Claimant seeks damages for the serious injuries she suffered as a result of a
two-car collision on Route 94 near its intersection with Station Road in Orange
County on August 11, 1992. She alleges that the defendant was negligent in the
design, construction and maintenance of the roadway and its associated drainage
system, that the speed limit was excessive and that there was an absence of
proper warning signs. A bifurcated trial was held and this decision relates
solely to the issue of liability.
The following is a synopsis of the undisputed evidence elicited at the trial.
On August 11, 1992, claimant, who was a sales merchandiser, which required her
to traverse the area of Route 94 in question about once a week, was driving in
the westbound lane of Route 94. She had left the parking lot of the Shoprite at
Vails Gate and was driving in her Geo Metro. After crossing the bridge near the
intersection of Route 94 and Station Road her car crossed into the eastbound
lane and came into contact with a vehicle driven by Bennett Swain.
The parties stipulated that the claimant suffered from amnesia and therefore
was unable to give testimony on her movements immediately prior to the accident.
As a result of the claimant's disability, her attorney called witnesses to
establish the facts surrounding the climate, road surface and general
description of the area. The evidence was submitted in order to sustain
claimant's burden of proof with respect to negligence and proximate cause
see, Sawyer v Dreis & Krunp Mfg. Co.
67 NY 2d 328;
Schechter v Klanfer
28 NY2d 228; Fasano v State of New
, 113 AD 2d 885).
Mr. Swain testified that he was traveling in the eastbound lane of Route 94
approaching the bridge near Route 94's intersection with Station Road. The
weather was rainy and the roadway was wet (Vol I, p. 11). As he was nearing the
bridge, a car in the westbound lane crossed into his lane of travel and collided
with his vehicle.
Mr. Swain stated that he had lived in the area for approximately four years and
had driven on Route 94 about twenty times per month. He testified that when he
used the westbound lane of Route 94, he had seen grooves in the road, which
filled with water when it rained (
, p. 40), and that as a result he attempted to avoid these grooves,
because they resulted in a slippery condition (id.
, p. 42). He avoided
the grooves by moving his vehicle to the center of the
Claimant also called a number of witnesses who described similar problems while
driving in the area of the bridge during wet conditions. Kelly Cronin testified
that in 1991, her vehicle fishtailed and hydroplaned after crossing the bridge
and that her car made contact with a guy wire affixed to a nearby telephone pole
, 66, 74). She stated that she had been traveling at about 45 miles
per hour in moderate rain.
Shawn Johnsen, an assistant fleet mechanic for a local trucking company,
testified that in June of 1992 he lost control of his vehicle when a car cut him
off and he attempted to stop (
, 107). It had been raining on the day of his accident and his
vehicle hydroplaned when he applied his brakes ( id.
, 109). At the time
he had been traveling at 55 miles per hour. After alighting from his vehicle he
saw that puddles had formed in ruts within the roadway (id.
hydroplaning he described occurred just after he had passed over the bridge
Tara Tiller testified that she was familiar with Route 94 at the intersection
of Station Road, and had traveled over it many times. She indicated that on a
prior occasion she had hydroplaned at the same area, but had not had an accident
, 146). She stated that she always went slowly in this area because
the road was in bad condition and had poor drainage (id.
Ms. Tiller, who at the time of the claimant's accident had been a resident of
Orange County, had come upon the scene shortly after Ms. Coniker's accident.
She testified that she got out of her car to see if she could render assistance,
but when she saw the claimant in the roadway, she froze and instead helped Mr.
Swain. She believed that the claimant was dead (
, 139). On cross-examination, Ms. Tiller stated that she saw two-inch
deep puddles in the ruts, an estimate that was based on where the water came up
to on her shoes (id.
Vanessa O'Gorman, who had lived in the area since 1985, testified that she had
been involved in an accident in 1991 when, while driving eastbound on Route 94,
the vehicle in front of her slowed to make a left turn onto Station Road, Ms.
O'Gorman felt her vehicle hydroplane when she applied the brakes and it struck
the vehicle in front of her. She stated that she got out of her car after the
collision and noticed that the road surface was wet and that there were puddles
in both the eastbound and westbound lanes.
Margaret Molloy, who had lived near the corner of Station Road and Route 94,
testified that she always drove slowly in the area when it was raining because
she had once hydroplaned on Route 94 while slowing to turn into her driveway and
also because her husband, while walking on the bridge, had almost been hit by a
hydroplaning vehicle. She stated that there were "travel grooves" caused by the
road being worn by vehicles, extending far in both directions from her house,
and that they were probably more than an inch deep in places (Vol XI, 1838).
