New York State Court of Claims

New York State Court of Claims

BALL v. THE STATE OF NEW YORK, #2002-019-002, Claim No. 96658


Claim dismissed after liability trial. Claimant was injured as the result of head-on collision with a vehicle traveling wrong way on a State highway after improperly exiting from the entrance to a rest area. Claimant argued State's failure to post a third "Do Not Enter" sign was a proximate cause of the accident. Court found that State's failure to post sign was not a proximate cause of the accident and that only the negligence shown to have caused or contributed to the accident was failure of other driver to operate her vehicle with due care.

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:
LAW OFFICES OF EUGENE C. TENNEYBY: Eugene C. Tenney, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Leonard W. Ball, brings this action alleging that the serious injury he sustained on May 2, 1997, was due, in part, to the negligence of the Defendant, State of New York (hereinafter "State"), in failing to maintain, warn, and properly sign the Kanona Rest Area located on New York State Route 17 (hereinafter "Route 17") west, Steuben County, New York.

The trial of this matter, held on July 23, 2001, was bifurcated. Consequently, this Decision addresses the issue of liability only.

The Claimant was critically injured in an automobile accident that occurred on May 2, 1997, on Route 17 near the Village of Bath, New York. Claimant was proceeding in a westerly direction on the divided highway with two lanes traveling in a westerly direction and two lanes traveling in an easterly direction. The accident occurred when an automobile driven by Kathryn Arnold, an eighty-seven-year-old female, exited the Kanona Rest Area (hereinafter "Rest Area") in the wrong direction. Consequently, Ms. Arnold traveled easterly in the westbound lanes of Route 17 for approximately two miles until a head-on collision occurred between the Claimant's vehicle and the Arnold vehicle. Ms. Arnold was killed in the accident. Due to the injuries he sustained as a result of this mishap, Claimant has no memory of the accident or the events immediately before the same.

By stipulation between the parties, the Court at trial received the affidavit of Kent H. Iggulden. Mr. Iggulden stated that on May 2, 1997, at approximately 2:00 p.m., he was traveling eastbound on Route 17 near the Rest Area in Steuben County. It was a bright and sunny day and the witness noticed a blue car - later identified as the Arnold vehicle - that was also traveling eastbound to his left. At first Mr. Iggulden thought that the blue car was on an access road behind the adjacent Rest Area. However, as he continued to watch the Arnold vehicle, he realized that it was actually driving out of the entrance of the Rest Area and heading the wrong way on Route 17. He watched the Arnold vehicle enter the westbound lanes of Route 17 heading in an eastbound direction. At that time Mr. Iggulden, traveling parallel to the Arnold vehicle, slowed his vehicle to 55 from 65 mph to keep even with the Arnold vehicle. Mr. Iggulden averred that he began flashing his lights toward the oncoming traffic to warn them of the errant Arnold vehicle. Mr. Iggulden observed the Arnold vehicle continue to drive east in the westbound lanes passing numerous vehicles. He remembered seeing at least one vehicle move from the passing lane to the driving lane to avoid hitting the oncoming Arnold vehicle. He stated that traffic was moderate that day and it seemed that most of the westbound vehicles were, fortunately, traveling in the driving lane while the Arnold vehicle was traveling in the passing lane. He continued along Route 17 eastbound and was going to get off at the Bath exit when he saw the Arnold vehicle collide with the oncoming vehicle driven by the Claimant. Mr. Iggulden further stated that sometime after the accident, when he was again passing through the accident area, he checked the distance from the Rest Area to the accident site. His odometer indicated that the Arnold vehicle had traveled slightly more than two miles in the wrong direction before the collision with the Claimant's vehicle.

