New York State Court of Claims

New York State Court of Claims

CARACCIOLA v. THE STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF TRANSPORTATION, #2002-001-515, Claim No. 100220


Synopsis



Case Information

UID:
2002-001-515
Claimant(s):
JOSEPH CARACCIOLA, individually, and as Administrator of the Estate of ANNA CARACCIOLA, a/k/a ANNA WEBER
Claimant short name:
CARACCIOLA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF TRANSPORTATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100220
Motion number(s):

Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Law Office of Michael J. Aronoff, Esq.By: Leo Duval, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: John M. Shields, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
January 3, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimant Joseph Caracciola ("claimant") brought this claim against defendant State of New York ("defendant" or "the State") to recover damages for the wrongful death of his wife, Anna Caracciola ("claimant's decedent"), who sustained fatal injuries on January 25, 1999 when she encountered black ice and lost control of the automobile that she was driving, which crossed the center median of the Heckscher Spur of the Southern State Parkway and was struck broadside on the passenger side by a van. Based on the testimony given and the exhibits accepted into evidence, the Court finds the following facts:

(1) While driving in the center lane of the three northbound lanes of the Heckscher Spur of the Southern State Parkway, at approximately 9:18 P.M. on January 25, 1999 Lawrence Jordan ("Jordan") lost control of his automobile when he encountered black ice on a raised portion of the roadway that becomes an overpass stretching over the Long Island Railroad tracks in the vicinity of Jefferson, Washington and Hawthorne Streets and Union Boulevard. As a result, his automobile crossed the center median into the three southbound lanes, hit a southbound car on the driver's side and eventually came to rest at an abutment bordering the rightmost lane of the three southbound lanes, along with and next to the southbound car. (Deposition testimony of Lawrence Jordan; trial testimony of Thomas J. Hughes; claimant's exh. 1A; deposition testimony of John Skidmore [defendant's exh. S])

(2) Within approximately five or ten minutes (i.e., by 9:25 P.M. or 9:30 P.M.), State Trooper Thomas J. Hughes ("Hughes") and a partner arrived at the scene of the accident, having learned of it over the police scanner at the Islip Terrace Barracks where they were stationed. The weather at the scene of the accident was cold and clear when they arrived. (Deposition testimony of Lawrence Jordan; trial testimony of Thomas J. Hughes)

(3) Hughes instructed his partner to deploy a flare pattern in the rightmost and center lanes of the three southbound lanes at the scene of the accident, thus shutting down these lanes from traffic, and pulled his automobile, with its red lights flashing, onto the center median. The flares burn for approximately 20-25 minutes and the troopers eventually deployed two flare patterns (i.e., sufficient to burn for 40-50 minutes). (Trial testimony of Thomas J. Hughes)

(4) The East Islip Volunteer Fire Department arrived at the scene of the accident within minutes after Hughes and his partner, having traveled northbound on the Heckscher Spur (i.e., over the same section of the highway as Jordan had traveled). The fire department responded with three to five vehicles (including an ambulance, a heavy rescue and a pumper truck) some, and perhaps all, of which were parked in the center median with their red lights flashing. (Trial testimony of Thomas J. Hughes; deposition testimony of John Skidmore [defendant's exh. S])

(5) As the flare pattern was being deployed, Hughes checked with Jordan and the driver and passenger of the other car to ascertain whether an ambulance was required, which he called for by radio to his headquarters in Farmingdale for an occupant of the car hit by Jordan. Jordan informed Hughes that he had lost control of his automobile when he encountered black ice in the center lane of the Heckscher Spur, on the overpass, traveling northbound. (Deposition testimony of Lawrence Jordan; trial testimony of Thomas J. Hughes)

(6) Hughes called for a tow truck by radio to his headquarters in Farmingdale, and two tow trucks arrived at the scene of the accident. (Trial testimony of Thomas J. Hughes)

