New York State Court of Claims

New York State Court of Claims

PATTISON v. STATE OF NEW YORK, #2001-005-551, Claim No. 97386, Motion Nos. M-63733, CM-64210


Synopsis


The State was accorded qualified immunity from liability where its decision not to use signs warning of an approaching traffic signal was supported by engineering judgment and adequate study which provided a reasonable basis for its decision. Claim dismissed.

Case Information

UID:
2001-005-551
Claimant(s):
GARY A. PATTISON
Claimant short name:
PATTISON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97386
Motion number(s):
M-63733
Cross-motion number(s):
CM-64210
Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Philippone Law OfficesBy: Melvin Bressler, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James L. Gelormini, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 6, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers, numbered 1 to 8, were read on motion by Claimant for summary judgment and on cross-motion by Defendant for summary judgment:

1, 2, 3 Notice of Motion, Affirmation, Affidavit and Exhibits Annexed

4, 5, 6 Notice of Cross-Motion, Affidavit, Affirmation and Exhibits Annexed

7, 8 Filed Papers: Claim, Answer

Upon reading the foregoing papers and after hearing Melvin Bressler, Esq., of counsel to the Claimant, and James L. Gelormini, Assistant Attorney General for the Defendant, Claimant's motion for summary judgment is denied, Defendant's cross-motion for summary judgment is granted, and Claim No. 97386 is accordingly dismissed.

Claimant, Gary A. Pattison, was a passenger in a vehicle driven by Wayne Corbett which was broadsided on Route 259 near the Village of Parma, New York when a vehicle driven by Richard Williams drove through the intersection of Burritt Road and Route 259 and struck the Corbett vehicle in the passenger side where Claimant was seated. The accident occurred at approximately 11:00 p.m. on July 4, 1996. The intersection was controlled by a three-color traffic light which was not working at the time of the accident due to a power outage throughout the area.[1] Claimant alleges that Defendant negligently failed to provide (1) a backup source of power for the traffic light at this intersection, or (2) signs warning traffic on Route 259, a State highway, and traffic on Burritt Road, a County roadway, of the approaching intersection or traffic light.

Richard Williams was driving his 1990 Blazer home from a Fourth of July party at the time of the accident. His two children and two of their friends were passengers in his vehicle. Williams was headed east on Burritt Road which he described as being a fairly straight country road. He was driving with his headlights on and was traveling at the speed limit which he believed was 45 m.p.h. He was headed for the intersection of Burritt Road and Route 259, with the intention to make a right turn onto Route 259.

Williams was generally familiar with the area because he had traveled throughout the county in the course of his employment. When he was about a quarter of a mile away, Williams was aware that he was approaching an intersection. He slowed down and looked to his right and to his left. He did not see any headlights. His vision, however, of vehicles traveling south on Route 259 was impeded by the presence of a house located on the northwest corner of the intersection.

Initially, Williams believed that he had a green light and accused the driver of the other vehicle of running a red light. Thereafter, he learned that there was a power outage in the area and concluded that he must have been wrong about the light. He later testified that he did not see a stop sign, a traffic signal, or the metal box and wires for the traffic signal at the intersection.

At the time of the accident, Wayne Corbett was driving a 1989 Chevrolet van that he had borrowed from Claimant's mother to assist him in moving. The front passenger seat had been removed and was replaced with a wooden frame chair that was not affixed to the van. The wooden replacement chair, in which Claimant was seated, was not equipped with seat belts.

Corbett and Claimant had just left an apartment complex where two friends lived and were headed south on Route 259. Corbett described Route 259 in the area of the intersection with Burritt Road as being generally straight and his view straight ahead as being unobstructed. Corbett was aware of a general power outage in the area and was driving with his headlights on, traveling at the speed limit. Corbett had grown up in Spencerport, New York, and therefore was familiar with the intersection, although he had not traveled through it in a few years. He was not aware that he was approaching an intersection, which because of the power outage had no street lights, or signs indicating an approaching intersection or traffic light. Corbett did not look to his right or to his left as he approached the intersection of Route 259 with Burritt Road and did not see the Williams vehicle or its headlights before the collision. He testified at his deposition that his view to his right, toward the direction of the Williams vehicle, was obstructed by the presence of woods and of a house on the northwest corner of the intersection.

After the power went out and before the accident occurred, William P. Hess, an inactive volunteer fireman and area resident, went to the intersection of Route 259 and Burritt Road to warn motorists with flares. A Monroe County Deputy Sheriff approached the intersection and instructed Hess to leave the corner. Following those directions, Hess placed the flare he was holding in the ground at the southwest corner of the intersection and proceeded to walk westward on Burritt Road toward his home. As he was walking into his house, he heard the crash of the accident that forms the basis of this claim.

In 1991, a traffic signal study of the intersection of Route 259 and Burritt Road was completed by the New York State Department of Transportation (DOT). This study included an analysis of traffic volume, accident history, visibility issues, site inspections and the possible use of warning signs.[2] This study concluded that a three-color traffic signal would be the appropriate level of traffic control in accordance with the Manual of Uniform Traffic Control Devices (MUTCD). The recommended traffic light was installed at the intersection in October of 1992.

The State of New York has a nondelegable duty to design, construct and maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271). This duty extends to the design, installation and maintenance of traffic control devices and warning signs at the intersections of the roadways under the State's control (Meyer v State of New York, 51 AD2d 828; Wood v State of New York, 112 AD2d 612).

The State is not, however, 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 (Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Claimant has the burden of establishing that the State breached its nondelegable duty and that this breach was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020). Claimant also has the burden of establishing that the State had actual or constructive notice of the existence of a dangerous condition and then failed to take reasonable steps to correct the condition (Rinaldi v State of New York, 49 AD2d 361).

Claimant does not allege that the State breached its nondelegable duty by inadequately responding to a dangerous condition, the general power outage which plunged the entire area into darkness. If he had, his claim would have to be dismissed because absent a special relationship, a relationship which is not even alleged, Claimant was not entitled to any more protection or services than any other resident or motorist affected by the general power outage (Dolt v County of Suffolk, 199 AD2d 363).

Rather, Claimant alleges that Defendant breached its nondelegable duty by failing to provide a backup source of power or a sign consistent with the MUTCD indicating that an intersection or a traffic signal was approaching, given that it was purportedly foreseeable that a power outage would occur at some time. In the field of traffic design engineering, however, the State is accorded a qualified immunity from liability arising out of a roadway planning decision (Friedman v State of New York, supra; Weiss v Fote, 7 NY2d 579, rearg denied 8 NY2d 934). Under this doctrine, the State can only be found liable when there is proof that its roadway safety plan "evolved without adequate study or lacked reasonable basis" (Weiss v Fote, supra at 589).

According to DOT's Assistant Regional Traffic Engineer David C. Goehring, the State's roadway safety plan which evolved out of the 1991 traffic signal study was conducted in accordance with accepted traffic engineering principles and DOT procedures, and traffic was controlled at this intersection in compliance with the MUTCD by means of the three-color traffic signal.[3]

Claimant's expert engineer, Eugene Penzimer, opines that Route 259 and Burritt Road should have had warning signs posted to warn motorists of the approaching intersection for the protection and safety of motorists during a power failure.[4] Burritt Road is a County roadway. DOT, however, has a duty to maintain and sign any highway which intersects a State highway, such as Route 259, for a distance not to exceed 100 feet from the State's highway (Vehicle and Traffic Law §§ 1621[a] and 1681[a]; Ledet v Battle, 231 AD2d 884). The MUTCD warrant addressing the posting distances for placement of a signal ahead sign (W2-17) or an intersection ahead sign (W2-1) has a minimum posting distance of 200 feet (17B NYCRR 230.2, Table-230-1). Thus, arguendo, the State had no duty to sign Burritt Road as the MUTCD does not call for the placement of a sign warning of an approaching intersection or traffic signal within 100 feet of the intersection of Burritt Road with Route 259. While recognizing that the MUTCD describes two signs which would warn motorists of an approaching intersection, in Penzimer's opinion, sign W2-1 would have been ideal for this intersection. W2-1 is a diamond shaped sign with a black cross on a yellow background, indicating an upcoming four-way intersection. According to the MUTCD (17B NYCRR 232.1[a][i]), however, this sign may not be used on approaches to traffic control signals. Indeed, even Claimant's expert Penzimer recognized that the sign he recommended was proscribed by the MUTCD.[5]

