BUHR v. THE STATE OF NEW YORK, #2001-029-069, Claim No. 94432
Claim for personal injury arose from a two vehicle automobile accident. Clmt
asserts the State was negligent in failing to replace a stop sign at an
intersection with a traffic signal. Clmt asserts inadequate study; upon review
of the evidence, Court finds State performed adequate study of intersection. No
liability, claim dismissed.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
STEPHEN J. MIGNANO
Kevin T. McCarthy, Esq.
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Assistant Attorney General
April 19, 2001
See also (multicaptioned
This claim for personal injury arose from a two vehicle automobile accident at
the intersection of Hudson Road and Route 208 in Blooming Grove, New York on May
19, 1996. The trial was bifurcated and this decision deals only with the issue
On May 19, 1996, claimant was a passenger in an automobile driven by Anthony
Akers. The Akers' vehicle was traveling east on Hudson Road. Akers testified
that he stopped the car at the stop sign at the intersection of Hudson Road and
Route 208 and looked right and then left for traffic. He stated that when he
attempted to turn left to proceed north on Route 208, his vehicle was struck by
a car driven by Noel Santiago, which was traveling northbound on Route
Mr. Santiago testified at his
, held on December 4, 1998, that he was traveling north on Route 208 at about 40
miles per hour (MPH) at the time of the collision with the Akers' vehicle. He
stated that he was slowing down because he knew he was going to enter the
village where the speed limit was 30 MPH (see Exh. C, Pg. 18). He also stated
that at no time prior to the accident did he see Akers' vehicle (see Ex. C, Pg.
Claimant asserts that the State was negligent in failing to replace the stop
sign at the intersection of Hudson Road and Route 208 with a traffic
It is well-settled that the State of New York has an absolute nondelegable duty
to maintain its roadways in a reasonably safe condition and that breach of this
duty will result in liability to the State for injuries therefrom (
Friedman v State of New York
, 67 NY2d 271; Weiss v Fote
, 7 NY2d
579). Inherent in this duty is the obligation to construct, design and maintain
roadways in a reasonably safe condition taking into account such factors as
existing traffic conditions, terrain and pedestrians (Gutelle v City of New
, 55 NY2d 794). The State's duty extends to the design, installation
and maintenance of traffic control devices at intersections of the roadways
under its control (Wood v State of New York
, 112 AD2d 612, 614).
However, the mere occurrence of an accident on a State roadway does not confer
liability since this duty does not have the effect of making the State an
insurer of the safety of its roadways (
Tomassi v Town of Union
, 46 NY2d 91; Brooks v New York State Thruway
, 73 AD2d 767, affd
51 NY2d 892). Claimant has the burden of
establishing that the State was negligent and that such negligence was a
proximate cause of the accident (Bernstein v City of New York
, 69 NY2d
1020). Additionally, before liability will attach, the State must have had
actual or constructive notice of a dangerous condition and then failed to take
reasonable measures to correct the condition (Rinaldi v State of New
, 49 AD2d 361).
Furthermore, in the field of traffic design engineering, the defendant is
accorded a qualified immunity from liability arising out of a highway planning
Friedman v State of New York
; Weiss v Fote
). Under this doctrine of qualified immunity, the defendant can
only be found liable for injuries "arising out of the operation of a duly
executed highway safety plan," when there is "proof that the plan either was
evolved without adequate study or lacked reasonable basis." (Weiss v
, p 589; Friedman v State of New York
; Redcross v State of New York
, 241 AD2d 787, lv den
91 NY2d 801). Claimant contends that this qualified immunity is not available
because the State's plan evolved without adequate study.
On June 1, 1994, Carl Schupp, the Chief of Police of the Town of Blooming Grove
wrote a letter to the New York State Department of Transportation (hereinafter
DOT) requesting a review of traffic conditions at the subject intersection.
