Claimants seek damages for injuries sustained on August 21, 1997, when Perlita
D. Winthal (hereinafter claimant)
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,
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
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
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
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
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
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
, Friedman v State of New York
, 67 NY2d 271; Weiss v
, 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
892). Merely because water is present on the roadway at the time of an
automobile accident does not establish that the State was negligent
, 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
, 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.
; 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
Proof of prior accidents at the same place and under substantially similar
circumstances may be offered on the issues of foreseeability of danger and
, 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
The evidence was insufficient to establish that flooding in this area was a
recurrent condition of which defendant should have been aware (
, 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
, 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
, Bernstein v City of New York
, 69 NY2d 1020, supra
Marchetto v State of New York
, 179 AD2d 947,
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
, 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
, 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