The only sign authorized by the MUTCD for use on roadways approaching a signal light is sign W2-17 which is a diamond shaped sign with a yellow background and with a three-color signal light depicted in the middle (17B NYCRR 232.6). DOT's David Goehring designed the three-color signal light that was installed at the intersection of Route 259 and Burritt Road. According to his affidavit, consideration was given during the design phase to the possible use of a warning sign, but its use was rejected because the warrants relating to the use of sign W2-17 were not satisfied as the estimated visibility distances did not satisfy the criteria set forth in the MUTCD.[6]

Claimant does not contend that the MUTCD mandated the use of a warning sign on Route 259, or that the State's decision not to use such a sign evolved from inadequate study or lacked reasonable basis (See, Weiss v Fote, supra at 589). Rather, Claimant's expert Penzimer merely concludes that "engineering judgment" and the probability of a power outage should have led to the implementation of "warning signs of some sort" for the benefit of motorists approaching the intersection during a power failure. On the other hand, Goehring actually provided a definition of "engineering judgment" as being a certain amount of discretion allowed by the MUTCD to account for conditions which might not fall within the letter of the manual when deciding whether to put in a sign. Something more than a mere difference of opinion regarding the use of a sign on a particular roadway is necessary, however, before the State may be charged with a failure to discharge its duty to plan roadways for the safety of the traveling public (Weiss v Fote, supra at 588; Gregorius v County of Livingston, 280 AD2d 936).

Finally, according to the MUTCD (17B NYCRR 230.1[a]), warning signs "should be kept to a minimum" because "[u]nnecessary use tends to cause disrespect for all warning signs, and detracts from their effectiveness." Indeed, if Claimant's position were to be sanctioned, then signs warning motorists of an approaching intersection or traffic signal would have to be placed on every State roadway before every traffic signal in every direction because of the possibility that a power failure could occur at any time at any place throughout the State. Such an overuse of warning signs would undoubtedly lead to the demise of their effectiveness and a substantial depletion of an already limited State fisc.

Based on the foregoing, I conclude that the State is accorded qualified immunity from liability arising out of its decision not to install warning signs. This decision was supported by engineering judgment and adequate study which provided a reasonable basis for the decision. Claimant presented no evidence of any duty or any breach of a duty with respect to his theory that a backup source of power should have been available (see, Footnote 4, supra). While I am sympathetic to the injuries sustained by Claimant, I conclude on the record before me that Claimant's injuries were proximately caused by the actions of the two drivers and by the Claimant himself for riding on an unattached, unbelted and unsafe front seat, and not by anything done or not done by the State (See, Long v Cleary, 273 AD2d 799 lv denied 95 NY2d 763; Mannix v State of New York, 38 AD2d 614, affd 33 NY2d 680).

Accordingly, Claimant's motion for summary judgment is denied, Defendant's cross-motion for summary judgment is granted, and the claim is hereby dismissed.


February 6, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




  1. [1]See, Police Accident Report, annexed to Claimant's motion papers as an unnumbered exhibit.
  2. [2]See, page 20 of the deposition of David C. Goehring, PE, attached to Claimant's motion as an unnumbered exhibit; pages 2 and 3 of the affidavit of David C. Goehring, attached to Defendant's cross-motion, and page 2 of Exhibit 1 attached to the cross-motion.
  3. [3]See, pp 2 and 3 of the Goehring affidavit attached to the Defendant's cross-motion.
  4. [4]Interestingly, Claimant's expert does not even allege that a backup source of power should have been available. Indeed, Goehring testified that the State had a written policy not to use such systems (See, page 27 of the deposition of David Goehring, attached to Claimant's motion papers).
  5. [5]See, Penzimer affidavit, p. 4, attached to Claimant's motion.
  6. [6]See, Goehring affidavit, p. 3, attached to the Defendant's cross-motion, and 17B NYCRR 232.6 (a)(2).