New York State Court of Claims

New York State Court of Claims

MACRI v. STATE OF NEW YORK, #2002-018-119, Claim No. 100696


Claimant failed to prove defendant was negligent for installing, repairing, or maintaining the signposts which caused claimant's injury.

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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages from the State of New York for injuries received when his car hit a signpost, the end of which penetrated the undercarriage of his vehicle and impaled his leg. The trial was bifurcated and this decision relates solely to liability.

The facts regarding the accident are undisputed. On May 2, 1999, claimant arose at 5:30 a.m., went to work until approximately 3:00 p.m., then met friends to go boating for the afternoon. Claimant drank beer from approximately 3:30 to 10:30 p.m., consuming between 10 to 15, 12-ounce cans and did not eat all day.

Claimant believes he fell asleep on his way home while driving on Route 13 near the Carter Road intersection in Madison County, allowing his pickup truck to leave the roadway and hit a "curve ahead arrow" sign. The supporting sign had two posts with pointed ends which had been pounded into the ground.[1]
After the impact, as the truck traveled over the signposts, one post bent and the end curved up, pulled out of the ground, continued to bend upward and penetrated the truck floor. The post went through claimant's left leg.
Claimant alleges the State should have used a breakaway or similarly designed safety signpost which, unlike the steel post, would not have penetrated the vehicle and injured claimant. The State argues that it has qualified immunity[2]
because the posts were installed according to the standards of construction and signage at the time of installation.
The claimant also alleges that the State negligently installed, maintained, or repaired the signposts in violation of its own standard specifications. The State's defense rests upon the operational guidelines for signpost installation.

It is well established that the State is under a non-delegatory duty to maintain its roadways in a reasonably safe condition for motorists who obey the rules of the road. (
Friedman v State of New York, 67 NY2d 271; Tomassi v Town of Union, 46 NY2D 91) The State is required to build a reasonably safe roadway consistent with the standards applicable at the time of design and construction. (Friedman, supra at 284; Schwartz v New York State Thruway Authority, 61 NY2d 955; Holscher v State of New York, 59 AD2d 224, 227, affd 46 NY2d 792; Rinaldi v State of New York, 49 AD2d 361) Yet, there is generally no obligation by the State to upgrade the structure which was originally built in compliance with applicable law solely because of changes in design specifications and standards.(Merino v New York City Transit Auth., 218 AD2d 451, 457; Benjamin v State of New York, 203 AD2d 629; Rittenhouse v State of New York, 134 AD2d 774, 776; Dowen v State of New York, 11 Misc 2d 555, 562) This rule would also apply to the use of signposts.
It is the claimant's burden to show that the State was negligent in the design, construction or maintenance of this roadway by the use of the signposts involved in this accident, and that this negligence proximately caused claimant's injuries. (
Hough v State of New York, 203 AD2d 736)
The claimant seeks spoliation sanctions because the State failed to preserve the sign which may have had the date of placement on it. Specifically, claimant seeks to preclude the State from offering evidence regarding the age or condition of the missing sign. During discovery, the State produced no records indicating the date of installation of the sign and/or signposts.

Claimant called John Collins, a New York State Department of Transportation (hereinafter DOT) Resident Engineer from the Oneida West Residency, a position he has held since 1992.[3]
Mr. Collins testified that the sign struck by claimant consisted of an arrow notifying drivers of a left bend in the road. He acknowledged that the sign would have been placed by DOT or by a contractor with New York State approval; he had no specific information regarding the date of installation. He did testify that since the late 1980's, DOT placed stickers on road signs indicating the date of installation. However, sometimes the sign is replaced but the existing posts, if not damaged, are used to mount the sign. Mr. Collins testified that there was no "life expectancy" for signs, but workers would inspect signs every other year to check particularly for reflectivity. Since 1992, in the Oneida West residency, steel angle iron signposts were replaced with breakaway posts whenever a sign was replaced. The sign involved in claimant's accident had steel angle iron posts.
The morning following the accident, Mr. Collins went to the scene to investigate. He saw the sign and the signposts at the scene but made no effort to preserve them. He testified that damaged signs and posts usually go into the DOT scrap heap. Upon receiving a request from claimant for production of the sign, his crew produced three signs from the scrap heap; any one of which could have been the sign in question. No discovery requests were made to produce the signposts, but the claimant introduced Exhibit P, a portion of the steel angle iron post that impaled claimant's leg.

