GURSKI v. THE STATE OF NEW YORK, #2001-016-216, Claim No. 100599
Claimant fails to prove highway maintenance vehicle negligently caused
collision with her automobile, without necessarily having to reach the issue of
whether recklessness is the proper standard of fault.
EILEEN GURSKI Caption has been amended sua sponte to show the only proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Irving Serota, Esq.
Eliot Spitzer, Attorney GeneralBy: Denis J. McElligott, AAG
January 7, 2002
See also (multicaptioned
This decision follows the liability trial of the claim arising out of Eileen
Gurski's vehicular accident on the morning of June 24, 1998 at about 10:00 a.m.
Ms. Gurski was traveling eastbound in Suffolk County on Veterans Memorial
Highway, a four-lane divided highway, when she was hit by, or collided with, a
driven by an employee of the State Department of Transportation (DOT). There
were three witnesses at the trial: the claimant testified on her own behalf,
and defendant called the tractor driver and the driver of a white
that saw the accident.
Gurski testified that she had left her home in western Suffolk, turned onto
Veterans Highway and headed eastbound
for an appointment in Patchogue. She remained in the right lane for about two
and a half miles and then moved to the left lane: "I changed lanes, so I could
have a better view of the road." Claimant said she traveled in the left lane
for about one half a mile, driving her 1992 Mercury Topaz at 50 miles per hour.
I was in [the left lane] traveling eastbound. The construction vehicle
was to my right in the right-hand lane. I saw the construction vehicle getting
closer to me. I tried to apply my brakes, but it was too late, and just as I
had tried to apply my brakes, the construction vehicle was...changing lanes and
Claimant's complete description of the DOT tractor was "a construction
vehicle...[that was]...[b]etween yellow and orange ...very bright...very big
Gurski maintained that: i) she never crossed the solid white line dividing
the left lane from the center median area; and ii) while she did observe a third
vehicle, a white truck ahead of her in the right lane, she never saw it move
from the right lane.
The driver of the state vehicle was Anthony Beato. His job title was highway
maintenance worker; he drove or operated five pieces of equipment for the
Department. On the day in question, he was driving a Ford farm tractor mower
utilized to cut grass; the mower had retractable blades on its sides and rear.
Mr. Beato described the tractor as orange or yellowish orange
, 8 to 10 feet high, but at 3,000 pounds, lighter than a mid-size automobile.
As of mid-morning, Beato was on the shoulder off the right lane of Veterans
Highway eastbound, taking his break. He returned to the road and waited for the
light at the highway's intersection with Broadway Avenue [sic], then continued
east. Up to that point, Beato was followed, as is customary, by a back-up
"attenuator" truck to protect the DOT vehicle. It would absorb any possible
crash impact and would alert drivers behind it with an arrow board.
The attenuator driver had just taken a break on the side of the road with
Beato was then about to cut the grassy median area on Veterans Highway,
"so that people can actually differentiate the guiderails so that they don't hit
them." He had pulled away from the traffic light, but when he looked in his
rearview mirror after about 100 feet, his back-up was not visible; it had taken
a left at the light, northbound onto Broadway, perhaps because its driver
misunderstood the left signal of Beato, who wanted only to move to the left, not
In any event, Beato still intended to switch over to the left lane.
Ordinarily, he would use his back-up as a "blocker" and change lanes with him.
The tractor was a slow-moving vehicle mainly used for cutting grass and fields;
according to Beato, it had a top speed of 25-30 miles per hour.
Picking up the narrative with
Beato realizing he had lost his back-up attenuator, and introducing a third
vehicle, another truck:
My back-up truck was gone...Now, I started to get over to the left, because
there was a lot of traffic, because I wanted to get over to the meridian where I
was cutting. I slowed up. Traffic was well slowed up behind me. I looked over
my shoulder and there was a box truck behind me. I had my signal on. I kept
looking over my shoulder. He kept waving me on...finally, I went, and when I
did go, a car came from behind the truck...rather quickly around, and there was
no way I could get out of the car's way, and it hit the side of my
Thomas Sneyd, at the time, was driving the white box truck for a chemical
pollution control company and testified that he saw the accident:
I was behind the tractor, and we weren't going too fast...30, 35, maybe...I
was going to change lanes, to the left lane to pass the tractor. So I put on my
directional, changed lanes. As I got into the left lane, the tractor then put
on its left turn signal. So I figured I'll be a nice guy, I'll let him come
over in front of me, because nobody else will...So I waved him over...He got
about two-thirds of the way into the left lane...and then all of a sudden a car
came zipping by me on the left, on the shoulder, and as it got past me, it
swerved over in front of me and hit the tractor... [I]t was coming off the
Mr. Sneyd, a disinterested observer, had a
matter-of-fact demeanor, and was a credible witness, although in a few instances
when his recollection was unclear, he remarked that the accident happened "a
long time ago." While Beato was not in as good a position to observe the
incident as it unfolded and of course lacked Sneyd's neutrality, his testimony -
- "a car came from behind the truck [Sneyd's]" - - was fundamentally consistent
with Sneyd's version of events.
