Opinion
# 2018-029-019 Claim No. 123443
03-01-2018
JENNIE RIVERA, AS ADMINISTRATRIX OF THE ESTATE OF SARAH FORCE, DECEASED, AND JULIE GONZALEZ, AS ADMINISTRATRIX OF THE ESTATE OF PAUL FORCE, DECEASED v. THE STATE OF NEW YORK
PHILLIPS & MILLMAN, LLP By: Frank J. Phillips, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General
Synopsis
A vehicle driving south on Route 17 crashed into another vehicle waiting to turn left for the Harriman Train Station, crossed the yellow line and collided with the northbound vehicle of Mr. and Mrs. Force. Mrs. Force was killed and Mr. Force was injured; he died from unrelated causes before the September 5 and 6, 2017 trial on liability. The court found that claimants did not present prima facie evidence of defendant's liability for wrongful death and negligence, based on the failure to require, in the work permit issued to Metro-North in 2005 for expansion of its parking lot, the installation of a traffic signal at the station access driveway/Route 17 intersection, and a separate southbound left-turn lane.
Case information
| UID: | 2018-029-019 |
| Claimant(s): | JENNIE RIVERA, AS ADMINISTRATRIX OF THE ESTATE OF SARAH FORCE, DECEASED, AND JULIE GONZALEZ, AS ADMINISTRATRIX OF THE ESTATE OF PAUL FORCE, DECEASED |
| Claimant short name: | FORCE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123443 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | PHILLIPS & MILLMAN, LLP By: Frank J. Phillips, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 1, 2018 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim for wrongful death and negligence seeks damages for injuries sustained by Sarah and Paul Force, and Mrs. Force's subsequent death, arising out of a May 27, 2012 motor vehicle accident on State Route 17 ("Route 17") in the Town of Woodbury near the intersection with Station Road, which leads to the Harriman Train Station. Claimants assert that defendant was negligent in failing to require, in the work permit issued to the Metro-North Railroad ("Metro-North") in 2005, the installation of a traffic signal at the station access driveway/Route 17 intersection, and a separate southbound left-turn lane. Mr. Force died from unrelated causes after the claim was filed. Administratrixes of the Forces' estates were substituted as claimants in the action. A trial on liability only was held on September 5 and 6, 2017.
Claimants called the following witnesses: Richard Newhouse, a licensed professional engineer testifying as an expert in traffic and highway safety; Erik Johnson, a retired police officer from the Town of Woodbury Police Department; and Glenn Boucher, an employee with the New York State Department of Transportation ("NYSDOT"). Claimants' Exhibits 1-5, and 9-27 were admitted into evidence. Exhibit 27, a transcript of the deposition of William Fitzpatrick, was limited to Mr. Fitzpatrick's testimony as a fact witness. Defendant called one witness, Nicholas Pucino, a licensed professional engineer testifying as an expert in highway design and accidents. Defendant's Exhibits A-D, E1-E2, G1-G18 and H-L were admitted into evidence. The experts' Curricula Vitae were admitted as court Exhibits 1 and 2.
Mr. Fitzpatrick was unable to testify at trial due to illness.
The description of the area and the facts of the accident are clear and undisputed. Route 17 is a four-lane highway with two southbound lanes separated by a yellow center line from two northbound lanes. White skip lines separate each of the two lanes on both sides. The speed limit is 55 mph. As vehicles traveling south on Route 17 approach the intersection with Station Road, there is a downgrade, a horizontal curve and a vertical crest curve in the road. There are two lanes exiting the station, one to turn south and the other to turn north (9/5/17 Trial Transcript ["T"]: 53-54. Southbound vehicles bound for Harriman Train Station would turn left from the left lane of Route 17, waiting if necessary for any additional traffic to clear, then drive across the northbound lanes of Route 17 onto Station Road and into the station parking area (9/5/17 T: 186-187; Exhs. 13-15 [photographs of the road]; Exh. 1 [draft report]).
