New York State Court of Claims

New York State Court of Claims

HARSHMAN v. THE STATE OF NEW YORK, #2001-019-002, Claim No. 98800


Karin Harshman was killed as the result of a collision between her vehicle and a State Trooper's vehicle on August 17, 1996 at the intersection of County Route 39 and Tuckahoe Road in Southampton, New York. Claimants' argued that the State Trooper was negligent in the operation of his Troop vehicle. The Court determined there was no basis for the State's liability and concluded that decedent's own negligence was the sole proximate cause of the accident.

Case Information

STEFAN HARSHMAN, as Executor of the Estate of KARIN HARSHMAN, Deceased and STEFAN HARSHMAN, Individually
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:
LAW OFFICE OF RICHARD DUIGNANBY: Mary Bergmann, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Alan B. Berkowitz & John Shields, Assistant Attorney Generals, of counsel
Third-party defendant's attorney:

Signature date:
January 22, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


This Claim is brought by Stefan Harshman as Executor of the Estate of Karin Harshman, who was killed on August 17, 1996, as a result of an automobile accident between a vehicle driven by Karin Harshman and a New York State Police Troop car. This collision occurred at the intersection of County Route 39 and Tuckahoe Road located on Long Island in Southampton, New York. The trial of this Claim, heard on October 2 and 3, 2000, was bifurcated and this Decision addresses the issue of liability only.

The relevant facts, as found by the Court after trial, are discussed below.

On Saturday, August 17, 1996, New York State Trooper Kevin Drew, employed by the State Police since 1990, was driving a New York State Troop vehicle number 2L81, a four-wheel drive Chevrolet Blazer. This was a K-9 Unit, and the Trooper was working a modified B-Shift, 7:00 a.m. to 7:00 p.m., as part of a massive New York State Police investigation into the crash of TWA Flight 800. Trooper Drew was searching the south shore of Long Island for possible debris and wreckage from that ill-fated flight. At approximately 3:50 p.m. the Trooper was traveling westbound on County Route 39 at the intersection of Tuckahoe Road in Southampton, New York. Route 39 is a County road which travels in an east/west direction with two lanes of westbound travel and one lane of travel eastbound. Tuckahoe Road intersects Route 39 with two lanes of travel and runs in a northeast and southwest direction and, as such, is not truly perpendicular to Route 39 at this intersection. Traffic is controlled at the Tuckahoe Road-Route 39 intersection by way of stop signs controlling Tuckahoe Road traffic traveling either northeast or southwest, requiring said traffic to stop and yield to through traffic on Route 39 before entering or crossing the same. Trooper Drew testified that at the time of the accident that he was traveling westbound with no traffic immediately in front of him, but a moderate degree of traffic behind him. His vehicle was positioned in the passing lane and his speed was approximately 50 mph. The speed limit in this area was 55 mph. At this time the Trooper noticed that the eastbound traffic was slow at best representing typical weekend "Hampton's traffic"[1]; bumper to bumper, stop and go. Approximately 100 feet east of Tuckahoe Road, Trooper Drew saw a red Honda, which he later learned was being operated by Karin Harshman, traveling in a northeast direction crossing the eastbound lane of traffic at Tuckahoe Road. As soon as the Trooper observed decedent's vehicle at the centerline of Route 39 he started to maneuver his vehicle from the passing lane to the driving lane. However, the Honda stopped only momentarily at the centerline of Route 39 and then pulled directly in front of the Troop vehicle. This happened so quickly that the Trooper had barely enough time to remove his foot from the accelerator and had no time to brake, blow his horn, or take any other evasive action prior to impact. As a result, Trooper Drew's vehicle struck the Harshman vehicle at the center of the passenger's side and heavily damaged the same. The speed of the Troop vehicle at impact drove both vehicles approximately 70 feet where they ultimately came to rest on the shoulder of the northwest corner of the Route 39/Tuckahoe Road intersection. Karin Harshman died as a result of the injuries she received in this accident.

Trooper John Whittall, a 14-year veteran of the New York State Police, Troop L Safety Officer and a certified accident reconstruction expert, testified on behalf of the State relative to his investigation of this accident. Trooper Whittall took photographs, measurements and collected evidence at the scene. From that information and investigation, he was able to determine that the pre-impact speed of Trooper Drew's vehicle was 49.52 mph, and that decedent's vehicle was traveling at approximately 7.04 mph. Upon impact, the Troop vehicle's speed was reduced to 38 mph and the speed of decedent's vehicle was increased and propelled to 32 mph. The skid marks at the scene also confirm Trooper Drew's testimony that at the time of impact the Troop vehicle was moving from the left to the right-hand lane and continued that drift to the right after impact, pushing the vehicles to their ultimate resting place at the northwest shoulder of the Route 39/ Tuckahoe Road intersection. Trooper Whittall testified that based upon standard and accepted theories of accident reconstruction, Trooper Drew's perception and reaction time would, under ideal circumstances, be approximately 1.6 seconds from perception to response. He further testified that at 50 mph a vehicle travels approximately 72 feet per second. As such, Trooper Whittall calculated 72 feet times 1.6 seconds, indicating that Trooper Drew's vehicle traveled a distance of 115.2 feet prior to braking. Since Trooper Drew testified that he only saw the decedent's vehicle approximately 100 feet before she pulled directly in front of him, the witness concluded Trooper Drew did not even have enough time to apply his brakes prior to impact. This conclusion was consistent with Trooper Drew's testimony at trial as well as the physical evidence at the scene.

