New York State Court of Claims

New York State Court of Claims

CARBONE-GRIEP v. THE STATE OF NEW YORK, #2000-009-002, Claim No. 95483


In this wrongful death claim, claimant alleges negligence against the State for failing to place appropriate signage for highway markings along NYS Route 69, Oswego County. Claimant's decedent was killed when he was struck head-on by the drive of another vehicle who had lost control when he attempted to pass a third vehicle on the right. The Court found, pursuant to Weiss v Fote, 7 NY2d 579, that the State was entitled to a qualified immunity for its planning decision not to place signs along this stretch of roadway. The Court also found that the State did not violate provisions of MUTCD in reaching this decision. The claim was dismissed.

Case Information

ELINOR E. CARBONE-GRIEP, Individually and as Administratrix of the ESTATE OF RONALD W. GRIEP
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):

Nicholas V. Midey, Jr.
Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Roger B. Williams, Esq., Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
June 27, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

In this claim, claimant seeks to recover damages for pain and suffering and the wrongful death of her husband Ronald Griep, who died as a result of injuries suffered in an automobile accident which occurred on New York State Route 69 in the Town of Parish, Oswego County. The accident occurred on January 19, 1995, shortly before 5:00 p.m. Claimant has also asserted an individual, derivative cause of action. A trial was held to determine the issue of liability only.

On January 19, 1995, decedent was driving in his Oldsmobile van in an easterly direction on Route 69 when his vehicle was struck head-on in his lane of travel by an automobile operated by one Joshua Turner. Mr. Turner had been traveling in a westerly direction on Route 69 immediately prior to the accident. The posted speed limit on Route 69 in this area was 55 miles an hour. At the time of the accident, evidence established that the weather conditions were favorable; the skies were cloudy and the highway pavement was dry. Highway markings were clearly visible.

Route 69, in the vicinity in which the accident occurred, is a straight and level two-lane highway, with one lane each for westbound and eastbound traffic.

Near the scene of this accident, County Route 22 meets Route 69 from the north, forming a "T" intersection. At a point approximately 800 feet east of this intersection, Crosby Road intersects with Route 69 from the south in another "T" intersection. Taken together, these two roads meeting on Route 69 form an offset intersection. In 1970, an additional lane was added to the northerly side of the highway (the westbound line of traffic). This new right-hand lane could be utilized by westbound drivers to pass vehicles which were slowing (or stopped) in the lefthand lane of traffic, preparing to turn left onto Crosby Road. Once a driver passed the intersection with Crosby Road, the right-hand lane could also be utilized by a driver intending to turn right onto County Route 22, and traffic continuing west on Route 69 could utilize the left-hand lane. This additional westbound lane terminated at the intersection with Route 22. A similar lane of traffic had also been added on the southerly side of Route 69, allowing eastbound drivers to pass vehicles turning left onto County Route 22, or further east, for use by vehicles turning right onto Crosby Road.

The facts of this case are essentially uncontroverted. Joshua Turner, the driver of the other vehicle involved in this accident, did not testify at trial. Evidence established, however, that he was 22 years of age and by his own statement (see Exhibit 15), he admitted that he was traveling well in excess of the speed limit, at approximately 70 miles per hour, at the time of the accident.

In this statement (which was made to the investigating officer the day after the accident), Mr. Turner related that he was heading to the airport in Syracuse, attempting to make a 5:40 p.m. flight to New York City. He was driving behind another vehicle, traveling at approximately 60 miles per hour. As he approached the right-hand lane on the north side of Route 69, he decided to pass this vehicle on the right. He accelerated and passed the vehicle, but then abruptly encountered the end of the right-hand lane, which terminated at County Route 22. As his car went onto the shoulder of Route 69, just west of County Route 22, Mr. Turner attempted to bring his vehicle back onto the roadway. He pulled left but overcompensated, lost control of his vehicle, and crossed into the path of the van being driven by the decedent, causing the accident which is the basis of this claim.

Claimant alleges negligence against the State in that it failed to place appropriate signage along the roadway to alert motorists that the right-hand lane was not a passing lane and that it ended at the County Route 22 intersection. Had the State done so, claimant contends that Mr. Turner would have been alerted to the fact that he could not successfully pass the other vehicle and that this accident would have been avoided.

The State is not an insurer of the safety of its roadways and the mere happening of an accident on a State roadway does not render the State liable (see,
Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Claimant has the burden of establishing that the State was negligent and that such negligence was a proximate cause of the accident (see, Bernstein v City of New York, 69 NY2d 1020, 1021-1022; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519).
Furthermore, the design, construction and maintenance of public highways is entrusted to the sound discretion of municipal authorities, and as long as the highway is reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied (see,
Tomassi v Town of Union, supra).
Testimony established that the additional lanes were added to Route 69 in 1970, and that the reconstruction complied with standards of highway construction existing at the time (see Exhibit D).

Raymond McDougall, Assistant Regional Traffic Engineer for the State Department of Transportation, also testified that he had searched department records, and that in the three year period immediately preceding this accident, there had been only one other accident in the immediate area, which was not similar in type to the accident involved in this claim. He also testified that he had searched departmental records for the past ten years and had found no complaints on file relating to safety concerns at this intersection.

Furthermore, Mr. McDougall testified that approximately one and one-half years prior to the accident, he had personally inspected the intersection in order to determine the location of signs directing traffic to the Altmar-Parish-Williamstown High School. Mr. McDougall testified that at that time, he determined there was no need for any signage relating to these lanes of traffic.

It is well established that the State has a qualified immunity for highway planning decisions which require expert judgment or the exercise of discretion, unless it can be established that such action was taken without a reasonable basis (
Weiss v Fote, 7 NY2d 579, rearg denied 8 NY2d 934; Friedman v State of New York, 67 NY2d 271). Strong policy considerations form the basis for this qualified immunity, and in cases "where a governmental body has invoked the expertise of qualified employees, the Weiss directive should not be lightly discounted" (Friedman v State of New York, supra, at 285). Significantly the standard of Weiss has been applied to situations involving the posting of signs (Ufnal v Cattaraugus County, 93 AD2d 521, lv to appeal denied 60 NY2d 554).
In this claim, there was no testimony or evidence to suggest that the decision to widen the highway at this intersection in 1970 was made without an adequate or reasoned study. Furthermore, a State engineer had inspected this site approximately one and one-half years before the accident and, taking into consideration the absence of any prior accidents in this area, he determined there was no need for any signage or highway markings.

Based upon the credible evidence presented at trial, the Court cannot properly conclude that additional signage was necessary, or that this was a dangerous intersection.

Claimant also contends that the State failed to comply with the Manual of Uniform Traffic Control Devices (MUTCD) (17 NYCRR Part 200,
et seq). Claimant argues that either a "W3-13" sign (Right Lane Ends) (§ 233.5[a][3]) or an "R3-32" sign (Right Lane Must Turn Right) (§ 213.5[a][3]) should have been in place alongside the roadway. As another alternative, claimant suggests that a "W3-10" sign (a symbolic sign showing a lane reduction) (§ 233.5[a][2]) should have been utilized.
§ 233.5(a)(4) of MUTCD, however, clearly states that "these signs are not intended for use in conjunction with lanes which exist for short distances, such as acceleration lanes or added lanes at intersections", which is precisely the situation at hand in this case.

Furthermore, and as described earlier herein, this additional right-hand lane had been added not only as a lane for traffic slowing down to turn right onto County Route 22, but also was intended for use by through traffic, enabling drivers to pass vehicles which were slowing or stopped, waiting to turn left onto Crosby Road, a short distance to the east. As defendant correctly points out, signs mandating a left-hand turn from the left lane, or a right-hand turn from the right lane (pursuant to § 213.5[a][3]), would only have served to confuse and mislead drivers.

The Court, therefore, does not find any violation of MUTCD provisions in its decision not to place lane reduction or warning signs along this stretch of Route 69.

Accordingly, and after due consideration of all the evidence presented, the Court finds that claimant has failed to establish negligence by a preponderance of the credible evidence, and that the State cannot be held liable for the unfortunate and tragic accident which occurred. The claim must therefore be DISMISSED.


June 27, 2000
Syracuse, New York

Judge of the Court of Claims