During Mr. Collins' tenure as the resident engineer from 1992 through May 2, 1999, he was unaware of any damage to the signpost hit by claimant, and there had been no other reason to replace the sign or signpost. He neither gave nor received any instructions to install or replace the sign or signposts in question, and despite a search, there is no documentation at the residency to establish when the sign was mounted or signposts were installed. Since the residency must keep these records for seven years, these posts were not replaced since 1994.

Although the case law associated with spoliation has extended the imposition of sanctions beyond the wilful or bad faith situations to negligent destruction of crucial items of evidence germane to the accident, (
Squitieri v City of New York, 248 AD2d 201; Kirkland v New York City Housing Authority, 236 AD2d 170) the claimant's request for spoliation sanctions for the State's failure to preserve the sign must fail. The record clearly establishes that the date the sign was placed is unrelated to the date the signposts were installed which is the crux of this case on the issue of the use of safety signposts. The sign placement date is not crucial to the prosecution of this case, and the claimant has the actual signpost in question; therefore, spoliation sanctions are denied.
As an expert witness, claimant called James Napoleon, a professional engineer specializing in traffic and transportation cases with training and experience in accident reconstruction. Mr. Napoleon reviewed numerous documents and photographs, did a site inspection, took his own measurements and photographs, and inspected claimant's vehicle.

Mr. Napoleon opined that on the night of May 2, 1999, as the claimant's vehicle struck the signpost it bent into a "U" shape. The force of the vehicle pushed the center portion of the post in one direction which caused the sunken, pointed end to pull out of the ground and penetrate the under-carriage of the vehicle and claimant's leg. The State did not contest this explanation which is supported by the photographs in evidence.

A portion of the steel post[4]
was examined by Mr. Napoleon. Based upon that examination, his training as an engineer, and his experience with similar signposts, he concluded that Exhibit P had been installed between 1979 and 1984. The State objected to the admission of this testimony. The admissibility of expert testimony rests within the sound discretion of the trial court. (Price v New York City Housing Auth., 92 NY2d 553) The weight which it is to be given is determined by the fact finder. Because the photo logs[5] offered into evidence by the State show the signposts in place as early as 1977, the Court has allowed the testimony but placed no weight on Mr. Napoleon's estimate of the age of the posts.
Mr. Napoleon testified that over time as studies are conducted in various areas of highway safety, industry standards develop. They are found in numerous publications including those by the American Association of State Highway and Transportation Officials (AASHTO), the Federal Highway Administration, and New York State Department of Transportation in their Standard Specifications Sheets. One of these studies resulted in the development of slip impact and breakaway posts to minimize the dangers signposts create for the traveling public. Breakaway posts are used for small signs such as the one struck by claimant. Mr. Napoleon explained that the post is bolted into another metal piece which is mostly underground. If a vehicle hits the post, the bolts shear off allowing the vehicle to drive over the bottom portion which stays in the ground while the top section moves freely with the vehicle. Slip impact posts, according to witnesses for both parties, are used for larger signs than the one hit by claimant. The Court finds evidence regarding their use irrelevant.

The State Standard Specifications, beginning at least in 1973, indicate slip impact posts and hinge assembly posts are to be used on signs not placed behind guide rails. No definition or example of a hinge assembly post was given during trial, precluding the Court from determining whether or not such posts could or should have been used for the sign in question.

Mr. Napolean provided the 1975 AASHTO guidelines regarding breakaway signposts[6]
and opined that the signposts in question failed to comply with them. The manual states:
Breakaway supports are designed to yield when struck by a

vehicle, thereby minimizing injury to the occupants of the

vehicle and damage to the vehicle itself. All new ground

mounted signs and luminaries within 30 feet (9.14 m) of

a high speed highway shall be placed on breakaway

supports, unless they are located behind a barrier or crash

cushion which is necessary for other reasons. Even supports

outside this 30-foot (9.14m) corridor should preferably be

breakaway where there is a probability of being struck by

errant vehicles.[7]

He also testified that the posts did not comply with the United States Department of Transportation Handbook of Highway Safety Design and Operating Practices which included standards very similar to the AASHTO Manual quoted above.

The AASHTO manual excerpt refers to
new ground mounted signs within 30 feet of a high speed highway. No definition of a high speed highway was provided; but more importantly, this recommendation applies to new installations. Claimant has failed to prove an installation date for the posts in question, or that the AASHTO standards apply to the sign and posts he hit.
In response, the State called Larry Brown,[8]
a DOT engineer since 1965. Mr. Brown testified that the Standards Specifications published by DOT are written to apply to new construction, not existing roadways. Between 1960 and 1983 steel angle posts like the ones involved in causing claimant's injuries, were used in new construction or in replacing damaged posts. DOT changed the types of posts used to support the type and size sign in question in new construction in 1982 for safety reasons and for replacement of damaged posts in 1983.
Mr. Brown also investigated the history of Route 13 near the Carter Road intersection by referring to the maintenance history of the road.[9]
In those records, from 1915 and continuing through 1991, there is no reference to any sign installation.
From the evidence, the Court finds that the same signposts had been in place from at least 1977[10]
until this accident. No evidence was presented to establish that the signposts required repair or maintenance from 1977 to the date of the accident. Even if the sign had been replaced between 1977 and 1992, the signposts did not have to be and obviously were not replaced. Based upon the evidence before the Court, the claimant has failed to prove that the State should have installed breakaway posts at this location prior to claimant's accident. Even if compliance with AASHTO and the federal guidelines is required, the lack of evidence indicating the date of installation prevents any finding of liability for failure to comply.
Turning to the procedure for installation, the questions remaining are whether the State improperly installed the steel angle posts and if so, whether this was a proximate cause of the claimant's injuries.

There are three exhibits that bear upon the manner of installation of the signposts:
Exhibit 18A is a page from the New York State DOT's Standard Sheets (645-7) entitled "Typical Traffic Signs Assembly Details" dated June 29, 1973. This sheet requires a steel angle post to be imbedded in concrete a minimum of four feet deep by one foot in diameter.

Exhibit Q is a New York State DOT Highway Maintenance Subdivision Operational Guideline dated February 9, 1973 and distributed on April 1, 1974 which describes how new roadway signs are to be installed. There is no depth requirement and no mention of concrete. The workers are directed to back fill the post holes and tamp the dirt around the post.

Exhibit R is a New York State DOT document showing how galvanized steel angle posts were to be installed during the construction of a highway in Clinton County. This installation comports with that of Exhibit 18A except there is no reference to concrete for the posts in question.

Claimant's position is that Exhibit 18A sets forth the required installation specifications for the signposts struck by his vehicle. The evidence supports his contention that the posts were not imbedded four feet and, unquestionably, were not encased in concrete. Relying on Exhibit R, claimant concludes that the four-foot depth requirement has been in effect for installation of signposts since 1959.

Defendant relies on Exhibit Q which details how the DOT workers are to install new signposts. The State's position, supported by the testimony of DOT employee, Don Houle, implies that no specific depth is required. As a maintenance assistant for 26 years, Mr. Houle has installed new and replaced damaged signs and posts in the area in question. He said that if the ground was soft, the post would be hammered in to a depth of four feet, but if the ground was hard, the depth would be three feet or less.

The road reconstruction history[11]
in the State's records show a number of reconstruction projects including some widening of Route 13 between 1920 and 1967. Nowhere in any of the State's records is the installation or replacement of signposts mentioned.
The Court is not convinced that Exhibit Q contains the complete directive for installation of signposts by department forces, and it cannot speculate that the requirements set forth in Exhibit 18A were in effect when the signposts were installed or replaced. The record is clear that the same type of posts were used by the State from 1959 through 1983, the depth requirement during that period (at least through 1983) was not proven. Exhibit R refers to a specific project, not to generalized State-wide standards, and given Exhibit Q, the Court finds that the standards used in Clinton County in 1959 were not necessarily the only acceptable installation standards through 1977.

Based on the foregoing, claimant has failed to prove that the State was negligent for installing, repairing, or maintaining the signposts which caused claimant's injury.


January 28, 2002
Syracuse, New York

Judge of the Court of Claims

[1]Testimony of New York State Department of Transportation Resident Engineer, John Collins.
[2]See, Weiss v Fote, 7 NY2d 579.
[3]The Madison County and the Oneida West residencies merged around 1992. Mr. Collins was the Resident Engineer for only the Oneida West Residency prior to 1992. Claimant's accident occurred in what was the Madison County Residency.
[4]Exhibit P
[5]Exhibit D through M
[6]Exhibit 15 and 15A
[7]Exhibit 15A
[8]Since May 1980, the witness has been assigned to the Design Division, Standards and Specifications Section.
[9]Exhibits A, B and O.
[10]Exhibits D through M.
[11]Exhibit A