Opinion
# 2019-038-101 Claim No. 123720
01-15-2019
ASHLEY M. CORRADO WILLIAMS v. STATE OF NEW YORK
MARTIN, HARDING & MAZZOTTI, LLP By: Ronald B. Orlando, Esq. LETITIA JAMES, Attorney General of the State of New York By: Belinda A. Wagner, Assistant Attorney General
Synopsis
Case information
| UID: | 2019-038-101 |
| Claimant(s): | ASHLEY M. CORRADO WILLIAMS |
| Claimant short name: | CORRADO WILLIAMS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123720 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | MARTIN, HARDING & MAZZOTTI, LLP By: Ronald B. Orlando, Esq. |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Belinda A. Wagner, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 15, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks to recover damages for personal injuries she sustained in a motor vehicle accident on a State highway in the Town of Catskill on December 28, 2010. The liability phase of the trial of this claim was conducted over six days from March 19 through March 23 and on March 26, 2018 in Albany, New York. Claimant testified and also presented the testimony of the following witnesses: Joseph Corrado, claimant's brother and the owner and driver of the vehicle in which she was a passenger; Robert Greco, the driver of the other vehicle that was involved in the accident; and Michael Beatty, a New York State Department of Transportation (NYSDOT) plow truck operator. Claimant also presented the expert testimony of Bradford R.T. Silver (accident reconstruction); Jerome J. Thomas (highway maintenance and design); and Alicia Wasula (meteorology). Defendant presented the following witnesses: New York State Trooper Felix Donnelly; Robert Winans, a former NYSDOT Greene County Resident Engineer; and Kevin Bender, Donald Jackson and Lucinda Fowler, all of whom were employed as NYSDOT Highway Maintenance Supervisors in Greene County. Defendant also offered the expert testimony of New York State Police (NYSP) Technical Sergeant Peter Aragosa (accident reconstruction) and William E. Logan (highway maintenance and design). Deposition testimony of Bender and William Jones, a NYSDOT plow truck operator, was read into evidence. Numerous photographic, documentary and other exhibits from both parties were received into evidence. After listening to the witnesses and observing their demeanor as they testified, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law and the parties' post-trial submissions, the Court determines that claimant has failed to prove by a preponderance of the credible evidence defendant's negligence.
At trial, defendant offered and the Court received into evidence Defendant's Exhibit Q, a photograph of a concrete box culvert in the vicinity of the accident scene. Defendant's Exhibit Q could not be located after trial, and a substitute copy of the photograph was submitted to the Court on September 25, 2018.
FACTS
In the mid-afternoon on December 28, 2010, claimant was a passenger in a 1999 Honda Accord, a four door sedan that was owned and operated by her brother, Joseph Corrado. The vehicle was traveling westbound on New York State Route 23A, having just left the Town of Catskill in Greene County. After Corrado's vehicle passed over the Kiskatom Brook bridge on State Route 23A, it entered a left curve in the roadway. The vehicle's tires came into contact with snow and Corrado lost control of the vehicle, which crossed over the center line and struck an oncoming 2002 Ford Explorer sport utility vehicle (SUV) operated by Robert A. Greco. Corrado's sedan was torn into two pieces by the collision, and claimant suffered grievous injuries.
Route 23A in the immediate vicinity of the accident was a State-owned highway that was comprised of one eastbound lane and one westbound lane, with a speed limit of 55 miles per hour (mph). The pavement was marked with yellow center lines and solid white or fog lines on the right edge of the travel lanes. The lanes of travel were approximately 11 feet wide and the shoulders were approximately six feet wide. To the west of the accident site was the intersection of Route 23A and Route 32. Vehicular traffic proceeding eastbound on Route 23A from the Route 32/Route 23A intersection traveled straight for approximately 1,500 feet until the roadway curved to the right (T2:382). The Route 23A roadway to the east of the accident site included the Kiskatom Brook bridge. The Story Farm and its open field of strawberry plants was north and west of the Kiskatom Brook bridge, and a yellow sign warning westbound vehicular traffic of an upcoming left curve in the roadway was located past the bridge, just before a driveway to the Story Farm. After passing the driveway, westbound vehicular traffic encountered the left curve - the inverse of the eastbound Route 23A right curve - where Corrado lost control of his vehicle.
All references to the trial transcript are designated by "T1" for the proceedings on March 19, 2018, "T2" for the proceedings on March 20, 2018, "T3" for the proceedings on March 21, 2018, "T4" for the proceedings on March 22, 2018, "T5" for the proceedings on March 23, 2018, and "T6" for the proceedings on March 26, 2018.
The left curve was slightly banked, with a crown at the westbound fog line, so the travel lane sloped to the left while the shoulder sloped to the right, away from the travel lane. A box beam guide rail ran along the curve on the right edge of the westbound shoulder ("westbound guide rail"), beyond which an embankment led down to rows of strawberry plants which were five to six feet below the grade of the roadway. The embankment had a non-traversable slope of approximately one-on-two (1:2). A concrete box culvert ran under the roadway at the curve, a short distance - approximately 28 feet - to the west of the beginning of the westbound guide rail (T3:714), and there was a drop off of approximately ten feet from the edge of the embankment to the base of the concrete box culvert.
A non-traversable slope is a slope that is too steep to be safely traversed, i.e. where a vehicle could not be kept under control if it were to leave the roadway. A slope of 1:2 means that for every foot in vertical rise or fall there is two feet in horizontal distance, and with the slope being the hypotenuse of a triangle drawn with those horizontal and vertical lines. Thus, a slope of 1:2 is steeper than a slope of 1:3 or higher.
Greene County was impacted with a major winter storm during the two days preceding the accident. Snow fell for more than 24 hours, ending at 8:30 a.m. on December 27, 2010, leaving accumulations of between 8 and 15 inches. A Storm Log maintained by the NYSDOT Cairo Residency in Greene County recorded periodic details about the storm, including that there were "high winds causing relentless blowing and drifting snow across the roads" between 1:00 a.m. and 1:00 p.m. on December 28, 2010 (see Claimant's Exhibit 15 [12/28/10 01:00-13:00 entry]), and that the "[w]inds calmed down drifting in some locations" during the next 12 hours (see id.,[12/28/10 1300-0100 entry]). During the afternoon of December 28, 2010, temperatures between 25F and 30F were recorded at various weather recording stations in the region, skies were cloudy or mostly cloudy with no measurable snowfall recorded, and winds were reported as having come out of the west to northwest between noon and 3:00 p.m.
