New York State Court of Claims

New York State Court of Claims

HANNON v. THE STATE OF NEW YORK, #2003-015-576, Claim No. 102289


Synopsis


State found not liable for injuries sustained by infant pedestrian who crossed State roadway outside of unmarked crosswalk equipped with pedestrian push buttons. State's duty is fulfilled by exercise of reasonable care in design, construction and signage of intersection and liability cannot be established upon proof presenting a choice between conflicting experts.

Case Information

UID:
2003-015-576
Claimant(s):
DONALD HANNON and KATHY HANNON, Individually and as Parents and Natural Guardians of MATTHEW HANNON, an Infant
Claimant short name:
HANNON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102289
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Dreyer Boyajian, LLPBy: Brian W. Devane, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 29, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The claim herein seeks to recover damages for personal injuries sustained on March 18, 1999 when claimant[1], Matthew Hannon, then a fifteen year old sophomore at Guilderland High School, was struck by a vehicle while crossing Route 146 approximately 30-40 feet east of its intersection with School Road (County Route 202) in the hamlet of Guilderland Center, Albany County, New York. The trial of this matter was bifurcated by order of the Court dated January 16, 2002 and this decision addresses the issue of liability only.

Claimants allege that the State of New York was negligent in the design and maintenance of the subject intersection. Specifically they allege that the State failed (1) to provide proper pedestrian indications (i.e., walk/don't walk lights), crosswalk markings, curbs and sidewalks for pedestrians; (2) failed to adequately warn motorists of the presence of pedestrians and school children; and (3) failed to provide a safe speed limit to permit pedestrians and school children to safely cross Route 146. Claimants allege that each of these failures occurred despite actual and constructive notice of significant numbers of pedestrians and school children crossing Route 146 at or near the subject intersection.

On the date of the accident the intersection at issue was configured as follows: Route 146 contained one eastbound lane and two westbound lanes of traffic. The rightmost westbound lane was designated by signage and pavement markings for right turns only into the Park Guilderland Apartments and Shopping Center. The left westbound lane was for through traffic and for left turns pursuant to a dedicated left turn only arrow. South of the intersection was County Route 202 which is also known as School Road. It consisted of one southbound lane and one northbound lane. The northbound lane of School Road was bordered on the east by a sidewalk which was apparently constructed in 1988 and which extended from the intersection in a southerly direction at least as far as Guilderland High School, the entrance to which was located some 1500 feet southeast of the intersection. To the north across Route 146 and facing School Road was Meadowdale Road which is best described as an access road to an apartment complex and strip type shopping center known as Park Guilderland. Meadowdale Road contained a median dividing one way inbound from one way outbound traffic. Traffic on all of these roads was controlled by traffic control signal devices suspended above the intersection from wires attached to poles located in the intersection's southeast and northwest quadrants. Pedestrian push buttons were located on the southwest and northwest quadrants which when activated turned signal faces for the east and westbound lanes of Route 146 red and the signal faces for School Road and Meadowdale Road green for at least 15 seconds to allow pedestrians to cross Route 146. All traffic control signal devices and pedestrian push buttons were in apparent working order on the day of the accident.

Claimants' first witness was Bruce Halsdorf, the owner of a gas station located at the southeast corner of the subject intersection where School Road meets Route 146. Halsdorf testified that on the afternoon in question he observed Matthew Hannon as he approached Route 146 from the area of Park Guilderland Shopping Center. According to Halsdorf, Matthew proceeded through an opening in a hedgerow, across a small lawn which separates the Park Guilderland complex from Route 146 and between several vehicles stopped in the westbound lanes of travel. Halsdorf related that the claimant looked to the west, hesitated and then entered the eastbound lane of Route 146 where he was struck by an eastbound motorist. The witness marked a photograph (Exhibit 2) to indicate the point of impact between claimant and the eastbound driver. Mr. Halsdorf testified that at the time of trial he had either owned or worked at the Getty Station at the intersection of School Road and Route 146 for the past twelve or thirteen years. He testified in the following manner in response to questions concerning his observations of school children crossing Route 146 at its intersection with School Road:
Q. And back then prior to March 18th of 1999,would you see – can you describe for the Court how often you would see school children crossing that intersection.

A. Every day.

Q. And can you describe for the Court the volume, if you can, in terms of the number of children –

A. I don't – I –

Q. – that would cross on a daily basis?

A. I didn't count, but, you know, more than two and, you know, when it's exam time, there were nothing to be, you know, 75 or 100 kids crossing the street there.

Q. Can you testify as to whether – or what observations you made pertaining to school children traffic at that intersection at the recess of school?

A. It's very heavy some days. Not every day, but some days, there's quite a few people crossing over going to the deli.

Q. And is that, just so I'm clear on my question, is that heavy school children traffic on some days or was that the circumstance prior to March 18th of 1999?

A. There seems to be quite a few kids out on the road.

Q. Prior to March 18 of 1999, were there crosswalks, pedestrian crosswalk at any location of this intersection?

A. No.

Q. Can you describe for the Court where children would cross that intersection on the – on the Getty and the deli side of Route 146 and School Road.

A. They'd come down the sidewalk and then, you know, cross anywhere from the sidewalk over towards my garage.

Claimant, Matthew Hannon, was the next witness to testify. On March 18, 1999 Matthew was a sophomore at Guilderland High School and was engaged in various after school activities including the theater stage crew and a computer gaming club. Although the play for which Matthew was a member of the stage crew ended approximately one week prior to March 18, 1999 the computer gaming club continued to meet each Thursday between 3:15 and 5:00 p.m. Matthew indicated that he was familiar with School Road and its intersection with Route 146 as well as the Park Guilderland complex in March of 1999. He related that he would walk to the Park Guilderland complex most Thursdays before the start of the computer gaming club to a deli located in the shopping center and then return to school. He stated that prior to March 18, 1999 he would occasionally notice other students returning to school from the deli. He would customarily cross Route 146 by passing through an opening in a row of hedges near the Park Guilderland Shopping Center and would cross "wherever I thought it was the safest." When asked whether there were push buttons available for use by persons seeking to cross Route 146 at its intersection with School Road he replied that "I did not see any." On cross-examination Matthew related that on March 18, 1999 he drove with a friend to the Park Guilderland Shopping Center and was dropped off by his friend at the deli so that Matthew could purchase a Coke or a snack and walk back to school to attend the computer gaming club. He denied that he was concerned on that date that he would be late for the computer gaming club and confirmed that his usual route to return to school from the deli was to exit the Park Guilderland complex through the opening in the hedges. He would then walk to Route 146, wait for westbound traffic to come to a stop and then walk between the westbound vehicles and across the eastbound lane of Route 146.

The claimant acknowledged that he had been instructed by both his parents and in elementary school that he should cross a road at its intersection with another road. He contended that he did not cross at the corner of School Road and Route 146 because "I'd be putting up with three lanes of traffic." He acknowledged, however, that he was required to cross three lanes of traffic on March 18, 1999 when he crossed Route 146 after exiting the shopping center complex through the opening in the hedgerow.

Claimants' next witness was Kathleen Hannon, Matthew Hannon's mother. She testified that she picked up her son after school on a periodic basis and alleged that on those occasions she observed students walking on the sidewalk along School Road and would also see students cross Route 146 from School Road.

On cross-examination the witness stated that she had probably instructed her son to always cross a street at a corner.

Claimants' next witness was Charles Tanner, a Town of Guilderland Police Officer since 1995. Although the witness received certification in basic and advanced accident investigation from the New York State Division of Criminal Justice Services, he was not certified as an accident reconstructionist on the date of the subject accident. The witness related that prior to March 18, 1999 he had investigated approximately 50 automobile accidents and that he investigated and prepared the report of the subject accident (Exhibit 33) on March 18, 1999. That report, in redacted form, including a field sketch and diagram was received in evidence along with photographic Exhibits 34, I, J and K. Officer Tanner described the intersection of Route 146 and School Road in detail including the configuration of traffic lanes and, so far as relevant here, the fact that cars approaching Route 146 from School Road were legally permitted to turn right on a red traffic signal after stopping. He also testified that there was a sidewalk on only one side of School Road and that there was no pedestrian push button at the intersection. He further testified that there was no sidewalk on the Park Guilderland side of the intersection and that he witnessed pedestrian traffic at the intersection while on patrols prior to March 18, 1999, primarily at lunch time and "right after school" which he described as a period from 2:15 p.m. to 4:00 or 5:00 p.m.

On cross-examination the witness explained the field sketch he made of the accident including his determination that the probable point of impact was 62 feet 9 inches west of Niagara Mohawk pole # 138. The witness, however, did not measure the distance between the probable point of impact and the subject intersection. He reported that the accident occurred on a dry road surface during daylight hours under weather conditions he described as cloudy.

Using defendant's Exhibit A and his general familiarity with this intersection acquired over a period of years the witness on redirect examination estimated that the probable point of impact was approximately 30-40 feet east of the intersection of Route 146 and School Road measured from the white stop line pavement marking governing westbound traffic (apparent in Exhibit A). Claimants' next witness was William E. Logan a licensed Civil Engineer employed by the New York State Department of Transportation (DOT). The witness has worked for DOT continually since obtaining his Bachelor of Science Degree from the University of Maine in 1970, and his job titles have included Junior Engineer, Assistant Civil Engineer, Senior Civil Engineer, and Associate Civil Engineer. Beginning in 1994 the witness became head of DOT's Region 1 Traffic and Safety Group. He expressed familiarity with the subject intersection and with the claimant's accident on March 18, 1999. The witness identified Exhibits 36 and 37 as photographs of the subject intersection showing a traffic signal control box and a pedestrian push button, the latter being located on the intersection's northwest corner. A similar pedestrian push button was also mounted on a pole at the intersection's southwest corner as depicted in Exhibit 38. The witness acknowledged that prior to the accident date there were no pedestrian push buttons on either the northeast or southeast corners of the intersection.

Logan alleged that prior to 1999 he had never noticed the sidewalk along School Road. Although a search was conducted, he found no DOT records regarding installation of the sidewalk and was uncertain as to when it was installed or whether the required DOT permit was obtained by the County of Albany prior to its installation. The witness acknowledged that the presence of a handicapped accessible ramp in the sidewalk as shown in Exhibit 6 makes it reasonable to assume the sidewalk was intended for pedestrian use. When asked by claimants' counsel whether he had any concerns regarding pedestrian traffic at the Route 146/School Road intersection prior to March, 1999 he replied that he did not. Although pedestrian traffic would be studied if the Department had received reports or complaints regarding large numbers of pedestrian crossings or potential vehicle/pedestrian conflicts his only personal observation of the intersection resulted from an investigation into left turning traffic in 1991. He related that one day in 1991 he was present at the intersection between 7:00 a.m. and 8:00 a.m. in connection with a study of school buses turning left from Route 146 onto School Road. He stated that he did not at that time note any concerns regarding pedestrian traffic at the intersection.

The witness stated that the absence of marked crosswalks at the subject intersection was not unusual even though a school was located nearby nor was it unusual that this intersection had pedestrian push buttons at its northwest and southwest corners while its northeast and southeast corners were not so equipped. He stated that the traffic signal governing the intersection was in fact a traffic control device available for use by pedestrians seeking to cross Route 146 from the southeast to northeast corner. He admitted that DOT studied the area of the subject intersection several times prior to 1999 and that as part of those studies DOT employees were required to note and report any unusual conditions at the area studied. He observed that pedestrian traffic, even that involving school children, would not constitute an unusual condition. He testified that none of the studies reported heavy pedestrian/school children usage yet he conceded that if DOT had been aware of heavy pedestrian/school children usage of the intersection the department would have studied the issue further. He denied that DOT was made aware of any pedestrian problems at this intersection.

The witness described the State Traffic Commission as a now extinct body which was previously authorized to issue orders legalizing traffic signals and signs at various locations on State roads. He identified Exhibit 9 as a DOT Directive issued 8/1/79 entitled Traffic Control Program: Speed Limits. Mr. Logan testified that the directive pertains to the establishment of speed limits and remained in effect from 1979 through the date of the subject accident.

The witness testified that Route 146 at and near its intersection with School Road was a linear speed zone rather than an area speed zone and he read the following excerpt from Exhibit 9 into the record at claimants' counsel's request:
VI. SPEED ZONE EVALUATION CONSIDERATIONS

A. Linear Limits. A linear limit is one which applies only on a specific highway or on a portion of a specific highway. By state law no such limit may be less than 25 miles per hour.
1. Where a speed limit below 55 miles per hour is warranted, the appropriate numerical value must be realistic in terms of prevailing (existing) traffic speeds. The consensus of traffic engineers throughout the country indicates that the appropriate value for a speed limit will almost always be that indicated by the 85th percentile traffic speed (to the nearest 5 miles per hour). Other limits may be established in exceptional cases, providing they are supported by good reasoning which firmly indicates that conditions are unusual and that the 85th percentile speed is not applicable in the particular instance. Such variations from the 85th percentile speed limit should, themselves, be limited in accordance with the ensuing discussion.
Logan explained that the 85th percentile speed does not always establish the appropriate speed if there are unusual conditions present but disagreed that large numbers of school children at an intersection crossing would constitute an unusual condition. He explained that pedestrians at a traffic signal are not unusual and that alone would be an insufficient reason for deviating from the determined 85th percentile speed in establishing an appropriate speed limit. In response to an inquiry by the Court the witness explained that the 85th percentile speed is the speed at or below which 85% of vehicles travel past a survey location.

The witness complied with a further request to read the following provision of Exhibit 9 into the record:
VII. SPEED ZONE EVALUATION DATA FORMS
A. The Linear Speed Zone Evaluation Data Sheet (FORM TE 23), and the Highway Development Index and Highway Geometric Factor Determination Sheet (FORM TE 24), shall be used in all speed zone cases involving consideration of a linear type regulation. When radar speed data is obtained, it is recorded on the Speed Data and Analysis Sheet (FORM TE 27).

B. The Linear Speed Zone Evaluation Data Sheet (FORM TE 23) is intended as an appropriate means of reporting highway and roadside conditions at or near the zone being studied. While the form must be adaptable to field use, FORM TE 23 is intended for presentation of data in a manner which permits formation of a reasonably accurate mental picture of the highway by a person reading the report. The zone of immediate concern can be easily identified on a well prepared line diagram, hence FORM TE 23 should extend well beyond the zone in question, to assure that a full picture of the highway section involved is presented. Where physical characteristics of a highway change within the section being studied, and the changes are more than can be clearly indicated on FORM TE 23 or adequately described in the report, separate FORMS TE 23 should be prepared for each portion.
Copies of forms TE 23 and TE 24 mentioned above were identified by the witness and received in evidence without objection. These forms include inter alia consideration of highway and roadside development (TE 24) and pedestrian movement (TE 23) in the establishment of linear speed zones. The witness acknowledged that section VII of Exhibit 9 indicates that forms TE 23 and TE 24 shall be used in all speed zone cases involving linear speed zone regulations but testified that he found no record of a TE 23 form having been completed in the area of the intersection of Route 146 and School Road. The witness located no data regarding pedestrian traffic gathered with reference to the left turn arrow added to the traffic control signal at the subject intersection in 1989 and asserted that he recorded no pedestrian data during his one hour observation of the intersection in 1991. He identified and read the following information into the record from paragraphs 1 and 4 of Exhibit 11 which is form TE 24a-1:
1. This form provides a means for determining whether a particular speed zone is or is not warranted. The methodology used, independently examines both highway development and highway geometric values. By comparing these values with statistically obtained state standards, a determination is made.

* * *

4. This form, along with the LINEAR SPEED ZONE EVALUATION SHEET (Form TE 23) and the SPEED DATA AND ANALYSIS SHEET (Form TE 27), should be used in all speed zone cases involving consideration of a linear type regulation.
The witness stated that he did not believe a TE 24 was prepared with reference to the subject intersection at any time between 1979 and 1999. With reference to a page from a DOT traffic volume report (Exhibit 40) he related that the average annual daily traffic counts per lane for a 2.91 mile stretch of Route 146 between County Route 201 and State Route 20 which included the Route 146/School Road intersection were: 7,950 in 1985; 13,700 in 1989; 11,000 in 1990; and 11,800 in 1996.

In response to the question whether DOT was required to prepare forms TE 23 and TE 24 with reference to speed studies performed within a linear speed zone .2 miles east of the School Road intersection with Route 146 in 1985 (Exhibit 15) and 1987 (Exhibit 16) the witness replied that, pursuant to practice and custom at DOT, forms TE 23 and TE 24 were not required where the designated speed limit in a previously established linear zone was already below the statewide speed limit of 55 mph. This he maintained was a staff interpretation of the 8/1/79 Directive (Exhibit 9) shared by both the DOT "main office" and the Regional office staff. He alleged that to the extent that Exhibit 9 indicates that the completion of forms TE 23 and TE 24 was mandated for speed studies conducted in linear speed zones with a posted speed limit below 55 mph the Directive is "wrong." He then stated that in considering a reduction of a speed limit already below 55 mph DOT would perform an 85th percentile speed study and would not prepare a TE 23 or TE 24 form. He reiterated his prior testimony that to the extent its language was to the contrary the 8/1/79 Directive was not followed by DOT when considering a request to lower or adjust the posted speed limit where the existing linear zone speed limit was below 55 mph.

With regard to a notice of order dated 5/20/83 (Exhibit 30) extending by 1.1 miles the linear speed zone limit of 40 mph on Route 146 from reference marker 1105 to 1116[2] the witness testified that he did not believe DOT followed the 8/1/79 Directive's instruction to complete forms TE 23 and TE 24. He alleged that DOT decided not to follow the 8/1/79 Directive shortly after it was issued in 1979 but admitted that it was neither formally rescinded nor amended between 1979 and 1999.