On Sunday, May 27, 2012. at approximately 1:15 p.m., Mr. and Mrs. Force were traveling northbound on Route 17 and approaching the intersection with Station Road and the entrance to the Harriman Train Station, which is on the east side of Route 17. Two vehicles were stopped in the left lane waiting to make a left turn. Rather than swerving to the right where there was an open lane, a third vehicle collided from the rear with the second of the two vehicles, then crossed the yellow line and entered the northbound lanes where it collided with the Forces' vehicle head-on. Mrs. Force was killed and Mr. Force was seriously injured (Exh. 25 [MV-104A]; Exh. B [collision reconstruction report]).
Claimants presented evidence showing that ten years earlier, Metro-North had hired a private firm to conduct a traffic impact study and signal warrant analysis to support an application for a permit from NYSDOT to add 335 new parking spaces to the Harriman Train Station parking lot. In August 2002, Metro-North submitted its draft traffic impact and signal warrant report ("draft report") to NYSDOT (Exh. 1; 9/5/17 T: 59-60). The draft report provided "an analysis of the traffic-related impacts associated with expansion of the [Harriman Train Station] parking lot," and made the following recommendations for mitigation of projected delays resulting from projected traffic volume increases: a traffic signal at the station access driveway/Route 17 intersection; and widening of Route 17 to accommodate one 475-foot exclusive southbound left-turn lane (Exh. 1: 1-2). The left-turn lane would be necessitated by installation of the traffic signal, which could result in increased queuing of left-turning vehicles on the southbound side of Route 17 (9/6/17 T: 271-272, 280, 307-309).
Both experts testified that signal warrants are engineering criteria defining the minimum conditions under which installing traffic signals would be justified. Satisfaction of one or more warrant is required for a signal installation, but meeting a warrant does not automatically require installation of a signal (9/5/17 T: 124; 9/6/17 T: 270-271).
William Fitzpatrick was the regional traffic engineer at NYSDOT in 2002-2003. Glenn Boucher was the coordinator of the highway work permit unit at that time. The draft report would have been submitted to the work permit unit for review of the study's data collection, analysis and conclusions (Exh. 27 [Fitzpatrick deposition]: 15-17, 25-27, 31-38). Boucher testified that during the review, there would be discussions with Metro-North, and the permit unit would make comments as needed (9/6/17 T: 227-228, 245-247).
The final report, submitted in October 2002 (Exh. 26 [final report]), recommended the same mitigation measures, but reflected a change in Metro-North's project plan. Instead of building 335 new fixed spaces "[t]o meet growing needs," they planned to "build at least 175 (net) new spaces with the option of adding 335 (net) new parking spaces" (Exh. 26: 1). Boucher testified that this was a change in the project scope requiring a new analysis, which he did not see in the final report (9/6/17 T: 281-282). There was no dispute that the recommended mitigation measures were based on the proposed optional maximum buildout adding 335 new parking spaces (Exh. 27: 65-66; 9/6/17 T: 243). Boucher explained that even a proper and acceptable traffic impact study does not mean NYSDOT will automatically put into place what the permitee is recommending (9/6/17 T: 247, 270-271).
Both the draft and final reports projected that the complete proposed build-out would result in increased traffic volume and delay at peak times of day, which would meet warrant numbers 10 and 11 concerning peak hour volume and delay. Both reports also show that the existing conditions did not meet any warrants, including, inter alia, number 6 concerning accident history (9/5/17 T: 120-123, 9/6/17 T: 280). Number 6 requires five or more angle accidents correctable by a traffic signal (9/6/17 T: 298-299).
In a December 12, 2002 letter to Deborah L. Buckley at Metro-North, Richard Dillmann, NYSDOT's then assistant regional traffic engineer, stated,
"We have reviewed your signal warrant analysis and concur with the conclusion that a traffic signal would be warranted at intersection of State Route 17 and train station access if the existing lot were to be expanded by 335 parking spaces. Also, State Route 17 would require a new southbound left turn lane to be added to its existing four lane section."
(Exh. 4). Seven months later, on July 14, 2003, a highway work permit was issued without the requirement for the signal or the stacking lane (Exh. 12). The permit authorized Metro-North to add a new lane to allow for separate left and right turns at the station driveway exit. Fitzpatrick testified at this deposition that it would be unusual for mitigation measures approved by NYSDOT not to be included in the permit, without additional analysis. When told that Dillmann testified at his deposition that NYSDOT frequently did not include previously approved measures in the permit, Fitzpatrick said he disagreed (Exh. 27: 48-53). According to Boucher, how a permit application is handled depends on the circumstances, and the permit reflects NYSDOT's best determination based on reviews it has conducted (9/6/17 T: 260-262). The completed work was approved by NYSDOT on August 17, 2004 (Exhs. E1, H).