The Cairo Residency began to send trucks to plow and salt the roads at 1:00 p.m. on December 26, 2010. Plow trucks were equipped with a nose plow on the front of the truck and a wing plow on the right side of the truck, as well as a salt hopper and spreader. The nose plow was approximately 10 ½ feet in width and was angled to push the snow off to the right. The wing plow extended off the right side of the truck and was used to plow snow in the shoulder. The nose plow and wing plow had a total width of between 14 and 15 feet when both were in operation. The plows were not able to "squeegee" and remove all of the snow on the pavement (T5:1196), but instead left a film of snow or slush that was then treated with salt to create a briny mixture to melt the snow. Plow trucks with salt continued to do "spot treatment" to address areas where blowing snow had accumulated on roadways from the cessation of the storm on December 27, 2010 until 9:30 p.m. on December 28, 2010.
It was well known to the Cairo Residency that winds blew snow from the Story Farm across the roadway from the westbound to the eastbound lane and that the curve of Route 23A at the Story Farm was prone to accumulations of blowing snow. There had been only one accident in the vicinity of the subject curve that involved blowing snow in the six years preceding claimant's accident, and that accident occurred on December 27, 2010, the day before claimant's accident, approximately one-tenth of a mile to the east of the accident site in the eastbound lane. A photograph taken of the roadway on the day preceding claimant's accident depicts it almost entirely covered with snow (see Claimant's Exhibit 4).
William Jones, a NYSDOT plow truck operator, worked the "A-shift" - 1:00 a.m. to 1:00 p.m. on December 28, 2010 and was assigned to the route - or "beat" - that included the accident site on Route 23A. Jones testified at his deposition that he had no independent recollection of December 28, 2010. A Snow and Ice Equipment Operator's Report ("log") filled out by Jones during his shift reflects that he was assigned to do spot treatment to address blowing and drifting snow. According to his log, Jones took three runs during his 12 hour shift, at 1:53 a.m., 5:06 a.m. and 8:00 a.m., spreading 1.13 tons of salt over 6.5 lane miles (see Claimant's Exhibit 13). An entry in the Cairo Residency Storm Log for the B shift on December 28, 2010 (1:00 p.m. to 1:00 a.m.) noted that "[t]he blown snow is extremely dry and with the cold temps salt was not working well so drift areas were plowed only to promote drying" (Claimant's Exhibit 15 [12/28/10 01:00-13:00 entry]).
Michael Beatty was assigned to plow and spread salt to blowing and drifting snow on the beat that included Route 23A at the Story Farm during the B-shift on December 28, 2010. Beatty commenced his first run at 1:37 p.m., and he testified that he would have reached Route 23A and Story Farm at approximately 2:00 p.m. He testified that when he arrived the road was snow-covered in both eastbound and westbound lanes for two-tenths to three-tenths of a mile, that it was windy, and that snow was still blowing across the road. Beatty testified that he made three passes of the roadway, plowing with his nose and wing plows and spreading salt. Beatty testified that on his first pass his nose plow was dropped one foot to the left of the center yellow line, on the second pass he dropped his nose plow one foot to the right of the yellow line, plowing approximately 2 ½ feet of the shoulder, and that on the third pass he pushed the snow back and cleared the shoulder as far as he could without hitting the westbound guide rail with his wing plow. Beatty testified that after the third pass there was no more heavy buildup of snow in the roadway and shoulder, that he had cleared as close to the road surface he could scrape with his plow, leaving a little bit of slush that the salt would address, and that the roadway and shoulder were "in decent shape to [his] eyes" (T1:252). Beatty testified that the three passes took him 15 to 20 minutes, and that he left the area at approximately 2:15 p.m. to 2:20 p.m.
Claimant was thirteen years old on December 28, 2010, and she recalled that earlier that day she accompanied Corrado in his vehicle to run an errand in Catskill. Her last memory after leaving Catskill was looking at Corrado in his vehicle on Route 23A before they reached the Kiskatom Brook bridge, and it did not seem to her that he was driving too fast. Claimant has no further recollection of the accident due to her injuries. Corrado also has some memory of the events leading up to the accident, but no memory of the accident itself. Corrado testified that he was working as a tow truck operator on December 28, 2010 and that between 6:30 a.m. and 7:00 a.m. he did "two winch-outs for people who were stuck in their driveway" (T1:76). Corrado testified that he then went home, had lunch and then "[s]ometime late afternoon" (T1:77) he returned the tow truck he was using and retrieved his Honda Accord. Corrado testified that he picked up claimant at her house in his vehicle and they went to Catskill to run an errand at Walmart. Corrado testified that on the way to Catskill, he observed that the road conditions on Route 23A past the Story Farm were wet with no snow. Corrado testified that he did not recall seeing any blowing snow on Route 23A at Story Farm, although he did recall slowing down at "spots [on Route 23A east of Story Farm] where there was some snow in the road" (T1:80). Corrado testified that he was familiar with Route 23A at Story Farm, having driven through that location three to five times a day, including earlier that very day, when he observed that the "road conditions looked fine," "clear" with "no snow in the road" (T1:78). Corrado testified that he saw blowing and drifting snow at that location whenever there was a bad wind. Corrado testified that when he left Walmart in Catskill the winds had increased and the road seemed wet. The last speed he recalled driving on Route 23A was 45 mph.