Barbara Decker, the Town Clerk of Blooming Grove, testified that in 1984 the
town board had requested that the State Department of Transportation ("D.O.T.")
perform a speed study, in order to determine whether the 55 mile per hour posted
speed was excessive (Vol II, 187). In 1992, D.O.T. indicated, in response to a
second request from the town board, that a formal investigation would be
, 202). Mrs. Decker stated that the board's complaints had been about
the speed limit, not about any "puddling" problem (id.,
Sean Giery, a former New York City police officer, who is presently a
firefighter in that city as well as a registered nurse, testified that he had
previously lived in the Town of Blooming Grove and that his father had been the
chief of police there. At the time of the accident, Mr. Giery was driving in
the eastbound lane of Route 94 (
218). The road was wet and Mr. Giery stated that he was aware of
the ruts in the westbound lane which had been there for a number of years
, 221-222). He stated that these ruts were one to two inches deep
and several car lengths long (id.,
225) and that puddles formed in them
when it rained (id.,
224). Mr. Giery stated that he always attempted to
avoid the ruts by riding on other areas of the road surface, in order to avoid
Claimant also called David Freund, a professor from Ramapo and a self-described
"speed activist" for Route 94. Although he was aware of the ruts at the site of
the accident, his concern was more with the excessive posted speed. As a
result, his complaints to D.O.T. were aimed at getting the speed limit reduced
275). His concern with the speed limit arose initially after a car
crashed into his house (id.
, p. 283).
William Bain, who was the resident engineer for the Orange East District of
Orange County in 1992, testified that he was responsible for work done in the
area prior to the accident. He stated that he was aware of the ruts at the
accident site, but that he found them to be "minor" (Vol VII, 1171) and not a
hazard (TR Vol II, p. 338). He acknowledged, however, that he never measured
their depth (
362). Mr. Bain testified that he did not fill minor ruts, because
the material would not stay in them (id.,
1171), although when questioned
by claimant's attorney, he acknowledged that on June 4, 1991, he had noted in
his diary that a rut, which he described as "minor," should be filled
1168). Mr. Bain disagreed with other eyewitnesses who had
described the ruts as one and one half inches to two inches deep (id.,
1227), notwithstanding that he had never measured the depth of the ruts and only
remembered viewing them from his moving car (id.,
explained that his estimate was based upon his experience, as opposed to the
estimates of the other witnesses, who had actually stood in the
Peter Jankowski, an attorney who at the time of the accident had been a police
lieutenant, arrived at the scene after the accident. Mr. Jankowski had lived
in the area and had had an accident there in the mid-1980's (Vol IV, 542-547).
He stated that his accident had been the result of hydroplaning caused by water
accumulating in the ruts (
Glenn Snyder, a bridge inspector for the State, had inspected the bridge at the
scene of the accident in 1989. His inspection revealed transverse cracks one to
three inches wide, which he said could be a safety hazard (
595-597). He also found settlement (id.,
600-601) of one
inch, which he noted could lead to the accumulation of water. When asked, he
stated that the cracks were still there at the time of the accident, but he said
the road was still functional.
Charles Vieni, a D.O.T. regional maintenance engineer testified that ruts could
be a problem under certain conditions, mainly, when their depth was three to
four inches (
675-678). He acknowledged that many other factors could result in
ruts being a problem, and that even a two-inch rut could be a problem
692). He also stated that the only way to determine the accurate
depth of a rut is to measure it (id.,
William Fitzpatrick, the Director of Traffic and Engineering and Safety for
Region 8, was an assistant regional engineer at the time of the accident. He
testified that although the Department had signs that cautioned that certain
roads were slippery when wet, they were not needed at the accident site (TR Vol
V, pp. 756-759). According to Mr. Fitzpatrick, the D.O.T. investigation that
occurred after claimant's accident included checking the pavement surface, which
was found to be "fine" (
, 790). He opined that it generally required three-quarters of an inch
of water in order to cause a car to hydroplane, but later he agreed that
hydroplaning could take place in a depth of as little as one tenth of an inch.
He also asserted that hydroplaning was a rare occurrence. Fitzpatrick's
definition of a "rut" was a depression at least three eighths of an inch in
Randy Harwood, a civil engineer with the D.O.T., conducted a number of speed
studies in the area, resulting from letters and complaints D.O.T. had received
from local residents and a state senator. He testified that about ten times a
year he would go out and conduct such studies. In 1991, after a study that
included a radar test, it was concluded that the speed limit should remain at 55
miles per hour (Vol X
, 1684), however a subsequent study in May of 1992, resulted in the
recommendation that the speed limit be reduced to 50 m.p.h. (Vol XI,
1731-1733). No radar check was performed in connection with the 1992 study.