The State also called Mr. Thomas Pedneault, a letter carrier employed by the U.S. Postal Service for 31 years. Mr. Pedneault testified that on August 17, 1996, he was riding a motorcycle with his daughter in the area of the Hampton's and was waiting in a line of traffic at the intersection of Route 39 and Tuckahoe Road heading in an eastbound direction. Mr. Pedneault observed the decedent's vehicle approach Route 39 from Tuckahoe Road heading in a northerly direction. He saw the decedent's red Honda stop at the stop sign at Tuckahoe Road and Route 39. The vehicle immediately in front of Mr. Pedneault allowed a break in traffic for the decedent to pass through the eastbound lane of Route 39. Mr. Pedneault observed that the decedent was "looking straight ahead" as she pulled across the eastbound lane. Mrs. Harshman slowed and paused momentarily at the centerline of Route 39, only to then attempt to accelerate across the westbound lanes of the roadway. At the same time Pedneault observed Trooper Drew's vehicle attempt to change lanes and move to the right. Mr. Pedneault testified that from his vantage point he knew that impact between these vehicles was imminent and he estimated the Trooper's speed at that time to be 40 to 45 mph. He further estimated the elapsed time between when the decedent pulled in front of the Trooper's vehicle and impact to be "a heartbeat" - one second or less. At the time of impact, Mr. Pedneault was approximately 25 feet away from the vehicles. He never observed any brake lights on the Harshman vehicle, but did observe the Troop vehicle "nose down" as it braked upon impact.

Mr. V. Anthony Maggipinto has lived in the Southampton area with his family since 1949. On the date of this accident he was coming from his father's home in Southampton and had entered Route 39 approximately 1/4 mile east of Tuckahoe Road and was traveling in the westbound lane. Mr. Maggipinto testified that Trooper Drew's vehicle was approximately two vehicles ahead of him, traveling westbound in the passing lane. He testified that he observed the Troop vehicle moving to the right lane from the passing lane and noticed the rear end of the vehicle elevate and the brake lights go on. While the witness could not say that he actually saw the impact, he did see a sudden jolt to the Troop vehicle followed by flying debris. Mr. Maggipinto saw the Blazer continue to drift to the right and off the roadway to the northwest shoulder of Route 39 at its intersection with Tuckahoe Road. The witness could not say that he remembered seeing the decedent's vehicle pull in front of the Troop car.

Claimants concede that Mrs. Harshman was negligent in attempting to cross Route 39 without yielding, but argue that a finding of comparative fault on the part of Trooper Drew is warranted on these facts. Claimants assert that Trooper Drew's negligence was composed of one or more of the following: 1) by proceeding at a speed that was not reasonable and prudent under the conditions; 2) failing to yield the right-of-way to the Harshman vehicle in the intersection;

3) failing to anticipate that the Harshman vehicle would attempt to cross through the intersection; and 4) taking the wrong evasive action by steering to the right.

Claimants argue that Trooper Drew's speed was unsafe, albeit already below the speed limit, in view of the evidence that he was familiar with this area's congestion and personally observed the bumper-to-bumper traffic in the eastbound lane. Claimants point to Vehicle and Traffic Law sections 1180 (a) and (e) which state, in pertinent part, respectively, as follows:
[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.

* * *

[t]he driver of every vehicle at an appropriate reduced speed when approaching and crossing an intersection....

In this Court's view, the fact that there was heavy traffic in the opposite eastbound lane was not a condition that would or should have put Trooper Drew on notice to reduce his speed under either Vehicle and Traffic Law section 1180 (a) or (e). (Matt v Tricil (N.Y.), 260 AD2d 811, 812). To the contrary, the fact that the eastbound lane was congested could have served as a reasonable indication to Trooper Drew that vehicles would not attempt to enter into or cross through congested traffic. Claimants point to no other actual and potential hazard, such as weather, which would have warranted Trooper Drew reducing his speed further below the speed limit than he was already traveling.

