NEGLIA v. THE STATE OF NEW YORK, #2002-016-035, Claim No. 101776
Head-on collision solely caused by one driver's negligence; defendant State not
liable for any road design defect.
SCOTT NEGLIA and LISA NEGLIA
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
John L. Juliano, Esq.
Eliot Spitzer, Attorney GeneralBy: John Shields, AAG
March 28, 2002
See also (multicaptioned
This is the decision on liability following the trial of the claim of Scott and
arising from a vehicular accident on the afternoon of October 19, 1998. At
testified on his own behalf and
called a safety engineer, Norman Wesler. Taking the stand for the defendant
were an eyewitness, Jason Brewster; Alfred Bachner, a civil engineer with the
State Department of Transportation (DOT); and Suffolk County police officer
Timothy Coan, who had responded to the accident scene. Each party on its direct
case called Stanley Lechner, regional claims
engineer and records access
officer for DOT.
Scott Neglia, with two of his children as passengers,
was driving his 1997 Ford Explorer eastbound on State Route 25A in the Fort
Salonga area of Suffolk County (Town of Smithtown). The road is a two-lane
blacktop, with the east- and west-bound lanes separated by a solid double line.
It is undisputed that the accident occurred when a 1995 Saturn traveling in the
opposite direction toward claimant suddenly crossed the double-yellow line and
collided with Neglia's SUV. (See cl exh 1). The Saturn, driven by Philip
Castellano, had come out from behind a car that was operated by Jason
Mr. Castellano's vehicle
was moving out of an S-curve (cl exh 2) when he hit claimant some twelve to
fifteen hundred feet west of the intersection of Route 25A with Sunken Meadow
Road (see cl exh 7).
that the State was negligent for setting a speed advisory of 50 mph and for
signage that was inadequate, inappropriate and ill-situated. Claimant argues
that: (i) there should have more than the one S-curve sign on the westbound
stretch of 25A traversed by Castellano and that the one such sign was positioned
too far from the curve; and (ii) the various chevron signs, which are sideways
V's, unsafely directed traffic toward the middle of the road (e.g.
On the day in question, the weather was sunny and the road dry. The over
twenty photographs offered by the claimant and admitted into evidence,
show a leafy, almost country, stretch of road, that is clearly marked with the
aforementioned center yellow lines and a solid, white line delineating each
shoulder from the driving lane (cl exhs 2 - 23). It is undisputed that Mr.
Neglia's driving was blameless and the impact occurred because Castellano's car
suddenly crossed over into Neglia's lane. Was the crossover caused by improper
highway design impairing Castellano's control of his car, driver error on the
part of Castellano, or some combination thereof?
The portion of Route 25A in question runs from Bread and Cheese Hollow Road to
Meridian Avenue, a distance of between a third and half a
This stretch of road was subject to a
Reconditioning and Preservation project (def exh H), which was completed
September 24, 1996 and accepted into the state highway system on January 10,
1997, the latter signifying that the contractor no longer bears any maintenance
responsibility for the road.
According to DOT's Bachner
the project included review of: the surface of the road and the
grades thereof, the horizontal curvature of the ten curves between Bread and
Cheese Hollow road and Meridian Avenue, the design speed, the width of the lanes
(and shoulders), the use and placement of signs and whether foliage impaired
Thereafter, the following work was done:
1) The road was
2) Four of the curves were super-elevated: the outer edge of
the roadway is banked or lifted to assist vehicles in negotiating the turn.
Curve no. 5, which is at the accident situs, was super-elevated in both
directions (def exh I), and the final design report indicates that the plans
were to do the same for curves 3 (east-bound only), 6 and
See the chart created in the Design plan
(page 3) which lists each of the ten curves, their radii, degree of curvature
etc. to decide whether construction improvements should be made.
The existing box-beam guiderail was upgraded.
The posted advisory speed
which had been lowered from 55 to 50 in 1990 (cl exh 27) was left as is. Mr.
[A]s the reports indicate, they [the DOT engineers] looked at the number of
vehicles traveling on the road; they looked at the conditions - - the speeds
that the vehicles were traversing the roadway safely, and they looked at the
accident history. And that's exactly what they factored into their decision when
they made the decision to post it at 50.
Bachner explained that the posted speed was confirmed using the 85-percentile
test, which measures how fast 85% of the vehicles are actually going. The
ball-bank test is another method engineers/designers use to select the proper
speed, but such never became an issue because claimant's safety engineer
acknowledged his un
familiarity with the test (see the Manual of Uniform Traffic Control
17 NYCRR§200 et seq
"Manual," at §231.2[b]),
It is unclear from the testimony and the accompanying exhibits whether the one
S-curve sign and all or some of the
chevron signs were new
, or repositioned as
part of the project. In any event, such was part of the evaluation of all the
road conditions that the Reconditioning and Preservation project necessarily
encompassed; the question is whether the road, including its signage, as of the
October 19, 1998 accident date was safe.
A section of the Manual is entitled "Curve signs,"and it pictures ten different
curve signs, each a diagonal shape (def exh E, 17 NYCRR §231.3). The
S-curve sign posted on this roadway is termed a W1-9. The Manual explains:
"W1-9 and W1-10 signs are for use where warning is required for a series of
three or more curves, generally alternating in direction, separated by distances
less than six hundred feet. The W1-9 sign is for use where the first curve is
to the left. The W1-10 sign is for use where the first curve is to the right."
[§231.3(b)(4)]. The Manual notes that in general the effectiveness of
warning signs is reduced by their overuse or improper application [17 NYCRR
Claimant's expert maintained that the one S-curve sign was "too remote from the
danger point"; it should have been placed further west, nearer the accident,
closer "to the peak of the curve, the apex." But Bachner explained DOT's
The sign has to be placed prior to the point of need. The point of need is
what's identified on the plans as the PT, point of tangency...the place where
the straight road enters the curved road. The motorist has to have information
in advance of that point.
The chevrons reinforce to the motorist
that the curve is a multiple one: "These signs are for use to provide
additional emphasis and guidance at changes in horizontal alignment. They may be
used ...in conjunction with curve signs (see section 231.3), particularly where
curves are abrupt or there is evidence of driver difficulty in negotiating
them." [17 NYCRR §231.5(a)(1)]. Mr. Wesler's testimony on behalf of
claimant included this statement: "The chevron[s] ... merely tell a car,
motorist, to veer to the left, veer to the right...So Mr. Castellano is told to
veer towards the middle of the road. Mr. Neglia is also told the same thing."
The suggestion by claimant's safety engineer that the placement of chevrons in
this case makes the road less safe is unsupported by any
A number of other items were part of the DOT study, but left unchanged. It was
deemed unnecessary to
super-elevate six of the ten curves (def exh H, p.11). The road grades and
crests were not reconstructed, nor were the lanes widened. Wesler asserted that
the travel lanes were too narrow for the posted speed: "To post the road at 50
miles an hour you need to have 142-inch lane[s] in each direction, and they only
have 137 inches in both the east and west lane.
From a safety
engineering standpoint, based on the AASHTO
recommendations, the State had absolutely no right based upon that to post it at
50 miles an hour."
Claimant's position on the lane widths is unconvincing. This is a road that
has less than 10% truck traffic and is therefore subject to an 11-foot wide lane
minimum (def exh G and cl exh 36 at p.5). To claimant's expert, the lane is
11 feet, 5 inches wide; DOT's Bachner positions his tape measure differently,
but in any event the standard for this mix of
car and truck traffic is an 11-foot lane.
The state is entitled to qualified immunity for the design and planning of its
roads and highways that is undertaken following a deliberative decision-making
Weiss v Fote
, 7 NY2d 579, 200 NYS2d 409 (1960); Friedman v State of
, 67 NY2d 271, 502 NYS2d 669 (1986). The ordinary performance of
planning officials is not to be second-guessed in a courtroom trial of
negligence; "something more than a mere choice between conflicting opinions of
experts is required..." Weiss
, 7 NY2d at 588, 200 NYS2d at 415. Such
qualified immunity may only be overcome with a showing that the highway plan was
effected without adequate study or lacked a reasonable basis. Friedman
. The discussion above on the Reconditioning and Preservation
project clearly demonstrates that it falls within the ambit of qualified
However, once that adequately-studied and reasonably-founded design is in
place, the State is "under a continuing duty to review its plan in the light of
its actual operation."
, 67 NY2d at 284, 502 NYS2d at 675, quoting from Weiss
NY2d at 587, 200 NYS2d at 414. Claimant argues vigorously that there were a
high number of accidents in the area of Neglia's collision and that should have
caused the defendant to re-assess its design plan and then act to alleviate the
The accident figures submitted by claimant appear quite high (cl exhs
24, 25 and 37).
But in evaluating these numbers: i) accidents prior to the completion of the
road must be excluded; ii) most of the accidents occurred as a consequence of
the activity at the intersection of 25A and Sunken Meadow Road; and iii) there
were no accidents of the type involving Neglia and Castellano, i.e.
head-on lane crossover accidents were recorded after the road reconditioning
project was completed. See cl exh 25; def exhs N and
In sum, the defendant is entitled to qualified immunity because its road design
and plan was adequate and reasonably-based. There was nothing in the accident
history subsequent to the project's completion that obligated the state to
undertake additional remedial action. Hence, the state remains cloaked in
qualified immunity. Strictly speaking, it is unnecessary to reach the issue of
whether the defendant was negligent were its immunity to be stripped away, but
under the circumstances a brief excursion into the realm of ordinary negligence
is not inappropriate.
For the state to be liable under a theory of negligence, it must be shown that
the state failed to exercise reasonable care, that resulting injury was
reasonably foreseeable and that such failure was the proximate cause of the
accident that injured Mr. Neglia.
Hearn v State of New York
, 157 AD2d 883, 549 NYS2d 884 (3d Dept 1990),
75 NY2d 710, 556 NYS2d 247 (1990); PJI
2:10, 12 and 70.
The dangerous driving of Phillip Castellano was the sole cause of this accident,
which was witnessed by Jason Brewster. Brewster was driving westbound in front
of Castellano, in fact just in front of Castellano - - Mr. Brewster had a very
clear recollection of Castellano tailgating him "all the way down the hill,
through the blinking yellow light, into the S-curve... no more than two car
lengths off my bumper." Then Brewster, warily checking the tailgating in his
rear view mirror, described Castellano's grossly inattentive behavior:
I just saw him going down...to the passenger side of his vehicle...he literally
disappeared behind the dashboard to his right... I could no longer see him. And
then the car took off into the oncoming lane. It was very quick ... and there
was a very large explosion; it was a massive impact."
Brewster was an extremely credible, forthright witness; this trier of fact
credits his testimony as to what transpired that fall day in 1998 on Route 25A.
Nothing in Brewster's narrative implicates any design feature of the road or any
combination of such features as proximately causing the collision of the two
To be struck head-on is life-threatening and extraordinarily frightening; Mr.
Neglia was not only blameless, but helpless - - he had no time to react to the
Castellano vehicle. With that said however, for the reasons set forth above,
no remedy lies against the defendant State of New York; Phillip Castellano's
driving was the sole cause of this terrible accident. Scott and Lisa Neglia
have thus failed to prove their case by a fair preponderance of the credible
evidence, and their claim (no. 101776) is
. All motions not previously ruled upon are deemed
LET JUDGMENT BE ENTERED ACCORDINGLY.
March 28, 2002
HON. ALAN C. MARIN
Judge of the Court of Claims
For ease of reference and inasmuch as the
claim of Lisa Neglia is derivative of her husband's, herein "claimant" and
"Neglia" refer to Scott Neglia.
The testimony had it at about 1,500 feet.
Using the 1" to 40' scale in def exh J yields about 1,200 feet. The left-most
yellow mark on the exhibit signifies the site of the accident.
On defendant's exhibit J, this is marker
"1123" to "1126", which is 112.3 miles to 112.6 miles or 0.3 miles, which makes
the bar scale sketched on the top appear more accurate than the one inch to 40
feet printed scale. See footnote 2.
Curve no 5 was listed in the design plan for
super-elevation only on the eastbound side, but was actually done in both
The adoption of the Manual is mandated by
Vehicle and Traffic Law §1680(a), which provides that such "uniform system
shall correlate with and so far as practicable conform to nationally accepted
standards." At trial, unchallenged testimony was heard that in order to qualify
for federal highway funding, a state had to either adopt the manual issued by
the federal government, or produce its own as New York did, which then was
successfully submitted to the US DOT for approval.
It should be noted that on the stand,
claimant's expert, Wesler, said that he did not see even the one westbound
S-sign the day he inspected the site in July of 1999, nine months after the
accident, but no credible evidence was advanced that the sign was in fact not
there Oct 19, 1998.
"AASHTO" stands for the American Association
of State Highway and Transportation Officials.
Claimant's expert measured from the center
of the white line to the center of the nearest of the two yellow lines (although
his testimony was imprecise; he may have meant to the center of the two yellow
lines). Bachner, for the defendant, noted that the lane markings are put down
last, and the white line bounding the lane from the shoulder would be wholly
within the lane as would the left most yellow line.
In the July 4, 1997 two-vehicle accident,
vehicle 1 had a "collision with curbing" (def exh N, p. 3). The July 12, 1997
accident was a collision between a right-turning vehicle and a straight-ahead