New York State Court of Claims

New York State Court of Claims

VOLPE v. THE STATE OF NEW YORK, #2000-010-059, Claim No. 94964


Synopsis


Claimant, in a wrongful death action, did not establish negligent design of the Sprain and its exit ramp to I-287 east.

Case Information

UID:
2000-010-059
Claimant(s):
JOANNE VOLPE, as Administratrix of the Estate of BRIAN BEATTY, Deceased, and JOANNE VOLPE, Individually
Claimant short name:
VOLPE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94964
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
LANCE EHRENBERG, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 12, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for the wrongful death of her husband, Brian Beatty, who, on August 14, 1996, at approximately 5:45 a.m., was driving to his place of employment in Westchester County when he was killed in a one car accident. Beatty drove southbound on the Sprain Brook Parkway (the "Sprain") and traveled onto the exit ramp for Interstate 287 (I-287) east. Beatty's car proceeded off the south shoulder of the exit ramp and onto the grass. The car then returned to the roadway; skidded off the north shoulder; struck the north guiderail; became airborne and impacted with the concrete support pillars. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
The Sprain is a six lane road with a grass median separating three southbound and three northbound lanes. There is a sign over the southbound left lane alerting motorists of the upcoming exit for I-287 east, "LEFT EXIT 1 MILE."
One half mile farther south is another overhead sign for the I-287 exit which designates the left lane as "EXIT ONLY." A quarter of a mile farther south there is another sign above the left lane advising"EXIT ONLY." Farther south, there is a sign posted on the left side of the road advising "EXIT 35 MPH." There is a fourth sign over the left lane "EAST I-287 EXIT ONLY" with an arrow pointing left. Just prior to the ramp, posted on the left, is a cautionary yellow sign "EXIT 35 MPH". Posted on the right is a green "EXIT" sign with an arrow pointing left (Ex. A). The exit ramp curves left.
Claimant contends that defendant was negligent in its design, construction and maintenance of the Sprain and its exit ramp and that such negligence was a proximate cause of Beatty's accident. Specifically, claimant maintains: the Sprain should have had a protected deceleration lane approaching the exit rather than an exit only lane or the exit ramp should have been designed for travel at 55 mph; the curve of the exit was not visible from the Sprain and there was inadequate signage to warn motorists of the curve; the curve was too sharp and should have been properly banked; had the ramp guiderails been properly maintained, the south guiderail would have prevented Beatty from reentering the roadway from the grass and the north guiderail would have prevented Beatty from striking the concrete support pillars.
New York State Trooper Carlton G. Boykin testified that he arrived at Beatty's accident scene at 5:45 a.m. and observed Emergency Medical Service personnel working to extricate Beatty from his car. Boykin noted that, pursuant to his investigation, the road was dry and it was somewhat foggy. He observed skid marks going off the road onto the south right shoulder and into the grass. There was a guiderail on the south side of the ramp that Beatty had never reached. Boykin conceded that prior to Beatty's accident, the south guiderail had extended farther west; however it did not extend to the point where Beatty had reentered the roadway from the grass. After returning to the roadway, Beatty proceeded to the north shoulder. He struck the north guiderail, became airborne and impacted the concrete support pillars. Boykin stated that approximately30 feet of the guiderail was damaged as a result of Beatty‘s accident. Boykin testified that exhibit 59 showed that the north guiderail had been damaged, but it was still standing.

Boykin took measurements and photographs at the scene (Exs. 54-66). He prepared a diagram and completed a police accident report (Exs. B, 53). Boykin concluded that the fog had reduced Beatty's visibility and that he had entered the curve at an unsafe speed. Boykin estimated Beatty's speed at 50 to 55 mph based upon the heavy tire marks on the road and the overall violence of the accident.

Robert T. Hintersteiner, a licensed professional engineer, offered expert testimony on behalf of claimant. He noted that the original record plans for the Sprain had called for three southbound lanes and one protected left deceleration lane (Ex. 24, p. 3). This configuration, however, was revised and the protected left lane was eliminated (Ex. 25, p. 3). Hintersteiner considered this design change unreasonable. Hintersteiner testified that, according to the 1965 American Association of State Highway Officials ("AASHO") Policy on Geometric Design of Rural Highways, a deceleration lane should have been built rather than an exit only lane (Ex. 30, pp. 341-42). According to Hintersteiner, the exit only lane would alert a motorist to a roadway split, but motorists would not anticipate the extremely sharp left curve of the exit ramp.

