New York State Court of Claims

New York State Court of Claims

GERWITZ v. THE STATE OF NEW YORK, #2002-005-025, Claim No. 100439


Synopsis


The State is not liable when a bicyclist riding on the right fog line, at the edge of the shoulder, was struck from behind by a motorist who drove onto the shoulder of the Lake Ontario State Parkway.

Case Information

UID:
2002-005-025
Claimant(s):
JULIE A. GERWITZ, AS ADMINISTRATRIX OF THE ESTATE OF CHRISTOPHER P. GERWITZ
Claimant short name:
GERWITZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100439
Motion number(s):

Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Trevett, Lenweaver & Salzer, P.C.By: James C. Gocker, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 2, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant Julie A. Gerwitz, as Administratrix of the Estate of Christopher P. Gerwitz,[1]
alleges in this claim for wrongful death that "On July 22nd, 1997, at approximately 6:00 p.m., Christopher P. Gerwitz was riding his bicycle on the Lake Ontario State Parkway, approximately one-quarter of a mile west of the East Manitou Road exit in the area of milepost marker 947A-4302-115 in the Town of Greece, County of Monroe and State of New York." At that time and place, Mr. Gerwitz, on his bicycle, was struck from behind by a motor vehicle operated by Francis J. Winslow (Winslow) and as the result of this collision, Mr. Gerwitz, an off-duty New York State Trooper, died. This trial was bifurcated and this decision addresses only the issue of liability.
Mr. Gerwitz, a very experienced bicycle rider, was riding his bicycle in a westerly direction on the shoulder of the Lake Ontario State Parkway (Parkway) in an area delineated as the north fog line while Mr. Winslow was operating his motor vehicle also in a westerly direction in the north lane of travel. Mr. Winslow then permitted his vehicle to cross from the travel lane over the north fog line onto the shoulder, and to remain on the shoulder area for some 200 feet until he struck the rear tire of the Gerwitz bicycle, causing the death of its rider, the decedent Christopher Gerwitz. I do not credit Winslow's statement that from the moment he first saw the decedent, until the point of impact, cars were passing him in the left passing lane, and the passing cars prevented him from moving into the passing lane as he approached Gerwitz's location.

The weather was sunny and clear, the pavement was dry, and the sun was high enough that glare did not play a part in this accident. The section of the Parkway at the scene of the accident was straight and level. Mr. Winslow was traveling somewhere between 45 and 55 mph just prior to striking the Gerwitz bicycle and he did not slow down, apply his brakes, or take any evasive action.[2]
Speed was not a factor in this accident. Contrary to Winslow's account, I find that no other vehicles were in the passing lane to his left and he was not prevented from moving his vehicle to the left and would have been able to do so had he realized that it was necessary. Nonetheless, he drove directly into the back of the bicycle while both were traveling in the same direction.
The Accident Reconstruction Report[3]
of Sgt. James J. Buchholz (Buchholz) recorded:
The skid extended 191.75 feet before leaving the pavement and entering the grass slope. The mark then travelled through the grass 95 feet while braking, with a final rollout of an additional 82 feet.
This was a total of some 368 feet after the collision.
Traveling behind Winslow was a Mr. Dilcher, who stated to Investigator Hill that:
. . .[T]he operator of V-1 [Winslow] had been traveling with the passenger side tires on the wrong side of the white line by a distance of what Mr. DILCHER estimated to be approximately a tire width.[4]

Winslow consented to a vehicle search (his braking system was found to be unsatisfactory) and to a blood test for the presence of alcohol and drugs, the results of which proved negative.[5]
The Accident Reconstruction Report of Buchholtz concluded (Exhibit 1, p 26):
OPINION
: Mr. WINSLOW, while operating the 1986 Nissan, failed to use due care while passing a bicyclist and further, moved from his lane onto the shoulder of the highway at a time when it was unsafe to do so. The results of Mr. WINSLOW's actions caused a collision with the bicycle being operated by Mr. GERWITZ. The collision resulted in the death of Mr. GERWITZ.
As the result of his actions while operating his vehicle, Mr. Winslow was charged with,