Harwood's testimony was generally confusing and unimpressive in relation to what
factors were or were not taken into account in making speed limit decisions,
particularly his indication that ruts in the pavement, drainage and banking were
not taken into consideration. It was nevertheless clear that the continual
letters from citizens as well as elected officials complaining about the safety
of the road, and particularly the speed limit, played a large part in the
decision to reduce the speed limit.
James Spratt, a professional engineer, testified as an expert for the claimant.
He was retained in 1998 and subsequently examined the accident report,
photographs of the road, the road history and construction plans and deposition
transcripts. He advised that the highway had been constructed in 1936 of
concrete over rock and dirt fill, and that in 1972 a five-inch layer of asphalt
blacktop was placed over the concrete. Spratt advised that ruts are
longitudinal depressions in a highway surface caused by the continual pressure
from the tires of vehicles, and that the constitution of the road's sub-surface
can contribute to ruts being deeper than they would otherwise be. Based on
examination of photographs, Spratt opined that the ruts in question on Route 94
constituted a dangerous condition (Vol VIII, 1327).
Other problems with the road, according to Spratt, were that the crown in the
center was not as high as it should have been, creating difficulty in drainage,
and that the super-elevation of the curve in the road approaching Station Road
was at least five inches less than it should have been, given the degree of
curvature and the 55 m.p.h. speed limit. He noted that the 1972 plans called
for a flattening and lengthening of the curve, which would have lessened the
required super-elevation, but that this was not carried out in the field and was
crossed off the plans. With the curve radius and the super-elevation of the
curve, Mr. Spratt's opinion was that the speed limit should have been 30 m.p.h.,
although on cross-examination he acknowledged that speed limits are set based on
optimal driving conditions, not based on rainy weather and a wet pavement
Mr. Spratt testified that the drainage and super-elevation problems acted to
exacerbate the problem created by the ruts because both factors had the effect
of preventing water from draining as fast as it should. Thus, a two-inch rut on
a highway with proper drainage and proper super-elevation creates less of a
problem than a two-inch rut on a highway with inadequate drainage and
super-elevation. He also noted that a transverse crack in the highway further
contributed to the problem because vehicles would bump into the air when passing
over the crack, thus increasing the likelihood that hydroplaning, which results
from a layer of water between the tires and the road surface, would occur.
Mr. Spratt advised that a "shim" coat could have been used as a temporary means
of filling ruts that were greater than one-quarter of an inch in depth. He also
noted that a "Slippery When Wet" sign would have been another way of addressing
the problem with Route 94..
Mr. Spratt stated that he was unable to determine the depth of the ruts, but
that since they held water, they had to be at least one half inch deep. He also
testified that the claimant's car, which was small and light, had exacerbated
the problem of hydroplaning, because it produced less contact with the road
James Mearns, a former D.O.T. employee, testified that Route 94 had been
widened in 1972, but that a planned extension of the curve radius from 1146 feet
to 1663 feet was never built (Vol IX, 1531-1556).
Dr. James Pugh, a consulting engineer and an expert in the area of accident
reconstruction, also testified as an expert for the claimant. His opinion was
that the claimant had been traveling at between 44 and 46 miles per hour (with a
plus or minus four margin of error) when she came off the bridge and between 50
and 52 m.p.h. when she began hydroplaning and lost control due to her vehicle's
right side wheels riding in standing water. His conclusion as to speed was
based upon a crush calculation, essentially based upon the damage to the two
vehicles and their respective locations following the collision. Dr. Pugh
described his conclusion that claimant's vehicle had hydroplaned as having been
made with "a very high degree of certainty (Vol X, 1631). He stated that he had
ruled out human error – improper steering or the like – as part of
the cause of the accident because in such cases the "yaw" or spin of the car was
not as developed (
, 1589-1600). He noted, however, that inattentiveness as a possible
cause could not be ruled out.
Dr. Pugh also asserted that the cracks in the roadway, rutting and improper
banking (based on Mr. Spratt's conclusions) all acted as contributory factors
– "you add them all up, and you've got a big problem here" (
, 1619). He testified that speed did not appear to be a problem,
since Mr. Swain testified that the claimant had been traveling at a normal
speed. He stated that he knew of no mechanical problems with the Geo Metro
vehicle. Finally, he discounted the lack of "spraying" by the claimant's
vehicle, that Mr. Swain said he hadn't seen, because he said the right wheels of
the claimant's car were hydroplaning, and that the driver of an oncoming vehicle
would have his vision obscured by the claimant's car (id.