(7) John McNeil ("McNeil"), who arrived at the scene of the accident with the East Islip Volunteer Fire Department, informed Hughes that he was a New York State Department of Transportation ("DOT") employee and that he had already notified "the guys at the yard to come out."[1]
Although he has no specific memory of having done so in this instance, Hughes customarily would notify DOT about such an accident and/or road conditions by radioing his headquarters at Farmingdale. (Trial testimony of Thomas J. Hughes)
(8 ) McNeil, a Highway Maintenance Supervisor I ("HMS I") with DOT, was specifically responsible for the Southern State Parkway; he worked out of the Commack Yard, which is a sub-residency of the main DOT "04" headquarters at Central Islip. Although McNeil testified that he notified a dispatcher at the North Merrick Yard by cell phone that "the road was getting icy on the east end of the Southern State" and asked for a sander at the scene of the accident, there is no record of this call having been received. (Deposition testimony of John McNeil [claimant's exh. 24, p 26]; deposition testimony of John Skidmore [defendant's exh. S];
see also, claimant's exh. 3A, p 3)
(9) Hughes and his partner left the scene of the accident about 20 to 30 minutes after their arrival, or sometime between 9:45 P.M. and 10:00 P.M., to drive "the elderly gentleman," Jordan, home: Jordan had been unable to reach anyone by cell phone to pick him up and lived about 5 or 8 minutes from the scene of the accident. The tow trucks and the fire trucks were still there. While at the scene of the accident, Hughes did not notice that vehicles traveling northbound on the Heckscher Spur were skidding or sliding. (Trial testimony of Thomas J. Hughes)

(10) While driving in the center lane of the three northbound lanes of the Heckscher Spur, at approximately 10:16 P.M. on January 25, 1999 claimant's decedent lost control of her automobile (a 1998 Saturn) when she encountered an icy condition on a raised portion of the roadway that becomes an overpass stretching over the Long Island Railroad tracks at Jefferson, Washington and Hawthorne Streets and Union Boulevard. As a result, her automobile crossed the center median into the three southbound lanes and was hit by a van that was being operated by Donald Reilly ("Reilly") in the leftmost lane. The two vehicles came to rest in the leftmost lane; claimant's decedent's car, which had been hit broadside on the passenger side by the van, was totally demolished. (Claimant's exh. 1B; trial testimony of Thomas J. Hughes; deposition testimony of John Skidmore [defendant's exh. S])

(11) Shortly after dropping Jordan off at his home, Hughes and his partner received a radio call from headquarters advising them that another accident had occurred in the location of the Jordan accident. They responded immediately and arrived at about 10:20 P.M. or 10:25 P.M., driving northbound on the Heckscher Spur. While returning to the location from the Montauk Highway, Hughes observed that the weather conditions "had gotten worse" and that the roads were icy. (Trial testimony of Thomas J. Hughes)

(12) When Hughes and his partner arrived at the scene of the accident, a tow truck called to respond to the first accident was still there and a non-police emergency vehicle was present as well; the fire trucks parked in the center median had left. Hughes observed that claimant's decedent appeared to be sleeping; Reilly was bleeding from his nose or mouth or both. An emergency medical technician who was involved in trying to extract claimant's decedent from her car informed Hughes that claimant's decedent had no pulse. (Testimony of Thomas J. Hughes)

(13) Hughes radioed (or he told his partner to radio) the Bureau of Criminal Investigation to call for a supervisor because a serious personal injury involving two vehicles had occurred. He requested the station commander to come to the scene of the accident; he also advised headquarters to have the ramp shut down at the Sunrise Highway and to ask Suffolk County ("the County") to shut down the entrance at the Montauk Highway (the nearest entrance ramp south of where the accident occurred, which is where claimant's decedent had entered the Heckscher Spur) so that no one was able to travel the Heckscher Spur in the vicinity of the accident. (Trial testimony of Thomas J. Hughes)

(14) The County shut down the northbound entrance ramp at the Montauk Highway (Route 27A); a State police vehicle with its headlights on physically blocked the southbound entrance ramp to the Heckscher Spur just north of the scene of the accident. Hughes directed that this section of the roadway be shut down because "[we] were now investigating a serious personal injury accident and there were fire trucks and emergency vehicles on both sides of the roadway, so he requested that the road be shut down in both directions" to take the measurements required for the criminal investigation of a fatality. (Trial testimony of Thomas J. Hughes)

(15) The Islip Volunteer Fire Department sent an ambulance because the East Islip Volunteer Fire Department's ambulance had not yet returned from ferrying the injured passenger from the earlier accident to the hospital; the Suffolk County Police responded. (Trial testimony of Thomas J. Hughes; deposition testimony of John Skidmore [defendant's exh. S])

