New York State Court of Claims

New York State Court of Claims

LESLIE v. THE STATE OF NEW YORK, #2003-015-575, Claim No. 103801


State's negligent failure to install bump sign to afford adequate notice of rebate not a proximate cause of motorcycle accident where claimant operated cycle at speeds of approximately 100 mph.

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:
Ellis Law, P.C.By: David J. Pollock, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 31, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Steven Leslie[1]
was injured on July 10, 1999 on State Route 196 in the Town of Hartford, Washington County, when the motorcycle he was operating left the roadway. His claim against the State alleges negligent failure of the State to properly maintain/repair the roadway and to warn travelers of a dangerous condition. The Court ordered a bifurcated trial which was conducted on November 20 and 21, 2002 and December 6, 2002. This decision addresses the issue of liability only.
Claimant testified that he has been employed as a machinist for 11 years and is married with two children. He testified that he has ridden motorcycles since he was 14 years old and described himself as a licensed professional road racer.

On July 10, 1999 Mr. Leslie was contacted by his friend Chris Thorpe who asked the claimant to pick up Mr. Thorpe's motorcycle at a dealer in Troy and deliver it to him at LaFlamme's Almost Everything Store in Hudson Falls. Later that day Thorpe telephoned claimant and advised him that the motorcycle "didn't sound right" and asked claimant to take it for a drive. He met Thorpe at a friend's house on McDougal Road later that afternoon to test drive the motorcycle.

From the friend's house Mr. Leslie purportedly took a left onto Route 196 from McDougal Road and drove the motorcycle in a westerly direction 4-5 miles before turning around to return to the McDougal Road property. He stated that the motorcycle was operating normally, the pavement was dry and the weather was sunny. The witness offered several photographs of the vicinity of the accident which he claimed to have taken on the Sunday preceding trial. These photographs were received in evidence but only for the limited purpose of demonstrating the road configuration and topography of the area. The photographs depict the area west of the accident scene which claimant traveled while proceeding in an easterly direction on Route 196 immediately preceding the incident. They demonstrate that the road is generally straight and proceeds in an uphill grade until the road levels and transitions into a long sweeping left hand curve shortly after a vehicle reaches the top of the uphill grade.

Claimant alleges that as he returned to McDougal Road in the eastbound lane of Route 196 traveling at approximately 55-60 mph in an area designated as a 55 mph zone he saw plastic in the road which he estimated to be approximately one foot in width and occupying three quarters of his lane of travel. He reportedly was 50-60 feet distant from the rebate when he first observed the plastic. Claimant related that when he first viewed the plastic he tried without success to right the motorcycle to vertical so that he could cross the plastic in a straight, upright position rather than the left lean he had assumed in preparation for negotiating the left curve which lay ahead of him. Claimant alleges that he had insufficient time to right the vehicle and that as he went over the plastic the rear tire slid to claimant's right to a position 35
- 40
offset or out of line with the front tire which was not affected and continued in the intended path of travel. He allegedly maintained his speed hoping to ride out the rear wheel slide and did not apply either the motorcycle's front or rear brakes, except possibly for a brief instant as he attempted to straighten the vehicle. The claimant testified that he did not apply the brakes at any point after crossing the rebate. The motorcycle's rear wheel continued to slide 200-250 feet until the rear tire reportedly gained traction upon reaching the outside edge of the road shoulder causing claimant to be thrown from the motorcycle onto a nearby grassy area. The motorcycle continued approximately 150-200 feet before coming to rest. Claimant alleges that there were no eyewitnesses to the accident but that the vehicle's owner Mr. Thorpe came to the scene shortly after the accident. Claimant further alleged that following the accident he went to investigate the cause of his loss of control and saw a "large chunk" of plastic in the roadway.

On cross-examination claimant discussed his motorcycle road racing experience. He indicated that work had been performed on the Thorpe motorcycle at Troy City Garage where its carburetor was rejetted to increase its horsepower and performance. Claimant picked up the motorcycle at the garage and delivered it to Mr. Thorpe in Hudson Falls. Thorpe later called Mr. Leslie complaining about the bike's performance and arranged to meet claimant at a friend's house on McDougal Road to test drive the vehicle.

The witness testified that Chris Thorpe informed him the engine stuttered at 5000-6000 RPMs so he test drove the motorcycle in first and second gears at high RPMs and traveled 4-5 miles in third gear before turning around and heading back to McDougal Road. He alleged that although he had passed over the rebate on the initial leg of the test drive he did not know that the rebate was present as he approached it in the eastbound lane of traffic. He reiterated that portion of his direct testimony in which he stated that during his test drive he went west on Route 196 from McDougal Road across the rebate without noticing a bump sign or plastic or experiencing any loss of control. While cruising at 55 mph in third gear the witness spotted the plastic strip 50 - 60 feet ahead and extending three quarters of the way across the lane of travel from the shoulder toward the center line. Leslie asserted that when he first saw the plastic he was leaning the motorcycle approximately 10
from vertical, an attitude which he described as insignificant. He repeated his direct testimony regarding the sliding of the rear wheel as it passed over the plastic protruding from the rebate. Although he knew how to stop the motorcycle quickly he did not apply the brakes or decelerate at any point during the 250 foot slide to the outside edge of the paved shoulder alleging that he did not have time to do so. He related that the front tire was still on the pavement when the rear tire hit dirt on the edge of the shoulder and he was ejected from the motorcycle.