The Rest Area is located upon Route 17 west in Steuben County, and contains full comfort facilities. A vehicle enters the Rest Area from Route 17 westbound, on a deceleration lane which becomes a through roadway running the total length of the Rest Area and ultimately channeling traffic back onto Route 17 westbound. At the end of the deceleration lane is a sign posted to the right of the roadway directing truck traffic to travel right, around an island, to a specific truck parking area. Passenger vehicles are directed straight through to parking located directly in front of the service facilities. Along the through roadway of the Rest Area there is a designated truck lane for trucks either passing through the Rest Area or coming from the truck parking area. This truck through lane is located on the left of the through roadway. This leaves an adjacent through lane to the right for passenger vehicle traffic. This also allows passenger vehicles stopped at the service facility to back out from their parking spaces located in front of the comfort facility without encountering larger commercial traffic. On the lefthand shoulder of the through lane, heading in a westerly direction, are numerous one-way arrows posted at various intervals indicating that the direction of travel is one way to the west, and prohibiting travel to the east. These signs are visible to someone exiting the rest facility. Additionally, if a driver were to exit the wrong direction from the Rest Area, i.e., heading east and attempting to enter the westbound lanes of Route 17, he/she would be confronted with two "DO NOT ENTER" signs up and posted on the left and right shoulders of the deceleration lane, followed by two "WRONG WAY" signs also located on the left and right shoulder of the deceleration lane, approximately 385 feet from where the "DO NOT ENTER" signs are posted. (St. Ex. D). These "WRONG WAY" signs and "DO NOT ENTER" signs were up and posted on May 2, 1997 to warn and direct vehicles heading in the inappropriate direction not to enter the immediately intersecting Route 17 westbound lanes.

The Rest Area was reconstructed in 1991. According to Thomas Mauro a civil engineer employed by New York State Department of Transportation, during that construction, the above-referenced warning signs were placed and set forth at the Rest Area as shown in Claimant's Exhibit 19. Mr. Mauro, and others at the Department of Transportation, determined that these "WRONG WAY" and "DO NOT ENTER" signs should be erected facing vehicular traffic that might accidently exit the deceleration lane heading in the wrong direction. Obviously, the purpose of these signs was to warn drivers who may, mistakenly, be proceeding in the wrong direction. Mr. Mauro testified at deposition, and at trial that, the original plans for construction of these warning signs at the Rest Area called for two "DO NOT ENTER" signs, however, a decision was made that three should be installed for the safety of the traveling public. The third sign was to be installed on the island located immediately at the end of the deceleration lane and also facing traffic that might errantly be traveling eastbound into the westbound lanes of Route 17. It was Mr. Mauro's opinion that the third sign, if installed, would improve safety for the traveling public. Numerous other witnesses from the State Department of Transportation were also called and testified. They all came to the same conclusion that as of the date of the accident, May 2, 1997, the third "DO NOT ENTER" sign, which was called for in the reconstruction plans (Cl. Ex. 19), was not present. No one is sure if the third sign was ever erected during the 1991 reconstruction, or if erected had subsequently come down. In any event, there is no question in the Court's mind that on May 2, 1997 the third "DO NOT ENTER" sign was not up and posted.

Undeniably, the State has a non-delegable duty to adequately design, construct, and maintain its highways in a reasonably safe condition. (
Friedman v State of New York, 67 NY2d 271, 283). This non-delegable duty is broad enough to encompass an obligation on the part of the State to properly post, maintain and position signs along a State highway designed to warn motorists of conditions and hazards ahead. (Merrill Transp. Co. v State of New York, 97 AD2d 921). However, the State is not an insurer of the safety of its highways and the mere occurrence of an accident on a State highway does not render the State liable. (Hearn v State of New York, 157 AD2d 883, 885, lv denied 75 NY2d 710). Rather, in order to establish negligence, a claimant such as Mr. Ball, must prove: 1) that a duty was owed to the claimant; 2) a breach of that duty by the State; and 3) that said breach proximately caused injuries. (Solomon v City of New York, 66 NY2d 1026). Additionally, before negligence will be found, Claimant must establish either that the State created or had actual or constructive notice of the existence of an unsafe or dangerous condition and then failed to take reasonable measures to remedy that condition. (Brooks v New York State Thruway Auth., 73 AD2d 767, 768, affd 51 NY2d 892).

Based on the proof at trial, the Court is satisfied that the Claimant established that the State negligently failed to post and/or maintain, at the proper location as designated in Claimant's Exhibit 19, the third "DO NOT ENTER" sign. Moreover, from the testimony elicited at trial from the various Department of Transportation employees, the Court is also satisfied that the State, on its numerous inspections of the site, should have noticed that the third required sign had either not been posted or was not maintained and therefore should have been replaced. As such, the State had constructive, if not actual, notice of the third "DO NOT ENTER" sign missing from its required location at the tip of the island. (
Rinaldi v State of New York, 49 AD2d 361).

Based on the foregoing, the Court is satisfied that the Claimant has established that there was a duty owed to Claimant by the State to properly post, sign, and warn of the hazardous condition facing errant vehicles which might exit the wrong way onto Route 17 westbound from the Rest Area, and a subsequent breach of that duty by failing to have up, posted, and maintained the additional "DO NOT ENTER" sign as required by the State in their own construction plans used during the 1991 reconstruction of the rest area. Therefore, the Court must next determine whether this breach was a proximate cause of the accident between Claimant and Ms. Arnold, resulting in the injuries sustained by the Claimant on May 2, 1997.

Proximate causation in essence means a substantial factor causing an event. Liability may only be imposed against the State in a case such as this when the proof shows that the injuries resulted, in whole or in part, by a cause for which the defendant is responsible. (
Pontello v County of Onondaga, 94 AD2d 427, 430, lv dismissed 60 NY2d 560). As such, it is Claimant's burden to establish the missing sign was a substantive factor in the sequence of events that led to the injury. (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520). Towards this end, a claimant:
[n]eed not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently "remote" or "technical" to enable the [finder of fact] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence (see, Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 744). A plaintiff need only prove that it was "more likely" (id., at 745) or "more reasonable" (Wragge v Lizza Asphalt Constr. Co., 17 NY2d 313, 321) that the alleged injury was caused by the defendant's negligence than by some other agency.

(Gayle v City of New York, 92 NY2d 936, 937).

Here, while signs generally should be employed and properly positioned so as to warn motorists of conditions and hazards on its highways
(Merrill Transp. Co. v State of New York, supra, 97 AD2d 921), the Court must temper this general principle with the equally valid principle that an operator of a motor vehicle is deemed to see and observe what he can with his ordinary senses. (Stanford v State of New York, 167 AD2d 381, lv denied 78 NY2d 856). This principle appears to be directly applicable to Claimant's case in that the theory of "common sense" speaks of seeing signs, even wrong or incomplete ones, coupled with other obvious and appropriate visual clues to complete the perhaps inadequate information or warnings he may have received. More specifically, here, the testimony remains uncontroverted that May 2, 1997, at 2:00 p.m., was a clear, warm, and sunny day. Upon exiting the comfort facility Ms. Arnold would initially be confronted with numerous one-way signs posted at intervals along the shoulder of the through lane directing all traffic in a westerly direction. Moreover, although the construction plans in 1991 called for a total of five warning signs, the evidence at trial remains clear that there were up and posted a total of four warning signs - two "DO NOT ENTER" signs and two "WRONG WAY" signs - which Ms. Arnold had to drive past, and flagrantly ignore, in order to enter Route 17 westbound while traveling in an easterly direction. Additionally, the testimony at trial also establishes that the road pavement marking lines were appropriately in place and colored so that Ms. Arnold had to drive with the yellow edge pavement marking on her right and the white shoulder marking on her left; exactly the opposite of the color coding for pavement markings when a vehicle is traveling in the appropriate direction. Finally, if the above cues were not enough, Ms. Arnold also had to travel more than two miles in the wrong direction on a super highway passing numerous vehicles, as sworn to by Mr. Iggulden, some of which had to swerve to avoid hitting her head-on. It is for these reasons that Claimant's argument that the missing sign rises to a proximate - or even a possible - cause of this accident must fail. In sum, while the Court may never know exactly how the eighty-seven-year-old Kathryn Arnold came to be heading eastbound into oncoming westbound traffic on Route 17, ultimately crashing head-on into Claimant's vehicle, it cannot conclude that the single missing "DO NOT ENTER" sign, had it been up and posted, could or would have prevented this accident.

For the reasons stated above, the Court concludes that the State had a duty to post and maintain the signs at the Rest Area and in fact did breach that duty. However, based upon the testimony and proof presented at trial, and by analysis of the facts and all the evidence, the Court must conclude that the Claimant failed to meet his burden of proof that the State's failure to properly post this third "DO NOT ENTER" sign was a proximate cause of the accident resulting in the injuries he suffered. While the Court considered the possibility that multiple factors or concurrent causes may have played a role in causing this tragic accident, the Court is of the opinion that the Claimant herein has failed to prove that it was more likely or more reasonable that the alleged accident and injury were caused by the negligence of the State than by some other agency. (
Gayle v City of New York, supra, 92 NY2d 936). In sum, this Court finds that the alleged negligence of the State in failing to post the third sign was not a proximate cause of the accident and that the only negligence shown to have caused or contributed to the accident was that of Ms. Arnold in failing to operate her vehicle with due care. (Stanford v State of New York, supra, 167 AD2d 381, lv denied, 78 NY2d 856).

For all of the foregoing reasons, Claim No. 96658 is hereby DISMISSED.

All other motions on which the Court previously reserved or which were not previously determined, are hereby denied.


January 30, 2002
Binghamton, New York

Judge of the Court of Claims