New York State Court of Claims

New York State Court of Claims

SCHMIDT v. THE STATE OF NEW YORK, #2000-006-93761, Claim No. 93761


Synopsis



Case Information

UID:
2000-006-93761
Claimant(s):
ANNETTE M. SCHMIDT, as Executrix of the Estate of EDWIN J. SCHMIDT, JR., and Individually , and as Parent and Natural Guardian of EDWIN J. SCHMIDT III, JOHN P. SCHMIDT and HEATHER L. SCHMIDT, Infants
Claimant short name:
SCHMIDT
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93761
Motion number(s):

Cross-motion number(s):

Judge:
EDGAR C. NeMOYER
Claimant's attorney:
BARRY L. RADLIN, ESQ.
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 6, 2000
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This claim is for the wrongful death of Edwin J. Schmidt, Jr., arising from a two vehicle collision at the intersection of Route 31 and Route 93 in the Town of Lockport, Niagara County, New York. The accident occurred on May 18, 1994 at 7:48 a.m. as Mr. Schmidt was driving to work. Mr. Schmidt was proceeding south on Route 93, and entered the intersection as the controlling traffic light allegedly turned green for him. When he was in the middle of the intersection, a cement mixer truck (truck), weighing approximately 66 thousand pounds and proceeding west on Route 31, struck the Schmidt vehicle broadside. Both vehicles came to rest in the grass median of Route 31, west of Route 93.

Claimant alleges the defendant was negligent in failing to adequately maintain the traffic signal at the intersection. According to claimant, the proximate cause of this accident was that the all red clearance function of the intersection traffic signal was .2 of a second instead of 2 seconds, as it was supposed to have been programed. All red clearance was explained to mean that when the westbound Route 31 traffic signal turned from yellow to red, the red traffic signal for Route 93 southbound traffic would simultaneously remain red for a short period of time.

The trial of this claim was bifurcated and this decision relates to liability.

On May 18, 1994, Route 93 was a four lane highway with two lanes proceeding south and two lanes north at the intersection of Route 31 and Route 93. The north and south bound lanes are separated by a small concrete median. Route 31 was five lanes wide on the east side of this intersection. There are two lanes of travel for westbound vehicles on Route 31, and a left turning lane at the intersection. Eastbound traffic had two travel lanes. A short distance before the intersection on Route 31 was a slip ramp for westbound motorists intending to go north on Route 93 at the intersection. The speed limit for both Routes 31 and 93 in the area of the accident was 55 miles per hour. The intersection was controlled by several sets of three phase traffic signals.

Kevin J. McCabe is the president of American Concrete, the owner of the truck involved in this accident. When Mr. McCabe heard of this accident on May 18, 1994, he immediately went to the scene of the collision. He arrived there a short time after the occurrence of the accident. Mr. McCabe testified he did not notice any skid marks at the accident scene. He acknowledged the truck involved in the accident was ready for new brakes as of April 28, 1994, but the brakes had not been replaced as of May 18, 1994.

Mr. McCabe testified he returned to the accident scene the evening of May 18, 1994. He observed the function of the traffic signals, and noticed some sequencing appeared to be "simultaneous"[1]. He explained that when the red light came on for westbound Route 31 traffic, the traffic light for north and southbound Route 93 traffic would turn green practically at the same time. According to Mr. McCabe, this "surprised" him because he believed there should have been some delay. Mr. McCabe returned to the accident scene the evening of May 19, 1994, and made a video tape of the traffic signal sequence just described (Exhibit 54).

Shaun Mullins is employed as the chief engineer for SEV Sherwin-Greenberg Productions. Mr. Mullins was retained by claimant to analyze Mr. McCabe's video tape (Exhibit 54) to determine the yellow and all red clearance timing for the traffic signal at the Route 31 and Route 93 intersection. Mr. Mullins explained it was necessary to transfer Mr. McCabe's original VHS tape to a Beta format tape in order to determine time sequencing. Mr. Mullins then utilized a video tape timing device, and determined the yellow westbound traffic signal for Route 31 traffic lasted 4 seconds, and the all red clearance for westbound Route 31 and southbound Route 93 traffic lasted slightly under .2 (one-fifth) of a second.

Craig E. Walek is employed by the Department of Transportation (DOT) as a senior technician with the traffic engineering safety section. Mr. Walek testified the timing for the traffic signal at the intersection of Route 31 and Route 93 was installed into the signal in December, 1991 (Exhibit 39). He stated the yellow clearance time on the signal for Route 31 east and westbound traffic was supposed to be 4 seconds. In other words, when the traffic light for Route 31 traffic changed from green to yellow, the yellow would remain illuminated for 4 seconds. Mr. Walek further testified the all red clearance for the traffic signal at this intersection was timed at 2 seconds. He explained this meant the traffic signal for Route 93 south traffic would remain red for 2 seconds before turning green, when the traffic signal on Route 31 west turned from yellow to red. Therefore, Route 31 westbound traffic and Route 93 southbound traffic would both have 2 seconds of red traffic signal before the Route 93 southbound signal would turn green. According to Mr. Walek, this signal timing should have been in place the day of the accident, May 18, 1994. Mr. Walek viewed Mr. McCabe's video of the functioning traffic signal at the intersection as of May 19, 1994, and conceded the all red clearance was less than 2 seconds.

Mr. Walek testified the timing for the signal at the Route 31 and Route 93 intersection was accomplished by entering numbers on a keypad in the signal controller. He stated the only people able to gain access to this keypad in the signal box were DOT employees. According to Mr. Walek, it was possible to program the signal timing for an all red clearance down to .1 of a second. Mr. Walek stated he has never been aware of a traffic signal controller independently changing the traffic signal timing by its own function. Mr. Walek testified he had never received any complaints regarding this traffic signal prior to May 18, 1994.

John J. Duggan is employed by the DOT as the supervisor of traffic signal mechanics. He also stated the all red clearance at the intersection of Route 31 and Route 93 on May 18, 1994 was supposed to be 2 seconds. He acknowledged Mr. McCabe's video showed an all red clearance of less than 2 seconds. Mr. Duggan testified a DOT traffic signal maintenance crew was at the Route 31 and 93 intersection on April 18, 1994 for routine annual maintenance. This maintenance would have encompassed a total inspection of the traffic signal and its control box. According to Mr. Duggan, this would have included an inspection and check of all the timing phases of the traffic signal. DOT crews were also at this signal on April 19, 1994 to perform further maintenance. Mr. Duggan explained and demonstrated that to enter a 2 second all red clearance on the control panel, one would press the "enter" key and then the numbers "020." He stated the traffic signal controller would also accept timing numbers "002" and "001", i.e. .2 and .1 of a second. Mr. Duggan stated there were no reported problems to the DOT for the Route 31 and 93 traffic signal prior to May 18, 1994.

Based upon the proof, the court finds, and so found during the course of the trial, the all red clearance at the intersection of Route 31 and Route 93 was .2 of a second from April 18, 1994 to May 18, 1994 and thereafter. More particularly, this condition would have been in existence on May 18, 1994 for Route 31 westbound traffic and Route 93 southbound traffic. The proof further established the only people to have access to the traffic signal control box would be DOT employees. Since a DOT maintenance crew serviced this traffic signal on April 18 and 19, 1994, the logical conclusion appears to be that the timing for the all red clearance on the traffic signal at the intersection was inadvertently changed from 2 seconds to .2 of a second during the routine inspection. Therefore, notice is not an issue in this claim, because the defendant created the condition. However, the mere fact the all red clearance at the intersection was improperly timed does not resolve the issue of defendant's negligence, since it still must be determined whether this signal timing was the proximate cause of the accident on May 18, 1994.

There were several witnesses to this accident, one of whom was Robert Bohmstadt. On May 18, 1994 at approximately 7:45 a.m. Mr. Bohmstadt was driving to work in Lockport, New York and proceeding south on Route 93. He stated it was a damp, cloudy morning, and traffic was normal. Mr. Bohmstadt testified he first noticed the Schmidt vehicle behind him, about one mile before the intersection of Route 31 and Route 93. Mr. Bohmstadt estimated his speed at the time to be about 50 miles per hour. According to Mr. Bohmstadt, Mr. Schmidt then passed him in the left lane of Route 93, as both cars continued to approach the intersection. Mr. Bohmstadt stated he observed the Schmidt vehicle's brake lights illuminate as the vehicle approached the intersection. He also saw it slow down to about 20 miles per hour. Mr. Bohmstadt stated the traffic signal for Route 93 south traffic was red at the time. The traffic signal then changed from red to green, and Mr. Schmidt entered the intersection. Mr. Bohmstadt stated the truck, proceeding west on Route 31, entered the intersection at the same time, and the collision occurred. Mr. Bohmstadt testified he was two car lengths directly behind Mr. Schmidt when the accident happened. He maintained Mr. Schmidt entered the intersection on a green traffic light. Mr. Bohmstadt, who had been driving through this intersection for five years, testified southbound traffic on Route 93 could first observe westbound Route 31 traffic beginning about 900 feet from the intersection.

Ronald L. Shop was driving to work south on Route 93 at about 7:45 a.m. on May 18, 1994. He stated the road was dry and the traffic normal. Mr. Shop first observed the Schmidt vehicle about one-half mile before the intersection. He stated Mr. Schmidt's vehicle was in the left lane of Route 93, and he was in the right lane. Mr. Shop was the second car behind the Schmidt vehicle as they approached the intersection. At the time, there was also a white vehicle southbound on Route 93 stopped at the light in the left lane at the intersection. Mr. Shop testified the Schmidt vehicle entered the intersection at 30 to 35 miles per hour when the traffic light was green for Route 93 southbound traffic. He stated, as the Schmidt vehicle entered the intersection, it seemed to make a hard turn to the right, and was then impacted by the truck. This was the first time Mr. Shop had noticed the color of the traffic light at the intersection. Mr. Shop was very familiar with this intersection, as he traveled it daily going to work. He stated that, from the viaduct crossing over Route 93 south to the intersection one could see "very clearly" Route 31 westbound traffic. Exhibit B, an aerial photograph of the intersection, shows this to be a substantial distance. Mr. Shop stated he never observed any problem with the traffic signals at the intersection.

Another witness to this accident of May 18, 1994 was Susan Benedict, who was proceeding west on Route 31 at about 7:45 a.m. on her way to work. Her practice was to take the slip ramp from westbound Route 31 to proceed north on Route 93. Ms. Benedict first observed the truck in the left westbound lane of Route 31, as it passed her. She was about to enter the slip ramp at the time. Ms. Benedict stated the weather, road, and visibility were good. She saw the traffic light at the intersection for westbound Route 31 traffic turn yellow, and stated the truck did not down shift. She believed the truck was going to go through the red light at the intersection. According to Ms. Benedict, the truck entered the intersection as the traffic signal turned red for westbound Route 31 traffic. She did not observe any brake lights illuminate on the truck. Ms. Benedict first saw the Schmidt vehicle on impact, which she stated was in the center of the intersection.

Andrea Mastroianni was at the intersection of Route 31 and Route 93 at approximately 7:45 a.m. on May 18, 1994, on her way to work. Her vehicle was stopped at the red light in the left lane of Route 93 north. She stated her turn signal was on, and she was waiting to make a left turn onto Route 31 west. Ms. Mastroianni testified she heard the sound of a horn coming from the truck when the truck was about 100 feet from the intersection on Route 31 west. She estimated the truck was going about 45 miles per hour at the time. Ms. Mastroianni then saw the Schmidt vehicle pull into the intersection, going south on Route 93, as if it was making a wide right turn. She next saw the impact between the two vehicles. The first time Ms. Mastroianni saw the Schmidt vehicle was when it pulled into the intersection.

Bruce C. Wheeler was another witness to this accident. He was driving east on Route 31 on May 18, 1994 at about 7:45 a.m. Mr. Wheeler testified he was moving into the left turning lane of Route 31 east to go north on Route 93. According to Mr. Wheeler, he first noticed the traffic light at the intersection for Route 31 east traffic about 600 feet from the intersection, and it was green at that time. He next observed the Schmidt vehicle enter the intersection from Route 93 south in, what he believed to be, the left lane of that road. He stated the Schmidt vehicle "popped out" into the intersection. According to Mr. Wheeler, all traffic for north and south Route 93 was stopped at the traffic signal, except the Schmidt vehicle, as it entered the intersection. Mr. Wheeler stated he saw the truck "hit the brakes", blow its horn, and then the impact.

Michael P. Barrett was driving west on Route 31 at its intersection with Route 93 on May 18, 994. He observed the collision between the Schmidt vehicle and the truck. Mr. Barrett testified he was directly behind the truck, which was 50 to 100 feet ahead of him. He estimated the speed of both the truck and the Schmidt vehicle at 30 to 35 miles per hour when the collision occurred. According to Mr. Barrett, the traffic signal for Route 31 west traffic was yellow when the truck entered the intersection. He stated the traffic signal continued to stay yellow when the truck was beneath the traffic signal. Mr. Barrett testified he was quite familiar with the intersection, and had never noticed any problem with the traffic signals.

Thomas C. Onions testified as an expert for claimant. Mr. Onions has been in private practice since 1989 as an accident reconstruction consultant. Prior to that he was with the Amherst Police Department for 20 years, 16 of which were spent in accident investigation and reconstruction. Mr. Onions has a bachelor's degree in investigative science. He has completed all New York State courses in accident reconstruction, including a 160 hour course on the subject at the New York State Department of Criminal Justice Services. He has also taken courses in accident reconstruction from Northwestern University and the University of North Florida. Mr. Onions has served as an instructor in accident reconstruction and investigation for the Erie County Central Police Academy, 1982 - 1993, and New York State Department of Criminal Justice Services, 1992 - 1993.

Mr. Onions was retained a few days after this accident of May 18, 1994. He went to the intersection of Route 31 and Route 93 and observed the traffic signal. Mr. Onions testified, when he observed the traffic signal, it operated in the same manner as what was depicted in the McCabe video. He stated the all red clearance was extremely short, and lasted just "fractions of a second." According to Mr. Onions, he believed this was not the correct timing. He stated the intersection of Route 31 and Route 93 was designed by the DOT for an all red clearance of two seconds. It was Mr. Onions opinion the actual all red clearance at the intersection on May 18, 1994 was .2 of a second. His testimony and accident reconstruction theories were based upon this opinion. The court has previously found the all red clearance at the intersection on May 18, 1994, and for a month before, was .2 of a second. Mr Onions also stated the sight lines at this intersection were quite open, giving all drivers approaching and at the intersection a clear view on oncoming traffic. He estimated Route 31 westbound traffic could see Route 93 south traffic several hundred feet back from the intersection.

In reconstructing this accident, Mr. Onions utilized four sets of different assumptions (Exhibits 68 - 71). Exhibit 68 is Mr. Onions' drawing, which assumed the intersection to be defined as the area between the curb lines of the intersecting roadways. The drawing simulated a vehicle traveling west on Route 31 at a speed of 30 miles per hour or 44 feet per second. When the traffic signal for westbound Route 31 traffic turned from yellow to red the westbound vehicle passed the east curb line of Route 93. With a .2 of a second all red clearance, the Route 93 southbound traffic signal turned green when the westbound Route 31 vehicle had proceeded 8.8 feet into the intersection. This is the point at which southbound Route 93 traffic was presented with a green light. The two vehicles continued to moved toward each other until there was a collision. Exhibit 69 assumed the same definition of intersection, but the westbound Route 31 vehicle was assumed to be traveling 55 miles per hour or 80.6 feet per second. When the Route 93 south traffic signal turns green, after the .2 of a second all red clearance, the westbound Route 31 vehicle has proceeded 16.1 feet into the intersection. Once again the vehicles continue approaching each other until there was a collision.

Exhibits 70 and 71 assumed the term "intersection" to include the area between the stop bars at the intersection. Exhibit 71 assumed a 30 mile per hour speed limit for the Route 31 westbound vehicle. In this situation, the Route 31 westbound vehicle was 8.8 feet beyond the stop bar when the traffic signal for Route 93 south traffic turned from red to green. Exhibit 71 assumed a speed of 55 miles per hour for the Route 31 westbound traffic. At that speed, the Route 31 westbound vehicle was 16.1 feet beyond the stop bar when the Route 93 south traffic signal turned from red to green.

Mr. Onions opined that, with a .2 of a second all red clearance for the Route 31 and Route 93 intersection, it was "very, very likely" there would be a right angle collision at the intersection. It was his opinion a proximate cause of this accident of May 18, 1994 was the failure to have a two second all red clearance. However, he was also of the opinion that the truck shared some fault for this accident. He stated the truck, according to his calculations, would have been in the intersection before the Schmidt vehicle. Mr. Onions also testified the driver of the truck admitted never applying his brakes before impact.

Mr. Onions testified, when the traffic signal for westbound Route 31 traffic first turned yellow, the truck, going 30 miles per hour, had 176 feet to stop before it entered the intersection. Mr. Onions calculated the truck could have stopped in 130 feet, utilizing full lock-wheel braking and taking into consideration driver reaction time. In other words, the truck could have avoided the accident by a forceful application of the brakes.

Lawrence M. Levine testified as an expert for the defendant. Mr. Levine received a bachelor of science degree in civil engineering from Michigan State University in 1974 and a master of engineering degree from Rensselaer Polytechnic Institute in 1975. He has taken numerous accident reconstruction courses and is a licensed professional engineer in the states of New York and New Jersey. Mr. Levine's professional career has involved substantial work in civil engineering. transportation planning and traffic engineering. Since 1975, he has been concerned with the fields of traffic accident investigation and reconstruction. After receiving his master's degree in 1975, Mr. Levine has been employed by and associated with a number of consulting engineering firms. Since 1982 he has been self-employed as a consulting engineer in private practice with offices in Ballston Spa and Saratoga Springs, New York. His professional memberships include the Institute of Traffic Engineers Expert Witness Counsel, the National Association of Professional Accident reconstruction Specialists and the Society of Automotive Engineers.

Mr. Levine was retained by the defendant in March 1998. After reviewing the depositions, accident report, witness statements, McCabe video, various DOT documents, and traffic signal standards, he reconstructed the accident.

Mr. Levine testified an all red clearance timing on a signal is not always used, and is considered an "insurance policy." He stated the current trend in traffic signal timing is to decrease the amount of time of the all red clearance. As an example, he stated the all red clearance currently at the intersection of Route 31 and Route 93 is .9 of a second. Mr. Levine did not consider Route 93 southbound traffic to have an all red clearance. He stated the traffic light for Route 93 traffic would merely go from red to green. There would be no warning the traffic signal was going to change from red to green. Therefore, a driver facing a red light for Route 93 south at the intersection would be unaware the light was going to change to green. It was Mr. Levine's opinion the .2 of a second all red clearance had nothing to do with this accident. He maintained the accident would have occurred regardless of the duration of the simultaneous red signal for Route 31 west and Route 93 south traffic.

Mr. Levine believed the minimum speed of the truck prior to impact was 40 to 45 miles per hour, and it did not brake until it was leaving the pavement and pushing the Schmidt vehicle into the median. Exhibit 22, a photograph of the intersection looking west on Route 31, does not depict any skid marks on the road, and seems to confirm the truck did not brake prior to impact. Mr. Levine, as did Mr. Onions, stated the duration of the yellow signal for Route 31 westbound traffic, 4 seconds, would have given the truck 176 feet to stop before entering the intersection. According to Mr. Levine, the truck should have been able to stop in 126 feet, when the yellow traffic signal was first observed. Mr. Onions' estimate for stopping distance was 130 feet. Mr. Levine believed the truck was committed to going through the traffic signal. He stated the "truck decided to blow the light." In reaching this conclusion, Mr. Levine stated he assumed the best situation for the placement of the truck, in relation to its distance back from the intersection when the traffic signal changed from green to yellow and then to red. Mr. Onions made this same assumption. Mr. Levine further opined Mr. Schmidt also intended to go through the traffic signal southbound on Route 93. Mr. Levine stated that 80 feet back from the stop bar to the point of impact would have been 110 feet on Route 93. He testified, at this point, the Schmidt vehicle could have stopped prior to the intersection if it was going anything under 50 miles per hour. Mr. Levine testified he could not account for Mr. Schmidt's not seeing the truck in the intersection. He explained there would have been a 20 degree cone of vision for Mr. Schmidt at this intersection. He stated, if Mr. Schmidt was looking at the traffic signal at the intersection, he would have seen the truck entering, and in the intersection.

The defendant has a non-delegable duty to adequately design, construct and maintain its roadways in a reasonablely safe condition. Friedman v State of New York, 67 NY2d 271. This duty extends to traffic signals maintained by the defendant. The Vehicle and Traffic Law § 1681 requires the defendant, through its DOT, to properly maintain its traffic signals. The defendant will be held liable if the DOT had notice of a defect in a traffic signal that causes a potentially hazardous condition at an intersection, and fails to take corrective measures. Meyer v State of New York, 51 AD2d 828. Notice is not an issue in this claim, because a preponderance of the credible evidence established the defendant created the .2 of a second all red clearance at the intersection of Route 31 and Route 93 when it serviced the traffic signal on April 18 and 19, 1994. However, in order for claimant to recover, she must establish the malfunctioning traffic signal was the proximate cause of the accident. Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519; Grandy v Bavaro, 134 AD2d 957, lv denied 71 NY2d 802.

The court believes the substantial weight of the credible evidence established that the proximate cause of this tragic accident was not the .2 of a second all red clearance on the traffic signal at the intersection, but rather the conduct of Mr. Schmidt and the truck driver. The court is in agreement with defendant's expert, Lawrence M. Levine, that both of these drivers intended to go through the traffic signal at the intersection. The proof indicates the truck driver intended to pass through the traffic signal westbound on Route 31, regardless of its color. The truck was approaching the intersection at anywhere from 30 to 55 miles per hour when the traffic signal turned yellow. At this point the truck was approximately 176 feet from the beginning of the intersection. The duration of the yellow traffic signal was 4 seconds. If the driver of the truck applied the brakes, both experts agree the truck would have been able to stop prior to entering the intersection. There were no skid marks evidencing any attempt to stop, nor did the truck reduce its speed before going into the intersection.

When Mr. Schmidt was about to enter the intersection from southbound Route 93, witnesses to the accident indicated his speed was from 20 to 35 miles per hour. Claimant's expert, Thomas C. Onions, had Mr. Schmidt's speed at 55 miles per hour as he entered the intersection. At any of these speeds, Mr. Schmidt would have been unable to stop without proceeding well into the intersection. It is noteworthy that, as Mr. Schmidt approached the traffic signal going south on Route 93, he was faced with a red traffic signal, requiring him to stop. It was only when Mr. Schmidt was at the beginning of the intersection, that the light went from red to green for Route 93 south traffic. It appears Mr. Schmidt was attempting to time the traffic signal and jump the light, having no intention to stop. Even though he may have entered the intersection on a green light, he did so at a speed at which he would have been unable to stop if the traffic signal remained red. Vehicle and Traffic Law § 1180(e) requires a driver to "drive at an appropriate reduced speed when approaching and crossing an intersection." The court does not believe Mr. Schmidt was at the appropriate reduced speed as he entered the intersection.

Furthermore, Mr. Schmidt must be bound by the principle that one is required to see that which by the proper use of the senses he or she would have seen. Weigand v United Traction Company, 221 NY 39; Avila v Mellen, 131 AD2d 408; Terrell v Kissel, 116 AD2d 637; Mohamed v Frische, 223 AD2d 628. Simply put, Mr. Schmidt never saw what was there to be seen. The one witness who was directly behind the truck, Michael P. Barrett, placed the truck in the middle of the intersection when the traffic signal was still yellow for Route 31 westbound traffic. At this time the traffic signal for Route 93 southbound traffic would still have been red. All of Mr. Onions' scenarios for this accident (Exhibits 68 - 71), place the truck into the intersection when the traffic signal for Mr. Schmidt's vehicle turned from red to green. The sight lines for Mr. Schmidt at the intersection were extremely good and without obstruction. The proof established Mr. Schmidt was able to see Route 31 westbound traffic starting at approximately 900 feet from the intersection. When Mr. Schmidt was at this intersection facing a red light, he was confronted with a truck, proceeding at 30 to 55 miles per hour into the intersection, with no intention of stopping. That is what was at this intersection on May 18, 1994 at approximately 7:45 a.m. for Mr. Schmidt to see, if he had been observant. Apparently Mr. Schmidt never looked, but was intent upon proceeding through the intersection without stopping. Vehicle and Traffic Law § 1140(a) requires "[t]he driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway." Mr. Schmidt should have seen the truck, but unfortunately he either disregarded it or was not paying attention, and that caused this accident, in addition to the truck disregarding the traffic signal.

As previously stated, the proximate cause of this accident was the actions of both drivers, and not any negligence on the part of the defendant. Therefore, the claim is dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.


September 6, 2000
Buffalo, New York

HON. EDGAR C. NEMOYER
Judge of the Court of Claims




[1]
Quotes are from trial notes unless otherwise indicated.