Opinion
# 2013-039-370 Claim No. 119977
04-30-2013
CARA LEE and MATTHEW LEE v. STATE OF NEW YORK
Synopsis
Following trial on liability arising from motor vehicle accident in Albany County, Court dismisses claim alleging negligent maintenance of roadway on grounds that uneven, bumpy road where third party car lost control and collided with claimants' car did not constitute dangerous condition, and alternatively, claimants did not establish that defendant's conduct was a proximate cause of the accident; evidence showed that third party driver's conduct, namely such vehicle's speed, was just as reasonable and probable a cause of accident.
Case information
UID: 2013-039-370 Claimant(s): CARA LEE and MATTHEW LEE Claimant short name: LEE Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119977 Motion number(s): Cross-motion number(s): Judge: James H. Ferreira Lynch & Hetman, PLLC Claimant's attorney: By: Peter A. Lynch, Esq. Stehle Hetman, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Joan Matalavage Assistant Attorney General Third-party defendant's attorney: Signature date: April 30, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim arises from a two car automobile accident in the early morning of February 5, 2010 on State Route 32 in the Town of New Scotland, Albany County. Claimants Cara and Matthew Lee filed a claim with the Clerk of the Court of Claims on June 17, 2011. Claimants contend that the New York State Department of Transportation (DOT) "was negligent in maintaining the road surface at the location of the . . . accident, and that such negligence created a dangerous condition which was a proximate cause of the . . . accident" (Claim, ¶ 2). Issue was joined and discovery ensued. A trial on the issue of liability was held on November 7, 8 and 9, 2012. Numerous exhibits were received into evidence, including photographs, deposition testimony and various DOT reports and guidelines. Claimants testified and called five witnesses, including two experts (an engineer and an accident reconstruction specialist). Defendant's witnesses included an expert and a former DOT engineer. Post-trial memoranda were also submitted and received.
The Court notes that claimants filed a "Notice of Claim" with the Court of Claims on June 17, 2011. Court of Claims § 11 governs the filing, service and content requirements for a "claim" or a "notice of intention to file a claim". A Notice of Claim is generally filed against municipal corporations (see N.Y. Gen. Mun. Law § 50-e). The Court observes, however, that claimants timely served a Notice of Intent to File a claim on May 4, 2010 and discerns no prejudice to defendant from the mislabeling of the papers filed on June 17, 2011, and accordingly, deems such papers filed to be a claim.
Claimants called Thomas Vresilovic, a seven year resident of Feura Bush, who testified that he observed emergency vehicles and State Troopers in his driveway, which exits into Route 32, at approximately 7:00 a.m. on February 5, 2010 (Tr. 15). He saw lights flashing from a part of Route 32 referred to as the S curve, located approximately 300 feet from his house and north of the S curve (Tr. 15-16, 38). The S curve begins at the point LaGrange Lane enters into Route 32 (Tr. 31). He agreed that the area is rural and agrarian, but noted that the road is "heavily traveled" (Tr. 26, 28, 39). Vresilovic was aware that DOT had considered a road reconstruction proposal to address the dips and curves in the road, but that funding became unavailable, and that ultimately the road was only repaved in late 2010 (Tr. 39, 40-41).
References to the trial transcript are delineated herein as (Tr. __).
Following the accident at issue, he wrote a letter to the DOT Commissioner, in his capacity as the President of the Feura Bush Route 32 Highway Safety Committee, urging action on the proposed DOT project for Route 32 (Tr. 17; claimants' exhibit 44). Vresilovic testified that he had also sent the DOT Commissioner a letter dated March 27, 2006, along with a disc containing a power point presentation, urging action on a proposal to improve the condition of the three mile stretch of Route 32 in Feura Bush (Tr. 20-21; claimants' exhibits 40 and 41). DOT responded by letter dated May 9, 2007, agreeing "that the road is in need of repair" but noting that many of the concerns raised would not be addressed by road construction and that its road maintenance projects requires prioritization and are constrained by available funding (claimants' exhibit 43).
Claimant Matthew Lee arrived at the accident scene approximately twenty minutes after receiving a phone call from his wife, claimant Cara Lee, who had been driving their then nine-month old son to daycare (Tr. 51, 52, 75). He could not recall the road surface conditions on the morning of the accident, but identified a series of photographs taken in his presence on April 28, 2010, approximately 80 days after the accident, depicting Route 32 heading northbound on the S curve towards the top of the hill crest (claimants' exhibits 3 - 6). Claimants' exhibits 7 through 9 depict the road condition on April 28, 2010 in the northbound lane near the top of the S curve (Tr. 56-59). Claimants' exhibit 10 shows the northbound lane approximately 100 feet from the top of the hill crest (Tr. 59). Claimants' exhibits 11 through 13 depict the S curve from the top of the hill crest looking southbound (the opposite direction of photographs 6 through 10) (Tr. 59-63). Mr. Lee acknowledged that in May 2010, claimants had filed a lawsuit in Supreme Court, Albany County against the driver of the other vehicle, Timothy A. Quinn, and Nicole N. Quinn, alleging, inter alia, unsafe speed and a failure to keep right, (Tr. 77-81; defendant's exhibit A).
