New York State Court of Claims

New York State Court of Claims

OAKLEY v. THE STATE OF NEW YORK, #2002-015-556, Claim No. 94016


Synopsis


After trial of claim for personal injuries sustained in motor vehicle accident Court found claimant had not met burden of establishing actual or constructive notice of a dangerous condition (water on roadway) and dismissed claim.

Case Information

UID:
2002-015-556
Claimant(s):
JUDITH OAKLEY and SPENCER OAKLEY
Claimant short name:
OAKLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94016
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
James Killerlane, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: J. Gardner Ryan, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 1, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The trial of this claim, which involves a two vehicle accident on Route 139 in the Town of Somers, New York, was bifurcated by order of the Court and the decision herein addresses only the issue of liability.

Claimant Judith Oakley was the first witness to testify. On Friday, July 22, 1994 Ms. Oakley was a passenger in the rear seat of a vehicle driven by her daughter Kristine Kallesten. Ms. Kallesten lost control of the vehicle while driving through an "S" curve on Route 139, the rear end of the vehicle crossed a double yellow line and was struck by a northbound vehicle ejecting claimant through the rear window. Claimant testified that she remembers nothing concerning the day in question or the accident here at issue.

Kristine Kallesten testified on claimant's behalf. Ms. Kallesten is the claimant's daughter and was the operator of the vehicle in which the claimant was a passenger. According to the witness July 22, 1994 was a Friday and she along with her sister Heidi Oakley and the claimant departed their home at approximately 6:00 p.m. and entered Route 139 at its intersection with Route 202 en route to a parade being held in Millwood, New York. She described Route 139 as a two lane highway running north and south which is divided by a double yellow line. Ms. Kallesten was operating a Chevrolet Blazer and proceeded south on Route 139 with Heidi Oakley in the front passenger seat and the claimant seated on the back bench seat. According to the witness it had rained during the course of the day and she testified that as they proceeded on Route 139 it was raining intermittently, heavy at times and lightly at others. She described the traffic conditions as normal with several cars in front of her vehicle and several behind. Ms. Kallesten testified that she experienced no mechanical problems or difficulty stopping as she operated the vehicle approximately two and one-half miles on Route 202 and then an additional two miles on Route 139 prior to the accident. In describing the accident, she stated that as they traveled south on Route 139 they approached an "S" curve traveling at the posted 25 mph speed limit when the back end of the Blazer swerved into the northbound lane and was struck in the rear by a vehicle traveling north on Route 139. The witness testified that "the road had been wet[1]
" and that she observed water flowing across Route 139 "in different spots" from right to left across the roadway as the vehicle proceeded in a southerly direction. Ms. Kallesten's direct testimony concluded with the witness identifying certain photographic exhibits which were received in evidence. The exhibits depict various aspects of the "S" curve on Route 139 from both a northbound and southbound perspective.
On cross-examination the witness reiterated her direct testimony that there was a light drizzle occurring at the time of the accident and that it had rained intermittently as she operated the vehicle prior to the accident. With respect to the happening of the accident she testified that there were several cars in front of her vehicle and that she slowed her vehicle as she approached the beginning portion of the "S" curve and observed the 25 mph posted speed. The witness testified that the road was wet at the time of the accident and that she observed water flowing across the roadway prior to entering the curve. The witness testified and the photographic evidence confirms that the "S" curve proceeds at a slight incline throughout its length. Ms. Kallesten testified that as she traveled through the "S" curve she accelerated slightly in order to maintain a steady 25 mph speed and that as the back wheels of the vehicle traveled through water running across the roadway at the approximate center of the "S" curve her rear wheels lost traction and the rear end of the vehicle entered the northbound lane of traffic. The front end of the vehicle also veered into the northbound lane and the vehicle was struck in the rear as she attempted to steer back into the southbound lane of traffic. The witness marked photograph number 4 of Exhibit 5 to show the location and direction of flow of the water which was alleged to have caused her to lose control of the vehicle. In marking the exhibits Ms. Kallesten indicated that the water flowed across the highway in a west to east direction, or from right to left as the vehicle proceeded south on Route 139.

Heidi Oakley testified that she was a passenger in the front seat of the vehicle operated by her sister Kristine on July 22, 1994. She, her sister and her mother were traveling south on Route 139 when she felt the back end of the car veer into the northbound lane. She testified that her sister was attempting to return to the southbound lane when the vehicle was struck by a vehicle traveling north. She stated that it had been raining periodically throughout the day and that there was a constant drizzle while the three traveled Route 202 and Route 139 en route to the parade. Ms. Oakley testified that the vehicle was proceeding at 20 to 25 mph when she first felt the rear end slide into the northbound lane. She testified that she could see "sheets of water coming down" from the southbound lane traveling across the road to the northbound lane and that she noticed a "sheet of water" immediately before entering the "S" curve.

On cross-examination the witness testified that she observed the flowing water just as the vehicle began to enter the "S" turn. The witness was shown photograph 4, a part of Exhibit 5, and agreed that the arrow marked thereon by her sister showed both the area where she noticed the sheet of water, which she estimated to be between six and seven feet wide, and also correctly indicated the direction in which the water was moving. According to the witness she was facing forward speaking to the claimant at the time of the accident and had warned Kristine to drive slowly due to the weather while the vehicle was traveling upon Route 202 and just prior to the time the vehicle entered the beginning portion of the "S" curve. Ms. Oakley said that she was not concerned that her sister was driving too fast but, rather, was concerned with the weather conditions.

Claimant next offered the testimony of Nicholas Bellizzi, a licensed engineer. After being qualified as an expert the witness related that he visited the accident scene on January 10, 1996. He described Route 139 at the site of the accident as a two lane highway proceeding in a north/south direction divided by a double yellow line and marked by both a 25 mph speed and a curve warning sign. According to Mr. Bellizzi the roadway was sloped in an east to west direction with the easterly side elevated above the westerly. He stated his opinion that the elevation and roadway geometry caused rain to sheet from east to west across Route 139 in the area where claimant's accident occurred. It was his opinion that the swale located on the easterly side of Route 139 was inadequate to retain rain water and prevent it from sheeting across the road. According to the witness the sheeting effect changes the coefficient of friction in such a manner as to potentially cause a vehicle to "fishtail".

Mr. Bellizzi opined that water would sheet across Route 139 in the particular area at issue here because the swale located on the east side of the roadway was of insufficient capacity to intercept the water running towards the roadway from land adjacent thereto. The witness testified that the swale at the accident site varied in both width and depth and was encroached upon by vegetation. In Mr. Bellizzi's opinion a swale adequate to retain water running from adjacent property towards the road and prevent sheeting would be several feet wide and at least one to two feet deep. The witness was then asked to review various photographic exhibits to identify any "swale" shown in the photographs. He identified photograph number 8, a part of Exhibit 6, and photograph number 21, a part of Exhibit 15, as containing what in his opinion would constitute a swale. The witness marked the area in Exhibit 8 which he identified as a swale. In essence, the witness testified that the areas shown in the photographic exhibits and identified in particular in Exhibit 8 did not constitute a true swale but rather a height variation created by re-paving of the area at the point where old and new pavement met. According to the witness the height differential between the road surface and the land adjoining the roadway was inadequate and caused only minimal diversion of water flowing toward the roadway from the adjacent property. Where water was allowed to enter upon the highway it had the effect of altering the coefficient of friction between the tires and the road producing a variable coefficient of friction between the front and rear tires of the vehicle. The witness stated that the vehicles traveling in front of the Oakley vehicle on Route 139 did not encounter the same difficulty because no two vehicles are exactly the same and that speed and/or breaking may also have been possible factors in conjunction with the water running across the highway.

In summary, the witness stated his opinion that the accident at issue here was caused by a lack of adequate roadside drainage which permitted water to sheet across the highway running in an east to west direction and that there were no other contributing factors.