Nicholas Pucino, a licensed professional engineer with 30+ years of experience
with the D.O.T., testified as an expert witness for the defendant. Mr. Pucino
was retained by the State in November, 1998, and he subsequently visited the
accident scene on approximately four occasions. He testified, based on both
analysis of the standards set forth in the Manual of Uniform Traffic Control
Devices and ball bank testing that he performed, that the speed limit of 55
m.p.h. at the accident location was appropriate. He opined that the banking,
specifically the lack of super-elevation, on the highway was not deficient,
although he did state that if the whole road were being rebuilt from scratch,
some super-elevation would probably be added, based on standards for new
consrtuction that had evolved since Route 94 was constructed.
Looking at the series of photographs taken immediately after the subject
accident (Exhibits 54A through 54MM), Mr. Pucino testified that there was "no
way" that the depressions in the roadway depicted thereon could have resulted in
water with a depth of two inches (Vol XII, 2001). He then testified, with
respect to three specific photographs, that the ruts had to have been less than
one inch, because that was the depth of the top course of the pavement, and if
the ruts approached the layer below the top course, it would have been visible.
Based upon his analysis of the photographic evidence, Mr. Pucino concluded that
the depressions in the roadway were indicative of "pretty normal type of wear
and rutting," would not cause any problems for vehicles, even in wet conditions,
and were not a dangerous condition (
, 2057). His opinion was that the conditions on the subject area of
Route 94 were "pretty much the norm on many, many roadways as they start to
reach the end of their paving life" (id
.) He advised that he would not
define a depression as a "rut" unless it was at least one-half inch deep, and he
testified that while the depressions in the westbound roadway at the accident
location might well have met that definition, the depressions on the bridge were
not quite that deep. He indicated that the ruts in the westbound lanes were
deeper than those in the eastbound lanes, as the result of some longitudinal
patching that had been done in the eastbound lanes.
Mr. Pucino's opinion was that a "Slippery When Wet" sign was not needed,
notwithstanding his agreement with the statement that this area of the road was
in fact "slippery when wet" (Vol XIII,
2161). He advised that such a sign was appropriate only where the pavement was
"extraordinarily slippery" (id.
Finally, he stated that all of the witnesses who stated they had "hydroplaned"
were wrong and that he was better able to make such a determination (
, 2177-2178), notwithstanding the obvious fact that he had not been
there when their mishaps occurred.
The State also called two police officers who had responded to the scene.
Nicholas Solfaro indicated that his main concerns were to provide first aid to
the claimant and to preserve the scene for the accident investigator, whom he
knew was on the way, and had not taken notice of the puddles in the westbound
lane until after the photographs were taken(Vol XIV, 2362-2379), but he
acknowledged that he later saw them when the photographer arrived. Sergeant
Alfred Smith, a photographer and an accident investigator, stated that the road
was slippery and wet. He opined that the slipperiness was due to oil from the
blacktop which comes out after a hot day, and claimed that he did not notice
"any substantial puddles or anything like that" (
, 2389). He also asserted that he was not aware of any problem
arising from excessive water on the pavement during his 19-year tenure with the
police department. Sergeant Smith was shown one of the photographs taken at the
accident scene (Exhibit 54LL) and when asked if he saw standing water on the
road, he answered "I see some wetness in here. It's not substantial" (Vol XIV,
2398-2399). As this photograph clearly shows the parallel ruts in the tire
tracks of the westbound roadway filled with water, with more extensive puddles
where the ruts intersect with crosswise cracks in the pavement, the Sergeant's
credibility on this issue was substantially impaired by his answer. Similarly,
his testimony that he did not notice any ruts was belied by the very photographs
that he took (e.g.
, Exhibits 54 B, J, Q, R, S, X, DD,
The State has a nondelegable duty to properly design, construct and maintain
its roadways in a condition which is reasonably safe for those who use them
see, Gomez v New York State Thruway Auth
, 73 NY2d 724;
Friedman v State of New York
, 67 NY2d 271; Weiss v
, 7 NY2d 579). However, the mere happening of an accident does not
render a defendant liable for negligence (see, Tomassi v Town of
, 46 NY2d 91). The claimant must prove negligence on the part of a
defendant and that the negligence was a substantial factor in producing the
accident (Bernstein v City of New York
, 69 NY2d 1020). Similarly,
the claimant must also establish that a defendant had actual or constructive
notice of the dangerous condition and failed to give a proper warning or take
corrective measures (see, Rinaldi v State of New York
, 49 AD2d
The court finds that the claimant has met her burden of proof in all repsects.