Claimant avers that he lost consciousness for some unknown period of time and upon regaining consciousness crawled approximately 150 feet to the rebate where he was met by an emergency medical service worker.

Mr. Leslie testified with reference to Exhibit 16 that the photograph does not show a foot of plastic protruding from the rebate. He stated that he did not know whether the bump sign or traffic cone depicted in Exhibit 13 were in place on the day of the accident.

On redirect examination the witness reiterated his earlier testimony that he did not observe the plastic while initially headed west on Route 196 and explained that he did not apply his brakes or decelerate during the period the motorcycle was sliding since doing so would have caused the front tire to slide or would have increased the rear wheel slide.

The next witness called to testify was Ian Miller, a Civil Engineer II who has been employed by DOT for the past 18 years. Mr. Miller related that on the date of the subject accident he was an assistant resident engineer in Washington County headquartered at Hudson Falls. The witness visited the scene of the claimant's accident on July 13, 1999 with resident engineer Dominick Gabriel and took several photographs (Exhibits 4, 7, 8)[2]
. He returned three days later and took additional photographs (Exhibits 5, 6, 9)[3]. Miller acknowledged that he did not know when the bump sign which appears in Exhibits 4, 6 and 7 was installed nor did he know when the traffic cones barely apparent in Exhibits 4, 6 and 7 were put in place.
On cross-examination the witness related that the excavated area of the roadway shown in the photographs taken on July 13 and July 16 is known as a rebate. The rebate at the accident site was approximately 18 inches wide and transected both lanes of traffic. He related that a rebate is created by removing existing pavement to a depth of 1 ½ inches, placing plastic over the surface and filling the excavation with cold patch, a temporary paving material. The cold patch is then rolled even with the surrounding road/shoulder surface. When more permanent resurfacing or repaving is scheduled to begin the road crew removes the cold patch by lifting the underlying plastic. The rebate area is then paved over as part of the repaving project. DOT has employed the use of rebates for at least eighteen years.

Miller testified that he observed skid marks on the shoulder of Route 196 on both July 13 and July 16, 1999 but did not know their source. On those two occasions he reportedly observed vehicles, including a motorcycle, pass over the subject rebate without incident.

During redirect examination the witness testified that Exhibits 10 - 21 are accurate depictions of the scene as he observed it on July 13 and July 16, 1999.

On re-cross examination Mr. Miller alleged that neither he nor other DOT employees added signs or cones to the scene prior to taking the photographs nor did the witness trim the plastic on the edges of the rebate as shown in several of the photographs taken on July 13 and July 16, 1999.

The third witness was Joseph Pinkowski who testified that he is employed by DOT as a light foreman and has worked for the Department for 18 years. Mr. Pinkowski was responsible for the preparation of the daily report of work completed on July 6, 1999 in the area of the subject accident which was received in evidence as Exhibit 3. According to the witness the rebate, which is also referred to as pavement grooving, was started and completed in a single day by himself and a crew of four. He testified that the rebate was constructed by cutting out a section of pavement to a depth of 1½-2 inches with a machine known as a leeboy, removing the old blacktop, laying plastic, adding winter mix or cold patch and then rolling the mix using a large dump truck. Pinkowski testified that while at the rebate site he used a work zone sign and that he installed a bump sign and placed cones in the area before leaving the job site as instructed by his supervisor. After being questioned regarding earlier more equivocal testimony offered at an examination before trial concerning the installation of the bump sign the witness agreed that he was "pretty sure"[4]
but not certain that he installed the bump sign on July 6.
On cross-examination Mr. Pinkowski stated that the rebate was constructed on July 6, 1999 by placing plastic over the excavated area and filling the area with cold patch which was raked and then rolled level with the existing road surface. He further alleged that he trimmed the underlying plastic leaving two to three inches at the edges of the rebate. The witness testified that DOT has used rebates during all of his 18 years of employment with the Department and that they are used as a temporary measure usually for several weeks to a month prior to repaving. With regard to the placement of a bump sign at the rebate site, the witness had no doubt that he had installed the sign on July 6, 1999. He recalled being instructed by a superior to take a bump sign to the job site which was unusual since, according to the witness, it was not the Department's general practice to place bump signs at rebates. The witness stated that he remembers installing the sign because he was required to stand on the back of a truck in order to pound the sign post into the ground. The witness further recalled that placing the sign post was difficult and that several attempts were necessary before the post was secured in the ground.

Claimant's wife, Kimberly Leslie, was called as the next witness and testified that she visited the scene several days after her husband's accident. While there she observed a "huge piece of plastic" at the rebate in the lane used by claimant to return to McDougal Road. She also noted the absence of traffic cones and bump signs on that date. The witness did not take any photographs of the scene or the plastic allegedly protruding from the rebate.

The owner of the 1994 Honda CBR 600 F2 motorcycle claimant was operating, Christopher Thorpe, was the next witness called. Mr. Thorpe denied having witnessed the accident but testified that he heard it happen and responded by running to assist the claimant. On Exhibits 11 and 19 Thorpe marked the area where he observed the rebate and black plastic which he reported to be approximately one foot wide. He claimed the traffic cones visible in Exhibit 18 were not present on the date of the accident and did not recall the presence of the bump sign shown in Exhibit 14. He admitted being chiefly concerned with claimant's welfare following the accident.

On cross-examination the witness acknowledged that his motorcycle had been modified to increase its horsepower and speed. When asked if it was a fast motorcycle he replied "very fast." He testified that he noticed the engine was stuttering shortly after he left his place of employment in Hudson Falls. Mr. Thorpe testified that he drove the motorcycle to his friend's house located at/near the intersection of Route 196 and McDougal Road. While en route he crossed over the rebate on Route 196 without experiencing any loss of control although he noticed plastic, which he described as obvious, protruding from the rebate. Once he arrived at his friend's house he telephoned the claimant at the LaFlamme's store where the claimant was waiting for Mr. Thorpe. Although the claimant had testified that he drove to the McDougal Road property using a route that did not include Route 196, the witness stated that he observed the claimant turn onto McDougal Road from the eastbound lane of Route 196. The witness explained to the claimant that the motorcycle was stuttering and that he was unable to get the vehicle up to 5000 rpms. The claimant mounted the motorcycle and left to test drive the vehicle. Mr. Thorpe testified that he listened to the motorcycle as it pulled away and that he heard the claimant go through at least five gears. Thorpe also heard the motorcycle as it returned to the McDougal Road house. He stated that he heard the motorcycle approaching on Route 196 followed by crashing sounds. He explained he then ran to assist the claimant.

Upon arriving at the claimant's location he observed Mr. Leslie get up from the ground, walk approximately five feet and sit back down. He recalled that claimant stayed seated thereafter and appeared dazed. Claimant told him the motorcycle's back end had kicked out. The rescue squad and sheriff arrived shortly thereafter.

Deputy Sheriff David Myer has been employed by the Washington County Sheriff's Department since 1988. He responded to the scene of claimant's accident and prepared a written report which was received in evidence as Exhibit 1. Deputy Myer testified that he noted on Exhibit 1 in the place provided therefor that there were no traffic control devices present at the accident scene. He testified when asked that "to the best of his knowledge" he did not recall seeing either signs or cones in place at the location of the rebate on the date of the accident. He stated that when he arrived at the scene he noticed a piece of plastic two feet long and two feet wide protruding from the rebate on the shoulder outside the eastbound lane of traffic on Route 196. The Deputy also listed defective pavement as a contributing factor in the happening of the accident on the police accident report.

On cross-examination the witness acknowledged that while he had received basic training in accident investigation he was not an accident reconstructionist. Deputy Myer testified that he observed a single tire skid mark while at the scene which he believed was made by the motorcycle claimant was operating since it seemed to lead from the rebate to the same point of the area abutting the shoulder where claimant left the roadway. The officer did not measure the skid mark but testified that it began at a point just past the rebate near the white edge of pavement line of the eastbound lane across the shoulder to the dirt and grass area abutting the roadway. According to the witness no part of the skid mark was in the actual eastbound travel lane. With reference to Exhibits 7 and 14 the witness indicated plastic was noticeable along the edges of the rebate in both lanes of travel with a large two foot wide piece on the shoulder. He corrected his direct testimony by saying that the plastic across the actual roadway was less than two feet wide. Deputy Myers testified that he listed defective pavement as a contributing factor to the accident because the top of the rebate was 1-2 inches lower than the height of the existing roadway. The height differential constituted the defect noted by the witness on the police accident report. He could not specify how far the motorcycle's resting place was from the rebate but recalled that the distance was significant. He had no recollection of the presence of bump signs or of traffic cones and took no photographs or measurements at the scene.

Claimants' final witness, James Bryden, is a civil engineer formerly employed by the New York State Department of Transportation and now a self-employed highway safety engineer. The witness' credentials include a Bachelor of Science degree in civil engineering from Northeastern University and graduate level courses at Rensselaer Polytechnic Institute and Union College. He holds several professional certificates.

After being qualified as an expert Mr. Bryden testified that he visited the accident scene on November 8, 2002 and took various measurements referencing photographic exhibits 22 through 32. Measuring line of sight distances using a reference point 48 inches above the ground to simulate the vantage point of claimant while operating the motorcycle he determined that the rebate was visible from a distance of 330 feet. He also noted a vertical curve immediately to the west of the rebate cut.