The claimant's expert also addressed the issue of vehicle speed as a contributing factor to the happening of the accident. According to the witness the photographic evidence revealed that the crush damage to the front end of the northbound vehicle involved in the crash was approximately 30 inches which at 1 ½ inches of damage for each one mile per hour of speed equated to an approximate speed on behalf of the northbound vehicle of 20 mph. He testified that damage to the claimant's vehicle was concentrated around the rear driver's side wheel and demonstrated little depth of penetration leading to a conclusion that both vehicles were traveling under the posted speed limit.

On cross-examination the witness testified that his file did not contain engineering plans for Route 139, that he did not take field notes when visiting the site and that he did not take specific crush damage computations but approximated the measurements related in his direct testimony from photographs of the accident scene. Nor did he take any measurements of the swale at the accident site but approximated the height and depth of the swale from photographs which he took during his site inspection. The witness also testified that he did not review the record plans for Route 139 at the accident scene, did not measure the grade or super elevation of the roadway at that location, nor did he review any topographical maps to establish the slope and contours of the drainage area. While the witness agreed that the type of soil present on the land adjacent to the roadway would be a factor in determining the amount of run-off flowing towards the road he admitted that he did not examine the land or soil adjacent to the roadway and swale to determine its nature or type. Although the witness was able to testify that there was a difference in elevation between the roadway and adjoining land area he did not take any measurements to determine the precise difference in elevation. When asked regarding standards applicable to swales against which the swale in place at the accident site should be measured, the witness testified that the roadway was originally constructed in the early 1900s and that at that time there were no commonly accepted standards. The witness was then asked to review Exhibit B which was received without objection and which he recognized to be the road construction history for that portion of Route 139 which includes the accident site. The witness next reviewed Exhibit G which he recognized to be the as-built drainage plans for Route 139 at the scene of the accident. In reviewing Exhibit G he identified the location at issue and related that the plans show two different shoulder types at the site where the accident occurred, shoulder type "V" to the east and shoulder type "C1" to the west. While the witness was not familiar with the Department of Transportation specifications for shoulder type "V" or "C1" he did testify that the shoulder constituted a part of the highway drainage plan. Through comparison of the contract numbers indicated on Exhibit G, the as-built drawings, and Exhibit B, the road construction history, the witness testified that the as-built drawings relate to the resurfacing of Route 139 which occurred in 1977. When asked what standards applied to drainage facilities on highways such as Route 139 at the accident location in 1977 the witness indicated that the shoulder types indicated in the as-built drawings (Exhibit G) would function as drainage elements but that he was unaware of the highway design manual standards in place in 1977 so that he could offer no opinion as to whether the shoulder types indicated in Exhibit G were appropriate on that date. When characterizing the area adjoining Route 139 the witness testified that the area to the east is wooded and elevated above the roadway although he was unable to state the degree of elevation.

With regard to the rate of runoff, the witness agreed that different types of soil and ground cover affect the volume of runoff from adjacent property. The witness was unable to state the anticipated volume of runoff at the point where the claimant's accident occurred stating that he was unaware of the soil type present in that area and that any determination of runoff volume would require a drainage basin study. The witness did not conduct such a study with regard to the anticipated volume of runoff at the accident site. He stated that the shoulder adjacent to the east side of the highway was approximately two inches below the road surface. Had the two to three inch elevation difference been uniform the witness stated that it might adequately divert water from the roadway. However, it was his view that the swale along the road was not of a uniform height and that where the height differential was one inch or less water would be permitted to run onto the highway.

The witness indicated that his opinion was based on the proposition that rainwater flowed down the wooded area elevated above the east side of the roadway and east to west across Route 139. It was his opinion that it was not possible for water to have flowed in a west to east direction at the point in the highway where the accident occurred. The location so indicated extended from the beginning of the "S" curve through the curve to a point just north of the area described at trial as the top of the "S" curve. The witness stated that in the area indicated by him in Exhibit G the water ran down the adjacent slope and across the roadway in an east to west direction and that it was not possible for water to flow in a west to east direction due primarily to the slope and elevation of the land on the westerly side of the highway. The witness' cross-examination concluded with the witness admitting that he was not aware of how much rain fell at the accident site on July 22, 1994 and conceding that the amount of rainfall would be an important element in determining the amount of run-off on the date of claimant's accident and the adequacy of the roadway drainage elements to retain and divert that amount of runoff.

On re-redirect examination the witness stated that proper engineering standards would require a continuous swale along each side of the roadway and that the swale present at the accident site was inadequate to meet good and proper engineering standards.

Claimant rested her case upon the conclusion of Mr. Bellizzi's testimony and the defendant moved to dismiss the claim for failure to establish a prima facie case. The Court reserved on the motion and permitted the parties to submit post-trial memoranda.

The first witness presented by the defendant was State Police Investigator Kim Auguste who in July 1994 was a New York State Police Trooper stationed in Somers, New York and investigated the accident in which the claimant was injured.

Investigator Auguste testified that upon her arrival she parked her vehicle north of the accident scene, set flares and called an ambulance. She observed that the road was damp and that it was not raining at the time of her arrival. The witness reviewed various photographs which had been received in evidence which she recognized to be depictions of the accident involving the claimant. She testified that she did not observe water flowing across the roadway at any time during the period she was at the scene of the accident. Although the Court permitted the introduction of the police accident report prepared by Investigator Auguste including her conclusions regarding apparent contributing factors to the accident the Court has, upon reflection, disregarded both the report and the officer's conclusions in reaching its decision.

The defendant next presented the testimony of William Fitzpatrick, currently the Director of Traffic Engineering and Safety for the Hudson Valley Region of the Department of Transportation. Mr. Fitzpatrick is a licensed engineer who began his tenure with the Traffic Engineering and Safety Division in 1972. He testified that he has received prior training in accident reconstruction, has been qualified as an expert in both traffic engineering and accident reconstruction in prior court proceedings and that over the past thirty years he has been involved in hundreds of investigations involving the reconstruction of accidents for purposes of determining whether roadway mitigation is necessary and/or appropriate. After
voir dire the Court qualified Mr. Fitzpatrick as an expert in both accident reconstruction and traffic engineering.
The witness testified that he reviewed the accident reports, visited the scene and reviewed both the record plans for Route 139 at the accident location and the photographs previously received in evidence in evaluating the circumstances of the accident and the condition and configuration of the roadway. Mr. Fitzpatrick was present for the testimony of claimant's expert and testified that he was familiar with the drainage elements in place at the area of Route 139 where the accident occurred. He stated that this portion of Route 139 contained six different shoulder types and that the particular shoulder in place at any point in this section of roadway varied according to changes in the road configuration and slope as well as changes in the contours of adjoining property. The witness testified that he was familiar with the drainage facilities present at mile marker 1010 on Route 139 which he stated consisted of two to three foot shoulders with a three inch swale.

When asked his view of the testimony of claimant's expert that an appropriate swale would be one to two feet wide and one foot deep in order to sufficiently address runoff at the accident scene the witness responded that a swale of the dimensions related by Mr. Bellizzi would not be appropriate at any location as it would pose a danger to the traveling public and that were runoff so severe as to require a drainage system of the dimensions related by Mr. Bellizzi it would be necessary to use a closed drainage system. Mr. Fitzpatrick testified that based upon his observation of the drainage facilities in place at or around mile marker 1010 on Route 139 it was his opinion that drainage was sufficient to prevent runoff onto the road under normal circumstances. The witness was then asked whether in his opinion it was possible for water to run in a west to east direction at the scene of the accident as was indicated by Kristine Kallesten in photograph number 4 (Exhibit 5). He responded that an easterly flow of water across the highway from right to left as indicated in the photograph by Ms. Kallesten would not be possible except under the most extraordinary of circumstances, such as a flash flood, due to the fact that the highway at that location is pitched or superelevated from east to west and the property adjoining the southbound lane to the west of the highway slopes away from the road. The witness also disagreed with the testimony of claimant's expert that the combined speed of the vehicles could not have exceeded 40 mph stating that because the vehicles struck in a glancing manner any crush damage analysis would be inconclusive with regard to vehicle speed. In addition, the forces exerted on the occupants of the vehicle in which the claimant was a passenger, particularly the circumstance of claimant being ejected from the vehicle through the rear window, indicated to the witness that the collision was not one which occurred at low speeds. It was Mr. Fitzpatrick's opinion that the cause of the accident was excessive speed of the Kallesten vehicle given the wet conditions present at the time.

Direct testimony concluded with the witness' review of Exhibit E, the certified record of the National Climatic Data Center, a portion of which provided data relative to Yorktown Heights, New York, which the witness stated was located 2 ½ miles southwest of mile marker 1010. In reviewing the document the witness indicated that on July 22, 1994 one-tenth of an inch of rain fell between 3:00 and 4:00 p.m. and an additional tenth of one inch fell between 10:00 and 11:00 p.m. for a total rainfall on July 22, 1994 of two-tenths of an inch. Based upon the climatological data the witness expressed his opinion that it was not possible given the recorded precipitation for water to have run-off on to the roadway in the manner testified to by Kristine Kallesten and Heidi Oakley. Although a formal runoff analysis would be required to determine the volume of rain necessary to produce runoff on to the roadway the witness stated that due to the fact that the areas on both sides of the highway are heavily vegetated and grassed it would require a substantial amount of rain, a downpour, to overcome the absorptive properties of the adjoining land.

On cross-examination the witness reviewed Exhibits 5 and 14 and marked thereon in blue marker the location of swales adjacent to the roadway. The witness indicated on photographs number 1 and number 2 of Exhibit 5 that the swale was located immediately adjacent to the west side of the roadway or to the right on both photographs which are taken from a point immediately prior to the "S" curve facing south. On Exhibit 14, photographs number 25 and number 26, the witness indicated that the swales are located to the east of the roadway or to the right on both photographs which depict Route 139 from a point at the southern end of the "S" curve facing north. The witness explained that the swales indicated in Exhibits 5 and 14 are found at the low point of the shoulder which is three inches below the road surface. He stated that the swale could not be deeper than three inches because the shoulder also operates to provide a recovery area for errant vehicles. With regard to his testimony concerning Exhibit E containing climatological date for Yorktown Heights on July 22, 1994 the witness conceded that he had no personal knowledge of the actual rainfall at the accident location on that date and that the rainfall amounts were not conclusive as to the precipitation falling at the accident scene.

Upon the conclusion of the presentation of its witnesses the defendant moved to dismiss the claim for failure to establish a prima facie case. The Court reserved on the motion.

Although the State is subject to a non-delegable duty to design, construct and maintain its highways in a reasonably safe condition (
see, Friedman v State of New York, 67 NY2d 271) the State is not an insurer of the safety of its roadways and the mere occurrence of an accident does not create a presumption of liability (Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Liability will not be found unless the State either affirmatively created a dangerous condition or "had actual or constructive notice of the dangerous or potentially dangerous condition . . . and then fails to take reasonable measures to correct the condition" (Rinaldi v State of New York, 49 AD2d 361, 363). Notice may result from prior similar accidents or complaints (Nelson v State of New York, 105 Misc 2d 107). In addition, where there is "actual knowledge of the tendency of a particular dangerous condition to reoccur, [the owner] is charged with constructive notice of each specific recurrence of that condition" (Columbo v James River, II, Inc., 197 AD2d 760, 761; LaBuda v State of New York, 86 AD2d 692).
The first issue to be addressed is the testimony of claimants' expert, Mr. Bellizzi. First, the central point posited by the witness was that the height differential between the road surface and the shoulder which also functioned as a swale was inadequate to retain rain water flowing from property adjacent to the eastern side of Route 139. In this regard the witness stated that a swale adequate to retain water and prevent its movement across the highway would measure "several feet wide and at least one or two feet deep."

The Court finds Mr. Bellizzi's conclusions to be unpersuasive. First, Mr. Bellizzi did not know the amount of rain which had fallen in the area on the date of the accident. He did not perform either a run-off study or a drainage basin study nor did he review topographical maps or take any steps to determine the type of soil present along the east side of Route 139. Mr. Bellizzi took no measurements or field notes during his visit to the accident location. He had not reviewed the record or drainage plans at the particular portion of Route 139 at issue here and was unable to affirmatively state that the shoulder treatments shown in the as built revisions were inappropriate under then existing standards. The witness stated that at certain points the ground adjoining the east side of the highway was 2" or more below the surface of the road and in others the height differential was less than 2". He then stated his opinion that where the differential between the road surface and adjoining land was 2" or greater water would generally be diverted away from the roadway but would run onto and across the highway in an east to west direction where the differential was 2" or less. However, Mr. Bellizzi took no measurements of the allegedly varied height differentials along the east side of the highway in order to plot those points where a 2" or less differential existed and water, consequently, would have entered the highway surface. In the absence of information regarding the precise rate of run-off including the amount of rain which fell on the date in question, the extent of the drainage basin and the soil type and degree of slope of the adjoining property the witness' expert opinions are entitled to little weight. This is especially true where the witness has failed to identify the specific points along the highway where the elevation differential was such as to allow any run-off to enter and flow across the road. Even were the Court to speculate that some run-off occurred the proof is inadequate to correlate such a circumstance to the area of the road where the vehicle in which the claimant was a passenger was caused to skid and lose control.

Secondly, Mr. Bellizzi testified that a proper swale for the particular section of Route 139 at issue would be approximately 1 to 2 feet wide and 1 to 2 feet deep. This despite his testimony that a 2" differential was adequate to divert water run-off away from the highway under normal conditions. The failure of claimants' expert to identify the source of the standard upon which the recommended dimensions are based and the testimony of defendant's expert that a swale of the width and depth suggested by Mr. Bellizzi would constitute a potential hazard to highway users leads the Court to reject Mr. Bellizzi's opinion in this regard (
see, Stiuso v City of New York, 87 NY2d 889; Bottalico v State of New York, 59 NY2d 302).
The remaining proof concerned the testimony of Kristine Kallesten and Heidi Oakley who allegedly observed water streaming across Route 139 immediately prior to Ms. Kallesten's loss of control of her vehicle.

Kristine Kallesten testified that she observed water flowing across Route 139 in a direction moving from west to east or from the passenger side of the vehicle to the driver's side. On cross-examination she described photograph 4 (Exhibit 5) as most clearly depicting the location where she observed water running across the roadway and marked the photograph with an arrow illustrating the point of the roadway where the water was observed and its direction of flow. The arrow points in a west to east direction.

Ms. Oakley also reviewed photograph 4 and confirmed her sister's prior testimony regarding the location and direction of flow of the water flowing across Route 139 immediately prior to the accident. However, both experts stated that it was not possible for water to flow across the highway in a west to east direction in the vicinity of the accident due to the superelevation of the roadway and the height, slope and contours of the property adjoining the east and west sides of Route 139. Finally, the claimant has failed to establish any notice to the State of the allegedly dangerous condition. No evidence of prior similar accidents or previous complaints was received at trial and no proof establishing that the alleged condition existed for such a period of time that it should have been discovered and remedied was proffered.

The mere presence of ice, snow or water on a highway at the time an automobile skids out of control does not alone establish that the State was negligent (
Temcoe v State of New York, 267 AD2d 375; Johnson v State of New York, 265 AD2d 652; Fiege v State of New York, 189 AD2d 748). In this case the claimant has failed to meet its burden of establishing the existence of a dangerous condition created by the defendant or of which the defendant had actual or constructive notice requiring dismissal of the claim (Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892).
All trial motions are denied and the claim is dismissed.

The defendant's counterclaim filed on May 30, 1996 seeking indemnification, contribution and apportionment of damages against claimant Spencer Oakley as owner of the vehicle for negligence attributable to the driver Kristine Kallesten is dismissed as moot.

The Clerk is directed to enter judgment in conformity with this decision.

August 1, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1]All quotations are taken from the Court's trial notes unless otherwise indicated.