Claimants' exhibits 3 through 14 are photographs taken on April 28, 2010 (Tr. 200). The posted "Rough Road" sign heading northbound toward the S curve, located at the intersection of La Grange Lane and Route 32, and depicted in claimants' exhibits 1 and 2 (also taken on April 28, 2010), was installed in March 2010 (Tr. 425-427, 435).
According to Mr. Lee, there was a settlement of this lawsuit (Tr. 77).
Timothy Quinn, the driver of the vehicle that struck claimants' car, testified that he was driving his five-speed Saab 9-3 Turbo northbound on Route 32 to his place of work in Glenmont at the time of the accident (Tr. 84, 99). The road was dry and he was familiar with the S curve and Route 32, estimating that he had driven that section of roadway 300 times per year since 1999 (Tr. 85, 89, 100, 376). The speed limit for Route 32 is generally 55 miles per hour, with an advisory speed limit of 35 miles per hour for the section of road where the accident occurred (Tr. 87; claimants' exhibits 4 and 5). He knew there were some rough areas on Route 32 (Tr. 101).
Quinn stated that as he approached the hill crest depicted in claimants' exhibit 7 "my vehicle started to slide out - - the rear end of my car started to slide to the right, at some point during that turn, and when I came over the crest, it was - - it was an absolute certainty that I was losing control of the car" (Tr. 90). He recalled "applying the brake and trying to correct, that is to, you know, turn back to the right and get my . . . vehicle squared up" (Tr. 93, 99). He was unable to correct it and the back end of the vehicle "just kept going out" in a counterclockwise direction (Tr. 93). His vehicle was north of the crest of the hill when it entered the southbound lane (Tr. 104) and as his vehicle "continued to slide into the southbound lane", he noticed the lights of claimants' vehicle (Tr. 95). Quinn was "hoping to have made it across that southbound lane fully" when "we had impact" (id.). Claimants' vehicle struck the passenger side of his car, which was now facing perpendicular to the southbound side of Route 32 (Tr. 96). The time between his vehicle starting to slide and impact was "a couple of seconds" (id.).
Photos taken at the accident scene were received into evidence as claimants exhibits 21 through 24.
As for his speed, while he could not recall the specific speed at trial, Quinn had estimated his vehicle's speed approaching the hill crest was "40-ish" at his deposition (Tr. 92, 97-98, 103). When asked directly as to what caused the back of his vehicle to slide out to the right, Quinn stated "I really don't know" (Tr. 98, 106), and could not identify, with any certainty, the location on the road when he first felt the rear wheels slide (Tr. 106). When asked during cross-examination if he felt bumpy road conditions before the rear wheels started to slide out, Quinn responded "I don't recall feeling bumpy road conditions" (Tr. 104).
Claimant Cara Lee testified that on the morning of February 5, 2010, she was driving with her son in her Subaru Forester station wagon southbound on Route 32. She had planned to take him to day care and then drive to her work at Cairo Durham Middle School (Tr. 108). She was familiar with the road, having driven that section of road "hundreds of times" over 10 years prior to the accident (Tr. 109, 119). She described the road conditions heading northbound depicted in claimants' exhibits 7, 8 and 9 as the same as the conditions present on February 5, 2010 (Tr. 114, 115, 116):
"They were rough, and they had potholes in them - - in the road . . . Prior to the accident, the road was always, as I remember it, very rough. For years that I drove on it, it was always like this" (Tr. 115).On the morning of the accident, Ms. Lee stated that she was driving southbound on Route 32 at a speed of 30 to 35 miles per hour as she approached the hill crest (Tr. 121). She did not see Quinn's vehicle until it was in her lane, perpendicular to her car, with its headlights illuminating the woods off the side of the road (Tr. 121-122, 132). She stated that she had no time to react and collided with Quinn's car (Tr. 122). Claimants' exhibit 22 shows both cars after impact, with Quinn's car in the foreground and claimants' car in the background.
"For years it was in this condition . . . I drove it every day, and I would slow down when I got to this point in the road . . . [b]ecause it was always rough like that, and I could always feel my car shake - - chat - - like chatter a little bit, as I went over that part of the road" (Tr. 119).
She stated further that the road conditions shown in the photos existed "[t]hree or four years" before the accident (Tr. 121, 125).
During cross-examination, she acknowledged that the area on Route 32 where the accident occurred is rural, curvy and posted with an advisory speed limit sign of 35 miles per hour and a caution sign indicating curves ahead (Tr. 127-129). She stated that she did not have personal knowledge of what caused Quinn's vehicle to lose control, or where on the road the Quinn vehicle began to lose control (Tr. 133, 136). During redirect examination, she identified an area on one of the DOT June 2007 photos heading northbound and approaching the hill crest on Route 32, which showed "the start" of the rough road conditions that "got worse" over time (Tr. 140; see claimants' exhibit 26-A). A photo showing that section of the road heading southbound in April 2005 was also received into evidence (Tr. 142-144; see claimants' exhibit 26-B).
Claimants called Bradford Silver, an accident reconstructionist, who testified that he had previously performed approximately 450 to 475 accident reconstructions and had appeared in court with respect to such work approximately 70 to 100 times for plaintiffs and defendants (Tr. 150, 152-153). Silver reviewed deposition testimony, photographs and the police report related to the accident, and visited the site in February and April 2011 (Tr. 155). Based upon his site visits and review of photographs taken the day of the accident (claimants' photographs 21-24), he was able to determine the final resting place of the vehicles (Tr. 160). Photographs marked as claimants' exhibits 3 through 14 showed the roadway almost three months after the accident (Tr. 160-161). Exhibit 9 he found "significant" because it showed the area where Quinn in his deposition had indicated "he was in when he felt the back of his car kick out, where the loss of control began" (Tr. 161). He found that Quinn's vehicle began to rotate prior to cresting the hill based on Ms. Lee's testimony that Quinn's car was already in her southbound lane as she approached from the other side of the hill crest:
"the initial loss of control occurred further back from the hill crest, in the lane, as Mr. Quinn had stated. So the physical evidence tends to support his statement that he was in his lane, when he feels the loss of control beginning. And he indicates he's close to the crest of the hill at that time"(Tr. 164-165).
Silver prepared an accident reconstruction diagram detailing, in his opinion, the path of the vehicles before and after impact (see Tr. 166, 179; claimants' exhibits 49, 49-A and 49-B). He assessed the speed of Quinn's car as "a little bit faster than that of the Lee vehicle" at "approximately 40 miles per hour at impact" (Tr. 169, 170), and at between 50 and 55 miles per hour as Quinn operated through the rough road area approaching the crest of the hill (Tr. 172-173; 215-219). His estimate of 40 miles per hour as the speed of Quinn's vehicle at the time of impact was based on Ms. Lee's testimony that she was traveling at a speed of 30 to 35 miles per hour and where her vehicle came to rest after impact with Quinn's vehicle (Tr. 169-170). He also based his speed estimate of the Quinn vehicle on Quinn's statement that he tried to apply the brakes but did not stay on the brakes throughout the crash (Tr. 170-171). This testimony prompted Silver to consider whether Quinn exceeded the maximum critical curve speed for that section of road, meaning the speed a vehicle could travel without leaving the road. On that section, he believed the critical curve speed was between 75 and 77 miles per hour (Tr. 171-172). At such a speed, the vehicle "would not have been able to hold the curve, and would have drifted off the edge and lost control (Tr. 172).
He calculated the speed of the Quinn vehicle as it operated through the rough road area by considering the impact speed of 40 miles per hour and working backwards, through the spinning of the Quinn vehicle and its perpendicular position to claimants' car at impact, and estimating friction values, determined that "the speed was no more than 50 to 55 miles per hour" (Tr. 173). Based on that number, he concluded that the Quinn vehicle was not exceeding the critical curve speed and "it tells me that the speed of the vehicle, per say [sic], was not a factor in the loss of control on the curve. That driving at 55 miles per hour, or 40 miles per hour, that he should have been able to negotiate that curve successfully, without losing control" (Tr. 173-174). Silver also noted the absence of dirt around the front and rear wheel, which indicated to him that Quinn's car was in his lane when he began to lose control and that the car had not gone off the road prior to impact (Tr. 184-186; claimants' exhibit 21).
Silver concluded that based on his analysis of the location of the vehicles after impact, the contact damage, the testimony from the vehicle drivers, and working backwards from the final resting places of the vehicles (Tr. 186-189), along with his finding "that excess speed, in terms of the critical curve speed was not a factor" (Tr. 191), and there being no evidence that Quinn's vehicle had left the road, '[t]he only thing that would cause that rear end to slide out, under these conditions, is the rough road" (Tr. 192; see also Tr. 196-197). He described the basis for that opinion as follows:
Q: What is the basis for your opinion that the cause of the vehicle to slide out to the right was the rough road?
A: "The - - when we're doing this, we tried to look at all the possible factors. And as I said, we've eliminated the critical curve speed. Excuse me. We've eliminated being off on to the shoulder of the road. And that was the driver steering off, then trying to recover. And we've looked at the alignment of the vehicle at impact at the crest of the hill, its position in the opposing lane. And then back into the rough patch. And the only thing that would cause that, is that rough section of the road to cause the rear of the vehicle to break loose and present the car at the hill crest in a broadside position.
Q: And how would that - - what do you mean by that, that the rough road would cause the vehicle to break loose. What does that mean?
A: The vehicle's entering a left-hand turn. And at that time, there is a force of the vehicle moving forward, but there is a component that is pulling it toward the outside - the curve. As long as the wheels are in contact with the ground, it's going to negotiate that curve, not a problem.
In fact, the rear wheels will track inside the front wheels. If, on a rough road, keep in mind you have more weight on the front axle than you do on the rear, as you enter this curve, as those rear wheels start to bounce, they lose contact. And while that wheel is off the ground, you basically have reduced the friction by - - let's assume one is on the ground, one is off. You've reduced the traction of that vehicle by 50 percent. And as they're bouncing, it is very easy for the rear end to start to kick to the right, while the two front tires are tracking through the curve
That is what we call a yaw condition, Y-A-W, and it's classic in vehicles that either are coming. . . too fast into a curve, or they have an irregular surface, or irregular friction value, that causes the rear end to kick out (Tr. 192-194).
During cross-examination, Silver stated that he did not have access to the two vehicles involved in the accident and did not have exact knowledge as to the condition of the road on February 5, 2010 (Tr. 198, 202). The police accident report prepared at 6:30 a.m. on February 5, 2010, lists no "apparent contributing factors" on Ms. Lee's part, but lists "unsafe speed" and "failure to keep right" as "apparent contributing factors" on Quinn's part (Tr. 206-208; defendant's exhibit E). No markings were made on the accident report for defective or slippery pavement, or defective shoulder (Tr. 208). Silver noted that the area at the base of the hill heading northbound is posted with cautionary curve chevrons and that motorists approaching the hill crest confront a curve-ahead sign and an advisory speed limit of 35 miles per hour (Tr. 218-220; claimants' exhibits 1-5). He acknowledged that he could not detect any yaw marks or skid marks, which would have given better indications of vehicle speeds (Tr. 211-214, 252-253).
The police accident report listed the roadway surface conditions as dry and the weather as clear (see defendant's exhibit E).
Lawrence Levine, a consulting engineer in private practice, also testified on behalf of claimants. His work includes consulting on accident reconstruction, roadway design, construction maintenance and transportation projects. In this matter, he reviewed Silver's accident reconstruction work, relevant DOT standards and guidelines, deposition testimony, photographs and reports related to the accident. He stated that the photograph depicted in claimants' exhibit 8, taken in April 2010, shows indications of cold patch or winter mix application to the road, layers of asphalt and "patches on top of patches", creating a "potholing, rough road effect" (Tr. 295-297). DOT records reflect pothole repair on Route 32 in November 2009 and January 2010 (Tr. 299-301; claimants' exhibit 30). He characterized the repairs as "temporary" (Tr. 304). He stated that DOT photographs taken in April 2005 and June 2007 show old and new areas of patching and indicate no significant work was undertaken (Tr. 313, 319; claimants' exhibit 26-B).
Levine stated that he visited the accident scene in 2012. He reiterated that the area was posted with a 55 miles per hour speed limit and an advisory limit of 35 miles per hour at the curve (Tr. 322, 354-355). During his visit, he checked the slope of the curve and used a ball banking instrument, which analyzes the centrifugal force as you drive through the curve at various speeds, to determine if the 35 miles per hour sign was correct (Tr. 320-321). He could not, however, offer any opinions on the elevation or the banking of the curve because it was not in the same condition as it was at the time of the accident (Tr. 321-322).
He stated that given the curve and the "uniquely bad" road condition, a rough road sign should have been posted (Tr. 330-331, 333; claimants' exhibit 9). He opined that Quinn's vehicle was traveling between 45 to 50 miles per hour through the curve, that the road was dry and that the vehicle should have been able to negotiate the curve but that his tires lost contact with the road because of the "road surface and the condition of the road" (Tr. 336-339). Levine concluded that the vehicle spun out not because of speed but because the "rear wheels kicked out" (Tr. 340).