The witness was next shown Exhibit 21 consisting of six pages which he identified as his letter of May 3, 1994 to a Guilderland Center resident (John C. Overbeck) along with data collected as part of a traffic engineering review performed in response to Mr. Overbeck's request for a speed limit reduction on Route 146 dated February 28, 1994. Page 3 of the Exhibit was described as an accident history between RM (reference marker) 1105 and 1110 for the years 1991-1993 in which six accidents were noted. The witness was then shown Exhibit 35 consisting of seven[3] separate police reports of motor vehicle accidents occurring at the intersection of Route 146 and School Road during 1993. None of these seven accidents were included in the aforementioned accident history compiled by DOT as part of its 1994 speed study nor were they included in Exhibit 21. The witness concluded from his examination of the two exhibits that DOT's accident history included in Exhibit 21 was incomplete. He also acknowledged that neither form TE 23 nor TE 24 was completed as part of the 1994 engineering review study.

Logan identified Exhibit 31 as a six page document containing a DOT Traffic Engineering and Safety Division Notice of Order dated February 5, 1973 relating to the installation of a traffic signal at the intersection of Route 146 and School Road (CR 202). The second page of the exhibit contains references to the installation of pedestrian push buttons on the north and south sides of Route 146 and a pedestrian timer designed and built to provide a separately timed School Road green interval upon activation of the pedestrian push button. The witness testified that although the document did not specify placement of pedestrian push buttons only on the west side of the intersection they were likely so located in order to avoid pedestrian traffic at the area of most intense vehicle movement. At the intersection of School Road and Route 146 the most intense vehicle turning movements were right turns from School Road onto Route 146 and left turns from Route 146 onto School Road. In addition, in the absence of sidewalks in 1973, persons walking along School Road approaching Route 146 from the south were legally required to walk facing traffic which would be the west side of School Road. He alleged that specifications adopted in 1979 and contained in Exhibit 27 relating to pedestrian push buttons are not controlling with regard to the push buttons installed at the subject intersection prior to that date. According to the witness, newly revised standards such as those contained in Exhibit 27 would be applied only if DOT were rebuilding the traffic signal and newly adopted standards did not require DOT to replace all existing pedestrian push buttons to meet the specifications.

The witness read into the record portions of Vehicle and Traffic Law § 153, specifically those portions which define "traffic control devices," including pedestrian push buttons and "traffic" which includes pedestrian traffic. Logan acknowledged that section 1680 (c) of the Vehicle and Traffic Law read into the record by claimants' counsel provides in part as follows:
No state or local authority shall continue to use any traffic-control device that does not conform to the current manual and specifications as amended from time to time or to specifications that were current within the preceding ten years, except that a city having a population in excess of one million shall conform to the state manual and specifications only insofar as such local authority in its discretion deems practicable.
Logan further acknowledged that the instant case did not involve a city having a population in excess of one million.

The witness testified he was not aware of any changes to the pedestrian push buttons on the west side of the subject intersection after 1989 and before the date of the accident. He stated that he believed the push buttons in 1999 conformed to specifications in effect during the preceding ten years.

Having conceded that the Park Guilderland Apartments and Shopping Center were constructed in or around 1972 the witness indicated that DOT would have anticipated some additional pedestrian traffic at the intersection as a result of the development. He was uncertain whether DOT conducted a study relative to the installation of the three color signal at the intersection pursuant to a notice of order dated 2/5/73 (Exhibit 31) and stated that he found no DOT study documents going that far back in time. The witness further alleged that it was likely that a study was done and quite likely that documents pertaining to the study would have been discarded by DOT due to storage limitations.

With reference to a letter from an assistant superintendent of the Guilderland School District dated November 21, 1988 (Exhibit 18) requesting installation of a left turn signal at the intersection the witness averred that a DOT engineering study was performed but that the study did not include data concerning pedestrian volume at the intersection.

The witness admitted familiarity with Vehicle and Traffic Law § 154 as it defines a traffic control signal and with § 271.1 of the Manual of Uniform Traffic Control Devices (MUTCD) and alleged that only parts of section 271.1 applied to DOT's installation of the left turn signal at the subject intersection in 1989 since the left turn signal was merely an add-on to an already existing signal. He acknowledged that pedestrian volume was not considered as part of the study conducted in conjunction with the installation of the left turn arrow at the subject intersection. Logan further testified that section 271.5 of the MUTCD relating to minimum pedestrian volume establishes a warrant for the installation of a three color traffic signal and had no application to the left turn signal added to an existing signal in 1989.

According to the witness, during the 1990s pedestrians on the east side of the subject intersection were legally permitted to cross Route 146 when the traffic signals facing School Road and Meadowdale Road were green. He admitted there could be vehicular/pedestrian conflict at the intersection for pedestrians crossing from the southeast corner to the northeast corner due to right turns being made onto Route 146 from School Road. He expressed familiarity with vehicular traffic patterns at the intersection and stated the heaviest turn movements were a left turn onto School Road from Route 146 in the morning and a right turn onto Route 146 from School Road at the end of the school day. He was not personally familiar with the pedestrian pattern at the intersection in 1989 but averred that such a pattern would have had no effect on the left turn signal addition since the signal faces on School Road/Meadowdale Road would be red when traffic on Route 146 received the green left turn signal.

Section 272.6 (2) of the MUTCD was alleged by the witness to have no application to the subject intersection since it had no walk/don't walk indicators. The witness further testified that there was no pedestrian volume study performed in conjunction with the notice of order dated 11/19/91 (Exhibit 32) which authorized placing the Route 146/School Road signal in a flash mode at various times of the day to improve traffic flow. Likewise, the traffic volume study performed at off-peak hours (Exhibit 19) in connection with the 11/19/91 order did not include pedestrian volume data.

With regard to Exhibit 22, comprised of two letters written by the witness on September 18, 1995 and September 28, 1995 in response to Guilderland Center resident Elizabeth Milo's request for a speed limit modification and installation of sidewalks, the witness stated that the traffic engineering studies referenced in those letters did not consider pedestrian volumes or pedestrian traffic patterns.

Mr. Logan identified Exhibit 39 as a letter he prepared and sent to the State Police regarding a request by Trooper Thomas Jensen for placement of a "right lane must turn right" sign to control one of the two westbound lanes of Route 146 at the subject intersection. He remarked that pedestrian traffic patterns were not analyzed in response to the request for installation of the sign despite the witness's concession that section 202.2 of the MUTCD regarding orderly traffic flow could include pedestrian traffic as defined in Vehicle and Traffic Law § 152.

The witness testified that based upon his experience with DOT, including experience obtained as a traffic safety engineer, the traffic control signals in place at the subject intersection in March 1999 were appropriate based upon sound engineering principles. Neither the witness himself nor another DOT employee (Mr. Dick) observed or noted any pedestrian problems at the subject intersection during their separate engineering reviews or investigations conducted prior to the subject accident.

On cross-examination Mr. Logan identified Exhibit G (Town of Guilderland map) which was received without objection. He marked in red on the exhibit the area of Route 146 covered by the 40 mph linear speed zone in March of 1999. The witness identified Exhibits H3, H4, H5, H6 and H7 as portions of a DOT photo log of Route 146 in a westbound direction as photographed in November 1998. He also testified that Exhibits H25, H24, H23, H22, H21, H20 and H19 were portions of a DOT photo log of Route 146 in an eastbound direction also photographed in November 1998. He was unaware of any changes to the area depicted in the photographs between November 1998 and March 1999.

The witness testified that regulatory speed limits are based on vehicle speeds under free flow conditions when traffic is not influenced by other factors. He related that the 85th percentile speed indicates the speed at which a large percentage of drivers are comfortable on that particular road or section of roadway. He further explained that the term "10 mile per hour pace" refers to a ten mile per hour increment at which the majority of vehicles are found to be traveling during a survey.

With reference to Exhibit 9 the witness read into the record the final sentence of item VI (A) (1) and (2) (a) and (b) which provide as follows:
Such variations from the 85th percentile speed limit should, themselves, be limited in accordance with the ensuing discussion.

2. A speed limit below that associated with the 85th percentile speed should satisfy the following conditions:

a. It should not be lower than 3 miles per hour below the upper limit of the 10 mile pace.

b. It should not place more than one-third of the traffic in technical speed violation (not lower than the 67th percentile speed).
He stated that speed limits go up or down only in 5 mph increments. Defense counsel then requested the witness to read into the record paragraph 3 of Exhibit 11 (form TE 24) regarding the warranting of a speed zone where the Highway Development Index is greater than 50. The witness explained that the completion of a form TE 24 and the determination of the Highway Development Index by use of that form does not provide DOT with an appropriate speed for the area being investigated; it merely indicates that a variation from the statewide 55 mph limit is warranted. A similar explanation was given by the witness with regard to the Highway Geometric Factor portion of Exhibit 11.

The witness responded affirmatively to defense counsel's inquiry as to whether a 40 mph speed zone was already established for the subject area of Route 146 prior to DOT speed studies of the area conducted in 1985, 1987 and 1994 (Exhibits 15, 16 and 21 respectively). He further alleged that forms TE 23 and TE 24 were not required to be completed with regard to those studies because there was already an established speed zone in the area. He also asserted that when forms TE 23 and TE 24 are completed they merely inform DOT that a speed zone is or is not required; where a speed zone is already in place their completion is unnecessary.

Referring to Exhibit 11 the witness testified that there are no references to pedestrian volumes in the section of form TE 24 entitled "Roadside Development Index". He then explained that the items set forth on the bottom of Exhibit 10 (form TE 23), including among others sidewalks and curbs and pedestrian movement, are factors which can affect the posted speed as can traffic volume and roadside development such as the presence of driveways.

Exhibits M and N were said to relate to speed reduction requests received by DOT relative to Route 146 in Guilderland Center and to DOT's decision after speed data analyses were performed that the then current 40 mph speed limit in the area affected by the complaint was reasonable and appropriate. With regard to Exhibit 21 the witness indicated that DOT's activity in response to another resident's request for a speed limit reduction on Route 146 in Guilderland Center included radar measurements and the preparation of a collision diagram and accident history. He noted that page 3 of the exhibit contained the words "nothing in file for 1993 between RM's" and explained that language to mean that at the time the report was prepared there were no accident reports received by DOT relative to the specified reference markers on Route 146. For each of the above exhibits the witness discussed the speed studies performed including the determination of the 85th percentile speed and the ten mile pace.

Mr. Logan testified that before March 18, 1999 the State had received no complaints regarding pedestrians being unable to safely cross at the intersection of Route 146 and School Road.

On redirect examination the witness admitted knowledge of the location of Guilderland High School with reference to the subject intersection in March 1999 but denied any personal knowledge of school children walking on or near Route 146. He further stated that children walking along Route 146 near this intersection would have had no effect on DOT's consideration of the appropriate speed limit in the area. He noted further that while there was a concern raised by at least one resident (Elizabeth Milo) regarding the absence of sidewalks along Route 146, as a matter of policy DOT would not install sidewalks along a roadway unless there was an ongoing capital project in the area.

The witness acknowledged that he had received notice of school children walking along Route 146 through receipt of a letter from Elizabeth Milo but stated that the letter did not cause DOT to perform a pedestrian study of Route 146. He explained that the solution to pedestrian traffic along Route 146 was to install sidewalks which was a local government responsibility and not an area in which DOT would become involved in the absence of a road reconstruction project at the subject location. The witness also acknowledged that DOT was aware of complaints regarding speeding on Route 146 but asserted that speeding is controlled through enforcement by local and State Police even when school children may be present. He acknowledged that the speed studies performed by DOT were conducted only while school was in session.

Logan averred that crosswalks at an intersection would not affect the speed of approaching vehicles and that neither crosswalk markings provided for in section 261.12 of MUTCD nor school children warning signs would affect the 85th percentile speed or cause drivers to slow down.

Claimants' next witness was Alan T. Gonseth, a Civil Engineering graduate of Clarkson University. He is a member of the National Society of Professional Engineers and the American Society of Civil Engineers. He has been a licensed engineer in the State of New York since 1960. He described his duties while employed for 34 years by the Port Authority of New York and New Jersey and asserted that 75% of the work performed by him for Gonseth Associates has been in the area of accident reconstruction including work performed for State and local governments in New York and throughout the United States. The Court found the witness qualified to offer expert testimony.

With reference to this case the witness reviewed police accident reports, EBT transcripts, photographs, various DOT directives and visited the accident scene at Route 146 and School Road in Guilderland Center. The witness assumed for purposes of his investigation that the accident occurred when a vehicle being driven by Darcy Thomas came in contact with the claimant pedestrian in the eastbound lane of Route 146 approximately 20 feet east of that road's intersection with School Road. The witness described the intersection in March 1999 including the legally authorized turns permitted there and the absence of marked crosswalks. He testified that although there were pedestrian push buttons on the west side of the intersection there were no pedestrian indications consisting of the illuminated words WALK and DON'T WALK. He averred that the three color traffic signal at the intersection in March 1999 was not a pedestrian signal but was instead a vehicular signal which also controlled pedestrian movement in the absence of pedestrian signal indications. The witness observed from his examination of Exhibits 37 and 38 that there were no crosswalk markings between the locations of the pedestrian push buttons at the intersection and no sidewalks at either the northwest or southwest quadrants of the intersection near the push buttons. He also testified that while a sidewalk existed on the southeast corner there was no sidewalk in the northeast quadrant.

He reviewed Exhibit 9 (8/1/79 DOT Directive) which he stated was DOT's traffic control program document regarding speed limits and testified that the directive required forms TE 23, TE 24 and TE 27 to be filled out with regard to a linear speed zone study. The witness testified that the presence of crosswalks at an intersection could affect the 85th percentile speed. He opined to a reasonable degree of engineering certainty that the presence of a school children warning sign would have reduced the 85th percentile speed. He also opined with regard to Exhibit 10 that the item contained therein entitled "average daily traffic" referred to average annual daily vehicular traffic (AADT) as measured by DOT over a period of 365 days and did not include pedestrian traffic. The witness expressed an understanding that DOT undertook a number of studies of the subject intersection prior to March 18, 1999.

The witness testified that Guilderland High School is approximately 1500 feet south of the intersection on School Road and that Park Guilderland Apartments, containing 142 rental units plus a shopping center constructed in 1972 are located on Meadowdale Road. Based upon these facts, he opined to a reasonable degree of engineering certainty that the Park Guilderland complex would have increased vehicular and pedestrian traffic at the subject intersection and noted that there were no sidewalks adjacent to Meadowdale Road leading from the apartments/shopping center to Route 146.

After reviewing the relevant data contained in Exhibit 40 for that portion of Route 146 between reference markers 1102 and 1125 showing an estimated increase in vehicular traffic of from roughly 8,000 vehicles in 1985 to nearly 12,000 vehicles in 1996, the witness opined that the increase in vehicular traffic was significant and relevant to the placement of traffic control signal devices. He further opined that the State should have been aware of the traffic volume increases on that portion of Route 146 including the School Road intersection and the effect such increases would have had on potential vehicular/pedestrian conflicts.

The witness asserted that the purpose of a pedestrian push button is to stop traffic in all directions to allow for safe pedestrian passage through an intersection. Referring to Exhibit 38 the witness observed that the placement of a utility pole near the pole in the southwest quadrant of the intersection on which a pedestrian push button was mounted blocked the view of the push button for pedestrians standing on the southeast corner of the intersection. The southwest corner contained no sidewalk in March 1999, only a grassy area. With reference to Exhibit 37 the witness observed that immediately adjacent to the pedestrian push button located in the intersection's northwest quadrant is another grassy area containing a drop inlet and handicap curb cut but no sidewalk. The witness further observed there was no marked crosswalk between the pedestrian push buttons located in the southwest and northwest quadrants.

He opined to a reasonable degree of engineering certainty that in the absence of a crosswalk and walk/don't walk indications, the pedestrian push buttons at this intersection did not conform to accepted engineering standards at the time they were installed in 1973. The witness offered an opinion that continued use of pedestrian push buttons at the subject intersection without the addition of walk/don't walk indications and a marked crosswalk failed to conform with the requirements of the MUTCD as of March 18, 1999. After noting various warrants contained in sections 271.1 through 271.7 of the MUTCD, with particular attention to section 271.5 (minimum pedestrian volume) and sections 271.6 (school crossing), the witness opined that pedestrian traffic at the subject intersection, especially school children, could implicate a pedestrian traffic warrant and required the State to conduct a study to determine if pedestrian indications (i.e., walk/don't walk lights) were required. He also opined that if a pedestrian warrant had been identified at the intersection prior to March 18, 1999 the State should have installed school children crossing signs and a marked crosswalk between the southeast and northeast quadrants including walk/don't walk indications and should have considered an appropriate reduction of the speed limit near the intersection.

Referring to the language contained in section 261.12 (a) (1) (i) of the MUTCD the witness opined that marked crosswalks were required at the subject intersection because there was substantial pedestrian crossing movement and there were also significant conflicts between pedestrian and vehicle traffic caused by the allowance of right turns on red. Mr. Gonseth described vehicle movements in and around the Route 146/School Road intersection and related his opinion, based on traffic volume and turning movements, that vehicle/pedestrian conflicts existed at the intersection in March, 1999.

Gonseth further opined that the traffic speed study performed by DOT on June 11, 1985, while adequate to measure vehicle speed, was rendered inadequate due to the State's failure to complete forms TE 23 and TE 24 as required by Exhibit 9. He concluded that due to the failure to complete one or more of the forms required by Exhibit 9 the studies performed on June 11, 1985 and in 1987 did not conform to DOT's own standards and failed to comply with good engineering standards.

With reference to Exhibits 15 and 16 the witness opined that the 85th percentile speeds obtained (i.e., 46.4 mph in 1985 and 46.9 mph in 1987) would have been lower had crosswalk markings and school children signs been present at the subject intersection. He further opined that DOT should have considered increased traffic volume, including increased pedestrian volume, and side road traffic and turning movements in the studies conducted in 1985 and in 1987.

The witness noted that the previous witness (William E. Logan) had testified in reference to Exhibit 21 that the State's traffic engineering review of Route 146 in Guilderland Center indicated that 40 percent of the motorists observed in the 1994 study were exceeding the posted 40 mph speed limit. His review of that exhibit led him to opine that the State's failure to complete forms TE 23 and TE 24 (per the 1979 directive) rendered the 1994 study non-compliant with sound engineering practice. Like the 1985 and 1987 speed studies addressed previously, the witness maintained that the 1994 study failed to consider pedestrian volumes, the proximity of Guilderland High School to Route 146 and roadside development in the area. He opined that had such factors been considered the speed limit on Route 146 would have been reduced to 30 - 35 mph in both directions within one-half mile of the subject intersection.

The witness further opined that the addition of a left turn arrow in 1989 required both a formal study of traffic conditions and the installation of crosswalk markings. In addition, he averred that a pedestrian count should have been done due to the proximity of the high school to the intersection and that an engineering study pursuant to section 271.1 was required in connection with the addition of the left turn arrow. Gonseth formulated a similar opinion regarding DOT's installation of a "Right Lane Must Turn Right" sign (see, Exhibit 39); and he alleged that any modification of the intersection should have caused DOT to review relevant factors including pedestrian counts.

He opined further that the subject intersection was not operated or maintained by DOT in compliance with the MUTCD or according to sound and accepted engineering practices due to the placement of the pedestrian push buttons and the absence of walk/don't walk indications, crosswalks, and school children warning signs. As a result, he concluded that the intersection was unsafe for pedestrian travel. He opined that the State's failure to perform adequate studies, to reduce the posted speed limit, to install crosswalk markings along with pedestrian traffic indications, and to properly place pedestrian push buttons on the eastern side of the intersection all contributed to the subject accident.

On cross-examination the witness admitted that section 200.2 of the MUTCD entitled "Guiding Principles" provides in paragraph (g) as follows:
Decisions on use of traffic control devices should be based on engineering studies. While this manual provides standards for design and application of traffic control devices, it is not intended to preclude use of sound engineering judgment. However, careful study and analysis will minimize the extent to which judgment must be relied on.
He agreed that sound traffic engineering judgment should be applied in decisions pertaining to traffic control devices but only in situations where studies are not otherwise mandated. He acknowledged that he did not know the number of Guilderland High School students that crossed the subject intersection on a daily basis prior to March 18, 1999. The witness related his understanding that the pedestrian push buttons at the subject intersection caused the lights to go red in all directions for at least six seconds although he was unsure of the timing interval at the intersection. In response to defense counsel's inquiry he stated that it would have been marginally safer for individuals to cross at the subject intersection as controlled on March 18, 1999 than outside it either east or west of the intersection on Route 146. He admitted that by law pedestrians crossing at an intersection have the right of way and that vehicular traffic must yield to pedestrians within an intersection.

The witness acknowledged that the purpose of forms TE 23 (Exhibit 10) and TE 24 (Exhibit 11) is to determine whether a speed limit should be lower than 55 mph. He admitted that the forms do not set a speed limit value but maintained that their use is mandated whenever a speed study is performed.

Mr. Gonseth stated that he agreed with the language contained in section VI (A) (1) of the 8/1/79 DOT directive (Exhibit 9) that the consensus opinion among traffic engineers is that the 85th percentile speed will almost always indicate the appropriate value for a speed limit. He also agreed with the direction contained in section VI (A) (2) of the directive which provides in part that any speed limit below the appropriate 85th percentile speed "should not be lower than 3 miles per hour below the upper limit of the 10 mile pace." Turning to Exhibit 11, the witness acknowledged that the instructions for completing form TE 24 (Highway Development Index and Geometric Factor Determination Sheet) indicate that where the highway Development Index and Highway Geometric Factor exceed specified values a speed zone is warranted and should be established at the 85th percentile speed using form TE 27 (Speed Data and Analysis Sheet). The witness then testified that the 85th percentile speed and ten mile pace figures collected during the speed studies conducted by DOT in 1985 (46.4/36-45 mph), 1987 (46.9/38-47 mph) and the two studies performed in 1994 (43.8/34-44 mph, 45.6/ 36-46 mph) all exceeded the posted speed of 40 mph within the study area. Regarding the roadside development classification set forth in Exhibit 11 the witness agreed with counsel that the term roadside development referred to development abutting the subject roadway and that Guilderland High School does not abut Route 146. With reference to Exhibit 10 Gonseth admitted that the form (TE 23) would be completed by inserting a yes or no answer in a box labeled "Pedestrian Movement" but maintained that the information imparted would indicate that the issue of pedestrian traffic had been evaluated as part of the speed study or that further consideration of the issue may be required.

Although the witness related that in his opinion a 40 mph speed limit in the area of the intersection was too high he admitted that he did not know what the proper speed limit should be but suggested that 30-35 mph would have been appropriate. He stated that 30 mph is generally the speed posted in urban areas but acknowledged that the subject intersection was located in a suburban area. He further admitted that if a traffic signal were already in place a modification of that signal to add a left turn arrow would not implicate a warrant pursuant to section 271 of the MUTCD.

Mr. Gonseth stated that walk/don't walk signals were not required to be installed in conjunction with pedestrian push buttons in 1973. Although he related his belief that subsequent changes to the MUTCD required their use he was unable to cite a specific provision in support of that position. The witness testified that an unmarked crosswalk is a crosswalk which is not indicated by pavement markings and that the intersection of Route 146 and School Road as it existed in March, 1999 contained an unmarked crosswalk between its southeast and northeast quadrants. He stated that the marking of crosswalks is not required under section 261.12[4] and that where the manual uses the term may, as in section 261.12, the matter is optional and not mandatory.

The witness indicated general familiarity with Part 236 of the MUTCD affecting school children and school crossing signs. He maintained, as he had on direct examination, that these signs should have been used east and west of the subject intersection. Defense counsel read into the record the following language from section 236.1 (a) (1) of the MUTCD: "These signs are for use, as necessary, to warn of crossing locations, or roadway sections, regularly used by substantial numbers of pedestrian (or bicycling) school children traveling to and from school." Although the witness acknowledged that he did not know how many children crossed the intersection on a regular basis he asserted that was why a pedestrian study was required. Counsel then pointed out that subparagraph 4 of the same section provides that a "W6-1 [school children warning] sign should not be used in advance of crossings where traffic is controlled by traffic control signals." He testified that the rationale underlying this particular provision of the manual is that an existing traffic control signal is already controlling traffic and thus providing pedestrians the opportunity to cross. Mr. Gonseth acknowledged that the presence of the traffic control signal at the subject intersection in March, 1999 afforded pedestrians the same sort of opportunity to cross Route 146.

The witness alleged that a marked crosswalk without school children warning signs would have reduced the 85th percentile speed and a warning sign alone would also have reduced the 85th percentile speed. He testified that the combined effect of a marked crosswalk, pedestrian signals and warning signs could have reduced the 85th percentile speed on Route 146 in the area of the School Road intersection by between five to seven miles per hour. He further alleged that based upon his experience people tend to use marked crosswalks when they are available.

On redirect examination the witness noted that the original effective date of section 273.4 of the MUTCD relating to pedestrian signals was 7/1/83 and offered an opinion that the pedestrian push buttons originally installed in 1973 at the subject intersection at the northwest and southwest quadrants did not comply with section 273.4 of the manual after 7/1/83.

The witness then read section 273.4 (a) (1) of the manual into the record:
(a) Mandatory warrants. Pedestrian indications shall be provided in conjunction with traffic control signals under any of the following conditions:

(1) When a traffic control signal is installed under the minimum pedestrian volume or school crossing warrant;
Gonseth stated that although he is not a psychiatrist he has investigated many accidents involving pedestrians and vehicles and he believes that pedestrians use marked crosswalks when they are available. He offered no statistical evidence to support that belief.

Claimants' next witness was Reed Sholtes, a 1989 graduate of Clarkson University with a Bachelor of Science Degree in Civil Engineering. The witness is a licensed engineer in New York State and has been employed by DOT since 1990. He testified that although he was familiar with the subject intersection he never visited the intersection in connection with his job duties with DOT prior to March 18, 1999. Claimants' attempt to introduce evidence of a post-accident study related to remedial measures taken by DOT with reference to the subject intersection was rejected upon defense counsel's objection. Whereupon this witness was excused.

William Vazal was called as claimants' next witness and stated that he holds a two year degree in Civil Technology from Hudson Valley Community College and has been employed continually by DOT since 1967 except for a two year tour of duty with the Armed Forces. The witness has conducted numerous speed studies after reviewing DOT's folder concerning the specific road under investigation. He alleged that after reviewing DOT's folder regarding Route 146 he conducted three separate studies near the subject intersection.

Referring to Exhibit 21 the witness noted that in preparing the accident diagram incident to a 1994 speed study he found no accident information in DOT's folder regarding any accidents between reference markers 1105-1110 in 1993. After being shown Exhibit 35, he testified that the police accident reports contained therein while all dated 1993 involved accidents beyond the reference markers he was reviewing. The witness stated that he did not conduct a formal linear speed zone study on April 15, 1994. Instead he performed radar surveys between 1:00 - 1:40 p.m. and 2:10 - 3:00 p.m. Mr. Vazal did not consider matters relating to pedestrians in performing his tasks at the intersection in 1994. He testified that neither William Logan nor his predecessor (Joseph Kelly) required a TE 23 or TE 24 to be completed when a linear speed zone below 55 mph was already in place at the site of the study. This witness was not cross-examined.

Claimants' next witness was Stephen Terplak who received a Bachelor's Degree from Clarkson University in 1969 and went to work for DOT shortly thereafter. From 1977 to 1996 the witness worked in the sign and signal design section of DOT. Thereafter he worked in the Traffic and Safety Division. He acknowledged that he received instructions to review existing signage and pavement markings governing the right hand lane of Route 146 at Meadowdale Road and that in response he visited the subject intersection specifically to determine the need for a suggested "right lane must turn right" sign (Exhibit 39). He did not consider signs or markings related to other issues. The witness prepared a sketch of the intersection based on his observations of existing signs and pavement markings and prepared a memorandum response indicating to State Police Sergeant Dennis Jones that the "right lane must turn right" sign requested by Trooper Thomas Jensen would be installed. He did not recall observing any pedestrians while he was at the scene. The witness was not cross-examined.

Following Stephen Terplak's testimony the claimants rested and defense counsel moved to dismiss the claim. The Court reserved decision on the motion. The motion is now denied.

The defendant requested that the Court take judicial notice of Vehicle and Traffic Law § § 1150, 1151 and 1152 before calling Raymond Gardeski as its first witness. Mr. Gardeski related his educational background which includes a Bachelor's Degree in Civil Engineering from Union College and a Master's Degree in Civil Engineering specializing in traffic and transportation from Penn State University. He is a registered professional engineer in New York and 17 other States. He is a fellow at the Institute of Transportation Engineers and a member of the New York and National Engineers Society as well as other professional organizations. His professional work experience included work for the New York State Department of Public Works which later became DOT. He has served as a Regional Director of Traffic Engineering for DOT, Regional Design Engineer and later as the Director of the Statewide Division of Traffic and Safety. He alleged that the Manual of Uniform Traffic Control Devices (MUTCD) was prepared and published under his direction. The witness left DOT in April 1989 to become Executive Vice President for a Baltimore, Maryland engineering consulting group. In 1991 he joined his present employer, Clough Harbor, as a partner specializing in traffic engineering. In preparation for this trial the witness reviewed documents; transcripts of examinations before trial; directives in effect in March 1999; conducted several site visits; reviewed the MUTCD and "investigated all the traffic engineering issues of this case, including looking at the accidents, the speed limits, the traffic control devices that were in place at the time, pavement markings and all the traffic regulations at that intersection." The witness was qualified as an expert without objection.

The witness identified Exhibit 9 as a DOT directive related to speed limits. He testified that the document provides for speed limits set below the 85th percentile speed only in limited circumstances as provided in section VI (A) (2) and discussed the reasons why the 85th percentile speed is recognized nationally as the accepted standard in fixing speed limits. The witness stressed that speed limits must be realistic to provide uniformity and to prevent unsafe passing and avoid speed differentials between vehicles using the same roadway. He acknowledged that traffic signals will affect the 85th percentile speed.

With reference to Exhibits 10 and 11 the witness testified that forms TE 23 and TE 24 were used to determine whether a reduction in speed below the 55 mph limit was warranted in a particular location. He stated that where the data collected in completing the forms indicates the need for a speed limit below 55 mph the actual value at which the speed limit is set is the 85th percentile speed.

The witness testified that Exhibits 15, 16 and 21 contain speed data analysis sheets. Exhibit 15 reflects an 85th percentile speed of 46.4 and ten mile pace of 36-45 mph. The speed data analysis sheet contained in Exhibit 16 demonstrates an 85th percentile speed of 46.9 mph and a ten mile pace of 38-47 mph. Exhibit 21's speed data analysis sheet shows two separate speed checks. The 85th percentile speed for check #1 was 43.8 mph and 45.6 mph for check #2 with ten mile pace speeds of 34-44 mph and 36-46 mph, respectively. According to the witness, the singular purpose of each of these three studies was to evaluate the existing 40 mph speed limit.

Gardeski opined to a reasonable degree of engineering certainty that the three studies were appropriate for their intended purpose and were conducted "in accordance with accepted and very good traffic engineering principles." He further opined that the posted 40 mph speed limit was an appropriate speed for the location based upon the 1985, 1987 and 1994 studies.

The witness stated that he studied documentation relating to the traffic signal at the subject intersection and discussed on the record its operation including the pedestrian push buttons which were in place at the intersection on the accident date. He described the pedestrian push buttons at the intersection in March 1999 as a "shared phase" signal in which pedestrians "crossed with the side road green." He testified that shared phase signals are quite common in the United States. He opined that the intersection of Route 146 and School Road was in compliance with the MUTCD on the date of the accident. He further opined that on the day in question the intersection was "in conformity with good and safe, reasonable engineering principles." He testified that the subject intersection was in compliance with Section 273 of the MUTCD, particularly section 273.1 (b) regarding traffic signal control of pedestrian crossings.

The witness discussed the various crossing options which were available to pedestrians at the intersection on the accident date. He testified that an unmarked crosswalk occurs at all intersections. He stated that at the Route 146/School Road intersection pedestrians were permitted to cross from either the southeast or northeast corners by observing the traffic signal and crossing when the side roads (School and Meadowdale) received a green indication. A pedestrian seeking to cross Route 146 could also utilize the push buttons on the northwest and southwest quadrants. He opined that the intersection was safe for pedestrian traffic based upon his experience and his review of the signal operation. He also determined that the duration of the side road green phase was adequate for pedestrians to safely cross the roadway. The witness noted that correspondence he reviewed indicated that DOT notified the appropriate police authorities concerning motorists traveling above the posted speed limit and of the need for proper enforcement by the police.

On cross-examination the witness conceded that the speed limit in the area being considered was established prior to 1971 by DOT as a linear speed zone and that the area in question remained a linear zone in March 1999. He testified that as part of its standard procedures prior to the establishment of a linear speed zone DOT would have "looked into the adjacent development, the conditions of the roadway, if it was a 55 mile limit going to a 40 mile limit . . . [t]hey would have looked into marginal development and made out the appropriate forms at that time to indicate if a reduced speed was warranted. And they would have established the speed limit based upon the 85th percentile speed."

He testified that the development of the Park Guilderland complex would have produced an anticipated increase in vehicular and pedestrian traffic at this intersection. He was aware of the location of Guilderland High School approximately 1500 feet south of the intersection and believed that the student population of that school had increased since 1971. In response to a question whether in light of the proximity of the high school he would anticipate school children and other pedestrian traffic at the intersection the witness responded that some additional pedestrian traffic could be anticipated but that he believed most students were bused since it is a central school.

The witness had some recollection from his review of the files of a study concerning the possible need for sidewalks following receipt of a complaint regarding pedestrian activity along Route 146. He was then asked to review Exhibit 40 (Traffic Volume Report) and testified that it shows traffic volume increases and decreases over the eleven year period covered but refused to characterize the overall increase as significant.

The witness acknowledged that his earlier testimony that forms TE 23 and TE 24 were not required to be completed if the area being studied already had an established linear speed zone is in apparent conflict with the August 1, 1979 Directive (Exhibit 9) and further admitted that the provision of Exhibit 9 requiring use of the forms remained unchanged even though the directive was subsequently amended and supplemented. He also acknowledged that there are no records to demonstrate that an 85th percentile speed study was ever conducted at the specific accident site prior to March 1999 and admitted that the record is devoid of any proof that a pedestrian study was conducted at or near the subject intersection, including a study to determine that the minimum pedestrian volume warrant was indicated.

Contrary to the testimony of claimants' expert, Gardeski testified that neither a marked crosswalk nor a school children advisory sign would have affected the 85th percentile speed but that pedestrian indications (i.e., walk/don't walk lights) might have affected it. He repeated his earlier testimony that there was neither a speed zone study nor an 85th percentile speed calculated for the location of claimant's accident despite DOT's knowledge of increased vehicular traffic at the location and the proximity of Guilderland High School.

He offered an explanation that the minimum pedestrian volume warrant referred to earlier has no application where there is an existing traffic signal but instead applies only when a traffic control signal is initially being installed. Gardeski testified, however, that minimum pedestrian volume was considered in 1973 when the pedestrian actuation devices (push buttons) in the signal were installed at this intersection by DOT. He acknowledged that when the push buttons were installed there were no existing sidewalks and only minimal curbing in the area where the push buttons were located.

The witness testified that the sidewalk along the east side of School Road was installed in 1988 but that no crosswalk markings existed at the intersection prior to this accident and no pedestrian push buttons were installed on the east or sidewalk side of the intersection. He discovered no evidence in the record of pedestrian counts having been conducted in the area of this accident between 1973 and March 18, 1999, and no notations regarding pedestrian issues were made in the speed studies. The witness stated that if pedestrian crossing problems had been detected during those studies the person conducting the study would have noted the problem. Similarly if a pedestrian problem had been observed during the study concerning installation of the "right lane must turn right" sign it too would have been noted. He admitted that knowledge of pedestrians would have been important with reference to both the left turn arrow installation and the "right lane must turn right" sign installation.

The witness asserted, however, that pedestrian data was not essential to the left turn arrow installation because pedestrians were accommodated on the opposite side (southwest) of the intersection through the pedestrian push buttons and actuated phase. Pedestrians were not in conflict with left turning vehicles if the southwest to northwest unmarked crossing was used. With reference to pedestrians on the southeast quadrant the witness stated that the left turn arrow was stopped when the side road (School Road/Meadowdale Road) was governed by a green signal indicator. The witness again acknowledged that no pedestrian data was collected or analyzed by DOT at the subject intersection with reference to the addition of the left turn arrow, the modification to a four-faced signal when Park Guilderland was constructed or during routine maintenance of the signal. He further admitted that there was no record proof that any analysis was performed regarding the need for pedestrian indications when the pedestrian push buttons were installed.

After examining Section 1151(a) of the Vehicle and Traffic Law which requires drivers to yield to pedestrians only when traffic control signals are not in place or not in operation the witness stated he believed there was another section of the law which addressed pedestrians crossing at a traffic signal.

On redirect examination Gardeski testified that the speed studies of Route 146 were conducted west of the subject intersection in order to study traffic in a free flowing condition unimpeded or influenced by the traffic signal at the intersection. The witness further explained that the installation of the "right lane must turn right" sign improved conditions for pedestrians at the intersection by legally prohibiting use of the right lane by westbound traffic for passing vehicles turning left onto School Road.

The recross examination of the witness was inconsequential.

The defendant's final witness was Darcy Thomas. She testified that after attending Guilderland High School on March 18, 1999 she returned to her home by school bus, changed her clothes and left home in her automobile to go to her place of employment at Westmere Elementary School. She recalled that the traffic signal at the intersection of School Road was green for her lane of travel as she proceeded easterly on Route 146. She testified that two cars and a truck were stopped in the left lane of Route 146 westbound and described the accident involving the claimant as follows:
Okay. So I'm approaching the light, it was green. And I went straight through the light. And I noticed that these cars were backed up, I'm assuming someone was taking a left-hand turn. And as I went through the light, out came this kid behind the white truck, and I hit him.
On cross-examination Ms. Thomas stated that she was aware of the deli at Park Guilderland but did not go there during school hours. She recalled sometimes seeing students walking along Route 146 going to the deli. When asked if she ever saw students leaving school walking along School Road she replied, "Not that many."

At the close of Ms. Thomas's cross-examination the defense rested and renewed its previous motion to dismiss the claim. The Court again reserved decision and now denies the motion.

The State is under a non-delegable duty to maintain its roadways in a reasonably safe condition for the traveling public (see, Friedman v State of New York, 67 NY2d 271; Hough v State of New York, 203 AD2d 736). This duty extends to pedestrians as well as motorists (see, O'Connor v State of New York, 126 AD2d 120; Sanford v State of New York, 94 AD2d 857) and includes the design, installation, operation and maintenance of traffic control devices to regulate, warn and guide vehicular and pedestrian traffic at intersections under the State's control (see, Vehicle and Traffic Law § 1681; Wood v State of New York, 112 AD2d 612). The State, however, is not an "insurer of the safety of its roads and no liability will attach unless the ascribed negligence of the State in maintaining its roads in a reasonable condition is the proximate cause of the accident" (Hearn v State of New York, 157 AD2d 883, 885, lv denied 75 NY2d 710). A highway may be considered "reasonably safe when people who exercise ordinary care travel over it in safety" (Boulos v State of New York, 82 AD2d 930, 931).

The Vehicle and Traffic Law permits but does not require pedestrians to cross a roadway within a marked or unmarked crosswalk[5] when facing any steady green signal (Vehicle and Traffic Law § 1111 (3)) and vehicles are required to yield the right of way to pedestrians within a crosswalk (Vehicle and Traffic Law § 1151). A pedestrian crossing a roadway at a location other than a marked or unmarked crosswalk is required to yield the right of way to all vehicular traffic (Vehicle and Traffic Law § 1152 (a)) and assumes a heightened duty to exercise somewhat greater care for his own safety than one who crosses within a crosswalk (Baker v Close, 204 NY 92; Hogeboom v Protts, 30 AD2d 618). A threshold determination is required prior to applying the heightened duty of care in a matter involving an infant injured while crossing outside a marked or unmarked crosswalk (Chandler v Keene, 5 AD2d 42).

Further, it is well settled that "in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision" (Friedman v State of New York, supra at 283). "Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan" (Friedman v State of New York, supra at 284). Absent such proof "a design or plan formulated in the exercise of governmental discretion may not give rise to liability in negligence" (Puliatti v State of New York, 91 AD2d 1192; Redcross v State of New York, 241 AD2d 787, 788 quoting Niles v State of New York, 201 AD2d 774, 774-775).

In Tomassi v Town of Union, 46 NY2d 91, the Court of Appeals stated:
The design, construction and maintenance of public highways is entrusted to the sound discretion of municipal authorities and so long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied (Annino v City of Utica, 276 NY 192, 196; Boyce Motor Lines v State of New York, 280 App Div 693, 696, affd 306 NY 801). The liability of a municipality begins and ends with the fulfillment of its duty to construct and maintain its highways in a reasonably safe condition, taking into account such factors as the traffic conditions apprehended, the terrain encountered, fiscal practicality and a host of other criteria.
Notwithstanding the adequacy of a traffic study or the reasonableness of a particular traffic plan when implemented, the State is under a continuing duty to abate a dangerous condition of which it receives actual or constructive notice or which becomes apparent in light of the plan's actual operation. "This conclusion flows logically from the premise that the State has a nondelegable duty to maintain its roads in a reasonably safe condition . . . and it applies even if the design in question complied with reasonable safety standards at the time of construction." (Friedman v State of New York, 67 NY2d 271 supra at 286).

In the instant case claimants offered no evidence indicating that the subject intersection was not designed, constructed, controlled or signed "in accordance with standards existing at the time of its construction" (Pagano v New York State Thruway Auth., 235 AD2d 408, 409 ; see also, Merino v New York City Tr. Auth., 218 AD2d 451). The evidence which was presented demonstrates that the pedestrian push buttons were installed in the early 1970s around the time that the Park Guilderland Apartments and Shopping Center were constructed. According to the testimony there was no sidewalk adjacent to School Road at the time the push buttons were installed and consequently pedestrian traffic would have been required by law to travel on the western shoulder of School Road facing traffic as they approached the intersection. Mr. Logan testified to this effect and further stated that an important consideration in placing the push buttons was that they be located in a position which would expose pedestrians to the area of least intense vehicular traffic. He testified that it was therefore reasonable at that time to locate the pedestrian push buttons for the traffic control signal on the southwest and northwest corners of the intersection. While due primarily to the unavailability of documentation, no proof was offered by either party to show that the State engaged in a study of pedestrian traffic prior to the installation of the push buttons. The fact that they were installed in apparent conformity with conditions then existing demonstrates to the Court's satisfaction that there was a reasonable basis for their placement on the western side of the intersection. Thus, the State is immune from liability as to the original placement of the push buttons on the southwest and northwest corners of the intersection.

The lynchpin of the claim herein is claimants' contention that the State knew or should have known that large numbers of students were crossing Route 146 and that a substantial number were crossing outside the intersection in the same manner as did the claimant on the date of the accident. According to the claimants, installation of the sidewalk leading from Guilderland High School to the southeast corner of Route 146 facilitated this alleged increase in the number of students crossing at the School Road/Route 146 intersection and resulted in a change in character which necessitated action by the State to address what had over time become a dangerous condition. Specifically, claimants contend that pedestrian push buttons should have been installed at the intersection's northeast and southeast quadrants along with a marked crosswalk, warning signs, pedestrian "walk/don't walk" indicators and a reduced speed limit.

First, the Court is satisfied that the claimant had been instructed both by his parents and at school that the safest means for crossing a roadway was at an intersection. He was familiar with the intersection and appeared at trial to be a bright and mature individual.

Secondly, the Court finds that the Noseworthy doctrine (Noseworthy v City of New York, 298 NY 76) is not applicable under the circumstances of this case as the testimony of eyewitness Bruce Halsdorf concerning the happening of the accident was equally available to both parties (Ether v State of New York, 235 AD2d 685).

With regard to the presence of substantial numbers of students crossing Route 146, the claimants presented only anecdotal proof wholly inadequate to sustain their allegations. Bruce Halsdorf testified that the number of students crossing at the intersection varied and offered no specific testimony as to how many students would cross in an average day, week, month or year. Nor did he testify with any clarity as to how long students had been crossing in such numbers or what percentage crossed at the intersection as opposed to the area in front of his service station.

In this regard the claimant testified that he would pass "a few students" going to and from the Park Guilderland complex prior to March 18, 1999 and that he observed other students returning to Guilderland High School from the deli "every once in a while. I can't explicitly like remember one occasion, but I know they did go to and from the school." Claimant's mother testified only that she observed students crossing Route 146 at the intersection on those occasions when she picked Matthew up at school. Finally, Darcy Thomas testified that she observed students going to the deli "sometimes, not that much." In response to a question as to whether she ever saw students leaving school walking along School Road Ms. Thomas answered "not that many."

Claimants assert that the State failed to adequately study pedestrian issues in relation to various speed studies and installation of the left turn signal in 1989 and the "right lane must turn right" sign in 1997. If proper studies had been conducted, the claimants argue, the defendant would have observed substantial numbers of students crossing at or outside the intersection and taken the corrective measures outlined by claimants' expert. The proof with regard to the number of students crossing at the intersection is, however, insufficient to establish this proposition.

Claimants did not proffer proof showing that the defendant received any complaints regarding the safety of pedestrians at the intersection whether from representatives of Guilderland High School, Mr. Halsdorf, students, parents, bus drivers or motorists. Although claimants submitted proof of an increase in traffic on Route 146 in the area of the intersection between 1985 and 1996, there was no evidence of accidents involving pedestrians at the intersection before or after installation of the pedestrian push buttons in 1973 through the date of the accident involving the claimant in March, 1999 (see, Niles v State of New York, 201 AD2d 774). This despite installation of the sidewalk along the eastern edge of School Road in 1988.

In the absence of actual notice, the State may be found liable for injuries sustained due to its failure to remedy a dangerous condition where the condition is both visible and apparent and has existed for such a period of time that in the exercise of reasonable care it should have been discovered and remedied (Fowle v State of New York, 187 AD2d 698; Rinaldi v State of New York, 49 AD2d 361; Mickle v New York State Thruway Auth., 182 Misc 2d 967). As stated previously, the proof proffered by claimants is wholly anecdotal in nature and simply inadequate to establish the visible and apparent nature of student use or misuse of the intersection in crossing Route 146 or that, if such a condition were found to exist, it persisted for such a period of time that it should have been discovered and remedied. Accordingly, the Court finds that the claimants have failed to meet their burden of establishing the existence of a dangerous condition of which the State had either actual or constructive notice.

Furthermore, the speed studies conducted by DOT determined that the 85th percentile speed on Route 146 in the area of the intersection was 46.4 mph in 1985 (Claimants' Exhibit 15); 46.9 mph in 1987 (Claimants' Exhibit 16); and 43.8 mph and 45.6 mph in two separately timed studies in 1994 (Claimants' Exhibit 21). Claimants' expert testified that he was not able to specifically state a particular speed limit which should have been established at and near the intersection. However, he opined that had the State installed warning signs, "walk/don't walk" indications and a marked crosswalk, the 85th percentile speed in the area of the intersection would have been reduced by 5 -7 mph. Claimants' expert recognized the 85th percentile speed as the standard in establishing linear speed zone values and was unable to cite any specific basis for his opinion regarding the reduction in speed realized as a result of the suggested remedial measures.

With regard to the 40 mph speed limit governing the area of Route 146 at its intersection with School Road, the speed data collected by DOT establishes an average 85th percentile speed in excess of 40 mph. Although claimants' expert recommended a speed limit of 30-35 mph, item VI (2)(a) of the DOT directive (Exhibit 9) provides that a speed limit established at less than the 85th percentile speed "should not be lower than 3 miles per hour below the upper limit of the 10 mile pace." The 10 mile pace figures related in Exhibits 15 (36-45 mph), 16 (38-47 mph) and 21 (34-44 mph and 36-46 mph) reveal that the 40 mph speed limit was not only supported by the 85th percentile speed data but also that a limit below 40 mph was inappropriate because it would exceed the direction contained in item VI (2)(a) that a limit other than one established pursuant to the 85th percentile speed should not be set at a value "lower than 3 miles per hour below the upper limit of the 10 mile pace."

Moreover, the claimants have not established that any of the remedial measures recommended by Mr. Gonseth were required. Vehicular signal indications are an appropriate method for facilitating pedestrian crossing of roadways (17 NYCRR § 273.1 (b) (1)) including students approaching the southeast quadrant via the sidewalk on the east side of School Road or crossing Route 146 from the northeast quadrant. Pedestrian signal indications ("walk/don't walk") are mandated in certain circumstances and permissive in others (17 NYCRR § 273.4 (a) and (b)). Claimants' expert testified that pedestrian indications were appropriate under the permissive warrants provided for in section 273.4 (b). Logically, however, the installation of pedestrian indications under subdivision (b) is discretionary (permissive). In addition, the expert failed to address the particular paragraph(s) within § 273.4 (b) which justified or necessitated the installation of pedestrian indications.

An unmarked crosswalk existed at the Route 146/School Road intersection. The MUTCD provides that a marked crosswalk should be used where there are substantial pedestrian crossing movements (17 NYCRR § 261.12 (a) (1) (i)) or at intersections where there are substantial conflicts between vehicular and pedestrian movements (§ 261.12 (a) (1) (iii)). Contrary to the contention of claimants' expert, the manual provides that the "primary function of crosswalk markings . . . is to guide pedestrians into proper crosswalk paths" (§ 261.12 (a) (1) (ii)). As stated earlier, the proof of "substantial pedestrian crossing movements" at the intersection at issue is simply not adequate to sustain a determination either that the State should have known of or discovered the existence of a dangerous condition or, in this respect, that a marked crosswalk was required. The same is true with regard to the existence of substantial vehicle/pedestrian conflicts at the intersection. The fact that vehicles were permitted to turn right onto Route 146 from School Road when facing a red signal does not create a substantial vehicle/pedestrian conflict. Vehicle and Traffic Law § 1111 (d) (2) permits right turns on red everywhere in the State except in a city having a population of one million or more. Vehicles may turn right when facing a steady red signal unless specifically prohibited at a particular location and "shall yield the right-of-way to pedestrians within a marked or unmarked crosswalk at the intersection."

The claimants also failed to establish that pedestrian or school children crossing signs were required by any reference to applicable provisions of the manual or engineering standards. In fact, as brought out on cross-examination, section 236.1 (a) (4) provides that school children crossing signs "should not be used in advance of crossings where traffic is controlled by traffic control signals." The Court notes that the driver who struck Matthew Hannon was herself a student at Guilderland High School and thus was aware of the school's proximity to the intersection and the possibility that pedestrians might cross the intersection.

Finally, the Court is not convinced that the State was required to study pedestrian crossing issues when conducting the speed studies undertaken in 1985, 1987 and 1994. Even if the defendant's employees failed to comply with the mandatory provisions of the August 1, 1979 DOT directive requiring completion of forms TE 23 and TE 24 such failure is only some evidence of negligence if the failure to comply therewith is shown to be a proximate cause of the accident (Fox v Lyte, 143 AD2d 390; Piarulli v Lason, 35 AD2d 605). There is no basis in the proof for concluding that in completing those forms the State would have become aware of a dangerous condition involving pedestrians at the intersection. Similarly, although claimants argued that pedestrian movement should have been studied when the left turn signal was installed, a traffic control signal was already in place at the intersection. The minimum pedestrian volume warrant in 17 NYCRR 271.5 merely establishes the conditions under which the installation of a traffic control signal may be justified (see, 17 NYCRR § 271.2 (a)).

The Court concludes that the State fulfilled its duty to provide pedestrians such as the claimant a reasonably safe place to cross Route 146 both at the time the pedestrian push buttons were first installed in 1973 and at the time of claimant's accident on March 18, 1999. Claimant was struck by an eastbound vehicle while crossing Route 146 outside its intersection with School /Meadowdale Roads. This particular intersection existed since at least 1973 without incident or complaint regarding the safety of crossing pedestrians or the existence of vehicle/pedestrian conflicts. In returning to school on the afternoon of March 18, 1999 the claimant had available to him a reasonably safe place to cross whether with a green signal facing him at the northeast quadrant of the intersection or by using the push button at the northwest quadrant which the testimony established was present and in working order. In either circumstance claimant could have safely crossed Route 146 while eastbound traffic, including Darcy Thomas's vehicle, was governed by a steady red signal. The contention of claimants' expert that the presence of a marked crosswalk between the northeast and southeast quadrants would have induced the claimant to cross at the intersection rather than 30 - 40 feet outside it is plain speculation.

The State's duty was to provide claimant and other pedestrians a reasonably safe means to cross Route 146. As it is not an insurer of the safety of persons upon its highways the State may not be found liable for a failure to act which would have only resulted in providing the public more complete protection (Schwartz v New York State Thruway Auth., 61 NY2d 955). While any public roadway may theoretically be made safer, the duty of the State is fulfilled by the exercise of reasonable care and foresight (Tomassi v Town of Union, 46 NY2d 91, supra) and liability may not be established upon proof which represents a mere choice between conflicting expert opinions (Affleck v Buckley, 96 NY2d 553; Weiss v Fote, 7 NY2d 579).

The claim is dismissed for the reasons stated above. All motions not previously ruled upon are denied.

The Clerk of the Court is directed to enter judgment in accord with this decision.

April 29, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1]Claimants Donald Hannon and Kathy Hannon brought this action on behalf of their son Matthew who was an infant at the time the claim was filed. They also assert a joint derivative cause of action. References to claimant in the singular are deemed to refer to Matthew Hannon unless otherwise noted. During the pendency of the claim Matthew Hannon attained his majority.
[2]The witness reported the reference marker closest to the subject intersection was 1111.
[3]Exhibit 35 also included a copy of an MV-104 filed by one of the involved operators.

[4]Section 261.12 (a) (1) (i) of the MUTCD effective 7/1/83 and on the date of claimant's accident provides: "Crosswalks may be marked at locations where there is substantial pedestrian movement, where it is desirable to indicate to pedestrians the proper place to cross, or at intersections where conflict between vehicular and pedestrian movements is a factor".

[5]The term "crosswalk" is defined in Vehicle and Traffic Law § 110 (a) as: "That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway between the curbs or, in the absence of curbs, between the edges of the traversable roadway" (see also, Vehicle and Traffic Law § 120; Fan v Buzzitta, 42 AD2d 40).