Claimant seeks damages for injuries he sustained on July 11, 1994 when he was
driving his motorcycle westbound on Route 6N in the Hamlet of Mahopac, Town of
Carmel, Putnam County and collided with a car that was backing out of the angled
parking area located on the south side of 6N. Claimant alleges that angled
parking was not appropriate at this location because the width of the roadway
necessitated that a driver cross over the center dividing line to back out of a
parking space. Claimant further contends that the New York State Department of
Transportation ("DOT") was aware of the dangers posed by the angled parking, yet
failed to prohibit it. Claimant argued that defendant's failure was the
proximate cause of his accident. The trial of this claim was bifurcated and
this Decision pertains solely to the issue of liability.
The area of the accident is Mahopac's business district. The posted speed
limit is 30 mph. Route 6N has one eastbound and one westbound lane separated by
a double yellow line. The eastbound lane is 12 feet wide and has diagonal
parking on the south side of the road, although there are no lines indicating
designated parking stalls. The westbound lane is 11 feet wide and no parking is
permitted on the north side of the road. There are a number of commercial
establishments on the south side of the road and the Mahopac Plaza Shopping
Center is located on the north side of the road. The most easterly point of
Route 6N intersects with Route 6. At the intersection, a westbound motorist
faces a traffic light with a steady green arrow, over the right lane, toward
Route 6N. Route 6 veers left in a southwesterly direction.
Claimant, who was 32 years old at the time of the accident, testified that he
has driven motorcycles since he was 18 years old and has driven minibikes since
he was five. On July 11, 1994, shortly after 1:00 p.m., claimant was driving
his four month old Kawasaki Ninja motorcycle, which was a sport model design
necessitating that the driver lean forward to grip the handlebars with his head
lowered. Claimant left his place of employment at Ridgeview Autobody and
proceeded southbound on Route 6 toward Mahopac Autopaint. When he reached the
intersection of Route 6N and Route 6, he noticed several cars stopped at the
traffic light, so he decided to take advantage of the steady green arrow toward
Route 6N. He planned to reenter Route 6 farther south, by turning left onto a
road connecting 6N and 6. As a lifelong resident of Mahopac and an employee of
the autobody shop since he was 13, claimant was very familiar with the roads and
the parking configuration on Route 6N.
Claimant estimated that he was traveling at a speed of approximately 25 to 30
mph as he proceeded westbound on 6N. Claimant testified that, when he entered
6N, he was in first gear and then increased his speed. He noted that there were
no cars ahead in his lane.
As claimant approached Sycamore Road, which crosses Route 6N just before the
Mahopac Plaza, he observed the rear of an automobile, approximately 60 feet
away, backing out from the diagonally parked cars. Within seconds, claimant
realized that the car was going to cross the double yellow line. According to
claimant, he could not maneuver around the car nor turn into the shopping plaza.
Claimant did not sound his horn nor apply his front brakes. Rather, he
"immediately let off the throttle;" applied his rear brakes; and laid the
motorcycle on its side (T:839).
motorcycle went into a skid and his next recollection is of hitting the car. On
cross-examination, claimant conceded it was best to engage both the front and
rear brakes. Claimant maintained, however, that, had he used the front brakes,
he could have tumbled over the handlebars and that, by engaging only the rear
brakes, he believed he had better control going into the slide.
The driver of the car, Lee Rose, testified that he was parked on the south
side of 6N in front of the Mahopac Deli. Rose testified that, because parking
stalls were not delineated by pavement markings and due to the angle and size of
the car parked to his right, Rose parked at a slightly perpendicular angle.
According to Rose, the cars parked on either side of him were larger than his
car. Rose testified that he looked east, west, and then east again, before
backing out of the parking area. He had a clear unobstructed view to the east
and observed cars waiting at the traffic light. Rose intended to back out and
then travel easterly.
Rose proceeded at less than five mph as he looked to the west. He then heard
the sound of a motorcycle and turned his head east. Rose testified that he had
not completely cleared the parking space and that only his rear wheels had
crossed the double yellow dividing line. Rose observed claimant's motorcycle,
still erect, but in the process of sliding down toward the car. Rose estimated
that the motorcycle was at a distance of 60 feet. According to Rose, within one
to three seconds, the motorcycle hit the driver's door and quarter panel.
