Opinion
# 2018-051-502 Claim No. 126600
09-07-2018
EVAN SPENCER v. STATE OF NEW YORK
HARRIS, CHESWORTH, JOHNSTONE & WELCH, LLP BY: MARK VALERIO, ESQ. HON. BARBARA D. UNDERWOOD New York State Attorney General BY: DARREN LONGO, ESQ. Assistant Attorney General
Synopsis
At trial, claimant failed to prove that brush in State's right of way obstructed his view of oncoming traffic.
Case information
| UID: | 2018-051-502 |
| Claimant(s): | EVAN SPENCER |
| Claimant short name: | SPENCER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126600 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DEBRA A. MARTIN |
| Claimant's attorney: | HARRIS, CHESWORTH, JOHNSTONE & WELCH, LLP BY: MARK VALERIO, ESQ. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General BY: DARREN LONGO, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 7, 2018 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brought this claim for injuries arising out of an automobile accident on May 29, 2015 at 8:54 a.m. at the intersection of State Route 260 (Sweden Walker Road) and Ireland Road in the Town of Clarkson. A liability trial was conducted on August 29 and 30, 2018.
Claimant was a college student at the time of this accident. Since he had always lived in the area, he was generally familiar with the intersection and had previously driven on both roads. On this day, he was going from his family's home to college in Brockport, traveling west on Ireland Road, when he came to its T-intersection with Route 260. There was a stop sign on Ireland Road and he stopped at the stop line waiting for 3 cars to pass. At that vantage, claimant looked to his left down Route 260 and found his view to be obstructed by a "bush" located in a drainage ditch in the State's right of way on the east side of Route 260. He crept out beyond the stop line and, although he still had an obstructed view, turned left onto Route 260, where he was hit by a northbound van. Claimant never saw the van before it hit him.
A few days later, on June 4, 2015, claimant's attorney took a series of photographs of this intersection, apparently to support claimant's argument that the bush obstructed his view of the northbound van. The claimant was not present when the photos were taken and could not say where the photographer was positioned or whether the photographer was standing or seated in a car. However, claimant presented the photos, Exhibits 1-A through 1-G, and testified that 1-A and 1-D depicted his obstructed view to the left as he was stopped at the intersection.
Claimant also presented the testimony of Dwayne Aycock, currently the Director of Operations for Region 4 of the Department of Transportation (DOT) and the Resident Engineer for Western Monroe County when this accident occurred. Mr. Aycock testified about the maintenance procedures along Route 260, including mowing and brush trimming, and confirmed that the bush in question was located within the State's right of way.
The claimant rested after presenting those two witnesses. Defendant submitted the deposition testimony of Timothy Neilans, the van driver involved in the collision. Mr. Neilans testified that he was northbound on State Route 260, traveling at 55 mph, and saw the claimant's car stopped at the stop sign at Ireland Road. There was nothing obstructing his view of claimant's car. When Mr. Neilans was "extremely close" and "maybe one or two car lengths" away, claimant pulled out in front of him (Ex. K, pgs. 23-24) and his van hit the claimant's car. Claimant did not pursue an action against him.
Defendant also presented the testimony of Matthew Oravec, Regional DOT Traffic Engineer, whose job includes reviewing highway conditions for visibility and other safety issues. He confirmed that Route 260 has a posted speed limit of 55 mph near this intersection. In connection with this claim, he reviewed the accident history for the general area from May 30, 2005 to May 30, 2015 and found no pattern of accidents, particularly none related to obstructed sight distance near the intersection. Furthermore, this intersection did not appear on the State's "Priority Investigation List" (PIL) as a potentially unsafe location requiring further regional investigation.
Also in connection with this claim, Mr. Oravec took several measurements. He testified that the shoulder of Route 260 near this intersection was 3 to 4 feet wide and that the stop line on Ireland Road was 8 to 9 feet from the shoulder. He measured the site distance from Ireland Road along Route 260 in each direction using a 42 inch-high "target" set at the stop line on Ireland Road to simulate a driver in a car stopped at the intersection. He concluded that drivers on Route 260 and those stopped on Ireland Road could see each other when they were at least 1000 feet apart. That sight distance significantly exceeded the minimum set by the Manual on Uniform Traffic Control Devices (MUTCD) when applying an older standard of 750 feet or the current standard of 495 feet visibility. He conceded that he was not aware of the claimant's contention about the obstruction created by the bush, he did not see it in the field when he took the measurements, and had not seen the photos of the scene taken on June 4, 2015.
The case law is clear and long-standing regarding the State's responsibility to maintain its highways: "[w]hile the State must maintain its highways in a reasonably safe condition, the State is not an insurer of the safety of its roads and no liability will attach unless the ascribed negligence of the State in maintaining its roads in a reasonable condition is a proximate cause of the accident." (Johnson v State of New York, 27 AD3d 1061, 1062 [4th Dept 2006] citing Clark v State of New York, 250 AD2d 569, 569 [2d Dept 1998] [internal citations omitted].) This duty to maintain includes the road surface and shoulders, and also applies to conditions adjacent to and above the highway, if those conditions could reasonably be expected to result in injury and damage to the users of the highway. (Rinaldi v State of New York, 49 AD2d 361, 363 [3d Dept 1975].) Specifically, this includes the State's duty to remove foliage that obstructs signs or sight distances at intersections. (Hamilton v State of New York, 277 AD2d 982, 983 [4th Dept 2000].)
Claimant has the burden of proving the existence of a dangerous condition, that the State had notice of it, and that the State failed to take reasonable measures to correct it. (Chavez v State of New York, 139 AD3d 994, 995 [2d Dept 2016], lv denied, 28 NY3d 904 [2016].) The evidence presented by claimant falls far short of meeting his burden and actually proved the absence of a dangerous obstruction.
Within a few days of the accident, claimant obtained photographs of the scene, particularly the bush at issue. Exhibits 1-B and 1-C show Mr. Neilans' view as he approached Ireland Road. Exhibit 1-C shows the layout of the blue house with the dark-leaf tree in front of it, and the mailbox, Ireland Road street sign, and utility pole on the south side of Ireland Road. (The juxtaposition of those same landmarks is confirmed in Exhibit L-18.) Exhibit 1-B shows a long view of these four landmarks, taken at a considerable distance from the intersection. This photo not only demonstrates that the drivers had an unobstructed view of each other, but also the insignificance of the bush, which must be present but not in the drivers' line of sight.
Exhibits 1-A and 1-D also disprove the claimant's case. In both photos, one can see a northbound car representing the Neilans' vehicle when it is well south of the bush. One can even see the back of the yellow intersection warning sign shown in Exhibit 1-B. Although the photographer did not simulate the location and height of claimant as he sat in his car at the stop line, these photos prove that if claimant had crept up to improve his visibility as he claimed, the northbound traffic would not be blocked by the bush. In fact, based on claimant's testimony, his failure to move forward beyond the stop line after he perceived an obstruction, and to see Mr. Neilans at any time prior to impact is proof that his negligence was the proximate cause of the accident. (see Frega v Gallinger Real Estate, 63 AD3d 1714, 1714-15 [4th Dept 2009]; see also Davis v State of New York, 285 AD 65, 68 [3d Dept 1954].) Since the Court finds there is no proof of a dangerous condition, there is no need to proceed to the consideration of notice.
The evidence presented by defendant also proves that the bush did not create a dangerous condition and that claimant was solely responsible for this accident.
Since claimant failed to meet his burden of proof, his claim is dismissed. Let judgment be entered accordingly.
September 7, 2018
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims