New York State Court of Claims

New York State Court of Claims

RAMIE v. THE STATE OF NEW YORK, #2000-007-013, Claim No. 97870, Motion No. M-61430


Defendant moved for partial summary judgment (1) dismissing aspect of claim seeking damages for pain and suffering and (2) dismissing aspect of claim premised upon negligence as regards placement of guide rails. Motion denied.

Case Information

GERALD D. RAMIE and KAY RAMIE, Individually, and KAY RAMIE as Administratrix of the Estate of THOMAS RAMIE, Deceased.
627 Rensselaer AvenueOgdensburg, New York 13669
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Vinal & Vinal(Jeanne M. Vinal, Esq.)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
(Paul F. Cagino, Esq., Assistant Attorney General,of Counsel)
Third-party defendant's attorney:

Signature date:
May 19, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has made an application for an order granting partial summary judgment. The motion was returnable April 19, 2000. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Paul
F. Cagino, Esq., Annexed Exhibits 1, 2, 3

Affidavit in Opposition of Jeanne M.

Vinal, Esq., Annexed Exhibits,
Affidavit of Lawrence M. Levine 4, 5, 6

Filed Papers: Claim, Answer 7, 8

On April 8, 1996, at about 6:40 p.m., Thomas Ramie was driving his 1986 Pontiac motor vehicle west on State Route 86 in the Town of North Elba, Essex County. There was snow on the roadway and, as he reached a point approximately four-tenths of a mile east of the intersection with County Route 35, he ostensibly lost control of his vehicle on a curve and slid into the lane of oncoming traffic. The Ramie vehicle collided with a 1987 GMC truck operated by Jeremiah Strack. Thomas Ramie died as a result of injuries sustained in the accident. The instant claim ensued with claimants seeking damages for, among other things, pain and suffering and wrongful death. Claimants' contentions of negligence include an assertion that the guide rails in the relevant section of Route 86 were improper. In the instant motion, defendant seeks summary judgment dismissing the aspect of the claim that seeks damages for pain and suffering and further dismissing the part of the claim premised upon purported negligence as regards the guide rails.

Summary judgment is a drastic remedy that may be employed only when it is clear that no triable issues exist (Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732). The proponent of the motion bears the threshold burden of tendering sufficient evidence to eliminate any material issues of fact and establishing the propriety of judgment as a matter of law (Tiano v Lane, 260 AD2d 908). If the movant meets the threshold burden, the nonmoving party must step forward with evidence demonstrating a triable issue of fact to defeat the motion (Moran v Technical Bldg. Servs., 258 AD2d 697). The court must review the evidence presented in the light most favorable to the party opposing summary judgment (Currier v Wiltrom Assocs., 250 AD2d 956).

Defendant contends that the aspect of the claim alleging conscious pain and suffering should be dismissed because there is no evidence of post-impact consciousness by Thomas Ramie. Pain and suffering is not, however, limited to post-impact consciousness. Preimpact terror is recognized as a compensable component of pain and suffering (see, Lang v Bouju, 245 AD2d 1000). The papers before the court, construed most favorably to claimants, reflect that as Thomas Ramie drove around a curve on Route 86 he lost control of his car in the snow. The car slid into the opposite lane and Mr. Ramie had ample opportunity to observe the imminent danger confronting him as his vehicle slid toward and then collided with the truck driven by Mr. Strack. Under such circumstances, the court cannot conclude as a matter of law that claimants will be unable to establish any preimpact terror.

The court next considers whether the part of the claim asserting negligence as regards the guide rails must be dismissed. In support of its argument for summary judgment, defendant relies in part upon the affidavit of Chester Burch (Exhibit D annexed to Cagino Affirmation). Mr. Burch is a licensed engineer who is employed as a design supervisor by the Department of Transportation. He states that he has inspected the relevant guide rails on Route 86. Mr. Burch relates that the contract for the subject guide rails was designed in 1988 and the work completed in 1990. The guide rails are on the south side of the road and protect motorists from an adjacent embankment. He asserts that the location of the guide rails is consistent with germane standards. He further states that, in his opinion, the use of box beam guide rails was appropriate at the location. Mr. Burch relates that the type of guide rails had no effect on the outcome of the accident because the Strack truck pulled as far over to the right as possible before impact. He offers that a driver will pull over to the guide rails to avoid an accident but will not ram the rails and try to go through them to avoid an accident. Mr. Burch concludes by opining that the installation of the subject rustic box beam guide rails was in conformance with good engineering practice and standards in effect when it was constructed.

Not surprisingly, claimant's expert, Lawrence M. Levine, disagrees with Chester Burch. Mr. Levine, who is also a licensed professional engineer, viewed the accident site, conducted tests at the site, reviewed various documents pertaining to the roadway and spoke with neighbors familiar with the site. He states that his expertise includes road design and accident reconstruction. Mr. Levine opines that the use of a box beam, rather than cable type rails, was inappropriate at the subject site. He explains that box beams should be used in areas where there is limited deflection room, but that the subject site had ample room adjacent to the roadway for the use of cable rails. He further states, based in part upon his accident reconstruction, that the box beam had the effect of narrowing the highway, thus eliminating significant space that the Strack vehicle could have used to try to avoid the accident. He further opines that the flexible cable type rails would have permitted movement by the Strack vehicle after impact resulting in less crush of the vehicles and thus the probability of less injury. While Mr. Levine agrees that guide rails were appropriate for the area, he asserts that the guide rails should have been placed farther from the highway and that cable rails should have been employed. He contends that the type of guide rails and manner of installation were not in accordance with accepted standards in effect at the time of construction.

It is apparent that conflicting opinions as regards the placement and type of guide rails have been set forth in the papers before the court. The court's function when faced with a conflict within the context of a summary judgment motion is not to weigh the evidence or comment upon aspects that appear weak. The court's role is limited to recognizing that a sufficient conflict exists to preclude summary judgment. Here, claimants have set forth adequate evidence to prevent summary judgment.

Defendant's motion is denied.

May 19, 2000
Plattsburgh, New York

Judge of the Court of Claims