During cross-examination, Levine acknowledged that while the cold patch used to repair the area where the accident occurred would not adhere to the road surface as well as hot patch, the latter fill was not available during the winter months (Tr. 348-349). He described the area where the accident occurred as rural, and that the road was originally built in 1913 and reconstructed in the 1930's (Tr. 353-354). He noted that the road had a speed limit of 55 miles per hour, an advisory speed limit of 35 miles per hour at the curve, and that as you proceeded northbound toward the curve, the road is windy and has other posted cautionary markers like chevrons and posted signs warning of curves ahead (Tr. 354-356). He acknowledged that his opinions were largely based on the April 28, 2010 photos and that he was retained by claimants as an accident reconstructionist and an engineer, but that the "true full reconstruction" was done by Silver, and that he relied on Silver's findings (Tr. 359, 367-368).
Defendant called Michael Johnson, a licensed professional engineer with DOT since 1983, who currently serves as the Regional Director of Operations for Region One, which includes Albany County (Tr. 408-409). In February 2010, as the Resident Engineer for Albany County, he oversaw highway maintenance, snow and ice removal, and emergency response efforts, as well as administrative, budgetary and staffing issues (Tr. 409-411). The 830 road miles roads within the county varied from high volume interstate roads to rural roads and highways, such as Route 32. Road maintenance responsibilities included pavement work, snow and ice removal, traffic sign installation and roadside ditch and drainage management (Tr. 413). He stated that potholes can occur quickly, even overnight, during periods of freezing and thawing (Tr. 414-415). Patching in the winter involves cold patching and in the summer DOT uses hot mix asphalt (Tr. 417). Hot mix asphalt "is a much better material to use for patching" as the cold patch does not adhere as well, dislodges and becomes like gravel (Tr. 418). He described the road shown in claimants' exhibit 9 as an area "rough with several surface delaminations", which are shallow pavement defects where the top layer does not adhere to the layers beneath it (Tr. 419). DOT records indicate asphalt work along Route 32 where the accident occurred on November 10, 2009, January 22, 2010, and January 27, 2010 (Tr. 424).
During cross-examination, Johnson acknowledged that the roadway depicted in claimants' exhibit 9 was a "repeat" area, meaning an area of repair work where asphalt had been previously applied, and that the upper layers of asphalt had separated from the lower levels (Tr. 450-451). No additional layers of asphalt had been added between February 5, 2010 and April 28, 2010 (Tr. 452). Johnson also noted that the roadway shown in claimants' exhibits 8 and 9 was the same roadway photographed by DOT in March 2010 (Tr. 442-444, 447, 452; claimants' exhibit 59 [photo in lower left hand corner]).
The photographs depicted in claimants' exhibit 59 were taken by Johnson, but were not produced by defendant to claimants until day two of the trial (Tr. 457-459, 539-540).
Defendant also called William Logan, a professional engineer and consultant, who worked at DOT for 35 years in a variety of positions, including Resident Engineer for Albany County (Tr. 480-481, 483). He visited the accident scene four times and described that portion of Route 32 as "rural" (Tr. 485). Logan noted that in February 2000, DOT had prepared a Final Design Report for a proposed reconstruction of Route 32, which would have included the S curve area, but that the project was not completed (Tr. 487-488; claimants' exhibit 58). He noted the DOT signage along Route 32 in the vicinity of the accident including chevrons, which indicate the road is curving, cautionary signs regarding driveways and curves, and a sign posting an advisory speed of 35 miles per hour (Tr. 493-496). He stated that potholes can occur overnight because of freeze and thaw cycles (Tr. 497). Based on his review of claimants' exhibit 9, he believed that "[t]here's no way to know" whether the pavement condition depicted in that April 28, 2010 photo existed on February 5, 2010 (Tr. 504). He stated further "[i]t could have deteriorated over that period of time. It could have been fine back in February and deteriorated to this condition" (id.). Logan opined that "a reasonable effort was put out by DOT to maintain the pavement in that area (Tr. 513).
During cross-examination, Logan acknowledged the existence of rough road and cracking in the northbound lane of 32 approaching the crest of the hill (Tr. 529-531; claimants' exhibits 26-A and 26-B). He also stated the rough road shown in the March 2010 photograph depicts the same rough road area depicted in claimants' exhibit 9 (Tr. 536; claimants' exhibits 59-A and 59-B). He stated that he was aware that the rough road area where the accident occurred was a "repeat" area, and that DOT had not performed work on the rough road section between the date of the accident and April 28, 2010 (Tr. 540-541).