Next, Claimants argue that Trooper Drew should have anticipated that Mrs. Harshman was going to come out of the side street and yielded the right-of-way to her. The State properly counters that drivers with the right-of-way, such as Trooper Drew, have the right to assume other drivers will comply with traffic control devices. (Aunchman v Palen, 186 AD2d 104, 105 lv denied 81 NY2d 702; Smart (T) v Wozniak, 58 AD2d 993, lv denied 43 NY2d 643). The Court agrees. Vehicle and Traffic Law sections 1142 and 1172 "[d]eal specifically with the rights and obligations of vehicles at intersections controlled by stop signs and thus supercede the more general right of way rules of section 1140...."[2] (Le Claire v Pratt, 270 AD2d 612, 613 citing Hohenstein v Mosher 36 AD2d 662). More specifically, Vehicle and Traffic Law section 1142 (a) requires that a driver, after having stopped at a stop sign, "[s]hall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection."[3] The fact that Trooper Drew's vehicle was an immediate hazard to Mrs. Harshman is self-evident from the resulting collision. (Le Claire v Pratt, supra, 270 AD2d, at 613). Clearly, the decedent made a tragic error on her own part by proceeding from the stop sign despite the immediate hazard of Trooper Drew's vehicle in violation of Vehicle & Traffic Law section 1142 (a). Claimants state in their trial memorandum that "[a] reasonable person could have anticipated that a vehicle attempting to come out of a side street would have to pass through this heavy traffic at some point--or be bound to sit all day at the stop sign, and never make it across". (Claimants' Trial Memorandum, p 1). To the contrary, Trooper Drew had the right to assume Mrs. Harshman would sit at the stop sign as long as necessary in compliance with traffic control devices, the rules of the road, and to insure her own safety before entering the intersection.

Claimants also rely on a series of cases stating the general principle that vehicles with the right-of-way do not have carte blanche to proceed through an intersection without slowing down if conditions so warrant. (King v Washburn, 273 AD2d 725; Walker v Dartmouth Plan Leasing Corp., 180 AD2d 952; Siegel v Sweeney, 266 AD2d 200; Costalas v City of New York, 143 AD2d 573). The facts and circumstances of these cases are distinguishable from the case at bar. In both King and Walker summary judgment motions were denied due to the presence of questions of fact on such issues as speed, weather conditions, reduction of speed upon sighting of vehicle, and opportunity to take evasive action. Here, the relevant factual findings favor the State. The Court has already found Trooper Drew's speed to be reasonable. Also, there is no evidence that Trooper Drew had time to avoid this collision based upon accident reconstruction testimony and Mr. Pedneault's eyewitness testimony that Trooper Drew had one second or less to take evasive action. (Le Claire v Pratt, supra, 270 AD2d, at 613). Nor is there any evidence that Trooper Drew was inattentive or should have noticed the Harshman vehicle any sooner than he did. Finally, even if other maneuvers may have been preferable, Claimants did not offer any evidence to support their contention that Trooper Drew's maneuver to the right was unreasonable under the circumstances.

Finally, Claimants seek the benefit of the Noseworthy doctrine by which a reduced burden of persuasion in considering evidence is invoked due to Mrs. Harshman's death. (Noseworthy v City of New York, 298 NY 76). The essence of the Noseworthy doctrine is an approach to weighing evidence which permits the fact finder more latitude in drawing inferences in favor of the claimant. (Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 334). This doctrine, however, does not supplant a claimant's burden of establishing a prima facie case. (Byrd v New York City Tr. Auth., 228 AD2d 537). The State argues that Noseworthy is inapplicable because eyewitness testimony established that Mrs. Harshman did not look to her right meaning that she could not have seen the accident herself. As such, the State contends that any presumption under Noseworthy that Mrs. Harshman would have testified differently than the eyewitnesses is not warranted. In this Court's view, there are only two viable options here, either Mrs. Harshman did not look to her right and never saw the Troop vehicle or she did look and saw the Troop vehicle but thought she could beat it. Under Noseworthy, the favorable factual finding would be that Mrs. Harshman did look to her right, but made a miscalculation regarding her ability to pass through the intersection before the Troop vehicle. However, such a finding does not supplant Claimants' inability to establish that Trooper Drew failed to exercise the requisite degree of reasonable care in the operation of his Troop vehicle. Accordingly, even utilizing the benefits of the Noseworthy doctrine, Claimants have failed to establish a prima facie case of negligence on the part of Trooper Drew.

In sum, there is no basis for finding that the State was negligent, rather this Court finds that decedent's own negligence was the sole proximate cause of this accident.

The defendant's motion to dismiss, upon which decision was previously reserved, is now GRANTED and Claim No. 98800 is DISMISSED. All other motions, not heretofore ruled upon, are DENIED.


January 22, 2001
Binghamton, New York

Judge of the Court of Claims

Unless otherwise indicated, all quotations are from the Court's trial notes.
Vehicle & Traffic Law 1140 (a) states that "[t]he driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway."
Vehicle & Traffic Law 1172 states that the right to proceed from a stop sign shall be subject to Vehicle & Traffic Law 1142.