New York State Court of Claims

New York State Court of Claims

WINTHAL v. THE STATE OF NEW YORK, #2002-010-017, Claim No. 97239


Wet weather accident on Sprain not attributable to any negligence of defendant.

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):

Terry Jane Ruderman
Claimant's attorney:
BRAND, BRAND, MINTER & BURKEBy: Ronald Burke, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 26, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimants seek damages for injuries sustained on August 21, 1997, when Perlita D. Winthal (hereinafter claimant)[1] lost control of her car as she drove northbound, in heavy rain, on the Saw Mill River Parkway and proceeded off the roadway and into a tree. Claimant contends that defendant was negligent in its maintenance of the parkway's drainage system and its failure to provide a paved shoulder, a clear zone, and/or a guardrail to prevent motorists from impacting with trees. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that at 6:30 a.m. on August 21, 1997, she was driving northbound, at a speed of 40 to 45 mph,[2] from her home in Yonkers to her place of employment in Tarrytown. Claimant was familiar with the roadway because she had traveled the route five times a week for the five years prior to her accident. It had been raining since the previous night and the road appeared dark and shiny to claimant. As she proceeded, claimant felt water on the undercarriage of her car, although she did not see a pool of water on the road. When she was approximately two tenths of a mile north of the Ravensdale Bridge, a car passed her and caused splashing water to cover her windshield. Claimant applied her anti-lock brakes. Her car slid off the road and hit a tree located approximately twenty feet beyond the road.
Ten minutes after the accident, a police officer arrived at the scene.
Claimant did not remember if she had told the officer that she was splashed by another car. The police report indicates that the accident occurred at milemarker 6.0 and "operator states that she was cut off by an unknown vehicle, causing her to slide off the road and down an embankment into a tree" (Ex. B). Claimant could not identify where her car had left the road or which tree she had impacted. There were no witnesses to the accident.
Dr. Edmund Cantilli, a licensed professional engineer, offered expert testimony on behalf of
claimants. Cantilli photographed the scene. The parkway had a gravity drainage system, which Cantilli characterized as primitive. He explained that water flowed down the grade of the road and into a drain at the curb cut. Cantilli testified that New York State Department of Transportation ("DOT") personnel cleared the drains in response to complaints of clogging, rather than as part of a scheduled maintenance plan. He contended that the parkway's accident history, in conjunction with the maintenance reports that showed frequent need for clearing debris from the drains, should have alerted defendant to a problem for motorists traveling in rainy weather (Exs. 26, E). Cantilli did concede, however, that there were no accidents within 500 feet of claimant's accident.
Based upon Chapters 3 and 7 of the Highway Design Manual (the "Manual")
, Cantilli offered the following opinions. He testified that since the 1950's, the standard width of travel lanes on parkways has been 12 feet and that paved shoulders and clear zones of 30 feet are recommended. Here, the lanes were 11 feet wide and there were no paved shoulders. Cantilli opined that the failure to provide a shoulder was a departure from acceptable standards of highway safety and a significant contributing factor to the accident because the lack of a shoulder deprived claimant of the ability to regain control of her vehicle. Cantilli acknowledged that trucks are prohibited on the parkway and that he did not consider that the parkway crossed over bridges and under underpasses. He thus conceded that it was not desirable to have a 12 foot lane that narrows to accommodate such structures.
In the vicinity of the accident, six to ten feet from the road, there was a row of bushes stretching 150 to 200 feet in length; thereafter there was a grassy down slope. A guiderail was posted at each end of the bushes. Cantilli opined that the guiderail should have been continuous throughout the entire length of road, including the bushy area.
Pursuant to a 1984 contract, guiderails were erected at various locations along the parkway. Cantilli opined that guiderails should have been erected in the area within 100 to 200 feet of claimant's accident, even though that would eliminate any recovery area. Cantilli had no knowledge regarding the clear zone specified in the contract, nor the considerations leading to engineering judgments that were made. Cantilli acknowledged financial considerations should be addressed in rebuilding highways; he stated, however, that such considerations should never intrude on safety.
Cantilli testified that the 50 mph speed limit was not appropriate for the area of the accident, however, he conceded that there should not be separate speed limits for different sections of the road.
Cantilli also maintained that defendant should have posted slippery when wet signs since, as shown by defendant's own video depicting another wet weather day on the parkway (Ex. K), the State must have known that water collected in the area. Cantilli, however, could not cite to any particular provision of the Manual of Uniform Traffic Control Devices to support the claimed need for signage. Cantilli also conceded that there will always be some water on the road along the curb.
The Court finds that
Cantilli's investigation of the accident was flawed as his testimony revealed that he did not measure the slope; nor the distance claimant had traveled to the supposed tree. According to Cantilli, it was irrelevant which tree claimant had struck. Additionally, Cantilli did not know that claimant had anti-lock brakes and he conceded that a car with anti-lock brakes would continue straight unless it was steered in another direction.
Thomas Mason, employed by DOT for 30 years and
the Assistant Resident Engineer responsible for maintenance on the parkway since 1991, testified on behalf of defendant. According to Mason's records, there have been no complaints regarding the area of claimant's accident for the three years prior to that date. Additionally, the maintenance records for the day of the accident do not mention flooding. He stated that this area was not one prone to flooding.
Mason explained that the drainage system operated on principles of gravity with water flowing into slot drains. Normal maintenance required visual inspection to alleviate clogging. With each storm, the slot drains are checked for blockage. Improvements were made in the 1970's and 1980's in Yonkers, Ardsley and Pleasantville, including repavement of the roadway. These projects did not involve the accident site.

Nicholas Pucino, a professional engineer with DOT and its predecessor agencies for over 30 years before retiring, offered expert testimony on behalf of
defendant. From 1979 to 1989, Pucino was in charge of the State Highway Safety Improvement Program. He was responsible for identifying roadway deficiencies and, based upon accident report analysis, designing improvement projects. In 1989, until his retirement in 1991, Pucino was DOT's regional construction engineer and supervised the inspection and construction of roads in Westchester. He described the parkway as an expressway limited to passenger cars. The first section was built in 1926 and the last portion was completed in 1954. The parkway had been subject to periodic flooding in Yonkers, south of the accident, and in Hawthorne, north of the accident. Several projects substantially corrected the problem except that in Yonkers, the parkway still floods necessitating roadway closure. However, in the event of a closure, the roadway would be closed before a flood condition would arise in Hastings, the area of claimant's accident.
Following a study of the roadway, a 1965 contract provided for widening the travel lane from 10 to 11 feet, adding a median barrier, altering the drainage in the area of claimant's accident,
installing new guiderails, and adding new signalization.
Pucino participated in a later study that led to the 1984 contract to improve safety on the parkway. An analysis of accident fatalities involving trees led to a targeted tree removal; a 20 foot clear zone to handle 80 percent of the cars that left the road; and the installation of guiderails where trees could not be removed or where the slope warranted a guiderail. Aesthetics and environmental concerns were considered and local officials and the public were also consulted about the improvement project
. Pucino noted that guiderails themselves are hazards, therefore, where possible, it was preferable to remove trees and provide motorists with a recovery area. Pucino exercised his engineering judgment in personally locating the guiderail sites.
Pucino reviewed the accident history summaries for 1985 through 1989 and 1995 through 1997. He concluded that there was no significant wet weather pattern.
Pucino considered possible sources of splashing on claimant's windshield. The road was curbed, which resulted in water on the travel lane and according to Chapter 8 of the Highway Design Manual, it was permissible for a puddle to cover one half of the travel lane.
He explained, however, that the road was crowned; therefore the left lane does not become flooded until after the right is flooded. The only possible cause of the splashing would be the far southbound lane, and that was at a distance of 26 feet from claimant's car. Furthermore, splashing goes to the outside.
According to Pucino, the width of the travel lane had no bearing on the accident because there was no allegation that claimant had been side swiped by another vehicle. When the lanes on the parkway were widened, detailed accident studies were analyzed taking into consideration road conditions and injuries. Eleven foot travel lanes are acceptable according to the American Association of State Highway Transportation Officials and the Manual, particularly on a roadway that prohibits trucks.

In the area of the accident, the grass shoulder was wider than three feet. The cross slope of the shoulder measured one on five to one on six, which Pucino characterized as traversable and recoverable; a guiderail is not warranted unless the slope is one on two and a six foot drop. The clear area was 300 feet long with a mild slope.
Pucino conceded that within the clear zone, there were some small trees within 20 feet of the road. He explained that in exercising engineering judgment, not all trees are removed and it is preferable to leave a tree in the open space rather than to install a guiderail. He concluded that, under the circumstances, a guiderail was not appropriate in the area of claimant's accident.
Pucino disagreed with the characterizations by claimant's expert of the drainage system as primitive. Pucino described the drainage system as functional with routine maintenance. In his view, slot drains were preferable over catch basins because catch basins present operational and maintenance problems within the travel lanes of this and other parkways.

In Pucino's opinion, the mountable curb had no effect on the accident because the car was probably spinning before it approached the curb. Pucino conceded that the parkway does not comply with the current Highway Design Manual, however there is no requirement that existing roads be rebuilt to comply with current standards. Chapter 7 of the Manual applies to roadway rehabilitation and Pucino concluded that the lane width and shoulder were authorized by the Manual.

It is well settled that the State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (
see, Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579, 584). The State, however, is not an insurer of the safety of its roadways and the mere happing of an accident on the roadway 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). Merely because water is present on the roadway at the time of an automobile accident does not establish that the State was negligent (see, Timcoe v State of New York, 267 AD2d 375). It is claimants' burden of establishing that the State was negligent and that such negligence was a proximate cause of the accident (see, Bernstein v City of New York, 69 NY2d 1020, 1021-22; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519). 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 remedy it (see, Brooks v New York State Thruway Auth., supra; Valentino v State of New York, 62 AD2d 1086). The State "is not obligated to employ a constant vigilance over its highway network, but only to pursue reasonably plausible measures" (see, Freund v State of New York, 137 AD2d 908, 910-11).
Proof of prior accidents at the same place and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice (
see, Vega v Jacobs, 84 AD21d 813). In support of this proposition, claimants cite to exhibits E, 18, 25 and 26. Claimants argue that exhibit E shows three prior similar accidents: November 7, 1996; January 16, 1997; March 31, 1997 (Claimant's Post-Trial Memorandum, p. 7). The November 1996 accident cites, "FOLLOWING TOO CLOSELY" as an apparent factor (Ex. E, p. 3). The March 1997 accident does not appear to be similar because the weather condition was snow and the accident was caused by an "UNSAFE LANE CHANGE" (Ex. E, p. 4). The January 1997 accident, which also appears to be the same accident as exhibit 18, is arguably a substantially similar accident because it occurred due to wet weather. It occurred, however, at mile marker 5.6, .4 mile from claimant's accident site. Likewise, exhibit 25 refers to a 1997 accident that occurred due to a puddle at mile marker 5.7. Claimants argue that exhibit 26 shows 37 wet weather accidents between 1985 and 1989 and that the exhibits show that the roadway was dangerous between mile markers 5.9 and 6.0 (Claimants' Post-Trial Memorandum at pp. 10, 11). Exhibit 26 lists only two wet weather accidents on the northbound roadway between these mile markers (Ex. 26, pp. 4, 6). In sum, and upon careful review of the evidence, the Court finds that claimants did not show a substantial number of prior similar accidents sufficient to establish notice to defendant or a dangerous condition.
The evidence was insufficient to establish that flooding in this area was a recurrent condition of which defendant should have been aware (
see, Freund v State of New York, 137 AD2d 908, supra). Claimants have also failed to establish negligent maintenance (see, Sellitto v State of New York 250 AD2d 754 [claimant failed to prove that the State either caused a dangerous condition or had notice of a recurrent dangerous condition existing in a specific area]; Green v County of Niagara, 184 AD2d 1044, [county not liable where car went out of control after contacting water on roadway; no evidence that county had notice of a water drainage problem prior to the accident]). Additionally, claimant failed to establish that any negligence attributable to defendant was a proximate cause of her accident, i.e.:
[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury.

Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also, Bernstein v City of New York, 69 NY2d 1020, supra; Marchetto v State of New York, 179 AD2d 947, supra).
In the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (
see, Friedman v State of New York, 67 NY2d 271, supra; Weiss v Fote, 7 NY2d 579, supra). Additionally, "[s]omething more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public"(Weiss v Fote, supra, at 588).
Claimants argue that defendant is not entitled to a qualified immunity in its highway planning decisions because defendant did not plead qualified immunity as an affirmative defense. CPLR 3018(b) Affirmative defenses provides in pertinent part:
[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading.

Here, the claim alleged negligent design, construction and maintenance of the highway. Thus, there was no surprise as to an issue of fact not raised in a prior pleading. Moreover, whether defendant is entitled to a qualified immunity is a question of law. Accordingly, the Court finds that failure to affirmatively plead qualified immunity did not unduly prejudice claimants and claimants' argument is rejected. The Court also finds the testimony of claimants' expert to be speculative and unpersuasive.
Claimant was bound to see that which should have been seen with the proper use of her senses (
see, Weigand v United Traction Co., 221 NY 39; Sappleton v Metropolitan Suburban Bus. Auth., 140 AD2d 684). She was obligated to operate her car at a rate of speed and in such a manner of control as to avoid an accident (see, Oberman v Alexander's Rent-A-Car, 56 AD2d 814, 815). On the record before this Court, it is reasonable and probable that the sole proximate cause of the accident was claimant's inattentiveness while driving in heavy rain (see, Schichler v State of New York, 110 AD2d 959, affd 66 NY2d 954; Marchetto v State of New York, 179 AD2d 947, supra).
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


March 26, 2002
White Plains, New York

Judge of the Court of Claims

[1]The claim of Louis E. Winthal, claimant's husband, is derivative.
[2] The speed limit was 50 mph.