RINALDI v. THE STATE OF NEW YORK, #2001-005-004, Claim No. 85896
These highway negligence claims, alleging improper signing, negligently
maintained pavement edge makings and the failure to adequately and promptly
ameliorate a dangerous intersection, are dismissed.
ROBERT C. RINALDI
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Donald J. Corbett, Jr.
Barth, Sullivan & BehrBy: Philip C. Barth, III, Esq.
Eliot Spitzer, Attorney General
By: Culley, Marks, Tanenbaum & Pezzulo Gary J. Gianforti, Esq.
April 3, 2001
See also (multicaptioned
allege that the motor vehicle accident which occurred on August 30, 1991, was
caused by the negligence of the Defendant (1) in failing to properly erect and
maintain necessary warning signs; (2) in failing to adequately provide pavement
markings, and (3) in that the road intersection was inherently dangerous, a
condition that was known to the Defendant for a period of seven years prior to
this accident, and that there was a sufficient opportunity to have corrected
New York State Route 21 (Route 21) runs in a north-south direction from the
southern part of the Town of Naples, continues through the Village of Naples and
again enters the Town of Naples where it is intersected by County Road 12 at an
oblique angle from the northwest.
Route 21, going northerly, curves to the right (east) at its intersection with
County Road 12 and then continues northerly. It is an improved two-lane highway
with an asphalt paved road surface.
At the time of this accident, the State of New York was engaged in a road
construction project on Route 21 which commenced at Station 00+00 in the
southern part of the Village of Naples and continued northerly to Station
143+50, just past County Road 12 in the Town of Naples. The actual intersection
of County Road 12 and Route 21 is between Stations 138+00 and 139+00. The
for this construction was awarded to Sealand Contractors Corp., Inc., on April
25, 1990, with a contract completion date scheduled for November 30, 1991. The
project's entire length was 2.7 miles.
Traffic was to be maintained by the contractor during the construction. The
speed limit outside the Village of Naples was normally 55 miles per hour (mph)
but due to this construction project it was reduced to 40
On August 30, 1991, Kenneth and Penny Winburn and their two minor children,
Christopher and Nichole, were planning to spend the Labor Day weekend camping at
a local campground. Kenneth was driving his father's 1985 Chevrolet S-10 pickup
truck with Nichole, who was seated on Penny's lap, and Christopher. This pickup
truck had only one seat, a bench type seat with seat belts. At approximately
4:20 p.m., the Winburn family was traveling in the pickup truck south on Route
21 at its intersection with County Road 12 in the Town of Naples, and was
traveling at, or less than, the speed limit. The weather was warm, the sun was
shining, and the road, including the intersection, was dry. Kenneth Winburn
(Winburn) testified that the speed limit was 40 mph (a construction zone speed
limit), that there were no signs indicating that they were approaching an
intersection but that there were signs announcing that the road in this area was
under construction. He recalls that there were spotty portions of the road bed
that contained new asphalt. Penny Winburn recalls that she saw construction
signs as they drove southbound on Route 21 and also orange warning cones on the
westerly side of the road.
At that same time, Robert C. Rinaldi (Rinaldi) was driving north on Route 21 in
his two-door Mazda RX-7. Winburn noticed a dark pickup type truck, seemingly of
going north on Route 21 when it suddenly turned off the pavement into a scenic
outlook parking area off the east shoulder.
Winburn then noticed the Rinaldi vehicle turn into the southbound lane and the
vehicles collided in the southbound lane of Route 21 at the intersection of
County Road 12.
The Rinaldi vehicle was proceeding north on Route 21, and was following the
dark "foreign-made" pickup truck. This truck suddenly turned off the paved
roadbed of Route 21 and the Rinaldi vehicle almost immediately collided with the
Winburn truck. The collision occurred in the southbound lane of traffic and was
almost a head-on collision.
The Winburns' recollection of the first time they saw the Rinaldi vehicle prior
to the collision is when it just appeared directly in front of them after the
dark truck turned or pulled off Route 21 and that it was going fast
Rinaldi, at trial, had no recollection of the actual accident or the details
leading to it. His last recollection prior to the collision was leaving the
Village of Naples and starting up a road incline. He did give a
which in part says:I do not remember exactly how the accident happened.
I do know that rt 12 was not a road I had planned to take and I had no reason to
use that road. My view was obstructed by a vehicle ahead of me. I think this
vehicle did something to cause me to want to get out from behind it. I was not
trying to pass. I then remember heading for rt. 12. Then I saw the S-10 pickup
and I tried to avoid a collision by turning
Leonard K. Lerch (Lerch) was designated by the State of New York Department of
Transportation (DOT) to be the engineer-in-charge (EIC) of this reconstruction
project. He testified in detail that the contract started at Station 0+50 on
the Naples Atlanta Road (SR 204), that the actual reconstruction started at 0+00
with shoulder taper and the project started at 0+20; that the project then
proceeded past Eelpot Road, Strong Hill Road and continued into the Village of
Naples, where the road is named Naples Village Main Street (SH 5397), past the
intersections of Prattsburg Road, Clark St., Mark Circle, Weld St., James,
Sprague, Vine, Mechanic, Lyons, Monier-Dumond, Ontario, Academy and Mt. Pleasant
Streets, past Route 245 at Station 118+50, then left the Village of Naples and
continued north past the intersection of County Road 12 to the contract limit at
Lerch testified that one of the purposes of this project was to construct a new
and separate left hand turn lane to permit northbound traffic on Route 21 to
utilize to turn onto County Road 12, and, in furtherance of this objective, the
right lane of Route 21 northbound was widened and its northbound shoulder (on
the eastern edge) was reconstructed between Stations 125+30 and 142+25. This
necessitated the removal of certain road signs (warning, advisory and
informational signs) within those station limits of the northbound
EIC Lerch testified very creditably that there were four road signs removed
from the right-side shoulder area of the northbound lane of Route 21. The
inspector reports of June 5, 1990, indicate two sign posts were removed on that
date: (1) a sign post with two signs: the lower one, a rectangular 30 mph
advisory speed warning, and the second, a diamond-shaped sign with a curved
arrow to the right, at Station 131+30 on Route 21
(all photologs in evidence as Exhibit C, with sequential numbering, were
taken in 1987, and are not admitted for any comparison purposes, but were
admitted primarily for assistance in identifying the sign configurations), and
(2) a signpost with one sign, with the number "21" and with a dogleg arrow to
the right at Station 134+40.
Lerch testified that he had no current personal knowledge, remembrance or
recollection that any of the traffic signs (warning, advisory or regulatory
signs) were relocated, but he was sure that they were. He explained that when a
sign was removed to accommodate an excavation process, that sign was then
reinstalled. He further testified: ... once a contractor has touched
that sign, adjusted its location, picked it up and set it down someplace else,
he must be paid for that item number, [and] ... If the sign is required for the
duration of the project, the contractor has the option of repositioning the sign
with the existing post or removing the sign panel and replacing it on a portable
wooden stand. In a situation like this, where they are going to be in and out
of there working, and be back and forth several times, they are going to
position it on a wooden stand so they can move it out of the way while they are
He explained that the contractor is paid for the sign when
it is first removed.
On June 6, 1990, at Station 133+50, a "Y" warning
indicating the approaching intersection of Route 21 and County Road 12 was
removed at Station 133+50. Lerch again testified that he had no personal
knowledge or recollection that the sign was actually relocated. There was also
a state speed limit sign at Station 124+00 which was
Lerch had no actual recollection or documentary records verifying that when the
signs were removed, they were then replaced, or even if they were in place on
August 30, 1991. Significantly, however, he detailed the usual procedure which
contractors and DOT follow when such a situation arises, to wit, where signs
have to be removed to permit construction. This standard procedure calls for
the contractor to remove a sign from its stationary post/position and then
position it on a structure, usually a wood frame made of two by fours, and then
place it in the area from which it was removed, as a temporary portable
New permanent signs were installed by the sign contractor only after the paving
operation was completed, for final placement between Stations 124+00 and 134+22
in October 1991.
Claimants' position is
that the payment item in the Standard Specifications states that once a sign is
removed it becomes the property of the contractor, and, since the erection of
new signs was not completed until after the final paving in October
they therefore postulate that there were no signs at all on Route 21 in the
construction zone for a period of seventeen months.
The burden of proof to support the theory that there was the total lack of the
four signs rests upon the Claimants. They have not introduced any proof of a
lack of signs, but have attempted to shift their burden to the Defendant in
suggesting that it must prove the replacement of the individual signs through
construction records or oral testimony.
I find that the Claimants have not met their burden of proof concerning the
lack of signs. Lerch was very experienced in his job, having completed 12 to 20
projects in the past 20 years as an engineer-in-charge. He testified directly
and forthrightly and he admitted his lack of personal memory of facts some ten
years after the events. At trial, the EIC had no personal recollection of the
actual replacement of each sign but relied upon his usual practice of having the
contractor place the sign on a moveable wooden frame until the final new sign
was permanently erected. Claimants have not presented any direct testimony of a
lack of northbound signs, relying merely on speculation and their interpretation
of the Standard Specifications. Of course, the Winburns were traveling south
and never had the opportunity to observe signs in the opposite direction, and
Rinaldi has little, if any, recollection of his travel on Route 21 that day. In
any event, I also note that there has been no testimony that Rinaldi was ever
misled by the lack of any signs. Accordingly, I do not credit this unsupported
theory of the Defendant's negligence or breach of duty.
Nonetheless, and irrespective of my rejection of a finding of liability based
upon this theory, I am at a loss to comprehend the Defendant's failure to keep
a record of the temporary installation of signs on such a project. This of
course does not establish that no signs were in place, and indeed, in addition
to Lerch's testimony of the usual practice in his experience in such projects,
one can infer that they were there by the absence of evidence of any other
accidents at this intersection during the period of over fourteen months in
which it is suggested that the road signs were not in place.
PAVEMENT EDGE MARKINGS
Claimants' next theory of negligence is the lack of a visible northbound edge
stripe at the time of the accident, since they claim it was last repainted
in1987, and they further suggest that the construction progress actually
destroyed or defaced it. I credit the testimony of John Ferraro who was
employed by the striping contractor and had been awarded the short term and
final line striping contract by Sealand. He testified that on September 6,
1990, approximately one year prior to the accident, the white edge line was
installed by Ferraro Line Striping at the north end of the job (Route 21)
between Stations 125+50 and 142+00, pursuant to a request made by the general
contractor. He stated that this was a temporary edge line. The Inspector's
Daily Report states that the work performed by Ferraro was "short term pavement
markings" and that the work was performed and payment
Additionally, the EIC also testified that all repaving of the northbound
shoulder in 1991 started adjacent to the white edge line which was already in
place, albeit one that was a year old. I also note the existence of the edge
line in Claimants' Exhibit 15, a photograph taken on the day of the accident
while debris from the accident was still in the roadway, as well as the direct
testimony of Lerch at the scene. Accordingly, with respect to the pavement line
markings, I do not find any breach of duty by the Defendant which would amount
to negligence of any type. Hence, the reliance on the lack of signs and edge
markings utilized by the Claimants' expert is misplaced. Furthermore, I found
instructive the testimony of Lerch that the centerline of Route 21 for
northbound traffic is a solid yellow line indicating a no passing zone to the
intersection of County Road 12, and at the date of this accident was not worn
away, and then continued as a solid line when north of the intersection. The
southbound traffic lane was marked as a passing lane south of the intersection
by a broken yellow line.
DANGEROUS INTERSECTION THEORY
Claimants proffer a third theory of liability, suggesting that the intersection
was dangerous, that the State was on notice thereof, and failed to ameliorate
this dangerous condition. 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
, 67 NY2d 271; Weiss v Fote
, 7 NY2d 579). However, the mere
happening of an accident does not render a defendant liable for negligence (see,
Tomassi v Town of Union
, 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
Preliminarily, one must determine whether this intersection constitutes a
dangerous traffic condition, and if so, what the response should be. In 1984,
there certainly was a concern about this intersection, and at least an
acknowledgment that there was an accident potential there, and indeed the
September 1984 report concluded that the intersection had "serious potential
safety problems because of the poor alignment and profile of the highways at the
intersection", albeit a downgrade from the characterization of "serious safety
problems" postulated in May 1984.
In reviewing the claims at bar, I find that the State was on notice of the
danger at this intersection and had taken adequate and reasonably prompt
measures to plan, design and contract for the improvements that it thought were
necessary to correct the intersection. In the Problem Definition and Project
Proposal of May 1984 (see Exhibit 12), it is defined at Page 8; however the
Regional Construction Engineer on May 21, 1984, disputed the characterization of
a "serious safety problem" as he thought the accident information did not
support the seriousness of the stated issue, and he wrote that it should be
listed, if at all, as having an "accident potential." Additionally, the Acting
Regional Traffic Engineer agrees on this evaluation in his memo of May 25, 1984,
suggesting that it had a high accident potential, as contrasted with the earlier
characterization as a serious safety problem. Thus it can be seen that in 1984
there was discussion about the alignment of the intersection of Route 21 and
County Road 12.
The State is entitled to qualified immunity from liability arising out of
highway planning decisions that require expert judgment or the exercise of
discretion, unless the attendant study was plainly inadequate or there was no
reasonable basis for the plan.
(Friedman v State of New York
, 67 NY2d 271; Weiss v
, 7 NY2d 579). In relying upon this defense, it is the State's
burden initially to establish that the relevant decisions were the product of a
deliberative decision-making process (Appelbaum v County of Sullivan
AD2d 987, 989). Once the State is aware of dangerous traffic conditions, it
must undertake remedial action to alleviate that danger. (Friedman v State
of New York, supra
, at 284).
The question then becomes what did the State do about it, and whether its
actions were sufficiently timely, balanced against the danger, to wit, was the
State's response adequate? I find that it was.
First, it does appear that in 1984 there was a project proposal with respect to
Route 21, that initially examined the intersection with County Road 12. The
Design Engineer testified that the project proposal of September 1984 did not
extend to the intersection in question, and that a reasonable time line from a
project initiation report, accounting for the approval process, the drawing of
final plans, winter weather, etc., the earliest the project could have been
completed was in the fall of 1990, and noted that it was finally completed about
one year thereafter, albeit after the tragic accident before me today.
Ultimately of course this intersection was included within the scope of the
project and the modifications were completed.
The record before me does not reveal an intersection where modification was
exigent, where the accident history would have placed the Defendant on notice
that an immediate, or more expedient response was required. Claimants have
drawn my attention to an earlier accident at this very intersection, one that
was the subject of litigation in this court, and where ultimately the Court of
Appeals found in favor of the passenger in a south-bound vehicle which collided
with a fire truck heading northerly on Route 21 (
Hall v State of New York
, 28 AD2d 1083, aff'd
22 NY2d 754). This
claim is notable because it is the only evidence before me of a prior accident
at this intersection which is related to the signage and "geometrics" and which
adds an accident history to the characterizations about the intersection
described in 1984. The records before me with respect to the 1984 project
regarding Route 21 (Exhibit 12) do not reflect a pertinent accident history in
the three year period preceding the 1984 review, and indeed, there was no
evidence of any accident in the nearly seven intervening years between the 1984
review and the accident in question today. The accident in Hall
in April 1963, some 28 years before the one at bar today, some 23 years after
liability was affirmed by the Court of Appeals and 21 years before the project
proposal and review commencing in 1984. This accident history, or in reality
the absence of an accident history at this intersection, belies Claimants'
arguments that the roadway modifications were not effectuated in an adequately
Furthermore, it appears from the
synopsis at 22 NY2d 754-55, that liability was predicated upon the
improper placement of a sign indicating that the road was proceeding straight
ahead. The synopsis also implies that the State's negligence was one, but not
the sole, contributing cause of the accident. At the very least the Hall
claim seemingly constitutes the entire pertinent accident history at this
intersection, but even at that, neither the synopsis nor the Claimants'
references necessarily make these parallel situations. The description of the
sign in question in Hall
, and the lack of mention of any other signs,
makes the distinctions greater than the parallels.