LAW
It is well established that the State is under a continuing "nondelegable duty to maintain its roads in a reasonably safe condition" (Friedman v State of New York, 67 NY2d 271, 286 [1986];accord Bottalico v State of New York, 59 NY2d 302, 305 [1983]; Lopes v Rostad, 45 NY2d 617, 623 [1978]; Levine v New York State Thruway Auth., 52 AD3d 975, 976 [3d Dept 2008]). This duty "is intended to protect the traveling public," (Lopes v Rostad, 45 NY2d at 624), and its duty in this respect "extends . . . to the road surface and shoulders" (Rinaldi v State of New York, 49 AD2d 361, 363 [3d Dept 1975]; see Chalk v State of New York, 147 AD2d 810, 811 [3d Dept 1989]). Notably, "[t]he design, construction and maintenance of public highways is entrusted to the sound discretion of municipal authorities and so long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied" (Tomassi v Town of Union, 46 NY2d 91, 97 [1978] [emphasis added]; see Ciasullo v Town of Greenville, 275 AD2d 338 [2d Dept 2000], lv denied 96 NY2d 707 [2001]).
The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Schmidt v State of New York, 21 Misc 3d 1114 [A] [2005], affd 39 AD3d 1237 [2007]). "[A] claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]; Guller v Consolidated Rail Corp., 242 AD2d 283, 284 [2d Dept 1997]; Bouloukos v Blank, 202 AD2d 539, 541 [2d Dept 1994]; Levitt v County of Suffolk, 166 AD2d 421, 423 [2d Dept 1990], lv dismissed 77 NY2d 834 [1991])" (Perez v State of New York, UID No. 2009-040-081 [Ct Cl, McCarthy, J., Oct. 28, 2009]), and the driver of a vehicle shall not drive "at a speed greater than is reasonable and prudent under the conditions and [with] regard to the actual and potential hazards then existing" including "when approaching and going around a curve" and "when approaching a hill crest" (Vehicle and Traffic Law § 1180 [a], [e]).
In order to recover, claimants must show that the State either created a dangerous condition, or had actual or constructive notice of it, and failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]; Dispenza v State of New York, 28 Misc 3d 1205 [A] [Ct Cl 2010]; see also Brown v State of New York, 79 AD3d 1579, 1582 [4th Dept 2010]). A defendant's creation of a dangerous condition constitutes actual notice (see Mercer v City of New York, 223 AD2d 688, 690 [2d Dept 1996], affd 88 NY2d 955 [1996]; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [1st Dept 1984], affd 64 NY2d 670 [1984]). " 'To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [defendant] to discover and remedy it' "(Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798, 799 [2d Dept 2005], quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; accord Cantwell v Rondout Sav. Bank, 55 AD3d 1031, 1032 [3d Dept 2008]). "Whether something constitutes a dangerous condition is almost always a question of fact that turns upon the particular circumstances of each case" (Yona v New York City Tr. Auth., 93 AD3d 406, 406 [1st Dept 2012]; accord Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005 [3d Dept 2005]).
In addition, no liability will attach unless the ascribed negligence of the State is a proximate cause of the accident (see Johnson v State of New York, 27 AD3d 1061, 1062 [4th Dept 2006],rearg denied 30 AD3d 1115 [4th Dept 2006], lv denied 7 NY3d 711 [2006]; Ring v State of New York, 270 AD2d 788, 789 [3d Dept 2000]; Travalino v State of New York, 203 AD2d 276, 277 [2d Dept 1994]). "In order to set forth a prima facie case, the [claimants] must establish that the defendant's acts were 'a substantial cause of the events which produced the injury' " (Carson v Dudley, 25 AD3d 983, 983-984 [3d Dept 2006], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; see Locilento v Coleman Catholic High School, 134 AD2d 39, 41 [3d Dept 1987] [claimants "must demonstrate that defendant's negligence was a substantial factor in bringing about the injury"]). That is, claimants are required to prove " 'that it was more likely or more reasonable that the alleged injury was caused by. . . defendant's negligence than by some other agency' " (Pipp v Guthrie Clinic, Ltd., 80 AD3d 1014, 1015 [3d Dept 2011], quoting Gayle v City of New York, 92 NY2d 936, 937 [1998]). " 'Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury' " (Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987], quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; see Lopez v Adams, 69 AD3d 1162, 1165 [3d Dept 2010]; White v State of New York, 41 AD3d 1071, 1073 [3d Dept 2007]). "A prima facie case of negligence must be based on something more than conjecture; 'mere speculation regarding causation is inadequate to sustain the cause of action' " (Mandel v 370 Lexington Ave., LLC, 32 AD3d 302 [1st Dept 2006], quoting Segretti v Shorenstein Co., E., 256 AD2d 234, 235 [1st Dept 1998]).