Greco testified that during the afternoon of December 28, 2010 he and his daughter were heading toward Catskill and they were proceeding eastbound on Route 23A from its intersection with Route 32. Greco believed the speed limit on Route 23A to be 30 mph, and he testified with certainty that he was driving 25 to 30 mph and was not speeding. Greco testified that as he approached the right curve at the Story Farm, he observed Corrado's westbound vehicle "coming out of the trees [at the Kiskatom Brook bridge] . . . at a high rate of speed . . . between 60 and 70 [mph]" (T1:119-120). Greco testified that as Corrado's vehicle approached the curve, he saw the driver looking down, saw the vehicle drift to the right into the shoulder and he saw the "rear passenger tire [kick] up some snow" (T1:121-122). He testified that the rear of the vehicle started to slide to the right toward the guide rail and that the vehicle's front end then pointed toward his SUV, crossed the center line and collided with his SUV. Greco testified that in anticipation of a collision, he pulled his vehicle to the right and hit the brakes to slow his vehicle, and that part of his SUV was in the eastbound shoulder at impact. Greco testified that he never saw Corrado lift his head up during the three to five seconds between the time that he saw the tire kick up snow and the impact, although he admitted that he was concentrating on avoiding the collision.
Trooper Donnelly testified that he was dispatched to the accident scene at 2:55 p.m. and that when he arrived at the scene, first responders were attending to claimant and Corrado, both of whom were seriously injured. Trooper Donnelly testified that he began his investigation by observing both vehicles involved in the accident, and that he spoke to Greco, who was in his vehicle. Trooper Donnelly completed a Police Accident Report (MV-104A) that was received in evidence without objection from claimant. Trooper Donnelly testified that Greco verbally described the accident as follows:
"I was driving on SR 23A toward Catskill [eastbound] just east of Stories Farms [sic] around 2 30 PM[.] I did observe a green car heading [westbound] travel into my lane at a high rate of speed and lost control due to snow that was on the roadway[.] It looked as the rear end had kicked out. The green car then traveled into my lane and [I] made a right turn into the snowbank in an attempt to avoid the oncoming car but we struck before I traveled off the road"
(Defendant's Exhibit A). Trooper Donnelly testified that the deposition was unsigned because Greco was transported to the hospital before it was printed. Greco testified that he thought he gave a description of the accident at the hospital, and that although he remembers giving a description that varied slightly from the account recorded in the deposition, the deposition is "fairly accurate" (T1:140). Trooper Donnelly testified that he did not recall whether Greco told him that Corrado's vehicle was traveling on the shoulder, but that it would have been noted in the deposition had Greco mentioned it to him. Trooper Donnelly testified that he did not speak to Corrado or claimant due to their severe injuries.
Trooper Donnelly's MV-104A reports roadway conditions as being "wet" because he observed that some blowing snow that had settled on the roadway and had melted. Trooper Donnelly, who previously worked as a mechanic and had performed vehicle inspections, testified that New York State requires tires to have a minimum tread depth of no less than 2/32 of an inch - or 1/16 of an inch - to be legal, which is "[n]ot much tread" (T4:936), and that tires contain a "wear bar" that are exposed when tires fall below minimum tread depth. Trooper Donnelly testified that he inspected all of the tires of both vehicles at the scene and that all of the tires on Corrado's vehicle "were bald, because they were below the wear bars on the tires" and that the tires were "not fit to be on the road" (T4:900-901), and specifically that Corrado's rear tires clearly did not meet the minimum 2/32 of an inch standard. Trooper Donnelly believed that a safe and prudent speed traveling westbound into the left curve would be 45 to 50 mph. When asked what a safe and prudent speed would be on wet pavement with Corrado's tires, he indicated that those tires should not be on the road, but that if Corrado had slowed down to 10 to 15 mph "he probably would have been fine" (T4:942-943). Trooper Donnelly testified that he could not speculate whether the accident would have happened if the treads of Corrado's four tires had been deeper because it depended on the depth of the snow they encountered. He testified that the tread that was on the tires was not sufficient "to disperse what he was riding on" and that tires with minimum tread depth can fill up with snow, which is less likely than with tires with greater tire depth (see T4:938).
Trooper Donnelly, who had taken the basic accident reconstruction course that all troopers take for basic traffic investigation at the NYSP Academy, described the accident in the MV-104A as follows: "[Corrado's vehicle] due to unsafe speed and slippery road conditions travels into the [eastbound] lane and subsequently strikes [Greco's vehicle] head on. [Corrado's vehicle] comes to rest in roadway, [Greco's vehicle] travels off south shoulder and comes to rest in snowbank" (Defendant's Exhibit A). A diagram accompanying the MV-104A depicts Corrado's vehicle losing control in the westbound travel lane (see Exhibit A, at 2). Trooper Donnelly testified that he could not really tell where Corrado had lost control of his vehicle. No accident reconstruction was done by the NYSP.
In claimant's post-trial reply brief, claimant's counsel asks the Court to reject Trooper Donnelly's opinion as to the effect that the tires had in causing the accident and the role of speed in the accident on the grounds that it is based on hearsay and that he is not qualified to give an opinion. At the outset of trial, claimant did not initially object to the receipt into evidence of the MV-104A, but claimant's counsel later objected to those portions of the MV-104A listing contributing factors to the accident on the ground that Trooper Donnelly was not an accident reconstructionist. The Court overruled the objection on the ground that it would grant that testimony whatever weight it deemed appropriate. Claimant's counsel is correct that Trooper Donnelly's listing of the contributing factors on the MV-104A was based on Greco's out-of-court statements, and is therefore inadmissible (Turner v Spaide, 108 AD2d 1025, 1026 [3d Dept 1985], lv denied 66 NY2d 601 [1985]), and thus the Court will not consider those entries. Claimant's counsel did not, however, object to Trooper Donnelly reading into the record his description of the accident in the MV-104A (T4:907-908), and did not object to Trooper Donnelly's testimony about the condition of Corrado's tires, or his opinions about the tires and the speed at which Corrado could have safely negotiated the curve with those tires. Trooper Donnelly testified that he had experience with inspecting tires as a mechanic, and he had taken a basic accident reconstruction course at the NYSP Academy. Thus, the Court will consider Trooper Donnelly's testimony and grant it appropriate weight.
Greco testified that he viewed Corrado's vehicle in the junkyard after the accident and that all four tires were bald, that "[t]here was not much tread on them" (T1:154). Corrado testified that he purchased the vehicle approximately six months prior to the accident, that he replaced the wheels with different rims and tires two to three months after purchasing the vehicle, and that he serviced the vehicle himself. Corrado testified that he was not familiar with the condition of the tires on December 28, 2010 and did not know whether the tires would have passed inspection, but his recollection was that the tires were "good" (T1:74).
