New York State Court of Claims

New York State Court of Claims

CHRISTOPHER v. THE STATE OF NEW YORK, #2002-028-504, Claim No. 98010


Claimant failed to establish State failed to adequately design and build clear area along Long Island Expressway or that a guide rail was required at location of fatal single vehicle rollover accident. Clear area is measured from edge of through travel lanes. Claim dismissed.

Case Information

DEBBI- SUE CHRISTOPHER, as Administratrix of the Estate of MICHAEL W. CHRISTOPHER, and DEBBI-SUE CHRISTOPHER as Mother and Natural Guardian of the infant CORI-ANN CHRISTOPHER
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:
BY: John M. Shields, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed Claim by Debbi-Sue Christopher as Administratrix (Claimant) of the Estate of Michael W. Christopher (Christopher) and Cori-Ann Christopher (Cori-Ann). Claimant seeks damages for the wrongful death of Christopher which occurred when the 1994 Toyota pickup truck he was operating on Interstate 495, the Long Island Expressway (L.I.E.) in Brentwood, Suffolk County left the roadway and rolled over resulting in Christopher's death. The accident occurred before dawn on October 30, 1996. Claimant contends that the Defendant was negligent in its failure to provide a clear zone, and/or a guiderail to prevent motorists from encountering a hazardous slope. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant called as witnesses Suffolk County Police Department Police Officers David Lawler (Officer Lawler) and Arthur Hughes (Officer Hughes). Officer Lawler testified he was working the midnight shift, assigned to the highway patrol, when he was dispatched to the subject accident between exits 54 and 55 on the eastbound L.I.E. Officer Lawler prepared the police accident report, commonly referred to as an MV104A (Exhibit 1[1]
) and described the conditions as clear and dry. In the area of the accident, the L.I.E. eastbound was comprised of the center median, an enforcement shoulder, a high occupancy vehicle (HOV) lane, three through travel lanes, an access ramp[2], a paved shoulder and then a grassy area.
Officer Hughes, who was assigned to crime scene investigation, responded to a radio call at 4:45 a.m. to investigate a fatal motor vehicle accident and arrived at the accident scene at 5:15 a.m. Consistent with his regular duties, Officer Hughes took photographs of the accident scene (Claimant's Exhibit 2), which included the vehicle, the highway, and the trail left by the vehicle in the grassy area south of the paved portion of the eastbound L.I.E. Officer Hughes testified the crime scene unit uses surveyor style equipment to "shoot"[3]
the reference points for the measurements taken at the accident location. These measurements are then downloaded to an "auto sketch accident reconstruction" software program which draws a diagram of the accident scene. The resulting diagram (Exhibit 6A) indicated Christopher's vehicle drifted off the right hand (southern) side of the L.I.E. and traveled eastward more than 400 hundred feet along the roadside in the grassy area before overturning and coming to rest.
Edmund J. Cantilli (Cantilli), a licensed professional engineer, qualified in accident reconstruction and highway safety[4]
was called to testify by the Claimant. Cantilli testified that on two occasions he visited the accident site to identify the area involved in the accident, take photographs and take measurements of the degree of slope of the grassy area south of the paved portion of the roadway. In the course of his review, Cantilli determined that a survey[5] was necessary for the cross-section characteristics of the route traveled by the vehicle. Cantilli created a series of hand-drawn exhibits using a photocopied ruler which depicted the slope of the grassy area from the edge of the paved portion of the L.I.E. leading down to (entry slope) and then up from (exit or back slope) the drainage ditch, together with the path of travel of decedent's vehicle (Exhibits 15, 16 and 17). These drawings were based upon, inter alia, New York State Department of Transportation contract documents (Exhibit 8 [the collector distributor road] and Exhibit 9 [the HOV lanes]) for improvements to the L.I.E. near the accident site, as well as relevant police reports.
From the information he gathered, the reports he generated and with reference to the New York State Department of Transportation Highway Design Manual (the Manual) Cantilli determined that the exit slope of the grassy area as it moved southward out of the drainage ditch and up to the service road exceeded the maximum permissible slope of "1 on 4."[6]
Cantilli testified that the Manual required a 30 foot "clear zone" in the area of the accident. A clear zone is to be free of "fixed objects"[7] and roadside hazards such as a drainage ditch. The primary objective of the clear area is to provide a traversable area for a driver to regain control of an errant vehicle. Cantilli testified that he measured the clear area from the edge of the shoulder lane closest to the auxiliary ramp and did not include the auxiliary lane as part of the clear area because, in his opinion the auxiliary lane was a through travel lane. Cantilli testified that based upon his calculations, the steeper, impermissible slope was within the "clear area" thereby rendering the clear area non-traversable. From this determination Cantilli opined that a guiderail was required at the edge of the shoulder to prevent Christopher's vehicle from encountering the hazard which caused the vehicle to rollover. According to Cantilli, the L.I.E. was moved to the south to accommodate the HOV lane and the contract work for the collector distributor road was responsible for the elimination of the "traversable clear area" at the accident location. This conclusion was based, in part, upon Cantilli's comparison of the location of the light poles in a photograph received from defendant's files (Exhibit 7 - stipulated to have been taken in April or May, 1992) and their location in a photograph taken contemporaneous with a site visit by the witness in July 2000 (Exhibits 12A, B and C) which showed the light poles within a few feet of the roadway.
Cantilli opined that the accident occurred as a result of the vehicle drifting off the road, entering the side of the road which was not traversable due to the lack of a 30 foot clear area and due to the lack of a guiderail to prevent the Christopher vehicle from entering the dangerous situation.

The Defendant called Edward Beuel, a licensed engineer and an employee of the Defendant's Department of Transportation (DOT) to testify. Beuel has been a design unit supervisor for Unit 10 of the DOT, which includes the area of the subject accident, since 1992. His responsibilities include directing the preparation of design plans for highway improvements and supervision of project leaders. Beuel testified to his familiarity with the L.I.E., the HOV lane contract, the collector distributor road contract and various design documents.

Beuel testified that a collector distributor road (CD Road) is a separate roadway which is located between the "main line" (through travel lanes) and the service road. One purpose of the CD Road is to reduce the number of entrances and exits to the through travel lanes. The CD Road is connected to the through travel lanes by an auxiliary lane which runs parallel to the main roadway to permit vehicles to accelerate or decelerate as they enter or leave the highway before the auxiliary lane ends. Beuel testified that the "clear area" is measured from the "through travel lanes" and includes any adjacent auxiliary lane and shoulder. Beuel testified the roadway markings (i.e. painted lines) delineate the lanes. Using a survey diagram of the accident scene (Exhibit G) Beuel illustrated that the solid line on the right or southern side of the highway marked the end of the travel lane and the dashed line marked the edge of the auxiliary lane. Beuel also marked the beginning and end points of the clear area on CD Road contract drawings. Based upon his calculations from reading the contract documents, the exit slope of the drainage ditch was not in the clear area.

Beuel also identified the requirements for guiderail installation from the Manual (
see, Exhibit D). Beuel stated that whether a guiderail is required is dependent either upon the steepness of slope or pavement drop off. In situations where the slope is "1 on 3" or flatter, no guiderail is required. Beuel added there are no provisions for putting a guiderail at the base of a slope.
Beuel concluded his testimony by opining that the contract plans were in full conformance with the applicable guidelines; that there were no fixed objects in the clear area; that the slope was in compliance with the applicable guidelines and that there was no call for a guiderail as there were no roadside features to require one.

Defendant also called Stanley Lechner
, regional claims engineer for DOT, who testified, inter alia, that approximately 65,300,000 vehicles traveled by the accident location in 1996. Between 1992 and 1996, Lechner testified there were only six accidents in the subject area, of which five were rear end collisions on the roadway. There were no accidents which involved either a rollover or a vehicle leaving the roadway.
It is well settled that the State has a nondelegable duty to adequately design, construct and

maintain its roadways in a reasonably safe condition (see, Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579, 584). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on the roadway does not render the State liable (see, Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). In maintaining older highways, the State is not obliged to undertake expensive reconstruction simply because highway safety design standards have
changed since the original construction (see, Holscher v State of New York, 59 AD2d 224, 227, affd 46 NY2d 792, Van De Bogart v State, 133 AD2d 974). The State has fulfilled its duty to the traveling public when a highway is reasonably safe for those who obey the rules of the road, notwithstanding that almost any road can be made safer. (Tomassi v Town of Union, supra, 46 NY2d at 97)
It is Claimant's burden of establishing that the State was negligent and that such negligence was a proximate cause of the accident (
see, Bernstein v City of New York, 69 NY2d 1020, 1021-22; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519). Liability will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to remedy it (see, Brooks v New York State Thruway Auth., supra; Valentino v State of New York, 62 AD2d 1086).
Beyond that, it is well established that the State is accorded a qualified immunity from liability arising out of a highway planning decision and can only be found liable for injuries "arising out of the operation of a duly executed highway safety plan ... predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis." (
Weiss v Fote, supra, p 589; Friedman v State of New York, supra).
The Court is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination. The Court may reject an expert's opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion. Put another way, the Court when faced with conflicting expert testimony is entitled to accept the theory that, in its view, best explains the point in issue and is supported by the evidence (
see, Shaw v Binghamton Lodge No. 852, B.P.O. Elks Home, 155 AD2d 805, 806). In the Court's view of the record evidence, Claimant's expert erred in two significant areas which preclude the Court from accepting his theories of liability in this Claim. The first erroneous premise was that the State reconstructed the L.I.E. and expanded the roadway southward when it added the HOV lanes to the expressway, thus necessarily reconstructing the shoulder and grassy area south of the roadway and site of the accident. Cantilli conceded on cross-examination, and the State established through Beuel on its case, that construction of the HOV lanes was confined entirely to the center median. Thus, the grassy area traversed by the decedent's vehicle was as constructed following the addition of the collector distributor roadway. Following from this, Claimant's expert through his own calculations established that the exit slope from the drainage ditch was within the "1 on 2" to "1 on 4" specifications called for in the contract documents. While Claimant argues that the "1 on 2" slope violated the letter of the Manual, the Manual by its very terms does not require blind adherence to its recommendations in its quest for uniformity and safety (see, Exhibit H, [Chapter 1 of the Manual], [variations will be necessary and individual judgment and initiative are not precluded]; see also, Williams v State of New York, Ct Cl., Claim No. 98975, UID #2001-019-023, [Lebous, J. ], December 21, 2001). As such, and absent any proof to establish that due care was absent from the design decision creating the exit slope, the Court finds the State is entitled to the qualified immunity afforded by Weiss v Fote, supra. The second premise relates to the measurement of the required clear area and Cantilli's decision to measure the clear area by excluding the auxiliary lane. Notwithstanding his opinion that it made "no sense" to include the lane in the calculation of the clear area, Cantilli conceded that the Manual directed that the clear area be measured from the edge of the through travel lane (see, Exhibit I), which would include the auxiliary lane. Moreover, Cantilli did not identify any independent basis to support his decision to exclude the auxiliary lane. By excluding the auxiliary lane, Claimant's expert moved the starting point of the clear area 12 feet - the width of the auxiliary lane - further south, thereby placing the exit slope of the drainage ditch barely within what he calculated to be the clear area.[8] This choice of starting point is contrasted with that in Chionchio v New York State Thruway Auth., 112 AD2d 610, where Cantilli began his measurement from the "driving lane" of the Thruway (Id. at 612), and where regardless of starting point - driving lane or shoulder - the at issue guiderail was beyond 30 feet.[9] On the other hand, the Defendant, in addition to the direction contained in the Manual, pointed to the DOT Manual of Uniform Traffic Control Devices (MUTCD) § 200.6(b)(6) (Exhibit M) which defined an auxiliary lane as one "provided in addition to the normal through travel lanes" to support its position that the auxiliary lane is included in the clear area measurement and is not a through travel lane. The Court finds further support for Defendant's position that the auxiliary lane is not a through travel lane in the photographs (Exhibits 7 and 12A) which depict the auxiliary lane merging into the main line just before ending at a bridge abutment. The Court therefore finds the auxiliary lane is not a through travel lane and is properly included in the measurement of the"clear area" (see, Foster v The State of New York, Ct Cl., Claim No. 96067, UID#2001-015-138, Motion Nos. M-62750, CM-62943 [Collins,J.], April 23, 2001]; [ clear area measured from the northeast travel lane and including the paved shoulder]). Accordingly, the Court finds that the exit slope of the drainage ditch was not within the 30 foot clear area. Consistent with this finding, the exit slope was no closer than 38 feet to the through travel lanes. As such, and in the absence of any record evidence that the clear area as found by the Court, exceeded recommended slopes, the Defendant has satisfied its duty to provide an appropriate clear area.
Finally, in light of the Court's finding that the State had created a proper clear area, the Court finds more credible Defendant's evidence that a guiderail was neither required nor warranted at the accident location (
see, Exhibit D).
Based upon the foregoing, and upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, this Court finds that Claimant has failed to prove by a fair preponderance of the credible evidence that the Defendant was negligent in the design, maintenance and construction of the L.I.E. at the accident site or that the Defendant failed in any duty owed to the Claimant. Notwithstanding the tragic and unfortunate nature of this accident, to hold the State responsible for this accident would be to make the State an insurer of its highways. On the record before this Court, it is reasonable and probable that the sole proximate cause of the accident was decedent Christopher's inattentiveness while driving (
see, Schichler v State of New York, 110 AD2d 959, affd 66 NY2d 954; Marchetto v State of New York, 179 AD2d 947, supra). Therefore, the Claim shall be and hereby is dismissed.
All other motions upon which the Court reserved decision during trial are denied.

The Chief Clerk is directed to enter judgment accordingly.

June 28, 2002
Albany, New York

Judge of the Court of Claims

[1] The MV 104A was admitted into evidence with witness statements redacted (see, Johnson v Lutz, 253 NY 124; Stern v State of New York, 32 Misc 2d 357, affd 18 AD2d 1115).
[2] This area of the roadway was alternatively referred to as a collector distributor road, acceleration lane, access ramp and auxiliary lane. Based upon the evidence, the lane at the accident scene is an auxiliary lane and the Court will refer to it as such throughout the decision.
[3] Unless otherwise noted, all quotations are from the Court's notes or the audiotapes of the proceedings.
[4] Cantilli's curriculum vitae was received into evidence (Exhibit 11) and the details of his experience were developed on the record.
[5] The Court received testimony from Martin Reed of Barrett, Bonacci and Van Weele, P.C., that a topographical survey was conducted on July 28, 2000 and a map prepared from the field work performed. The survey map has been received into evidence as Claimant's Exhibit 10 (Exhibit 10).
[6] The numerator represents elevation and the denominator represents lateral movement, e.g., in a 1 on 4 or 1/4 situation for every four feet traveled laterally, the ground would slope, either upward or downward, one foot. Thus, the lower the denominator, the greater, or more severe, the slope.
[7] Although light poles (numbered 1216 and 1218) were within the clear area, Cantilli conceded that no fixed object contributed to this accident. Moreover, the State established that the light poles were not fixed objects based upon their construction as "breakaway" (see, Exhibit 9).
[8] Even by excluding the auxiliary lane, the exit slope of the drainage ditch, by Claimant's calculations, began its ascent between .6 feet and 3.3 feet within the clear area and at one point was outside the clear area (see, Exhibit 15).
[9] The Court is similarly unpersuaded by claimant's alternative argument that the entire drainage ditch, entry slope, bottom and exit slope must be considered as a whole when determining hazards or geographic features are within the clear area. The effect of this argument is to expand the clear area beyond the required 30 feet and remedy the defect in Claimant's expert's calculation of the clear area.