Chief Schupp testified that the request was based on his experience with several
accidents at the intersection (Trial Transcript (T.T.) Vol. I, Pg. 151). By
letter dated June 30, 1994 (Exh. 13), Randy Harwood, a Civil Engineer
in the Poughkeepsie Office of DOT's Traffic Control Unit, responded to Chief
Schupp's letter stating that a formal investigation had been initiated and a
study would be conducted at the subject intersection.
The DOT study of the intersection was conducted by Randy Harwood who testified
that in June, 1994 he initiated a general traffic study of this intersection.
The study was upgraded to a traffic signal study in September, 1994 when he
ordered that traffic counts be taken at the intersection (see Exh. 7).
The procedures for conducting a traffic signal study are set forth in detail in
the New York State Manual of Uniform Traffic Control Devices (hereinafter
(Exh. 1) as well as the DOT Safety Investigation Procedure Manual (Exh. 5).
Harwood testified that, as part of his study, he collected data on the volume of
traffic that passed through the intersection (traffic counts) and also an
accident history for a three-year period for the intersection. He also stated
he performed a site inspection of the intersection but did not prepare a
collision diagram. The accident history report was printed November 18, 1994
and contains the accident history for the intersection from January, 1991
through December, 1993 (Exh. 10). On January 23, 1995, Harwood completed a
Traffic Signal Warrant Check Sheet (see Exh. 2; Exh. B, Pg. 8) which evaluates
numerous warrants relating to the installation of a traffic signal. The warrant
in issue in this case is Warrant 6 "Accident Experience". 17 NYCRR 271.8 (a)
provides that the Accident Experience Warrant is satisfied when:
(1) ab Adequate trial of less restrictive remedies, with satisfactory
observance and enforcement, has failed to reduce accident frequency; and
(2) ab Five or more reported accidents, of types susceptible of correction by a
traffic control signal, have occurred within a twelve month period; and
(3) ab Vehicular and pedestrian traffic volumes are at least eighty percent of
the requirements specified either in the minimum vehicular volume warrant, the
interruption of continuous traffic warrant, or the minimum pedestrian volume
(4) ab The signal installation will not seriously disrupt progressive traffic
Harwood testified that the types of accident referred to in 17 NYCRR 271.8 (a)
(2) are right angle accidents, such as claimant's accident. Based upon his
review of the 1991 through 1993 accident history, he concluded that there was
"no pattern of correctable (by a signal) right angle accidents" at this
intersection (Exh. 10; Exh. B, Pg. 4). It is this conclusion that claimant
Claimant asserts that Harwood's study of the intersection was inadequate
because he failed to (1) consider the 1994 accident history of the intersection;
(2) draw a collision diagram; (3) update the accident history during the period
that the study remained open.
Claimant's expert, Nicholas Bellizzi, testified that the MUTCD requires that
the most recent three-year accident history be reviewed when conducting a study
to determine if a signal is warranted. He stated that good and accepted
engineering practice requires that the most recent three years of accident
history be examined in determining whether a traffic signal is necessary,
especially in this situation where the traffic signal study was initiated based
upon complaints received in 1994 (see Exhs. 13 and 14). Bellizzi testified that
he reviewed the accident history for this intersection for 1994 and that in the
first nine months of that year there were seven right angle accidents. The
witness stated his opinion to a reasonable degree of engineering certainty that
in January 1995, when Harwood completed the warrant check list, the intersection
met the warrant for accident experience based upon the 1994 accident history and
thus, in his opinion, a traffic signal should have been
The evidence presented at trial established that Harwood commenced his study of
the subject intersection in June 1994 and concluded the study in February, 1996.
In November, 1994 he requested interim sign changes at the intersection which
resulted in the removal of the existing stop signs and replacement with larger,
more visible stop signs and the installation of two new "stop ahead" signs (see
Exh. B, Pg.10). The evidence further established that Harwood did not review
the 1994 accident history for this
or draw a collision diagram.
Both Harwood and his supervisor, Thomas Weiner (a licensed civil engineer in
New York State), testified that the requirement that the phrase "most recent
accident history available" means the most recent accident history available
from DOT's own records. In his post-trial memorandum, claimant's counsel
asserts that DOT's Safety Investigation Procedure Manual (Exh. 5) specifically
requires that the accident history be requested through the Department of Motor
Vehicles (hereinafter DMV) not from DOT's own accident retrieval unit.