A NYSDOT telephone log reflects that the Greene County Residency was notified at 3:20 p.m. on December 28, 2010 by "County 911" that "23A-32N is closed due to an acciden [sic]" (Defendant's Exhibit D). Lucinda Fowler, a NYSDOT Highway Maintenance Supervisor (HMS), testified that she arrived at the accident scene at approximately 4:00 p.m, and that after she spoke with a trooper, she called the Cairo Residency to send out road closure signs and she then proceeded to take photographs of the accident scene. Fowler testified that the roadway near the accident scene was a "mess with vehicles all over the place," and that there was "[s]now, vehicles, parts, a little bit of everything in the roadway" (T5:1186-1187).
The Court received into evidence 27 photographs that Fowler took as Claimant's Exhibit 1. Each of the photographs is bate stamped, starting with 000000 and ending with 000026. For purposes of this decision, the Court will cite to specific photographs in the following format: Claimant's Exhibit 1-[last two digits of the bate stamp].
Fowler's photographs reveal snow on virtually the full width of the westbound shoulder for the entire length of the westbound guide rail along the left curve. At the eastern end of the guide rail, in close proximity to a leaning reference marker post, a dusting of snow covers nearly the entire width of the shoulder to the right edge of the fog line, while slush is visible in the travel lane to the left of the fog line (see Claimant's Exhibits 1-00, 1-08). To the west of the dusting, the snow extends past and obscures the fog line and extends approximately one to two feet into the travel lane; snow can also be seen in strips in the middle of the travel lane and over the center line into the eastbound lane (see Claimant's Exhibits 1-00, 1-04, 1-06 through 1-11). The snow in the westbound shoulder to the west of the dusting gradually increases in depth, and is piled up along the guide rail forming a snowbank toward the westerly terminus of the guide rail that is almost as high as the bottom of the guide rail and encompasses approximately half the width of the shoulder (see Claimant's Exhibit 1-01 and 1-09 through 1-11). The snow throughout the westbound shoulder is predominantly white in color, likely the result of having been blown from the strawberry field, except that the snow along the fog line further to the west where the snowbank begins is darker and dirtier in color. Tire tracks can be seen along the fog line in the westbound shoulder and travel lane, as well as throughout the shoulder, especially in the area of deeper snow to the west of the dusting. The strips of snow in the center of the westbound lane and on the center line have been driven over and are dirty with tire tracks. The eastbound travel lane and shoulder were predominantly clear with the roadway visible (see Claimant's Exhibit 1-04).
NYSP Bureau of Criminal Investigation (BCI) Investigator Joseph Caputo took numerous photographs at the accident scene, most of which show the Corrado and Greco vehicles, including close-up photographs of the tires on Corrado's vehicle, but at least four photographs bearing time stamps of 3:38 p.m. and 3:39 p.m. depict the westbound shoulder in front of the westbound guide rail at the curve (see Claimant's Exhibits 2-32 through 2-35). Vehicles can be seen parked in the westbound shoulder near the leaning post and in the westbound travel lane further to the west, and Caputo's photographs, like Fowler's, depict snow in the westbound shoulder and in the travel lane.
The Court received into evidence 62 photographs that the NYSP took as Claimant's Exhibit 2. Each photograph is bate stamped, starting with 000001 and ending with 000062. For purposes of this decision, the Court will cite to specific photographs in the following format: Claimant's Exhibit 2-[last two digits of the bate stamp]. The photographs bear time stamps between 3:25 p.m. and 4:43 p.m., but there was no testimony as to when the photographs were taken.
Beatty testified that when he left the area, the westbound travel lane should have looked like the eastbound travel lane in Fowler's photographs, which was clear of snow, and that the snow in the westbound shoulder must have blown there after he left the area. Beatty testified that the snowbank depicted in Fowler's photographs along the western part of the westbound guide rail (see Claimant's Exhibits 1-10, 1-11 and 31) was either created by him or another driver prior to that morning, having probably been left there after the storm, and that he did not plow back the snowbank. Beatty testified that he intentionally left the snowbank to act as a barrier to block the wind (see T1:299, 300-301, 303-305; Claimant's Exhibit 31).
At his deposition, Greco marked an "X" on one of Fowler's photographs at the approximate location where he believed Corrado's rear passenger tire kicked up snow on the snow-covered westbound shoulder just to the west of a leaning reference marker post near the eastern end of the westbound guide rail (see Claimant's Exhibit 3; see also Claimant's Exhibits 1-0, 1-8). Greco testified at trial that he could not recall exactly where Corrado's vehicle started to drift toward the shoulder and that the X he marked on the photograph was an "estimate" (T1:147).
Robert Winans, who was the NYSDOT Greene County Resident Engineer for all but one year from 1992 to 2007, testified that in the early 2000s he contemplated the installation of a snow fence to deal with the recurrent blowing snow condition at the Route 23A curve. A snow fence is a type of "passive snow control" measure that is installed off of the roadway and works by disrupting wind flow and causing blowing snow to be deposited on the leeward side of the fence instead of continuing to be blown across an open area toward a roadway. NYSDOT's Highway Maintenance Guidelines (HMG) states that the goal of passive snow control is "to reduce or eliminate areas of persistent drifting and/or low visibility where resources, right-of-way and cost effectiveness will permit" (Claimant's Exhibit 20, at 45 [5.8200]). According to the HMG, "[d]rifting 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" (id., at 35 [5.4411(F)]). The HMG further provides that "[b]low-overs occur along numerous locations on the highway system where wind occasionally blows snow across the highway and may accumulate to a few inches." The HMG states that "[i]t is impractical to use passive snow control measures to control blowing snow in blow-over areas" (id.) and that "[p]assive control measures should only be considered where there is sufficient accident history associated with the blow-over location" (id.). Other types of passive snow control include a "shelterbelt" - also known as a "living snow fence" - consisting of shrubs and trees planted alongside a highway to block blowing snow, and modification of roadway features by flattening the adjacent terrain to provide an aerodynamic cross section to allow the roadway to be swept clear of snow by the wind.