He also stated that, according to the New York State Department of Transportation ("DOT") Design Manual, left lane exits are not desirable and should be avoided because they confuse and surprise drivers. He conceded, however, that while left exits are not favored, they are sometimes necessary in congested areas. Upon review of the aerial photographs in evidence, exhibits S and T, he noted high tension power lines, the New York City aqueduct, a golf course, hills, valleys and existing roadways, provided limited options for an exit onto I-287.

Hintersteiner also testified that, according to the 1957 mandates of the AASHO Policy on Arterial Highways in Urban Areas for recommended speeds for direct connections (Ex. 29, p. 473), the ramp should have been designed for a speed closer to the Sprain's 55 mph speed limit and the curvature of the exit ramp should have been wider. As part of his investigation of the accident, Hintersteiner videotaped a ball bank test of the southbound Sprain and its exit ramp. Hintersteiner testified that his ball bank test indicated that the posted speed limit of 35 mph was too high for the ramp and should have been posted at 30 mph. He conceded that the AASHO 1957 Policy, page 473, does not list ramp speeds for a 55 mph roadway and that table J-1 gives various design speeds for ramps, none of which are less than 35 mph (Ex. 29).

Hintersteiner also testified that the curve was not super elevated as it should have been. He insisted that it would have been a minor alteration to place curve warning signs on the road and to lay additional asphalt to provide the proper super elevation of the ramp. According to Hintersteiner, had the road been super elevated, Beatty's car would have stayed on the ramp instead of skidding into the north guiderail. On cross-examination, Hintersteiner admitted that he did not measure the super elevation of the exit ramp. He merely walked on it and determined that it was level instead of banked. He acknowledged that traffic was regularly backed up on the ramp from 8:00 a.m. to 9:30 a.m. weekdays and that, if the ramp had been super elevated, then during icy roadway conditions, vehicles would slide off the ramp.

Hintersteiner further maintained that, in accordance with the provisions of the New York State Manual of Uniform Traffic Control Devises ("MUTCD"), a left curve sign should have been used rather than the advisory exit speed sign (Ex. 32, § 231.1; Ex. 33, p. 3). Without reference to any specific mandate, Hintersteiner estimated that "maybe 20"[1]
signs would be sufficient to warn of the curve. Hintersteiner also noted that in 1995, the State performed a study on traffic on I-287 which listed the interchange between the Sprain and I-287 as a problem area with a high accident rate.
Hintersteiner compared the DOT records for guiderail repairs (Ex. 70) and a computerized printout of accident abstracts in the vicinity of the Beatty accident. On August 2, 1996, December 17, 1995 and December 11, 1995, there had been an accident where the guiderail was hit and there had not been any guiderail replacement since October 18, 1995. Hintersteiner concluded that approximately 300 feet of the north guiderail had been significantly damaged prior to Beatty's accident. He opined that, had the north guiderail been properly maintained, it would have stopped Beatty's car and prevented it from hitting the concrete support pillars. Additionally, Hintersteiner opined that, had the south guiderail been properly maintained, Beatty would have struck it from behind as he proceeded from the grass and the south guiderail would have stopped Beatty's car from reentering the roadway and, ultimately, from hitting the concrete support pillars.

Hintersteiner concluded that there were significant departures from good design, construction and maintenance standards which were substantial factors in causing Beatty's accident. Hintersteiner assumed that Beatty had been traveling in the left lane of the Sprain prior to turning onto the exit ramp and that, even though Beatty was familiar with the road, the fog may have presented an "optical illusion," and Beatty could have expected to continue straight. There was, however, no evidence establishing that Beatty was in the left lane of the Sprain prior to exiting or whether he had crossed over from the middle lane. Hintersteiner maintained that it was impossible to determine Beatty's speed because the grass was wet and the car slid 50 feet from the time it hit the north guiderail until its impact with the concrete support pillars. Hintersteiner did not examine the damaged car; he did not do an accident reconstruction; he did not do a vaulting analysis.

Claimant presented the testimony of four individuals who had accidents on the exit ramp prior to Beatty's accident: Ronny Seigle on March 19, 1995; Michael Bauer on May 24, 1995; Susanna Lara on September 16, 1995; Heather Maltagliati on October 1, 1995. They each testified to the sharpness of the curve. Unsafe speed was listed as a contributing factor in each of the accidents except for Bauer's, where the contributing factor was an improper turn (Exs. 80-83). Additionally, Lara testified that she was billed $2,500.00 for the damage her accident had caused to the south guiderail. She maintained that the guiderail was never restored to the length it had been at the time of her accident and that the "end" was "just put into the ground." When shown a photograph of the scene taken by Hintersteiner after Beatty's accident (Ex. 17), she insisted that the south guiderail had been longer at the time of her accident.[2]
Thomas Mason, an employee with DOT for 30 years, testified on behalf of defendant. Since April 1991, Mason has been Assistant Resident Engineer for the Southern Westchester County Maintenance District. Mason is responsible for the maintenance of the highways in the southern part of the county including the site of Beatty's accident. According to DOT maintenance records, the green exit sign had been repaired/replaced seven times between March 21, 1994 and July 30, 1996; Mason did not consider this unusual. DOT maintenance records regarding the guiderails in the area of Beatty's accident indicate that: on June 14, 1995, 72 feet of guiderail was repaired; on September 7, 1995, 36 feet of guiderail was repaired and on October 18, 1995, 54 feet of guiderail was repaired. Mason could not testify as to the length of the guiderails prior to Beatty's accident or whether the south guiderail had been shortened after Lara's accident. Mason explained that, even if a support post is down, the guiderail can still function if it rests at the proper height on the remaining support posts.

Bruce Gambling, who served as a traffic engineer for the East Hudson Parkway Authority and DOT for 31 years before retiring, provided expert testimony on behalf of
defendant. His area of responsibility included the Sprain. His duties included review of signage, pavement, traffic signals and accident records.
Beginning in 1961, Gambling performed hundreds of ball banking tests on county roads to determine the recommended speed for curves. He performed ball banking tests on the Sprain and its exit for I-287 east and determined the advisory speed of 35 mph. Two months prior to trial, he performed another ball banking test for the exit and concluded that the appropriate speed was 38 mph. Gambling's practice was to round down the recommended speed when it fell between a five mile per hour interval.

Gambling explained that the original plans for the Sprain, as detailed in the text data sheet, called for cautionary speed limit signs as well as overhead left lane exit warning signs (Ex. D, p. 15R1). He maintained that the signage as it existed conformed to the MUTCD and current good engineering standards. Gambling explained that the ramp and the Sprain diverged at this point; therefore exit ramp signs were appropriate. According to Gambling, a curve warning sign, instead of the exit speed sign, would have been confusing to motorists because it would not be clear whether the curve referred to the ramp or the Sprain.

Nicholas Pucino, a professional engineer with DOT and its predecessor agencies for over 30 years before retiring, offered expert testimony on behalf of defendant. From 1979 to 1989, Pucino was in charge of the State Highway Safety Improvement Program. He was responsible for identifying roadway deficiencies and, based upon accident report analysis, designing improvement projects. In 1989, until his retirement in 1991, Pucino was DOT's regional construction engineer and supervised the inspection and construction of roads in Westchester.

Pucino described the configuration of the Sprain and its exit as a semi-direct connection with a lane drop, not a direct connection. Therefore, Pucino disputed Hintersteiner's opinion that the speed limit for the ramp should have been closer to 55 mph because Hintersteiner's opinion was erroneously based upon AASHO mandates regarding direct connections. He noted that shortly after the exit, traffic entered the Sprain into a new pickup lane, thus creating lane balance. Had the protected left deceleration lane not been eliminated, there would have been too many lanes on the Sprain. Pucino opined that the original plans for a protected left deceleration lane were probably changed to lessen the chance of rear end accidents. He further explained that a deceleration lane would not have been long enough to accommodate the volume of traffic and vehicles would have backed up into the travel lane of the Sprain. With a lane drop, the entire lane is dedicated for the exit beginning at least a mile away, thereby eliminating stopped traffic in the travel lanes of the Sprain. In contrast to Hintersteiner, Pucino testified that the Sprain did not present a compound curve because there was no change on the main line itself.
While acknowledging that left exits are generally disfavored, Pucino explained that they are warranted under certain conditions. Particularly in the area at issue, Pucino noted the presence of the New York City aqueduct, Con Edison high voltage lines, residential areas, a Con Edison substation and the fact that the Sprain rises and I-287 is on a downgrade. According to Pucino, these circumstances made it impossible to construct a right exit from the Sprain onto I-287. While disapproved, left exits are not prohibited and are acceptable under AASHO 1957 standards (Exs. Y, Z).

Pucino disagreed with Hintersteiner's view that the exit speed should have been 55 mph. Pucino testified that the design speed of the Sprain was 60 mph and that, according to the AASHO Policy on Arterial Highways in Urban Areas, the recommended ramp speed was 30 to 45 mph. Thus, 35 mph was within the acceptable range (Ex. 29, p. 2).
Pucino further testified that 35 mph for the exit ramp was proper according to three different methods of testing. One, a ball bank test performed on October 6, 1999 by Pucino and Gambling established a recommended speed between 38 and 40 mph; the speed limit, however, was down posted to 35 mph. Two, the chart from MUTCD which utilized the radius of the curve and slope, determined that 38 mph was an acceptable speed (Ex. Y, § 231.2) and, even without any banking, Pucino maintained that 35 mph was an appropriate speed limit. Three, an engineering mathematical equation as testified to by Pucino, produced an acceptable speed limit of 35 or 40 mph.
Pucino disputed
Hintersteiner's ball banking analysis which resulted in a 30 mph recommended speed limit because Pucino's own ball bank tests produced a different result. Pucino also testified that he had safely negotiated the curve at 48 mph.
In contrast to Hintersteiner, Pucino found that the exit ramp was super elevated. Despite
Hintersteiner's claim that it was too dangerous to measure the super elevation on such a busy road, Pucino used his slope meter to take several measurements along the ramp and found that the ramp was banked at .04. Pucino testified that it is impossible to evaluate super elevation with the naked eye, particularly when examining a ramp with a downgrade. Pucino also noted that the plans showed banking (Ex. C). Pucino disagreed with Hintersteiner's opinion that the banking should have been .08. In this region, which experiences ice and snow conditions, Pucino maintained that .06 was the acceptable maximum.
Pucino refuted
Hintersteiner's claim that in 1995 the State had performed a traffic study and determined that the interchange between the Sprain and its exit for I-287 was a problem area with a high accident rate. Pucino noted that the report referred to accidents on I-287, not on the exit ramp from the Sprain (Ex. 28). Pucino testified that the exit was heavily traveled with an average daily traffic count of 13,837 automobiles. Over a five year period, 25 million cars used the exit. Comparing the volume of traffic to the number of accidents, Pucino opined that the accident rate was not high. He analyzed the accident history from 1993 to 1996. There were no similar accidents in 1993 or 1994. Pucino maintained that, contrary to Hintersteiner's opinion, the radius of the curve was within acceptable AASHO 1957, p. 474 standards. Had it not been, then accidents would have been prevalent under wet weather skidding conditions. However, the accidents that occurred in 1995 and 1996 occurred during clear and dry conditions, with only one wet weather accident. Pucino further explained that Hintersteiner had erroneously stated that the plans called for a curve radius of 28 degrees; rather the plans called for 28 degrees of deflection. Pucino stated that the radius was 11.4 degrees, which was within the accepted range set forth in AASHO 1957, p.474.
Pucino testified that the exit ramp signs and the "Exit Only" series conformed to MUTCD standards. Pucino explained that a curve warning sign could have confused motorists on the Sprain. When asked on cross-examination about the feasibility of using a left exit curve sign, he replied that it was not a standard sign under MUTCD.

Pucino disagreed with Hintersteiner's conclusion that prior to Beatty's accident, 300 feet of the north guiderail had been significantly damaged. Using DOT records, Pucino correlated guiderail repairs to several known accidents on the exit ramp. He noted that, after the Lara accident on September 6, 1995, the following day 36 feet of guiderail were repaired. Additional repairs were made in October and November 1995. Photographs taken by police on the day of the Beatty accident reveal that, although the guiderail was knocked off some of its posts, it remained upright and intact.
Based upon the police photograph (Ex. 59), Pucino maintained that the guiderail had sagged only at the point of impact. He stated that, as long as the guiderail was still upright, it was still functional.
Normally the left front of a car would hit the north guiderail at an angle. The left front of Beatty's car, however, was not damaged; rather the right front corner and side were damaged. Thus, the car had been rotating as it hit the guiderail. Pucino explained that guiderails are not designed for the kind of impact presented by Beatty's vehicle.
Pucino also testified that even if the south guiderail had been extended farther west, it was not designed to be struck from behind or to prevent vehicles from reentering the roadway from the grass.
Pursuant to his investigation of the Beatty accident, Pucino examined Beatty's damaged car; took photographs of it and videotaped the vehicle.
Pucino did not think the police sketch plotting the path of Beatty's car was accurate because there is no factual basis for placing Beatty in the left lane of the Sprain prior to entering the exit ramp. Similarly, an absence of information prevented a calculation of Beatty's speed. Pucino concluded that Beatty could have been exceeding 55 mph and up to 80 mph, given the car's rotation. Thus, high speed could have caused Beatty's accident. Alternatively, the skid marks indicated that Beatty lost control upon entering the curve, therefore Beatty's last minute attempt to exit could have caused the accident. Reduced visibility from the fog could explain why Beatty, who was familiar with the road, could not negotiate the curve.
It is well settled that the State had a nondelegable duty to adequately design, construct and maintain its roadways and guiderails in a reasonably safe condition (
see, Gomez v New York State Thruway Auth., 73 NY2d 724; Freidman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579; Zalewski v State of New York, 53 AD2d 781). The State, however, 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 defendant was negligent and that such negligence was a proximate cause of the accident (see, Bernstein v City of New York, 69 NY2d 1020, 1021-22; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519).
A
claimant in a wrongful death action is not held to as high a degree of proof as a claimant who can describe the occurrence (Noseworthy v City of New York, 298 NY 76, 80). "However, even in a wrongful death case, ‘[s]peculation, guess and surmise *** may not be substituted for competent evidence, and where *** there are several possible causes of an accident, one or more of which a defendant is not responsible for, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible'" (Johnson v Sniffen, 265 AD2d 304; quoting Aigus v State of New York, 50 AD2d 1049, 1050).
It is also well settled that, in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (
see, Friedman v State of New York, supra; Weiss v Fote, supra). "[S]omething more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (Weiss v Fote, supra at 588). In the instant case, claimant's expert and defendant's expert both agreed that, while left exits are not favored, they are acceptable under the constraints presented by this location. The remaining opinions of claimant's expert were effectively discredited by defendant.
Pucino explained that an exit only lane, as opposed to a protected left deceleration lane, lessened the chances of rear end accidents and was more appropriate to accommodate the volume of traffic on the Sprain. Pucino, along with the testimony of Gambling, refuted
Hintersteiner's conclusions regarding the posted speed on the exit ramp by showing that 35 mph was appropriate under three different types of testing and within AASHO's recommended range. Additionally, Pucino established that Hintersteiner's conclusion that the ramp was not properly banked was unfounded.
The Court did not find persuasive
Hintersteiner's testimony that a left curve sign should have been used rather than an advisory exit speed sign or his unsubstantiated opinion that "maybe 20" signs would be sufficient to warn of the curve. Rather, Gambling and Pucino effectively explained how a curve sign could have been confusing to motorists and that the signage as it existed conformed to good engineering standards.
Finally, the testimony of Mason and Pucino established that a guiderail is still functional it if remains upright. Pucino further explained that guiderails are not designed for the kind of impact presented by Beatty's vehicle and that the damage to Beatty's car did not indicate that the guiderail was struck at the angle at which it was designed to deflect. With regard to the south guiderail, Pucino noted that it was not designed to be struck from behind nor to prevent vehicles from reentering the roadway from the grass.

Notably,
Hintersteiner did not examine Beatty's damaged car; Hintersteiner did not do an accident reconstruction nor a vaulting analysis. Thus, his conclusions as to proximate cause did not weigh heavily with the Court. There was no factual basis for placing Beatty in the left lane prior to entering the exit ramp. An absence of information prevented a calculation of Beatty's speed. Moreover, in Sherwood v State of New York (238 AD2d 396, 397), claimant's expert, Hintersteiner, testified for the State that:
[C]omplainant's trajectory could only be computed with knowledge of the distance he had traveled or the time that had elapsed between his attempting to turn left and his leaving the highway to the right. As long as these parameters remained unknown, Hintersteiner concluded, the question of whether a guardrail would have stopped or slowed the complainant's car was "just guesswork".

Thus, there was insufficient evidence to establish that: the State's planning and design decisions were plainly inadequate or without a reasonable basis; the area was a high accident location; any negligence attributable to the State was a cause of claimant's accident (
see, Galvin v State of New York, 245 AD2d 418 [there was no basis for Court to determine that replacement of the guiderail at is previous location would have prevented or reduced claimant's injuries]; Stanford v State of New York, 167 AD2d 381 [claimant had adequate warning that it was necessary to reduce his speed as he prepared to enter the left curve; alleged negligence of the State in permitting warning sign to become obscured was not a proximate cause of accident]).
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 94964.


September 12, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]
All quotations are to the trial notes or audio tapes unless otherwise indicated.
[2]
Trooper Boykin testified that prior to the Lara accident, the south guiderail had extended farther west than at the time of the Beatty accident, Boykin, however, could not specify the precise length of the guiderail on his diagram for Beatty's accident.