Route 26 Oneida County Ln. - Constableville Project
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
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
and an accident description report
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.
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
and also before the vendor paving
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
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
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
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:
"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
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
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,
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
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,
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
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
Claimant has failed to show that the
State acted negligently when it originally widened Route 26 in 1982.
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
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
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
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.
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.
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,
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
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.,
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 - M
cBride 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
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,
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.
All motions not previously determined are hereby DENIED, and it is
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