New York State Court of Claims

New York State Court of Claims

McDONALD v. THE STATE OF NEW YORK, #2002-019-004, Claim No. 103319


Synopsis


Claim dismissed; Court found that the State's failure to repair or reinstall a downed guiderail at a "T" intersection was not a proximate cause of accident since guiderail not designed to prevent head-on collisions. Claimant's failure to keep his vehicle under control was sole proximate cause of the accident.

Case Information

UID:
2002-019-004
Claimant(s):
PETER McDONALD
Claimant short name:
McDONALD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103319
Motion number(s):

Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
SICHOL & HICKS, P.C.BY: Brian A. Sichol, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
June 10, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimant, Peter McDonald, alleges that he was injured in an automobile accident which occurred due to the negligent maintenance of the section of guide rail along State Route 55, Sullivan County, New York. The trial of this Claim[1]
was heard in the Binghamton District on February 4, 2002 and this Decision addresses the issue of liability only.

On February 15, 1997, Claimant, Peter McDonald, was employed as a New York City Department of Environmental Protection Officer patrolling the Rondout Reservoir located in Sullivan County, New York. At approximately 1:30 a.m. Claimant was traveling southbound on Route 55A approaching a "T" intersection with State Route 55. Vehicles, such as the Claimant's herein, traveling southbound on Route 55A encounter a stop sign located at the intersection with State Route 55. Claimant who was fully familiar with this intersection since he primarily travels these two roadways during his eight hour patrol around the reservoir, reduced his speed and attempted to stop. However, due to an accumulation of ice throughout this intersection, Claimant's patrol vehicle, a 1993 Jeep, slid through the intersection at approximately 10 mph, across State Route 55, and over a previously downed guide rail. The vehicle continued off the shoulder of the roadway down a steep embankment, striking a tree which resulted in injury to the Claimant.


Claimant established at trial that the New York State Department of Transportation (hereinafter "DOT") had long been aware of maintenance problems with the guide rail at this intersection, located on the south side of State Route 55. The accident history at this location established that this particular guide rail was knocked down or demolished frequently as a result of vehicles coming from Route 55A sliding across State Route 55 and impacting the guide rail. Assistant Resident Engineer, Dean Smith, testified that he was aware of numerous accidents at this location caused by vehicles taking a path similar to Claimant's vehicle. In fact, in the sixty days prior to Claimant's accident, two similar, if not identical, accidents had completely demolished any semblance of the guide rail, rendering the same totally ineffective. Moreover, neither weather conditions, availability of equipment, or availability of manpower prohibited the replacement of this rail. Rather, Mr. Smith simply stated that his agency does not conduct guide rail repair during winter months. In fact, DOT records show that the last time guide rail repair had been performed at this location was July 12, 1996, despite the fact that there were at least two similar accidents in the two months preceding Claimant's mishap.


Claimant further established that DOT's Highway Maintenance Guideline Standards, specifically Section 3.612, require that guide rail installations "should be inspected regularly and bent or damaged rail should be repaired
immediately." (Cl. Ex. 8, emphasis added). This position was amplified by Claimant's engineering expert, Nicholas G. Pucino, who also stated that the DOT Highway Maintenance Guidelines Standard 3.612 requires that even if winter weather conditions had prohibited immediate guide rail repair, at the very least temporary repair could have been accomplished by way of placement of a concrete barrier along the southbound shoulder of State Route 55 at its intersection with Route 55A. Mr. Pucino also referenced prior State studies analyzing the strength of guide rail systems struck by vehicles at 90Ε angles (such as Claimant's vehicle here), and concluded that at 10 mph (the speed of Claimant's vehicle) a properly maintained rail or barrier system would have prevented Claimant's vehicle from rolling down the adjoining embankment. He opined that the lack of a properly functioning rail system was a violation of DOT's own Highway Maintenance Guidelines Standards and that the absence of the same at this locale was a danger or hazard of which DOT has actual notice. Moreover, Mr. Pucino concluded that the absence of a properly functioning rail system at this location was, in fact, the proximate cause of Claimant's accident with resulting injury.

On cross-examination, Mr. Pucino acknowledged that he had previously testified in the matter of
Rossi v State of New York in sum or substance that, "a guard rail should not be placed perpendicular to traffic and that it cannot be placed in front of a fixed object because it must be set back a distance to allow for deflection of vehicles hitting it. Deflection is designed for angles of no more than 35Ε." (Rossi v State of New York, Ct Cl, January 11, 2000, Ruderman, J., Claim No. 79843). He further acknowledged that he previously testified that guide rails are not designed to handle cars striking them head on because the reaction of a vehicle in such situations is unpredictable - the car could flip over or go under the rail. He further testified in Rossi that the placement of a rigid beam guide rail could result in a vehicle driving a wedge under the beam and result in removal of the top of the car.

It is well-settled that the State has a non-delegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition. (
Friedman v State of New York, 67 NY2d 271, 283). This duty extends to the design, construction, and maintenance of guide rails. (Lattanzi v State of New York, 53 NY2d 1045; Matter of Kirisits v State of New York, 107 AD2d 156, 158-159). 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. (Tomassi v Town of Union, 46 NY2d 91). In order to prevail on a negligence claim, Claimant has the burden of establishing that the State was negligent in its duty and that such negligence was a proximate cause of the accident. (Bernstein v City of New York, 69 NY2d 1020, 1021-1022). Additionally, the State must have had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition. (Rinaldi v State of New York, 49 AD2d 361).

On the facts presented to this Court at trial it is clear that the State had a duty to construct and properly maintain the guide rail along the eastern shoulder of State Route 55 at its intersection with Route 55A. Moreover, the Court further finds that the State failed to maintain this stretch of guide rail in a reasonably safe condition for at least two months prior to the Claimant's accident. Moreover, based on the numerous accidents that occurred in this area through the years, and the two reported accidents that occurred sixty days prior to Claimant's accident, the Court is satisfied that the State had actual or constructive notice of this dangerous condition and failed to take reasonable measures to remedy the same.


However, the issue clearly before this Court is whether the guide rail system installed on State Route 55 at its intersection with Route 55A was installed and maintained for the safety of vehicles approaching from the perpendicular intersection of Route 55A or was installed and maintained purely for the benefit of eastbound travelers on State Route 55 who would be traveling parallel to the same. This issue remains despite the fact that the Court credits Mr. Pucino's testimony that had a guide rail or emergency repair been in place at the time of Claimant's accident, his vehicle traveling at the speed of 10 mph would have been restrained from rolling down the adjoining embankment. In
Nichols v State of New York, Ct Cl., June 30, 1999, Claim No. 90248, Judge NeMoyer found that a guide rail, itself a roadside hazard, should never be used for a head-on collision. Instead, the purpose of a guide rail is to protect motorists traveling parallel to the guide rail from a hazard on the side of the road.

Many cases have found that the failure to erect, maintain, or reinstall a guide rail was not a proximate cause of the accident when the accident was of the head-on variety.
(Sherwood v State of New York, 238 AD2d 396, lv denied 90 NY2d 806 [Claimant failed to establish failure to extend guardrail was a proximate cause of accident]; Sangirardi v State of New York, 205 AD2d 603, lv denied 85 NY2d 804 [trial court credited the unrebutted testimony of the State's expert that due to the high speed and angle of out-of-control vehicle, the guardrail would not have prevented crossover accident]; Kavana v State of New York, Ct Cl., June 16, 2000, Ruderman, J., Claim No., 89731 ["Claimant's own expert conceded that guiderails are designed to redirect errant vehicles back onto the roadway when hit at an angle of 25 degrees or less and a guide rail would not be effective in claimant's accident where the guide rail was struck at a 90 degree angle."]; Rossi v State of New York, Ct Cl., January 11, 2000, Ruderman, J., Claim No. 79843 ["defendant's expert effectively explained that the placement of a guide rail, as suggested by claimant's expert, would not be effective. Specifically, defendant's expert stated that a guide rail should not be placed perpendicular to traffic and cannot be placed in front of a fixed object because it is not designed to be hit head-on and must be set back at a distance to allow for deflection."]; Nichols v State of New York, Ct Cl., June 30, 1999, NeMoyer, J., Claim No. 90248, pp 25-26 ["the testimony was clear that a guide rail was a road side hazard, and should never be used for a head-on collision. Instead, the purpose of a guide rail is to protect motorists traveling parallel to the guide rail from a hazard on the side of the road. In other words, whether or not a guide rail was present on the east side of Route 62 and opposite Route 322 had nothing to do with Route 322 eastbound traffic. Claimant's expert, Mr. Smith, even conceded that guide rails were not designed for 90 degree impacts."].

Since the guide rail was not intended for perpendicular traffic, its absence here equates only to a breach of duty running to those users of the highway traveling parallel to the same. As such, Claimant cannot avail himself of the absence of that guide rail, despite the State's notice that it was missing, as a proximate cause of this accident. To the contrary, this accident was caused by the Claimant who, although fully familiar with these roadways and weather conditions that evening, drove his vehicle at a speed not reasonable or prudent for the conditions then and there existing and failed to keep his vehicle under control at all times.
(Vehicle & Traffic Law, § 1180 [a]). In short, it was Claimant's imprudent operation of his vehicle which proximately caused him to leave the roadway.

Accordingly, for the reasons outlined above Claim No. 103319 is hereby DISMISSED.


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


ENTER JUDGMENT ACCORDINGLY.

June 10, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]Three separate claims have been filed during the history of this matter. Claim No. 100165 was filed on April 14, 1999 alleging two dangerous conditions, namely icy road conditions and failure to maintain a safe intersection/guiderails. Thereafter, Claim No. 100165 was dismissed, sua sponte, by the Court due to untimeliness. (McDonald v State of New York, Ct Cl, June 28, 2000, Hanifin, J., Claim No. 100165, Motion No. M-60864). The Court also granted 10 (6) relief to Claimant solely with respect to the safe intersection/guiderail issue, but not the icy road condition. (Id.). Claimant filed a second claim, Claim No. 102752, pursuant to said Decision & Order containing only the allegation of negligence relating to the safe intersection/guiderail issue. Claimant also moved for reargument of said Decision & Order for reasons not pertinent here which was ultimately granted by the Court, thereby permitting 10 (6) relief relative the icy road condition. (McDonald v State of New York, Ct Cl, October 10, 2000, Hanifin, J., Claim No. None, Motion No. M-62079). Consequently, Claimant filed and served Claim No. 1033319 containing both original allegations contained in the previously dismissed Claim No. 100165. At the commencement of this trial the Court dismissed Claim No. 102752, upon consent of counsel, since Claim No. 103319 was the last Claim filed and contained all of the allegations as originally alleged in both Claim Nos. 100165 and 102752.