Claimants, Evelyn E. Bonet and her husband Alfredo, seek damages for injuries
they sustained on August 5, 1993 at approximately 7:30 p.m. Mrs. Bonet was
driving a Chevrolet Blazer northbound on the New York State Thruway and Mr.
Bonet was a front seat passenger.
en route to the Bonet home in Orange County, when the Blazer was allegedly hit
in the rear by an unknown vehicle and pushed out of the right lane and onto the
shoulder. According to claimants, the Blazer went over a flattened guiderail,
became airborne, struck a cement culvert, became airborne again and struck a
tree. Claimants contend that defendants were negligent in their failure to
maintain the guiderail in an erect position and that such failure was a
proximate cause of claimants' accident. Defendants maintain that the guiderail
was not damaged prior to claimants' accident and that the cause of the accident
was Mrs. Bonet's driving. The trial of this claim was bifurcated and this
Decision pertains solely to the issue of liability.
Alfredo Bonet testified that
from May 1993 to the date of the accident, he and his wife had commuted together
to work from their home in Newburgh to Manhattan. Their usual route home
included traveling northbound on the Palisades Interstate Parkway ("Palisades")
to exit 9W onto the northbound Thruway. Mr. Bonet testified that he had
observed that 25 percent of the guiderail on the Thruway, just north of the exit
ramp from the Palisades, had been down on the ground since May 1993. He further
described the flat part of the guiderail as the center of the guiderail. He
never reported the condition to anyone nor did he ever see any repairs made to
Mr. Bonet testified that on the date of their accident, the traffic was
moderate and Mr. and Mrs. Bonet were talking. Within 20 to 30 seconds after
they had merged into the right lane from exit 9W onto the Thruway, they were
in the left rear by another vehicle. Mr. Bonet estimated that Mrs. Bonet had
been driving at a speed of 40 to 45 mph and was still accelerating when they
were hit. On impact, the Blazer was pushed to the right and onto the shoulder.
Mr. Bonet estimated that their car entered the shoulder at an angle less than
ten degrees. They proceeded four to five car lengths on the shoulder and then
over the flattened part of the guiderail. The car then went airborne, hit a
cement culvert, went airborne again and then finally came to rest after hitting
a tree. Mr. Bonet never saw the vehicle that hit their
Evelyn Bonet testified that, between May and August 1993, in the vicinity of
she observed that 50 percent of the guiderail, the middle of the guiderail, was
flat and was bent towards the ground. She never reported the damage to
anyone. She recounted that, on August 5, 1993, after exiting from the
Palisades, she was driving at approximately 35 mph as she merged onto the
Thruway. Using her side view mirror as she merged, Mrs. Bonet recalled noticing
a car two feet behind hers. She intended to maintain her usual speed of 35 mph.
Mrs. Bonet was traveling in the right lane for four or five seconds when she
felt a heavy impact that pushed her car to the right and onto the shoulder. She
took her foot off the accelerator, yet her speed increased after the impact.
Although she looked in her rearview mirror, she never saw the vehicle that
struck her Blazer. She never applied her brakes, nor attempted to steer back
into the travel lane. The Bonets traveled on the shoulder for four or five
seconds before going over the flattened guiderail. The car became airborne, hit
a cement block, became airborne again and hit a tree.
New York State Trooper Joseph Brown was dispatched to the Bonet accident. He
testified that when he arrived at the scene he observed that the guiderail, in
the vicinity of a red sewer cap, had fresh tire marks on it and had been knocked
down to the ground. The Bonet's Blazer had gone down the embankment and into a
tree. Brown spoke with
claimants, radioed for assistance and completed a police report (Ex. 92). Brown
gave a copy of the report to Thruway Investigator Bender, who was also at the
scene. Brown recalled that Bender took photographs. Brown indicated in a
property damage report that four sections of guiderail needed replacement after
the accident (Ex. Y). The report does not indicate which four sections nor does
it refer to the approach terminal.
At his examination before trial, Brown marked a photograph indicating where he
observed the tire marks on the guiderail and where the car had apparently hit
the guiderail and the path the car had followed. The car hit the guiderail,
became airborne, then hit a cement culvert and became airborne again, and
finally, hit a tree (Exs. 11 at 138; 52). Brown did not recall if the guiderail
was down prior to
claimants' accident, but stated that he would have noticed if four sections of
the guiderail had been down and that part of his duties included repairing
guiderail damage and confirming if the repairs had been done. He concluded that
Mrs. Bonet had lost control of her vehicle after she was struck in the
William Bender testified that he has been employed by the Thruway Authority
since 1992. In 1993, he was an Assistant Traffic
in the division which covered the site of the Bonet accident. His duties
included the investigation of motor vehicle accidents. As an Assistant Traffic
Supervisor, he investigated approximately 40 to 50 accidents a year and
estimated that he has performed 500 to 1000 investigations in the last decade.
The Thruway Authority generally investigates accidents where there is a
fatality, life threatening injury or a question of the Thruway Authority's
liability. Through the years, he and Trooper Brown had been at accidents
Bender further testified that he made inspections of the Thruway on a
continuing basis as he drove on the road. If he observed damage to a guiderail,
he might take notes or report the problem by telephone. He did not recall the
guiderail at issue being down
prior to August 1993.
Bender had no recollection of conducting an investigation of the Bonet
accident. He concluded that he was not present because there were no reports or
photographs of this accident in his files. Bender explained that as he traveled
along the Thruway, he sometimes stops when he observes a disabled vehicle or an
accident. This type of inquiry did not necessarily result in a full
investigation. While Bender had no recollection of being present at the Bonet
accident, he could not rule out the possibility that he might have stopped at
the scene. This would account for the discrepancy between Brown's recollection
of Bender's presence and the absence of any report by him.
Hintersteiner, a licensed engineer, provided expert testimony on behalf of
claimants. He reviewed the accident report, depositions, photographs and made
four visits to the site where he took measurements and photographs. Using the
red sewer cap as a reference mark, Hintersteiner identified the area and
compared it to a photolog taken prior the accident (Ex. 3). He described the
guiderail involved as a weak post corrugated railing designed to catch an errant
vehicle and redirect it back onto the road. The posts were spaced approximately
12 feet apart. He explained that, if a vehicle weighing 3,500 pounds, traveling
at 60 mph, strikes the guiderail at a 25 degree angle, then the vehicle should
continue in the rail and be pushed back onto the shoulder and then onto the
road. He explained that the end of the guiderail is bent onto the ground and
the section from the ground to the upright portion is referred to as the
approach terminal. He estimated that this transition area was 25
By plotting the location of the accident on the record plans, Hintersteiner
concluded that claimants' car contacted the guiderail at a 6.5 degree angle (Ex.
89). He utilized the locations identified by Brown as the point of impact and
where the Blazer struck the culvert. Hintersteiner opined that, at a speed of
45 mph, if the guiderail had been erect, the vehicle would not have traveled
over the guiderail. Therefore, he concluded that a previous accident had hit
and destroyed the guiderail, leaving it limp. Hintersteiner assumed that the
Bonet Blazer weighed 4,600 pounds and maintained that, had the guiderail been
erect, it would have redirected the vehicle back to the
Referring to the photographs showing damage to the Bonet vehicle (Ex. 5),
Hintersteiner maintained that, had the guiderail been erect, the entire right
side would have shown damage from the railing rather than the front end damage
indicated. He also insisted that, had the vehicle hit the approach terminal, it
would have ridden along the guiderail or rolled off and, in that scenario, the
vehicle would have had undercarriage damage.
Hintersteiner conceded that a person merging into traffic has to yield the
right-of-way. He acknowledged that he reviewed the accident reports for the two
years prior to August 5, 1993 and could not find any other accident in the
Hintersteiner disregarded Brown's assumed path of the Bonet vehicle (Ex. 11).
Hintersteiner testified that engineering principles dictated that it was not
feasible for the vehicle to have hit the ground and bounce up again. He
insisted that the vehicle was airborne 80 feet from the time it hit the
guiderail until it struck the culvert. Hintersteiner also concluded that the
other point of impact was the tree.
Hintersteiner reasoned that the Bonet vehicle did not hit the approach terminal
because, if the vehicle had, it would have ridden up and flipped sideways. This
would have resulted in a different type of accident. If the car did not roll
over, it would have been hung up on the guiderail and there would have been
damage to its undercarriage. Hintersteiner would not expect any portion of the
car to be attached to the bottom of the guiderail.
Hintersteiner opined that only one section, where the tire mark was found, was
actually involved in the accident. He maintained that the railing was down and
that car simply rode over it. The "W" shape of the beam created the vaulting
effect. In Hintersteiner's opinion, the vehicle could not have hit the approach
terminal and then struck the culvert. This would have required the car to
travel 100 feet in the air. He maintained that the car struck the guiderail
just east of the sewer cap, approximately 40 feet west of the transition area.
Frank Schinella testified that he has been employed by the Thruway Authority
for 30 years. For the past 13 years, he has been a Section Maintenance
Supervisor II. He is responsible for the maintenance of roads and oversees a
crew of 22 workers. In 1993, the area of the Bonet accident was within his
Schinella made daily inspections and would make a written report when a defect
was observed. However, if a contractor was engaged on a particular project,
then the contractor assumed responsibility for any necessary repairs within the
area covered under the contract. In that case, if Schinella had observed a
guiderail requiring repair, he would report it to the contractor by telephone
rather than make a written report.
Schinella testified that, if guiderails are down flat, they are repaired as
quickly as possible, within days. In the interim, cones are placed at the
location. He maintained that it was against Thruway Authority policy to allow
guiderails to be down for four months. They would be fixed right away or, if
the road was under contract, the engineer in charge of the project would be
Joseph Ragusa testified that he is employed by Boswell Engineering, a private
engineering consulting firm that manages highway construction projects. Ragusa
was a Resident Engineer from 1988 to March 1996 and, since that time, has been a
Chief Inspector. Previously, Ragusa was employed by the New York State
Department of Transportation ("DOT") for 32 years. In his capacity as a
Resident Engineer, he administered ongoing contracts and acted as a liaison
between the contractor and the agency. He inspected day-to-day activities to
insure compliance with the contract.
Ragusa testified that he was the Resident Engineer, for Contract No.
TANY92-89, which provided for mall reconstruction, asphalt overlay, safety
improvements, guiderail upgrading, and miscellaneous work from milepost 16.75
to milepost 25.23 on the Thruway.
This area included the accident location. The contract work began at the end of
1992 and was completed in early 1994. Ragusa made two trips daily through the
area and reviewed the work and general conditions. Ragusa made ongoing
inspections of the work performed and, if it was satisfactory, then he would
make the progress payments. He interacted with the contractor and Thruway
Ragusa explained that the contractor was responsible for any necessary
guiderail repairs within the contract area. Upon notification of guiderail
damage, the contractor is advised to do the necessary work as soon as possible.
If the repair cannot be done immediately, in the interim, cones or barrels would
be placed in the area.
If the guiderail is damaged and the party responsible is unknown, the Thruway
Authority pays for the work completed. If an accident report is on file and the
person causing the damage is known, the contractor is responsible for collecting
reimbursement from the individual's insurance company. Ragusa identified
documents that he had previously reviewed in December 1993 which indicated that
the contractor was reimbursed for repairing damaged guiderail on May 24 and May
25, 1993 in the area of the Bonet accident (Ex. C). The contractor had
performed repair work at milemarkers 20.7, 23.2, and 21.8. The Bonet accident
occurred at milemarker 21.4. Ragusa explained that had there been damage at
milemarker 21.4, the contractor would not have been permitted to skip over
In relation to the Bonet accident, by memorandum dated October 28, 1993,
Ragusa was requested to provide an update on the status of the restitution by
the patron/insurance carrier to the contractor (Ex. Y). This document does not
indicate when the repairs were made.
Ragusa further testified that on December 3, 1993, 112 feet of new guiderail
were installed and 75 feet of guiderail were reset in the area of the Bonet
The guiderail was reset, or raised, because of the new pavement (Ex. C). The
existing guiderail was extended on each end and a new anchor installed. Ragusa
identified the old guiderail from 1991 photologs (Ex. 3) and the new guiderail
as depicted in the 1995 photologs (Ex. A). He maintained that the old guiderail
was in place at the time of claimants' accident.
During the course of Contract No. TANY92-89, Ragusa did not recall a guiderail
down flat between May and August 1993. If he had, Ragusa maintains he would have
had the contractor reinstall the guiderail.
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. From
1989 until his retirement in 1991, Pucino was DOT's Regional Construction
Engineer and he supervised the inspection and construction of roads in
In preparation for his testimony, Pucino reviewed,
among other documents, the police accident report, photologs before and after
the accident, road record plans, Contract No. TANY92-89, the road accident
history and job records. Pucino concluded that at the time of the accident, the
old guiderail was in place. He described the guiderail as a standard "W" beam
on light, three foot posts with two terminals anchored in the ground. It was a
tension system that relies on tension anchors. Pucino insisted that the
guiderail was upright rather than down at the time of the accident. Assuming
that the car was traveling at the speed and angle as testified to by the Bonets,
the guiderail should have redirected the vehicle back onto the road. Since this
did not happen, Pucino concluded that the vehicle hit the approach terminal
rather than the guiderail.
Although the Bonets had testified that the center was flat at the time of the
accident, Pucino maintained that the guiderail would more or less sag, rather
than lay flat, in such a short span. He further examined construction photos
taken March 1993 that showed the guiderail upright (Exs. E, F). Pucino did not
find any accident prior to August 5, 1993 that would account for a down
guiderail. An accident that occurred on August 14, 1992 was described as a
spinning vehicle and would not have caused the type of damage described by the
Bonets. From the testimony of the Bonets and Trooper Brown, that the car went
airborne, Pucino concluded that the Bonet vehicle hit the guiderail approach
terminal, which acted as a launching pad. He opined that the Blazer rode the
terminal for some distance, from which it was only 83 feet to the culvert.
Pucino explained that the inherent design of the "W" beam, with a terminal
that extends from the ground to a height of two and one half feet high, can
cause a vehicle to go airborne. According to Pucino, the terminal which is
anchored flat on the ground may have been what the Bonets observed as they
entered the Thruway and may have caused them to mistakenly believe that the
guiderail was flat. In contrast to
Hintersteiner, Pucino maintained that if a car reached the top of the terminal,
it would continue traveling rather than fall off the
Pucino did not think that the Bonet vehicle was airborne all the way to the
culvert. Pucino concluded that the vehicle made contact with the wall, then the
culvert. Pucino disagreed with
Hintersteiner's analysis that, if the vehicle had hit the terminal, then parts
of the car would attach to the guiderail. Pucino had investigated other
accidents with this ramping effect and he noted that the terminals were
constructed so that nothing could attach to them.
Pucino opined that the Bonet vehicle did not hit a portion of down guiderail.
To believe otherwise, he said, would be to ignore the 1993 construction
photographs, the construction job records, the workers on the job site
inspecting for down guiderails, the terminal that appears down as a car enters
the Thruway and the nature of the August 1992 accident.
Pucino did not find any documentary evidence of repairs to the guiderail made
between March and August 1993. Pucino concluded that the spot which Trooper
Brown marked as the point of impact was in the general range of the end of the
terminal. Pucino opined that marks and smudges apparent on the terminal, in a
photograph taken in December 1993 (Ex. W), were from the Bonet accident. There
were no repair records regarding the approach terminal.
It is well settled that the State has a nondelegable duty to adequately design,
construct and maintain its roadways in a reasonably safe condition and that duty
encompasses the guiderails and the area adjacent to its roadways (see
Gomez v New York State Thruway Auth.
, 73 NY2d 724; Friedman v State of
, 67 NY2d 271; Weiss v Fote
, 7 NY2d 579; Zalewski v State
of New York
, 53 AD2d 781). The State, however, is not an insurer of the
safety of its roadways and the mere happening of an accident on a State roadway
does not render the State liable (see Tomassi v Town of Union
NY2d 91; Brooks v New York State Thruway Auth.
, 73 AD2d 767, affd
51 NY2d 892). Claimants have the burden of establishing that defendants were
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
, 147 AD2d 519). Liability will not attach unless defendants had
actual or constructive notice of a dangerous condition and then failed to take
reasonable measures to correct the condition (see Rinaldi v State of
, 49 AD2d 361).
Upon consideration of all the evidence, including listening to the witnesses
testify and observing their demeanor as they did so, the Court finds that
claimants failed to establish that defendants were negligent and that the
condition of the guiderail either caused or contributed to the happening of the
accident. Claimants' testimony that they observed a significant portion of the
guiderail in a flattened condition for three months prior to their accident is
self serving and unsupported by any independent evidence. Notably, there were
no accidents, prior to claimants' accident, which would account for a down
guiderail. Additionally, Ragusa made two trips daily through the area to
inspect the work performed by the contractor and to observe general conditions.
Had there been any problem with the guiderail, it is likely that Ragusa would
have seen it and notified the contractor to address the problem. It is also
noted that there was an absence of proof of any complaints, prior to claimants'
accident, regarding this area of roadway (see Galvin v State of New
, 245 AD2d 418 [no proof of prior similar accidents nor evidence of
precise location where claimants' car left roadway; thus no basis for finding
proximate cause due to absence of guiderail]).
"Where 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). In the instant case,
there was insufficient evidence to establish that any negligence attributable to
defendants was a cause of claimants' accident. While Pucino's explanation that
claimants hit the terminal rather than Hintersteiner's explanation of vaulting
from a "W" beam lying flat is more plausible, it was just as reasonable and
probable that the claimants' own negligence in losing control of the vehicle was
the sole cause of the accident.
Accordingly, defendants' motion to dismiss, upon which decision was reserved,
is now GRANTED.
In light of the disposition of the claim, the counterclaim asserted by
defendant is moot.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 92263.