New York State Court of Claims

New York State Court of Claims

Newell v. THE STATE OF NEW YORK, #2001-007-116, Claim No. 93670, Motion No. M-63436


Accident in a work zone in which defendant contended, in motion for summary judgment, that the reckless disregard standard of care controlled. Motion denied

Case Information

JANET NEWELL, as Administrator of the ESTATE OF LANCE L. NEWELL, deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL(Saul Aronson, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
June 20, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has made an application for an order granting summary judgment dismissing the claim. The return date of the motion was May 11, 2001. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Saul
Aronson, Esq., Annexed Exhibits 1, 2, 3

Affirmation of William J. Nealon, III, Esq.,

Affidavit of Lawrence M. Levine,
Annexed Exhibits 4, 5, 6

Filed Papers: Claim, Answer,

Amended Claim, Answer to Amended Claim,
Amended Answer to Amended Claim 7, 8, 9, 10, 11

The primary issue presented by defendant's motion for summary judgment is whether defendant's alleged conduct should be measured by common-law negligence or statutory reckless disregard when the essence of the purported culpable conduct involves the manner in which a lane of an Interstate highway was closed to protect a work area.

At approximately 9:20 a.m. on November 6, 1995, a 1988 Ford van operated by Patrick Burke and owned by claimant's decedent, Lance L. Newell, struck an attenuator attached to a truck owned by the State Department of Transportation (hereinafter DOT). The accident occurred on the southbound section of Interstate 87 approximately 1.4 miles south of exit 21 in the Town of Lake George, Warren County. In the subject section of Interstate 87, there were three southbound lanes of traffic. The DOT truck was parked in the right lane, serving the purpose of funneling traffic into the center and left lanes because a maintenance crew was working on guide rails south of the accident site. Claimant's husband, Lance L. Newell, who was a passenger in the van operated by Burke, died as a result of injuries sustained in the accident.

Claimant contends that defendant failed to properly establish and configure a work zone on Interstate 87. Claimant argues, inter alia, that defendant did not employ proper procedures for closing a lane of the highway and channeling vehicles into the other lanes. Extensive disclosure has transpired and defendant now moves for summary judgment. Defendant asserts that its conduct is measured by the reckless disregard standard (see, Vehicle and Traffic Law §§ 1103, 1104; Riley v County of Broome, 95 NY2d 455), that claimant has failed to set forth proof of reckless disregard and, furthermore, that the evidence demonstrates that the accident occurred as a result of the negligence of Burke.

Burke testified during disclosure that on the day of the accident he and Newell were traveling to a job site in the Town of Clifton Park. It was a sunny day and the road was dry. He entered Interstate 87 at exit 21, headed south and accelerated to an estimated speed of 60 miles per hour. Newell left the passenger's seat and went to the rear of the van ostensibly to straighten out some tools. Burke occasionally looked in the rearview mirror as he conversed with Newell. Burke testified that he did not recall seeing any DOT vehicles or signs on or near the highway providing warning of the lane closure ahead. He explained that he suddenly saw a DOT truck parked on the highway in the lane in which he was traveling. Burke applied the brakes and swerved to the left. Unfortunately, the right front of the van struck the attenuator attached to the DOT truck.

The testimony of several DOT employees was taken during disclosure. John J. Fitzgerald, the supervisor of the work project on Interstate 87 on November 6, stated that his crew was directed to repair a 288-foot section of guide rail posts adjacent to the right side of the southbound lane of the highway between exits 20 and 21. Fitzgerald characterized the work area as "slow moving" rather than "stationary" in nature. He believed that the crew had been at the work area about 10 minutes before the accident occurred.[1] He stated that during such time all 18 guide rail posts had been pulled and one or two replacements had been set. He estimated that it took about two minutes to set each post. Fitzgerald opined the entire project was going to take about half an hour.

The testimony of DOT employees and photographs submitted in support of the motion reflect that several vehicles were stationed north of the work site to warn motorists of the work area and funnel traffic away from the right lane, which was closed to traffic during the work project. The first DOT vehicle passed by motorists traveling south was a pickup truck that Bonnie Blanchard reportedly parked approximately a half-mile north of the truck involved in the subject accident. The vehicle assigned to Blanchard was parked entirely on the shoulder. She allegedly set up an orange sign that stated: "RIGHT LANE CLOSED ½ MILE." Blanchard stated that she put two flags on the top of the sign and that she activated a yellow revolving light on the DOT truck.