DISCUSSION
The crux of claimants' negligence claim against defendant is that claimants' injuries were caused by a dangerous condition on Route 32, namely the rough road area approaching the hill crest in the northbound lane. Upon applying the aforementioned principles and weighing the evidence proffered at trial, including the exhibits received into evidence and the testimony and demeanor of the witnesses, the Court finds that claimants have not proven their case of negligence against defendant. The Court finds that the section of the road where the accident occurred did not constitute a dangerous condition. Even assuming that the rough road area was a dangerous condition and that defendant had notice of such condition, the Court finds that claimants did not establish that the pavement condition was a proximate cause of the accident.
At the outset, it bears mention that motorists driving northbound along the stretch of Route 32 where the accident occurred were already on notice to proceed with some degree of caution as they headed toward the hill crest. The record is clear that the road was lined with markers advising motorists of changing road conditions and areas of reduced speed, including chevrons warning of bends, signs denoting curves and driveways ahead, and a sign posting an advisory speed limit of 35 miles per hour.
As for the rough road area where claimants allege Quinn lost control of his vehicle, crossed into the southbound lane and collided with the Lee vehicle, the evidence does reveal a rough and bumpy road surface. Photographs taken in March 2010 and April 2010 show a pitted and uneven road surface approaching the hill crest (see claimants' exhibits 7 - 9, 11, 12, 59-A, 59-B). At the same time, despite the rugged and unlevel pavement, the road was usable for motorists. DOT road crews had tended to the road, performing maintenance work, including patching, along Route 32 during the months preceding the accident (Tr. 422-424). Vresilovic described the road as "heavily traveled" (Tr. 28). While claimants rely to a great extent on photographs of the rough road area taken by claimants on April 28, 2010 (see claimants' exhibits 1-14), eighty days after the accident, no measurements were taken and offered at trial showing either the depth, width or elevation of the allegedly defective pavement conditions. There was also no proof of any relevant or recent accident history at this particular section of road prior to February 5, 2010. While the Court agrees that the portion of road surface immediately south of the hill crest was irregular, choppy and in need of a more permanent paving solution, the Court is not persuaded that the road surface was a dangerous condition based on its review of the photographs, the absence of proof as to the size and depth of the road conditions, the use of the road by other motorists without incident, and the various signs and postings situated along the road advising motorists to proceed with care.
The Court did not find relevant or persuasive a DOT accident history analysis for the stretch of Route 32 that includes the rough road area since the data was compiled between 1987 and 1996 and because it cannot be gleaned from the analysis whether the accidents reported either occurred around mile marker 1126 or were attributable to rough road conditions (see Tr. 461-462; claimants' exhibit 58 at II-21-25; exhibit 49-B).
Even accepting claimants' argument that the rough road area created a dangerous condition and that defendant had notice of the condition, the Court finds that claimants did not prove that "defendant's conduct was a substantial causative factor in the sequence of events that led to . . . injury" (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520 [1980]). The record indicates that on the morning of February 5, 2010, the portion of Route 32 at issue was open and traversable. The road was dry and there was no credible evidence of precipitation that morning, or that the road was covered with snow or ice. There was also no evidence of any prior accidents at this location or of any accidents attributed to pavement conditions on this portion of Route 32. Ms. Lee testified that she did not know what caused Quinn's car to cross over into her lane or where on the northbound lane of Route 32 Quinn's car lost control. She also testified that she had driven that part of Route 32 for over 10 years prior to the accident and that she would slow down as she traveled over the rough road section, which she recalled had been in that condition for "three or four years" prior to February 5, 2010 (Tr. 120-121). More telling is evidence that Quinn had driven that stretch of road at the same time in the morning each of the preceding four days without incident and almost daily for over ten years (Tr. 85, 99-101). In addition, Quinn testified that on the morning in question he did not slow down as he approached the crest of the hill, but knew there were rough road areas along Route 32 as well as cautionary signage for motorists driving northbound toward the hill crest (Tr. 101, 103, 104). Moreover, in direct response to a question asking him did he sense bumpy road conditions prior to the rear wheels kicking out, Quinn stated "I don't recall feeling bumpy road conditions" (Tr. 104). In other words, the person with firsthand knowledge of the collision could not identify what caused his car to lose control (Tr. 98, 106). The police accident report also attributes unsafe speed and failure to keep right by the Quinn vehicle as contributing factors (see defendant's exhibit E).