Claimant's assertion that DOT's Safety Investigation Procedure Manual (Exh. 5)
specifically requires the accident history to be requested from DMV rather than
from DOT's own records is in error. A review of the manual, Section 1 (B) -
Accident Date Collection (Exh. 5, Pg. 4) establishes that the DOT investigator
is to collect a three-year period of accident data from DOT's computerized files
known as Accident Verbal Description Reports. The manual provides that if a
collision diagram cannot be prepared using the Accident Verbal Description
Report alone, then copies of original accident reports may be obtained from DMV
or from police records (see Exh. 5, Pgs. 4 and 5 [Figure 2, Steps Required for
Thus, the fact that Harwood did not review the 1994 accident history was not a
violation of any DOT rule or regulation and did not render the study he
. Assuming arguendo
, he had reviewed the 1994 accident
date, Harwood testified that Warrant 6 would have been met "with reservations"
(T.T. Vol. I, Pg. 137). However, even where the warrant is met, Weiner
testified that DOT has discretion in determining to install the traffic signal
or take some lesser action (T.T. Vol. II, Pgs. 180-181). No evidence was
adduced at trial to establish that, had the 1994 accident history been reviewed,
DOT would have been mandated to install a traffic signal or would have
exercised its discretion to do so.
We now turn to claimant's assertion that the study of the intersection was
inadequate because of Harwood's failure to draw a collision diagram. 17 NYCRR
§ 271.1 (a) (5) states that a traffic signal study
have a collision diagram. 17 NYCRR § 200.5 defines the words
"shall", "should" and "may" as used in the Part. "Should" is defined
An advisory condition. Where "should" is used in relation to a provision, that
provision is recommended, and normally is to be followed, but is not mandatory.
Deviation from such provisions is permissible if, and to the extent, there is
justifiable cause to do so.
Mr. Weiner testified that in many instances a collision diagram was not drawn.
He opined that the diagram is not a critical document and that the investigator
gets no more information from the diagram than from the review he already made.
He stated that the investigators (such as Harwood) had blanket permission to
omit a collision diagram and this permission was well within the purview of the
MUTCD (17 NYCRR § 271.1 (a) ). In any event, claimant failed to present
any evidence regarding how the creation of a collision diagram would have led
DOT engineers to conclude that a traffic signal was mandated. Thus, the lack of
such diagram cannot be construed as a material omission in that
Claimant also asserts that the intersection study was inadequate because
Harwood failed to follow up his investigation of the accident history during the
months the study remained open from November, 1994 until February, 1996.
Claimant asserts that the changes to the intersection signage made by Harwood in
November, 1994 were never tested as required by the MUTCD.
As stated previously, 17 NYCRR § 271.8 (a) (1) provides that the accident
experience warrant is satisfied when "an adequate trial of less restrictive
remedies, with satisfactory observance and enforcement, has failed to reduce
Mr. Weiner testified that the sign changes made by Harwood were, in fact, a
test of "less restrictive" measures
. Claimant failed to establish, by a preponderance of the credible evidence,
that the less restrictive remedy initiated by Harwood failed to reduce accident
frequency. The 1994 accident reports introduced by claimant occurred between
January and September 30, 1994, prior to Harwood's changes. In fact, the
evidence adduced at trial indicates that these measures were successful and that
claimant's accident was the first to occur subsequent to the signage change.
Thus, if DOT had acted fully in accord with claimant's position, there is
nothing in the record to indicate that the evaluation of these "less restrictive
measures" would have led DOT to install a traffic signal whether by mandate or
as a matter of discretion. In the absence of either: (1) a violation of a
regulatory mandate; or (2) clear abuse of agency discretion, DOT is entitled to
the benefit of qualified immunity (Friedman v State of New York
, 67 NY2d
; Weiss v Fote
, 7 NY2d 579,
The evidence adduced at trial by claimant established that the Santiago vehicle
was traveling north on Route 208 at 40 to 45 MPH at the time of the accident
(T.T. Vol. I, Pg. 45). Harwood testified that the sight distance of a driver
heading east on Hudson Road, stopped at the stop sign and looking south was
1,000 feet. Mr. Akers testified that the sight distance from his vehicle to the
south was about 200 yards or 600 feet. Mr. Wiener performed the mathematical
calculations and testified that a vehicle traveling at 40 MPH would travel 600
feet in 10.2 seconds and 1,000 feet in 17 seconds. He further calculated that a
vehicle traveling at 45 MPH would travel 600 feet in 9 seconds and 1,000 feet in
15.2 seconds. Thus, Akers should have seen the Santiago vehicle anywhere from
600 to 1,000 feet from the intersection and it would have taken the Santiago
vehicle anywhere from 9 seconds to 17 seconds to travel that distance. Yet,
both Santiago and Akers both testified that they never saw the other vehicle
until the collision. If all of the testimony of both drivers is true, the laws
of physics would have prevented this collision. The only alternative is that
neither driver observed "that which was there to be seen" and no liability
attaches to the State as a result of this error by one or both or them.
Based upon the foregoing, the Court concludes that the defendant is accorded
qualified immunity from liability arising out of its determination not to place
a traffic signal at the intersection of Hudson Road and Route 208. This design
decision was supported by engineering judgment and adequate study which provided
a reasonable basis for the determination. While it can be argued that the DOT
study could have been more comprehensive, nothing in the record supports a
finding that it so abused its discretion as to constitute negligence. The Court
is in no way unsympathetic to the harm done to claimant but, upon this record,
such harm was proximately caused by the actions of the drivers involved rather
than the actions or inactions of the defendant.
The claim is dismissed on the merits. All motions made at trial, upon which
the Court reserved decision, are now denied as moot. The Chief Clerk is
directed to enter judgment accordingly.
April 19, 2001
Plains, New York
HON. STEPHEN J. MIGNANO
Judge of the Court of
This deposition was admitted into evidence by
At trial, the parties stipulated that, as a
result of the accident, claimant suffered retrograde amnesia which makes it
impossible for her to recall any details of the accident. Claimant asserts that
her amnesia entitles her to a diminished capacity inference regarding the
happening of the accident (see, Noseworthy v City of NY
, 298 NY 76). A
claimant who suffers amnesia as a result of defendant's acts is not held to as
high a degree of proof in establishing her right to recover for injury as is a
claimant who can describe the events. This is known as the Noseworthy Doctrine
(Sawyer v Dreis & Krump Mfg. Co.
, 67 NY2d 328; Schechter v
, 28 NY2d 228). In the instant matter, the Court believes claimant's
amnesia is true. However, based upon the fact that there were two witnesses who
testified, Akers and Santiago, this was not an unwitnessed accident and thus the
Noseworthy Doctrine is not applicable (Horne v Metropolitan Transit
, 88 AD2d 909; Abbott v St. Luke's Me. Hosp. Center
, 38 AD2d
176) since direct evidence is available.
A Civil Engineer I is not a licensed
professional engineer, but is a technician who assists an engineer.
Codified in 17 NYCRR § 271.
It is noted that parties engaged in
considerable debate as to which accidents were "similar" to claimant's accident.
However, all parties eventually agreed that Warrant 6 would have been met by the
1994 accident history.
DOT's insistence that the 1994 accident
history was unnecessary, even where the local police agency would have made it
available with a letter request, borders on nonsensical in view of the timing
and nature of the complaint. However, as discussed, infra
, the absence
of this information is not dispositive since it did not cause DOT to abuse its
Claimant argues that this opinion is merely
bootstrapping since the interim changes took place before the accident history
was received by Harwood. Claimant's argument, while not unreasonable, cannot
overcome the fact that action was taken, such action complied with 17 NYCRR
271.8 (a) (1), and such actions could reasonably be deemed sufficient in view of
the subsequent drop in accidents.