New York State Court of Claims

New York State Court of Claims

HARRIGAN v. THE STATE OF NEW YORK, #2003-015-578, Claim No. 99490


Synopsis


Court determined State was liable for injuries sustained by 85 year old pedestrian injured while crossing a State highway equipped with a defective crosswalk indication. Court directed entry of interlocutory judgment.

Case Information

UID:
2003-015-578
Claimant(s):
SCOTT E. HARRIGAN, Guardian of the Person and/or Property of WILLIAM JOHN HARRIGAN
Claimant short name:
HARRIGAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99490
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Fischer, Bessette & Muldowney, LLPBy: Richard F. Hunter, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Edward F. McArdle, Esquire Assistant Attorney General
Third-party defendant's attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
The trial of this claim was bifurcated by order of the Court dated August 14, 2002 and the decision herein addresses the issue of liability only.

The claim arises from a vehicle/pedestrian accident which occurred in the westbound lanes of State Route 37 at its intersection with Route 420 (Main Street) in Massena, New York on May 30, 1998. Route 37 in the area of the accident contains two lanes for eastbound traffic and two lanes for westbound traffic which are separated by a grass median. A marked crosswalk is located immediately west of the Route 37/420 intersection and spans the full width of the east and westbound lanes of Route 37. Pedestrian signals are located adjacent to the shoulder of both lanes of traffic as well as within the median. It is alleged that on the evening of May 30, 1998 the claimant[1]
was returning to his home on Main Street north of Route 37 when he crossed the eastbound lanes of traffic and arrived at the median. Mr. Harrigan was crossing the westbound lanes of Route 37 within the crosswalk when he was struck by a vehicle driven by Louis Kedovary. The claimant was 86 years old at the time of the incident and is alleged to have sustained serious personal injuries. The defendant stipulated at trial to the existence of predicate facts under Noseworthy v City of New York, 298 NY 76.
The accident involving Mr. Harrigan was witnessed by Sarah Markell and Philip Treers who were traveling in Ms. Markell's vehicle in the right lane of Route 37 eastbound traffic preparing to turn right onto South Main Street. Ms. Markell testified at her examination before trial, a transcript of which was received in evidence, that her vehicle was stopped at the red light at the intersection of Routes 37 and 420 when she happened to look to the left where she saw Mr. Harrigan standing in the median facing north near the westbound lanes of Route 37. Ms. Markell stated that she had seen Mr. Harrigan before the night of May 30, 1998. On those other occasions she stated that Mr. Harrigan "would be kind of standing on the side of the road in Massena, walking at a very slow pace, you know, kind of just around town. This particular night he - it was almost like he was shuffling to kind of try to get out of the way or get crossed before the vehicle had went across the intersection and, you know, kind of got caught in, you know, - in the way."

Ms. Markell testified that she watched Mr. Harrigan crossing the westbound lanes of Route 37 and first noticed the Kedovary vehicle when it was eight to nine feet away from the claimant. She then observed the front left corner of the Kedovary vehicle strike the claimant throwing him to the ground in the southerly or left hand lane of Route 37 West. She estimated that the Kedovary vehicle was traveling at a speed of 10 to 15 miles per hour at the time of the collision. Ms. Markell confirmed that the claimant was within the crosswalk at the time he was struck by the Kedovary vehicle and stated that she observed the claimant enter the westbound lanes of Route 37 shortly before the traffic signals governing Route 37 traffic turned from red to green.

Philip Treers testified that on the evening of May 30, 1998 he was a passenger in the vehicle operated by Sarah Markell in the southerly or right hand eastbound lane of Route 37 approaching the intersection of Routes 37 and 420. Mr. Treers testified that he first observed Mr. Harrigan from a distance of approximately 300 feet just as the claimant was about to enter the median. According to Mr. Treers the Markell vehicle then began to slow as it approached the intersection in response to a red light controlling eastbound Route 37 traffic. During this period Mr. Treers observed the claimant cross the median at what he described as a casual pace and continue across the first lane of Route 37 West. Mr. Treers indicated that as the claimant crossed the first lane of westbound traffic the light governing Route 37 eastbound traffic turned green. According to Mr. Treers, the claimant continued across Route 37 within the marked crosswalk and was struck by a vehicle proceeding westbound on Route 37. The witness testified that in his opinion the intersection was not well lighted and he could not recall hearing either the squeal of brakes or the sound of a horn prior to impact. Mr. Treers did not notice whether the claimant attempted to utilize the pedestrian push button located within the median nor did he notice whether the claimant looked in the direction of westbound traffic prior to leaving the median.

On cross-examination the witness testified that when he first saw Mr. Harrigan the light governing traffic proceeding north on Main Street was green. Mr. Treers continued to observe the claimant as he attempted to cross Route 37 out of concern for his safety related to the poor lighting condition at the intersection. Mr. Treers agreed with defense counsel that Sarah Markell was better positioned to observe the claimant as he crossed the median and enter the westbound lanes of Route 37 and confirmed that Mr. Harrigan was within the marked crosswalk at the time he was struck.