Boucher explained that in deciding whether to implement recommended mitigation measures, NYSDOT would consider the pluses and minuses of adding a traffic signal that would impede traffic on the highway and increase rear-end accidents (9/6/17 T: 271-272). He did not recall this particular application and he was not aware of documentation indicating why the work permit was issued without requiring the mitigating measures, but based on this review of the traffic impact study, nothing indicated there were existing safety concerns at this time of the application (9/6/17 T: 244, 247-249, 274-276).
The permit file produced by the State in discovery did not contain such documentation. Boucher had seen other incomplete permit files. Fitzpatrick testified at his deposition that it was not uncommon for documentation to be missing from a file ten years after an event (Exhibit 27: 87).
There are indications in the file that NYSDOT and Metro-North had reanalyzed the traffic impacts at some point. However, every witness indicated that they did not know of, or see, such additional analysis and the only real information appears in a July 21, 2003 internal memorandum to the "Metro-North Committee" from Howard Permut (Exh. H). The memo refers to a warrant analysis showing that a traffic signal was not necessary with the addition of 175 spaces, but a traffic signal and a new southbound lane would be required once an additional 60 spaces above the 175 were added. The memo also refers to discussions between Metro-North and NYSDOT over the past ten years "regarding the need for a traffic light at the station entrance/exit," and NYSDOT's determination that a light was not warranted. No one from Metro-North testified at trial.
The parking lot was paved in accordance with the construction plans provided to NYSDOT. The initial plans showed striping for all of the proposed 335 spots. The as-built plans in 2005 showed that an estimated 70% of the proposed new spaces had been striped to designate parking spaces (Exhs. 11; 9/6/17 T: 232-233, 368-370). Striping of all 335 new parking spaces did not occur until 2014, after the accident (Exh. J [aerial photographs]). Defendant's expert, Nicholas Pucino, testified that as of 2010, 306 new spaces in the expansion lot had been striped (9/6/17 T: 372-373). Claimants' expert, Richard Newhouse, concluded that Metro-North had constructed all 335 new parking spaces by paving the entire area, even though not all the spaces had been striped (9/5/17 T: 113-119). Boucher testified that putting down blacktop does not change the volume of vehicles using the parking lot (9/6/17 T: 265-266).
Newhouse concluded to a reasonable degree of engineering certainty that: if the traffic signal and left-hand turn lane had been included in the work permit, the accident would have been prevented; the State's failure to include the traffic signal and left-hand turn lane in the work permit created an unsafe condition and was the substantial cause of the accident (9/5/17 T: 86-87). Interestingly, he did not consider the accident history at the intersection in coming to his conclusion because he did not consider it relevant (9/5/17 T: 96-97).
Mr. Pucino, a highway engineer, explained that although a traffic signal can improve safety and efficiency at an intersection, it also adds delay for motorists and increases the risk of rear-end accidents. Determination of whether installation of a signal is justified is an engineering decision that requires an evaluation of the actual operation of the intersection and its accident history, and a risk versus benefit analysis. Pucino's opinions were based on his examination of the condition and operation of the intersection in 2012. He reviewed the permit file as background, the actual use made of the station's parking lot (Exh. J), and the accident history, and he visited the site to observe the actual operation of the intersection. Pucino concluded to a reasonable degree of engineering certainty that the absence of a traffic signal and a left-turn lane at the intersection in May 2012 did not create a dangerous condition (9/6/17 T: 297-299).
Pucino found that a five-year review of the accident history at the intersection prior to the May 2012 accident did not show a pattern of similar accidents. There was only one accident, in 2009, at the intersection in which a motorist changing lanes to avoid a left-turning vehicle hit the latter's bumper and pushed it into a northbound vehicle (Exh. 25; 9/5/17 T: 180-187 [Officer Erik Johnson]). He testified that the happening of this single accident in the decade since the permit was issued to Metro-North was not indicative of a dangerous condition. He also concluded, from a safety standpoint, there was no deficiency in the visibility or other physical attribute of the intersection that contributed to or caused the accident (Exh. 25; 9/6/17 T: 320-321, 340-341).