After reviewing the photographs as well as documentary evidence and having heard
and reviewed the testimony of the witnesses, the Court finds that the credible
evidence indicates that the road surface in question contained dangerous ruts,
which when filled with rainwater could, and did, result in drivers losing
control of their vehicles, and that such was the cause of the subject collision.
The Court also finds that the dangerous condition was exacerbated by the less
than adequate drainage existing in the area, resulting from the relative
flatness of the road surface as testified to by Mr. Spratt, as well as by the
speed limit of 55 miles per hour in this two or three mile stretch of highway,
which was preceded and succeeded by limits of 40 miles per hour. Moreover,
these conditions were known to the State and had existed for a number of years
prior to the claimant's accident. The Court accepts the testimony of the
eyewitnesses who had been at the accident scene as to the existence of ruts and,
generally, as to their depth. The various testimonial disagreements as to
whether the ruts were two inches deep, one inch deep, one half inch, or
whatever, on various portions of the road and bridge surface traversed by
claimant just before she lost control have no effect on the court's conclusion
that the ruts created an unreasonably dangerous condition. The court rejects
the opinions of the State's engineer that (1) the ruts were not a hazard and
(2) that temporary filling was not possible, opinions that the court finds were
not grounded in facts but were based upon estimates, without accurate
measurement. The record indicates that the "shim coat" method of addressing the
problem caused by the ruts would have been an appropriate and warranted way to
proceed, albeit a temporary solution pending a repaving of the highway.
With respect to the speed limit, while testing in dry weather may well have
indicated that a 55 m.p.h. speed was not inappropriate given the geometrics of
the roadway, this testing did not take into account the problems that would
result in wet weather from the ruts in the pavement, the less than adequate
drainage, the settling of the pavement on the bridge and the transverse cracks
in the road surface. It appears that the question of the speed limit was viewed
in a vacuum, without appropriate consideration of all of the extant
And finally, even given the 55 m.p.h. speed limit, and given the sorry state of
the pavement – even the State's expert indicated that the road surface in
this area was at the end of its useful life – the simple task of placing
a "Slippery When Wet" sign, a sign intended to be used "where there is evidence
of unusual wet pavement skidding" (17 NYCRR § 234.7[a][ii]), could and
should have been employed to reduce the problem and increase safety, perhaps on
a temporary basis until the repaving and the speed limit reduction, both of
which were in at least the planning stages at the time of claimant's accident,
could have been completed. The record of this trial indicates that even a
slight reduction in claimant's speed might well have meant that the accident
would not have happened.
The Court has placed a greater emphasis on the testimony of the people who had
actually been at the scene of the accident, either on the date of claimant's
accident or at some prior point in time when they had their own mishaps. Such
testimony was at least as valuable as the expert testimony. In addition, the
State employees' testimony often seemed evasive and obfuscatory. In fact, the
court must note that the defendant exhibited a pattern, throughout the
preparation of this claim, of an unwarranted failure to disclose available and
known documents duly requested by claimant. These failures on the part of the
Department of Transportation were blatant and inexcusable but in no way were
they attributable to the attorneys representing the defendant, who were often as
surprised as the court at the last-minute appearance of requested and relevant
documentation during the course of the trial.
On the issue of culpable conduct, the Court finds that the State has failed to
sustain its burden of proof. The testimony of Mr. Swain indicated that the
claimant's car was traveling at normal speed prior to the accident (Vol I,
12-20). Officer Solfaro also indicated that his examination of the tires of the
vehicle revealed no problem. The claimant's undisputed amnesia and the complete
absence of any evidence or testimony that claimant's vehicle was being operated
at an excessive speed or in an otherwise negligent manner require the conclusion
that the claimant was operating her vehicle reasonably and safely. Accordingly,
the Court finds no culpable conduct on the part of the claimant and finds the
defendant 100 percent liable.
All motions not heretofore ruled upon are deemed denied.
Upon a filing of this decision and completion of disclosure relating to
damages, the Court will set this matter down for a trial on the issue of
damages, as soon as practicable.
LET INTERLOCUTORY JUDGEMENT BE ENTERED ACCORDINGLY.