New York State Court of Claims

New York State Court of Claims

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.

Case Information

EILEEN GURSKI Caption has been amended sua sponte to show the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption has been amended sua sponte to show the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Irving Serota, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Denis J. McElligott, AAG
Third-party defendant's attorney:

Signature date:
January 7, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)

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 tractor mower
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 truck 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. She recalled:
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 hit me.[1]

Claimant's complete description of the DOT tractor was "a construction vehicle...[that was]...[b]etween yellow and orange ...very bright...very big wheels...very tall."

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.
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 turn left.
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 vehicle.[2]
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 left-hand shoulder.

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 flaws:

- 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 of it.
- 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 his left.
- 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 left-hand shoulder."
- Sneyd termed the grassy median area a shoulder, but claimant never developed the issue,
e.g., 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 seq)
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 (2000). Even 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 57 (1986).
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
Riley, supra, "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 this standard.
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In view of the foregoing, the claim of Eileen Gurski (no.100599) is hereby

January 7, 2002
New York, New York

Judge of the Court of Claims

[1] Claimant's exhibits 1 and 2 are photographs intended to show the impact on Gurski's Mercury.

[2] Claimant's exhibit 4, the DOT internal document on the accident supplies no additional admissible facts.