After the collision, Rose exited his car, looked at the damage and went into
the deli to telephone for an ambulance. He left his keys in the car. He never
moved his car before the police arrived and he never observed anyone else move
his car. Contrary to Rose's testimony regarding the position of his car at the
time of impact, photographs taken by the police show practically the entire Rose
vehicle in the westbound lane. The front left tire was in the middle of the
double yellow line and the remaining portion of the car was in the westbound
lane (Exs. 46A, 46B, 46C, 46F, 46G, 46H, 46I, 46J, 46K, 46X). Despite this
photographic evidence and the testimony of Edward Binns, an eyewitness, and the
testimony of the responding Police Officer, Mark Graser, Rose maintained that
the photographs did not accurately represent the position of his vehicle at the
time of impact, although he could not account for any movement of his vehicle
after the accident.
Edward Binns, who was driving his van on Route 6N witnessed the accident.
Binns testified that he was slightly west of the exit to Mahopac Plaza when he
first observed claimant traveling in the opposite direction. On the record
plans for 6N (Ex. 62), Binns marked the position of his car and claimant's
motorcycle when Binns first saw claimant east of the intersection at the Mahopac
Bank building. Shortly after this observation, Binns noticed that claimant's
position on his motorcycle moved into an upright stance. Binns kept claimant
under observation. The two passed near Sycamore Road. Binns estimated that he
was traveling at a speed of 20 to 25 mph on 6N. He could not estimate
claimant's speed, although it was faster than Binns. After Binns passed
claimant, Binns heard the sounds of screeching tires. He looked into his
rearview mirror and observed a car stopped in the westbound lane. He saw
claimant's motorcycle fishtail and go down onto the pavement. The motorcycle
struck the car toward the front and claimant hit the back end of the driver's
door. Binns testified that the police photographs accurately depicted the
position of Rose's car in the westbound lane at the point of impact (Exs. 46A,
46B, 46K, 46R).
Town of Carmel Police Officer Mark Graser testified that he responded to the
accident scene. He observed the position of the Rose vehicle; requested that
photographs be taken; took measurements; and completed a Police Accident Report.
There was an 84 foot motorcycle skid mark that began on the west side of
Sycamore Road and ended approximately 20 feet before the Rose vehicle. The Rose
car was positioned as depicted in exhibits 46B, 46I, mostly in the westbound
lane. Graser testified that since 1977, he has responded to approximately 50
accidents that have involved a vehicle backing out from the angled parking area
on Route 6N.
Michael G. Mignogna, DOT's regional traffic engineer from 1977 to 1995 for the
area encompassing this accident, testified that DOT had embraced the opinion
that diagonal parking should be eliminated on 6N (Exs. 29-30). In 1978, DOT
granted the Town a work permit for improvements on
A series of letters had been exchanged
between the Town and DOT regarding the modifications to be included in the
construction project. Mignogna's letter dated May 24, 1977 to the Town
Supervisor states, "[t]his diagonal parking area, as we all are aware, has been
a very sensitive item; however, from a traffic safety standpoint, the ultimate
objective should be the removal of the diagonal parking. *** Additionally, I
want to stress the importance of continually monitoring the diagonal parking and
its impact to the occurrence of accidents. If the accident history continues to
be high, all responsible agencies should act to remove the diagonal parking and
establish parallel parking" (Ex. 29). The permit was issued to the Town to
install concrete curb sidewalks, asphalt paving, pavement
signs and lighting on 6N. Parallel parking was eliminated on the north side and
the center dividing line was shifted north. Mignogna was not aware of any
safety studies done between 1978 and 1983.
In 1983, DOT issued a Notice of Order dated December 9, 1983 that repealed an
existing order which permitted angled parking on the south side of Route 6N (Ex.
