New York State Court of Claims

New York State Court of Claims

ROTOLI v. STATE OF NEW YORK, #2002-005-022, Claim No. 81960


Case Information

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:
Thomas F. Brinkworth, Esq., and
Hagerty & BradyBy: Thomas V. Hagerty, Esq. and Mark J. Schaefer, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James L. Gelormini, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 21, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Robin Rotoli[1]
alleges that she suffered personal injury as the result of a three vehicle collision which occurred at the intersection of Transit Road and New York State Route 104 in the Town of Gaines,[2] County of Orleans. She alleges that the negligence of the Defendant was the proximate cause of this accident due to, inter alia, its failure to repair and maintain this intersection after having actual or constructive notice of a dangerous condition. The trial was bifurcated and this decision addresses the issue of liability only. This claim was filed on December 13, 1990.[3]
On September 18, 1990, at about 11:00 a.m., Claimant was a passenger in a motor vehicle operated by Erin Johnson which was proceeding northbound on Transit Road as it approached State Route 104,[4]
a two lane highway running east - west. At the same time a motor vehicle operated by John Cascino was proceeding eastbound on Route 104 approaching Transit Road, while a motor vehicle operated by Joseph Richardson was proceeding westbound on Route 104 and also was approaching Transit Road.
The Johnson vehicle failed to stop at the Transit Road intersection with Route 104, entered the intersection and was struck by the vehicles operated by Cascino and Richardson, almost simultaneously. The sequence of the accident is best described by Orleans County Deputy Sheriff William Larkin in his police report:[5]

Veh 1 [Johnson] was Northbound Transit Rd Town of Gaines. Veh 2 [Cascino] was Eastbound Rt 104 Town of Gaines - Veh 1 failed to stop at stop sign. Veh 1 struck Veh 2 in Right side Front - Veh 2 continued Eastbound spinning as it went. Veh 2 ended up on North side of Rt 104 facing East. Veh 1 spun into westbound lane and was struck by a westbound Veh - Veh # 3 [Richardson]. Veh 3 continued on striking power poll [sic] . . . Veh 1 then continued on North on Transit Rd overturning and ending on its top.
As the result of these collisions, Erin Johnson and two passengers in her vehicle expired.[6]
The sole traffic control device controlling the intersection was a stop sign at the southeast corner of Transit Road, which controlled northbound traffic on Transit Road, south of Route 104.[7] Claimant Robin Rotoli suffered injuries as a direct result of this accident to such an extent that she has no memory between a time shortly before the accident on September 18, 1990, and October 2, 1990.
At the time of this tragic accident, the weather was clear and sunny, and the roads were dry. The speed limit on both Route 104 and on Transit Road was 55 mph and none of the three vehicles were traveling in excess of the speed limits. There were no pre-impact skid marks found from any vehicle; the Johnson vehicle had no mechanical defects and Erin Johnson did not have any physical impairments.

Claimant alleges that this intersection is dangerous and that the Defendant was on actual or constructive notice thereof. While the New York State Department of Transportation Accident Description Detail for intersection accidents at the subject intersection for the period from January 1, 1985 to September 20, 1990 (Exhibit J) reflects six prior accidents, none of those accidents involved northbound traffic traveling on Transit Road. Claimant attempted to show constructive notice through the testimony of Edward Morgan, the Highway Superintendent of the Town of Murray at the time of trial but who previously had been involved as a member of the Emergency Fire Service within the Town for many years. He testified that from his personal recollection there were similar accidents at the intersection resulting from northbound vehicles not stopping at the intersection. That testimony was vague, with no dates or other specifics presented, but more to the point, I allowed this testimony over Defendant's objection, subject to the caveat that if the Claimant did not present any proof to demonstrate that the State was on notice of such accidents as part of any accident logs or the like, I would revisit the objection. Since the accident history in evidence for the subject intersection (Exhibit J) fails that test, and since Claimant offered no other proof that the State was on such notice, that portion of Morgan's testimony is stricken. Similarly deficient is Claimant's attempt to show constructive notice through the testimony of Orleans County Deputy Sheriff William Larkin who described his awareness of a fatal accident in 1979 involving a northbound vehicle on Transit Road with Wyoming license plates. Claimant offered no proof to show that the State was even aware of that accident, and thus Larkin's testimony similarly suffers from the same legal insufficiency as did Morgan's testimony.

Claimant produced no other creditable testimony to support her position that, for northbound vehicular traffic, Transit Road at its intersection with Route 104 was an inherently dangerous intersection. I find that the intersection is not inherently dangerous.

Claimant opined that the reason Erin Johnson did not stop prior to entering the intersection was that the stop sign was obscured by foliage or road topography. The standard that Claimant must sustain on the issue of foliage blocking a northbound driver's view as a vehicle approaches the intersection at Route 104 in this decision is limited to the 100 foot area immediately south of this intersection.[8]
There was no creditable evidence to support this theory and indeed both experts testified that this stop sign was visible to a driver 500 feet south of the intersection. New York State Department of Transportation (DOT) employees inspected Transit Road for visibility three months prior to this accident, one month prior to this accident, as well as on September 18, 1990, the day of the occurrence of this accident, and found no visibility problems and no foliage issues. The methods that DOT used to make these inspections were proper and valid; by looking either up or down Transit Road, they did look and they did inspect.[9] Claimant disputes the reasonableness of the inspection on the day of the accident of the foliage northbound on Transit Road from Route 104 looking south, suggesting that it was cursory and ineffective. That argument however is moot, as Claimant's and Defendant's experts both testified to the visibility of the stop sign from a distance of 500 feet. Furthermore, I find that there was no foliage blocking the stop sign within 100 feet of the intersection[10] and indeed I find no foliage blocking or visually obscuring the stop sign within 500 feet of the intersection.
Claims that the topography of Transit Road as constructed obscured a driver's view of the stop sign and the intersection are also unpersuasive. There is a warning sign erected 890 feet south of the stop sign,[11]
which reads "Stop Ahead," and it functions as an advance warning notice to a northbound driver on Transit Road that there is a stop sign ahead. The very existence of the "Stop Ahead" sign served as a heads-up alert to a driver approaching this or any similarly controlled intersection and negates Claimant's arguments with respect to the topography of the intersection. That being the case, I need not resolve Defendant's argument that Claimants did not plead any theory that the dangerous condition at the intersection was caused by the topography, that Route 104 sits on a ridge, and theoretically did not allow northbound traffic to perceive the presence of the intersecting highway. Defendant argues that the claim was silent with respect to the dangerous condition, and that the Claimants' Bill of Particulars and Further Verified Bill of Particulars address only the foliage and visibility issues and not any purported issues related to topography. Given my substantive findings here with respect to the proof, it is unnecessary to address the preliminary procedural question of whether such a theory was properly pleaded.
Claimant also alleges that the lateral placement of the stop sign was not in compliance with the Manual of Uniform Traffic Control Devices (MUTCD) as it was placed 18 feet 9 inches from the edge of the pavement.[12]
I find that this stop sign was placed in its position prior to 1983 and hence the 1974 edition of the MUTCD[13] controlled and not the 1983 edition.[14] The 1974 MUTCD standard was an advisory standard, which recommended, but did not mandate, the placement. In any event, the 1974 standard of "at least 10 feet" was not violated by the actual placement at 18 feet 9 inches. In addition, there was no creditable proof that the placement of the sign in any manner contributed to this accident. It was visible, correctly-sized and painted, and was in existence at the time of the accident.
I therefore find that the sole proximate cause of the accident of September 18, 1990, was driver error by Erin Johnson in proceeding through the intersection without stopping and obeying the visible traffic control device. Hence, Erin Johnson was negligent and her negligence was the sole proximate cause of this accident. The circumstances of this claim cannot fail to evoke great empathy due to the tragic accident, with four fatalities and the apparently serious injuries sustained by the Claimant. Of course the nature and extent of the permanence of those injuries is not before me in this bifurcated matter, but, suffice it to say, at trial Claimant was unable to recall any of the details of the accident due to retrograde and anterograde amnesia directly related to the accident.

Claimant's total lack of recall and inability to testify as to the details of the accident raises the question of entitlement to the reduced burden of proof commonly referred to as the Noseworthy doctrine (
Noseworthy v City of New York, 298 NY 76) in wrongful death claims, and extended to instances where a plaintiff whose ability to testify has been destroyed by amnesia due to the accident (Schechter v Klanfer, 28 NY2d 228; Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, and see PJI 1:62, generally).
However, it is also the rule in New York State that where the parties are similarly situated insofar as accessibility to the facts of the accident, the Noseworthy doctrine has no application. Thus, where, as here, the Defendant is in an equally disadvantaged position as the Claimant in investigating the facts underlying the accident, it is argued that Claimant should not be entitled to a diminished burden of proof. This principle has been reiterated in the Second Department (
Gayle v City of New York, 256 AD2d 541, 542, where the court held that "since the City had no more knowledge of the events surrounding the accident than Gayle did ... the parties are on equal footing insofar as accessibility to the facts ... there [was] no need to afford preferential treatment ..." (id., at 542 [citations omitted]); see also Kuravskaya v Samjo Realty Corp., 281 AD2d 518, lv denied 96 NY2d 716) and in the Third Department (Orloski v McCarthy, 274 AD2d 633, lv denied 95 NY2d 767, where the Court held that the rule has no application where the plaintiff and the defendant have equal access to the facts surrounding the decedent's death; Ether v State of New York, 235 AD2d 685, 687; Rockhill v Pickering, 276 AD2d 1002).
Regardless, even were I to have granted the lessened burden of proof, and the arguable greater latitude in inferring negligence, Claimant would not prevail. It must be noted that Claimant was a passenger in the Johnson vehicle, not the driver, and in considering the underlying theories espoused, the purported foliage obscuring the stop sign, the placement of the stop sign and the topography of the intersection, all seemingly must rely on the driver's view, the driver's observations and perspective, and the driver's actions or inaction, not those of a passenger. The significant factor here is the demise of Erin Johnson, whose estate is not a party in this action, and who obviously cannot present testimony relative to the driver's view of the foliage, stop sign placement and intersection topography. Even allowing a Noseworthy inference due to Claimant's amnesia, when at best she was not seated in the driver's seat, but in a passenger seat and thus viewed the foliage, stop sign placement and topography at a different angle and perspective than the driver, cannot support an inference of negligence. As the Court of Appeals instructed in
Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, supra, at 334, "A plaintiff entitled to an amnesia charge may prevail on a lighter burden of persuasion but he must make some showing of defendant's fault" (emphasis supplied).
Without any supportive evidence, with my assessments of the photographic exhibits noted above, with the absence of an accident history in the northbound direction, and with both experts acknowledging visibility of the stop sign from a far greater distance than the 100 foot limit affirmed by the Fourth Department, the inference of negligence which Claimant desires is beyond the proof.

Claimant has alluded to the challenges presented in litigating accident cases in which no one is left to explain exactly why the mishap occurred, and urges the court to consider the fleeting moment of time that the driver had, and to avoid the "opportunity for detached reflection" that those attempting to reconstruct and analyze the accident have (
cf., Mickle v New York State Thruway Auth., 182 Misc 2d 967, 971). I have factored those considerations into my analysis, and applied them to facts and circumstances before me, and must conclude, to Claimant's detriment, that the sole cause of this accident was the inattentiveness of Erin Johnson.
I would be remiss in failing to acknowledge the tenacious, diligent and outstanding representation that Claimants have received from their counsel, extending over a period of more than ten years. The tragedy here however cannot be ascribed to the actions or inactions of the State of New York, and thus the claim must be, and hereby is, dismissed.

Claimant's Motion No. M-64042 and Defendant's Cross-Motion No. CM-64043 are both denied in accordance with this decision. All motions not heretofore decided are denied as moot. The Clerk is directed to enter judgment dismissing the claim.

February 21, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1]The claim of Bruce Rotoli is derivative in nature. Thus, unless otherwise specified, whenever Claimant is referred to in this decision, it shall mean Robin Rotoli.
  2. [2]The claim alleges the location as the Town of Murray, while the police report (Exhibit 1) notes the Town of Gaines. It appears that the accident occurred on the common border of both towns, and thus explains the dual references.
  3. [3]On May 16, 1996, a Stipulation of Conditional Dismissal and Order was filed by the parties; on February 6, 1998, a verdict in Supreme Court was entered and on July 16, 1998, this action was restored to the Court of Claims trial calendar and discovery commenced. On February 16, 2000, the trial commenced and, after oral argument, I issued an Order of Preclusion and adjourned the trial to permit an appeal of that Order. On February 7, 2001, a decision was filed by the Appellate Division, Fourth Department (280 AD2d 1012) and on October 4, 2001, this trial resumed.
  4. [4]Exhibit M, legend G-3-4.
  5. [5]Exhibit 1.
  6. [6]There was a fourth fatality in this accident, an occupant of one of the other vehicles.
  7. [7]Exhibit 5, diagram by Dwight Hill, Investigator, Orleans County Sheriff. Not at issue here is the traffic control device for southbound traffic on Transit Road, north of Route 104.
  8. [8]Rotoli v State of New York, 280 AD2d 1012, supra, affirming my Order in Motion No. M-61173, filed March 7, 2000.
  9. [9]Exhibit L.
  10. [10]Exhibits K-1 and K-1-A.
  11. [11]Exhibit K-3-A.
  12. [12]Exhibit K-1.
  13. [13]Exhibit T and testimony of Gerald R. Suhr.
  14. [14]Exhibit U.