by Mr. Hoffman in forming his opinions, and not for the truth of the matters set forth therein (Tr., pp. 219-220).
Mr. Hoffman stated that he used the 2006 State Manual, 1994 SHRP Guidelines, and 2007 AASHTO Manual, in forming his opinions because he believed them to be "the most definitive documents available to engineers charged with the responsibility of designing or controlling snow removal and ice removal operations," and that he knew "of no other guides that better express what [constitutes] a reasonably accepted practice" (Tr., p. 221). In particular, Mr. Hoffman said that the 2007 AASHTO Manual describes the 1994 SHRP Guidelines as a "comprehensive guide to designing and installing snow fences" (id., pp. 220-221; Ex. 136, p. 91), and added that he knew of "no other document that concerns itself with snow blowing and drifting and ice operations that is [as] definitive as" the 1994 SHRP Guidelines (Tr., p. 223).
The reference in the 2007 AASHTO Manual actually refers to a 1991 Snow Fence Guide by Ronald D. Tabler for SHRP (see Ex. 163 [hereinafter, the "1991 Tabler Snow Fence Guide"]) (see Ex. 136, pp. 91, 120 fn 108).
Mr. Logan, likewise, reviewed various documents related to the Claim, including EBTs, and discovery responses (Tr., p. 472). He did not, however, interview anyone from DOT concerning their personal experiences with drifting snow on SR 9 in the area where the accident occurred including, specifically either Mr. Trombley, or Mr. Parker (id., pp. 532, 554). He did not speak with neighbors in the surrounding area about any accidents they might have recalled (id., pp. 565-566). He was not aware of anyone from DOT taking photographs or measurements in the area of the accident between 2003 and the time of his site visit in 2012, but did say that someone looked at traffic signage there (id., pp. 566-568; see Ex. 142). He did not prepare a report concerning his site inspection (Tr., p. 532).
Mr. Logan said that, while AASHTO guidelines, the 2003 Tabler Report, and National Cooperative Highway Research Program (hereinafter, "NCHRP") publications all are reference materials that provide helpful information, their contents are not binding, or otherwise mandatory, on DOT operations (Tr., pp. 522-524; see Ex. 162).
ACCIDENT HISTORY
Mr. Hoffman and Mr. Logan each reviewed the accident history at or near RM 3059. Five accidents, including Decedent's, took place at that exact reference marker (see Ex.120). Specifically, on January 10, 1997, a southbound vehicle lost control and spun into the northbound lane. A northbound vehicle crested the hill, "slid on snow covered roads," and struck the first vehicle. It was snowing at the time of the accident (Tr., pp. 153-154 [Hoffman], 504 [Logan]; Ex. 120, pp. 2 [including Box 7 (weather conditions)], 6 [key to box annotations], 18 [DOT Accident Verbal Description Report for the period from January 1, 1990 through December 31, 2007 for SR 9 between RM 3049 and RM 3069 (i.e., one mile in either direction from Decedent's accident location) (hereinafter, the "1990-2007 DOT Accident Report")]; Ex. 58, p. 22) (note common case number 7116900 in some of these entries) (hereinafter, the "Tromblee Accident"). Two accidents occurred on February 1, 1997. In the first, at about 6:25 p.m., a northbound vehicle "lost control … on ice covered roads," went off the road and traveled down an embankment, in weather reported as snow, sleet, hail, and/or freezing rain (Tr., pp. 157 [Hoffman], 505-506 [Logan]; Ex. 120, pp. 6-7 [including Box 7], 18; Ex. 58, p. 16) (note common case number 7155551 in some of these entries) (hereinafter, the "Kurtz Accident"). The 1990-2007 DOT Accident Report also relates that the Kurtz Accident involved a "Rock Cut" (Ex. 120, p. 18). In the second, which occurred shortly after the Kurtz Accident at about 6:30 p.m. and under the same weather conditions, a northbound vehicle "lost control on ice covered road" when it braked after seeing the Kurtz vehicle over the embankment, and traveled into the southbound lane, striking another vehicle (Tr., pp. 154-157 [Hoffman], 505-506 [Logan]; Ex.120, pp. 3 [including Box 7], 4-6, 18; Ex. 58, pp. 17-21) (note common case number 7100160 in some of these entries) (hereinafter, the "Wolter Accident"). On February 13, 2004, a vehicle "lost control on a patch of slush" and spun around, and struck a fence during clear weather (Tr., p. 158 [Hoffman], 510-511 [Logan]; Ex. 120, pp. 11 [including Box 7], 14 [box annotation key]; Ex. 58, p. 25) (hereinafter, the "Astleford Accident").Decedent's accident occurred on February 24, 2007 when she lost control of her southbound vehicle "in [a] snowdrift on [the] roadway," traveled into the northbound lane, and was struck by a northbound vehicle. The weather was cloudy (Tr., pp. 158-159 [Hoffman]; Ex. 44 [Accident Report]; Ex. 120, pp. 12 [including Box 7], 13-14, 19).
Another accident at RM 3059 took place on May 6, 1997. No police report for this accident was included among the exhibits and the experts did not discuss it. The 1990-2007 DOT Accident Report states that a northbound vehicle went off the road in snowy weather with snow and ice on the roadway. Like the Kurtz Accident and the Favro Accident (discussed below), the 1990-2007 DOT Accident Report relates that this accident involved a "Rock Cut" (seeEx. 120, pp. 18-19).
The police report for the Astleford Accident does not indicate a case number, and it is not included in the 1990-2007 DOT Accident Report (see Ex. 120, pp. 18-19).
In addition to the five accidents referenced above, Mr. Logan reviewed four others that occurred nearby. Specifically, on November 19, 1996, a southbound auto rear-ended a stopped vehicle after cresting Collins Hill while it was snowing, at RM 3058, or 1/10th of a mile south of (i.e. beyond) the location of Decedent's accident, so that Ms. Frechette never traveled on that portion of SR 9 (Tr., pp. 501-503; Ex. 120, pp. 1, 18-19; Ex. 58, pp. 14, 24) (note common case number 6676093 in some of these entries) (hereinafter, the "Hubbell Accident"). Two accidents occurred on February 2, 1999. In the first, at about 6:45 a.m., a southbound vehicle lost control because of ice on the roadway shoulder and struck an embankment. The last digit of the RM in the police accident report is illegible, but the 1990-2007 DOT Accident Report indicates that it also occurred at RM 3058 (Tr., pp. 507-508; Ex. 120, pp. 8, 17; Ex. 58, pp. 2, 5) (note common case number 9159706 in some of these entries) (the "Favro Accident"). The 1990-2007 DOT Accident Report also relates that the Favro Accident involved a "Rock Cut" (Ex. 120, p. 17). In the second, at about 7:45 a.m., a southbound vehicle lost control as it crested Collins Hill and attempted to stop to avoid another vehicle in the roadway during rain with snow and icy conditions. Again, the last digit of the RM is not clear from the police accident report, but, again, the 1990-2007 DOT Accident Report relates that it occurred at RM 3058 (Tr., pp. 508-509; Ex. 120, pp. 9, 17; Ex. 58, p. 2, 4) (note common case number 9160770 in some of these entries) (hereinafter, the "Juneau Accident"). On February 6, 2000, another one-vehicle accident occurred when the operator of a northbound vehicle lost control on a snow-covered roadway and it turned onto its side at RM 3057, or 2/10ths of a mile south of (i.e., beyond) the location of Decedent's accident (Tr., pp. 509-510; Ex. 120, pp. 10, 16; Ex. 58, p. 1) (note common case number 0147053 in some of these entries) (hereinafter, the "Green Accident").
Mr. Logan also reviewed the 1990-2007 DOT Accident Report. He said that such reports are generated by the Department of Motor Vehicles, upon request by DOT, and encompass all accidents for the length of highway and time span under review, including both those for which police reports are filed, as well as accidents that are not required to be reported because the damage to the vehicle is less than $1,000 (Tr., pp. 511-513). He said that none of the listed accidents (with the exception of Decedent's) list blowing or drifting snow as a contributing factor to the accident (Tr., pp. 512-513; see Ex. 120, pp. 15-27). He agreed, however, that the "key" forms for police accident reports do not include blowing and drifting snow among the enumerated choices. Thus, there is no number that corresponds to blowing/drifting snow that can be entered in the box for weather conditions. Mr. Logan said, however, that police officers are trained to include such observations manually (Tr., pp. 554-555). Mr. Hoffman testified that the police accident reports are one factor engineers and management personnel involved in highway construction consider in determining whether or not existing roadways are safe. He noted that weather (including slush, ice, and a snowdrift) was a factor in all five accidents at RM 3059 (Tr., pp. 159-161).
The Court notes that the portion of the 1990-2007 DOT Accident Report included as part of Exhibit 120 is incomplete and missing information. It begins on page 7 of the report (see Ex. 120, p. 15 [top right of page is dated "10/14/08" and, directly underneath states that it is "Page 7" (emphasis supplied)]). Moreover, the first entry on the page contains the continuation of a description of an accident that occurred at RM 3054. Thus, the first six pages of the report are missing, including descriptions of any accidents that may have occurred at RM 3049 through all but the partial description of one accident at RM 3054. Similarly, the final entry on page 11 of the 1990-2007 DOT Accident Report appears to be an incomplete description of a September 16, 2002 accident at RM 3060 (Ex. 120, p. 19 [note that the pre-accident action and apparent factors categories are missing]). Thus, descriptions of any other accidents at RM 3060, as well as any that may have occurred at RM 3061 through and including RM 3069 are missing from the 1990-2007 DOT Accident Report included in Exhibit 120.
By contrast, Mr. Logan opined that, based upon the accident records, including the 1990-2007 DOT Accident Report, he saw no indication of a safety problem with either blowing or drifting snow within the two mile portion of SR 9 between RM 3049 and RM 3069 (Tr., p. 514). In particular, he opined that it was "significant" that he "saw no records of any accidents" in the flat area next to the open fields north of RM 3059 "where the snow would be blowing," and through which Decedent traveled prior to her accident (id., pp. 524-525). By contrast, the conditions south of RM 3059 are, in Mr. Logan's view, "a completely different situation" up on Collins Hill, with trees alongside the road (id., p. 525). Mr. Logan also said that Mr. Hoffman did not review the accident reports in sufficient detail because he failed to recognize that falling snow accounted for the snow on the roadway in each of the accidents (id., pp. 581-582 ).
However, as the Court has noted in its prior footnote, it is possible that the lack of accident history north of RM 3059 may be attributable to missing descriptions for accidents between RM 3060 through RM 3069. The 1990-2007 DOT Accident Report included in Exhibit 120 does not establish, to the Court's mind, that, in fact, there was no accident history for that portion of SR 9.
Mr. Docteur did not believe that there was an accident problem in that area because there were not "very many accidents there … No real correctable pattern" with a "safety history to it" (Ex. 151, pp. 13-14). On one occasion, when he was Resident Engineer, Mr. Docteur requested that the Traffic Safety Office in Watertown, New York study if there was an accident pattern at the location, but that the accident history "didn't show much there" (id., pp. 16-17). The Traffic and Safety Office said that it was not an accident location (id., p. 33).