Ms. Gurski's account was considerably different, shifting responsibility away
from herself. I did not find her sufficiently credible.
Claimant's testimony was sprinkled with "I don't recall's." Three or
four times when asked if there were any vehicles between her and the DOT
tractor, claimant responded she could not remember, which is inconsistent with
her description of the traffic that weekday as light to medium. From the
Broadway light to the accident, assume claimant was traveling 50 m.p.h., while
the tractor was going 25 or 30 m.p.h. She could have covered a half-mile in the
same amount of time it took Beato to cover a quarter-mile, or a little more.
Gurski's testimony that she first noticed the tractor prior to the intersection
of Broadway and Veterans Highway is hard to reconcile with the fact that the
collision occurred one-half mile east of the stoplight. Granted, the vehicle
was tall and bright-colored; Gurski may have noticed it well ahead of her.
With that said, the testimony of defendant's witnesses is not without potential
- When Sneyd waved Beato over, each truck driver testified that a few seconds
elapsed before Beato began to move leftward.
Beato said "a couple of seconds...about...eight, nine, ten." Sneyd remembered it
as "[a] couple of seconds...[f]ive seconds, ten seconds tops." The passage of
time can of course be difficult to judge, but assuming that claimant is closing
ground on the two slow moving trucks at 25 miles per hour; that is equivalent
to 37 feet per second. Three seconds would be about 110 feet, five seconds 185
feet, and in 10 seconds, 370 feet would be covered. That would be quite
significant if a person in the right lane checked the left lane and then waited
a number of seconds to move over. But in this case, Sneyd's vehicle was
blocking the left lane in order to allow Beato's tractor to move over in front
- Sneyd did say that once the DOT truck had moved over to the left lane, he
was "going to start to change lanes back into the right."
Nonetheless, no probative testimony was elicited that Sneyd had actually
shifted sufficiently rightward to enable claimant to safely come around him on
- On cross-examination, when asked whether claimant was in the left lane at all,
Sneyd answered that claimant was "[p]artially in the left lane." But that
response is not at odds with Sneyd's testimony that she "was coming off the
- Sneyd termed the grassy median area a shoulder, but claimant never developed
, inquiring as to its width.
- That Beato lost sight of his back-up attenuator could have some significance,
but no testimony was adduced to place this in a broader context, for example, as
a violation of a DOT directive or policy.
In evaluating the above,
claimant is unable to prove by a preponderance of credible evidence that
defendant's negligence was the proximate cause of the collision. In fact, I
conclude that it was Ms. Gurski's driving that caused the
accident.Vehicle and Traffic Law Article 23 (§1100 et
Vehicles engaged in highway maintenance are exempt from a negligence standard
and are instead subject to the higher threshold of reckless disregard. Vehicle
and Traffic Law §§117-a and 1103(b);
Riley v County of Broome
, 95 NY2d 455, 719 NYS2d 623
though I have concluded that Ms. Gurski cannot prove that defendant is liable to
her in negligence, it is not inappropriate here to address the defendant's
contention that its behavior is actionable only if reckless.
Defendant advanced this higher standard for the first time at trial. Claimant
asserted that the defense must be affirmatively raised at the pleading stage.
The cases are otherwise. See
McDonald v State of New York
, 176 Misc 2d 130, 673 NYS2d 512 (Ct Cl
1998), relying upon Ferres v City of New Rochelle
, 68 NY2d 446, 510 NYS2d
Claimant points to the language in §1103(b) that the maintenance vehicle
actually be "engaged in work on a highway" to infer that vehicles "traveling to
or from such [maintenance] operations" are not protected by the higher standard
for fault. However, as the Court of Appeals stated in
, "there is no credible argument that the Legislature
only had designated ‘work areas' in mind when it adopted section 1103(b)."
95 NY2d at 468; 719 NYS2d at 630.
Saarinen v Kerr
, 84 NY2d 494, 501, 620 NYS2d 297, 300 (1994) defined the
reckless standard for such a driver as follows:
It requires evidence that "the actor has intentionally done an act of an
unreasonable character in disregard of a known or obvious risk that was so great
as to make it highly probable that harm would follow" and has done so with
conscious indifference to the outcome (Prosser and Keeton, Torts §34, at
213 [5th ed.]; see, Restatement [Second] of Torts §500).
No fair view of the evidence would result in claimant satisfying
* * *
In view of the foregoing, the claim of Eileen Gurski (no.100599) is hereby
LET JUDGMENT BE ENTERED ACCORDINGLY.
January 7, 2002
HON. ALAN C. MARIN
Judge of the Court of Claims
Claimant's exhibits 1 and 2 are photographs
intended to show the impact on Gurski's Mercury.
Claimant's exhibit 4, the DOT internal
document on the accident supplies no additional admissible facts.