Elucidating upon the State's duty and responsibility, when on notice of a
dangerous traffic condition, the State must undertake a reasonable study to
alleviate the risk, and thus the courts are often called upon to ascertain
whether the State may properly evoke its qualified immunity or whether it will
be held answerable if its study is inadequate or if there is no reasonable
for its plan. Ascertaining the reasonableness and adequacy of the State's
planning is quite frankly a subjective assessment, not reduced to simplistic
I find persuasive Defendant's arguments in this regard. Given the dearth of
related accidents at the intersection in the period reviewed for the 1984
project, I am disinclined to find that a separate project just for that
intersection was warranted, and that it appears that the plan to include this as
part of the Route 21 project reflects a reasonable balance between the risk and
the solution. Certainly nothing before me, including the circumstances in
, so long before, demonstrates the need for an expedited
response. Nonetheless, a response was called for, and I find that the State
responded with a reasonable and adequate plan and
I do not read
Hulett v State of New York
, 4 AD2d 806, to the same conclusion as
suggested by Claimant Rinaldi. His interpretation of that case misapplies the
Appellate Division's findings, and are in direct contrast to my findings here.
I have found that the signs here were in place, and did not mislead a northbound
driver. In any event, in Hulett
, the curve sign was partially obstructed
by foliage and may not have been reflectorized, there were rows of trees that
may have misled the driver, who was probably intoxicated (he had had several
glasses of beer, visiting several taverns), and while liability had been
dismissed by the trial court, finding the driver's culpable conduct to have been
the sole cause of the accident, the Appellate Division reversed, and found some
degree of culpable conduct by the State, to wit, that State was obviously
negligent first in permitting foliage to partially obstruct the curve sign, and
also in erecting an intersection sign which gave the erroneous impression that
the State route continued straight ahead, when in fact that road turned to the
left. Accordingly, the Appellate Division permitted the passengers to recover
from the State, but barred a recovery to the driver because of his contributory
negligence. Claimant Rinaldi has no factual similarities to the Hulett
circumstances. Rinaldi of course remembers nothing about the accident today,
but the facts establish to my satisfaction that he attempted to pass or go
around another vehicle which was pulling off the road to the right, and that in
so doing he negligently crossed the solid yellow line and entered the single
lane of traffic for southbound vehicles. In any event, given his inability to
remember the details of the accident, Rinaldi similarly cannot establish by any
evidence, let alone by a preponderance of the credible evidence, that he was
misled by the signage approaching the intersection of Route 21 and County Road
12. This cause of action is dismissed.
I find that the sole causes of this accident were the actions of Rinaldi in
operating his vehicle at an unsafe and illegal speed over 40 mph and in
attempting to pass the truck in front of him in a very unsafe manner. Rinaldi
drove his vehicle across the solid yellow no-passing line, entered the
southbound lane and directly collided with the Winburn truck in their lane of
travel. It was his conduct, and nothing else, that caused the collision and the
resulting injuries to all involved. I find not a trace of liability on behalf
of the Defendant herein.
It is never easy to review claims where there are serious and permanent
injuries, and where one family sustained injury through no fault of their own.
There is no solace in ascribing responsibility to one party, knowing that I can
award no recovery to blameless injured parties. But my authority is limited to
imposing liability upon the Defendant, here the State of New York, and I cannot
ascribe blame and responsibility where none exists. The Claimants and their
attorneys litigated diligently, and fashioned arguments where few would find
them, but in the end to no avail.
The claims are dismissed. All motions not heretofore ruled upon are now
Let judgments be entered accordingly.
April 3, 2001
HON. DONALD J. CORBETT, JR.
Judge of the Court of
Claim No. 86364 and Claim No. 85896 were
ordered consolidated for trial.
Exhibit A, sheet 15; Exhibit C-36; Exhibit J,
and Exhibit 15.
Contract No. D253162 for Project No. F-33
The identity of the driver and the specifics
of the truck were not presented in evidence.
Exhibits 71, 73, 75 and 77.
Exhibit C-4, photolog photograph # 71.
Exhibit C-2, photolog photograph
Exhibit C-3, photolog photograph #
Exhibit 7, I.R. No. 1262, sheet 4.
See Exhibit 4, Daily Report of September 6,
1990, and Exhibit 96, page 6.