New York State Court of Claims

New York State Court of Claims

FOSTER v. THE STATE OF NEW YORK, #2001-015-138, Claim No. 96067, Motion Nos. M-62750, CM-62943


Defendant's motion for summary judgment seeking dismissal of claim based on doctrine of qualified immunity arising from duly executed highway safety plan is granted. Court found that decision to replace existing guiderail in area of fatal accident where a clear zone existed which might have allowed guiderail's elimination was a judgment call by State's engineers in exercise of discretion of judicial or quasi judicial nature absent proof that no reasonable official could have made such decision.

Case Information

AMY FOSTER as the Administratrix of the Estate of CHARLES RUSSO, deceased, and as Parent and Natural Guardian of ASHLEY RUSSO
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:
Kevin A. Moss, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 23, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion for summary judgment is granted insofar as it seeks dismissal of the instant claim on the grounds that the State may not be held liable on the basis of the doctrine of qualified immunity applicable to a duly executed highway safety plan. That portion of the motion which seeks a determination that the State's placement of a guiderail along the eastern edge of the paved shoulder of Route 85 was not a proximate cause of the claimant's injuries is denied as moot. The claimant's cross-motion for partial summary judgment on the issue of proximate cause is likewise denied as is that portion of claimant's motion seeking an order dismissing the fourth, fifth and seventh affirmative defenses contained in the defendant's answer. Claimant was duly appointed administratrix of the estate of the decedent Charles Russo by order of the Honorable Raymond E. Marinelli, Judge of the Surrogate's Court, County of Albany dated March 19, 1997 and is the mother and natural guardian of an infant, Ashley Russo, the natural child of the decedent and the sole distributee of the decedent's estate.

There were no eyewitnesses to the underlying auto accident other than the participants, only one of whom, Christopher Mansfield, survived. Neither party offered Mansfield's testimony on this motion and the description of the underlying accident is drawn from the opinions of each party's reconstruction expert. Their opinions as to the happening of the event are similar with the chief difference being the alleged role of the subject guiderail as a substantial factor in causing claimant decedent's vehicle to roll over, which the claimant alleges produced the injuries which led to the decedent's death. For the reasons which follow, the factual issue of proximate cause does not preclude summary judgment on the issue of the State's qualified immunity from liability on this claim.

At approximately 3:40 a.m. on January 27, 1997 Charles Russo was operating a 1992 Cadillac sedan in a northeasterly direction on Route 85 in the Town of Bethlehem on his way to work. At the same time Christopher Mansfield, whose blood alcohol level was reported to be .31[1], was operating his 1997 Jeep Wrangler in the opposite direction (southwesterly) on the same road. An accident reconstruction report (defendant's Exhibit 16) was prepared by Trooper Timothy P. Bonnier. Trooper Bonnier arrived at the scene within 30 minutes of the accident and indicates in his report that the road surface was clear and dry, the weather was clear and cold and traffic was light. Trooper Bonnier described Route 85 at the location of the accident as a two lane highway divided by a broken yellow line (passing zone) with paved shoulders. Both shoulders were separated from the lanes of travel by solid white lines. He indicated the pavement markings were in good condition and plainly visible. The report further states that the roadway consists of a very gradual right hand bend with a positive grade going in a northeasterly direction. According to Trooper Bonnier's report the northeast lane of traffic is protected by a guiderail located adjacent to the east shoulder and the southwest lane is similarly protected by a guiderail off the west shoulder which terminates in a buried end just south of the crash location. The roadway has an asphalt surface and a posted speed limit of 55 m.p.h. The accident occurred approximately six-tenths of a mile south of the line dividing the City of Albany and the Town of Bethlehem line near mile post marker 85-1101-1233 (Exhibit 5). Neither Trooper Bonnier nor the claimant's reconstruction expert (Alan T. Gonseth) was able to estimate the speed of either vehicle prior to the crash.

The parties' reconstruction experts agree that the Mansfield vehicle crossed over the broken yellow line and entered the northeast lane of travel. The accident scene evidence suggests that prior to impact the decedent's vehicle moved onto the east shoulder where initial contact occurred, the Mansfield vehicle's left front striking the left front of the decedent's vehicle with continued contact with decedent's vehicle along the entire left side. The bumper of the Mansfield vehicle ripped off the driver's side door of the decedent's vehicle and the violent impact forced the decedent's vehicle into the guiderail whereupon the rear end became elevated causing it to roll over onto its roof. The experts disagree on the role played by the subject guiderail in creating or further facilitating the rollover of decedent's vehicle. Both agree that in the final phase of the rollover the decedent's vehicle crashed into the pavement with such force that it crushed the left side of the roof into the driver's compartment. Decedent sustained multiple injuries including multiple skull fractures which it is alleged ultimately caused his death and for which claimant seeks compensation in the sum of $10,000,000.