With reference to Exhibits 13 and 17 Bryden testified that the bump sign outside the shoulder of the westbound lane of traffic was located 75 feet from the rebate and the sign located outside the eastbound lane was approximately 25 feet from the rebate. Claimant's counsel requested that the Court take judicial notice of that portion of the Vehicle and Traffic Law[5]
which requires the State of New York to adopt a Manual of Uniform Traffic Control Devices [MUTCD] (see, 17 NYCRR Chapter V). Mr. Bryden offered that section 230.2 of the Manual governing advance warning sign distances requires that a category 2 sign be installed at least 200-255 feet from a bump or other defect in a 55 mph zone. He further testified that since in his opinion the area at issue constituted a work zone the sign was required to contain black lettering on an orange background pursuant to § 230.3 and § 201.2 (c) (1). He concluded that the bump signs at the accident location as shown in the photographs were both improperly colored and placed too close to the rebate to comply with MUTCD requirements.
The witness stated that the presence of the rebate necessitated use of a bump sign located 200-255 feet in advance of the pavement defect. From the photographic evidence the witness related his opinion that the placement of the signs as shown in the photographs failed to provide sufficient advanced warning to permit the claimant to prepare for and avoid the hazard.

The witness was next asked to calculate the speed of the claimant's vehicle as he passed over the rebate based on facts in which: the rear wheel moved to a position 35
to 45
out of line with the front wheel; the operator neither attempted to brake nor decelerated the vehicle and continued 200-250 feet in the offset position across the shoulder to a point where the operator was separated from the motorcycle which continued 100-150 feet before coming to rest. In response, the witness opined that based upon a comparison of the distance traveled and applicable coefficient of friction values the claimant's estimated speed at the rebate location was 58.8 mph. The witness differentiated his speed estimate from that disclosed prior to trial by the defendant's expert by pointing out that the defendant's expert utilized coefficient of friction values for a motorcycle in a locked rear wheel skid. He opined that the defendant's estimate was too high based upon claimant's assertion that he did not apply his brakes during the accident.

Finally, claimants' expert, assuming the presence of a piece of plastic one foot in width at the rebate, opined that encountering such an unexpected object in the roadway reduced claimant's ability to respond to the hazard and take corrective measures.

On cross-examination the witness stated that he was aware the claimant had driven over the rebate in a westerly direction a few minutes prior to the accident. He acknowledged that he was retained in October of 2002 and visited the site in November of the same year and that he therefore never personally observed the rebate. His opinions regarding the condition of the rebate were based upon the photographs taken by DOT employees on July 13 and July 16, 1999. He observed no bump in the road during his inspection in November 2002 and admitted that the MUTCD did not define the word bump but rather made reference to a disruption of vehicle traffic. He attempted to explain the observations of the DOT employees offered earlier in the trial regarding the safe passage of vehicles over the rebate on July 13 and 16, 1999 by suggesting that conditions might have changed between those dates and the date of the subject accident.

The witness testified that DOT would have no reason to install a bump sign pursuant to § 234.1 (a)(1) of the MUTCD[6]
unless there actually was a bump or the appearance of a bump. Although he conceded that claimant probably knew the rebate was present since he admitted having traveled over it while westbound on the initial leg of his test drive the witness contended that the rebate was less visible for vehicles traveling in an easterly direction.
With reference to his opinion regarding the speed of claimant's motorcycle the witness averred that there are no published coefficients of friction based upon a motorcycle with a sliding rear tire. Bryden admitted that published coefficients of friction refer to motorcycles in a locked wheel skid
. The witness stated that he performed his calculations based upon a 45Ε offset between the front and back wheels.
Claimants' expert did not render an opinion that contact between the plastic and the motorcycle's rear tire caused claimant's motorcycle to slide. While he did not rule out the plastic as a contributing factor he opined that the primary factor was claimant's straightening of the motorcycle from a 10
lean which destabilized the vehicle and caused a rear wheel slide.

Mr. Bryden stated that the coefficient of friction used in his estimate of claimant's speed at the time of the accident was extrapolated from previously published coefficient of friction values. For example, he stated that the published coefficient of friction applicable to a locked wheel skid on grass is .3. The witness adjusted the published coefficient of friction to .15 based upon the claimant's testimony and evidence of the damage sustained by the motorcycle which led him to assume that the motorcycle was tumbling and bouncing for half of the distance it moved across the grassy area adjacent to the roadway.

The witness admitted that the MUTCD does not specifically address the presence of plastic in roadways and further admitted that the advance warning distances set forth in section 230.2 (b)(3) of the Manual are not mandatory figures and that engineering judgment should be used in applying the MUTCD guidelines.

On redirect examination the witness testified that in his opinion the bump signs in place near the rebate as shown in the photographs received in evidence did not conform to proper engineering standards. He opined that if the rebate were perfectly level with the roadway but plastic was visible to approaching motorists a properly placed bump sign would have been required.

