New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2001-009-109, Claim No. 97952


Claimants sought damages for personal injuries suffered by them in a one-car accident which occurred on Interstate Route 81, based upon alleged negligence by the State in failing to provide a safe roadway. Specifically, claimants alleged that the State was negligent in maintaining an inappropriately steep slope along the shoulder of the highway, and failed to install a guiderail, both of which prevented the operator of the vehicle to recover control once the vehicle left the highway. The Court found that the State was entitled to qualified immunity under Weiss v Fote 7 NY2d 579, in that a comprehensive study had been conducted prior to a repaving project of the area in question and that it had complied with applicable standards. The Court further found that claimants did not establish that non-compliance, if any, was the proximate cause of the accident, and dismissed the claim.

Case Information

TANYA MARTIN, TAMARA MARTIN, an infant by her Father and Natural Guardian, WILLIAM MARTIN, and WILLIAM MARTIN, Individually
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):

Claimant's attorney:
BY: Stanley L. White, Esq.,
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
December 28, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

In this claim, claimants seek damages for injuries suffered by them following a one-car accident which occurred on Interstate Route 81 in southern Cortland County on May 8, 1997.

In their claim, claimants allege that the State Department of Transportation, as an agency of the State of New York, was negligent by its failure to provide a safe roadway, and specifically, by maintaining an inappropriately steep slope along the shoulder and recovery area adjacent to the highway, and additionally for failing to install a guide rail along the shoulder area of Interstate Route 81 where the accident occurred. The trial of this claim was bifurcated and this decision deals solely with the issue of liability.

At approximately 8:00 a.m. on May 8, 1997, one Jennifer Trumble was driving her 1992 Pontiac automobile southbound on Interstate Route 81. Claimant Tanya Martin and her infant daughter, Tamara Martin, were passengers in the vehicle. Tanya Martin was sitting in the front passenger seat. Tamara Martin was sitting in an infant's car seat directly behind Jennifer Trumble, and Ms. Trumble's daughter, Jasmine, was in a car seat directly behind Tanya Martin. At some point, Jasmine began to cry, and in an attempt to settle her, first Tanya Martin and then Ms. Trumble, turned to look into the back seat. The vehicle, however, happened to be at a point on the highway where it curved to the right. The Trumble vehicle began to swerve and left the highway from the lefthand passing lane, and proceeded onto the grassy median off the left edge of the shoulder. The vehicle then traveled approximately 240 feet in the median, parallel to the highway, as Ms. Trumble attempted to regain control of the vehicle and get back on the highway. However, at this point the vehicle began to roll and it overturned several times, eventually coming to rest, upside down, approximately 85 feet from where it first began to roll.

All of the occupants sustained serious injuries in this accident, and Ms. Trumble's infant daughter, Jasmine, died as a result of the injuries suffered by her.

It is claimants' position that the State should be held liable in this claim, based upon the alleged failure of the Department of Transportation to adequately study and evaluate roadside safety areas during a 1996 repaving project, and thereby failing to provide for an adequate recovery area. Claimants also allege that the State failed to adequately construct or maintain the roadside slope in this area which would have permitted Ms. Trumble to recover control of her vehicle once it left the road surface, and which also would have prevented the vehicle from overturning in the recovery area. Finally, claimants allege that the State failed to install a guide rail through the curve where this accident occurred, which would have prevented the vehicle from leaving the roadway.

The Court notes that immediately prior to trial, claimants had brought a motion seeking an order precluding the testimony of defendant's expert witnesses, based upon the alleged failure of defendant to timely and adequately disclose pursuant to CPLR 3101. At the conclusion of testimony, however, this motion was withdrawn by claimants.

During this trial the Court admitted into evidence, over claimants' objection, a document entitled "Final Design Report", dated April 1994, pertaining to the repaving of a portion of Interstate Route 81 within Cortland and Onondaga Counties (Defendant's Exhibit S). This report had been prepared and issued by the State Department of Transportation in connection with a repaving project and improvements to Route 81, including the area where the accident involving claimants occurred. At the close of trial, the Court granted claimants permission to address the issue of admissibility of this document in their post-trial submissions and the Court must first turn its attention to the disposition of this issue.

Claimants contend that notwithstanding prior disclosure requests and demands, that the defendant willfully withheld production of this report, and only provided the report at the commencement of trial, thereby precluding any opportunity by claimants and their experts to examine and review the report.

There is no question that this report was not produced by defendant until the morning of trial. This Court normally conducts an exhibit "pre-marking conference" prior to trial, and such a conference was conducted in this claim on Friday, February 2, 2001, prior to the commencement of trial on Monday, February 5, 2001. This report was not produced by defendant at this conference. Defense counsel responds by stating that she did not have possession of this document at that time, and it only came into her possession immediately before trial, and that there was no intentional effort made to mislead or deceive claimants.

In any event, it is clear to the Court that this report, dated April, 1994, had been in existence prior to the commencement of this litigation, was not privileged, and was therefore subject to disclosure. Although not requested by title, it is clear that this request was encompassed in the disclosure demands made by claimants.

However, the Court also accepts the assertions by defense counsel that she did not come into possession of this document until the commencement of trial, and that she did not intentionally withhold production of the document.

References had been made to the existence of this report during depositions of defendant's witnesses, and claimants' attorneys therefore had an opportunity to make a specific demand for disclosure of this document prior to trial, which was not done. Additionally, claimants' expert witness, who has testified on numerous occasions in this Court, is certainly familiar with the procedures followed by the Department of Transportation in such projects, and should have been aware of the existence of such a report during his preparations for trial.

Claimants also contend that they specifically requested all documents reviewed by defendant's expert, Kenneth Passero, in preparing his report, and that the Final Design Report was not produced in response to this demand. However, the list of items reviewed by Mr. Passero, and demanded by claimants, makes no reference to this report, and defense counsel has found no record that this report had been delivered to Mr. Passero.

In reaching its decision on admissibility, the Court has also considered the testimony of claimants' expert, James Napoleon, at trial, and is convinced that his testimony would not have been affected, even if he had access to this report while preparing his report.

Accordingly, after due consideration and a review of all of the facts and circumstances surrounding the production of this document, the Court determines that defendant's Exhibit S shall remain in evidence and may be considered by the Court in the disposition of this claim.

The State has a duty to construct and maintain it highways in a reasonably safe condition (
Kirisits v State of New York, 107 AD2d 156). It must use reasonable care in its construction and in the maintenance of any shoulders it provides for emergency use (see, Stiuso v City of New York, 87 NY2d 889; Bottalico v State of New York, 59 NY2d 302; Pontello v County of Onondaga, 94 AD2d 427, lv dismissed 60 NY2d 560). Where appropriate, it must erect and maintain guide rails (Colegrove v County of Steuben, 216 AD2d 888). However, the State is not an insurer of the safety of motorists, and negligence cannot be inferred from the mere happening of an accident (Edwards v State of New York, 269 AD2d 863; Hamilton v State of New York, 277 AD2d 982, lv denied 96 NY2d 704). To prevail, a claimant must prove that the injuries he or she sustained were proximately caused by the State's negligence (see, Hamilton v State of New York, supra; Edwards v State of New York, supra).
In this claim, there is no question that the actions of Jennifer Trumble, the operator of the vehicle, were the sole cause of the vehicle leaving the roadway. However, the issue before the Court is not whether the State was responsible for the vehicle leaving the roadway, but rather pertains to the obligation of the State to provide for the safety and protection of the driver and passengers once the vehicle left the highway.

The State has an obligation to provide for the safety of those who leave its roadways by providing appropriate recovery areas, where possible, so as to allow even a driver who may be negligent in the leaving of the roadway to recover control of the vehicle and prevent an accident (
Pontello v County of Onondaga, supra; Bottalico v State of New York, supra).
In claims based upon negligent design, the State is entitled to qualified immunity under the doctrine espoused in
Weiss v Fote, 7 NY2d 579. The State is afforded this immunity for claims arising out of its highway planning decisions, unless its study was plainly inadequate or lacked a reasonable basis. There are "strong policy considerations" behind this doctrine, and it should therefore not be "lightly discounted" (Friedman v State of New York, 67 NY2d 271, 285).
Claimants contend that the State is not entitled to qualified immunity in this case, arguing that such immunity should not apply where the defendant has violated its own design standards and specifications in implementing its plan, and where the plan does not properly evaluate existing hazards.

In this case, evidence established that the State had conducted a comprehensive review prior to the 1996 repaving of Route 81. A study was conducted by the Department of Transportation, which was incorporated into the Final Design Report (Exhibit S). Based upon the Final Design Report, as well as a review of all the documents and plans submitted at trial, the Court must find that the State, in this claim, is entitled to the qualified immunity provided by
Once the State is afforded this qualified immunity, however the Court must also consider whether it complied with the specifications set forth therein. Notwithstanding the qualified immunity provided by
Weiss, claimants contend that the State failed to exercise reasonable care in the design, construction, and maintenance of Route 81 in the vicinity of this accident. Specifically, claimants argue that the roadside recovery area was unreasonably steep, which prevented Ms. Trumble from regaining control of her vehicle, and that a guide rail through the curve on the roadway would have prevented the vehicle from leaving the highway and proceeding onto the slope of the recovery area.
With regard to the issue of whether guide rails should have been installed throughout the curve at the accident site, claimants contend that reasonable care in the planning and design of this area would require the use of such guide rails. Furthermore, claimants argue that the State is not entitled to the qualified immunity provided by
Weiss, since there is no indication in the Final Design Report, or other documents presented, that any evaluation was made as to the propriety of extending the guide rails.
Claimants rely in part on the testimony of Roy Cary, a highway design squad leader for the State Department of Transportation. Mr. Cary testified that he knew of no documentation indicating to him that the Transportation Department had considered the question of whether guide rails should have been installed and extended along the area in question during the 1996 repaving project. However, the Court cannot conclude that the State did not consider the installation or extension of guide rails merely because there is no mention of this issue in the Final Design Report. The Court finds that it is not necessary to specifically address each and every possible safety feature which can potentially be utilized on a highway project in its final report.

In this case, as might be expected, the expert witnesses disagreed as to whether the guide rail should have been extended. Claimants' expert, James Napoleon, testified that a guide rail was advisable and in fact warranted in this situation since the guide rails in existence did not extend far enough to prevent a vehicle from leaving the road. Defendant's expert, however, testified that a guide rail was not warranted under any condition, and would have most likely created a more dangerous situation, since a vehicle striking the barrier would be forced back onto the traveled roadway, possibly into the path of other vehicles and potentially causing multiple vehicle accidents.

Something more than a mere choice between expert testimony is required in order to establish liability against the State on this issue, and as a result, the Court cannot find the State negligent in failing to extend the guide rail in this area.

Claimants also maintain that defendant violated its own standards and specifications in the construction design and construction of the roadside recovery area, and therefore the qualified immunity afforded by
Weiss should not apply. Specifically, claimants offered testimony in an attempt to establish that an overly steep side-slope existed, which caused the rollover of the Trumble vehicle.
Testimony and documentation introduced at trial established that standards issued by the American Association of State Highway and Transportation Officials (AASHTO) recommended that where practical, traversable slopes should have a grade of "one on four", or flatter. A "one on four" slope means that the ground drops one foot for every four feet traveled.

The experts who testified in this trial all took measurements of the side slope where this accident occurred, although by different means and at different locations along the path that the Trumble vehicle traveled.

Credible testimony from defendant's expert, Kenneth Passero, established to the satisfaction of the Court that the slope along the 240 foot path taken by the Trumble vehicle within the recovery area, prior to its overturning, was within the "one on four" slope as recommended by AASHTO.

However, a culvert is located at the end of this 240 foot path, near the point at which the vehicle overturned. Although they disagree as to the degree of slope at this culvert, the testimony of all experts indicated that the slope at the culvert was more severe than "one on four". Claimants therefore contend that at this point, the steepness of the slope, exceeding AASHTO recommendations, caused the Trumble vehicle to overturn.

Roy Compton, a New York State Police Trooper who investigated the accident, testified that the tire tracks of the Trumble vehicle ended approximately 10 to 15 feet from the culvert pipe. This testimony indicates that the Trumble vehicle became airborne prior to reaching the culvert, thereby rendering any measurements of the slope at the culvert irrelevant to the decision herein.

Simply put, the Court is not persuaded that the State failed to comply with appropriate standards applicable to the slope of the recovery area, but more importantly, is not persuaded that the accident occurred in a noncomplying area, if one existed. Furthermore, claimants have not met their burden of establishing that any such noncompliance was the proximate cause of the accident. Regrettably, none of the occupants of the vehicle were able to recall what transpired once the vehicle left the roadway. In sum, there is insufficient evidence for the Court to conclude that there in fact was an overly steep slope, that the accident occurred in an area where such an overly steep slope might have existed, or that any such slope, if it did in fact exist, was the proximate cause of the accident.

The Court notes that during the repaving project in 1996, this culvert pipe was extended, and the head wall was removed, providing further evidence that the State had considered safety aspects of this roadside recovery area during the planning and construction phases of the road reconstruction.

Finally, the Court is aware that the qualified immunity doctrine of
Weiss imposes a continuing duty on the State to evaluate its decisions in light of actual operations. Even though claimants attempted to establish that prior accidents along this stretch of highway should have required the State to consider, at a minimum, an extension of the guide rail along the side of the highway, the Court is not persuaded that this accident history was sufficient to require any re-evaluation by the State.
The State's non-delegable duty is met when it provides highways that are reasonably safe with consideration given to factors such as conditions, terrain, physical constraints, fiscal responsibility and constraints and the nature of the locality (
Tomassi v Town of Union, 46 NY2d 91).
Based upon the totality of all of the credible evidence presented, the Court finds that claimants have failed to establish by a preponderance of the evidence that the State should be held liable for this tragic accident and resulting serious injuries suffered by claimants. Taking into account the qualified immunity to which the State is entitled, the Court does not find that the State was negligent in the design or maintenance of the roadside recovery area, nor was it negligent in its placement of the guide rail in the area of the accident, and therefore cannot be held responsible for the injuries suffered by claimants in this accident.

The Court has reviewed claimants' proposed Findings of Fact and Conclusions of Law and has incorporated into this decision those Findings of Fact and Conclusions of Law it deems essential to this decision in compliance with CPLR 4213(b).

All motions not heretofore ruled upon are hereby denied.

The claim herein is hereby DISMISSED.


December 28, 2001
Syracuse, New York

Judge of the Court of Claims