Although claimant set forth seven separate allegations of negligence in her amended claim filed on May 2, 2000, for purposes of the defendant's summary judgment motion they may be condensed into a single issue, i.e., may the State be held liable in negligence for its decision to replace existing guiderail along the shoulder of the northeast lane of travel of Route 85 in the Town of Bethlehem in the general vicinity of mile post marker 85-1101-1233 as part of the State's Safe Trak project on Route 85 in 1994-1995 or is the decision not actionable as the State is immune from liability for highway design choices which are rational, based upon adequate study and comport with applicable standards? The parties are diametrically opposed on this issue which presents a question of law for judicial resolution since there is no dispute as to the facts relative to the State's activities in designing the project and implementing the project design.

Claimant argues that the State did not adequately study the ambient conditions existing at or near the accident scene prior to its replacement of guiderail in that vicinity in 1995, and that based upon those conditions and upon changes in design standards for guiderail placement since the time of its original installation in the 1960s the State's decision to replace the guiderail at the edge of the paved shoulder in 1995 lacked a rational basis.

There is no dispute that in the area where the accident occurred Route 85, which was originally constructed in the 1960s, contains two paved lanes of travel, with nine foot wide paved shoulders for each direction of travel and that at the time of its original construction the State erected a guiderail at the outside edge of each paved shoulder. For purposes of this motion the Court is concerned only with the northeastern lane of travel, its shoulder and the area to the east of the guiderail. It is conceded that when Route 85 was originally conceived the State envisioned that it would one day become a four lane highway and, to facilitate such future development, the State acquired more land than was needed for its then-present purposes. Included among the land acquired was an area to the east of the accident scene. That area contains a relatively flat span with a five degree slope measuring approximately 67 feet in width measured from the northeast travel lane and including the paved shoulder. At the eastern edge of the 67 foot wide clear area is a non-transversable slope which drops thirteen feet over a horizontal distance of thirty feet. This drop creates a slope of 1:2.3 or an angle of 23 degrees. At various areas along Route 85, none of which are relevant to this motion, the Normanskill Creek runs through the land.

In essence, the claimant alleges that the replacement of the guiderail present at the site of the accident as part of the Route 85 Safe Trak project was negligent in that it was unnecessary given the 67 foot wide "clear zone" running along the eastern border of the Route 85 northbound lanes. Claimant asserts that this clear zone created a circumstance where the guiderail constituted a hazard to northbound traffic in that it A) prevented northbound traffic from utilizing the clear area to avoid cars crossing over from the southbound lane of traffic or B) acted as a fixed object along the roadway with which vehicles such as the claimant's would come in contact in the event of an accident. Alternatively, the claimant suggests that if a guiderail was required at the site it should have been placed adjacent to the slope forming the outer boundary of the clear zone. Placement of the guiderail in such a manner, according to the claimant's expert, would have protected vehicles from the hazard posed by the embankment while allowing full utilization of the clear zone to avoid certain accidents and recover control of a vehicle in others.

There is no substantial disagreement between the parties relative to the Route 85 project and the actions taken with regard to the placement of guiderail at the accident site.

The Route 85 project was what is known as a Safe Trak project described in the examinations before trial as "a step up" from a simple re-pavement project. The purpose of the project was to improve the roadway's worn surface and, pursuant to Department guidelines, issues concerning super elevation, signing and pavement striping were addressed. Although not required, it was determined that guiderail then existing along the project route would be replaced. Various studies were undertaken including a design speed, average annual daily traffic (AADT) and accident history study. The accident history (Exhibit 7) considered overall three year project accident rates, accident severity distribution, whether the project area was free of identifiable clusters of reportable fixed object/ run-off-the-road accidents, whether the number of such accidents as a percentage of total accidents met Department standards and that lane and shoulder widths met required minimums. The project design was prepared by Jeffrey Brown and approved by his supervisor Mary Ricard, Design Supervisor Chester Burch, the Regional Design Engineer, Regional Traffic Engineer, Highway Maintenance Engineer and the Regional Director.

On March 21, 1995 Paul Johnston, the Construction Engineer for the Route 85 Safe Trak project, prepared a memorandum to Mary Ricard, the Project Supervisor, summarizing his comments regarding the proposal. Included among the sixteen items contained in the memorandum was the following:
  1. Reference is made to the Guide Rail Table on Page 124. Between Stations 25+30 to 34+97, 40+05 to 46+10, 55+14 to 66+65, 73+21 to 81+97 and 91+00 to 98+11, all on the right, the clear distance is greater that 30'; most approaches 50'. Accordingly, these replacements do not meet the warrants outlined in Guiderail III for installing new guiderail systems. Therefore, why are we replacing the guiderail in these areas?

In his examination before trial testimony (Exhibit H), Mr. Johnston related that his concerns regarding the guiderail were twofold. That given the available space along the eastern edge of the northbound lane the State need not bear the cost of replacing the guiderail and that a guiderail may be considered a hazard in itself.

In response to Mr. Johnston's letter Ms. Ricard testified (Exhibit 12) that she discussed the issue with her supervisor, Mr. Burch, and Terry Hale who was involved in revising the State Highway Design Manual (HDM). Ms. Ricard prepared a response to Mr. Johnston's memorandum of March 21, 1995 which stated the following relative to replacement of guiderail:
  1. Guiderail III may be used as a guideline for the recommendations it contains, but it is not Department policy on guiderail installation. Current practice on the installation of guiderail calls for looking at design speed, AADT, slopes, available clear area and whatever is located behind the clear area when determining the need for rail. In the project area the two greatest obstacles behind the clear area are the Normanskill Creek and a severe drop-off that parallels much of the highway. We should provide motorists with protection from both of these hazards. This is consistent with Department policy included in the revised chapter ten of the Highway Design Manual and the 1989 AASHTO Roadside Design Guide.

Subsequent to Ms. Ricard's response to Mr. Johnston a construction walk through meeting was held at the project site on May 5 , 1995. In attendance were Jeffrey Brown (Designer), Mary Ricard (Project Manager), Chester Burch (Design Supervisor), Paul Johnston (Construction Engineer), John Van Auken (Engineer-In-Charge) and Ted LaValle (Assistant Resident Engineer). Paragraph 1 of the meeting minutes (Exhibit 11) relates that "Guide rail is a concern for Paul Johnston, he feels there is to [sic] much rail being placed for the existing hazards. The concept of run-out was discussed in depth and he finally agreed to place the rail as designed."

Although in their examinations before trial the participants varied in their recollections regarding the length and scope of the discussion, all agree that the issue of guiderail placement was discussed and resolved at the on-site meeting. Claimant does not dispute that Mr. Johnston "signed-off" on the issue of guiderail placement at the walk through meeting on May 5. Instead, it appears that he continued to have concerns which he discussed with William Logan, the DOT Region I Traffic Engineer in charge of the Traffic Engineering and Safety Group. Mr. Logan responded to Johnston's concerns by a memorandum dated July 6, 1995 (Exhibit N) in which he states the following:

As you requested, we have reviewed the proposed guide rail installation along the eastside of Route 85 at the edge of shoulder and concur with you that this installation presents more of a hazard to the motoring public than no railing at all within the 30' clear zone. If it is decided that the installation of the guide railing is imperative to protect traffic from the high fills, it is our opinion it should be installed at the top of the slope. However, we do question the cost effectiveness of installing any railing beyond the design clear zone.

Mr. Johnston discussed Logan's memorandum with his supervisor Mr. Frederick but took no further action with regard to the placement of guiderail on the Route 85 project.

Finally, Mr. Johnston was questioned at his examination before trial regarding the efficacy and effect of moving the guiderails closer to the slope. The following exchange took place:
Q. Wouldn't an extra - - if that area were 60 feet as opposed to 30 feet, wouldn't that have given a motorist more of a time period within which to recover their vehicle and put their brakes on to bring it to a halt?

A. The further distance back, yes, it would give a vehicle more time to recover but again, as I stated before, guide rail is designed to deflect off of not impact perpendicularly, so the further back the guide rail would be would also give a vehicle more time to change his course of direction and T-bone or become a perpendicular impact into the guide rail.
Beginning in 1994, William Logan was the Regional Traffic Engineer in DOT Region 1. He testified at his examination before trial (Exhibit F) that he was a member of the Department's Region 1 Traffic and Safety Group and described his duties in the following manner:
Q. What are the responsibilities of traffic and safety group?

A. A whole variety of responsibilities. I can pinpoint it down. My responsibility at that time, prior to becoming the regional traffic engineer was, in the operations group, did investigation on signs, signals, pavement markings, unanswered complaints from the public.

Q. Would the concerns that you had, not concerns but would the jurisdiction that you have over traffic safety also include guide rails and placement of guide rails back in that period of time?

A. We didn't have or I didn't have any responsibility, direct responsibility for guide rail although guide rail was put up on state highways so we certainly have input and interest in it.
Mr. Logan was not involved in the Route 85 project and did not attend any meetings regarding the project. At some point, Mr. Johnston raised the issue of guiderail placement with Mr. Logan. Mr. Logan responded to Johnston's concerns in the memorandum dated July 6, 1995 quoted above. Mr. Logan could not recall what steps he undertook to review the guiderail installation but stated his normal procedure would be to review the design plans and conduct a site visit although in this instance no site visit was made because of his familiarity with Route 85. Logan stated that it was his opinion that if the clear zone to the east of the northbound lanes of Route 85 was less than thirty feet in width the guiderail should have been placed closer to the drop-off and, if the clear area was more than thirty feet, the guiderail should have been eliminated. Mr. Logan's opinion was based primarily on "common sense" as well as what he considered to be "good engineering judgment." He expressed both safety and cost concerns relative to the need for guiderail in the area given the available clear zone. Mr. Logan took no further action with regard to the Route 85 guiderail issue following his July 6, 1995 memo to Paul Johnston. Mr. Logan confirmed that his staff reviewed the Route 85 Safe Trak plans but that guiderail placement was not part of his office's concerns but, rather, was the responsibility of the project design group.

Mary Ricard was deposed and her examination before trial testimony is found in Exhibit 12. Ms. Ricard was first employed by the Department of Transportation in 1983 and since 1984 has acted as a Highway Project Designer. In 1994 Ms. Ricard was assigned as the Project Design Supervisor for the Route 85 Safe Trak project. She identified as authoritative the Department's Highway Design Manual and periodic engineering bulletins and instructions. She also recognized the Roadside Design Guide (RDG), published by the American Association of Highway and Transportation Officials (AASHTO) as a supplemental resource recommended for use in designing road construction projects.

Ms. Ricard identified certain project documents and related that construction began in the Spring of 1995 and concluded in August, 1995, the project completion date contained in the record plan sheet, with final acceptance occurring in November of the same year.

Ms. Ricard reviewed the memorandum prepared by Paul Johnston and reflecting his concerns regarding the proposed replacement of existing guiderail as part of the Route 85 project. She testified that prior to receiving the Johnston memo she had discussed the issue of guiderail placement with Jeffrey Brown and Chester Burch. In the summer of 1994, as part of the design process, Ms. Ricard discussed with Mr. Burch the potential for moving the guiderail within the project limits farther away from the pavement edge than as originally installed in light of the open grassy area along the highway shoulder. Ms. Ricard raised this issue in recognition that guiderails may in themselves be a hazard to the traveling public and that AASHTO standards recognized the potential hazard posed by guiderails and recommended their elimination where elimination may be accomplished based on the application of engineering judgment. Ms. Ricard discussed with Mr. Burch the AASHTO provisions relating to guiderail placement and testified that she had measured the distance between the existing guiderail and the embankment running parallel to the northbound lanes of Route 85 although she could not recall the distance at her deposition. Ms. Ricard agreed that AASHTO guidelines recommended elimination of guiderail where possible for several reasons, including the potential for the wheels of a vehicle which comes in contact with the guiderail to become elevated under certain circumstances.

Ms. Ricard testified that the Department's Highway Design Manual recommends a minimum clear zone of 30 feet for highways permitting speeds in excess of 50 m.p.h. as long as the slope of the clear area was traversable (HDM § 10.2). According to her testimony, the specific provision of the HDM referenced applied only to new construction or reconstruction of highways although it was considered as a guide in forming her consideration of guiderail placement on Route 85. She further stated that the grassy area to the east of the northbound lanes met the definition of a "traversable slope" until it reached the break point of the embankment where its slope increased to approximately "one on two" which was non-traversable, a traversable slope being a maximum of 1 on 3 (one foot drop over three feet of horizontal distance).

Ms. Ricard discussed with Mr. Burch the AASHTO Roadside Design Guide provisions concerning guiderail placement and then current department practice and considered various scenarios relating to the placement of guiderail away from the roadside. Following her conversation with Mr. Burch, Ms. Ricard also discussed the matter with Mr. Terry Hale who was involved in revising Chapter 10 of the Highway Design Manual. According to Ms. Ricard, Mr. Hale stated that moving the guiderail away from the roadway may increase the severity of the angle of impact between an errant vehicle and the guiderail and that current department policy was not to move guiderail away from the roadway pavement edges.

With regard to the Johnston memorandum, Ms. Ricard testified that she visited the site prior to authoring her response. When asked what specific sections of the HDM she was referring to in her response to Mr. Johnston, Ms. Ricard cited section contained on page 10-14 which will be discussed in connection with the parties' expert testimony and the general Department policy of considering hazards located outside the 30 foot minimum clear zone when deciding the need for guiderail in a particular location. When asked what portions of the AASHTO Roadside Design Guide she was referring to in the Johnston memorandum Ms. Ricard referenced section 3.1 of the RDG. In describing the specific language of section 3.1 she relied upon Ms. Ricard gave the following response:
Q. And what section are you referring to? Would you read that for us?

A. I'm looking at the bottom of the page. The paragraph begins 'Subsequently, most highway agencies - -' but it continues 'it soon became apparent, however, that in some limited situations where the embankment slopes significantly downward, a vehicle could encroach further from the traveled way and a 30 foot recovery area might not be adequate.'

And this section continues with a discussion of some of the tables that are in chapter 3, and then it says 'However, the use of those figures and tables by themselves results in numbers which are a general approximation. The curbs are based on limited empirical data base, then extrapolated to provide information for a wide range of conditions. The designer must keep in find [sic] site specific conditions, design speeds, rural versus urban locations, and practicality. The numbers from figure 3.1 or table 3.1 should suggest only the approximate center of a range to be considered and not a precise distance to be held as absolute.'
As stated earlier, there exists no substantial disagreement between the parties as to the nature and scope of the project, the studies which were performed, the existence of an approximately 60 foot generally level grassy area to the east of the northbound lanes of traffic and an embankment located at the far eastern edge of the "clear area," that concerns were raised by Mr. Johnston concerning guiderail placement which were responded to by Ms. Ricard and discussed at a pre-construction walk through at the site and, finally, that after considering various options the decision was made to replace the guiderail at its original location out of concern regarding the hazard posed by the embankment located at the edge of the grassy area and running generally parallel to the roadway. The primary point of contention was addressed in the expert testimony submitted by the parties.

Claimant's expert, Alan Gonseth, essentially argues two primary issues. First, that the decision to replace guiderail within the project area and, specifically, at the accident location was made without adequate study and lacked a rational basis in that there was no Region I inter-department study of the issue, no measurements were taken relative to the clear area and embankment present at the site, no topographical study was performed and that the response to the concerns voiced by Paul Johnston and William Logan was inadequate. Secondly, that the State failed to comply with certain provisions of the Highway Design Manual and relevant elements of the AASHTO Roadside Design Guide in that the clear area available was more than twice the required 30 foot minimum dimension and the hazard posed by the presence of the embankment beginning 67 feet from the edge of the traveled way was not such as to warrant the replacement of the guiderail.

As to the first argument, Mr. Gonseth does not reference any rule, regulation, guide or industry or engineering standard which requires a topographical study be performed prior to determining whether to place or remove guiderail in a particular area. Also, although there was no "Region I Inter-Department Study" performed the available proof demonstrates that the design plans were reviewed and approved by various groups and divisions within Region I. When Mr. Johnston raised concerns regarding guiderail placement he was responded to by Ms. Ricard, the project manager and design supervisor, and the subject was discussed and resolved at a pre-construction walk through meeting held at the project site. Although the claimant's expert describes the agreement of Messrs. Johnston and Van Auken as reluctant, the claimant has not alleged that there was no agreement among the participants at the meeting that the guiderail would be placed as originally designed. As to the adequacy of the response to the concerns expressed by Johnston and William Logan subsequent to the on site walk through meeting, neither Johnston nor Logan, whose memorandum was distributed only to Mr. Johnston, testified that they took any action or had any further discussions relative to guiderail placement on the Route 85 project subsequent to Mr. Logan's memorandum expressing his concerns. Finally, Ms. Ricard testified that she took measurements of the site, including the available clear area.

Concerning the embankment and clear area, claimant's expert references a survey performed by Boswell Engineering which established that the available clear area measured 67 feet in width and that the embankment beginning at the outer edge of the clear area had a slope of 1:2.3 (23 degree angle) falling 13 feet over a 30 foot horizontal distance. In comparison, according to Mr. Gonseth, NYSDOT publications establish a 1:4 slope (14 degree angle) as recoverable and a 1:3 slope (19 degree angle) is designated as "traversable." The Court would note here that, although not addressed by the claimant's expert, the proof relates that a slope greater than 1:3 is defined to be a critical or non-traversable slope which, if encountered by a motorist, is likely to result in severe damage or injury. As to the clear area, Mr. Gonseth states without meaningful contradiction that the clear area was 67 feet, more than twice the required minimum clear zone width and was sloped at a ratio which met or exceeded minimum DOT standards.

In response, the defendant states that the 30 foot clear zone dimension is a minimum allowable distance and not a mandatory direction. The parties refer to various sections of the Highway Design Manual and Roadside Design Guide. The State points most prominently to HDM § which states:
An important distinction should be noted between two types of hazards. Most hazards require a high speed impact to produce a fatality. The second type need only to be encountered at any speed to be potentially fatal. The designer should be aware of the distinction and provide extra protection when the hazard is a cliff, a deep body of water, a flammable liquids tank or some other similar hazardous feature. The extra protection should typically include the use of a more durable barrier system (preferably heavy post or rigid) than would normally be warranted. Even if the feature is beyond the desired minimum clear zone width (Section 10.2.1, step 5), serious consideration should be given to providing a durable barrier, and an explanation should be documented if extra protection is not to be provided and there is a reasonable expectation that vehicles will reach the hazard (emphasis in original).
Chester Burch, while not claiming that the embankment constituted a "cliff", argues that it was an "other similar hazardous feature" which required the placement of guiderail at the roadside in order to adequately protect the public. Mr. Gonseth for the claimant claims that the 1:2.3 sloped embankment did not constitute the type of "other" hazard contemplated in HDM §

Further, Mr. Burch opined that there was a reasonable belief that motorists would encounter the hazard/embankment in that a vehicle whose driver fell asleep or sustained a medical impairment traveling the posted speed limit of 55 m.p.h. or 80 feet/second would cross the available clear area and impact the hazard in approximately 1 second. In response, Mr. Gonseth states that the scenario described by Mr. Burch assumes the vehicle leaves the roadway at a 90 degree angle. That AASHTO and the Federal Highway Administration test guiderail at a 15-20 degree departure angle and, assuming such an angle of departure at 55 m.p.h., a vehicle would travel the full width of the 67 foot clear zone in 3.2 seconds. Thus, the claimant's expert concludes that there was no reasonable basis to assume an errant motorist would reach the embankment and, as a result, the guiderail constituted a greater hazard than the embankment.

With regard to the AASHTO Roadside Design Guide the defendant points to § § 3.1 and 3.3. As most relevant RDG § 3.1 suggests that the clear zone dimensions stated are based on limited empirical data and represent "only the approximate center of a range to be considered and not a precise distance to be held as absolute." Section 3.3 is entitled "Application of the Clear Zone Concept" and reads as follows:
A basic understanding of the clear zone concept is critical to its proper application. The numbers obtained from Figure 3.1 or Table 3.1 imply a degree of accuracy that does not exist. Again, the curves are based on limited empirical data which was then extrapolated to provide data for a wide range of conditions. Thus, the numbers obtained from these curves represent a reasonable measure of the degree of safety suggested for a particular roadside, but they are neither absolute nor precise. In some cases, it is reasonable to leave a fixed object within the clear zone; in other instances, an object beyond the clear zone distance may require removal or shielding. Use of an appropriate clear zone distance amounts to a compromise between maximum safety and minimum construction costs. Appropriate application of the clear zone concept will often result in more than one possible solution. The following sections are intended to illustrate the process that may be used to determine if a fixed object or non-traversable terrain feature warrants relocation, modification, removal, shielding or no treatment.
Mr. Gonseth responds that the language of § 3.3 of the RDG is merely a "catch-all" provision which refers only to unusual conditions or circumstances.

It is well established that the State has a nondelegable duty to adequately design, construct and maintain its roadways and guiderails in a reasonably safe condition (see, Gomez v New York State Thruway Auth., 73 NY2d 724; Friedman v State of New York, 67 NY2d 271; Weiss v Fote,

7 NY2d 579; Zalewski v State of New York, 53 AD2d 781). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (see, Tomassi v Town of Union, 46 NY 2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767 affd 51 NY2d 892). Claimant has the burden of establishing that the defendant was negligent and that such negligence was a proximate cause of the accident (see, Bernstein v City of New York, 69 NY2d 1020, 1021-22; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519).

It is equally well established that, in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (see, Friedman v State of New York, supra). "[S]omething more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public"(Weiss v Fote, supra at 588).

Courts have applied the adequate study and rational basis tests in numerous cases involving highway design including several cases where negligence was predicated on guiderail placement or on the failure to place guiderail where the claimant's expert opined it was necessary. In Schwartz v New York State Thruway Auth., 61 NY2d 955, the Court of Appeals affirmed the Appellate Division, Third Department's reversal of a judgment rendered in the Court of Claims which found the defendant to be 60% negligent for its failure to extend a guiderail an additional 11 feet to protect motorists not only from a precipice but also to coincide with rock outcroppings at the side of the road. In that case claimant alleged that a passing car veered into his path causing him to turn to the right onto the road's shoulder where he proceeded for some 150 feet before driving off a cliff into a ravine. The Court of Appeals held in Schwartz, supra, at 956 that the guiderail which was installed met the relevant standards in effect at the time of its construction and that the Thruway Authority's determination not to extend the guiderail an additional 11 feet "was a planning decision which, if made, would only have involved giving 'the public more complete protection' (Weiss v Fote, 7 NY2d 579, 584). Consequently, liability will not be imposed upon the Authority for failing to build a longer guiderail" (Schwartz, supra at 957). In the Third Department decision in that case the Appellate Division observed "[t]he design standard makes no reference to where guide rails were to begin or end. We are dealing here with government planning for public safety. The decision made by the Thruway's functionaries as to the placement of the guide rails was a quasi-judicial or discretionary one and its judgment must prevail unless there is some indication that due care was not exercised in the preparation of the design and placement of the guide rails or that no reasonable official could have adopted it" (Schwartz v New York State Thruway Auth., 95 AD2d 928, 929, citing Weiss v Fote, 7 NY2d 579, 586, and Waddingham v State of New York, 90 AD2d 855).

A similar result was reached by the Appellate Division, Third Department in Cipriano v State of New York, 171 AD2d 169 where the Court reversed a judgment in claimant's favor predicated upon claimant's allegation that the State was negligent in not installing a longer guiderail which would have protected claimant from the danger posed by a body of water, i.e., a brook running under the Thruway. The Court of Claims in that case had concluded that a longer guiderail was indicated based on the department guidelines which require guiderail where there exists a body of water which is over two feet in depth. The record in that case demonstrated that the body of water involved never averaged two feet nor was it normally more than two feet. The Appellate Division rejected the Court of Claims decision to extend protection to claimant on public policy grounds. As it had earlier held in Schwartz, supra, the Court stated "[w]hen highway design comports to the standard applicable at the time of construction or reconstruction, the Authority has met its duty unless there is some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it"(Cipriano, supra at 173; see also, Boyd v State of New York,103 AD2d 882; cf., Temple v Chenango County, 228 AD2d 938; Boyd v Trent, 262 AD2d 260).

Although it is not a case based on guiderail placement an interesting parallel to the instant case may be seen in Light v State of New York, 250 AD2d 988. In that case three persons were killed in a head-on collision on State Route 28 in the Town of Ulster, Ulster County. The claimants' ensuing negligence and wrongful death suit was premised upon the State's failure to install a median barrier in the area where the accident occurred and the absence of a barrier was claimed to be a proximate cause of the collision. The trial testimony and exhibits in that case demonstrated that the State's comprehensive reconstruction plan for the relevant section of the highway did not contemplate a barrier at the accident site even though the plan provided for the construction of such barriers along two other nearby sections of the highway. Claimants' expert alleged that the area where barriers were specified and those where they were not specified were indistinguishable and he opined that the median barrier should have been installed at the accident site. The Appellate Division, Third Department, fully cognizant of the arguments advanced by claimants' expert, held that "claimants proffered nothing - speculation and conjecture aside - to warrant a finding that 'due care was not exercised in the preparation of [this aspect of] the design or that no reasonable official could have adopted it' (Weiss v Fote, supra at 586; compare, Alexander v Eldred, 63 NY2d 460, 466)." Consequently, the Court found that the claimants had failed to satisfy their burden of proof. The Court further held at page 990 that the plan's provision for barrier installation in some areas and not in others "does not demonstrate that the decision to leave a gap in the barrier was the result of inadequate study, or was otherwise arbitrary or unreasonable." Finally, the Court noted that there was no "evidence that the subject area had been the locus of an unusual number of accidents, such as might have supported a finding that the State had notice of a dangerous condition requiring remedial action (see, Friedman v State of New York, 67 NY2d 271, 284; Patti v State of New York, 217 AD2d 882, 883), or had breached its duty to review the design ' in *** light of its actual operation' (Weiss v Fote, supra at 587)" (Light, supra, at 990).

Although the State has argued extensively on this motion that the application of §10.2 of the Highway Design Manual was not mandated on this Safe Trak project, which was neither new construction or reconstruction, one of the things which the State's engineer did consider on the issue of replacing the guiderail or moving it to the edge of the slope was § That section in relevant part, provides:
Vaulting may be possible where a barrier has been flared away from the road, past the shoulder break and down a slope. Under these conditions, a high speed vehicle diverging from the road at a high angle may not drop down to the slope until it is beyond the barrier. To avoid this problem, align guide rail posts at least 0.45 m in from the shoulder break. Alternatively, place the guide rail at least 4 m past the shoulder break, provided the slope is not steeper than 1:10 or, in the case of cable barriers, 1:6. (Tests have indicated that cable engages vehicles better than other rail systems do on a 1:6 slope.) While it is desirable to provide as much clear area as possible between the traveled way and an obstacle including guide rail, the condition of the surface is of critical concern. (Unstabilized surfaces, including grassed areas, may become uneven over time, causing an errant vehicle to bounce and be more likely to vault a guide rail. Additionally, when guide rail is set well back from the road there is an increased possibility of high angle impacts with consequent increases in accident severity and penetration rates. Consequently, preference should normally be given to locating guide rail close to the edge of shoulder.)
Claimant's efforts to discredit the author of this provision of the manual by citing his lack of prior highway design engineering experience is unavailing. Assuming for arguments sake that the provisions of § 10.2 should have been applied to this Safe Trak project at all, the State's engineers cannot be faulted for their reliance upon the revised guidelines, including §, nor could they be expected to look beyond the manual's provisions or to investigate the credentials of the guidelines's author or to question his conclusions unless such provisions appeared to lack any reasonable engineering basis. Claimant offered no proof in the form of alternative engineering data or studies to demonstrate the inherent unreasonableness of the guideline. It cannot be said on this record that § is inherently unreasonable and should not have been considered in the State's decision to place the guiderail at the shoulder's edge.

Despite initial disagreement among the various engineers employed by DOT as to the best location for the guiderail or elimination of guiderail at the subject location, it was ultimately determined as a matter of engineering judgment that the guiderail itself posed less of a safety hazard than the non-traversable slope at the end of the clear zone. It was further determined that placement at the shoulder's edge was preferred over any other suggested location as providing the most complete protection to the motoring public. Reasonable minds may disagree as to whether the guiderail should have been replaced and, if so, which location would have offered the greatest level of safety to the public. Such disagreement, however, does not render the State's decision to replace the guiderail at the shoulder's edge an irrational one in light of all of the conditions present at the site. Nor may this Court substitute its judgment for that exercised by the governmental officials entrusted with the duty to make such decisions especially where, as in this case, the decision finds support in relevant provisions of the Highway Design Manual and AASHTO Roadside Design Guide both of which provide that decisions concerning guiderail placement or elimination and appropriate clear zone dimensions require the application of engineering judgment to reconcile the competing interests of cost, safety and convenience. Finally, none of the unauthenticated pre-1994 police accident reports which claimant submitted as Exhibit E suggest that the subject guardrail at mile post marker 85-1101-1233 was a dangerous condition requiring specific study and/or remediation.

Accordingly, the Court determines that defendant has demonstrated a prima facie entitlement to summary judgment on the issue of liability based on qualified immunity. The burden therefore shifted to claimant who has offered nothing more than a conflicting expert's opinion concluding that the State's study was inadequate and the decision to replace the guiderail was irrational. As the Court of Appeals stated long ago in Weiss v Fote, supra, at 588 "something more than a mere choice between conflicting opinions of experts is required ...". Nothing more was offered here.

Defendant's motion is granted dismissing the claim and all other motions and cross- motions are denied.

April 23, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion for summary judgment dated November 20, 2000;
  2. Affidavit of Michael C. Rizzo sworn to November 20, 2000;
  3. Affidavit of Chester J. Burch sworn to November 20, 2000 with Exhibits 1-19;
  4. Notice of cross-motion for partial summary judgment and cross-motion to dismiss affirmative defenses dated January 10, 2001;
  5. Affidavit of Kevin A. Moss in opposition to motion for summary judgment and in support of cross-motion for summary judgment sworn to January 9, 2001;
  6. Affidavit of Alan T. Gonseth, P.E., sworn to January 5, 2001 with curriculum vitae and exhibits A-N;
  7. Reply affidavit of Michael C. Rizzo sworn to February 1, 2001 with Exhibits 20-23;
  8. Reply affidavit of Chester J. Burch sworn to February 2, 2001;
  9. Affidavit of Timothy P. Bonnier sworn to January 29, 2001;
  10. Reply affidavit of Kevin A. Moss in support of cross-motion for summary judgment sworn to February 6, 2001 with exhibits O-P.

[1]BAC reported in Trooper Bonnier's EBT testimony at p. 136.