In the Greene County Snow and Ice Operations Plan dated November 5, 2007, it was noted that while a snow fence was considered for "Story Farm along Rte 23A," that installation "is not practical because the installation would damage the strawberry hills" (Claimant's Exhibit 18, at 107). Winans testified that he ultimately decided against the installation of the snow fence due to a number of factors. Winans described in detail the impracticalities of installing a snow fence on the north side of the roadway along the curve and testified that there were no known instances of drifting snow or accidents related to blowing snow, so there was no warrant for the installation of a snow fence. Winans testified that he may have considered other passive snow control measures, but their expense could not be justified. In sum, Winans determined that there was no warrant for passive snow control measures, and that spot treatment of the roadway was "the control method of choice" under the HMG for the area once snow began to bond or was likely to bond to the pavement (see Claimant's Exhibit 20, at 35 [5.4411(F)]).
Winans testified that when plowing a banked roadway, the first priority is to plow the travel lane from the center line to the fog line first, and to then follow up and clear as much of the shoulder as possible (see T4:1009-1010). The HMG provides that "[a]fter pavement and ramps are cleared, the full width of the shoulders should be plowed" (Claimant's Exhibit 20, at 17 [5.3304], that snow should be removed as close to guide rail "as reasonably possible with plow equipment" but that "complete removal of snow from the traffic side of guiderail [sic] . . . is not possible with available resources" (id., at 19 [5.3307 (I)]). Winans testified that it is not possible to completely remove snow from in front of a guide rail, and that while ideally snow should be removed within 6 to 12 inches of the guide rail, he would expect to see the snowbank at the western end of the guide rail in Fowler's photographs due to the high storm accumulation. Fowler testified that when plowing near a guide rail along a left curve, the wing plow has a tendency to pull away from the shoulder, that Beatty was not going to get much closer to the guide rail with his wing plow, and that Beatty complied with the HMG because he cleared the travel lanes and shoulder. Kevin Bender, who was Beatty's direct supervisor, testified that Beatty properly plowed the shoulder, but that he would expect the snow to be pushed back further later that day. Winans testified that it is not NYSDOT practice nor would it be acceptable to leave a snowbank to block the wind because it could act as a "mini snow fence" (T4:1062). Bender testified that it is not NYSDOT practice to leave a snowbank to block the wind and that he would have addressed that with Beatty if it had been brought to his attention. Fowler testified that it would be a violation of HMG to leave a snowbank to block the wind and snowplow operators are not taught to do so.
Claimant presented Jerome Thomas, a professional engineer previously employed by NYSDOT in design and maintenance capacities, as an expert in highway design and maintenance. In preparing to testify, Thomas reviewed the MV-104A, the photographs of the accident, NYSDOT photologs for Route 23A, the record plans and "as-built" drawings for the Kiskatom Brook bridge replacement project that was completed in 2001, and he visited the accident scene two or three times to take photographs and observe the layout of the roadway.
In 2001 a NYSDOT capital project to replace the Kiskatom Brook bridge was completed, during which the shoulders on Route 23A were widened from three feet to six feet and the embankment on the left curve was regraded. The Final Design Report for the project that was done prior to construction noted that the only locations that warranted the installation of guide rail were on the bridge as part of the project and shielding a culvert to the east of the bridge (Claimant's Exhibit 22, at 7). Nevertheless, the parties stipulated at trial that the westbound guide rail was installed as part of the project. Thomas testified that a prime consideration for the installation of guide rail is accident history, which was lacking at that location. According to Thomas, the only factor prompting the installation of the guide rail was the curve, and that its installation was deficient because it did not extend to the full length of the curve. Thomas conceded on cross-examination that a guide rail was required at the site of the box culvert at the curve, but disputed that a guide rail needed to extend much beyond the culvert. Thomas also testified that guide rail was required under the NYSDOT Highway Design Manual (HDM) where there is a slope off the shoulder of 1:2. Thomas testified that the installation of the box beam guide rail created a miniature snow fence that obstructed the flow of blowing snow and led to the accumulation of snow on the box beam and the westbound shoulder (see T3:623-624), which together with the failure to completely clear the shoulder and leaving snow piled up on the shoulder exacerbated the blowing and drifting problem by encouraging blowing snow to fall on the pavement and not be swept clear.
Thomas testified that passive snow control measures in addition to snow fence should have been considered. Thomas disagreed with the HMG that it is impracticable to use passive snow control measures in blow-over areas and that they should only be considered where there is sufficient accident history (see Claimant's Exhibit 20, at 35 [5.4411 (f)]), and was of the opinion that they should be used in recurrent areas. According to Thomas, consideration should have been given to several passive snow control alternatives that he believed could have been accomplished relatively inexpensively, and would have resulted in snow being blown across the road and not built up. Thomas was of the opinion that NYSDOT should have considered something more efficient than just plowing and salting to address the recurrent blowing condition.
Thomas testified that when plowing a two-lane road such as Route 23A at the curve, the HMG requires plow truck drivers to plow the travel lane and the shoulder as close to the guide rail as possible, and that the shoulder should be plowed so that the fog line is visible and clear for an emergency. Thomas testified that it was not a good and safe practice to leave behind a mass of snow because it could thaw and refreeze, could become a ramp for an errant vehicle to strike and vault over the guide rail, would interfere with future clearing, and would interfere with the aerodynamic flow of the blowing snow, resulting in more snow build up on the shoulder and roadway. Thomas testified that there was no reason that Beatty could not have cleared the westbound shoulder at the guide rail, and it was his opinion that NYSDOT employees violated the HMG by not removing snow up to the guide rail and by intentionally leaving snow piled in front of the guide rail. Thomas was of the opinion that the snow that was present on the shoulder, over the fog line, and in the westbound lane constituted a hazardous condition that was a contributing cause to this accident.