At the conclusion of Mr. Bryden's testimony claimant offered two Statewide Work Zone Studies (Exhibits 38 and 39) which were received in evidence. Thereafter claimant rested and the State moved to dismiss the claim for failure to prove a prima facie case and decision was reserved upon by the Court. That motion is now denied.

Michael Swezey, a dairy farmer and Fire Chief for the Town of Hartford was the first defense witness. He testified that he was dispatched to the scene of claimant's accident to provide assistance to Emergency Medical Services personnel but that the situation was under control when he arrived. The witness returned to the accident site on October 16, 2002. He identified a photograph taken at the scene on that date (Exhibit A) in which the witness marked the locations where he observed the operator and motorcycle on July 10, 1999. Mr. Swezey noted the location of the operator with an "O" and that of the motorcycle with an "M" on Exhibit A.

On cross-examination the witness alleged that upon his arrival at the scene he observed claimant approximately 25-30 feet from the roadway and the motorcycle approximately 500-700 feet from the rebate. He did not recall seeing any cones or bump signs in the area.

The next defense witness was Brian Irwin, an emergency medical technician who responded to the claimant's accident. Mr. Irwin reported that claimant was standing within ten feet of the motorcycle being treated by medical personnel when he first observed him. Claimant allegedly told the witness that he was okay and denied any loss of consciousness. The witness confirmed that the location of the claimant and motorcycle as shown on Exhibit A accurately depicts their respective positions as he observed them on July 10, 1999. The witness had no recollection of seeing or traveling over the subject rebate.

On cross-examination Irwin testified he did not recall seeing either cones or signs in the area of the accident.

Defendant's final witness was C. Bruce Gambardella, a professional engineer licensed in New York, Connecticut and Michigan and a certified accident reconstructionist. His degrees include a Bachelor of Science in Mechanical Engineering from Stevens Institute of Technology and a Masters in Business Administration from Fairleigh Dickinson University. He completed specialized studies in accident reconstruction at Northwestern University and at the University of North Florida and has attended various accident reconstruction seminars and conferences. Mr. Gambardella testified that he was a member of the Motorcycle Committee of the Society of Automotive Engineers from 1985 through 1995 and that he has personally reconstructed 600-700 motor vehicle accidents, including motorcycle accidents, and has performed independent studies of motorcycle slowing speeds on various surfaces including slide to stop tests. He described the testing as rigorous and averred that it resulted in determinations of the coefficient of friction of various motorcycles on various surfaces. Data from these tests was published by the witness and utilized in reconstructing claimant's accident. The witness asserted that he has operated a motorcycle since 1969 and has been licensed to do so since 1973. The Court qualified the witness as an expert.

Mr. Gambardella reviewed the police accident report, as-built drawings of the roadway, the pleadings, deposition testimony, magazine articles, the owner's manual for a 1994 Honda CBR 600 F2, available photographs and traffic counts. He visited the scene, met with certain of the defendant's witnesses, obtained a sample of the plastic used in rebate construction and determined the applicable coefficients of friction.

The witness' research disclosed that the motorcycle claimant was riding was capable of accelerating from 0-100 mph in 7.5 seconds, could reach 103-110 mph in third gear at horsepower peak and was rated at a top speed of 145 mph.

The witness testified in response to a lengthy hypothetical question posed by defendant's counsel that based upon drawings produced as a result of a laser survey performed at the accident scene (Exhibits E, G, H) and his review of photographs showing the condition of the motorcycle both before and after the accident (Exhibits B, C, D) it was his opinion to a reasonable degree of engineering certainty that the loss of control experienced by the claimant was primarily attributable to excessive speed on approach to the curve. Testimony that a single tire skid mark extended from the rebate to a point on the outside shoulder where the motorcycle left the pavement also indicated overbraking of the rear tire. Mr. Gambardella stated that he determined to a reasonable degree of engineering certainty that the motorcycle was traveling "at least" 90 mph as it crossed the rebate in the eastbound lane of Route 196 on July 10, 1999. He arrived at this conclusion by working back from the point where the motorcycle came to rest. The witness stated that the photographic evidence showing the physical condition of the motorcycle before and after the accident demonstrates that the vehicle's forks were bent and various components bolted or otherwise appended to the motorcycle had broken off. The damage indicated that as the motorcycle slid or tumbled across the grass the forks and other components dug into the ground creating a snagging effect resulting in extremely high retardation rates. He further stated that he measured the distance between the rebate and the point where the motorcycle left the paved surface at 270 feet and from the edge of the pavement to the vehicle's resting place at 318 feet for a total distance traveled of 588 feet. Assuming the claimant used the brake on only one tire a coefficient of friction of .35 would be produced resulting in a reconstructed speed well in excess of 90 mph. He related that stopping distances for the subject motorcycle have been demonstrated at 28 feet at 30 mph and 118 feet at 60 mph. According to the witness had the motorcycle entered the curve in the roadway at a speed of 55-60 mph it could easily have been stopped within the 270 feet of paved surface it traversed by application of one or both of the vehicle's brakes.

Defendant's expert testified that the presence of plastic in the road would not have caused either tire to slide if it had been encountered by the motorcycle in a vertical position since under those conditions there would be no demand for lateral traction. Nor is it likely that only one of the motorcycle's tires would slide as testified to by claimant. To determine the amount of time the tire would have been in contact with the plastic at the rebate the witness assumed one foot of plastic on each side of the rebate for a total of two feet and further assumed the motorcycle was traveling at 55 mph. Using those figures he calculated that the tires were in contact with the plastic for 0.025 seconds.

Based upon the radius of curvature and superelevation of the left curve on Route 196 near the accident scene, which he obtained from the highway's as-built drawings, the witness testified that a motorcycle traveling at 55 mph would only require a coefficient of friction of less than 0.14 to safely negotiate the curve. He alleged that the presence of plastic at the rebate would not have reduced the coefficient of friction to the point where claimant's motorcycle traveling at 55 mph would have slid or skidded. He further related that an increase in the motorcycle's speed above 55 mph would necessarily lessen the period of contact between the tires and the plastic below his previous estimate of 0.025 seconds and thereby lessen any effect of the plastic as a cause of the accident. The witness opined to a reasonable degree of engineering certainty that two feet of plastic on the roadway at the rebate would not have caused the rear tire of the motorcycle to slide as attested to by the claimant. In reaching his conclusion the witness utilized a .7 coefficient of friction for dry pavement, .82 on grass or sod snagged by the motorcycle's prow points and .35 on plastic of the sort used at the subject rebate.

Defendant's expert stated that the skid mark reportedly observed by Deputy Sheriff Myer beginning near the rebate and continuing to the road shoulder was consistent with the witness' opinion that excessive speed and overbraking caused the accident.

On cross-examination Gambardella was questioned concerning a DOT road maintenance folder which indicates that on July 12, 1999 sign maintenance work was performed on seven signs on Route 196 between milepost markers #1060 and #1103, noting that the rebate was located between markers #1061 and #1062. That folder was marked and received in evidence as Exhibit 40. The witness stated, however, that he was not asked to consider the question of signage at the scene of this accident but that signage would not have affected his conclusions or opinions in this case.

The witness further explained his method of calculating the claimant's speed in the following manner: using a 0.35 coefficient of friction for the on road rear wheel skid and 0.82 for the off road slide combined with the 270 feet traveled by the motorcycle over the paved surface he calculated claimant's speed at 90 mph when he crossed the rebate and 80 mph when he left the roadway. He later testified that these figures were conservative estimates and that he actually calculated claimant's speed to have been 102 mph.

Mr. Gambardella denied counsel's assertion that his opinion was entirely based upon the deputy sheriff's testimony regarding the location and direction of skid marks he observed at the accident scene. The witness stated that the skid mark is consistent with overbraking of the motorcycle. He testified that it would be highly unusual but not impossible for the motorcycle to have produced a skid mark if claimant's testimony regarding the absence of deceleration and non-application of the brake were true. If the claimant were braking a .35 coefficient of friction would produce a speed estimate of 90 mph at the rebate. He explained that even if there were no skid marks at the scene and the claimant's contention that he did not apply his brakes was accepted, the path followed by claimant and the motorcycle from the rebate to their places of rest, claimant's testimony that he was in a 35
to 40
rear wheel skid, the geometry of the curve and the performance capabilities of the particular motorcycle involved leads to the conclusion that claimant was exceeding the critical speed for the curve which he calculated as at or about 105 mph.

The defense rested at the conclusion of Gambardella's testimony.

The State is required to design, construct and maintain its highways in a reasonably safe condition (
Friedman v State of New York, 67 NY2d 271). The duty imposed is non-delegable and extends to include paved shoulders which must be maintained in a condition which is reasonably safe for foreseeable users (Bottalico v State of New York, 59 NY2d 302; Fasano, Matter of v State of New York, 113 AD2d 885). It also encompasses the duty to properly erect, maintain and position signage adequate to advise motorists of upcoming defects or hazardous conditions (Canepa v State of New York, 306 NY 272; Rizzo v State of New York, 141 AD2d 953). The State is not, however, an insurer of the safety of its highways and the mere happening of an accident does not raise a presumption that the State was negligent (Wingerter v State of New York, 79 AD2d 817, affd 58 NY2d 848; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Liability will attach only where the negligence ascribed to the State is the proximate cause of an accident (Duger v Estate of Carey, 295 AD2d 878; Hough v State of New York, 203 AD2d 736). Proximate cause is established where an accident is found to be a natural and probable consequence of the State's negligence, including a negligent failure to warn (Ether v State of New York, 235 AD2d 685; Schichler v State of New York, 110 AD2d 959). Where, however, "the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery since he failed to prove that the negligence of the defendant caused the injury" (Bernstein v City of New York, 69 NY2d 1020, 1021-1022; see, Burton v State of New York, 283 AD2d 875; Marchetto v State of New York, 179 AD2d 947, lv denied 80 NY2d 751).
The claimant contends that the State was negligent in failing to install "bump" signs and cones in the area of the rebate in a manner consistent with the Manual of Uniform Traffic Control Devices. It is alleged that the absence or misplacement of signage provided inadequate warning of a roadway defect thereby shortening the claimant's time to react and causing an abrupt 10
shift in the attitude of the motorcycle. The shift caused the rear wheel to skid with resultant loss of control.

The presence or absence of bump signs or cones at the rebate site was the subject of varying and inconclusive testimony. The Court accepts the testimony of Joseph Pinkowski that on July 6, 1999 he installed the bump signs and cones depicted in the photographs taken by DOT personnel on July 13, and July 16, 1999. The only testimony as to the placement of the signs was that provided by the claimant's expert Mr. Bryden who estimated the bump signs were located 75 feet from the rebate on the westbound lane and 25 feet from the rebate on the eastbound lane. His estimate is reasonable and in accord with the photographic evidence and is accepted by the Court.

Claimants' expert testified that the Manual requires that a warning sign be placed 200-250 feet in advance of any defect or obstruction. The MUTCD has been recognized as "[t]he reference point for measuring the reasonableness of DOT's decisions" in marking and signing highways (
Zecca v State of New York, 247 AD2d 776, 777-778). Claimants' expert testified that bump signs are within posting category II (see, 17 NYCRR § 234.1 [b]) and in reference to the accident site were required to be located a minimum of 200 feet in advance of the rebate. Defendant offered no evidence as to applicable advance warning distances. The Court finds that the claimants have established that the warning signs put in place to warn motorists of the presence of the rebate on Route 196 failed to conform to the advance warning distances made applicable thereto by the MUTCD. Whether or not the rebate was "sufficiently abrupt to cause considerable discomfort, cargo shifting, or deflection of a vehicle from its true course" (17 NYCRR § § 234.1 [a], 234.3 [a] [1]), once the State decided to utilize the signs it was required to comply with the provisions of the Manual governing sign placement.
The failure to properly locate the signs constitutes negligence by the State for which it may be held liable if its failure proximately caused or contributed to the claimant's accident. Although the defendant argued that the placement of warning signs is subject to the exercise of engineering judgment (
see, 17 NYCRR § 230.1 [b]) no proof was offered to establish that engineering judgment was actually exercised in deciding the proper placement of the signs. Finally, the claimant failed to establish that the area of the rebate was a work zone requiring the use of signs containing black lettering on an orange background.
The remaining question is whether the defendant's negligence in creating a hazard and providing inadequate advance warning of its existence played a causative role in the claimant's loss of control of his motorcycle and the injuries he allegedly sustained.

The incident was unwitnessed and the claimant's testimony is the only proof offered which specifically addresses the sequence of events. In this regard the claimant testified that he was leaning into the left hand curve when he noticed plastic 50-60 feet ahead in the eastbound lane of travel. As he attempted to return the vehicle to a vertical position his rear wheel passed over the plastic at the edge of the rebate and began to slide to the right assuming an attitude offset 35
to 40
from the front wheel which was unaffected by the plastic. He contends that he was traveling at or slightly above the posted 55 mph speed limit and that he never exceeded third gear. Claimant did not attempt to brake or decelerate in the 200-250 feet he estimates the vehicle traveled while in the above described position from the rebate to the outside edge of the road shoulder. He asserts he did not attempt to brake or decelerate because he either did not have time to do so or he feared that the slide would be exacerbated.

Against this backdrop the Court notes frequent and not insubstantial inconsistencies in the claimant's testimony. Mr. Thorpe testified that claimant delivered the motorcycle to him at the LaFlamme's store in Hudson Falls. Mr. Thorpe left the store to test drive the vehicle. As he operated the motorcycle he noticed the engine was stuttering and drove over the rebate in the eastbound lane of Route 196 to his friend's house on McDougal Road. There he called claimant at the LaFlamme's store where he was awaiting Thorpe's return.

According to Mr. Thorpe he observed the claimant turn onto McDougal Road from the eastbound lane of Route 196. When asked on cross-examination whether he had driven through the rebate on Route 196 on his way to the McDougal Road house claimant replied in the negative and contended that he traveled to McDougal Road from Argyle using back roads. As claimant mounted the motorcycle and turned onto Route 196 west Thorpe heard the claimant shift through at least five gears. Claimant alleges he never exceeded third gear. Although claimant testified that he lost consciousness after the accident he denied a loss of consciousness when speaking to EMT Irwin at the scene.

Claimants' expert addressed only in passing the issue of whether and to what extent the plastic played a causative role in producing the rear wheel slide. Claimants' expert testified that while the plastic may have played some indeterminate role in causing the rear wheel to slide he considered the claimant's straightening of the motorcycle from the 10
lean he had assumed in entering the curve to be the primary cause of the accident. He explained that in attempting to shift the motorcycle to a vertical position the motorcycle became unstable causing the rear wheel to move to a position 35
to 40
out of alignment with the front wheel resulting in the rear wheel sliding across the surface in a sideways position.

Unlike claimants' expert, defendant's expert Mr. Gambardella specifically addressed the allegation that the motorcycle's rear wheel slide was caused by a lack of traction attributable to the presence of plastic on the roadway. He found that contact between the wheel and one foot of plastic on both sides of the 18 inch wide rebate could not have occasioned the rear wheel slide. He testified that the motorcycle was fully capable of negotiating the curve on Route 196 at 55 mph and that contact with the plastic would not at that speed reduce the applicable coefficient of friction to a point where the rear wheel would reasonably be expected to skid or slide. Instead, he concluded that the slide was the result of excessive speed. According to Mr. Gambardella the skid mark testified to by Deputy Myer was consistent with overbraking which caused the rear tire to move out of alignment and skid or slide across the road surface. Under such circumstances, the witness testified, the claimant crossed the rebate at a conservatively estimated speed of 90 mph. If as claimant contends he did not brake or decelerate, Gambardella concluded based upon various factors that the rear wheel slide resulted from the claimant exceeding the critical speed for the curve which he estimated to be approximately 105 mph.

The witness also testified that the 1994 Honda CBR 600 F2 motorcycle claimant was operating had a demonstrated stopping distance of 28 feet at 30 mph and 118 feet at 60 mph. He concluded that had the claimant entered the curve at a speed of 55-60 mph as he alleges the motorcycle could easily have been brought to a stop within the 270 feet between the rebate and the point at which the claimant left the shoulder.

Based upon all the evidence, the Court finds that claimant has failed to prove by a preponderance of the evidence that his loss of control was the proximate result of a loss of traction caused when the motorcycle's rear tire came in contact with plastic on the edge of the rebate. Rather, the Court finds that the loss of traction resulted from the claimant entering the curve at an excessive rate of speed. The testimony of defendant's expert is largely uncontradicted while that of Mr. Leslie is subject to reasonable concern as to its credibility.

Claimants' expert testified in conclusory fashion that straightening the motorcycle 10
to vertical caused the rear wheel to become unstable and slide.. Notably absent from his testimony was any detailed analysis of the specific underlying factors which would affect such a dynamic. Claimant was an experienced motorcycle rider and road racer operating a high performance motorcycle on a dry roadway on a clear day. Claimant himself described the 10
lean he assumed in entering the curve as insignificant. Although the expert testified that claimant would have only one second to adjust to the rebate if he first observed it at 100 feet at a speed of 55 mph he also testified that the rebate was visible from a distance of 330 feet at a height of 48 inches.

Under these circumstances the Court finds that the negligence of the State in failing to locate the bump signs in accordance with the MUTCD was not a proximate cause of the claimant's accident. Rather, the accident is solely the result of the cumulative effect of (1) claimant's inattentiveness in failing to notice the bump signs or rebate either as he approached the McDougal Road property in an eastbound direction as Mr. Thorpe observed or in proceeding west on Route 196 during the first leg of his test drive; (2) excessive speed in entering the curve and (3) claimant's failure to brake or decelerate (i) in the 330 feet between the rebate and the point at which the rebate became visible as the claimant approached in the easterly lane of traffic and (ii) the 250-270 feet between the rebate and the shoulder edge. Finally, the Court finds that application of the emergency doctrine as urged by claimant is inappropriate as the proof establishes that the circumstances in which claimant found himself were solely of his own making (
Martin v Alabama 84 Truck Rental, 47 NY2d 721; Sweeney v McCormick, 159 AD2d 832).
The Court finds that claimants have failed to meet their burden of proving by a preponderance of the credible evidence that the State's negligence proximately caused or contributed to the happening of claimant's accident on July 10, 1999. As a result the claim is hereby dismissed. The Clerk of the Court is directed to enter judgment accordingly.

March 31, 2003
Saratoga Springs, New York

Judge of the Court of Claims

[1]Kimberly Leslie's claim is derivative only and seeks to recover for the loss of her husband's services. All references to claimant refer to Steven P. Leslie.
[2]The same photographs are depicted in Exhibit 37.
[3]The same photographs are depicted in Exhibit 36.
[4]All quotations are taken from the Court's trial notes.
[5]See Vehicle & Traffic Law § 1680.
[6]MUTCD § 234.1 (a) states: "These signs [bump and dip signs] are for use, as necessary, to warn of isolated bumps or dips in the pavement which are sufficiently abrupt to cause considerable discomfort, cargo shifting, or deflection of a vehicle from its true course, at prevailing driving speeds".