The Court did not find persuasive the opinions of claimants' experts that the road condition was the reason the Quinn vehicle lost control and skidded out. In the Court's view, both of claimants' experts appeared to discount and/or ignore the speed of Quinn's car as it traversed the rough road and approached the hill crest. Silver, in reaching his conclusion, leaves out the fact that by his own estimations, Quinn was traveling at 50 to 55 miles per hour on the rough road, in an area with a posted advisory speed of 35 miles per hour, with chevrons indicating turns ahead and with signs warning of driveways and an S curve (see claimants' exhibits 1-5). Although the 35 miles per hour speed limit is advisory in nature, Silver still estimates Quinn's vehicle as traveling up to 25 miles per hour above that number over that stretch of road. Without considering speed as a factor, it cannot rationally follow that the rough road condition alone caused this accident as Silver expressly contends (Tr. 196-197). Accepting Silver's theory would imply that speed had no role in the crash, meaning that a car going 20 to 25 miles per hour over the rough road would be just as likely to lose control and spin out as a car going 50 to 55 miles per hour. To the court's knowledge, there has been no evidence of other accidents on this section of road and both Quinn and Ms. Lee had traveled that road almost daily for over 10 years prior to the accident, and Quinn had driven it the four days immediately preceding the accident.
The Court found Levine's testimony on this point similarly unpersuasive. He initially states that Quinn was "going maybe 40" or "about 40 plus or minus", without explaining the basis for that number and without stating whether that was the speed at impact or when he was traversing the rough road area (Tr. 337). He later clarifies his speed estimate to 40 miles per hour at impact and that Quinn "could have been going 45 - 50 when he went over" the rough road section, which is still above the 35 miles per hour advisory limit (Tr. 339). Levine contends that Quinn "wasn't speeding" and "should have been able to make it around that curve at , you know, 45, 50, no problem. He lost it, because his tires had nothing to touch" (Tr. 337) and that "[t]he road surface and the condition of the road" caused the loss of control (Tr. 338). In his view, Quinn's speed over the rough patch was not a factor:
I feel that with centrifugal force on this curve, if he was going way too fast for the curve, the car would have spun out and just gone off the curve - - went into the trees. . . . I don't think it's speed related. He didn't go off the road - - off the curve onto the shoulder and into the trees. He stayed on the road. He did spin out. And the question is why did he spin out. The only reason he spun out, I believe, is his rear wheels kicked out (Tr. 340). Levine's opinion that speed was not a factor, thus implying, like Silver, that vehicles traveling at practically any speed would lose control while negotiating the section of road heading northbound toward the hill crest, is reasoning this Court finds implausible. In any event, Levine subsequently contradicts himself. When asked directly "was the speed that the Quinn vehicle was traveling a cause of the accident" Levine initially states "I don't believe that - - he wasn't going too fast, if that's what you mean, for the road. No. He wasn't going too fast for the road" , but immediately follows that sentence with the statement: "He certainly was obviously going too fast for what we see here" (Tr. 341) (emphasis added). Here, Levine belies his own testimony that speed was not a factor by expressly acknowledging that Quinn "was obviously going too fast" for the conditions depicted in the photograph, road conditions which claimants argue were present on February 5, 2010. The credibility of Levine's testimony was further diminished when he discounted the significance of the location on the road where Quinn lost control of his vehicle:
Levine's comment "for what we see here" refers to claimants' exhibit 9, the photograph taken April 28, 2010 (see Tr. 333).
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Q: You don't know if the tire was in contact with the surface of the road at any given time, do you?
A: All I know is that it wasn't in contact with the surface as it should have been, if it was paved properly or patched properly.
Q: But you don't know where that loss of contact occurred do you?
A: It doesn't matter.
Q: You don't know when it occurred in relationship to the crest of the hill, do you?
A: It doesn't matter either, because it just matters in terms of - did the - what did the car do before it hit the other car (Tr. 372).
The Court finds this reasoning incredible given that where the car lost control has everything to do with proving the causation prong of claimants' cause of action (see e.g., Wilhelm v State of New York, 9 AD2d 794 [3d Dept 1959]).
Consequently, the Court finds that claimants failed to prove that the pavement was "a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d at 315). Rather, in the Court's view, the evidence shows that it was "more likely or more reasonable" that the speed of the Quinn vehicle was a cause of the accident (Gayle v City of New York, 92 NY2d at 937), or at a minimum, that the operation of the Quinn vehicle was "just as reasonable and probable" a cause of the accident (Ingersoll v Liberty Bank of Buffalo, 278 NY at 7; see Marrow v State of New York, 105 AD3d 1371 [4th Dept 2013]).
Therefore, for the aforementioned reasons, the Court finds that claimants have failed to prove by a preponderance of the credible evidence their claim against defendant. Accordingly, this claim is dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
April 30, 2013
Albany, New York
James H. Ferreira
Judge of the Court of Claims