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
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
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,
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
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
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.
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
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.
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]).
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.
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
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
, 241 AD2d 787, 660 NYS2d 211 (3d Dept 1997), lv denied
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
, sheets 191 -200 & 206); the ramp was re-graded to be
less steep (id.
sheets 209-226); a guide rail and concrete barrier were
, sheets 206 & 163R1),
as was drainage
, sheet 183). Sight lines were reviewed; and not only trees, but a
gas station was removed (def exh D). Lighting was relocated and surfaces
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:
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
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
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
, 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
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
An acceptable alternative to the ball-bank test is one based on the table in
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
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
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
, 10 AD2d 319, 200 NYS2d 261 (1st Dept 1960); Hough v State of New
, 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
. All motions not previously ruled upon are deemed
LET JUDGMENT BE ENTERED ACCORDINGLY