Defendant presented William Logan, a professional engineer and former NYSDOT employee who worked as a Region I Traffic and Safety Engineer and the Albany County Resident Engineer, as an expert on highway maintenance and design, who prepared to testify by reviewing numerous documents, including the pleadings, depositions, photographs, NYSDOT photologs and bridge design documents, the MV-104A and the HMG and HDM, and visiting the accident scene four times. Logan testified that a curve alone does not warrant the installation of guide rail unless there is a roadside hazard along the curve, but it was his opinion that guide rail along the curve on Route 23A was required under the HDM because of the presence of the concrete box culvert and the embankment had a slope steeper than 1:3 (see Defendant's Exhibit Y, at 2 [10.2.1.1]). Logan testified that either box beam guide rail or W-beam guide rail should have been installed rather than cable guide rail at the curve because the embankment slope was too close to the edge of the shoulder and cable guide rail would have deflected further out, and therefore it was his opinion that box beam guide rail was correctly chosen. Logan testified that Winans' determination to not install a snow fence at the Route 23A curve was appropriate because there was no evidence that the roadway experienced drifting with impassable conditions and there was a lack of an accident history. Logan further opined that the lack of accident history provided no engineering or financial justification to flatten the slope of the embankment at the curve, and he further opined that the NYSDOT Greene County residency's decision to spot treat the subject curve complied with the HMG because it was the "control method of choice" (see Claimant's Exhibit 20, at 35 [5.4411(F)]).
Logan was of the opinion that NYSDOT storm cleanup efforts from December 26 through December 28, 2010, and specifically Beatty's spot treatment of the roadway on December 28, 2010, complied with the HMG. Logan disagreed with Thomas' opinion that leaving a snowbank in front of the guide rail by Beatty violated the HMG, but he agreed that his motivation for leaving the snowbank, i.e. to block the wind, was not proper. Logan also disagreed with Winans that a plow should be able to clear the shoulder within a few inches of the guide rail, stating that it depended upon the amount of snow that was present. Logan explained - consistently with Fowler's testimony - how the dynamics of plowing a shoulder alongside a guide rail on a curve may have caused less snow to be left at the beginning of the westbound guide rail while the amount of snow increased as the plow continued along the westbound shoulder.
Claimant called Bradford R.T. Silver, who was trained in accident investigation and reconstruction as an employee of the Division of Criminal Justice Services and has 25 years of experience in accident reconstruction, to testify as an expert in accident reconstruction. Silver reviewed numerous documents and photographs from claimant's accident, and visited the scene on July 21, 2017 to observe and take measurements. Silver did not make any physical inspection of either of the involved vehicles, testifying that Corrado's vehicle was not available. Silver testified that he was able to document where the Corrado and Greco vehicles were at certain points in time, the location of snow in the westbound roadway and on the westbound shoulder, and where the vehicles came to rest based upon photographs of the scene and Greco's deposition testimony. Silver testified that he entered his measurements into a computer assisted drawing (CAD) program and developed a scaled diagram of the scene to calculate the time and speed of the vehicles and determine the dynamics of the accident (see Claimant's Exhibit 25).
Based upon the measurements and all of the data he collected, Silver ran several analyses and was able to plot the trajectory of the vehicles leading up to and after the collision. According to Silver, when Corrado's vehicle kicked up snow on the shoulder, there was a greater drag on the right side of the vehicle, which created a split co-efficient of friction (i.e. as the right side had less friction than the left side) that drew the vehicle deeper into the snow. Silver testified that when tire treads fill up with snow the tire starts to slide on top of the snow underneath and that drivers will instinctively steer into the vehicle's intended path, and that here, Corrado responded to the vehicle's pull to the right by oversteering hard to the left, which put the vehicle into a yaw motion that caused the rear to kick out and plow sideways to the right. Silver testified that once the vehicle's tires exited the snow field and made contact with the pavement, the vehicle hooked left across the roadway, crossed into the eastbound lane and collided with Greco's vehicle. Using a range of friction values, Silver calculated that Corrado's vehicle was traveling between 45 and 51 mph at the time that his vehicle lost control and Greco's vehicle was traveling between 61 and 67 mph, and that at the time of impact Corrado's vehicle was traveling between 43 and 49 mph and Greco's vehicle was traveling 37.9 mph, and Silver explained in detail the factors upon which he characterized as unrealistic Greco's testimony that he was traveling 35 mph before the impact.
Silver and Trooper Donnelly both testified that the condition of Corrado's tires in the photographs in evidence did not show any of the wear bars. Silver testified that "you'd want better tread on your vehicle if you're driving," and that while "[t]he front [tires] seemed to be within legal limits, the rears definitely were not [within legal limits]" and had "sections that were definitely bald, worn down right to the main carcass of the tire" (T2:454). Silver testified that the vehicle would still have gone out of control even if all of the tires on Corrado's vehicle had 50 percent of their tread, and that the inadequate tread on Corrado's rear tires merely caused the loss of control to happen a fraction of a second sooner (see T2:455). It was Silver's opinion that the condition of Corrado's tires was not a major causative factor in the accident because the vehicle would be dragged to the right regardless of tread depth once it entered the snow. It was Silver's further opinion that the speed of Corrado's vehicle was not excessive, that if snow was not present Corrado's tires should have been able to handle the curve, but that he lost control when and because his tires encountered snow.
NYSP Technical Sergeant Peter Aragosa, who works in the NYSP Traffic Collision Reconstruction Unit as the Program Manager for Collision Investigation Training for the NYSP Basic School, and who was trained in accident reconstruction and has performed and reviewed accident reconstructions for the NYSP, testified as defendant's expert in accident reconstruction. Sgt. Aragosa explained that tire treads are designed to shed water or snow out of the sides of the tire so that the tire can maintain contact with the pavement and optimize friction. Sgt. Aragosa testified that vehicles negotiating a curve experience centrifugal forces that push the vehicle away from the roadway, and that the inertial forces seeking to push the vehicle away from the roadway increase as a vehicle's speed increases. Sgt. Aragosa testified that speed usually plays a role in loss of control of a vehicle, and that centrifugal forces will push a vehicle off the road if a vehicle exceeds the critical speed along a wet curve. Sgt. Aragosa testified that the NYSP photographs showing that the tires on Corrado's vehicle had minimal tire depth, that appeared to be insufficient, illegal and "marginal at best" (T5: 1255), and they did not have the ability to shed water or wetness out the side of the tires. Sgt. Aragosa testified that Corrado's bald tires caused diminished traction and friction and were especially a factor in this accident given the road conditions. Sgt. Aragosa testified that the 55 mph speed limit is for optimal road conditions, and that considering the state of his tires, a prudent speed for Corrado to safely negotiate the curve would have been 15 to 20 mph. Sgt. Aragosa opined that Corrado's speed and insufficient tire tread were definitely factors in the happening of this accident.