Other accidents in the area were either animal-related or had nothing to do with the intersection's lack of traffic controls. --------
"The State of New York has an absolute, nondelegable duty to those using its roadways to design, construct, and maintain them in a reasonably safe condition, taking into account such factors as existing traffic conditions, terrain and fiscal practicality" (Lake v State of New York, 56 Misc 3d 1203(A) [Ct Cl 2015], affd 151 AD3d 1425 [3d Dept 2017]; see Friedman v State of New York, 67 NY2d 271 [1986]; see also Weiss v Fote, 7 NY2d 579 [1960]). However, the State is not the insurer of those who drive on its roads, and the fact of an accident does not render the State liable (see Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]).
To prove the State's liability, a claimant has the burden of establishing that the State was negligent and that its negligence was a substantial factor in causing claimant's accident and injuries (see Kampff v Ulster Sanitation, 280 AD2d 797 [3d Dept 2001]). A claimant can sustain its burden by establishing that the State had actual or constructive notice of, or created, a dangerous condition that caused the accident, and then failed to take reasonable steps to correct it (see Amendola v City of New York, 89 AD3d 775 [2d Dept 2011]; see also Fowle v State of New York, 187 AD2d 698, 699 [2d Dept 1992], and that such negligence was a proximate cause of the accident (see Johnson v State of New York, 27 AD3d 1061, 1062 [4th Dept 2006], lv denied 7 NY3d 711 [2006]).
In the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision (see Carbonaro v Town of N. Hempstead, 97 AD3d 624, 625 [2d Dept 2012]). The State may not be held liable unless claimant established that the decision was made without adequate study or was unreasonable (see Friedman v State of New York, 67 NY2d 271, 284 [1986]; see also Weiss v Fote, 7 NY2d 579 [1960]).
Claimants presented no evidence showing that the absence of a traffic signal and separate southbound left-turn lane at the intersection was a dangerous conditions or posed an unacceptable risk of harm to its reasonable use by motorists. On the other hand, defendant's expert testified to his examination of the condition and operation of the intersection in 2012 when the Forces' accident occurred. His analysis was not confined to a decade old traffic study and warrant analysis based on future projected traffic operations and conditions. He found that the parking was under-utilized, there was no historical pattern of left-turn and crossing accidents that would justify the installation of a traffic signal, and there were no other environmental factors indicating that the intersection's operation without a signal was a safety risk. To the contrary, he concluded that the uncontrolled intersection operates reasonably safe and with efficiency, and claimants presented nothing to suggest otherwise. "Nor could the fact that one prior accident had occurred at this same, very busy location (see, Niles v State of New York, 201 AD2d 774, 776), under markedly different circumstances, be considered to have put the State on notice of a dangerous condition" (Patti v State of New York, 217 AD2d 882, 883 [3d Dept 1995]).
In the tragic accident here, the sole proximate cause was the actions of the driver of the southbound colliding vehicle, not road design, which is exactly the conclusion drawn by the trooper who prepared the collision reconstruction filings report: "No roadway, vehicle or the environment factors appear to contribute to the cause of the collision. The primary cause of this collision was driver inattention on the part of the operator of vehicle #3" (Exh. B.; see Tomassi v Town of Union, 46 NY2d 91, 97 [1978] [finding the Town was not liable, and concluding that the accident was caused by the failure of both drivers to obey the rules of the road]).
Instead of offering proof that the intersection was not reasonably safe in its actual operation in 2012 at the time of the accident, claimants argued that the pre-permit letter to Metro-North from NYSDOT, agreeing with the recommendation of a traffic signal and southbound left-turn lane at the intersection with the addition of 335 new parking spaces, created a duty to put same in the permit. In essence, claimants' argument is that the State's duty to remedy a dangerous condition arose seven months before issuance of the permit and before the "dangerous condition" had even manifested. This argument is illogical and contrary to the law.