and pled guilty to, violating §1128 (a) of the Vehicle and Traffic Law.[6]
New York State has enacted a comprehensive statutory scheme permitting and even encouraging the shared use of its State roadway system for bicyclists. The legislature has defined the usable surface for bicycles (and tricycles) when it permitted their use on public roads including parkways (excluding horse and horse light carriage roads) in §316 of the Highway Law, titled "Entitled to free use of highways."[7]
It then set standards for both motorized vehicles and bicyclists when it defined the rules of the road for both to follow with a simplistic concept that both were to obey. All bicyclists operating on State roadways as defined in §316 of the Highway Law were to ride "near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder" pursuant to §1234 of the Vehicle and Traffic Law, titled "Riding on roadways, shoulders, bicycle or in-line skate lanes and bicycle or in-line skate paths,"[8] and under §1146 of the Vehicle and Traffic Law, drivers were to "exercise due care to avoid colliding with any bicyclist."[9] And finally all bicyclists were subject to the traffic laws of New York State as stated in §1231 of the Vehicle and Traffic Law.[10]
To define the areas that bicyclists were to travel upon, the Legislature specified three permitted paths of bicycle travel. It approved (1) the shared roadway pavement with motorized vehicles in §316 of the Highway Law;[11]
(2) a special lane of roadway in a "Bicycle lane" in §102-a of the Vehicle and Traffic Law;[12] and it also envisioned (3) a special surface reserved for non-motorized vehicles in a "Bicycle path," defined in §102-b of the Vehicle and Traffic Law as:
A path physically separated from motorized vehicle traffic by an open space or barrier and either within the highway right-of-way or within an independent right-of-way and which is intended for the use of bicycles.
The Lake Ontario State Parkway starts in the east at the town line of Irondequoit in Monroe County and terminates in the west at Lakeside Beach State Park in Orleans County. It is a four-lane divided highway with limited access containing grade and grade-separated access for different parts of its length. The speed limit is 55 mph. It is part of the "Seaway Trail."[13]

When first constructed in the early 1950's, the Parkway was a scenic linear parkway which paralleled the south shore of Lake Ontario. Originally it was designated a rural minor arterial highway under the control of the New York State Office of Parks and Recreation, and bicycles were prohibited. In 1975 the Parkway was transferred to the New York State Department of Transportation (DOT) which was responsible for its maintenance and operation.

Prior to 1978 there were no improved shoulders upon the portion of the Parkway where this accident occurred, but thereafter six-foot wide improved asphalt concrete, red-colored shoulders were designed and constructed, a project that was finally completed and accepted in 1979. This construction was pursuant to Chapter 7 of the Highway Design Manual. On May 1, 1980, bicycle use was permitted. The guidance for highway construction was the 1973 standard of four-foot shoulders. I also note that the 1980 Highway Design Manual also provided for four-foot shoulder widths.

In 1992, the Parkway in this area was paved with a single course overlay of asphalt concrete, the pavement was newly striped, and the road and shoulder were then uniformly black. This overlay project did not mandate or require an engineering or safety study. However, the new striping created a two-foot center shoulder, reduced the two twelve-foot wide travel lanes to eleven feet each (not including the six-inch passing lane stripe or the six-inch center lane stripe) and created a new six-inch fog line in the six-foot shoulder area. The standard for shoulder width continued to be the four-foot standard that existed in 1978, and I find that the Defendant properly relied upon the "vintage engineering rule."[14]
I also note that the shoulder standard in 1986 was a four-foot standard and, under both, the 1992 repaving project did not subject the Parkway to an eight-foot standard. Claimant also alleges that the shoulder area in 1992 was reduced by the six-inch fog line stripe, a conclusion that I do not find. The shoulder area outside the travel lanes continued to be six feet in width. Claimant also alleges that the reduction of the travel lanes to eleven-foot widths created a dangerous condition and required a safety study, a theory which I also do not find, as each lane was eleven feet six inches wide when the striping is included. Lane striping, left or right fog lines, and lane separation lines, are all considered part of the travel lanes for measurement purposes of lane widths and shoulder widths. I make these findings above for this record, but I stress that the proximate cause of this accident had nothing to do with the roadway and shoulder surfaces as constructed, maintained or signed, and indeed, I find that the sole proximate cause of this accident was the negligent conduct of Winslow.
Claimant vociferously disputes application of the principle usually referenced as the "vintage engineering rule" or the "vintage highway rule." The rule holds that the State is not obligated to undertake expensive reconstruction of an older highway, even where highway design standards have changed since the original construction, or, stated another way, that the adequacy of the highway should be judged according to engineering standards prevailing at the time the highway was designed and built (
Van De Bogart v State of New York, 133 AD2d 974).
There are two circumstances when the State may not rely upon the vintage highway rule. First, when it engages in a project that involves a reconstruction of the road, as opposed to a repaving of the road. As I discuss below, I have rejected the Claimant's arguments that the 1992 repaving project was anything more than a simple repaving project. I realize that the thrust of Claimant's arguments under this theory is that the State's planning in its repaving project was unreasonable, or that it lacked a reasonable basis. Claimant attempted to prove that the purported modifications were more than merely repaving and actually a reconstruction, urging that the repavement created marked alterations to the road because it failed to maintain a color-texturized surface at the most adjacent portion of the shoulder, and with arguments about the measurement of the road and whether the widths of the striping (painted lines) may be included in such linear measurements. Claimant urged that the repaving was actually an alteration to the design of the Parkway. I do not agree. I find that the 1992 repaving was nothing more than a maintenance project, and the indicia of alteration that Claimant raised were incidental to and part of repaving.

The second circumstance which eviscerates reliance upon the vintage highway rule is notice of a dangerous condition, a circumstance that I have found does not exist here. I am not loath to hold the State culpable in circumstances where it was on notice of a dangerous condition and was under some obligation to update a roadway or appurtenance, as I did in
Kerns v State of New York, (226 AD2d 1046, appeal dismissed 91 NY2d 829). The dissent at the Fourth Department reiterated the law:
In maintaining older highways, the State is not obligated to undertake expensive reconstruction simply because safety design standards have changed (citations omitted). The State's duty is measured, not by current design standards, but by reasonableness (see, Tomassi v Town of Union, 46 NY2d 91, 97). In our view, claimant failed to establish that the road as it existed on June 8, 1990 was not reasonably safe for drivers who obeyed the rules of the road (see, Tomassi v Town of Union, supra) (id. at 1047).
The appeal was dismissed on the ground that the dissent at the Fourth Department was not on a question of law (91 NY2d 829). Thus, while I found in claimant's favor in Kerns, supra, and here I do not, the issues I face today are questions of fact, not law. Claimant cites Kerns for the proposition that if the State is on notice of a dangerous traffic condition, the duty to undertake a reasonable study is implicated. I have found that there is no proof that the State was on notice of a dangerous traffic condition because of a dearth of related, geographically proximate prior bicycle accidents, which would have warranted a study with an eye toward alleviating the danger.
Claimant also alleges that the shoulder was unridable, unsuitable and unsafe for bicyclist use due to pavement cracking and deterioration. She assumes that the shoulder area that Mr. Gerwitz was approaching was in the condition as shown in Exhibits 75 and 77 (for example), and theoretically caused him to move from the middle of the shoulder to the fog line, making him more vulnerable to vehicular traffic. I do not credit this theory as it assumes facts not in evidence (the speculation of what was in Mr. Gerwitz's mind and what he saw), and I find that the location of the bicycle in the fog line was a proper, legally permissible and authorized location to ride; that the strict shoulder maintenance standards Claimant attempts to rely on herein are reserved for "Bicycle lane" travel and "Bicycle path" travel standards, and finally the fact that the Winslow vehicle was twelve or more inches into the shoulder area. The addition of ‘rumble strips' were not mandated or warranted as of 1978, and thus the Defendant was under no duty to install the same.[15]
In the absence of a duty there can be no liability.
The issue of the decedent's thought processes in riding his bike exactly where he did, raises the question of Claimant's asserted 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. In New York State, where the parties are on equal footing insofar as accessibility to the facts or knowledge of the occurrence, the Noseworthy doctrine has no application (Lynn v Lynn, 216 AD2d 194 [First Department]; Gayle v City of New York, 256 AD2d 541 [Second Department], since "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; Orloski v McCarthy, 274 AD2d 633, lv denied 95 NY2d 767 [Third Department] 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). Thus, where, as here, the Defendant is in an equally disadvantaged position as the Claimant in investigating the facts underlying the accident, Claimant should not be entitled to a diminished burden of proof.
Claimant also contends that there should have been specific signing of the roadway, including pavement signing, to alert operators of motor vehicles as well as bicyclists that the Parkway was a shared roadway. This would alert both to be on the lookout for and consider the safety of each other. This is a standard that is not a warrant, nor is it required by any authority. Where it is warranted and where authority is cited, are the two special classifications set forth in §§102-a and 102-b of the Vehicle and Traffic Law, respectively, for a special designated Bicycle lane or a physically separated Bicycle path. Such requirements for signing, special maintenance, and special regular inspection are obviously necessary and mandatory under those classifications, where the surface and sign requirements are significantly increased from the shared use standard. However, this is not the situation for this accident on this Parkway. This is a shared use Parkway and is governed by the statutes of the State of New York and the regulations and standards of the New York State Department of Transportation (DOT). No statutes, regulations or standards were violated, nor were any of them the proximate cause of this accident.

Claimant further alleges that the Parkway was a ‘designated bicycle route' as it is listed by the Genesee Transportation Council (a Metropolitan Planning Organization [GTC]) and I find that the Parkway was so designated in its literature. Since such a designation was made, Claimant then theorizes that issues of proper design and increased maintenance standards to address bicycle safety must be addressed and are the responsibility of the State. Those issues include the provision of adequate bike path width and separation from adjoining motor vehicles; the provision of road shoulder/bikeway widths and the continuing maintenance of its surface; the provision of signage designating the bikeway for both motorists and bicyclists; the provision of additional safety warnings such as rumble strips; and the higher degree of maintenance of the pavement surface of the shoulder/bikeway, including consideration for the provision of an independent bike path which did not adjoin a highway. In short, due to this designation by the GTC, the shoulder did not meet standards and was not safe for bicyclists at the time of this accident.

I find that the GTC did list the Parkway as a "designated bicycle route"[16]
in its publications. But, and this is a big but, the State is not the GTC. The GTC is an amalgamation of regional government officials, which included DOT, but it is neither a political subdivision of the State of New York, nor is it under the control of the State of New York, nor can its actions bind the State of New York. Thus the Defendant contends that the State of New York, the Defendant here, never designated the Parkway a ‘designated bicycle route.' I can find no such designation by the State or its DOT in the evidence before me, and, given the thoroughness of Claimant's presentation of the proof, I must conclude that no such proof exists. I find that the GTC has no authority to issue such designations on behalf of the State of New York nor does it have authority to bind the DOT or the State of New York.
Claimant raises the issue as to why this section of the Parkway where decedent died was not improved with wider shoulders, as were the other sections. The Lake Ontario State Parkway, for unclear but seemingly irrelevant reasons, was divided by Region 4 of DOT into at least four geographical sections for upgrade construction projects. The section concerned in this accident (from Payne Beach Road to the Interstate Route 390 intersection) was scheduled in 1992 for a Transportation Improvement Material Project (TIMP) or Paving Initiative Project, which would be completed by State employees (DOT personnel) with private suppliers of materials, spreaders and rollers. It was designated as 1992 project TIMP 4-4-2[17]
, and it provided for a one-inch armor asphalt concrete overlay for seven center line miles or twenty-eight lane miles, providing for twenty four feet of pavement width and six feet of shoulder width. There were no design plans, no safety plans and no studies about bicycles. It was a simple paving project to overlay the existing concrete asphalt which was deteriorating. There was neither a need nor a requirement for design plans, engineering studies or safety studies. While the other three geographical portions of the Parkway did undergo substantial upgrades, upgrades which did require design and planning and required safety studies,[18] this TIMP project did not.
The allegation that there was a dangerous condition of which the Defendant was on actual or constructive notice is not supported by evidence before me.[19]
Claimant presented proof of eight reported accidents, six of which involved bicyclists, but not one of those occurred in the area of this accident. I do not credit the Claimant's position that any individual bicycle accidents occurring anywhere on the entire length of this Parkway are analogous to all the remaining areas on the long and varied terrain of the remaining Parkway. There are simply too many variables, including the differing paths, shoulders and lane widths, sunlight, locations of the bicyclists, times of day, varying weather conditions, to permit an inference of constructive or actual notice of a dangerous condition, and I decline to make such a finding.
In 1983, Interstate Route 390 was completed and its northern terminus was connected to the Parkway. Route 390 also provided an independent parallel bicycle path which connected to the shoulders of the Parkway, which was only a shared use roadway and did not contain a bicycle path or bicycle lane. The increase of motor vehicles or bicyclists due to this new access and the designation of the Parkway as part of the "Seaway Trail" did not warrant or trigger a duty to perform additional safety studies.

Claimant alleges that the negligence of the State of New York was not only a proximate cause of the accident, but the principal cause of the accident which led to the decedent's death. She claims that the shoulder at the scene of the accident was unsafe for bicycles due to the State's failure to properly maintain the shoulder surface, as well as being too narrow.

Claimant alleges that the Parkway did not comply with 1992 rehabilitation standards as to (1) the size of the shoulder widths, (2) the lack of bicycle safety studies, (3) the travel lane diminishment in the 1992 single course overlay project, and (4) the inadequacy of the studies that were conducted.

The Olinger 1979 study[20]
and the windshield survey/drive-by report[21] for bicycle safety were sufficient and adequate for a shared roadway use concept. There were no standards for special signage or rumble strips. The Parkway was not being considered for "Bicycle lane" or "Bicycle path" concepts, but rather it was a shared use concept. Bicycles have the right to share the usual roadways of this State with motorized vehicles, and bicycle riders accept the inherent danger of the errant motorist.
It is not necessary to reach the issues of qualified immunity under
Weiss v Fote, 7 NY2d 579 (1960), nor the issues of inadequate maintenance, as I find the sole proximate cause of this accident is Winslow's operation of his vehicle. However, in the event of further review, I would find entitlement to a qualified immunity for the decisions and studies of the State in approving the shared use concept. The maintenance of the shoulder was not a causation issue in this accident. These findings are based upon the only use of this parkway - a shared use concept. I further find that the "vintage engineering rule" applies due to the minor reconstruction of the P.I.N. 4076.22 project. The Parkway was reasonably safe for the shared use concept for bicycles and motorized vehicles under the statutory scheme of the Legislature.
It is well established that the State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (
see, Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579, supra). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (see, Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). The claimant must prove negligence on the part of a defendant and that the negligence was a substantial factor in producing the accident (Bernstein v City of New York, 69 NY2d 1020). Generally, liability will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (see, Brooks v New York State Thruway Auth., supra; Rinaldi v State of New York, 49 AD2d 361, 363).
I have considered all issues raised by Claimant in this trial, all the proof presented and the post trial submissions. As numerous and inventive as they are, and as cogently presented as they were, they cannot obscure the single, foremost uncomplicated conclusion that inevitably must be drawn, and it is my ultimate finding: Winslow's operation of his motor vehicle was the sole cause of this accident and Christopher Gerwitz's death.

The Parkway shoulder and road surface did not contain "striping, signing and pavement markings for the preferential or exclusive use of bicycles" and obviously did not adjoin a "path physically separated from motorized vehicle traffic." This was a shared use parkway, with both motorized vehicles and bicyclists having equal access to it. The rules of the road apply, and Mr. Gerwitz followed those rules by riding on the right-hand side of the roadway within the marked shoulder area, while Mr. Winslow violated the rules applicable to motor vehicles and drove his vehicle unsafely off from his lane of traffic and encroached and crossed onto the clearly marked shoulder area. His actions, and his actions alone, were the sole proximate cause of this tragic accident. Mr. Gerwitz did not contribute in any way, he was where he had a right to be, doing what he had a right to be doing.

As noted above, I do not find that the
Noseworthy doctrine is applicable, as the conditions of the road surface, its maintenance, size and location have nothing to do with the causation of this accident. The Parkway, at the scene of this accident, was reasonably safe for reasonably prudent motorists and bicyclists. I do not find that the shoulder of the Parkway at the occurrence of this accident was unridable or unsafe. I do find that the sole proximate cause of this accident was the action of Mr. Winslow in violating §1146 of the Vehicle and Traffic Law by failing to exercise due care "to avoid colliding with any bicyclist . . . upon any roadway. . .", as well as §1128(a), moving from a lane of traffic without "first ascertain[ing] that such movement can be made with safety," the statutory violation to which he pled guilty.
In summary, I find that the 1992 project was a repaving project and that the Defendant was only required to meet the pre-existing 1973 standards; that the sole proximate cause of this accident was the operation of the Winslow vehicle in traveling on the shoulder of the roadway and failing to grant the right of way to a bicyclist; that the State is entitled to rely on the "vintage engineering rule"; that the State has qualified immunity in its highway safety planning decisions (
Weiss v Fote, 7 NY 2d 579, supra), and that the State was not on actual or constructive notice of a dangerous condition involving bicycle travel on or usage of the Parkway. I do not credit Claimant's theory that the reason Gerwitz was riding on the fog line was because the condition of the shoulder pavement in front of his path of travel was dangerous, as it is pure speculation and not creditable. The Parkway was reasonably safe for travel for both motorists and bicyclists who exercise prudent and reasonable actions in the operation of their respective motor vehicles and bicycles.
All this having been said, through no fault of his own, a young New York State Trooper is dead, his widow and young children are forever imbued by the tragedy, and his family, friends and colleagues have only their memories to sustain them. It is clear to me that Winslow, the sole cause of the accident, was negligent and inadvertently struck the decedent from behind. Claimant received the benefit of superb lawyering from highly skilled counsel, who raised innumerable theories of State culpability. But my task is to separate the wheat from the chaff, to discern the actual from the theoretical, and, when those analyses are concluded, the blame cannot be shared, and the State cannot be held culpable.

Accordingly, the claim must be and hereby is dismissed. All motions not heretofore ruled upon are now denied.

Let judgment be entered accordingly.


June 2, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




[1]Claimant Julie A. Gerwitz was issued Letters Of Administration by the Surrogate's Court of Monroe County on August 1, 1997.
[2]Exhibit 1, pp 3-4. Investigator Reginald L. Hill, in the New York State Police Investigation Report, stated that "[Winslow] saw a person riding a bicycle about a quarter mile ahead of him as he was driving in the right lane and cars had passed him on the left. As the cars passed [he] stated that he looked in the side and/or rear view mirrors. . . . WINSLOW then hit the person on the bicycle because the cyclist swerved into the roadway directly in front of him. [He] further stated that as he looked in the rear view mirror the cyclist was still in the air and at that time began to pump the brakes in an effort to bring [his vehicle] to a stop."
[3] Exhibit 1, p 24.
[4] Exhibit 1, pp 4 and 13. And the report continues on page 5 indicating that the Winslow vehicle "was driven with the front passenger tire onto the roadway shoulder on the wrong side (emphasis supplied) of the fog line for motor vehicle travel causing the collision resulting in the death" of Gerwitz.
[5] Exhibit 1, pp 15 - 21.

[6] Section 1128. Driving on roadways laned for traffic.
Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:
(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

[7] Section 316. Entitled to free use of highways.
The authorities having charge or control of any highway, public street, park, parkway, driveway, or place, shall have no power or authority to pass, enforce or maintain any ordinance, rule or regulation by which any person using a bicycle or tricycle shall be excluded or prohibited from the free use of any highway, public street, avenue, roadway, driveway, parkway, park, or place, at any time when the same is open to the free use of persons having and using other pleasure carriages, except upon such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages.

[8]Section 1234. Riding on roadways, shoulders, bicycle or in-line skate lanes and bicycle or in-line skate paths.
Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:

(a) Upon all roadways, any bicycle or in-line skate shall be driven either on a usable bicycle or in-line skate lane or, if a usable bicycle or in-line skate lane has not been provided, near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder. . . .

[9] Section 1146. Drivers to exercise due care.
Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian or domestic animal upon any roadway and shall give warning by sounding the horn when necessary.

[10] Section 1231. Traffic laws apply to persons riding bicycles or skating or gliding on in-line skates.
Every person riding a bicycle or skating or gliding on in-line skates upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this title, except as to special regulations in this article and except as to those provisions of this title which by their nature can have no application.
[11] Section 316. Entitled to free use of highways (see footnote 7, supra).

[12] Section 102-a. Bicycle lane.
A portion of the roadway which has been designated by striping, signing and pavement markings for the preferential or exclusive use of bicycles.

[13]Highway Law §342-f. Portion of state highway system to be designated as the "Seaway Trail":
Once inside Lakeside Beach State Park, the trail leaves route eighteen and follows Lake Ontario State Parkway, running roughly parallel to the Lake Ontario shoreline.
[14]See discussion, pp 7-9, infra.
[15]See my discussion on the "vintage engineering rule," supra, at pp 7-9.
[16]Exhibit 10.
[17]Exhibit 106, pp 13-15, etc.
[18]Exhibits 100, 101 and 102.
[19]Exhibit 44.
[20]Exhibit 5. This study, while signed by A. J. Kopczynski, Regional Director, was prepared by Olinger.
[21]Exhibit M.