(16) Hughes interviewed Reilly, who told him that as he was driving southbound on the Heckscher Spur, he followed the flare pattern around the scene of the accident into the leftmost lane, moving slowly because he detected icy driving conditions, when he saw claimant's decedent's car approaching him from the northbound side of the road, moving "quite fast, right towards him," which there was no way for him to avoid. (Trial testimony of Thomas J. Hughes; claimant's exh. 1B)

(17) State Police Investigator Daniel J. Regini ("Regini"), who was stationed at the Islip Terrace Barracks, arrived at the scene of the accident at approximately 10:38 P.M. or 10:40 P.M., and "cleared the scene" at about midnight. He spoke to Hughes; took photographs; talked to a witness, who, like Reilly, had been traveling southbound at the time of the accident, and to the tow truck driver; had measurements taken; and made a death notification to claimant's decedent's family. Regini subsequently spoke to McNeil and took written statements from Reilly, the tow truck driver and the witness. The purpose of this investigation was to determine if anyone was criminally liable for the accident resulting in claimant's decedent's death. (Trial testimony of Daniel J. Regini)

(18) Regini determined that claimant's decedent's automobile had traveled approximately 150 feet from the point at which she lost control of it before hitting Reilly's van. The tow truck driver and the witness estimated claimant's decedent's speed at the time of the accident as approximately 45-50 m.p.h.; Reilly and the witness both estimated their speeds at the time of the accident as 25-30 m.p.h. (Trial testimony of Daniel J. Regini; claimant's exh. 3 [New York State Police Investigation Report])

(19) At the conclusion of his investigation, Regini prepared a report in which he concluded that "[t]he contributing factors noted for the Saturn on the accident report are ‘speed too fast' and ‘slippery pavement.' It should be noted though, that due to the isolated icy spots, the lack of precipitation and the fact that [claimant's decedent] had just left work and driven a total of only 6/10 mile before the accident on roads that were just wet, she was probably [unaware] of the hazardous driving conditions that were developing, especially on roadway overpasses" (claimant's exh. 3 [New York State Police Investigation Report], p 5, ¶ 7).

(20) DOT maintains six residencies in Region 10 (Nassau and Suffolk Counties), including the Central Islip residency, which, in turn is comprised of four sub-residencies at Central Islip (the main residency), Smithtown, Hauppauge and Commack. On January 25, 1999, Ted Michael Parrack ("Parrack") and McNeil both held the position of HMS I at the Commack Yard, and reported to Michael Sisti ("Sisti"), a Highway Maintenance Supervisor II ("HMS II"). Sisti, in turn, reported to Robert Robus ("Robus"), the Regional Engineer for the Central Islip residency, who worked out of the Hauppauge State Office Building. As the HMS II at the Commack Yard, Sisti was responsible for maintenance and snow and ice removal on the Sunken Meadow, Sagtikos, Robert Moses, Southern State, Heckscher State and part of the Northern State Parkways, which comprise approximately 160 miles of highway. Region 10 comprises approximately 4,000 lane miles of highway. (Trial testimony of Ted Michael Parrack; deposition testimony of John McNeil [claimant's exh. 24]; trial testimony of Michael Sisti; trial testimony of Barry Galowin)

(21) Between 2:11 P.M. and 2:23 P.M. on January 25, 1999, a fax was sent from the office of Barry Galowin ("Galowin"), the Regional Maintenance Engineer for DOT Region 10 (Nassau and Suffolk Counties), to the resident engineers for the six DOT residencies in Long Island, which stated as follows:
Based on weather forecasts and RWIS [road weather information system] pavement temp forecasts please schedule spreader crews to stay on until precipitation ends this evening (8-9 pm predicted). While we will only be getting a light coating, we will be able to take care of any freezing during PM rush hour.

After 9 p.m. callouts by 24 hr dispatcher based on PD [police department] calls.

3 p.m. Bob Davis [assistant superintendent of highways for] Nassau Cty--Pavement temps [temperatures] below freezing.
(Claimant's exh. 12)
Galowin subsequently added the reference to Bob Davis to memorialize that at 3:00 P.M. he had talked to and given Mr. Davis an interpretation or prediction of anticipated pavement temperatures in Nassau County, not that pavement temperatures in Nassau County were below freezing at 3:00 P.M. (Trial testimony of Barry Galowin)
(22) The weather forecasts that Galowin had available to him as of 10:30 A.M. on January 25, 1999 and which formed the basis for his subsequent fax predicted a "25% chance of a coating, but most roads will be wet" for all of Long Island; and that pavement temperatures would fall below freezing at four locations, none of which was the Heckscher Spur. The forecast for the location nearest the Heckscher Spur predicted pavement temperatures of 35 degrees at 6:00 P.M.; 32 degrees at 7:00 P.M., 8:00 P.M. and 9:00 P.M. and that pavement temperatures would fall below freezing at approximately 9:30 P.M. (Claimant's exh. 11)

(23) Galowin intended by his fax "to alert [the resident engineers] to the fact that we had a weather forecast that expected precipitation possibly until 8:00 to 9:00 P.M. and that they should keep their spreader crews on, depending on what their need was in their particular area"; i.e., although he expected that the resident engineers would keep spreader crews on, he considered the fax to be a guideline to the resident engineers, not a directive. He intended by such a fax "to get consistent information out to each one of the resident engineers from what [he] see[]s sitting in the regional office so that . . . everyone is operating with the same information. [The resident engineers] would be responsible for evaluating it and making decisions. During the normal workdays they do this routinely: they make all the calls, they make the decision. This would also authorize them for overtime if they saw it was needed." (Trial testimony of Barry Galowin)

(24) Robus does not recall whether he received this fax message on January 25, 1999, but, in any event, he did not direct anyone to remain on duty at the Commack Yard after 4:00 P.M. because he observed no precipitation at the time, and Robus, as the resident engineer (who was actually located in Central Islip, which is about one mile from the scene of the accident), has the discretion whether or not to retain personnel after hours and/or to dispatch spreaders at a given location, depending on what he deems the requirements of the particular area and the particular weather conditions to be. (Trial testimony of Barry Galowin; trial testimony of Robert Robus; defendant's exh. A)

(25) Thomas Dennis Lynch ("Lynch"), the after-hours dispatcher at the North Merrick Yard (where a dispatcher is on duty 24 hours a day/seven days a week), did not begin to receive notifications of icy road conditions on various Long Island roadways on the evening of January 25, 1999 until after 8:00 P.M. At 8:25 P.M., he began to notify all the HMS II's in residency "04" to "check out [their] sections." (Deposition testimony of Thomas Dennis Lynch [claimant's exh. 7A]; claimant's exh. 7; trial testimony of Michael Sisti)

(26) Sisti received notification from Lynch at approximately 8:30 P.M., and does not recall whether he was at his home or elsewhere at the time; however, if he was not at his home in Plainview, Nassau County (about 14 miles from the Commack Yard), at the time, he would have returned there to retrieve his truck, which he drove to the Commack Yard, checking road conditions along the way. Specifically, he drove along the Long Island Expressway into the Commack Yard and then continued on the Sagkitos Parkway up to Jericho Turnpike (the Sunken Meadow Parkway) (which roads are included within the Commack sub-residency), turned around and came back to the Commack Yard. (Testimony of Michael Sisti; deposition testimony of Thomas Dennis Lynch [claimant's exh. 7A])

(27) After returning to the Commack Yard, Sisti placed calls to his men (first Parrack at 9:30 P.M. and then McNeil and then the others) to work overtime to address icing of the roadways in the Commack sub-residency. (Trial testimony of Michael Sisti; trial testimony of Ted Michael Parrack; claimant's exh. 10-G)

(28) When Sisti called McNeil at his home, he reached McNeil's wife, who informed Sisti that her husband was out on a call with the fire department. At 9:45 P.M. in response to Sisti's call, McNeil borrowed John Skidmore's cell phone and telephoned Sisti at (516) 805-3803 (one of his two cell phone numbers) to tell him that he could not report for overtime because he was otherwise occupied at a rescue scene. (Trial testimony of Michael Sisti; deposition testimony of John McNeil [claimant's exh. 24]; deposition testimony of John Skidmore [defendant's exh. S] and its attached record from Bell Atlantic Mobile)

(29) The crews from the Commack Yard spot-treated bridges and drives on roadways encompassed within the sub-residency by applying 14 tons of salt on 70 miles of roadway between approximately 9:30 P.M. (when the crews, which arrived at the Commack Yard at approximately 10:00 P.M., were called by Sisti to come in and were given a location to spot-treat) and 11:30 P.M. on January 25, 1999 (when the crews returned to the Yard). Parrack and another worker spot-treated bridges and drives on the Sagkitos/Sunken Meadow Parkways; and another crew spot-treated bridges and drives on the Heckscher Spur and the Robert Moses Parkway, in response to a call of an icing condition on the Heckscher Spur. (Deposition testimony of John McNeil [claimant's exh. 24]; trial testimony of Michael Sisti; testimony of Ted Michael Parrack; claimant's exh. 10-G)

(30) Parrack arrived at the Commack Yard at 10:00 P.M. at the latest; he lives about 15- 20 minutes from the Yard. To load two trucks takes 10 minutes, or 5 minutes per truck. Accordingly, the crews left the Commack Yard between 10:00 P.M. and 10:30 P.M. The first truck loaded was the truck headed for the Heckscher Spur, which is about 10-15 minutes from the Commack Yard. (Trial testimony of Ted Michael Parrack)

(31) During the workday on January 25, 1999, Parrack and his crew had worked only on filling potholes; the weather did not warrant spreading salt or plowing. (Trial testimony of Ted Michael Parrack; claimant's exh. 10-G)

(32) The "Climatological Data" for January 1999 compiled by the National Oceanic and Atmospheric Administration discloses total precipitation for Islip on January 25, 1999 of 0.06 inches; a temperature range of 51 degrees to 32 degrees; and merely a trace of snowfall/snow on the ground. (Defendant's exh. J)

(33) The Heckscher Spur was originally constructed in 1959 with two travel lanes in each direction separated by a 44-foot center median or mall. The original plans anticipated a future widening, and in 1962, two additional travel lanes were constructed, reducing the center median's width from 44 to 20 feet. There has never been (and still is not) a center median barrier at the location of claimant's decedent's accident. (Trial testimony of Nicholas Bellizzi; claimant's exhs. 6, 18, 19)

(34) In the late 1950's and thereafter, a highway on Long Island was considered or designated as "urban" rather than "rural" as far east as Riverhead in order to obtain federal funds for design purposes. The Heckscher Spur is west of Riverhead and so its design was covered by the design standards for an "urban" highway. The applicable American Association of State Highway Officials ("AASHO," now the American Association of State Highway and Transportation Officials, or "AASHTO") design standard for an "urban" highway specified a center median width of from four to 25 feet for this highway. The Court accordingly finds that claimant's expert, Nicholas Bellizzi ("Bellizzi"), incorrectly concluded that the AASHO design standard for a "rural" highway applied to the Heckscher Spur and accordingly rejects his conclusion, which followed from his mistaken premise, that the Heckscher Spur no longer complied with applicable design standards when, in 1962, the center median width's was reduced from 44 to 20 feet. (Trial testimony of Stanley Lechner; trial testimony of Bruce Savik; claimant's exh. 22)

(35) Stanley Lechner ("Lechner"), who has worked for DOT (and its predecessor agency, the Department of Public Works) in various capacities for 50 years, testified that (1) in 1967 he worked for the design and construction division (one unit) of DOT's predecessor; (2) there was a separate division for maintenance; (3) he is familiar with claimant's exh. 17 (Deputy Chief Engineer General Letter 67-55, entitled "Safety Improvements on Going Projects" and Deputy Chief Engineer General Letter 67-35, entitled "Summary and Guide for Highway Safety Projects") because they were circulated to the field engineers when he was working in highway design and construction; and (4) the letters were intended for design and construction personnel, not for maintenance personnel, and applied to ongoing (i.e., not yet completed) and new construction only. (Trial testimony of Stanley Lechner) Because these letters issued from the "Division of Construction" and because Lechner is highly credible and uniquely knowledgeable on the topic of historical DOT practices and guidelines, the Court accepts his testimony and rejects the testimony of claimant's expert, Bellizzi, who interpreted the letters to require retrofitting to place a center median barrier at the Heckscher Spur at the accident location because the center median there was less than 36 feet in width.

(36) Lechner further testified that claimant's exh. 21 does not require the retrofitting of center median barriers at locations where center medians are less than 36 feet, and, to the extent that Bellizzi's and Lechner's interpretations of this document differ, the Court accepts Lechner's interpretation, because he is highly credible and uniquely knowledgeable on the topic of historical DOT practices and guidelines.

(37) DOT's 1986 Contract No. D251729 (claimant's exhs. 20A-H) is a bridge protection and signing contract covering 23 odd sites on four different parkways in Suffolk County, including the Heckscher Spur (a section of the Southern State parkway), which also provided for some other work (landscaping, a few miscellaneous areas of asphalt and concrete pavement, burial of conduit [which was, in fact, not done] as well as a lot of signage replacement and painting). The contract involved reconstruction only at specific bridge locations where the contract provided for the replacement of bridge railings and the protection of bridge abutments where a roadway passed over the State highway. (Trial testimony of Bruce Savik; claimant's exhs. 20A-H)

(38) The 24-hour average traffic count for the Southern State Parkway between Routes 27 (Sunrise Highway) and 27A (Montauk Highway), the section of the Heckscher Spur where the motor vehicle accident involving claimant's decedent occurred, sets forth, for March 1994, an estimated daily total traffic count of 12,300 vehicles in both directions and an actual daily total traffic count of 12,767 vehicles, or 4.7 (rounded) million vehicles a year. (Trial testimony of Stanley Lechner) The 24-hour average traffic count for the same location in December 2000 sets forth an estimated daily total traffic count of 13,300 vehicles in both directions and an actual daily traffic count of 15,470 vehicles, or 5.4 million vehicles a year. (id.)
(39) A three-year accident history printout (January 1996-January 1999) for the specific location where the motor vehicle accidents involving Jordan and claimant's decedent occurred (plus 528 feet on either side of this specific accident location) discloses, in addition, (1) a "non-reportable" unreportable accident (property damage only; less than $1,000) in June 1998 on the ramp at the Sunrise Highway; and (2) a single-car vehicle accident in December 1996 involving a collision with a signpost, with illegal drugs listed as an apparent contributing factor. (Testimony of Stanley Lechner; defendant's exh. O) A nine-year accident history printout (January 1990-January 1999) for the specific location where the motor vehicle accidents involving Jordan and claimant's decedent occurred (plus 528 feet on either side of this specific location) discloses 12 accidents, including the accidents in June 1998 and December 1996, already described; two accidents occurring on the ramp and involving merely property damage; one accident involving an unsafe lane change; one accident involving a rear-end collision; one accident on the ramp involving a median barrier; and another accident involving an unsafe lane change on the ramp. At mile marker 1152 (the more exact location of the Jordan and claimant's decedent's accidents), only two other accidents occurred over this nine-year period: (1) a "non-reportable" accident on March 5, 1999; and (2) on March 30, 1994, a one-car accident, an overturned vehicle. (Trial testimony of Stanley Lechner; defendant's exh. N)

(40) During his six years working as a State Trooper in this specific area of Long Island, Hughes responded to 500 to 800 highway accidents. The only accidents that he ever responded to at this location (i.e., the overpass on the Heckscher Spur stretching over the Long Island Railroad tracks in the vicinity of Jefferson, Washington and Hawthorne Streets and Union Boulevard) were the two accidents occurring on the evening of January 25, 1999. (Testimony of Thomas J. Hughes)

(41) During the ten years from January 1987, when he was first assigned to this area of Long Island, until January 25, 1999, Regini was never called to this location (i.e., the overpass on the Heckscher Spur stretching over the Long Island Railroad tracks in the vicinity of Jefferson, Washington and Hawthorne Streets and Union Boulevard) to investigate an accident (Trial testimony of Daniel J. Regini)

Discussion and Conclusion
Claimant argues that substantial factors in causing claimant's decedent's accident were (1) the State Police's inadequate response to the accident involving the Jordan vehicle, including, for example, Hughes's failure to look for ice in the northbound lanes of the Heckscher Spur once Jordan informed him that he had lost control of his vehicle on account of "black ice," or his failure to have a flare pattern set out in the northbound lanes and/or his failure immediately to shut down (or to request Suffolk County to shut down) the entrance ramp at the Montauk Highway to the Heckscher Spur's northbound lanes, or his failure to remain longer at the scene of the accident involving the Jordan vehicle; (2) DOT's inadequate response to the predicted weather conditions; specifically, Sisti's failure to keep personnel on at the Commack Yard between 4:00 P.M. and 8:00 P.M. on January 25, 1999, or to salt roads, particularly at overpasses and bridges, prior to claimant's decedent's accident; and (3) the absence of a median barrier at the scene of the accident.

First, claimant has only suggested several actions that Hughes might have or could have or should have taken, which, viewed in hindsight, might have prevented claimant's decedent from traveling over the section of the highway where she encountered "black ice." He has not proven that Hughes acted negligently and, in any event, the State bears no liability for the negligent performance by its agents of governmental functions, absent a special relationship between the injured party and the State (
Balsam v Delma Eng'g Corp., 90 NY2d 966 [responding police officers' failure to close roadway, redirect traffic or place warning flares or cones in area of icy condition prior to accident falls within immunized "governmental" realm of municipal responsibility]).
Next, the State can be held liable for an accident caused by a dangerous icy condition on a highway only when it has actual or constructive notice but fails to exercise due diligence to remedy it (
Valentino v State of New York, 62 AD2d 1086); or has notice of an isolated, recurring icy condition in a particular area of a highway and fails to post warning signs or correct the condition (Farrell v State of New York, 46 AD2d 697). Claimant does not argue that the facts here conform to the latter and the Court finds that the State acted with due diligence: Sisti was alerted to "check out" his section of the "04" residency (i.e., the Commack sub-residency) at 8:30 P.M., or before the Jordan accident; he began to call his crews in by 9:30 P.M., or just after the Jordan accident; and Parrack sent a truck from the Commack Yard to the Heckscher Spur at or about 10:00 P.M., but claimant's decedent's accident occurred at or about 10:16 P.M.
Nor was the State negligent because Robus elected not to keep a spreader crew on from 4:00 P.M. until 8:00 P.M. or 9:00 P.M., as claimant argues. First, the so-called Galowin fax that contained such advice was a recommendation to the resident engineers, who had the discretion to follow it or not depending upon their assessment of their local weather conditions, and was based on an early-morning weather forecast of precipitation during the afternoon rush hour, which did not, in fact, materialize at Robus's location, which, incidentally, was only about one mile from the scene of claimant's decedent's subsequent accident. Because, as Sisti pointed out, DOT does not "lay down salt on bare roads," the failure to keep on spreader crews between 4:00 P.M. and 8:00 P.M. on January 25, 1999 at the Commack sub-residency was not a proximate cause of claimant's decedent's accident; as Lynch's testimony and log (claimant's exh. 7A) illustrate, the first reports of icy road conditions did not reach him until about 8:00 P.M., and these initial calls were not in the Commack sub-residency. Indeed, in at least one location within Region 10 (North Merrick), the men who were kept on after 4:00 P.M. were sent home at 8:00 P.M., only to have two men called back at 8:10 P.M., which is when the weather conditions actually first warranted their services (i.e., treatment of a condition of "black ice" before and after the drawbridge on the Wantagh Highway).

Next, the State has a duty to maintain its roads and highways in reasonably safe condition (
Friedman v State of New York, 67 NY2d 271) and can be held liable for injuries resulting from the breach of that duty (Lopes v Rostad, 45 NY2d 617). The duty is one of reasonable care, and it is often stated that the State is not the insurer of the safety of those who travel its roads (Atkinson v County of Oneida, 77 AD2d 257; Boyce Motor Lines, Inc. v State of New York, 280 App Div 693, affd 306 NY 801). The State has fulfilled its duty to the traveling public when a highway is reasonably safe for those who obey the rules of the road (Tomassi v Town of Union, 46 NY2d 91), notwithstanding that almost any road can be made safer. Here, the Heckscher Spur complied with applicable standards when it was built in 1959 and when it was widened in 1962. Although claimant contends that the center median should have been retrofitted with a median barrier, there was no requirement that this be done, nor any accident history suggesting that the Heckscher Spur at the scene of the accidents on January 25, 1999 was unsafe as a result of the absence of a center median barrier.
Based on the foregoing, the Court finds that claimant has not proved by a fair preponderance of the credible evidence that any negligence on the part of the State proximately caused claimant's decedent's death. In compliance with CPLR 4213 (b), the Court has reviewed claimant's proposed findings of fact and conclusions of law and has incorporated into this decision those findings of fact and conclusions of law that it deems essential to this decision. The Court therefore dismisses the claim, and directs the Chief Clerk to enter judgment accordingly. Any motions on which the Court previously reserved judgment or which were not previously decided are denied.

January 3, 2003
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]Unless otherwise indicated, quotations are from the Court's trial notes or audiotapes of the trial on liability.