Sgt. Aragosa testified that the evidence that was available to him and to claimant's expert Silver did not provide a sufficient factual basis to allow an expert opinion on the speed of the vehicles, the trajectory of the Honda or other relevant factors (see T5; 1270-1271; 1275; 1280-1281).DISCUSSION
The State owes to the public a nondelegable duty to design, construct and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Freund v State of New York, 137 AD2d 908, 908 [3d Dept 1988], lv denied 72 NY2d 802 [1988]), a duty that applies to the roadway and to its paved shoulder as well (see Bottalico v State of New York, 59 NY2d 302, 304 [1983]; see also Stiuso v City of New York, 87 NY2d 889, 891 [1995]). Inasmuch as the State is not an insurer for motorists who travel on State highways (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Rooney v State of New York, 111 AD2d 159, 160 [2d Dept 1985]) "[n]egligence is not established by the mere occurrence of an accident on an icy [or snowy] roadway" (Harjes v State of New York, 71 AD3d 1278, 1279 [3d Dept 2010]). Rather, in order to prove the State's liability, claimant must demonstrate that there was a dangerous condition of which defendant had notice, and "that defendant failed to diligently remedy the dangerous conditions once it was provided with actual or constructive notice" or that it did not correct or warn of a recurrent dangerous condition of which it had notice (Hart v State of New York, 43 AD3d 524, 525 [3d Dept 2007]; see also Cappolla v City of New York, 302 AD2d 547, 548 [2d Dept 2003], lv denied 100 NY2d 511 [2003]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). It is claimant's burden to prove his claim by a preponderance of the credible evidence (see Tomaino v State of New York, 22 Misc 3d 1013, 1019 [Ct Cl 2008]; Kosinski v State of New York, UID No. 2000-028-0012 [Ct Cl, Sise J., Nov. 30, 2000]).
The existence of a recurrent dangerous condition on the westbound side of the curve of Route 23A and defendant's notice of that condition are not disputed by the parties, and evidence was presented that is sufficient to support those elements of claimant's negligence cause of action. Claimant asserts two separate theories of negligence upon which she seeks to have defendant found liable to her. First, she contends that defendant's agents were negligent in their maintenance of the subject roadway because they did not adequately remove the snow from the westbound shoulder and travel lane, and because they intentionally left a snowbank alongside the westbound guide rail. Second, claimant asserts that defendant's installation of a box beam guide rail along the shoulder of Route 23A and the failure to implement passive snow control measures constitute negligent design of the subject curve. Defendant defends against both of those theories, and asserts that defendant should not be found liable because the accident was caused by the actions of Joseph Corrado.
Claimant's argument that defendant is not entitled to the defense of governmental function immunity (see Claimant's Post Trial Brief, at pp. 6-7) is not opposed by defendant. That defense does not lie where, as here, defendant's alleged negligence occurred in the performance of the proprietary duty to maintain its roadways in a reasonably safe condition (see Wittorf v City of New York, 23 NY3d 473 [2014]).
Notwithstanding the presence of snow on the westbound shoulder of the roadway, the preponderance of the credible evidence does not establish that defendant was negligent in its maintenance of Route 23A on the day of claimant's accident. Beatty credibly testified that he performed spot treatment of the westbound roadway and shoulder at the subject curve between 2:00 p.m. and 2:20 p.m., that the westbound roadway and much of the shoulder was cleared of snow, and that the roadway and shoulder were "in decent shape to [his] eyes" when he departed the area (T1:252) approximately one-half hour before claimant's accident. Beatty's testimony establishes that he complied with the HMG by making three passes of the westbound lane and shoulder, and by clearing as much of the shoulder as possible.
To the extent that there were inconsistencies in Beatty's testimony about whether he cleared the entire shoulder prior to departing the area as a basis to disbelieve his testimony about whether he cleared the shoulder (Claimant's Post Trial brief, at p. 23), Beatty's testimony, in its entirety, credibly establishes that he cleared as much of the entire length of the shoulder as possible, that he left behind the snowbank that was there previously, and that he believed that additional snow on the shoulder that is visible in the photographs was blown there after he left.
While much testimony and substantial post-trial attention have been paid to the snowbank that was left against the guide rail, the preponderance of the evidence establishes that Corrado lost control of his vehicle before it reached the location of the snowbank, and thus, issues relating to the snowbank are immaterial because the snowbank was not a proximate cause of the accident. Moreover, the evidence establishes that the snowbank existed prior to Beatty's first run that afternoon and that it was not improper for that snow to have been left at the curve considering the amount of snow that fell during the storm and the dynamics of plowing a left curve. Notably, the HMG and the credible testimony of NYSDOT's highway maintenance supervisors demonstrate that snow on the shoulder should be removed to the extent possible, and that the first priority was to clear the travel lane and to then finish up removing the snowbank at some point later that day, and thus, the complete removal of the snowbank by Beatty on his pass prior to claimant's accident was not mandated by the HMG. While the preponderance of the credible evidence establishes that Beatty should not have intentionally left the snowbank for the purpose of acting as a barrier to block wind, this improper intention does not render the presence of the snowbank non-compliant with the HMG.
Turning next to claimant's theory that the defendant was negligent in its design of the roadway, the State is accorded qualified immunity for its discretionary decision-making relating to highway design and planning (see Weiss v Fote, 7 NY2d 579, 584-588 [1960]; Friedman v State of New York, supra at 283). "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, at 284). Liability cannot be found against the State for a traffic planning decision unless it is demonstrated that "its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan" (id.).
The evidence presented at trial demonstrates that the installation of the guide rail at the curve was not pre-planned as part of the capital project on the Kiskatom Brook bridge, but that a decision was made in the field during the course of the project to install the box beam guide rail along the curve to the west of the Story Farm driveway. However, credible evidence establishes that the guide rail was required at that location under the HMG due to the culvert and the non-traversable slope of the embankment off the roadway. Further, the credible evidence does not establish that the decision to install box beam over cable guide rail lacked a reasonable basis, as the Court credits Logan's testimony that either W-beam or cable guide rail was the guide rail that should have been installed as cable guide rail would have deflected too much.