The Wolter Accident
The Wolter Accident was discussed in detail at trial. Ms. Wolter testified about her familiarity with the portion of SR 9 at or near RM 3059 and the 1997 accident there which resulted in the death of her younger son (Tr., pp. 36-39). About 15 minutes before the accident, Ms. Wolter had driven northbound through the same area. She said that the roadway was wet, but there was no accumulation on the roadway until she crested and then descended the north side of Collins Hill, where it was very icy, with black ice (id., pp. 39-40, 58). She filed two claims against the State on behalf of her sons, and her husband filed a claim against the State for his own injuries (id., p. 44). The Wolters ultimately discontinued their claims, without receiving any monetary award, but they did request a meeting with DOT representatives to see if something could be done to avoid future accidents at that location (id., pp. 44, 59).
On February 13, 2003, Ms. Wolter met with DOT, including Mr. McVoy and Mr. Cook (Tr., pp. 45 [Ms. Wolter], 263-264 [McVoy]; Ex. 158, pp. 18, 20, 31 [McVoy]; Ex. 159, p. 38 [Cook]). Mr. McVoy said that he spoke with Mr. Cook prior to the meeting (Tr., p. 264; Ex. 158, pp. 22, 29). Mr. McVoy agreed that, at that time, he had relatively little experience in the areas of road design and/or maintenance and/or snow and ice removal, and relied upon his subordinates who did possess such expertise, one of whom was Mr. Cook (Tr., pp. 263, 285, 287-288; Ex. 158, pp. 14-15). Mr. McVoy said that Mr. Cook told him that the State was not at fault in the Wolter Accident and that "the road was icy. The plow had been called off its regular beat for some other matter and the tragic accident had occurred" (Ex. 158, p. 23; see Tr., pp. 271, 277). It was Mr. McVoy's understanding that, while accidents, and such diversions, happen all the time across the State, they certainly were exceptions to the normal snow and ice control routine, and it was unlikely to be repeated in that particular area (Tr., pp. 277, 289-290).
Mr. McVoy said that his primary purpose in meeting with Ms. Wolter was to give comfort to grieving parents who wanted someone to listen to them, and sought some assurance that DOT would look at the site and do anything that might be appropriate to make it more safe (Tr., p. 266; Ex. 158, pp. 39-40, 64). Mr. Cook, similarly, recalled the meeting as "an airing for the parents," an opportunity for them to meet with DOT officials to complain about the condition of the roadway where their son died (Ex. 159, pp. 34, 40).
Ms. Wolter said that the erection of snow fences, using trees as natural wind barriers, and the installation of warning signs, with the "ultimate goal" being to dig out Collins Hill, all were discussed at the meeting (Tr., pp. 47-48). She also gave DOT the names of adjacent landowners who would allow snow fences to be erected on their property (id., pp. 50-51). Mr. McVoy and Mr. Cook each agreed that Ms. Wolter did most of the talking at the meeting (id., p. 274 [McVoy]; Ex. 159, p. 44 [Cook]). Their recollections of the meeting were not as vivid as those of Ms. Wolter, but neither of them disputed the gist of the conversation as she related it, although neither had a clear memory that snow fences, or planting trees, were discussed, nor did Mr. Cook recall blowing snow to be among her concerns (Tr., pp. 274-275; Ex. 158, pp. 41-42 [McVoy]; Ex. 159, p. 48-50, 56 [Cook]). However, Mr. McVoy said that, afterwards, he discussed planting trees with Mr. Cook who, as the expert familiar with the local terrain, discounted the suggestion as impractical (Tr., p. 275). Mr. McVoy and Mr. Cook also said that Ms. Wolter might have provided the names of landowners, but Mr. McVoy did not speak with any of them, and Mr. Cook could not recall having done so (id., pp. 276, 280; Ex. 158, p. 44 [McVoy]; Ex. 159, pp. 46-47 [Cook]). It was Mr. Cook's sense that Ms. Wolter was "throwing out every possibility that she could think of" as to what she thought could be done (Ex. 159, pp. 48-50).
Mr. Cook said that, after the meeting, he asked the then-Resident Engineer, Mr. Docteur, to "look into" the Wolters' concerns and "see … if there's … anything to it" (Ex. 159, p. 59). He did not recall whether he spoke to Mr. Docteur again about the matter (id., p. 60). Mr. Docteur said, however, that sometime after Mr. Cook and Mr. McVoy met with the Wolters, he and Mr. Cook drove the roadway in that area to see if any improvements could be made (Ex. 151, p. 36). They discussed reconstructing the road, but Mr. Docteur could not justify the expenditure given the low number of accidents there (id., pp. 39-40, 43). He testified that, at some point during his tenure as Resident Engineer, the guide rail on Collins Hill was upgraded to a cable so that the wind could blow through it (id., pp. 51-52). Mr. Cook could not recall Mr. Docteur having done anything else in terms of evaluating the Wolters' concerns at that location (Ex. 159, p. 64).
Mr. McVoy had a vague recollection of discussing the Wolter Accident again with Mr. Cook after the latter visited the accident site, but Mr. Cook did not think much of anything was to be done, other than perhaps erecting some sort of warning sign (Tr., pp. 272-273). Mr. Cook said that, sometime between the meeting with the Wolters in 2003 and Decedent's accident, an icy pavement zone sign was installed at the location (Ex. 159, p. 69). Mr. McVoy said that he did not see any reason, after the Wolters' meeting, to direct DOT's engineers to look into the matter further (Ex. 158, p. 52). He said that he relied upon the assurances of DOT engineers that "there was nothing to be done to make this area safer" (Ex. 158, p. 54; see Tr., pp. 275, 277). He also noted that Ms. Wolter was not a civil engineer, a traffic expert, or an expert on snow and ice (Tr., p. 277).
TRAFFIC STUDIES
In General Mr. Hoffman said that the basic elements of a traffic study include a review of: accident histories; photographs; topographic maps; crash analyses; police reports; testimony from local authorities; interviews with accident witnesses and local residents; input from public works staff (in this case, including snowplow operators); media reports; and a review of the adequacy of signage, street lighting, and striping on the roadway (Tr., pp. 212-216). He said that they typically are 50 pages or more in length (id., p. 214).
Mr. Logan said that a similar study or evaluation process is used whenever a request or complaint is received, and no matter the author or source (Tr., p. 518). In each case, police accident reports for the location are examined to see if there is a significant pattern of accidents that needs to be addressed and, if so, whether it can be handled through highway maintenance, or whether a contractor needs to be retained (id., pp. 517-518). The length and format of those reports varies from a phone call, to a written response of anywhere between a few paragraphs to several pages, depending upon the nature of the complaint and the study it generated (id., pp. 468, 518-519).
Mr. Percy, as Regional Traffic Engineer, oversaw, among other areas, a traffic studies/operations unit. He said that, when the unit conducts a study, it typically evaluates the accident history at the location and makes a site inspection to document roadside conditions. Generally, some sort of written report is generated as a result of the study with the unit's conclusions and any recommendations, although those reports can take many forms, including memoranda and emails (Ex. 153, pp. 10-12, 14, 16).
Three DOT Maintenance Supervisors were unaware that any traffic study was done prior to February 24, 2007 with respect to SR 9 in the area where the collision occurred (Ex. 147, p. 139 [Parker]; Ex. 149, p. 51 [Drollette]; Ex. 157, pp. 16-17 [Sorrell]). As for the two Resident Engineers, Mr. Docteur was unaware of any study of winter conditions having been done at that location (Ex. 151, p. 59), while Mr. LaFrance, similarly, was unaware of any study of roadway conditions at the Wolter accident location (Ex. 150, p. 36).
The DOT snow and ice manager, Mr. Lashmet, also agreed that he never studied or evaluated the area on SR 9 where Decedent's accident occurred, nor was he aware of anyone else having done so, including: the particular risk of drifting or windblown snow there; whether it was a blow-over location; whether there was a known problem of drifting snow there; and whether or not a snow fence would be appropriate there (Tr., pp. 437-438, 443-445). Mr. Lashmet further agreed that the question of how to address blow-overs requires a site-specific analysis, and that neither he, nor anyone else that he knew of, looked at issues there, including: the accident or crash history; right-of-way considerations; historical weather and wind speed data; and topographical data (id., pp. 438-442). Mr. Lashmet agreed that not every site is amenable to a snow fence (id., pp. 449-450). On cross-examination, he said that, prior to February 2007, he did not make a site visit to that location, or speak with maintenance personnel, or others familiar with that place, to determine if there was a specific problem during the winter months, nor was he aware of anyone else having done so (id., p. 441). Prior to February 2007, neither he, nor anyone else he was aware of, used the DOT computer system for automatically designing snow mitigation measures (including snow fences), called "SnowMan," to determine if that location required a snow fence, or filled out an evaluation checklist like the one contained in an August 2003 report by Ronald D. Tabler, Controlling Blowing and Drifting Snow with Snow Fences and Road Design, prepared for the NCHRP and the Transportation Research Board of the National Academies (see Ex. 162, hereinafter, the "2003 Tabler Report"]) (Tr., pp. 430, 442-443, 460). Likewise, prior to February 2007, Mr. Lashmet did not do, nor was he personally aware of the State having done, any study of SR 9, or the area at or near Collins Hill, nor did he ever instruct anyone to do so to determine if there was a specific hazard (id., p. 446). Mr. Lashmet agreed that he has no personal knowledge as to whether or not SR 9 in the area of Collins Hill is prone to recurrent drifting snow, or is a blow-over location, nor had he discussed such matters with anyone in the DOT residency prior to February 2007 (id., pp. 447-448).
DOT's Regional Director of Operations, Mr. Cook, said that he spoke with the then-Resident Engineer, Mr. LaFrance, about Decedent's accident (Ex. 159, p. 83). Mr. Cook agreed that, Mr. LaFrance's duties primarily related to maintenance, snow removal, and would have included the placement of snow fences, and, along with the Traffic Engineer, the evaluation of dangerous conditions on the roadways (id., pp. 85-86). Mr. Cook said that, neither he, nor, as far as he was aware, anyone else on his behalf, ever looked into the accident history in that area prior to Decedent's accident (id., p. 86).
Specific Prior Traffic Studies
Three DOT responses to inquiries/complaints that preceded Decedent's accident about conditions on SR 9 in the area of Decedent's accident were discussed at trial. Mr. Hoffman opined that they did not constitute adequate traffic studies (Tr., p. 225). By contrast, Mr. Logan said that he had seen documents showing that DOT conducted studies that entertained and passed upon the very same question of risk at issue in the Claim, mainly recurrent drifting and/or blowing snow at the accident site (id., p. 583). He cited DOT's investigation of accidents because, he said, recurrent drifting and/or blowing snow is the primary consideration in determining if a snow fence is needed, even if DOT "may not have been looking at the [accident history] for that reason, but [he has] seen those accident records," which include the documents that are Exhibits 58, 120, 125, 127, and 142 (id., pp. 583-584). He said that any safety-related complaint automatically results in a review of accidents (id., p. 589).
1997 NYSP Complaint About Black Ice on Collins Hill
In 1997, DOT received a complaint from the NYSP that Collins Hill was subject to black ice formation at its crest on SR 9 between RM 3056 and RM 3060 (see Ex. 57, p. 17; Ex. 122, p. 1). Mr. Percy recalled visiting Collins Hill to investigate the NYSP complaint (Ex. 153, pp. 18-20). He and Mr. Powers each said that Mr. Percy then drafted a May 21, 1997 memorandum from Mr. Powers to M.J. Rose, the Transportation and Maintenance Engineer in the Clinton County residency (Ex. 153, pp. 18-20, 22-23 [Percy]; Ex. 152, pp. 21, 33 [Powers]; see Ex. 57, pp. 17-18; Ex. 122). The memorandum states that, upon review, no reason could be identified to account for the apparent icing problem at that location (Ex. 57, p. 17; Ex. 122, p. 1). Nevertheless, it also requests that Mr. Rose's crew install Icy Pavement Zone signs on northbound SR 9 about 900 feet south of RM 3056 (i.e., facing northbound vehicles), and on southbound SR 9 about 900 feet north of RM 3060 (i.e., facing southbound vehicles), a portion of SR 9 that includes the accident site (Ex. 57, p. 17; Ex. 122, p. 1).
Mr. Powers did not know if he received any other complaints about icing problems at the crest of Collins Hill (Ex. 152, p. 25). He did not know if the surrounding area was examined during the site visit to determine if conditions, such as open fields adjacent to the highway, were causing the icing condition, but Mr. Percy said that they were not because there is no "specific cause and effect between an open field and the formation of black ice," and, moreover, there are "countless miles of highway with open fields" in northern New York without any assertion that black ice formed on them (id., p. 29 [Powers]; Ex. 153, pp. 26-27 [Percy]). Mr. Powers said that the field review/site visit mentioned in the memorandum was a traffic study (Ex. 152, pp. 35-36). He did not recall if any other studies were done in that area (id., p. 37). Mr. Logan agreed that the issue of black ice on Collins Hill had nothing to do with blowing snow (Tr., pp., 586-587).
1999 Town of Beekmantown Request to Reconstruct Collins Hill
On May 7, 1999, the Supervisor of the Town of Beekmantown wrote to DOT requesting that the Collins Hill area on SR 9 be reconstructed to make it safer because there had been several accidents in that vicinity (Ex. 57, pp. 19, 22; Ex. 124).
In response, Mr. Powers wrote a one paragraph memorandum, dated May 18, 1999, to Regional Construction Engineer, E.F. Mancini (Ex. 152, pp. 41, 78-79; Ex. 57, p. 20; Ex. 125). The memorandum, based upon a review of the accident history for a ½ mile portion of SR 9 that includes Collins Hill for the most recent five years of accident history available, concludes that the accident rate there was less than the Statewide average for the comparable class of two-lane rural highways (Ex. 152, p. 43; Ex. 57, p. 20; Ex. 125). Mr. Powers further explained that DOT's capital program includes amounts for safety projects but, as the memorandum recites, work at Collins Hill could not be justified from a safety standpoint (Ex. 152, pp. 44-46; Ex. 57, p. 20; Ex. 125). On June 4, 1999, DOT's Regional Director wrote to the Supervisor of the Town of Beekmantown to share those conclusions, and to state that Mr. Docteur had been asked to review that portion of SR 9 for his recommendations, and, further, that DOT would evaluate the need to correct that section of highway when it developed its next capital program (Ex. 127).
Mr. Powers also testified that the handwritten notes on the memorandum were made by him and contain a fractional equation by which he obtained the accident rate for that portion of SR 9 (Ex. 152, p. 45; see Ex. 57, p. 20; Ex. 125). The numerator contains the eight total accidents noted in the typed portion of the memorandum, multiplied by one million (because the rate is stated in terms of accidents per million vehicle miles). The denominator includes the daily average traffic volume for that portion of highway (2,610), multiplied by 365 days per year, multiplied by five years (the period of the accident history review), multiplied by 0.7 mile (the length between the reference markers on the portion of SR 9 that was the subject of the review) (Ex. 152, p. 47; Ex. 57, p. 20; Ex. 125). Mr. Powers could not recall why the accident history review encompassed a 0.7 mile section of SR 9, as opposed to some other length of roadway (Ex. 152, p. 48). The result, 2.41 accidents per million vehicle miles, was below the stated Statewide average for two lane rural highways, which was 2.8 accidents per million vehicle miles (id., p. 49). Mr. Powers said that the backup documentation to support such a memorandum is not always retained (id., pp. 50-51).
Mr. Powers did not explain why the typed portion of the memorandum states that the accident history for a ½ mile section of SR 9 was evaluated, while he asserted that accidents were examined that occurred within a 0.7 mile area. By the Court's own reckoning, if the ½ mile figure is correct, then the accident rate would be 3.4 (8,000,000 [8 x 1,000,000]/2,381,625 [2,610 x 365 x 5 x 0.5] = 3.359), or higher than the 2.8 Statewide average stated in the handwritten portion of the memorandum (see Ex. 152, pp. 41, 47-48).
Mr. Powers then was questioned about Exhibit 126 (a table of average accident rates for different classes of State highways based upon data for the period from January 1992-December 1995), which he said is in the same format as the document he consulted to obtain the Statewide average accident rate noted in his handwritten calculation on Exhibit 125 (Ex. 152, pp. 52-53). He agreed that the portion of SR 9 in the vicinity of Collins Hill probably does not include an intersection so that the applicable average accident rate would be the one for non-intersection accidents on two lane undivided and divided rural highways, which, according to Exhibit 126, was 1.93 per million vehicle miles (id., pp. 53-56, 59, 64; Ex. 126, p. 1). The average accident rate for intersection and non-intersection accidents on the same type of highways was, according to Exhibit 126, 2.75 per million vehicle miles (id., p. 58; Ex. 126, p. 1). He could not recall where he obtained the 2.8 Statewide average accident rate cited in his handwritten note, but he believed it might have been included with the accident history that he reviewed (Ex. 152, pp. 60-61, 67). He agreed, however, that the 2.8 rate possibly could have been derived from the intersection and non-intersection category of accidents, in which case, he further agreed, the 2.8 rate might be the incorrect one to use as a basis for comparison. In that case, the accident rate for the portion of SR 9 under review possibly was higher than the applicable Statewide average for the commensurate category of highways (id., pp. 67-70). Even if that were so, however, Mr. Powers said that work at Collins Hill still could not have been justified on safety grounds because, in order to qualify, the accident rate at a location must be significantly higher than the applicable Statewide average. Mr. Powers guessed, based upon his experience, a rate on the magnitude of twice the Statewide average was necessary (id., pp. 70, 74).
Mr. Powers was not aware if, in connection with his May 18, 1999 memorandum, anyone at DOT spoke with people living in the vicinity of Collins Hill about their recollection of accidents there (Ex. 152, p. 71). He was not aware of any action having been taken with respect to that portion of SR 9 after the date of his memorandum (id., p. 71). He said that the memorandum constitutes a study because the accident history was reviewed (id., pp. 72-73).
Mr. Hoffman said that Mr. Powers' 1997 memorandum concerning the NYSP complaint about black ice at the crest of Collins Hill (see above) and his 1999 memo about the accident rate there in response to the Town of Beekmantown request were the only documents offered by Defendant to substantiate that studies had been made (Tr., pp. 210-216, 225). In his view, neither memorandum constitutes an adequate traffic study, noting, in the case of the 1999 memo, that Mr. Powers referred to one calculation as being a guess, and that he used the wrong accident rate and referred to the wrong type of roadway (id., pp. 210-212, 215, 225).
By contrast, Mr. Logan said that the 1999 memorandum was one of the bases for his determination that there is no sufficient accident history associated with blow-overs at that location (Tr., pp. 515-516, 555-556). He was questioned, on cross-examination, about Mr. Powers' testimony concerning the handwritten calculation and said that the Statewide average rate might not have been as accurate if Mr. Powers used the rate for intersection and non-intersection category of accidents, instead of the one for non-intersection accidents only, and agreed that Mr. Powers would be comparing the accident rate on that portion of SR 9 to different Statewide average accident rates, depending upon the category of roadway he selected (id., pp. 557-559). He again said that such studies are not limited in scope to the specific concern expressed by the complainant so that DOT would address any pattern of problems that a study revealed (id., p. 521).
2005 State Senate Inquiry About Wolter Accident
On November 15, 2005, Dennis Pawlicki, the Acting Resident Engineer in Clinton County, received a call from a State Senator's office about the parents of an accident fatality victim on SR 9 north on a hill who wanted to know if anything was being done to address conditions in that area (Ex. 57, p. 1 [Pawlicki email]; Ex. 153, p. 30 [Percy]). DOT linked the inquiry to the 1997 Wolter Accident on Collins Hill between RM 3057 and RM 3059 (which includes the accident location) (Ex. 57, p. 1 [Graham email]).
The Graham email also recites that accident information had been obtained for the period from June 1, 1997 through May 31, 2002, an apparent reference to a DOT Accident Verbal Description Report for that period that is included as part of Exhibits 57, 58, and 120 (hereinafter, the "1997-2002 DOT Accident Report") (Ex. 57, pp. 1, 6-10 [note the case number, 7050204, handwritten at the top of the report]; see also Ex. 120, pp. 20-23; Ex. 58, pp. 7-10]). The 1997- 2002 DOT Accident Report covers the portion of SR 9 between RM 3056 and RM 3060 (i.e., a ½ mile portion of the highway that includes Decedent's accident location at RM 3059). The 1997-2002 DOT Accident Report discusses four accidents, which include the Favro, Juneau, and Green Accidents noted above (see Ex. 57, pp. 6-10; Ex. 120, pp. 8-10; Ex. 58, pp. 1- 2, 4-5 [note case number 7050204 on top of Ex. 58, p. 2, and the case numbers on the Favro, Juneau, and Green Accidents which also appear among the case numbers listed in the descriptions in Exhibits 57, 58, and 120]).
Like the 1990-2007 DOT Accident Report, the portion of the 1997-2002 DOT Accident Report included in the exhibits is incomplete. In this case, it includes no accidents at RM 3059 (see Ex. 57, pp. 6-10; Ex. 58, pp. 7-10). Thus, it omits the May 6, 1997 accident (see footnote 15 above) that is included in the 1990-2007 DOT Accident Report and which occurred during the time span of the 1997-2002 report.
Mr. Chanon, who worked for Mr. Percy in DOT's traffic signal shop, was asked to review accident information, document signage, and site distances, for that portion of SR 9 (Ex. 153, pp. 31-32 [Percy]; Ex. 154, pp. 9, 11, 17-19 [Chanon]). Mr. Chanon visited the site, and, on or about November 17, 2005, sketched a diagram of the roadway in that area (Ex. 154, p. 60; see Ex. 129 [the sketch]; Ex. 142, p. 2 [a copy of the same sketch]). The sketch is not drawn to scale, with the drawing on the right-hand side of the page illustrating that portion of SR 9 from RM 3054 to RM 3058, and the drawing on the left showing the continuation of SR 9 from RM 3058 to RM 3062 (Ex. 154, pp. 62-63). Mr. Chanon said that the sketch was drawn as part of an inventory of signs in that area (id., p. 64). He would have included sight distance measurements in the sketch, if he had made any (id., pp. 64-66). The sketch also shows a wooded area to the west of the roadway near the crest of Collins Hill (id., p. 67; Ex. 129 [series of Xs represent trees]). Mr. Chanon agreed that he did not note any additional traffic control devices at that location (Ex. 154, p. 78). He did not believe the site of Decedent's accident was a problem location because the signage there met the requirements of the Manual of Uniform Traffic Control Devices in effect at that time (id., p. 80). He agreed, however, that he was not evaluating whether or not the site was prone to drifting snow, or the accumulation of snow and/or ice (id., p. 81).
The exhibit Mr. Chanon discussed at his EBT corresponds to Exhibit 129 at trial (see Ex. 154-A).
Mr. Percy said that Mr. Chanon undertook a "traffic engineering study" at that location, did a site review of the area, documented the roadside conditions, and concluded that the existing traffic control devices, including signs and pavement markings, along this section of SR 9 were sufficient (Ex. 153, pp. 31-33, 48-50 ; see Ex. 142, pp 1 [Mr. Percy's email relating Mr. Chanon's findings], 2 [Mr. Chanon's schematic diagram of the roadway showing placement of icy pavement zone signs]; see also Ex. 129). He did not recall Mr. Chanon having issued a formal report, but did remember seeing the sketch (Ex. 153, p. 34). This was the only specific traffic study of SR 9 that Mr. Percy could recall, however, and, he agreed, that review of the existing traffic control devices would not have included a review of the prior accident history there, and no one was sent from the highway Safety Department to look at the roadway (id., pp. 30, 35).
Mr. Logan said that Mr. Chanon's field review is a study, as evidenced by the case number 7050204 written on the top of Mr. Percy's January 2006 email (Tr., pp. 563-564; see Exs. 57 &142). He also said that, when a study is done in response to a public inquiry, the evaluation is not restricted to the specific concern, but, rather, all the accidents are reviewed, and, if a pattern is discovered, it is addressed (Tr., p. 521). With respect to this field review, however, Mr. Logan agreed that he had no particular knowledge of the accidents referenced beyond what is included in the handwritten note on Exhibit 142 (id., pp. 562-563). He further agreed that the case study that is Exhibit 142 does not address the specific hazard of windblown snow (id., pp. 585-586).
Mr. Chanon said, to the contrary, that his sketch is not a study, which, he said, would entail a more detailed diagram, drawn to scale, and include more sight distance information. Rather, he described it as "just … an inventory" (Ex. 154, p. 82). Likewise, he said that his diagram is not a "field review," which is a term he does not use. Instead, he characterized it as "an informal survey of the location" (id., pp. 87-88). He said that, based upon the contents of the office files, "[t]here is no in-depth study of that area from" between 1997 and 2008 and, other than his sign survey, Mr. Chanon was not aware of any studies or inventories being done at that location at any time (id., pp. 83-84, 131).
Mr. Percy noted, in a January 2006 email to Mr. Pawlicki, that Mr. Chanon had completed a "field review," which focused on SR 9 between RM 3058 and RM 3062, and determined that all existing traffic control devices were appropriate, and, further, that there were no recommendations to install additional traffic devices (Ex. 142).
THE 2006 STATE MANUAL
Mr. Lashmet is a professional engineer, licensed in New York State, and has worked for DOT for 28 years (Tr., pp. 341-342). Since 2003, Mr. Lashmet has been DOT's snow and ice program manager, in which capacity he is responsible for DOT's Statewide snow and ice control guidelines, including ensuring that they are kept current and that any changes are implemented (id., pp. 343, 409). He also is responsible for Statewide training programs, called "snow universities," that help keep DOT's snow and ice managers apprised of updates to DOT's snow and ice program (id., pp. 343-344). Since 2004, Mr. Lashmet also has been DOT's representative to the Clear Roads Winter Maintenance Research Consortium, a group that includes 34 snow-belt states, and which undertakes research projects and issues reports of best practices, although he was not aware that the group has undertaken any research on snow fences, or living snow fences (id., pp. 344-346, 412).
When he became the snow and ice program manager in 2003, the three-year long process that led to the revision of the prior edition and promulgation of the 2006 State Manual already was well advanced under the coordination of Mr. Lashmet's former supervisor, who is now retired (see Ex. 56; Tr., pp. 356, 409-411). Mr. Lashmet explained that DOT convened a committee of its snow and ice control experts/community representatives, which reviewed every section of the prior State Manual (Tr., pp. 348-349, 352-353, 357). New provisions, and those subject to a wholesale revision, first were drafted by subcommittees, although he did not believe that the provisions governing snowdrifts and blow-over conditions were referred to a subcommittee (id., pp. 349, 356-357). The full committee's final recommendations then were reviewed by Mr. Lashmet's supervisor and sent to DOT's regional maintenance engineers for review and comment before the final version of the 2006 State Manual was issued as DOT policy (id., pp. 353-354).
Mr. Lashmet said that the committee relied upon various outside sources of information as it prepared the 2006 State Manual, including guidelines issued by the Federal Highway Administration, and by other states. However, he said that none of them are mandatory or binding on DOT (Tr., pp. 354-355). He noted that there may be unique conditions peculiar to New York State, lake-effect snow issues for example, that affect the content and guidance contained in the 2006 State Manual (id., p. 355). He further testified that the 2006 State Manual only governs DOT's practice. Other public entities, including, for example, The New York State Thruway Authority and local municipalities, follow their own guidelines (id., pp. 350-351).
Mr. Lashmet was questioned, on cross-examination, about a number of other resources, including: a 2006 DOT snow university power point presentation about the uses and benefits of snow fences and living snow fences (see Ex. 160 [hereinafter, the "2006 Snow University Presentation"]); a 2004 power point presentation to DOT by Ronald D. Tabler (see Ex. 161 [hereinafter, the "2004 Tabler Presentation"]); the 2003 Tabler Report (see Ex. 162); and a 1991 Snow Fence Guide by Mr. Tabler for SHRP (see Ex. 163 [hereinafter, the "1991 Tabler Snow Fence Guide"]). Mr. Lashmet said that each of the documents, or the concepts contained therein, were considered during the drafting of the 2006 State Manual (Tr., pp. 421 [2006 Snow University Presentation], 416-417 [2004 Tabler Presentation], and 423 [2003 Tabler Report]), with the exception of the 1991 Tabler Snow Fence Guide, with which he was not familiar until just before trial (Tr., pp. 431-432, 451, 459-460). The documents discuss the characteristics of, and problems associated with, blowing and drifting snow, as well as mitigation techniques, including snow fences, living snow fences, and cost savings to be realized from such efforts.
In particular, the 2003 Tabler Report, by far the lengthiest of the documents, includes detailed factors to consider in: quantifying drifting and blowing snow problems (Tr., pp. 424-426; see Ex. 162, p. 77); conducting a site visit, including interviews, identifying the specific type of problem to be corrected (snowdrift encroachment, road ice, visibility, and associated weather conditions), and wind, weather, and crash data collection (Tr., pp. 426-428; see Ex. 162, pp, 118-121); and selecting the mitigation measure(s) best suited to address the problem, including cross-section modification, cut sections, fill sections, safety barriers (i.e., guide rails), snow fences (their proper height, set back, alignment, and materials used to build them), and living snow fences (Tr., pp. 428-429; Ex. 162, pp. 121-136). The 2003 Tabler Report also discusses DOT's "SnowMan" computer design system for snow mitigation measures, including snow fences. Mr. Lashmet did not know if SnowMan was available to DOT prior to the promulgation of the 2006 State Manual (Tr., pp. 429-430; see Ex. 162, pp. 213-214). The 2003 Tabler Report also includes, as an appendix, a detailed problem evaluation checklist (Tr., p. 431; Ex. 162, pp. 283-286). Mr. Lashmet agreed that the information in the 2006 Snow University Presentation, the 2004 Tabler Presentation, and the 2003 Tabler Report, all contain similar information (Tr., pp. 458-459; see Exs. 160-162).
On redirect examination, Mr. Lashmet agreed that Mr. Tabler is an expert in snow fencing, but also agreed that the 2003 Tabler Report is not binding upon the State (Tr., pp. 451-452; see Ex. 162, p. ii ["The opinions and conclusions expressed or implied in the report … are not necessarily those of … individual states participating in the (NCHRP)"]). Some of the snow and ice control methods discussed in the 2003 Tabler Report refer to locations in Wyoming and Mr. Lashmet noted that states may have different operational mitigation guidelines to reflect the specific weather conditions in each geographic area (Tr., p. 453). At the same time, Mr. Lashmet said, on recross-examination, that he did not disagree with any of the steps outlined in the 2003 Tabler Report's discussion of site visits and selection of mitigation measures, and that all would be reasonable suggestions to consider in connection with a snow fence (id., pp. 456, 458; see Ex. 162, pp. 118-139).
Mr. Lashmet also was questioned, on cross-examination, about the DOT's prior manual, Highway Maintenance Guidelines, Snow and Ice Control, December 1993 (see Ex. 164 [hereinafter, the "1993 State Manual"]). Under the topic "Special Considerations in Ice Control," the provision of the 2006 State Manual addressing the treatment of drifts and blow-overs (5.4411 [F]) has no corresponding provision in the 1993 State Manual (cf. 1993 State Manual 5.4408; seeTr.,pp. 432-434). Mr. Lashmet agreed that he had no personal input with respect to the drafting of, or revisions to, Section 5.4411 [F], or Section 5.8000 (Passive Snow Control) of the 2006 State Manual (Tr., p. 434).
Cut Sections/Catchment Areas Mr. Hoffman opined that the area where the accident occurred is a topographical catchment area (Tr., p. 190). He noted Section 5.4411 (F) of the 2006 State Manual (Tr., pp. 190-191), which reads, in pertinent part:
Drifting areas are defined as those locations on the highway system where significant quantities of snow can accumulate due to blowing snow, to the point where a lane or the entire highway may become impassable to vehicle traffic. These locations are usually found in cut sections and other areas having features that promote the accumulation of snow on the highway. Blow-overs occur along numerous locations on the highway system where wind occasionally blows snow across the highway and may accumulate to a few inches.
(Ex. 56, p. 33).
Mr. Hoffman said that a cut section includes locations where a slope has been cut in order to accommodate a roadway, and that such a cut section exists in the area where the accident occurred (Tr., pp. 191-192). Having walked the roadway in the area of the accident, as well as the adjacent terrain to a distance of some 600-700 feet back from the highway, he explained that, for a northbound traveler on SR 9, the land to the left (i.e., west) is higher than the land to the right (or, east). The ditches on either side of the roadway also are below the roadway grade. Thus, the terrain slopes down to the ditch on the west side of the highway, then up onto the roadway surface, then down again into the ditch on the east side of the road (id., pp. 192-194). Mr. Hoffman illustrated the cut, or catchment area, using the photograph that is Exhibit 116, which depicts SR 9 southbound in the area where Decedent was driving when she lost control of her vehicle. A red line drawn on the photograph runs in a sloping, straight line from the hillside on the right hand (i.e., west) side of the highway to the far (east) side of the road and represents the equilibrium slope. By contrast, the dark lines show the actual terrain, which deviates from the equilibrium slope on account of the cut created by the ditches and the roadway (id., pp. 194-196; see Ex. 116; see also Ex. 93 [photo also showing equilibrium slope and cut]).
Mr. Logan discussed one of his photographs (Exhibit B), which depicts SR 9 southbound, the direction Decedent was traveling, from the west side of the road as it approaches the accident site, about halfway up Collins Hill (Tr., p. 476). Mr. Logan testified that he measured the height of the field to the west of the roadway, at a series of locations, over a distance of about 2,000 feet along the flat section of SR 9 before it begins to ascend Collins Hill, and at a distance of 20-30 feet from the highway. He said that the elevation of the field, on average, was about three feet lower than the shoulder of the highway (id., pp. 477-479, 481; see Ex. C [photo from same vantage point as Exhibit B, but farther away from the roadway]). Mr. Logan said that a catchment area, or cut section, is a location where the highway is cut into the ground so that the roadway is lower than the level of the adjacent ground. He said that the area he measured is not a catchment or cut area because the field is lower than the roadway in that place (Tr., pp. 479-480).
Mr. Logan observed that the portion of SR 9 in question is flat, level, and straight, with no sight distance obstructions for several thousand feet, so that a southbound motorist on SR 9 could clearly see if any snow was blowing and drifting across the roadway and would not be surprised by such conditions, unlike, for example, a motorist who encountered them coming around a curve, or over the crest of a hill (Tr., pp. 480-481, 566-567).
Blowing Snow Versus Drifting Snow
Mr. Hoffman further opined that the accident area is a drifting area, in the parlance of the 2006 State Manual, not a localized blow-over location subject to occasional blowing snow conditions (Tr., pp. 196, 232). He said that the accident history and Mr. Trombley's EBT testimony indicate that drifting snow in that area is not an occasional event, but, rather, one that happens all the time, and that his own observation of the site revealed terrain that would catch snow and cause snowdrifts (id., p. 197). He posited that the fact that Mr. Trombley made 12 passes (six in each direction) through the area with his snowplow in the space of six hours on the morning of the accident, even though it was not snowing at the time, evidences that drifting snow was a constant condition in that area, not the sort of occasional blow-over contemplated by the 2006 State Manual (id., pp. 203-204; see Ex. 54, p. 1). In other words, it was drifting snow that was being plowed (Tr., p. 233).
Mr. Hoffman opined that a drifting snow condition existed on southbound SR 9 at the time of the accident (Tr., p. 196). He further opined, based upon witness testimony and the Accident Report which also discuss drifting snow, that it appeared to constitute a dangerous condition (id., pp. 235-236). In addition, photographs taken at the accident scene show snow in Decedent's travel lane, although Mr. Hoffman added that he did not know how long after the accident the photos were taken (id., p. 236).
Mr. Logan is familiar with the 2006 State Manual and discussed several of its provisions (Tr., p. 489; see Ex. 56). The 2006 State Manual declares DOT's stated goal "is to provide highways that are passable and reasonably safe for vehicular traffic as much of the time as possible within the limitations imposed by weather conditions and the availability of equipment, material and personnel" (Ex. 56, p. 1 [5.0300]). Mr. Logan said that passable means that a vehicle physically can get through the snow on the roadway, although it may have to slow down to do so (Tr., p. 492).
As for the 2006 State Manual's distinction between areas of drifting snow and blow-overs, Mr. Logan said that blow-overs occur where snow blows across the highway and may accumulate to a depth of one or two inches, but the road remains passable, even though such conditions often can interfere with motorists' vision (Tr., p. 493; see Ex. 56, p. 33 [5.4411 (F)]). Moreover, he said, on cross-examination, that whether or not a vehicle could navigate a passable road safely depended upon the driver's speed (Tr., pp. 545-546). He did not agree that the road was impassable for Decedent because other drivers were able to traverse the area and she was the only one to have an accident (id., pp. 547-548). Based upon Mr. Gonyea's testimony that he was able to traverse the area shortly before Decedent's accident, Mr. Logan opined that SR 9 in that area was passable for him and any vehicles that preceded him (id., pp. 594-595). Mr. Logan also agreed, however, that Decedent was driving a Honda Civic and that the size of a vehicle would affect whether or not the roadway was passable for it (id., p. 596). He noted that Decedent was able to travel about 1/4 mile on the snowy roadway before she lost control of her vehicle, but he also agreed that an eyewitness, Ms. Borrie, said that she was traveling at about 35 mph in an area with a 55 mph posted speed limit at the time of the accident (id., pp. 596-597).
Mr. Logan said that drifting snow is a subset of blow-overs, and has a very specific meaning as it is used in the 2006 State Manual, which he said was blowing snow that had accumulated on the highway to the point where the road is impassible (i.e., motorists physically cannot drive through the snow no matter how carefully they proceed, even if they take appropriate precautions, such as slowing down) (Tr., pp. 491, 494, 590-591; see Ex. 56). Drifting occurs where snow does not blow all the way across the highway, but, rather, accumulates, such as in a cut section of highway (Tr., p. 494). Mr. Logan repeated that the accident area was not, in his view, a cut section (id.).
Mr. Logan agreed, on cross-examination, however, that he did not know if the area where the accident occurred was prone to drifting because he was never there before the accident (Tr., p. 550). He also did not know if Mr. Trombley was in a better position than he was to determine if there was drifting snow because he did not know how Mr. Trombley defined drifting snow and, hence, whether or not it conformed to the definition in the 2006 State Manual (id.). He agreed, however, that Mr. Trombley's testimony was inconsistent with it being a blow-over area because he called it drifting, as most drivers do (id., p. 552). He further agreed that Mr. Trombley indicated that, despite his best efforts, he was unable to keep the roadway clear of drifting snow on the date of the accident (id.). Mr. Logan did not speak with either Mr. Trombley or Mr. Parker to discuss their experiences with drifting snow in that area (id., p. 554). He said that drifting snow on the highway has the potential to be a hazard and has to be evaluated to see if, in reality, a hazard exists (id.).
As previously noted, weather conditions at the accident scene were cloudy, with the wind blowing out of the northwest at 10 mph, gusting to 17-25 mph, and the temperature was in the teens. Mr. Logan agreed that he had no first-hand knowledge of the weather conditions in the area on the day, and he heard Mr. Altschule's testimony that there only was trace precipitation on the morning of the accident. Nevertheless, he did not agree that most of the snow on the roadway came from drifting snow from the field to the right (west), as Decedent traveled south on SR-9 (Tr., pp. 543-545). He agreed that he neither conducted a study to determine if the area only has occasional incidences of windblown snow on the roadway, nor did he visit the area during the winter, with snow on the ground, during similar weather conditions, to observe if the terrain was subject to snow blowing on the highway (id., pp. 553-54). Mr. Logan was not aware of any DOT study prior to February 2007 that specifically studied whether or not the area where Decedent's accident occurred was a blow-over location (id., pp. 575-576).
Need for Passive Snow Control Measures
Because he concluded the accident site was a drifting snow area, Mr. Hoffman further concluded that the passive snow control provisions of Section 5.8000 of the 2006 State Manual were applicable to SR 9 at the accident site (Tr., p. 197). He said that plowing is the immediate corrective action to address drifting snow on the highway, but that one economical way to mitigate recurrent drifting snow conditions is to erect snow fences (id., pp. 198-199). Another remedy, which, he said, can be seen at the top of Collins Hill, is to plant a row of trees to create a wind barrier (i.e., a shelterbelt, or living snow fence) (id., pp. 199-203; see Ex. 89 [photo looking south toward Collins Hill with tree barrier on right (west) side of road]; Ex. 92 [same view from farther away, which also shows the open fields to the north of the tree barrier]; Ex. 102 [photo looking north as the highway descends from the top of Collins Hill, with tree barrier on left (west) side of road, ditches on either side of the highway and, farther along, open fields on both sides]). A more drastic measure would be to change the topography of the road itself (Tr., p. 199).
Mr. Hoffman also commented on Exhibit 131, a photograph of the crash scene that includes the two vehicles. There is no snow on the pavement up to where the two vehicles are located, but then the roadway appears to be snow-covered to the north. He also testified that trees are located off the left (west) side of the photo, which, he said, may have acted as a wind barrier to keep snow off the highway, although he could not discount the possibility that a snowplow had removed the snow only from that portion of the highway (Tr., pp. 217-218).
Mr. Hoffman opined that the State failed to comply with the 2006 State Manual when it decided that a snow fence was not required in that area prior to Decedent's death. He disagreed with Mr. Logan, whom, he said, misinterpreted Section 5.4411 in concluding that the area was a blow-over, rather than a drifting snow, location, and because Mr. Logan ignored, or failed to acknowledge, Section 5.8000 (Tr., pp. 228-231, 234). In Mr. Hoffman's view, Mr. Logan's logic failed because he did not recognize that the accident site is a catchment area, a form of cut section, where drifting areas occur, and cannot possibly be characterized as a blow-over (id., pp. 234-235).
Mr. Hoffman opined that a cost benefit analysis would have indicated that a snow fence was an economical way to eliminate, or severely reduce, the drifting snow problem, as compared to snowplowing, based upon traffic studies done in Canada and Wyoming. He said that snow fences are inexpensive, estimating that a 1000 foot-long section of snow fence would cost about $1,200 (Tr., pp. 226-227), and further asserted that studies indicate that the cost of a snow fence is three cents for every three dollars spent on plowing the snow (id., pp. 198-199)
Mr. Logan agreed that the 2006 State Manual discusses passive snow control measures, including snow fences, planted shelterbelts, and roadway cross-section alterations, in order to reduce or eliminate areas of persistent drifting snow on roadways, and improve visibility in blowing snow conditions (Ex. 56, p. 43 [5.8100, 5.8200]). The 2006 State Manual also states, however, that it is impractical to employ passive snow control measures to control blowing snow in blow-over areas because there are so many of them and, moreover, wind patterns can be unpredictable (Ex. 56, p. 33 [5.4411 (F)]). Thus, passive control measures only should be considered in blow-over locations where there is a "sufficient accident history" (Ex. 56, p. 33). Mr. Logan also said that snow fences often reduce, but do not eliminate completely, windblown snow from road surfaces. He agreed that spot treatments, by plowing and salting, still may be needed in such areas, adding that small amounts of snow can be as slippery as can an inch or two (Tr., pp. 496-497).
The 2006 State Manual provides that the "erection of snow fence[s] or the establishment of shelterbelts in areas of frequent drifting and/or whiteouts can dramatically improve or eliminate" recurrent drifting conditions (Ex. 56, p. 43 [5.8301 (Passive Snow Control, Methodology, General)]). Mr. Logan said that, in this context, "frequent" means something that happens frequently, of a repetitive nature, and can include both multiple drifting events on a single day, as well as drifting that occurs on multiple days and for extended periods (Tr., p. 593). Based upon his review of the evidence in the Claim, including the testimony and documents exchanged in discovery, Mr. Logan saw no evidence that the accident location was prone to frequent drifting snow (id., pp. 593-594). Mr. Logan opined that a snow fence was not warranted at the accident location (id., p. 498). He agreed, however, that neither he, nor, as far as he was aware, anyone from DOT, did a cost benefit analysis comparing the cost of installing snow fences, as opposed to the cost of mechanical plowing of the area where the accident occurred, adding that it would not be standard practice for DOT to do so (id., p. 552). He did not necessarily agree with a statement contained in a July 2002 document in his file about an Iowa program which extolled the benefits of snow fences along the roadway in helping to prevent drifting problems (id., pp. 579-580). He did agree, however, with the proposition contained in a design basics document, dated February 20, 2018, also in his file, that living snow fences planted at a distance of 100-200 feet from the highway "can greatly reduce blowing snow and significantly improve driving conditions" (id., pp. 580-581).
Mr. Logan further agreed that it was feasible to erect a snow fence in the fields adjacent to SR 9 in the area of the accident, but he could not recall any DOT study prior to February 2007 that specifically examined the effectiveness of putting fences in that area (Tr., pp. 574-575, 577). However, he also said that, during the period after the 2003 meeting with the Wolters, DOT did look at accident records in that area, a primary question to be examined in determining whether or not to erect a snow fence, or if blowing snow was causing accidents there, even if they did not examine the area for that purpose (id., pp. 569-570, 577).
Reasonably Accepted Practice
Mr. Hoffman further opined that the State failed to comply with reasonably accepted practice. He disagreed with Mr. Logan's analysis, which only spoke to the requirements of the 2006 State Manual and did not address the provisions of 1994 SHRP Guidelines and the 2007 AASHTO Manual, the primary documents, in Mr. Hoffman's view, that detail regularly accepted practice in this area (Tr., pp. 229-230, 233).
Mr. Logan opined that DOT's highway maintenance employees were engaged in spot treatments of the roadway, plowing and salting as necessary, and that was the appropriate method of addressing isolated locations along the highway, because it was not snowing so that some portions of the highway were completely bare, while windblown snow was across the road in other places (Tr., pp. 482-483; see Ex. 56, p. 33 [5.4411 (E) of the 2006 State Manual discussion of spot treatments]).
Road Salt
One solution that the State did utilize, but which Mr. Hoffman did not recommend, was the application of chemicals on the roadway to combat drifting snow (Tr., pp. 199-200). Mr. Hoffman opined that putting down road salt is rarely effective to combat drifting snow, and has as many negative results as positive ones, so that he never recommends its use, although he acknowledged that salt has been used throughout New York State and elsewhere to combat drifting snow (id., p. 227). Mr. Hoffman stated that calcium chloride, or other chemicals, are ineffective at lower temperatures (with almost no effect at or below10 degrees), and actually can promote the formation of packed snow and black ice on the roadway (id., pp. 199-200). He said that salt would not have been effective that day, in light of the low temperatures, and as evidenced by the snowdrifts, despite Mr. Trombley's 12 passes with the snowplow that morning (six in each direction). He said that the State might just as well have put down sand because the only benefit of salting was to provide a granular substance on the road surface (id., pp. 227-228).
By contrast, Mr. Logan said that Mr. Trombley's spot treatments included the application of magnesium chloride (salt) to the roadway, as needed, which, Mr. Logan agreed, was the appropriate and common method for addressing weather conditions in which a residue of snow remains on the highway after plowing (Tr., pp. 488-489). He also agreed that the 2006 State Manual directs that chemicals/abrasives should not be applied when plowing blowing and drifting snow at very low temperatures (id., p. 549). He agreed that the air temperature the morning of the accident, between 9-13 degrees according to Mr. Altschule, generally is considered a very low temperature (id., pp. 548-549). However, he also said that, for purposes of Section 5.4411 (D) of the 2006 Manual, very low temperatures generally mean temperatures at or below minus five degrees (id., p. 549). Mr. Logan said that it was "absolutely appropriate" to apply salt while spot plowing, that the temperature was not problematic for the use of salt, and that, as the temperature drops, the standard procedure is to put down more salt in spot treatment areas, a practice he called "blasting the road … The more salt you put down, the better it'll work" (id., pp. 589-590).
Proximate Cause
It was Mr. Hoffman's further opinion that the State's failure to follow the 2006 State Manual was a contributing factor in causing Decedent's collision insofar as the drifting snow might not have existed if the State had complied with the manual and, therefore, the accident itself might not have occurred. He also opined that reasonably accepted engineering standards, like a snow fence or tree barrier, hypothetically could have mitigated the situation so that, in all likelihood, the drifting snow problem would not have persisted over the six-hour period that the snowplow encountered (Tr., pp. 236-237). He could not offer an opinion, however, as to whether or not a change in any single factor would have changed the outcome (id., p. 231).
Mr. Hoffman opined that the State's failure to take any action in the area where the accident occurred was not responsible in light of all the documents he reviewed, including the accident history at the location, with one prior fatality, the EBTs of the snowplow operators, Mr. Logan's affidavit, and correspondence from the Town of Beekmantown to the DOT (Tr., pp. 224-225).
An apparent reference to the May 7, 1999 letter in which the Town Supervisor requested that DOT reconstruct Collins Hill to make it safer because there had been several accidents in that vicinity (see Ex. 124).
LAW
When the State engages in a proprietary function, such as highway and road maintenance, it is held to the same duty of care as private actors engaging in similar functions (Lynch v State of New York, 21 Misc 3d 1127[A], *3 [Ct Cl 2005], affd on other grounds 37 AD3d 772 [2d Dept 2007]; Coco v State of New York, 123 Misc 2d 653, 655-656 [Ct Cl 1984]; see Sebastian v State of New York, 93 NY2d 790, 793 [1999]; Oeters v City of New York, 270 NY 364, 368 [1936]; Kamnitzer v City of New York, 265 App Div 636, 638-639 [1st Dept 1943]; Murphy v Incorporated Vil. of Farmingdale, 252 App Div 327, 329 [2d Dept 1937], appeal denied 276 NY 690 [1938]).
Thus, Defendant has an absolute, "nondelegable duty to maintain its roads and highways in a reasonably safe condition, and … liability will flow for injuries resulting from a breach of that duty" (Levine v New York State Thruway Auth., 52 AD3d 975, 976 [3d Dept 2008], quoting Nurek v Town of Vestal, 115 AD2d 116, 116-117 [3d Dept 1985]; see Friedman v State of New York, 67 NY2d 271, 283, 286 [1986]; Maldonado v New York State Thruway Auth., 86 AD3d 785, 786 [3d Dept 2011]; Harjes v State of New York, 71 AD3d 1278, 1279 [3d Dept 2010]). That duty is measured "in accordance with the terrain encountered and the traffic conditions to be reasonably apprehended" (Merrill Transp. Co. v State of New York, 97 AD2d 921, 921 [3d Dept 1983], quoting Boulos v State of New York, 82 AD2d 930, 931 [3d Dept 1981], affd 56 NY2d 714 [1982]), and includes a duty to "adequately [deal] with … snow and weather conditions as they [affect] the roadway" (Barrett v State of New York, 13 AD3d 775, 775 [3d Dept 2004]). The State's duty also includes a duty to give the users of its highways "adequate and unambiguous warning of the conditions and hazards on its highways," including through the placement of adequate warning signs (Merrill Transp. Co. v State of New York, supra at 922). The duty owed "is intended to protect the traveling public" (Lopes v Rostad, 45 NY2d 617, 624 [1978]) and Defendant may be held liable for any such breach of duty, in accordance with "general principles of negligence and comparative negligence" (Bottalico v State of New York, 59 NY2d 302, 304-305 [1983]; see Weiss v Fote, 7 NY2d 579, 585 [1960]).
The State, however, is not an insurer of the safety of its roadways and the mere occurrence of an accident does not create liability (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to establish Defendant's liability, therefore, it is Claimant's burden to establish that the State's negligence "in maintaining its roads in a reasonable condition is the proximate cause of the accident" (Hough v State of New York, 203 AD2d 736, 737 [3d Dept 1994], quoting Hearn v State of New York, 157 AD2d 883, 885 [3d Dept 1990], appeal denied 75 NY2d 710 [1990]; see Harjes v State of New York, supra).
"The pertinent inquiry is whether the State exercised reasonable diligence in maintaining [the highway] under the prevailing circumstances" (Freund v State of New York, 137 AD2d 908, 909 [3d Dept 1988], appeal denied 72 NY2d 802 [1988]; see Slaughter v State of New York, 238 AD2d 770, 770 [3d Dept 1997]). Thus, the question "is not whether snow or ice has been permitted to accumulate on the highway, but whether the State has exercised reasonable diligence to cure the situation" (Valentino v State of New York, 62 AD2d 1086, 1087 [3d Dept 1978], appeal dismissed 46 NY2d 1072 [1979]; see Frechette v State of New York, 129 AD3d 1409, 1410 [3d Dept 2015]). "The highway may be said to be reasonably safe when people who exercise ordinary care travel over it in safety" (Boulos v State of New York, supra).
Liability also may attach if the State has actual or constructive notice of a recurrent hazardous condition at a specific location, but fails to correct or give warning of that condition (Harjes v State of New York, supra at 1279; Hart v State of New York, 43 AD3d 524, 525 [3d Dept 2007]; Freund v State of New York, supra). "Once the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger" (Friedman v State of New York, supra at 284; Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 673 [1999]; Frechette v State of New York, supraat 1411). A prior history at the same location of accidents "of a similar nature," "caused by the same or similar contributing factors," can be relevant to that assessment (Chunhye Kang-Kim v City of New York, 29 AD3d 57, 60-61 [1st Dept 2006]; Hough v State of New York, supra at 738-739; see Whiter v State of New York, 148 AD2d 825, 826 [3d Dept 1989]).
"In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
Moreover, where the alleged negligence arises out of the State's study of a highway traffic condition that requires expert judgment or the exercise of discretion, it is entitled to a qualified immunity from liability unless the proof establishes that the decision evolved without adequate study, was plainly inadequate, or there was no reasonable basis for the plan (see Affleck v Buckley, 96 NY2d 553, 556 [2001]; Friedman v State of New York, supra at 283-284; Alexander v Eldred, 63 NY2d 460, 466 [1984]; Weiss v Fote, supra at 586, 589). It is Defendant's burden to establish that the qualified immunity defense applies (Evans v State of New York, 130 AD3d 1352, 1354 [3d Dept 2015], lv denied 26 NY3d 910 [2015]). It applies whenever a governmental planning body "has entertained and passed on the very same question of risk as would ordinarily go to the jury" (Weiss v Fote, supra at 588; see Turturro v City of New York, 77 AD3d 732, 735 [2d Dept 2010]).
DISCUSSION
Defendant's Motion to Amend Answer
As a preliminary matter, the Court grants Defendant's Motion (M-92488) to amend its Answer, pursuant to CPLR 3025(b), to assert the affirmative defense of qualified immunity. On December 8, 2016, Defendant called Mr. Lashmet to testify regarding the reasoned judgment that went into the creation, promulgation, and implementation of the 2006 State Manual. Claimant objected, asserting that he would be prejudiced because the State gave late notice (about two weeks before the trial) that Mr. Lashmet would be called to testify and, thus, Claimant posited that he was unable to conduct an EBT, or prepare to cross-examine Mr. Lashmet. Claimant, likewise, asserted prejudice and objected to the State's Motion to amend its Answer to include a qualified immunity defense because it was not pleaded in the Answer, and, Claimant said, it was raised for the first time, sua sponte, by Judge Ferreira in his 2013 Decision and Order that granted Defendant summary judgment (see Tr., pp. 322-326, 330-332).
The Court permitted Defendant to conduct its direct examination of Mr. Lashmet on December 8, 2016, after which Claimant was granted an adjournment, during which an EBT of Mr. Lashmet was conducted, and further discovery was undertaken, before the trial continued on July 31, 2018. The Court reserved its decision on Defendant's Motion to amend its Answer, and invited the parties to address the issue of qualified immunity in their post-trial briefs, which they did (see Tr., pp. 334-339).
Court of Claims Act § 11(c) and CPLR 3211(e) list various defenses that are waived unless Defendant raises them either in its Answer, or in a previously made motion to dismiss (see Herrera v State of New York, UID No. 2013-049-113 [Ct Cl, Weinstein, J., Nov. 20, 2013]). The Court notes that qualified immunity is not among those enumerated defenses. Moreover, where Claimant has had "a full and fair opportunity to argue the merits" of the defense, the State's failure to assert it in its Answer does not constitute a waiver, provided there has been no surprise or prejudice to Claimant (Murray v City of New York, 43 NY2d 400, 404-405 [1977]; Kirilescu v American Home Prods. Corp., 278 AD2d 457, 457-458 [2d Dept 2000], lv denied 96 NY2d 933 [2001]). In fact, the Court, acting sua sponte, may conform the pleadings to the evidence in such cases, and may do so even after trial, where warranted (see Murray v City of New York, supra at 406; Matter of Denton, 6 AD3d 531, 532-533 [2d Dept 2004], lv denied 5 NY3d 714 [2005]; Cave v Kollar, 2 AD3d 386, 388 [2d Dept 2003]; CPLR 3025[c]).
Here, the Court determines that no such prejudice or surprise has been shown. Indeed, in "the area of highway safety … it has long been the settled view … that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits" (Weiss v Fote, supra at 588). Thus, Claimant should have been aware from the outset that allegations of negligence in planning, designing, and constructing the roadway, by definition, implicate the State's qualified immunity and that those determinations are not subject to second-guessing by the Court "absent some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it" (id. at 586: see Garris v State of New York, UID No. 2012-031-505 [Ct Cl, Minarik, J., Sept. 24, 2012]; Davies v State of New York, UID No. 2009-029-024 [Ct Cl, Mignano, J., Apr. 16, 2009]; Libous v State of New York, UID No. 2003-032-135 [Ct Cl, Hard, J., Dec. 31, 2003]).
In addition and as Defendant points out, the State asserted a qualified immunity defense in its December 2012 memorandum of law in support of its motion for summary judgment, and Claimant challenged the State's assertion in its own memorandum of law in opposition to the motion in June 2013 (Affidavit of Douglas R. Kemp, Esq., Assistant Attorney General, and Exs. A & B attached thereto). Judge Ferreira, in his 2013 Decision and Order, as well as the Third Department, in its 2015 Memorandum and Order, each addressed the issue and found the State's proof inadequate to sustain a qualified immunity defense. Moreover, Claimant was granted an adjournment after the second day of trial so that it could conduct an EBT of Mr. Lashmet and undertake additional discovery before proceeding with the cross-examination of that witness. As with their papers on the State's Motion for summary judgment, the parties fully addressed the issue of qualified immunity in their post-trial briefs (see Murray v City of New York, supra at 406). Under the foregoing circumstances, the Court, determines that Claimant was subject to neither surprise, nor prejudice. Accordingly, Defendant's Motion to amend its Answer to include the defense of qualified immunity is granted.
Qualified Immunity
As to the merits of the defense, however, the Court concludes that the qualified immunity doctrine does not apply to this Claim because the State failed to show that it undertook a reasoned plan or study of the very same question of risk posed by this Claim, namely blowing and/or drifting snow. The 2006 State Manual states that "persistent snow drifting on roadways … during blowing snow conditions" can be reduced or eliminated by the implementation of passive snow control measures, which include snow fences, shelterbelts (i.e., trees and/or vegetation that create a living snow fence), or altering the roadway cross section (Ex. 56, pp. 43-44 [5.8100, 5.8302-5.8304]). As the experts and other witnesses discussed, the 2006 State Manual distinguishes between drifting, as opposed to blow-over, snow conditions, with Section 5.4411 (F), providing the following guidance:
Drifting areas are defined as those locations on the highway system where significant quantities of snow can accumulate due to blowing snow, to the point where a lane or the entire highway may become impassable to vehicle traffic. These locations are usually found in cut sections and other areas having features that promote the accumulation of snow on the highway. Blow-overs [by contrast,] occur along numerous locations on the highway system where wind occasionally blows snow across the highway and may accumulate to a few inches. However, lane or roadway closure is less likely in blow-over situations. This situation may occur adjacent to large open areas on the upwind side of the highway associated with drifts and blow-over areas. It is impractical to use passive snow control measures to control blowing snow in blow-over areas. Because of the large number of locations and the unpredictability of wind patterns, blow-overs can occur in any location where there are open upwind areas, sufficient wind velocity and transportable snow. Passive control measures should only be considered where there is sufficient accident history associated with the blow-over location.
(Ex. 56, p. 33).
Thus, in the first instance, it must be determined whether the area where Decedent's accident occurred is a drifting area, or a blow-over area, for purposes of the 2006 State Manual.
Three traffic studies conducted prior to Decedent's accident were discussed at trial. The Court questions whether any of those rather cursory evaluations constitute the sort of deliberations or determinations of a governmental entity that are afforded deference under the qualified immunity doctrine. To be sure, Claimant did not show that such determinations require the rigorous steps, elaborate structure, and exacting format, outlined by Mr. Hoffman, which he based, in no small measure, upon reference materials that are not binding on DOT. Neither, however, is the Court persuaded by Mr. Logan and other State witnesses, who posited that informally expressed determinations, including via emails or even telephone calls, are sufficient to invoke the protection of the qualified immunity defense. Moreover, at least as regards the 2005 State Senate inquiry about the Wolter Accident, there was considerable confusion among Mr. Percy, Mr. Chanon, and Mr. Logan as to what constituted a study.
It is not necessary for the Court to decide whether or not those determinations suffice, however, because assuming, arguendo, that they do, the Court finds that none of the three traffic studies conducted prior to Decedent's accident establish that DOT or the State ever studied, reviewed, or passed upon the specific question of whether the accident site is a blow-over, as opposed to a drifting, area.
The 1997 field review/site visit addressed only the NYSP complaint about the formation of black ice at the crest of Collins Hill.
The one paragraph response to the 1999 request from the Town of Beekmantown does relate to one of the enumerated forms of passive snow control prescribed by the 2006 State Manual (alteration of the roadway cross section), but the question of drifting and/or blowing snow is not addressed in that short analysis. Moreover, the Court concludes that the 1999 investigation evolved without adequate study, was plainly inadequate, and/or had no reasonable basis, based upon Mr. Power's testimony in which he: was unable to verify where or how he obtained the Statewide average accident history rate cited in his handwritten note; conceded that the wrong category might have been used; failed to explain the discrepancy about the length of highway evaluated (½ mile or 0.7 miles); and admitted that his ultimate conclusion, that the accident rate at the location was insufficient to justify work at Collins Hill on safety grounds, was based upon a mere guess, even if it was an educated one. Moreover, the Court notes that, if the accident history for only a ½ mile section of SR 9 was reviewed, then, by its own calculation, the accident rate on that portion of SR 9 would increase from 2.41 to 3.4 accidents per million vehicle miles, an average in excess even of the Statewide average (2.8) that Mr. Powers did use (see footnote 19).
The 2005 State Senate inquiry about the Wolter Accident, which Mr. Percy characterized as a "traffic engineering study," but Mr. Chanon, who actually undertook the investigation, called "just … an inventory," and "an informal survey of the location," determined only that all existing traffic control devices were appropriate and that no additional devices were required. Mr. Chanon agreed that he did not evaluate whether the site was prone to drifting snow and Mr. Percy agreed that Mr. Chanon would not have reviewed prior accidents. Each of those admissions are at odds with Mr. Logan's assertion that DOT studies always review the accident history at the location, regardless of the specific concern expressed by the complainant, and further, address any pattern that is discovered. Clearly, no such undertaking was made as part of the 2005 review. Moreover and like the other two examples, the 2005 review by Mr. Chanon did not address whether the location was a drifting, or a blow-over, area.
Likewise, in numerous instances, various of the State witnesses were unaware of any study having been conducted by DOT to examine the specific issue of blowing/drifting snow prior to Decedent's accident. Thus, the Court concludes that the State failed to show that it studied the question of blowing and/or drifting snow at the accident location and determined that passive snow control was not necessary there.
NEGLIGENCE
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant established, by a preponderance of the credible evidence, his Claim against the State. The witnesses provided generally sincere and forthright testimony, although Mr. Gonyea was confused on a few points in his testimony, and Mr. Powers' testimony concerning the 1999 Town of Beekmantown request to reconstruct Collins Hill was unpersuasive. As has been, or will be, discussed herein, there were other inconsistencies with portions of the testimony.
The Court found each of the experts to be knowledgeable, although they were not always equally persuasive. As discussed below, especially on the questions of whether or not the accident area was a topographical cut section, and a drift area, as opposed to a blow-over area for purposes of the 2006 State Manual, the Court found the opinions of Mr. Hoffman to be more thorough, reasoned, and persuasive, than were those of Mr. Logan. On some other, comparatively less important, points, like the propriety of applying salt to the roadway, the reverse was true.
The Court finds that Defendant breached its absolute, nondelegable duty to maintain SR 9 in a reasonably safe condition in the area where Decedent's accident occurred. The State does not contest that it owed a duty, as Mr. Parker and Mr. Chanon each agreed that DOT maintained the highway in that area and was responsible for snow and ice control, as well as signage.
The Court further finds that there was windblown snow on that portion of SR 9 which constituted a dangerous condition. The composite testimony of the witnesses establishes that it was not snowing on the morning of Decedent's accident, or, at most, there were scattered light flurries with no measurable accumulation. Mr. Parker and Mr. Sorrell each agreed that various photographic exhibits fairly and accurately depicted the roadway, which show SR 9 with snow covering at least the southbound lane. The only possible source for that windblown snow on the roadway that was identified at trial was the 19 inches of snow and ice Mr. Altschule said was on the ground from previous snowfalls on exposed, untreated, and in undisturbed, surfaces in the adjacent fields to the west of SR 9. Mr. Logan disagreed, but offered no alternative explanation for the source of the snow on the road. The Court cannot credit his testimony on this point and concludes that the snow on the roadway was windblown from the adjacent fields. The witnesses who were driving that day uniformly testified to the windy conditions and windblown snow they encountered in the area of Decedent's accident. Several were driving below the posted speed limit, at least partly in reaction to the windblown snow, including Mr. Cahoon (and even though the crash data indicates he was not driving as slowly as he thought).
Moreover, the windblown snow on the date of the accident was hardly a one-off occurrence. To the contrary, several of the State employees, as well as Ms. Borrie and Mr. Gonyea, agreed that this portion of SR 9 is prone to blowing and drifting snow on a regular basis. But, it is more than simply a propensity for windblown snow to occur. Rather, Mr. Trombley, the DOT snowplow operator, said it was a recurrent condition that happens "[e]very time the wind blows," "it's in the same spot every year" (emphasis supplied). Ms. Borrie similarly testified that there "[a]lways" is windblown snow there by the open fields. Even Mr. Gonyea, whose testimony was a little confused, nevertheless, said that the area was prone to frequent drifting snow.
Mr. Logan said that drifting snow on the highway has the potential to be a hazard and has to be evaluated to see if, in reality, a hazard exists. Several State employees, including Mr. Docteur, said that drifts are present all along SR 9, and are worse elsewhere. That there might be other areas that warrant evaluation, however, does not relieve the State of its duty to determine if there was a dangerous recurrent condition at this place and, to take action there, if necessary. As noted already, there simply is no evidence that the windblown snow at this location ever was evaluated by DOT.
The 2006 State Manual provides that the snow control "method of choice" is the "cyclical treatment of active drift and blow-over areas by periodic plowing and treatment with ice control chemicals, as necessary" (Ex. 56, p. 33 [5.4411 (F)]). Mr. Hoffman agreed that plowing was the proper immediate corrective action to address drifting snow on the highway. Likewise, Claimant did not find fault with Mr. Trombley's efforts to plow Beat 5P that morning, nor does the Court. At the same time, Mr. Hoffman's somewhat idiosyncratic aversion to the use of road salt (he never recommends its use) did not resonate with the Court. Moreover, given that temperatures recorded at around the time of the accident also were at or near the lower bounds recommended for the use of road salt, the Court declines to find that its use here was inappropriate under the totality of the circumstances.
However, the Court also finds that it was not appropriate for Defendant to rely on plowing as the sole remedy to the windblown snow conditions at the accident location. The 2006 State Manual discusses the use of passive snow control to improve highway safety, depending upon whether or not the area where Decedent's accident occurred is a drifting, or a blow-over, area. The manual informs that drifting areas "are usually found in cut sections and other areas having features that promote the accumulation of snow on the highway," while blow-over sections "occur along numerous locations on the highway system where wind occasionally blows snow across the highway and may accumulate to a few inches," and that it is "impractical to use passive snow control measures" in such blow-over areas because of both "the large number of locations and the unpredictability of wind patterns" (Ex. 56, p. 33 [5.4411 (F)]).
While there is no evidence that DOT ever studied this question, the experts discussed it in detail at trial. On this point, the Court found the testimony of Mr. Hoffman to be more persuasive than that of Mr. Logan, and concludes that the area where Decedent's accident occurred is a topographical catchment, or cut, area. Mr. Hoffman, through his testimony and use of photographic illustrations, showed that the terrain is higher to the west of SR 9 in that place to a distance of some 600-700 feet away from the roadway. It then slopes down to the road, but that "equilibrium slope," as Mr. Hoffman called it, is interrupted by the cut created by the ditches and the roadway. To the Court's mind, Mr. Hoffman's opinion that it is a cut area also is supported by Mr. Gonyea, who said that the land on the other, or east, side of the road appeared to have been mined, or otherwise dug out. Further corroboration is found in the 1990-2007 DOT Accident Report which describes three accidents involving a "Rock Cut," two at RM 3059 itself (the Kurtz Accident and the May 6, 1997 accident), and another that occurred only 1/10th of a mile away at RM 3058 (the Favro Accident). Mr. Logan, by contrast, said that the field to the west of SR 9 actually was some three feet lower than the shoulder of the road. However, his analysis is based upon measurements taken very close to the highway, at a distance of only 20-30 feet. In Mr. Logan's photograph that is Exhibit C, it appears that it is the ditch, rather than the adjacent field, that is below the road. To the Court's mind, the proximity of his measurements to the ten foot-wide ditch on the side of the road may have affected Mr. Logan's conclusion.
Moreover, as the Court already has determined, the area is not one where wind only occasionally blows snow across the highway, or where wind patterns are unpredictable. To the contrary, it is a recurrent condition that occurs each year, every time the wind blows. In addition, the accumulation was not just a few inches. According to Mr. Gonyea, there were two to four inches of rutted snow in places, even after Mr. Trombley's plow had been passing through the area every half hour or so for a period of six hours. The evidence establishes that the drifting snow problem at the accident location was more than the inch or two that, Mr. Logan said, is indicative of a blow-over area.
The 2006 State Manual further provides that the objective and goal of passive snow control is to reduce or eliminate areas of persistent snow drifting on the roadway (Ex. 56, p. 43 [5.8100, 5.8200]). Passive snow control measures should be considered in blow-over locations, however, only "where there is sufficient accident history associated with the blow-over location" (Ex. 56, p. 33 [5.4411 (F)]). At the same time, passive snow control "in areas of frequent drifting and/or whiteouts can dramatically improve or eliminate the condition" (Ex. 56, p. 43 [5.8301]).
The Court already determined that the accident location is an area of persistent drifting snow. In fact, Mr. Logan himself said that, in the context of Section 5.8301, "frequent" can include both multiple drifting events on a single day, as well as drifting that occurs on multiple days and for extended periods. Nevertheless, Mr. Logan saw no evidence that the accident location was prone to frequent drifting snow. The Court disagrees and finds that the area in question was subject to frequent drifting as measured against either of the criteria articulated by Mr. Logan.
Moreover, the Court concludes that there was a sufficient accident history of similar accidents in the area prior to Decedent's accident so that Defendant was under a duty to undertake a reasonable study of the winter weather conditions there, including the danger posed by windblown snow, with an eye toward alleviating those conditions. The Court notes that the descriptions included in the 1990-2007 DOT Accident Report, which covers accidents that occurred between RM 3054 and RM 3060, include five that occurred at RM 3059, the area of Decedent's accident. Four more occurred at RM 3058 (1/10th of a mile away) (a fifth took place after Decedent's accident). No more than three accidents occurred at any other reference marker (see Ex. 120, pp. 15-19). Thus, a cluster of accidents were reported at or near the location of Decedent's accident. Moreover, as Mr. Hoffman noted, weather (including slush, ice, and a snowdrift) was a factor in all five accidents at RM 3059, including the Wolter Accident, which resulted in a fatality.
For several reasons, the Court was unpersuaded by Mr. Logan's opinion, to the contrary, that the accident history was insufficient in that area. First, Mr. Logan sought to distinguish Decedent's accident from the others because her accident report is the only one which specifically identifies blowing or drifting snow as a contributing factor. However, he also agreed that the police accident report form "keys" do not include blowing and drifting snow among the enumerated choices. To the Court's mind, Mr. Logan's assertion that police officers are trained to include such observations manually is inadequate. Rather, the lack of an enumerated blowing and drifting snow option poses a risk that such conditions could go unreported and may not be identifiable in subsequent accident history reviews. Second, and in any event, the information that is available in the reports should have been sufficient to trigger a review of the winter conditions on that portion of SR 9. Third, Mr. Logan said that a "significant" factor in forming his opinion was the lack of accident reports from the flat area next to the open fields north of RM 3059 through which Decedent traveled. The Court's confidence in that opinion is undermined, however, because the 1990-2007 DOT Accident Report included in the exhibits is incomplete and missing descriptions of any accidents that may have occurred in that very area, between RM 3061 through and including RM 3069, and any additional accidents at RM 3060 other than the one incomplete entry that is provided. Fourth, Mr. Logan said that Mr. Powers' 1999 memorandum in response to the Town of Beekmantown's request to reconstruct Collins Hill was another one of the bases for his determination that the accident history was insufficient. The Court cannot credit that memorandum because of its many flaws identified during Mr. Powers' testimony. Accordingly, Mr. Logan's reliance upon it similarly undermines the Court's faith in his opinion.
Because the Court already has found that the accident location is a drift area, and not a blow-over area where a low accident history might militate against it, the Court now further concludes that DOT should have considered the use of passive snow control measures. It did not.
There were no snow fences or shelterbelts on either side of SR 9 in the area of the accident prior to the accident. Mr. Docteur, the Resident Engineer in Clinton County from 1999 to 2005, was "not a proponent" of snow fences because he thought they were expensive and cumbersome to place. In fact, neither he, nor Mr. Parker, could recall one having been erected anywhere in Clinton County during that period. Mr. Docteur's successor as Resident Engineer during 2006-2007, Mr. LaFrance, likewise, did not request, nor did he recall having considered, the erection of a snow fence there. Mr. Logan could not recall any DOT study prior to the accident that specifically examined the effectiveness of putting snow fences in that area, and neither Mr. Docteur, nor Mr. Cook, could recall any study of winter conditions having been done there. Mr. Docteur, similarly, was not inclined to recommend shelterbelts at that location because he was concerned about black ice there, not drifting snow. Not surprisingly, there was even less consideration given to the most extreme passive snow control, reconstruction of the highway. Likewise, there is no evidence that any sort of cost-benefit analysis of passive snow control measures was undertaken. Mr. Lashmet said that a site-specific analysis is required. Based upon all of the foregoing, the Court concludes that DOT failed to adhere to the 2006 State Manual because it did not study the efficacy of passive snow control measures at the accident location. Rather, passive snow control appears to have been rejected out of hand because of general misgivings about the use of the measures, and without consideration of the specific location in question.
The Court further finds that the State had notice of the dangerous recurrent blowing snow condition at the accident location. As a preliminary matter, on this point, the Court rejects Claimant's contention that the three traffic studies provided such notice. They did not confer qualified immunity upon the State because none of them studied the specific problem of windblown snow. For the same reason, the Court concludes that their findings did not put DOT on notice of a problem with drifting snow at that place. Mr. LaFrance, Mr. Parker, Mr. Sorrell, Mr. Drollette, and, to a lesser extent, Mr. Percy, each was unaware of any oral or written complaints to DOT, prior to Decedent's accident, about blowing and drifting snow in that area.
Nevertheless, the State did have notice of the recurrent dangerous blowing snow condition. Mr. Trombley knew it happened every time the wind blows, in the same spot, every year. Non-party witnesses Ms. Borrie and Mr. Gonyea did too. Likewise, Mr. Parker, Mr. Sorrell, and Mr. Docteur, each agreed that the area was prone to blowing and drifting snow on a regular basis. Although the State would cast their testimony as, at most, a general awareness that such windblown snow conditions occurred, given the totality of the testimony here, the Court finds it was more than that, and constituted longstanding notice of a dangerous recurrent condition.
Moreover, the State had notice that there was a specific dangerous windblown snow condition on the very morning of the accident. Mr. Parker said that he "knew that the road was bad already" when he came into work at 2:00 a.m. because snow had been "drifting since [the previous] Thursday." Mr. Trombley and Mr. Sorrell also knew it was very windy and drifting. Moreover, Mr. Trombley made 12 trips along Beat 5P in the six hours preceding Decedent's accident, six in each direction, and noted drifting conditions, worse in the southbound lane. Despite his regular and continuing efforts, he struggled to keep pace and windblown snow continued to drift across the road, especially the southbound lane where Decedent was driving. Mr. Parker also drove through the area sometime after 3:00 a.m. and noticed drifting snow in both lanes, even though the area had been plowed. Under similar circumstances, the State has been found to have had "constructive if not actual notice of the dangerous condition of the road as of this time" (Slaughter v State of New York, supraat 772). For the foregoing reasons, the Court determines that Defendant had notice of both a recurrent dangerous condition at the accident location, as well as the specific dangerous condition that existed on the morning of the accident.
The Court further finds that Defendant breached its duty to warn motorists about the danger of recurrent windblown snow in the accident area. The icy pavement signs that were in place do not provide adequate and unambiguous warning of the separate risk of windblown snow on the highway. "Defendant may be held liable for failing to warn of or correct a recurrent hazardous condition of which it has notice" (Hart v State of New York, supra at 525; Freund v State of New York, supra at 909).
The Court also finds that the State's failure to follow the 2006 State Manual was a substantial factor in the accident that resulted in Decedent's death.
COMPARATIVE NEGLIGENCE
Finally, the Court notes that the NYSP Report concluded that the primary cause of the collision was Decedent operating her Honda at a speed greater than the available friction to maintain control, and the Accident Report, similarly, lists Decedent's unsafe speed. However, the issue of Decedent's culpability was not developed at trial. Moreover, Ms. Borrie was traveling at 35-40 mph as she followed Decedent without losing sight of the Frechette vehicle so that the Court concludes that Decedent could not have been traveling appreciably faster than Ms. Borrie. Thus, the Court finds that Decedent's culpability in this accident was minimal, and apportions 95% of the liability for this accident to Defendant and 5% to Claimant's Decedent on account of Decedent's actions. The highway was not reasonably safe for her even though she exercised ordinary care in traveling over it.
CONCLUSION
By a preponderance of the credible evidence that was presented, the Court finds Defendant 95% responsible for the injuries sustained by Decedent in this accident and Claimant's Decedent 5% responsible. The Court concludes that the State breached its duty to maintain SR 9 in the area where Decedent's accident occurred in a reasonably safe condition because it did not exercise reasonable diligence to address the recurrent dangerous windblown snow condition there after it had adequate notice of its existence. Under the circumstance, the diligent plowing of Mr. Trombley was not enough. Once the State was made aware of the dangerous traffic condition, it was obliged to undertake a reasonable study of that condition in that area, with an eye toward alleviating the danger. That did not happen in this case, with tragic consequences. The Court also concludes that Decedent bears minimal responsibility on account of the speed of her vehicle.
All motions and cross-motions, with the exception of Defendant's Motion No. M-92488 as discussed above, are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.
The Chief Clerk is directed to enter interlocutory judgment accordingly. The Claim will be scheduled for trial on the issue of damages as soon as practicable. Instructions concerning the creation of a discovery schedule will be provided under separate cover.
December 7, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims