New York State Court of Claims

New York State Court of Claims

APFEL v. THE STATE OF NEW YORK, #2001-016-050, Claim No. 96414


Synopsis



Case Information

UID:
2001-016-050
Claimant(s):
RICHARD APFEL and JANET APFEL, Individually and as Administrators of the Estate of Lauren Apfel, and Guardians of Brian Apfel and Beth Apfel
Claimant short name:
APFEL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96414
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Elkind, Flynn & Maurer, P.C.By: Ira M. Maurer, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Victor J. D'Angelo, AAG
Third-party defendant's attorney:

Signature date:
June 29, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Lauren Apfel, the daughter of Richard and Janet Apfel, was killed when the minivan their family was traveling in was struck by another van near the George Washington Bridge in upper Manhattan just after 5 o'clock in the afternoon of September 8, 1996.
The Apfels and their two other children were injured in the accident. It is undisputed that Richard Apfel's driving was blameless and that the collision occurred because the other driver lost control of her vehicle and careened off an exit ramp into the Apfels' lane of travel. This is the decision on liability following the trial therefor.
The driver of the second vehicle, Linda Weisberger, was exiting the southbound Henry Hudson Parkway in order to take the George Washington Bridge westbound across the Hudson River. For this connection, the Henry Hudson exit ramp is taken to Riverside Drive, which, in a couple of hundred yards, leads to the entrance ramp for the George Washington Bridge (cl exh 2). Riverside Drive is two lanes in each direction; the Apfels had been driving north on Riverside Drive, in the right-most lane, when Weisberger's out-of-control vehicle smashed into them.
Claimants challenge the
design and plan of the Henry Hudson southbound ramp. Consequently, the greater part of the testimony at trial was elicited from experts: the claimant called Nicholas Bellizzi, a consulting engineer (and accident reconstructionist); the defendant called Richard Hermance, an accident reconstructionist and Bruce Savik, a consulting engineer. In addition, Richard and Janet Apfel testified, as did Ms. Weisberger.
***

The Henry Hudson Parkway, reserved for passenger vehicles, runs along the Hudson River in Manhattan, from 72
nd Street north through the Bronx to New York City's boundary with Westchester County. Originally built in the late 1930's, the state retained an outside engineering firm in 1976 preparatory to making "safety improvements and [re-signing]" the Parkway (cl exh 8, p.2). In 1982, work was begun to construct these improvements; when completed, maintenance responsibilities were turned over to the City of New York effective May 27, 1986[1].
For our purposes, the exit ramp area was the same on the day of the Apfels' accident as when the contract improvements were completed ten years earlier in 1986. A motorist driving south on the Henry Hudson intending to use the George Washington Bridge will come upon a group of signs just before an exit leading off to the left, which is demarcated by, among other things, a lined, triangular area extending back out toward the southbound traffic - - in highway engineer parlance, a gore. Ahead of the gore to the left of where an exiting car will drive (a solid line protects exiting cars from southbound thru traffic) is a black-on-yellow sign mounted on two poles, with the word "EXIT" above "30 M.P.H."[2] The sign is visible in a photograph taken in April of 1998 (cl exh 3C). Some foliage may partially block its text, but were that a factor on September 8, 1996, such, as noted, is the responsibility of the City of New York.
Beyond the 30 mph advisory
, but just before the gore, are two large overhead white-on-green route signs. The one to the right over thru traffic, reads "H. Hudson Pkwy south." To the left over the deceleration lane, the other route sign has two arrows pointing left, with yellow print saying, "EXIT ONLY." This sign indicates "EXIT 14-15" and that the exit leads to Riverside Drive, the George Washington Bridge and the Cross-Bronx Expressway; the latter being the eastbound route off the bridge (see cl exh 2).
This exit ramp carries two lanes of traffic. Initially it curves left, then runs as a straightaway and finishes with a curve to the right as it enters Riverside Drive (cl exhs 2 and 4D).
Along the left lane of the exit ramp following the curve right is a low railing and a wide shoulder area crossed with stripes. At the end of the ramp, where the guide rail ends on the left are yield and no-left turn signs mounted one on top of the other on a light stanchion. There is also a yield sign for cars in the right lane at the end of the ramp on the right side.
At the intersection, the lined shoulder area becomes very wide as it comes out to the point of the gore, which extends several feet past the yield sign into the road before the right lane of Riverside Drive southbound is intersected.

If the motorist bears to the left of a small triangular island (cl exh 4B), and not to the right as Weisberger did, he or she is then in a position to make a left turn. Such turn is controlled not by a yield sign, but with a stop sign, inasmuch as the driver would be crossing two lanes of southbound traffic to head north on Riverside Drive.[3]

In addition, running parallel, and across a thin, grass median to the right of the two-lane ramp is a single lane (cl exhs 4B and 4G), which also deposits cars onto southbound Riverside Drive. These were cars that had been driving northbound on the Henry Hudson and who exited at the same latitude as Weisberger (cl exh 2). While this lane on the right may add to the complexity and unusualness of the exit layout, it also alerts the motorist in the two-lane ramp that the merge into Riverside Drive requires one's full attention. There is also a yield sign, the third one in this immediate area, mounted to the right of the single lane.

The exit ramp in question is 800 to 900 feet long. The only other sign within the ramp is located midway or perhaps a third of the way from the end of the ramp (cl exh 3E). It informs the driver to keep right for the entrance to the GW Bridge. In the opinion of Savik, the defendant's engineer, the driver's line of sight was as follows: "I certainly feel that from a distance quite a ways back on the roadway, you can see far enough ahead to see the yield sign that's on the left. As you get closer you can see the yield sign on the right. You also see the pavement markings that indicate a bend to the right, as shown by the white pavement markings on your left-hand side, and that's visible from quite a ways back. If it's obstructed by a car at that point, then the car itself – the alignment would indicate that it goes to the right."
At that location, Riverside Drive carries traffic north- and southbound, two lanes of each, separated by a double yellow pavement line, which in the photographic evidence is plainly visible (cl exhs 3G and 3H). Across the Drive is a large embankment and overpass (cl exh 5; def exh B) - - one more indication that there is a T-intersection preventing the driver from going straight.
***
The claimants' position
is that Weisberger would not have lost control of her vehicle and thus hit the Apfels minivan if she did not have to unexpectedly brake hard. According to their expert engineer, such was caused because the signage on the ramp did not adequately prepare the driver for an abrupt merge into Riverside Drive, a merge without the benefit of an acceleration lane in the context of an unusually configured two-lane exit ramp.[4] In short, Weisberger was going too fast for the ramp.
In Bellizzi's opinion, there should have been a 20 mph sign placed on the ramp and a curve sign to prepare the driver for the curl to the right in the final approach to Riverside Drive.
The 20 mph speed was determined by Bellizzi using what is known as a ball-bank test. A ball-bank device is essentially a meter with a water-filled bubble in the center that is affixed to the vehicle as it moves through the curve. The test is performed on dry pavement (see 17 NYCRR §231.2[b][2]).
Highway planners do, however, keep in mind a different, higher speed than the posted one, namely the "critical speed,"
the speed up to which a driver can safely negotiate, for example, a curve. It is realistic about how motorists actually drive. Bellizzi never quite specified the critical speed for the ramp, suggesting it is 24 or 25 miles an hour: "Had that been a twenty-mile-an-hour advisory speed and the vehicle was going, let's say, twenty-four or twenty-five, this accident wouldn't have happened."
Bellizzi concluded that Weisberger was going 34 mph when she braked; defendant's accident reconstructionist essentially agreed – in Hermance's opinion, she was driving 35 mph at the time.
Weisberger's own testimony was rather hazy as to her vehicle's speed. She thought she was going 15 mph, or 15 to 20, or maybe faster when she tried to stop. She could not remember seeing the 30 mph sign just before entering the ramp, she did not know the speed limit of the Henry Hudson Parkway, nor could she remember if she was going less than 50 mph on the Parkway. She first said she was going 15-20 mph when exiting the Parkway, then said, "I might have been traveling a little faster as I exited... Probably no more than thirty... I think the fifteen to twenty miles an hour was ... my speed as I was coming down the ramp."
Weisberger acknowledged that she knew Riverside Drive was a city street, and not a highway, although she had, earlier in her testimony, expressed surprise "that there was no lane for me to just ease into." Weisberger agreed that the yield sign meant that Riverside Drive traffic had the right of way; it was her intent to come to a stop. She testified that she initially got on the ramp in its left lane, but could not recall if she remained in that lane.
Weisberger described the weather on that September 8 as "foggy and damp, visibility wasn't great; it had been raining." She recalled having her windshield wipers and headlights on. Ms. Weisberger added that "it was really wet...I believe that...the water on the road...caused the...car to hydroplane...when I put my foot on the brake...it just didn't stop."
***
The state is under a duty to design and construct its highways to be reasonably safe for the driving public
, but the state is not an insurer: recovery against it will not lie unless the accident is attributable to its negligence. Redcross v State of New York, 241 AD2d 787, 660 NYS2d 211 (3d Dept 1997), lv denied 91 NY2d 801, 666 NYS2d 563 (1997). Moreover, the state is entitled to qualified immunity for highway design and planning that is the result of a deliberative decision-making process. Weiss v Fote, 7 NY2d 579, 200 NYS2d 409 (1960); Friedman v State of New York, 67 NY2d 271, 502 NYS2d 669 (1986). The Court of Appeals, in its Weiss decision, declined to look behind the ordinary performance of planning functions by officials who were so entrusted; the Legislature intended to place such matters in the hands of experts, not the trier of fact in a courtroom. This immunity may only be overcome with proof that the highway design in question was effected without adequate study, or lacked a reasonable basis. Furthermore, after such a design or plan is implemented, the state is "under a continuing duty to review its plan in the light of it actual operation." Friedman, 67 NY2d at 284, 502 NYS2d at 675, quoting from Weiss, 7 NY2d at 587, 200 NYS2d at 415.
The claimants initially pointed to the aforementioned study done in 1976 (cl exh 8). Vastly more detailed are the actual contract plans therefor, which include notations in those instances where what was done varied from the written plan (def exh C). The contract shows that: over a dozen signs were placed in or about the exit ramp area (id., sheet 239); the alignments for the center line were evaluated and repositioned (id., sheets 171-180); pavement markings, including striping and gores were redone and improved (id., sheets 191 -200 & 206); the ramp was re-graded to be less steep (id. sheets 209-226); a guide rail and concrete barrier were improved (id., sheets 206 & 163R1), as was drainage (id., sheet 183). Sight lines were reviewed; and not only trees, but a gas station was removed (def exh D). Lighting was relocated and surfaces re-asphalted (id.).
In the defendant's view,
cars come off the Henry Hudson Parkway initially slowed down by the 30 mph sign, and their speed is further adjusted downward by the impending T-intersection and its yield sign (or signs), which is visible to the driver from at least 400 feet away. Under the Vehicle and Traffic Law:
[A] vehicle approaching a yield sign shall...slow down to a speed reasonable for existing conditions or shall stop if necessary....at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering the intersection. [§§1142 & 1172].
In addition, the driver has any number of indirect indicators of what is ahead: pavement markers, the guide rail and concrete divider, and the mid-ramp sign informing traffic for the George Washington Bridge to bear right. The rules and regulations of New York State provide that: "Warning sign use should be kept to a minimum, consistent with requirements for safety. Unnecessary use tends to cause disrespect for all warning signs, and detracts from their
effectiveness." Section 230.1(a) of the Manual of Uniform Traffic Control Devices (17 NYCRR §200 et seq: the "Manual").
The defendant's two experts, Hermance and Savik, were convincing in their assertion that a driver could see the ramp's intersection with Riverside Drive from over
400 feet away, a distance unquestionably sufficient for a proper adjustment. To that effect, the photograph that is claimant's exhibit 3E shows a good long line of sight to the intersection from some distance before the sign advising drivers headed for the bridge to keep right.
The defendant has no proof that it conducted a ball-bank test.
However, claimants cannot point to any regulation in the Manual or other authority, that requires such test. Secondly, claimants are not sufficiently persuasive that the Manual's curve signs and speeds apply to a ramp leading to a T-intersection at which drivers are directed to yield: "A ball-bank indicator can be used to measure the combined effect of forces acting on a vehicle as it travels through a horizontal curve" (17 NYCRR §231.2, emphasis supplied). Compare Rittenhouse v State of New York, 134 AD2d 774, 521 NYS2d 824 (3d Dept 1987), which involved a series of S-curves on a two-lane rural highway for which a ball-bank test had been utilized to confirm the posted, advisory speed sign.[5] Weisberger was well aware, of course, that she was not simply driving along a thru path of traffic, but was exiting a southbound route with the intent of coming out of it in a westbound direction.
An acceptable alternative to the ball-bank test is one based on the table in the Manual.[6]
But the two sides disagreed on the applicable curve radius: 190 feet in the claimants' opinion, as against 222 feet on the part of the defendant. With a 222- foot radius and a higher coefficient of friction, Bellizzi confirmed that the customary calculation produces a critical speed of just under 41 miles per hour.
Claimants submitted a six- or seven- minute videotape of traffic moving through the ramp onto Riverside Drive (exh 5). The tape was shot two months after the accident, mid-week in the early afternoon of a clear day. To this viewer, the cars negotiated the turns with little fuss; some braked, some were able to glide into Riverside Drive through a gap in the traffic. If anything, the two lanes of the ramp in question moved more smoothly than the single lane to its right. One car in the two-laned ramp edged left and stopped completely within the striped gore – perhaps uncertain as to the route to take or even contemplating an illegal left turn and then thinking the better of it; but more to the point here, this driver had no problem braking and controlling his or her speed.
The bigger picture of course is the accident history. It is not disputed that there were no accidents of this kind from the date contact D250273 was completed in 1986 until Ms. Weisberger's spin-out
over ten years later. See, for example, Kaplan v City of New York, 10 AD2d 319, 200 NYS2d 261 (1st Dept 1960); Hough v State of New York, 203 AD2d 736, 610 NYS2d 659 (3d Dept 1994).
***
In view of the foregoing: no failure of design on the part of the State of New York occurred here;
defendant bears no responsibility for the terrible misfortune which befell the Apfel family in the late summer of 1996; it was Ms Weisberger's negligent driving - - her excess speed and inattentiveness -- that caused her to lose control of her vehicle. Claimants have thus failed to prove their case by a fair preponderance of the credible evidence, and their claim (no. 96414) is dismissed. All motions not previously ruled upon are deemed denied.

LET JUDGMENT BE ENTERED ACCORDINGLY




June 29, 2001
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] Exhibits C (contract D250273) and D, respectively, from defendant. Note that the Order transferring maintenance jurisdiction to the City of New York, which is defendant's exhibit D, covers the Parkway from 160th Street to Dyckman Street, which includes the area in question.
[2] A sign with a black text on a yellow background conveys a speed that is advisory (17 NYCRR §§231.2 & 231.8). Maximum speed limits are indicated on a white background, in black text (17 NYCRR §212.2).
[3] The stop sign is indicated in defendant's exhibit C, sheet 239R1; see sheet 228R1 for the explanation of the numerical code.

[4] Defendant's Savik concurred that the layout of the ramp was unusual. Nonetheless, on that note, it might be observed that, apparently, per claimants' exhibit 2 (the map of the George Washington Bridge area): i) not all that dissimilar is what confronts traffic moving eastbound on the bridge and exiting south onto the Henry Hudson Parkway -- the exit ramp is two lanes which, while not a T-intersection (to a local street), does run directly into southbound traffic; and ii ) Weisberger testified that she began that September 8 traveling across the bridge eastbound and then headed north on Riverside Drive and the Henry Hudson Parkway - - an S-curve through which the driver must steer right, left and then right.

[5] Bellizzi conceded that the curve warning sign in question, under the Manual, would not in any event be a mandatory directive.
[6] See 17 NYCRR 231.2(a) and figure 231-1.