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
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
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
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
, 269 AD2d 863; Hamilton v State of New York
, 277 AD2d 982,
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
; Edwards v State of
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
; Bottalico v State of New
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
, 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
, 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
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
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
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
All motions not heretofore ruled upon are hereby denied.
The claim herein is hereby DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.