36). Pursuant to the 1983 order, parallel parking would be permitted on the
south side and all parking would be prohibited on the north side. By letter
dated December 19, 1983, Mignogna advised the Supervisor of the Town of Carmel
that, in regard to the 1983 order, DOT's maintenance department would install
the necessary signs.
Although the 1983 order was not repealed, it was never enforced because of
opposition from the Town stemming from the commercial establishments along 6N.
Mignogna was not aware of any studies conducted after 1983 which indicated that
the dangers posed by diagonal parking no longer existed. Mignogna testified
that it was State policy not to remove parking if there was community
opposition, unless there was an overriding safety reason. The State
acknowledged the importance of monitoring the angled parking and its impact on
the number of accidents (Ex. 29). Mignogna conceded that DOT has the
authority to enforce the 1983 order. In response to an inquiry by State Senator
Mary Goodhue in a letter dated August 7, 1984, Albert Dickson, DOT Regional
It is widely known in the Traffic Engineering field that diagonal parking
creates an accident problem far in excess of any other parking schemes. No
matter how cautious people are in backing from a diagonal space, they are still
required to back into the traveling stream. In addition, because of the
numerous differentials in vehicle size, motorists engaging in diagonal parking
maneuvers often cannot see nor be seen by the through traffic.
We have recently completed another investigation in this area. Upon request of
Mr. Othmer, Town of Carmel Supervisor, we again have not implemented our
proposals. The entire situation is dormant and we will not take any action
until some resolution is received from the Town of Carmel.
(Ex. 42). Mignogna stated that DOT's position was that angled parking was not
acceptable and that it was preferable to have pavement markings delineating
parking spaces. Nonetheless, diagonal parking was not eliminated and pavement
markings were never added.
On June 8, 1994, a reconstruction project on Route 6N between Cherry Lane and
the intersection was completed. The project, which covered the area of the
accident, included resurfacing and a reconfiguration of the travel lanes and
parking area. The center dividing line was moved north to widen the eastbound
lane so that angled parking could be accommodated. There was 30 feet from the
center line to the south curb which allowed for a 12 foot eastbound travel lane
and provided 18 feet for angled parking. The westbound travel lane was 11 feet
and there was three and a half feet from the edge line to the curb.
Claimant's accident reconstructionist, Dennis Toaspern, examined claimant's
motorcycle. He classified the damage as light, noting that the motorcycle
remained structurally sound, and concluded that claimant had been traveling at a
low rate of speed (Exs. 46A, 46I). He estimated that claimant's speed was 10 to
12 mph at impact. Toaspern explained that, at a higher speed, the motorcycle
would tend to go under the car and that there was no indication of damage to the
lower part of Rose's car. Toaspern also used the police photographs to place
the objects at the scene and calculated claimant's speed based upon, inter
alia, the skid mark's length and location, and a formula, based upon
varying drag factors at different intervals of the accident. He further
maintained that, even if claimant had been traveling at the 30 mph speed limit,
the accident was not avoidable.
Toaspern opined that claimant's use of only the rear brakes was not
According to Toaspern, it is the
usual practice in urban situations to apply only the rear brakes. Toaspern
explained that by using only the rear brakes, the driver can decelerate while
continuing to maneuver the motorcycle. Toaspern further stated that once the
rear brakes are applied, it is difficult to apply the front brakes and such
conduct would most likely result in a sudden stop, causing the motorcycle to
tumble and the rider to be propelled over the handlebars. Toaspern testified
that, while applying both brakes at the same time would result in a quick stop,
it presumes a non-emergency situation.
In Toaspern's opinion, claimant could not have turned into the shopping plaza
to avoid the accident because of a narrow entrance, high curb, and parked cars.
Toaspern stated that claimant's use of his horn would have had no effect because
horns are notoriously quiet on a motorcycle. He further stated that sounding
the horn requires the driver to use the strength of his hand and that efforts to
avoid an accident would be better placed elsewhere. Toaspern opined that, Rose
was forced to cross the double yellow line because he had to pull out
perpendicularly and his view was blocked by the larger car parked to his
Samuel Hochstein, a professional engineer, also offered expert testimony on
behalf of claimant. He opined that the angled parking was a cause of the
accident. He further maintained that the absence of pavement markings
delineating parking stalls was a departure from good engineering practice
because it allowed vehicles to park at different angles and hindered sight
distances. He explained that a motorist would have to see through an adjacent
vehicle and pull three quarters of the way out of the parking space before
having adequate sight distances in both directions. Hochstein testified that a
car parked at a 90 degree angle required 44.5 feet of space from the curb to the
center line and the road was not wide enough to accommodate angled parking.
Rather, the width of the eastbound lane was insufficient to enable a vehicle to
back out of the parking area without crossing the double yellow line into
Hochstein maintained that the 1978 improvements did not remedy the dangers
posed by angled parking and that angled parking should have continued to be
monitored and was not.
The failure to enforce
the 1983 order rescinding angled parking was, in his view, another departure
from good engineering practice. Hochstein conceded that, in busy business
districts, a driver should exercise caution and obey the speed limit.
Stephen Coulon, defendant's accident reconstructionist, calculated claimant's
speed by applying the same scientific formula as claimant's accident
reconstructionist. However, for the slide, Coulon used a .9 drag factor for
claimant, rather than for the motorcycle and this resulted in a significantly
higher rate of speed in Coulon's equation. Coulon concluded that claimant's
speed was more than 40 mph. On cross-examination, Coulon conceded that the drag
factor of .9 may have been slightly high because there was testimony that
claimant had tumbled rather than slid for 20 feet before impact. In calculating
the .5 drag factor for tumbling, the result would be a speed of 37.28 mph.
Coulon maintained that, based upon the formula, it was not possible for
claimant to have been traveling at 25 to 30 mph. Coulon explained that, had
claimant been traveling at a speed of 30 mph and applied only his rear brakes,
he would have skidded to a complete stop within 75 to 85 feet. It was
undisputed however, that claimant had skidded 84 feet on the motorcycle and
another 20 feet off the motorcycle, for a distance of 104 feet. Coulon reached
this conclusion using a 3.5 drag factor. Then, using a speed of 25 mph and a
drag factor of .4, Coulon figured that claimant would have only skidded 52 feet.
Thus, Coulon concluded that, had claimant been traveling at a speed of 25 or 30
mph, the accident would not have occurred. Coulon further testified that, if
claimant had been traveling at 30 mph and applied both the front and rear
brakes, the drag factor would increase to .8 and claimant would have skidded
only 37 ½ feet. Coulon opined that it was not physically possible for
claimant to have been traveling at 25 or 30 mph and to have skidded 84
Coulon concluded that claimant was traveling at an inappropriate rate of speed
and that this speed was a competent producing cause of the accident. Coulon
also testified that claimant's failure to use his horn was a departure from good
practice and that, contrary to the testimony of claimant's accident
reconstructionist, any warning sound was better than none at all. Coulon
opined that the proper method to stop a motorcycle was to apply both front and
rear brakes. In contrast to claimant's accident reconstructionist, Coulon
testified that the front brakes were unstable if used alone and only lock at low
speeds. Coulon maintained that if claimant had sufficient time to apply his
rear brakes, he had sufficient time to apply his front brakes and should
Coulon was extensively questioned about perception/reaction time and the short
distance in which claimant had to react. The evidence reveals that claimant did
in fact react to the movement of Rose's car. Thus, the issue becomes whether
claimant's reaction was appropriate. When challenged on cross-examination,
Coulon denied awareness of studies finding that in fluid situations, a majority
of motorcycle riders do not use front brakes. In Coulon's view, the fact that a
number of people only use rear brakes does not establish the propriety of such
conduct; rather it accounts for a number of accidents.
The deposition testimony of William Fitzpatrick, who has been employed as an
engineer at DOT since 1969, was received into evidence. From 1987 to 1995,
Fitzpatrick was the Assistant Regional Traffic Engineer for Region 8 which
includes the area at issue. Since 1995, he has held the position of Regional
Traffic Engineer. He was not aware of any policy wherein the concerns of the
town's merchants could outweigh safety concerns. He conceded that vehicular
accidents always have a potential for personal injury.
The deposition testimony of Jeffrey Wickeri, a civil engineer with DOT, was
also received into evidence. Wickeri had been employed by DOT since 1966, and
since 1979, he had been supervisor of the Highway Work Permit Unit. Wickeri
testified that defendant did not need the approval of a town, a municipality,
or a group of merchants, prior to implementing a safer parking configuration;
however, the State always tried to consider such concerns in an attempt to reach
an acceptable arrangement. Ultimately, if the State felt that the parking
situation was dangerous, it could institute a safer parking configuration (Ex.
66, p. 56).
It is well settled that the State had a nondelegable duty to adequately
design, construct and maintain its roadways 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).
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, defendant clearly knew of the dangers posed by angled
parking and had the authority to enforce its own 1983 order prohibiting angled
parking, yet failed to do so apparently because of the opposition from the Town
merchants. The danger created by the inadequate width of the roadway was
compounded by the absence of pavement markings delineating parking stalls, as it
enabled vehicles to park at an angle greater than 45 degrees. The absence of
pavement markings was an invitation to vehicles to park as they did on the day
in issue, east and west of the Rose vehicle. Defendant's failure was a
contributing cause of the accident as it set the stage for its occurrence
(see, Marren v State of New York, 142 AD2d 717 [State breached its
duty to keep roadway reasonably safe by its delay in installing a traffic device
where the State was aware of dangers posed necessitating traffic device]).
Specifically, the road was not wide enough to enable a vehicle to safely back
out of the parking area without crossing over the double yellow line.
Additionally, the failure to delineate parking stalls exacerbated the dangers
posed by angled parking because it permitted a condition to occur which
necessitated Rose to back out even farther over the double yellow line due to
the parking positions of the vehicles on either side of his car. Thus, the
Court apportions one third liability to defendant.
Rose and claimant, however, were not without fault. While the roadway
configuration was the cause for Rose to back over the double yellow line, it did
not necessitate that Rose proceed as far as he did into the westbound lane.
Rather, the photographic evidence indicates that Rose appeared to have intended
to continue westerly.
Even if Rose had
planned to travel easterly, as he maintained, he was bound to see that which
could have been observed by a proper use of his senses (see
, Doyle v
State of New York
, 271 AD2d 394). The Court finds that Rose was negligent
in his driving and contributed one third to the happening of the accident.
Claimant, an experienced motorcyclist who was very familiar with the area, was
also negligent. The Court finds that defendant's accident reconstructionist
effectively demonstrated that claimant could not have been traveling at the
posted speed limit of 30 mph and that, had he been, claimant could have stopped
before hitting the Rose car. Claimant took a detour onto 6N to avoid waiting
for the light on Route 6, even though a few blocks later he intended to return
to Route 6. This evidences haste and impatience and accounts for his failure to
observe that which should have been seen with a proper use of his senses. It
further corroborates defendant's accident reconstructionist's conclusions that
claimant was traveling at a higher rate of speed than the posted limit. The
Court concludes that claimant was traveling at an unsafe rate of speed for the
business district and especially during lunchtime. Claimant also failed to
sound his horn and applied only his rear brakes. The expert testimony
established that applying the front and rear brakes simultaneously would have
been more effective. In sum, the Court finds that claimant's manner of driving
was negligent and contributed one third to the cause of his accident.
Upon filing of this Decision, the Court will set the matter down for a trial
on the issue of damages as soon as practicable.
All motions, not heretofore ruled upon, are DENIED.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
Here, while the record contains correspondence indicating that the Town
asked the New York State Department of Transportation (hereinafter the DOT) not
to implement a change from angled to parallel parking in 1984, the ultimate
responsibility for determining the parking design on Route 6N remained with New
York State. In addition, a 1987 letter from the DOT advising the Town that it
could apply for a work permit to repaint the angle pavement marking along Route
6N does not indicate that the State ceded authority over the parking design to
the Town, or that the Town assumed a duty over the maintenance of angled parking
on Route 6N. Under these circumstances, the Town cannot be held liable on the
theory that it implemented and maintained an unsafe parking design on Route 6N