Blanchard testified that from her position on the shoulder, she could see the next DOT vehicle, a pickup truck assigned to Mary Fish. The Fish vehicle was apparently located approximately 1500 feet south of the Blanchard vehicle. Fish recalled that an electronic arrow board was positioned in the rear of her truck. The arrow flashed a series of lights warning motorists to move to their left. She also testified that she assembled an orange sign stating: "RIGHT LANE CLOSED 1000 FEET." Fish's vehicle was parked on the shoulder of Interstate 87 and was approximately 1000 feet north of the truck involved in the accident.

Tania Mitsuda was assigned to the DOT vehicle that was struck by Burke. Mitsuda described the DOT vehicle as a large dump truck equipped with an attenuator attached to the rear. The attenuator was designed to dissipate the impact of an errant vehicle with the DOT dump truck. Mitsuda recalled that there was sand in the box of the truck and an electronic arrow was located on the tailgate. She stated that the truck's flashing red hazard lights were operating and that there were warning lights on the attenuator. Mitsuda also testified that she placed two orange flags in brackets on the corners of the attenuator. Mitsuda was reportedly looking in the rearview mirror immediately prior to impact and she stated that she saw Burke use the right lane to pass a pickup truck that was in the middle lane. According to Mitsuda, Burke attempted to pull back into the middle lane but struck the attenuator.

The evidence submitted by claimant in opposition to defendant's motion includes an affidavit from Thomas F. McPhillips, who reportedly drove over the subject section of Interstate 87 shortly before the accident. McPhillips' affidavit provides in pertinent part:
"4. On the morning of November 6, 1995 I drove my wife, Lois, to her employer's residence to pick up a vehicle from them. We needed to drop the vehicle off at Top of the World Auto Body on Quaker Road, Queensbury, New York. Lois drove the Connolly's vehicle and I was driving our vehicle.

"5. At about 8:45 a.m. we got on the Adirondack Northway (I-87) at Exit 21 heading South. I was traveling in the right hand lane, Lois was following about 100 feet behind me. I recall that it was a brilliantly sunny morning and that the sun was low on the horizon, shining toward me as I traveled southerly as I-87 winds and turns.

"6. Suddenly, without warning, I noticed what appeared as a dark colored state truck stopped in the lane in which I was traveling. I abruptly swerved into the most left hand lane to avoid hitting the truck. At the point where I encountered the truck, the sun was shining directly into my front windshield. Luckily the traffic on the highway was widely spaced out so as to allow me to immediately swerve into the left hand lane without encountering another vehicle in that lane. I thought the stopped State vehicle might be a disabled truck, however a fairly short distance further South I saw other State vehicles and a work crew. * * * There were no lane closure cones on the highway before the stopped, apparently dark colored, State truck. I did not see a flag person on the highway before I saw the stopped State truck. I did not see lead vehicles, sign trucks, safety trucks with an arrow board or other signage prior to seeing the stopped truck I had swerved to avoid."

Claimant articulates several arguments supporting her contention that inadequate warnings were provided by defendant of the lane closure on Interstate 87. Claimant notes that although defendant characterized the guide rail repair job as a "moving operation," defendant's own Manual of Uniform Traffic Control Devices (hereinafter MUTCD)[2] suggests that the proper classification was "short duration stationary work" (17 NYCRR 300.3[h][1][iv]). The distinction is of some moment regarding the warnings that should be implemented. The MUTCD sets forth five classifications of highway work for purposes of traffic control, including "slowly moving work" and "short duration stationary work" (17 NYCRR 300.3[h][1][iii], [iv]). In a "slowly moving work" area "[a] work vehicle, with attention-getting equipment and/or traffic control devices, may be placed in a travel lane, in advance of the work area, to protect workers on foot from approaching traffic" (17 NYCRR 300.3[h][1][iii]). For "short duration stationary work," however, which includes "installing or repairing guide rail," the MUTCD states that "[w]hen such an area occupies a portion of the roadway, channelizing devices should be used" and further provides that "portable signs, consistent with the need for advance warning and adequate notice, supplemented with cones and single rail barricades, are generally sufficient to control traffic" (17 NYCRR 300.3[h][1][iv]; see, 17 NYCRR 302.13, 302.14, 302.15). Although the regulatory language regarding the use of channelizing devices and cones is not mandatory, claimant asserts that under the totality of the prevailing circumstances it was unreasonable for defendant not to use such devices on Interstate 87.

Claimant points out that there is evidence from photographs taken at the scene and testimony of witnesses that on the morning of the accident the sun was shining brightly in the eyes of southbound travelers.[3] Although Mitsuda claims that she placed warning flags on the corners of the attenuator, claimant's expert opines, based upon his examination of the damaged attenuator and photographs of the scene, that the warning flags had not been placed on the attenuator. Claimant further asserts that the governing regulations mandated that at least two red lamps be illuminated at the rear of the attenuator and that such lights were not lit on the morning of the accident.

The legal litany for a summary judgment motion starts with the acknowledgment that such relief is commonly characterized as drastic and should be employed only when no triable issues exist (Andre v Pomeroy, 35 NY2d 361; Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732). The initial burden falls upon the proponent of the motion to tender sufficient proof to eliminate all material issues of fact and establish entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Tiano v Lane, 260 AD2d 908). If the movant meets the threshold burden, the nonmoving party must step forward with evidence demonstrating a triable issue of fact to defeat the motion (Moran v Technical Bldg. Servs., 258 AD2d 697; Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916). All evidence must be viewed in the light most favorable to the party opposing the motion (see, e.g., Barker v Kallash, 63 NY2d 19, 23; Bazan v Rite Aid of New York, 279 AD2d 762, lv denied NY2d [Apr. 26, 2001]).

It is axiomatic that the State, while not an insurer of the safety of its highways, nevertheless has a duty to maintain its highways in a reasonably safe condition (see, e.g., Friedman v State of New York, 67 NY2d 271, 283-284; Ring v State of New York, 270 AD2d 788). The State's duty includes affording motorists "adequate and unambiguous warning of the conditions and hazards on its highways" (Humphrey v State of New York, 90 AD2d 901, affd 60 NY2d 742).

A common-law negligence analysis has consistently been the standard applied to accidents in work areas involving allegations of improper warning signs (see, e.g., Dupell v Levesque, 198 AD2d 712; Hearn v State of New York, 157 AD2d 883, lv denied 75 NY2d 710). Defendant argues that Vehicle and Traffic Law § 1103(b) has replaced common-law negligence with a statutory reckless disregard standard for accidents occurring in work areas. Statutes are construed to abrogate the common-law only to the extent the legislative language clearly requires such an interpretation (Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161, 169).

In Riley v County of Broome (95 NY2d 455, supra), the Court of Appeals held that Vehicle and Traffic Law § 1103(b) exempts vehicles engaged in work on a highway from the rules of the road and limits the liability of the operators and owners of such vehicles to reckless conduct. The facts in Riley reveal an accident between a motorist and a work vehicle known as a street sweeper. At the time of the accident, the street sweeper was engaged in cleaning streets. The companion case decided with Riley was Wilson v State of New York (95 NY2d 455), which involved an accident between a motorist and a snowplow. The snowplow was on the highway to remove snow when the accident occurred. In another case decided by the Court of Appeals the same day as Riley, and in which the reckless disregard standard was found applicable, the court reversed an order that granted summary judgment to defendant in an accident where defendant's employee backed a truck into a motorist while operating in a work area (Bliss v State of New York, 95 NY2d 911).[4]

There is a significant distinction between the Riley line of cases and the present claim. In Riley, Wilson and Bliss, the injured motorists complained about the manner in which a work vehicle was operated. In the current claim, the essence of claimant's contention is not directed at the manner in which the DOT truck was operated. Claimant is asserting that defendant failed to employ proper procedures for closing a lane of an Interstate highway. The means used for blocking the lane of the highway (i.e., a truck) is incidental, not integral, to claimant's fundamental contentions that inadequate notice and improper funneling techniques were employed. Claimant's contentions would be essentially the same if defendant had placed a stationary barrier or sign at the point where Mitsuda's truck was located. The purported negligence is not directed at the manner in which the vehicle was operated by Mitsuda but at the individual or individuals who designed the work site. Mitsuda merely positioned her vehicle where she was directed to do so by her superiors.[5]

In the Riley line of cases the alleged culpable conduct involved work vehicles qua work vehicles. Indeed, the Court of Appeals found the street sweeper and the snowplow were engaged in "work on a highway" because "[t]he street sweeper was cleaning the street; the snowplow was clearing the road during a snowstorm" (Riley v State of New York, supra, at 463). In the claim at bar, the allegations are directed at channeling techniques and the adequacy of the warnings afforded. The barrier Burke struck as a result of the alleged inadequate channeling and improper notice happened to be a parked work vehicle.

It is important to distinguish that it is not the fact that Mitsuda's vehicle was parked that removes it from the statutorily protected realm of vehicles engaged in work on a highway. Indeed, scenarios could certainly be hypothesized in which parked vehicles would still be engaged in work on a highway. For example, a truck that stopped while being loaded with debris at a work site could be engaging in work on a highway. The crucial factors are that the alleged culpable conduct is not directed at the manner in which the truck was operated by Mitsuda and, at the time of the accident, the truck was allegedly functioning primarily as a sign and a barrier, not as a work vehicle.[6]

To read reckless disregard as the standard of care under the prevailing circumstances would create a situation in which DOT could manipulate the standard of care at its work sites. By choosing to use vehicles for warnings and as channeling devices rather than cones, freestanding signs or other devices, DOT's conduct for a work site accident would be judged by the reckless disregard standard rather than negligence. If the Legislature intended to exempt from the common-law negligence standard all work area accidents – not merely those involving the operation of a work vehicle qua work vehicle – it would have unambiguously set forth such a sweeping exemption. The court is not convinced that the statutory language upon which defendant relies clearly abrogates the long-standing common-law rule. The court finds that defendant has failed to establish in its motion papers that the reckless disregard standard controls the current situation and thus claimant's contentions in opposition to the motion must be measured by a common-law negligence standard.

Claimant has raised factual issues about possible departures by defendant from its own regulations regarding both the configuration and the type of warnings employed. The failure to follow a regulation is some evidence of negligence (see, Long v Forest-Fehlhaber, 55 NY2d 154, 160; Fisher v State of New York, 268 AD2d 849). The allegedly improper warnings and configuration at the work site are potentially exacerbated by evidence that the position of the sun on the morning of November 6 may have made it difficult to see some or all of the warning vehicles that were in place. Indeed, Burke testified that he did not see any DOT vehicles prior to the one he struck. Moreover, the affidavit of Thomas McPhillips, a nonparty witness, supports the contention that visibility was difficult for southbound travelers on November 6, and that under the prevailing conditions, the warning vehicles were not readily visible. Defendant's further contention that the negligence of Burke was the sole legal cause of the accident has not been established conclusively by the papers before the court (see, Dupell v Levesque, 198 AD2d 712, 713, supra). The court is not persuaded that the claim can be disposed of summarily. Defendant's motion is therefore denied.

June 20, 2001
Plattsburgh, New York

Judge of the Court of Claims

[1] There is evidence in the papers before the court, however, indicating that the crew had been at the work area for about one hour before the accident occurred (Mitsuda deposition, at 19). For the purpose of this motion, the one hour time period is accepted since it is favorable to the arguments of the opponent of the motion.
[2] The regulations set forth in the MUTCD are contained in 17 NYCRR, chapter V.
[3] The southbound lanes of Interstate 87 allegedly twist and turn in the subject area. Thus, although a vehicle may be in the southbound lanes, the vehicle may not necessarily be going directly south.
[4] The Court of Appeals noted in Bliss that there were factual issues indicating that defendant's employee was backing up at an excessive speed, the truck had inadequate equipment, the driver made no effort to avoid striking the motorist, the truck was operated in violation of defendant's own safety directives and the driver admitted to unsafe backing.
[5] The express intent of Vehicle and Traffic Law §§ 1103 and 1104 is to afford exceptions from the ordinary standard of care to "drivers" of various vehicles (see, e.g., Vehicle and Traffic Law § 1103[a] ["The provisions of this title applicable to the drivers of vehicles ..."] [emphasis added]; Vehicle and Traffic Law § 1104[a] ["The driver of an authorized emergency vehicle ..."] [emphasis added]).
[6] The MUTCD tacitly acknowledges that a work vehicle may serve a primary function other than as a work vehicle in a work area. A regulation entitled "portable sign supports" depicts various supports for signs including a truck (17 NYCRR 302.1).