Generally, the decision whether to issue a permit or whether to install a traffic control device " 'is a discretionary determination and the actions of the government in such instances are immune from lawsuits based on such decisions' " (Sharp v Incorporated Vil. of Farmingdale, N.Y., 129 AD3d 821, 822 [2d Dept 2015], lv denied 26 NY3d 908 [2015] [complaint over delay in issuing building permit dismissed] quoting City of New York v 17 Vista Assoc., 84 NY2d 299, 307 [1994]; see Cimino v City of New York, 54 AD2d 843 [1st Dept 1976], affd 43 NY2d 966 [1978] [no evidence of causal connection between accident and lack of traffic light in uncontrolled intersection, and city was immune]).
Claimants would have this court curtail NYSDOT's discretion to continue its review and study of the permit application prior to its actual issuance. The court will not do so, particularly under these circumstances. Claimants do not dispute the evidence that in 2002-2005 the uncontrolled intersection did not meet any warrants. They base their argument on the traffic impact study's projection of a future safety risk that could arise if Metro-North were to exercise its option to build all 335 new parking spaces. However, the evidence showed that in 2012, when the accident occurred, Metro-North had not built all 335 additional spaces. So even under claimants' theory, the projected safety risk had not yet arisen.
The court does not credit the testimony of claimants' expert, Richard Newhouse, that the maximum build-out of 335 new parking spaces was completed by simply paving the additional parking area (9/5/17 T: 109-119, 126). The as-built plans (Exh. 11) showed striping of spaces on less than the entire area, and none of the other witnesses were of the same opinion as Newhouse. Indeed, his conclusion ignores the language in the final report (Exh. 26) submitted by Metro-North to NYSDOT, that the plan was to build 175 (net) new spaces with the option to build 335. As of 2012, Metro-North had not yet fully executed that option, and even after it did in 2014, according to defendant's expert, the intersection stayed reasonably safe without a traffic signal. The court will not hold the State liable for exercising it's discretion to not require an improvement which did not appear necessary prior to this accident.
Finally, claimants argue that the State's decision not to include the recommended mitigation measures in the permit was a design decision made without adequate study and without a reasonable basis. To make out a prima facie case against the State on a theory of negligent planning, claimants were required to show, inter alia, that the State's failure to install a traffic light and separate left-turn lane at the intersection was negligent under the circumstances, and that there was not reasonable basis for the State's inaction (see Soto v City of New York, 63 AD3d 1035, 1036 [2d Dept 2009] [affirmation grant of city's cross-motion for judgment dismissing the complaint where evidence did not show placement of guardrails was unreasonable]; see also Dahl v State of New York, 45 AD3d 803, 805 [2d Dept 2007] [agreeing with Court of Claims that claimants failed to establish "through proof of prior similar accidents, violations of mandatory safety standards, or any other evidence, that the absence of guide rails in the vicinity of the accident lacked any reasonable basis"]; Affleck v Buckley, 96 NY2d 553, 556 [2001]). The credible evidence established a reasonable basis for the State not to include, in the 2005 permit, installation of a traffic signal and separate left-turn lane at the Harriman Train Station intersection. Based upon the evidence and testimony in the record, the intersection was reasonably safe.
" '[A]ny public roadway, no matter how careful its design and construction, can be made safer' " (Chunhye Kang-Kim v City of New York, 29 AD3d 57, 59 [1st Dept 2006], lv denied 2006 NY App Div LEXIS 6713 [2006], quoting Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). If the road was safe when built, the State is not required to rebuild the road absent proof that it subsequently became unsafe for use (id.; see Hough v State of New York, 203 AD2d 736, 739 [1994]). As long as a highway or street may be said to be reasonably safe for people who obey the rules of the road, the duty imposed on the State is satisfied (id.). Claimants' evidence failed to establish that the highway intersection became unsafe between the submission of the final report to NYSDOT and the Force's accident in 2012, notwithstanding the opinion to the contrary by claimants' expert (see Weiss at 588 ["something more than a mere choice between conflicting opinions of experts is required"]).
Notwithstanding the tragic consequences of this accident, the court finds claimants failed to establish a prima facie case of negligence against defendant, and Claim No. 123443 is dismissed. The Clerk of the Court is directed to enter judgment accordingly.
March 1, 2018
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims