New York State Court of Claims

New York State Court of Claims

HEALEY v. STATE OF NEW YORK, #2002-018-122, Claim No. 98766


Synopsis


The Court found the State 100% liable for the death of Jeffrey Healey. The State had ample notice of a deteriorating roadway with longitudinal cracking, combined with the State's failure to repaint the fog lines, creating dangerous conditions the morning of August 14, 1996.

Case Information

UID:
2002-018-122
Claimant(s):
AMANDA HEALEY, As Administratrix of the Goods, Chattels and Credits of JEFFREY ALAN HEALEY, Deceased
Claimant short name:
HEALEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98766
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
LOCKWOOD & GOLDENBy: B. BROOKS BENSON, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: PATRICIA BORDONARO, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 25, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimant seeks damages from the State of New York for the conscious pain and suffering and wrongful death of her husband, decedent, Jeffrey Healey due to the State's alleged negligence, specifically, the improper design and maintenance of State Route 26 in Lewis County. On August 14, 1996, at approximately 6:30 a.m., decedent was involved in a two-vehicle accident while driving to work in dense fog. The issues presented are whether the State created a dangerous condition when it widened Route 26 in 1982 and/or failed to properly repair and maintain the road thereafter, and if this alleged negligence was the proximate cause of the decedent's injuries and death. The trial was bifurcated and this decision relates solely to liability. Amanda Healey Johnson,[1]
decedent's widow and administratrix, testified that from 1991 until the time of the accident she and decedent lived on Route 26 between Constableville to the north, and West Leydon to the south. On August 14, 1996, decedent left home for work in Utica at approximately 6:20 a.m., heading south on Route 26. He was scheduled to begin work at 7:30 a.m. It was foggy that morning and Ms. Johnson saw decedent's side and taillights were on as he pulled onto Route 26. She could see as far as her mailbox post approximately 75 feet away.
Shortly thereafter, Ms. Johnson received a telephone call from decedent's parents who had heard that an accident had occurred and wanted to know if decedent had left for work yet. Ms. Johnson agreed to call decedent's place of employment to leave word for decedent to call her. She then turned on the police scanner in her home and listened to the calls for emergency vehicles on Route 26. She decided to go to the accident scene herself.

She drove approximately two-and-one-half miles south and was allowed through the first roadblock. At the second roadblock, she parked her vehicle and saw ambulance attendants loading a person wearing black soled sneakers into the ambulance. She knew it was not decedent. Then she saw their car, a 1987 Mercury Grand Marquis, off the road with a body in it covered with a blanket. A fireman and an unidentified woman prevented Ms. Johnson from going to the vehicle. She borrowed a phone and called her in-laws and mother with the tragic news. A fireman drove her home and waited with her until someone arrived to be with her.

Ms. Johnson identified numerous photographs of Route 26 in and around the accident site. On each of them, she pointed out the longitudinal crack running parallel to the fog lines on both sides of the road. This crack created a drop-off on portions of Route 26 between Constableville and West Leydon which Ms. Johnson, decedent, and other drivers avoided by driving as close to the centerline as possible. In fact, Ms. Johnson had caught her tires in the crack approximately one-and-one-half years before the accident and over-compensated when she turned the wheel left causing her vehicle to cross the centerline of Route 26. This made her very cautious when driving this road. She testified that the cracks ran the full length of Route 26 between Constableville and West Leydon the portion of the road on which decedent had his accident.

Mr. John Stephenson, the driver of the other vehicle involved in the accident, testified he had never seen such dense fog as existed that morning. He described it as at least three times foggier than normal with visibility of less than 50 feet. After a quick trip to the store, Mr. Stephenson left his home in West Leydon and headed north on Route 26, toward Constableville en route to Lowville. He had his windshield wipers on and estimated his speed at no more than 35 miles per hour; his vehicle was in third gear.

The last thing Mr. Stephenson recalled before the accident was another vehicle traveling southbound, going by just after he passed what is called Golden Road. His next memory was sitting in the ditch looking at his demolished truck. He said he suffered a head injury as a result of the accident.

On direct examination, Mr. Stephenson testified that as he drove his eyes were bouncing all over the road, using whatever he could to stay in the driving lane. He normally used the centerline as a guide; and therefore, concluded he did so that morning, although he could not recall doing so. Nor could Mr. Stephenson recall seeing the fog lines on Route 26. On cross-examination, his Department of Motor Vehicle hearing testimony was used to refresh his recollection during which he said he could see all the striping on the roadway. He did note that the centerline was clearer than the fog lines and reiterated it was his practice to use the centerline as a guide.

Also called as a witness by claimant was Kevin Mathis, a bus and ambulance driver, who testified he was very familiar with Route 26. He, too, recalled August 14, 1996, as being foggy and described the subject roadway as in need of repair with cracks running along it, inside the fog lines, with areas that had dropped off a couple of inches. His custom was to hug the centerline of Route 26 to avoid the cracks, and he had observed other drivers doing so. He also said he could drive with his wheels straddling the crack and did so when he drove his dump truck due to its size.
Sergeant Steven Parsell from the Lewis County Sheriff's Department responded to the scene of decedent's accident. Dispatch notified him of the situation, and he recalled the foggy conditions prevented him from exceeding 30 miles per hour en route. As senior road deputy he signed the accident report[2]
and assisted with the investigation by taking various measurements.[3]
There were no skid marks which would indicate an attempt by a driver to stop before the collision; there were scuff marks from the tire of the Stephenson vehicle scraping the road surface as it overturned. The sheriff's deputies concluded that a gouge found in the southbound lane indicated the point of impact; the mark was made by the wheel of decedent's vehicle being forced into the pavement by Mr. Stephenson's pickup truck. By examining the vehicular damage, the investigators determined it was a head-on collision with some offset, and that the pickup truck rode over the Mercury's fender and along its side before the truck flipped over.

Dennis Lawlee, a Lewis County Sheriff's deputy at the time of the accident, testified that he measured the gouge in the southbound lane and it was approximately one foot in length and six inches wide. The gouge was two feet to the south of the centerline in the southbound lane. He, too, recalled the dense fog the morning of the accident and that visibility was barely beyond the hood of his vehicle.

Claimant also called the New York State Department of Transportation (hereinafter DOT) Regional Traffic Engineer, L. Raymond Powers.[4]
He is responsible for pavement markings, sign locations, and traffic control devices in Region 7 which includes the portion of Route 26 involved in this accident.
Prior to 1982, Route 26 was a concrete road with two lanes of travel, each nine feet wide. To meet new standards set in 1982 which required a minimum lane width of 10 feet, the State widened Route 26 so each lane was 11 feet wide between the centerline stripe and the edge or fog lines. Some time after the 1982 project, the State became aware of what Mr. Powers called pavement deficiency or deterioration. A project proposal[5]
dated September 1993, noted "numerous heaves and settlements, transverse cracking, longitudinal cracking along
73% of the centerline, and edge cracking along 52% of the project."[6] Also noted in the project proposal was that Route 26 had a "[w]idening drop-off in the medium to high severity level" along the section of Route 26 which ran from mile marker 1000 to mile marker 1098. The point of impact in decedent's accident was at mile marker 1024.
Mr. Powers explained that a widening drop-off is where the pavement used to widen the road in 1982 settled at the edge of the concrete slab resulting in a vertical displacement nine feet from the centerline. The shoulders of the road were in poor condition and the edge cracking made an uneven riding surface. In a memoranda sent by Donald F. Cooke, Jr., Region 7 Materials Engineer to Bruce R. Irwin[7]
Regional Planning and Program Manager, and William R. Ferguson[8] Regional Design Engineer, dated July 27, 1993, these pavement deficiencies and others were described. The widening drop-off was nearly continuous from mile marker 1000 through mile marker 1077, and despite previous patching, consolidation or movement continued to revive these deficiencies. Mr. Powers testified the uneven riding surface can be dangerous to the public depending on the severity. He did not find the Route 26 surface dangerous.
Numerous DOT documents establish the recurring problems on Route 26 after it was widened due to heaving and settling of the added two feet of asphalt that had an insufficient sub-base. Every winter the frost raised the widened strip and in the spring, the traffic would re-compact that portion of the roadway resulting in drop-offs and deformations, also referred to as "premature shoulder failures."[9]
These problems were noted at least as early as 1992, and as of the date of trial, the rehabilitation project proposed in 1993 had yet to be commenced. The DOT decided to rely upon bi-annual maintenance of this road instead of rehabilitating or reconstructing it[10] despite its own conclusion that "anything less than total reconstruction would be a waste of funds."[11]
The project history,[12]
in brief, reads:
Route 26 Oneida County Ln. - Constableville Project History
3/92 Put on Capital Program for reconstruction in 1996
2/95 Capital Program Cut Letting moved to 10/97
4/95 Letting moved to 4/99
2/96 Letting moved to 4/00
2/96 VPP Project (resurfacing) put on program for 1996
4/96 Letting for reconstruction project moved to 4/02
7/96 VPP Project Let.
8/96 VPP Project Awarded
9/96 VPP Project Started
10/96 VPP Project Completed

Traffic Counts 5/96 Annual Average Daily Traffic 1004
10/96 Annual Average Daily Traffic 1058


Mr. Powers stated that capital funds originally earmarked for Route 26 were diverted to Route 812, a highway in the DOT's primary system. The funding diversion from the Route 26 project to the Route 812 project was based upon the DOT's established system of priorities. Route 26 would be "maintained at its existing condition."[13]
However, after the diversion of funds in 1995, the reconstruction project letting was moved back three more times. No explanation was given by Mr. Powers, the State's expert, for these additional delays.
Mr. Powers testified about the accident history of the subject roadway obtained in connection with the proposed project (PIN 704238)[14]
and an accident description report[15] dated May 3, 1999, for Route 26, mile marker 1022 - 1026 which referenced the Healey accident only. However, in studying the proposed project to correct the problems with Route 26, an accident history was obtained that covered from reference marker 1000 - 1098.[16] The overall accident rate for this stretch of road was 4.61 accidents per motor vehicle mile and, at that time, the statewide average was 2.98 per motor vehicle mile. Although not all of the accidents were related to the road surface conditions, corrective recommendations were made. Mr. Powers described Route 26 as having low traffic volume. The accident history, cost of a project, traffic volume, maintenance history, and soil investigation of a road are a few of the factors considered when DOT sets project priorities. Another factor is the road's sufficiency rating, which for Route 26 was a 5 out of 10 in 1985 and consistently through 1996. This rating means that the roadway surface is poor with frequent distress which may be severe.
Mr. Powers acknowledged that Route 26 as depicted in photographs taken the day of the accident needed re-patching or resurfacing, and that the fog lines had not been painted in at least several months. Earlier in the summer of 1996, before decedent's accident, the centerline of Route 26 was repainted but the fog lines were not because a remedial re-paving project, referred to as a vendor placed paving project, was imminent and the fog lines would be covered up by the work to be performed. Mr. Powers acknowledged that the newly painted centerline would be covered too
. He testified that the DOT knew the road striping was in need of restoration in June but chose to only repaint the centerline. No reason other than scheduled vendor paving project was given. Mr. Powers also acknowledged that Route 26 was prone to fog, particularly in the spring and fall. Pothole repair and other maintenance work was done on Route 26 before the accident[17] and also before the vendor paving project.
When called on the State's direct case, Mr. Powers reiterated his opinion that the longitudinal cracking on Route 26, standing alone, was not a safety problem. Yet, he did not specifically address the combined road surface problems. Mr. Powers also opined that, based upon the 1982 record plans and his engineering knowledge, the State did not deviate from accepted standards when the road was widened. He testified that the State followed the appropriate procedures for setting priorities for capital projects.

The claimant called Roger Beyel, a local farmer who planted crops in the field next to the accident scene. He described the condition of Route 26 as of August 1996, as "far from good" with longitudinal cracking two-to-three feet into the driving lanes running from West Leydon to Constableville. There was a drop-off at these cracks which he estimated to be two-to-four inches varying along the roadway. He recalled these cracks appearing several years before the accident, in the early 1990's.

Mr. Beyel would drive his hay wagon straddling the cracks but would drive his vehicle inside the crack close to the centerline. He had caught his wheel in the crack and observed other vehicles do the same. He noted that large trucks would get their wheels caught in the longitudinal crack and would be "thrown from one side to the other" and would not always stay in their own lane. Other vehicles also drove inside the crack, moving off the centerline when an on-coming vehicle approached.

On cross-examination, Mr. Beyel acknowledged that he never measured the drop-off along the road, but also recalled that the transverse cracks in the road would be filled in regularly by State maintenance workers, unlike the longitudinal cracking which was not filled. He complained about the poor road condition to the workers he would see repairing the road. There was no evidence that any complaints about the road were ever received at the regional office.

As an expert, claimant called Alan T. Gonseth to testify. Mr. Gonseth has been a licensed physical engineer since 1960 and has been self-employed as a consultant since 1990. His career has been spent in highway and traffic engineering for the New York State Port Authority. In preparation for his testimony he reviewed numerous documents, depositions, and photographs, heard the claimant's other witnesses testify, but did not visit the scene.

Mr. Gonseth reviewed the photographs of Route 26 and as other witnesses had, described the longitudinal crack running two feet in from the pavement edge; there was a crack down the centerline and transverse cracking which had been patched. According to Mr. Gonseth, this longitudinal crack with a resultant drop-off failed to comply with the New York State Highway Maintenance Guidelines,[18]
specifically regarding pavement and shoulder maintenance. In Mr. Gonseth's opinion, the pavement discontinuities and deficiencies presented a dangerous condition for the traveling public. As noted by numerous witnesses, those conditions forced drivers to hug the centerline instead of centering their vehicles in the lane.
Based upon the New York State Highway Sufficiency Ratings,[19]
Mr. Gonseth concluded that the State had notice of the poor conditions of Route 26 since 1985. From then until the accident, the State rated Route 26 a 5-out-of-10 indicating the road surface was poor with frequent, maybe severe, distress. Only 10.8 percent of the State's roadways were rated a 5 in 1995. According to Mr. Powers, the State does not allow its roads to drop below a 5, using regular maintenance to keep them at that level.
Also supporting Mr. Gonseth's conclusion that the State was aware of the poor condition of Route 26 is the reference to the Highway Sufficiency scoring of 5 contained in the Expanded Project Proposal, PIN 704238, for Route 26, a portion of which reads:[20]

"Scores of 1-5 are indicative of pavement which is

in poor condition. The shoulders are also in poor

condition. The dominant distress types on these

sections of Routes 26 and 294 are general alligator

cracking and widening drop-off...[w]idening drop-off

occurs when concrete slabs are overlaid with asphalt

which extends a few feet beyond the slab edges to

create additional pavement width. The asphalt may

crack at the underlying slab and create a vertical

displacement resulting in an elevation difference

across the joint between the original pavement edge

and the widening."


Also in Exhibit 11's appendices are memos between various DOT personnel which describe the problems on Route 26 in 1992 and 1993, including a nearly continuous widening drop-off in the medium-to-high severity level.[21]
Mr. Gonseth described Route 26 as a generally north-south thoroughfare with two eleven- foot travel lanes with white fog lines and three-foot shoulders. Traveling north, as John Stephenson did, there is a small incline with a gradual right hand curve. Where the road begins to bend, the centerline for northbound traffic changes from solid to intermittent. The dashes of lines are 10 feet long with 30 feet between them. The fog lines were in poor condition having not been painted for over 14 months. During the winter, snowplows scrape the reflective materials off the fog lines so repainting should be done in the spring in time for the foggy seasons.

Ultimately, Mr. Gonseth concluded that the accident occurred when both vehicles were traveling adjacent to the centerline in opposite directions. They were close to the centerline to avoid the longitudinal crack two feet from the edge of the pavement. Based upon Mr. Stephenson's normal driving habits, using the centerline as a guide, it was presumed by Mr. Gonseth that he was following the centerline of the road that morning. As the road curves slightly to the right, the centerline becomes intermittent to mark the beginning of a passing zone. Mr. Stephenson followed the centerline which, when intermittent, failed to direct him around the curve. Instead, he continued straight and crossed into decedent's lane. If one extended the solid centerline through the curve, in both the north and southbound directions, it would meet at the point of impact.[22]
Mr. Gonseth opined that the accident occurred because the drivers were following close to the centerline due to the longitudinal crack and their inability to see the fog lines.
Mr. Gonseth had a second, but he felt less probable, opinion on how the accident occurred. If Mr. Stephenson had been driving with his wheels straddling the crack, as he approached the curve, his wheels then caught in the crack causing him to accelerate, oversteer and impact the decedent's vehicle in the southbound lane.

On cross-examination, Mr. Gonseth agreed that it is appropriate to use regular maintenance as an interim measure to avoid major reconstruction. He added that there is always some deterioration on roadways so repairs should be made to keep the road surface closer to the excellent range and to avoid the poor range. Route 26, he said, required major maintenance to sustain the roadway until it could be reconstructed. The last major repair, however, was done in 1991 on the shoulders of the road with some localized patching in 1994.

Mr. Gonseth further surmised that the sub-base used in the 1982 widening process was below standard. The basis for his conclusion is the rapid deterioration of the road edges; however, he could not specify what, if any, deviation from design standards was made at the time.

The State called four witnesses. The first, Elizabeth Platt, testified that she took Route 26 to work and home on a daily basis in 1996. Her hours varied but on the date of the accident, she was traveling northbound toward Constableville the same direction as Mr. Stephenson some time after 6:30 a.m. She, too, recalled the dense fog which prevented her from driving the speed limit. It was very difficult to see the lines on the road; she had to look really closely as she followed the yellow centerline. She said the fog lines were dull and hard to see.
There was a flare, warning drivers of the accident which Ms. Platt saw only at the last moment. She ultimately turned around. At trial, she identified the statement she gave to the Sheriff's Department on August 23, 1996,[23] in which she stated she could not see the fog lines that morning. As a rule, Ms. Platt did not take any precautions or measures in driving Route 26, and she had no concerns regarding the road condition.
Dale W. Roberts, a senior investigator with the Lewis County Sheriff's Department testified about his participation in the accident investigation. Investigator Roberts' testimony regarding the accident scene and weather conditions was the same as that of the other witnesses. He drove slowly and used the road lines in getting to the scene. He identified various documents and statements compiled or completed by the Sheriff's Department in connection with the accident investigation. It was concluded that the accident was an offset head-on collision with the gouge mark indicating the point of impact. Both vehicles apparently had driven a straight path, hitting each other with the left front of Mr. Stephenson's pickup impacting the left front of decedent's vehicle. There were no skid marks or other physical evidence that either driver attempted to avoid or steer away from the other.

In addition to working with officers from his own department, Investigator Roberts contacted Dennis Cooper, a New York State Trooper a few days after the accident to ask for his assistance. On August 22, 1996, Investigator Roberts and Investigator Cooper returned to the accident scene, took measurements and viewed the damage to decedent's vehicle at the body shop. The cause of the collision was Mr. Stephenson's vehicle crossing into the wrong lane combined with limited visibility. Why Mr. Stephenson left his lane, Investigator Roberts did not know. He did not note any road conditions which he felt contributed to the accident. On cross-examination Investigator Roberts acknowledged he is not an accident reconstructionist, and he could not conclude that decedent had or had not steered away from the collision just prior to impact.

Dennis L. Cooper, a senior investigator with the New York State Police had significant training in accident investigation and reconstruction, including teaching courses at the State Police Academy. He recounted Investigator Roberts' request for assistance with the investigation of decedent's accident. It was his practice not to obtain other officers' opinions prior to his own investigation, so his conclusions would be based on his own findings and training. By examining the damage to the vehicles, Investigator Cooper could assess the damage pattern to determine what happened upon impact. He concluded that the collision was an offset head-on based on the damage to the left front of decedent's vehicle. The collision forced the left front corners of each vehicle back toward the drivers. There was no evidence that one vehicle steered sharply away from the other. Any evasive move would have been minute.

Investigator Cooper opined that the two contributing factors were John Stephenson crossing over the centerline and the heavy fog. There was no indication of any loss of control of either vehicle which would indicate that the pavement surface was a factor. He also had no evidence that there was any mechanical failure involved.

On cross-examination, Investigator Cooper acknowledged that some physical evidence could dissipate or disappear between the time of the accident and his investigation and that he only examined decedent's vehicle. His primary focus was to determine the point of impact and the vehicle movement thereafter. In reconstructing the accident, he would try to determine why Mr. Stephenson's vehicle crossed into the southbound lane but there was no evidence which resolved this question.

When asked about whether he noted the condition of the fog lines, Investigator Cooper recalled that they were visible but not freshly painted. His portion of the investigation involved the mechanics of the collision so any reference to the fog lines would have been in Investigator Roberts' report.

The State is obliged to construct and maintain its highways in a reasonably safe condition. (
Weiss v Fote, 7 NY2d 579; Friedman v State of New York, 67 NY2d 271) Yet, the State is not an insurer of the safety of its highways and the mere happening of an accident does not infer a finding that the State is liable. (Brooks v New York State Thruway Auth., 73 AD2d 767, aff'd 51 NY2d 892) The burden rests on claimant to show that defendant was negligent and that negligence caused, in whole or in part, claimant's accident. (Pontello v County of Onondaga, 94 AD2d 427) Claimant must show that the State either created a dangerous condition, or it had actual or constructive notice thereof and failed to take reasonable measures to correct or warn of the condition. (Brooks v New York State Thruway Auth., supra; Rinaldi v State of New York, 49 AD2d 361)
In the field of traffic engineering, the State enjoys a qualified immunity from liability arising out of highway planning decisions that evolve from adequate study. (
Weiss v Fote, supra; Friedman v State of New York, supra) The State may only be held liable for injuries arising from the operation of a duly executed highway safety plan where it is shown that the plan either evolved without adequate study, lacked a reasonable basis, or was unjustifiably delayed in implementation. (Weiss v Fote, supra at 588; Friedman v State of New York, supra at 286)
Claimant has failed to show that the State acted negligently when it originally widened Route 26 in 1982. The State's decisions regarding the reconstruction project on the table at the time of claimant's accident require closer scrutiny. Clearly, the State had notice of the poor surface conditions existing on Route 26. The State's defense was that DOT was faced with setting priorities for the expenditure of capital funds and Route 26 was a lower priority than Route 812.
The evidence shows that the State began its review of Route 26 in 1992, although the surface had been in poor condition since 1985. A preliminary decision was made to reconstruct the road and further, more in-depth, studies were needed. After additional review, an expanded project proposal[24]
was completed in September 1993. The anticipated "letting date" was May 1996. Late in 1995, the State decided to divert the funding from the Route 26 project to Route 812, a road with greater usage. The Maintenance Division said it could keep Route 26 at its then condition level until reconstruction could take place.
The evidence shows that Route 812 had significant problems and that road was more heavily traveled than Route 26. The decision to reallocate funding thereby delaying reconstruction of Route 26 is one that the Courts should not second-guess. (
Howie v State of New York, Ct of Cl, unpublished decision of Silverman, J., filed February 26, 1993, Claim No.84733) However, the State moved the project date from 1996 to 1999 for which there was no explanation. In February 1996, the project was delayed again without explanation.
In September 1994, a suggestion was made to resurface the road pending reconstruction in the future.[25]
The resurfacing project was referred to as the vendor placed paving project. The process to begin the project was not started until February 1996. The actual remedial paving work did not begin until September 1996 and was not completed until October 1996. As a result of this paving, in September 1998, two years after decedent's accident, the road surface of Route 26 still showed no signs of cracking and the pavement rode well.[26] When, after studying a problem, a remedial plan is developed "an unjustifiable delay in implementing the plan constitutes a breach...just as surely as if [the State] had totally failed to study the known condition in the first instance." (Friedman v State of New York, supra at 286) The Court finds that the State unreasonably delayed in remedially resurfacing Route 26 without explanation. (Cf., Friedman v State of New York, supra)
The Court finds that as a result of the poor road surface drivers were forced to position their vehicles close to the centerline. The testimony of numerous witnesses indicated the difficulties they encountered as a result of the longitudinal cracking on Route 26 and their compensation for the uneven road surface by driving close to the center line. Many of these witnesses also testified to their observation of other drivers doing the same.

In addition, the State failed to properly maintain the road when it left the fog lines unpainted. The only reason given for failing to repaint the fog lines was the anticipated vendor paving project. The Court finds that this was not a reasonable reason for failing to repaint the lines, given the State's knowledge that this area is especially prone to fog and that other remedial work was performed including repainting the center lines, pothole repairs, and other maintenance. In reviewing the pictures in evidence, it is readily apparent what poor condition the fog lines were in the morning of the accident.[27]
Defendant's own witness, Ms. Platt, testified that she followed the centerline the morning of the accident because the fog lines were hard to see. The likelihood of a driver encountering foggy conditions is a factor which should have been taken into consideration in determining what maintenance was necessary on this roadway. (Cf., Gomez v New York State Thruway Auth., 135 AD2d 1043, affd 73 NY2d 724; Fabiano v New York State Thruway Auth., 187 AD2d 1021)
The deteriorating roadway, with the longitudinal cracking coupled with the failure to re-paint the fog lines were dangerous conditions on the morning of August 14, 1996. The State had ample notice of these conditions.

The State relies upon the accident history on Route 26, at the location of decedent's accident, or lack thereof, to argue that there was no notice of a dangerous condition. The documents in evidence belie this claim; they are replete with references to the poor road surface conditions. The State's reliance on the case of
Florin - McBride v State of New York (Ct Cl, unpublished decision of J. Patti, filed December 29, 1998, Cl No.78927) is misplaced. In that case, Judge Patti found in favor of the State as a result of claimant's failure to prove the roadway was unsafe. The facts in Florin - McBride are significantly different from those in this matter, including the volume of traffic and the little weight given to claimant's expert testimony. The lack of prior accidents on a roadway is not conclusive on the existence of a dangerous condition. (Noskewicz v City of New York, 155 AD2d 646)
The Court accepts Mr. Gonseth's opinion as to the cause of the accident: Both decedent and Mr. Stephenson were near the centerline because of the longitudinal crack and the inability to see the fog line. The point of impact establishes decedent's vehicle was only two feet from the centerline. Just as the centerline changed from solid to intermittent, the road curved slightly to the right for northbound traffic; Mr. Stephenson no longer had the centerline to guide him, and he continued in a straight line in the southbound lane, hitting decedent. The Court found no evidence that contradicted this theory. The poor road surface and the faded fog lines were substantial factors causing Mr. Stephenson to cross into decedent's driving lane on the morning of August 14, 1996, resulting in the collision with decedent's vehicle.

The State urges the Court to find that the foggy weather was the sole cause of the accident; however, to do so would require ignoring the defects in the roadway. Based upon the evidence the only reasonable conclusion is that these factors together proximately caused the accident. "Several acts may occur to produce a result; one or more being the proximate cause." (
Foley v State of New York, 294 NY 275, 280)
The Court finds the State 100 percent liable for the death of Mr. Healey.[28]
All motions not previously determined are hereby DENIED, and it is further
ORDERED, that the Clerk of the Court is directed to enter an INTERLOCUTORY JUDGMENT in the above matter, and it is further

ORDERED, that liability having been found a trial on the issue of damages will be scheduled.

February 25, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1] Claimant had recently remarried and the caption is amended sua sponte to reflect her name change.
[2]Exhibit 2
[3]Exhibit 3
[4]Mr. Powers was also called as an expert on the State's case.
[5]Exhibit 11, Expanded Project Proposal PIN 704238.
[6]Exhibit 11, page 10, paragraph R.
[7]Exhibit 11, Appendix C.
[8]Exhibit 19.
[9]Exhibit 26-R
[10]Exhibit 11, page 20
[11]Exhibit 26 - KK
[12]Exhibit G.
[13]Exhibit 26-TT
[14]Exhibit 11 and Exhibit M.
[15]Exhibit N.
[16]Exhibit M and Exhibit 11, Appendix E
[17]Exhibit "P."
[18]Exhibit 51. The State did not object to the admission of Exhibit 51 but questioned whether these guidelines (dated February 22, 1990) were in effect at the time of the accident. No evidence was presented that these guidelines were revised between 1990 and 1996.
[19]Exhibits 52 and 53
[20]Exhibit 11, page 7-8, paragraph l.
[21]Exhibit 11, Appendix C, page 2, paragraph 5.
[22]See Exhibit 56.
[23]It is contained in Exhibit B.
[24]Exhibit 11
[25]Exhibit D, memo dated 10/31/94
[26]Exhibit C, memo dated 9/14/98
[27]Claimant's Exhibits 46- 50, Claimant's Exhibit 8-C, Defendant's Exhibit A-12.
[28]This determination is reached without reliance on the Noseworthy Doctrine (See, Noseworthy v City of New York, 298 NY 76, claimant and defendant are similarly situated regarding accessibility to the facts surrounding decedent's death. (Rockhill v Pickering, 276 AD2d, 1002; Wright v New York City Housing Auth., 208 AD2d 327)