Moreover, to the extent that claimant argues that defendant should be found liable because it did not implement certain passive snow control measures, defendant's qualified immunity is intact because the evidence demonstrates that area was prone to blowing snow, but not drifting snow (which may have required passive snow control measure), and that Winans considered and reasonably rejected the installation of a snow fence due to lack of accident history, cost and other logistical issues. The fact that Winans may not have considered other passive snow control measures such as shelterbelts and regrading the slope of the embankment is impertinent as the lack of accident history at the curve did not warrant the consideration of such measures. In sum, other than the accident that occurred the prior day due to blowing snow, there was no accident history suggesting that the blowing snow could not be reasonably remedied by plowing and application of salt where needed.
Finally, even if the State was negligent in its maintenance or design of the curve on the westbound shoulder of Route 23A, the Court would find that defendant is not liable because Corrado's actions were a superseding cause of claimant's injuries. "A negligent defendant may be relieved of liability if the [claimant's] own conduct, or that of a third party, has intervened to 'break [] the chain of causal connection' between that defendant's breach of duty and the ensuing injury" (Miller v Town of Fenton, 247 AD2d 740, 741 [3d Dept 1998], quoting Mesick v State of New York, 118 AD2d 214, 218 [3d Dept 1986], lv denied 68 NY2d 611 [1986]). "To constitute such an intervening, or superseding cause, the conduct in question must be so reckless or unforeseeable that it is unreasonable to hold the defendant responsible for the resulting damages" (Miller v Town of Fenton, 247 AD2d at 741).
The preponderance of the credible evidence demonstrates that Corrado's actions in operating his vehicle that fateful afternoon were extraordinarily reckless. To wit, Corrado was aware of the wet and snowy road conditions in the region, and more specifically on Route 23A earlier that day, and knew that the curve was subject to blown and drifting snow, yet he operated his vehicle with its manifestly unfit tires on the wet and snowy roadway and took his eyes off the roadway just as he was entering the curve at a rate of speed that was excessive in view of the road conditions and the state of his tires. More succinctly, Corrado was an inattentive driver who operated an inadequately equipped vehicle at an excessive speed while entering a curve on a roadway that he knew to be wet and snowy and the site of blow-overs. This combination of factors constitute far more than carelessness, and it was this utter recklessness that caused Corrado's vehicle to leave the travel lane at a curve that he was familiar with, enter onto the shoulder, expose his vehicle to residual snow on the shoulder, and lose control of the vehicle.
Silver's testimony that Corrado was traveling at a speed that was not excessive is not persuasive, for the reasons that follow. As Sgt. Aragosa testified, vehicles at higher speeds experience greater centrifugal forces at a curve, meaning that such a vehicle would experience greater force pushing the vehicle off the road as it navigates a curve. Further, greater traction is required on a wet curve than a dry curve due to the diminished friction caused by moisture on the roadway. Sgt. Aragosa testified that the subject curve had a 55 mph speed limit for optimal road conditions, and that a reasonable and prudent speed entering that curve with wet pavement with Corrado's deficient tires would be 15 to 20 mph. Even if the Court were to accept Silver's finding that Corrado's vehicle was traveling between 45 to 51 mph before losing control, and not the 60 to 70 mph that Greco estimated, Corrado was still operating his vehicle at a speed well in excess of the safe and prudent speed in view of the road conditions and the woefully deficient state of his tires that would have kept his vehicle from losing traction and control.
The Court does not credit Corrado's claimed ignorance as to the poor condition of his tires because he was a tow truck operator who did his own maintenance on the vehicle and personally installed the tires a few months prior to the accident, and thus likely knew about the woefully inadequate state of his tires. Further, the Court declines to credit Corrado's testimony that there was no blown snow on the curve as he traveled eastbound on Route 23A into Catskill shortly before the accident as the credible evidence establishes that the subject curve was prone to recurrent blow-overs, that it was a windy day, and that the curve had been completely covered with snow at about 2:00 p.m. when Beatty started his spot treatment.
Contrary to Silver's testimony, the Court is unpersuaded that poor condition of Corrado's tires were only a minor factor in the accident. It is not disputed that there will be an absence of necessary traction if tires cannot maintain contact with the pavement. Silver's opinion that any vehicle would likewise have lost control is based upon the premise that even tires with proper tread would not be able to shed snow and maintain contact with the pavement. Silver's opinion therefore assumes that the snow was of a sufficient depth to completely fill the treads of a properly-equipped vehicle. However, as Sgt. Aragosa testified, the absence of tread depth will cause a vehicle to ride on wetness or snow with diminished traction and friction more easily, and the abjectly deficient condition of Corrado's rear tires, which had less than 1/16 of an inch of tread on the rear tires, had the ability to push away only a very minimal amount of water and snow to maintain traction with the roadway surface. Thus, in the absence of any evidence as to the depth of the snow encountered by Corrado's tires, it would be speculative to conclude that a vehicle with proper tread would have lost control, and therefore that the condition of Corrado's tires was only a minor factor in the accident.
Accordingly, the Court finds that Corrado's actions in operating his vehicle with manifestly unfit tires at an excessive speed in wet and snowy road conditions while heading into a curve on a familiar roadway with his eyes averted relieves the State of any liability that might attach to it due to its flaws in maintenance or design of the roadway (see Rose v State of New York, 19 AD3d 680 [2d Dept 2005]; Perry v Kazolias, 302 AD2d 575 [2d Dept 2003]; Parmeter v Bedard, 295 AD2d 779 [3d Dept 2002], lv denied 98 NY2d 614 [2002]).CONCLUSION
In sum, notwithstanding the diligent efforts of counsel, and unfortunately for this completely faultless and grievously injured claimant, the claim must be dismissed due to the failure to prove by a preponderance of the credible evidence that defendant is liable for claimant's injuries. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing claim number 123720. Any motions not previously ruled upon are hereby DENIED.
Let judgment be entered accordingly.
January 15, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims