New York State Court of Claims

New York State Court of Claims

DeMARSH v. THE STATE OF NEW YORK, #2001-007-568, Claim No. 96749


Synopsis


Claimant Josefine DeMarsh alleged she did not see a stop sign on Hosley Avenue in the Village of Tupper Lake, Franklin County, because defendant had failed to clear foliage that obscured the sign. Defendant found 40% responsible for the accident.

Case Information

UID:
2001-007-568
Claimant(s):
JOSEFINE O. DeMARSH and RICHARD DeMARSH
Claimant short name:
DeMARSH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96749
Motion number(s):

Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
ROBERT E. WHITE, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL (MICHAEL C. RIZZO, ESQ., ASSISTANT ATTORNEY GENERAL, of Counsel)
Third-party defendant's attorney:

Signature date:
September 25, 2001
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
On August 12, 1995, a motor vehicle operated by claimant Josefine O. DeMarsh[1]
on Hosley Avenue in the Village of Tupper Lake, Franklin County, proceeded past a stop sign and into the intersection with State Route 3. Another vehicle struck the driver's side of claimant's vehicle. The current claim ensued in which claimant alleged she did not see the stop sign on Hosley Avenue because defendant had negligently permitted foliage to obscure the sign.
Claimant testified that she currently resides in North Fort Myers, Florida, that she has been married to her current husband since 1993 and that her date of birth was June 20, 1941. At the time of the accident, she lived in the Hamlet of Vermontville (near the Village of Saranac Lake), Franklin County. She had lived in the Saranac Lake region since 1961. On the day of the accident, claimant was returning to her home after visiting her mother-in-law in the Town of Indian Lake, Hamilton County. The trip from Indian Lake to Vermontville included traveling through the Village of Tupper Lake. Although the main route through Tupper Lake was via Route 3, Mr. DeMarsh reportedly provided claimant with instructions for a shortcut through the Village of Tupper Lake. Mr. DeMarsh had also been in Indian Lake. He had arrived there a couple of days earlier than claimant and thus Mr. and Mrs. DeMarsh were in separate vehicles as they traveled toward Vermontville. Claimant had her infant granddaughter in the car with her. Mr. DeMarsh was following claimant in his truck.

The shortcut through the Village of Tupper Lake included traveling on Hosley Avenue. Claimant testified on direct examination that she had taken the Hosley Avenue shortcut on only one prior occasion and that her husband was driving and she was sleeping on such occasion. She asserted that as she drove on Hosley Avenue she was looking straight ahead and, indeed, was looking for a stop sign because her husband had told her that there would be a turn from Hosley Avenue back onto Route 3. Claimant stated that the speed limit was 30 miles per hour and that she was traveling at approximately 30 miles her hour. She described the weather as "gloomy, drizzly and sprinkling."[2]
Her wipers were reportedly operating.
At approximately 12:35 p.m., claimant approached the intersection of Hosley Avenue and Route 3. She proceeded directly into Route 3 without stopping or slowing down. A vehicle traveling on Route 3 struck the driver's side of claimant's vehicle. Claimant testified that she did not stop because she did not see the stop sign. She further reported that there were not any vehicles ahead of her on Hosley Avenue and she did not see any vehicles traveling on Route 3 as she approached the intersection. Claimant stated that she did not see the vehicle that struck her car prior to the impact.

Following the accident, claimant characterized herself as "slipping in and out" of consciousness. She recalled hearing the screams of her granddaughter. She remembered feeling pain, which she described as feeling like her "inside had exploded." The driver's door of her Cadillac was cut off in order to remove her from the vehicle. She was taken by ambulance to the Adirondack Medical Center in the Village of Saranac Lake. Claimant stated that she could not recall speaking to a trooper regarding the incident. She testified that she remained hospitalized for three days.

Claimant related that after being released from the hospital, she continued to seek medical care. She stated that she saw Dr. Minehan "quite frequently." She indicated that she experienced continued pain in her side, hip and stomach. She said she had trouble walking and that her left side kept giving out. Claimant eventually stopped seeing Dr. Minehan and came under the care of Dr. John Cerruti, a chiropractor. She stated that she sought care from Dr. Cerruti "shortly after the accident," with complaints of neck, back and hip pain. She asserted that she did not have problems with such areas of her body prior to the accident, but continues to experience pain in her hip and neck. She further related that movement of her left shoulder has been restricted. Indeed, she claimed that she "can't move it," despite receiving therapy.

Claimant testified that before the accident she was employed as a cosmetologist, providing haircuts and related services at a business known as the "Hair Den" in the Village of Lake Placid. She stated that she had been at such business for about 10 years and that before the accident she worked four days a week from 9 a.m. to 5 p.m. She related income of approximately $6,000 during 1994 and 1995, but asserted that it dropped to about $350 in 1996. Claimant testified that she worked on a straight commission of 60% and that she received no salary. She stated that she did not work for one week following the accident and that when she returned to work it was initially only to answer the phone. Eventually, claimant returned to cutting hair, but contended she was in pain and worked slower. She testified that she would "love to work," but "can't do it anymore."

Claimant characterized herself as once being "very active," engaging in activities such as skiing, water skiing and outdoor activities, which she claimed she "can't do anymore." She stated that she still does housework, but that she is slower and cannot move furniture.

On cross-examination, claimant was asked whether she told the trooper investigating the accident, "I don't know why I didn't stop, I know the stop sign was there, I've traveled this road before." Claimant responded that she could not recall "saying anything to anyone." Claimant further acknowledged that she had lived in Saranac Lake since 1961, but asserted she had been to Tupper Lake only "one or two times," explaining that she had "nothing to do in Tupper Lake." The Villages of Saranac Lake and Tupper Lake are neighboring Adirondack communities located approximately 20 to 25 miles apart.

Claimant, who had testified she spent three days in the hospital, was confronted with hospital records that reflected she was discharged about 24 hours after arriving at the hospital. She explained that she was "so doped up [she] didn't remember hardly anything." Claimant had also contended she suffered fractured ribs, but, again, the hospital records reflected no evidence of a fracture. Claimant maintained that someone at the hospital had told her she had fractured ribs.

Claimant was asked whether she told Dr. Minehan, as reflected in the doctor's records of October 27, 1995, that she had "resumed normal life." She stated that she did not recall making such statement. She was further asked about the notation in Dr. Cerruti's record in March 1996 that she told him she was for the "most part, pain free." Claimant could not recall making the statement.

Claimant was asked about her testimony on direct examination that she had earned $350 in 1996. She admitted that such figure represented income for only part of January 1996 and that, thereafter, the business was sold. She continued working for the new owner. When asked whether she had, in fact, earned over $4,200 in 1996 while working for the new owner, claimant initially proclaimed she could not remember. After being shown wage statements, she acknowledged such earnings. She also acknowledged that the percentage of her commission had been reduced by the new owner.

Claimant Richard DeMarsh testified that on the date of the accident he was following his wife as they returned from visiting his mother in Indian Lake to their home in Vermontville. He was aware of the shortcut through the Village of Tupper Lake because he had worked in the area as part of his job with New York Telephone Company. He recalled that he was about eight to ten car lengths behind claimant as they approached the intersection of Hosley Avenue and Route 3. Mr. DeMarsh stated that vehicles were parked on both sides of Hosley Avenue near its intersection with Route 3. He related that, as his wife approached the intersection, he realized that she was not going to stop. He testified that she went "straight into the intersection" and he observed a "flash" strike the driver's side. Claimant's car skidded sideways down Route 3. Mr. DeMarsh immediately parked his truck and ran onto Route 3, fearing that his wife had been killed in the accident. A rescue squad soon arrived and claimant was eventually transported to the hospital.

The day following the accident, Mr. DeMarsh and a friend returned to the intersection and took photographs. The photographs of the intersection were taken from the perspective of approaching Route 3 on Hosley Avenue and were received into evidence as Claimants' Exhibits 2 and 3. The photographs reflect foliage growth near the stop sign on Hosley Avenue that significantly obscured the sign.

Mr. DeMarsh stated that following the accident his wife was not nearly as active as she had been before the accident. He characterized her prior to the accident as "active and strong." He stated that she currently is "not nearly the woman I married." He related he frequently has to assist her in dressing and has to move furniture for her when cleaning.

On cross-examination Mr. DeMarsh stated that he never saw brake lights on claimant's car as she approached and entered the intersection. He recalled that she maintained a "consistent speed" into the intersection. Mr. DeMarsh acknowledged that he and claimant currently play golf and take walks together. He added that they always rent a cart for golf because walking the golf course is "too much" for claimant.

The deposition testimony of Robert A. Haynes was received into evidence as Claimants' Exhibit 11. Mr. Haynes has been the Resident Engineer for the State Department of Transportation (hereinafter DOT or the Department) in Franklin County since January 1999. Although he had no personal knowledge of the incident, he was familiar with DOT procedures during the germane time. He indicated that all DOT employees are obligated to look for problem conditions on the highways and report or fix conditions they observed. He further indicated that there was a "sign foreman" whose duties included checking the reflectivity of signs maintained by the State. Mr. Haynes stated that, other than checking for reflectivity, there was no set schedule for inspecting signs. He related that DOT keeps records of accidents at intersections in order to ascertain whether a particular intersection should have additional safety features in place. He testified that, under the guidelines in the Department's Manual of Uniform Traffic Control Devices, the sight distance for a stop sign on a road with a 30 miles per hour speed limit was 350 feet.

Mr. Haynes was also called as a witness at trial by defendant. He related that there are approximately 600 lane miles of highways in Franklin County. He stated that all signs are checked for reflectivity at least once every two years. The last time the subject stop sign was checked for reflectivity prior to the accident was October 25, 1994. Mr. Haynes testified that the Department maintains records of complaints and that no complaints were recorded prior to the accident regarding foliage blocking the stop sign at the subject intersection. He stated that intersections with a high accident rate are classified as a "priority investigation location" and that his examination of the records reflected that the subject intersection was not given such a classification during the two years before the accident.

On cross-examination, Mr. Haynes opined that the foliage in front of the stop sign, as depicted in Claimants' Exhibits 2 and 3, represented "less than a season of growth." He acknowledged, however, that at the time the last reflectivity test was conducted on October 25, 1994, the leaves may have been off the trees.

Trooper Roger Aldridge testified that he responded to the scene of the accident and spoke with claimant. He took notes of the conversation on the back of a ticket at the scene. The trooper's notes reflect that when he asked claimant what had happened, she responded:
"I don't know why I didn't stop, I know the stop sign was there, I've travelled [sic] this road before, I hope noone [sic] was hurt" (Defendant's Exhibit E).

On cross-examination, Trooper Aldridge stated that he thought the conversation with claimant occurred while she was still in her car at the scene. He acknowledged that it was "possible" that he went to the hospital to obtain information to complete his report. Trooper Aldridge further testified that the day after the accident he was at the intersection on an unrelated matter and observed that the stop sign on Hosley Avenue was "obscured to an extent." He could not recall whether there had been any prior accidents at the intersection. He stated that he had traveled on Hosley Avenue going toward Route 3 before the accident. At such times, he did not recall observing anything unusual about the intersection and he "didn't think it was a problem."
Janet B. Martin testified pursuant to a subpoena served by defendant. She stated that she had owned the Hair Den in Lake Placid until January 1996 and claimant had worked for her. Although claimant had testified that she worked solely for commission, Ms. Martin stated that claimant was paid an hourly rate plus commission. Records produced by Ms. Martin pursuant to the subpoena substantiated that claimant received both an hourly rate and commission (Defendant's Exhibit F). Ms. Martin further testified that the number of days per week claimant normally worked had been reduced from four days to three days approximately one year before the accident. Ms. Martin could not recall whether claimant merely answered the phone when she first returned to work. She did observe, however, that the records reflected claimant earned commission, which would not be paid if she was only answering the phone. Her business records further revealed that claimant returned to work on Friday, August 18, 1995, and that thereafter she essentially worked her normal hours.

Tammy Patnode was also served with a subpoena by defendant and testified at trial. Ms. Patnode purchased the business from Ms. Martin in January 1996 and started operating it in February 1996 under the name "Contemporary Images." She stated that claimant worked regularly at the business from February 1996 until December 1996. Ms. Patnode recalled that claimant generally worked three days a week, but that sometimes she would "crunch" her clients into a couple days because claimant had a long commute. Ms. Patnode testified that claimant never stated she could not perform her work, she did not recall any complaints from claimant, she did not remember claimant taking any sick days and she did not observe claimant in discomfort while working. She did recall that claimant sometimes went to a chiropractor during her lunch time. Ms. Patnode stated that claimant eventually left her employment because she and Mr. DeMarsh were preparing to move out of the area.

Both claimants provided rebuttal testimony. Mr. DeMarsh stated that he did not see Trooper Aldridge speak to claimant at the scene of the accident. He did, however, recall the trooper talking to his wife in the hospital. Claimant testified that she did not remember talking to the trooper and reiterated that she was "slipping in and out" of consciousness. When asked on cross-examination whether she was aware that the hospital records for the afternoon of August 12 indicate that she was "alert," claimant responded that she was "not aware of that."

Deposition and videotape testimony of medical experts was submitted to the court. Dr. John Cerruti, a chiropractor in Lake Placid, started treating claimant on October 24, 1995. She presented herself with complaints of daily headaches, infrequent low back pain, ringing in her ears, eye pain and nausea. Dr. Cerruti diagnosed a series of problems, including: left cervical shift; left thoracic shift; reduction in cervical range of motion; tender muscle fibers from C2 through C7; and decrease in thoracolumbar range of motion. The doctor further noted that all orthopedic tests were negative and that claimant reported an incident of low back pain prior to the accident.

Dr. Cerruti had an X ray taken of claimant's back and he stated that it revealed that the lower part of her spine was in a reversal position. He also noted a preexisting arthritic condition evidenced by bone spurs. When asked whether claimant's spine problems were related to the accident of August 12, 1995, Dr. Cerruti responded as follows:
"[I]t would be very difficult to say because an impact of that magnitude is sufficient enough to cause a shifting of the spine. But the degree of osteophytic changes or arthritic changes that are there on the film took quite a while for them to appear" (Cerruti EBT, at 18-19).

He did, however, opine that claimant's other physical problems were related to the accident. Claimant's visits to Dr. Cerruti were as follows:
October 1995 - 3 visits
November 1995 - 10 visits
December 1995 - 2 visits
January 1996 - 7 visits
February 1996 - 4 visits
April 1996 - 1 visit
May 1996 - 2 visits
June 1996 - 2 visits
July 1996 - 1 visit
August 1996 - 1 visit
October 1996 - 1 visit
November 1996 - 5 visits


Claimant eventually moved from New York State, but she returned to New York for visits in August 1999 and June 2001, and she sought treatment from Dr. Cerruti at such times. Although Dr. Cerruti believed claimant could not be totally cured of the injuries she had sustained, he did state that through chiropractic care "she can look to get as close to near normal as possible" (Cerruti EBT, at 30). He further opined that the accident aggravated claimant's preexisting degenerative disc and joint disease. Interestingly, when asked whether claimant could perform the duties of a hairdresser, Dr. Cerruti stated, apparently based upon representation to him by claimant, that she had not been able to work when she was under his regular care (see, Cerruti EBT, at 33). Such representation was incorrect.
On cross-examination, Dr. Cerruti acknowledged that claimant never complained to him about left shoulder pain until when she visited him on the eve of trial in June 2001. He agreed that his records from several months after the accident reflected that claimant showed improvement and, by March 1996, she was reported as, for the most part, pain free. His records further reflected that less than three months after the accident, claimant stated to him that she had gone bowling. His records indicated that she reported to him that she had, at various times, moved furniture and shoveled snow. Dr. Cerruti acknowledged that it was his understanding from claimant that from November 1996 to August 1999 she did not seek any chiropractic care despite the availability of such care in the area to which she had moved.

Defendant's expert was Dr. Louis J. Benton, an orthopedic surgeon, who examined claimant on November 2, 1999. Dr. Benton explained that he reviewed claimant's various medical reports and took a history from her at the examination. He noted that the X rays did not reveal any fractures, but did show that claimant had degenerative disc disease. He stated that such problem was not related to the accident. Dr. Benton listened to claimant's physical complaints and conducted an examination of her. He opined that claimant's current subjective complaints of pain were not related to the accident. He further stated that she has mild stiffness in the left shoulder that he believed was related to the accident. On cross-examination he characterized the condition of claimant's left shoulder as a permanent, mild disability. He testified that he would not recommend restricting her activities in any fashion because of the shoulder condition.

The State has a nondelegable duty to maintain its roadways in a reasonably safe condition (
see, e.g., Gomez v New York State Thruway Auth., 73 NY2d 724; Friedman v State of New York, 67 NY2d 271, 283). Encompassed within the State's duty is an obligation to trim trees and foliage to assure adequate visibility of stop signs and traffic control devices at intersections controlled by the State (see, Cain v Pappalardo, 225 AD2d 1005, 1006; Nurek v Town of Vestal, 115 AD2d 116, 117). The occurrence of an accident on a State roadway does not, however, give rise to an inference of negligence (see, e.g., Tomassi v Town of Union, 46 NY2d 91, 97; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Claimants retain the burden of proving that the State was negligent and that such negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New York, 179 AD2d 947; lv denied 80 NY2d 751).
Initially, the court notes that it is undisputed that, although Hosley Avenue is not a State roadway, defendant was nevertheless charged with responsibility for the subject stop sign because it was located within 100 feet of an intersecting State roadway (Vehicle and Traffic Law § 1621[a][l];
Cain v Pappalardo, supra). The photographs received into evidence at trial reflect that the sight distance for the stop sign at Hosley Avenue was significantly affected by foliage. While neither the distance from the intersection nor the height of the camera was established regarding Claimants' Exhibits 2 and 3, it is nevertheless apparent that a substantial portion of the stop sign was obscured until a motorist was quite close to the intersection. Indeed, even in Claimants' Exhibit 3, which was obviously taken near the intersection, more than half of the sign is not visible. Moreover, as acknowledged by Mr. Haynes, on a rainy day the leaves would probably be drooping, further obscuring visibility of the sign. The court finds that the obstruction of the stop sign created an unsafe condition.
The court further finds that defendant had constructive notice of the condition. Mr. Haynes testified that Hosley Avenue was traveled by approximately 900 vehicles per day. He agreed that, for a rural area of the Adirondacks, such travel was considerable. Hosley Avenue was a shortcut well known to local motorists and some DOT employees lived in or around the Tupper Lake region. It is apparent from the photographs that the extent of obstruction shown was the result of many weeks and, more likely, months of unattended growth. Defendant was thus negligent in its maintenance of the intersection.

Proximate cause presents a much closer issue. A factor in such issue is the poor credibility of claimant revealed by the evidence presented. The proof revealed numerous inconsistencies between her testimony and the substantiated facts. For example, she testified she was at the hospital three days, but the hospital record revealed she was there about 24 hours. Claimant indicated she sustained fractures. All the medical evidence, however, indicated otherwise. She attempted to minimize such inconsistencies by stating she was in and out of consciousness. The hospital record reveals she was alert. She testified she received no salary while working at the Hair Den. The business records indicate she received a salary plus commission. Claimant indicated that her work hours and income decreased after the accident. The records and testimony of nonparty witnesses reflect her hours and income remained relatively stable. Such inconsistencies are not an exhaustive list of the ones revealed at trial.

The stream of inconsistencies do not weigh favorably for claimant when conflicting evidence is presented. Accordingly, the court credits the testimony of Trooper Aldridge and finds that claimant stated to the trooper that she did not know why she did not stop, that she knew the stop sign was there and that she had traveled the road before. The court does not accept claimant's assertion that she had traveled Hosley Avenue only once before and that, at such time, she was sleeping while her husband drove. There was not, however, evidence from which it could be concluded that she frequently traveled on Hosley Avenue. The obstruction of the stop sign on Hosley Avenue would create a difficult situation for an occasional traveler of such road, particularly when driving on a rainy day. While the issue is very close, the court believes the evidence tips ever so slightly toward finding that defendant's negligence was a proximate cause of the accident.

The comparative negligence of claimant, however, is substantial. She was familiar with Hosley Avenue. She knew or should have known that she was on a shortcut and would soon be coming upon the main road. By careful observation, she could have seen the approaching street that intersected Hosley Avenue. If she had been diligently attempting to see a stop sign, she would have seen the partially obstructed sign as she approached the intersection. The fact that she never slowed down at all as she approached and entered the intersection reflects inattention to the conditions ahead. The court concludes that claimant's comparative negligence should be assessed at 60 percent.

Most of the injuries recited by claimant were subjective in nature and, because of her unpersuasive credibility, are not substantiated by the evidence. She was hospitalized for 24 hours and during such time suffered pain from the injuries in the accident. She sustained soft tissue injuries that prevented her from working for about one week. She eventually sought chiropractic care for nagging injuries. As reflected by Dr. Cerruti's testimony, her condition improved and, by March 1996, she was mostly free of pain. The only convincing evidence of a permanent injury was Dr. Benton's testimony that claimant has mild stiffness in her left shoulder caused by the accident. The court accepts the doctor's testimony that the shoulder stiffness does not require claimant to restrict her activities in any fashion. While it is perplexing that complaints about the left shoulder did not surface until more than four years after the accident, the court nevertheless accepts the opinion of defendant's expert that the shoulder stiffness is related to the accident. No other injuries meriting compensation were proven by a fair preponderance of the credible evidence.[3]

Claimant Josefine O. DeMarsh is awarded $8,500 for past pain and suffering, and $1,500 for future pain and suffering. Claimant Richard DeMarsh is fairly compensated by an award of $2,000 for his derivative claim. The damages of $12,000 must be reduced by 60 percent to reflect claimant's comparative negligence. Claimants are awarded a total of $4,800.

The Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

September 25, 2001
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims




[1] The claim of Richard DeMarsh is derivative. All references to "claimant" are to Josefine O. DeMarsh unless otherwise noted.
[2] All quotes are from the court's trial notes unless otherwise indicated.
[3] Since the current claim, arising out of an automobile accident, does not involve litigation against a "covered person," the no-fault "serious injury" threshold is not implicated (see, Insurance Law §§ 5102, 5104).