The claimant called Raymond Powers, Regional Traffic Engineer for Department of Transportation (DOT) Region 7. Mr. Powers testified that in 1997 the various traffic signals located at the intersection of Routes 37 and 420 were rebuilt by a contractor hired by the State. In September 1997 the work performed by the contractor was inspected and subsequently accepted by DOT. He testified that as part of the normal inspection process the inspector accepting the contract work was responsible for ensuring that the signals were properly wired. He acknowledged, however, that the pedestrian crossing signals at the intersection were miswired at the time the work was accepted in September of 1997. Mr. Powers reviewed Exhibit 5 which is a photograph showing a pedestrian push button mounted on a pole within the median between the east and westbound lanes of Route 37. Also mounted on the pole above the push button is a sign which at the top indicates "To Cross Push Button" and contains an arrow pointing up which Mr. Powers agreed is an instruction that the button should be pushed to secure a walk signal permitting a pedestrian to cross the westbound lanes of Route 37. Mr. Powers testified that due to the miswiring an individual pressing the pedestrian push button located in the median and depicted in claimant's Exhibit 5 would not receive a walk indication permitting him or her to safely cross the westbound lanes of traffic. In fact, a pedestrian who pushed the button depicted in Exhibit 5 would never receive a walk signal allowing him or her to proceed northerly from the median across the westbound lanes of Route 37.

Claimant next proffered Exhibit 8 which Mr. Powers identified as a traffic signal maintenance sheet dated May 29, 1998, the day preceding the date of claimant's accident. The witness testified that the Department of Transportation inspected the signals governing the intersection on May 29, 1998 and acknowledged that at that time its employees failed to discover or correct the miswiring of the walk/don't walk signal and the pedestrian push button. He agreed with claimant's counsel that a walk/don't walk signal and pedestrian push button are safety devices intended to provide pedestrians a means for safely crossing a roadway. Mr. Powers related that the devices are installed to ensure pedestrian safety by avoiding pedestrian/automobile accidents.

The witness was asked to review Exhibit 1 which is a photograph taken from a perspective looking east at approaching westbound Route 37 traffic and showing the intersection and the signals controlling traffic therein. Mr. Powers stated that an individual within the median would be able to view only the backs of the signal heads governing westbound traffic. He also related that the signal heads controlling east and westbound traffic were not synchronized so that traffic proceeding eastbound could be subject to a red signal face at the same time westbound traffic was governed by a green signal and vice-versa.

On cross-examination the witness related that the miswiring of the pedestrian push button occurred prior to the time the signal rebuilding work was accepted by DOT in September 1997. He described the sequencing of the traffic signals governing the intersection of Routes 37 and 420 as "a fairly complex eight phase phasing". According to Mr. Powers, the color of the signal face controlling a particular direction of travel was primarily controlled by traffic detectors which sense the presence or absence of vehicle traffic and adjust the signal accordingly. The witness testified that he has visited the site of claimant's accident and that a pedestrian is not able to directly view the signal face controlling westbound traffic on Route 37 from the median. According to the witness, a pedestrian standing in the median could view only the backs of the signal faces controlling westbound traffic.

Mr. Powers then reviewed Exhibit 8, the traffic signal maintenance sheet dated May 29, 1998 on which it is noted "storm on flash circuit failure on 03 rest all okay". Mr. Powers testified that the comment reflected that the signal had automatically placed itself in flash mode when it detected a problem. He stated that the individual employees performing the signal maintenance duties reflected in Exhibit 8 on May 29, 1998 were not required to specifically check the pedestrian indicators.

Claimant next called Mr. Garth Griffin, a former State Police Officer hired by the claimant to investigate the circumstances surrounding the claimant's accident. Mr. Griffin testified that he had visited the scene on several occasions, including at night. He stated that he devoted significant attention to the pedestrian push button and pedestrian signals at the intersection and that during one of his inspection visits he noticed that pedestrian push buttons were mounted on both sides of a pole located in the median separating the east and westbound lanes of Route 37. Through trial and error he determined that in order to secure a walk indication, an individual seeking to cross the westbound lanes of Route 37 in a northerly direction was required to press the push button located on the northerly side of the pole normally used by pedestrians seeking to cross the eastbound lanes of Route 37 in a southerly direction. Similarly, a pedestrian in the median proceeding south could obtain a walk indication from the pedestrian signal located adjacent to the eastbound lanes of Route 37 only by pressing the pedestrian push button located on the south side of the median pole. Mr. Griffin concluded that the miswiring of the signal controller had, apparently, reversed the interaction between the push buttons and the pedestrian signal heads which they controlled.

Mr. Griffin testified that while standing in the median a pedestrian was unable to determine the status of the signal lights governing westbound traffic on Route 37. According to the witness an individual standing in the median would only see the back of the signal housing for the signal faces controlling westbound traffic. He stated that although a pedestrian was able to view the signal faces controlling eastbound Route 37 traffic he determined from his observations at the scene that the east and westbound traffic signals were not synchronized in such a manner that a pedestrian could determine from looking at the signal faces controlling eastbound traffic the status of the signal faces controlling westbound traffic. He also stated that from the median an individual was unable to view the signal faces controlling north and southbound traffic on Route 420.

Following his investigation of the scene Mr. Griffin notified the Massena Police Department regarding the cross wiring of the pedestrian push buttons within the median of Route 37. After demonstrating the problem for Massena police officers who had accompanied him to the scene he was assured by the officers that they would notify DOT of the existence of the problem the next morning. Mr. Griffin also notified the DOT of the problem the next day.

On cross-examination Mr. Griffin testified that Route 37 was straight as it approached the intersection of Route 420 from the east and he estimated that a pedestrian standing in the median could observe westbound traffic approaching the intersection from a distance of approximately 1/8th of a mile. Although the witness had testified on direct that a light pole and various signs located within the median could obstruct a pedestrian's view of oncoming westbound traffic he agreed on cross-examination that a clear view could be obtained by a pedestrian within the median by moving slightly to the north and nearer to the shoulder of the westbound lanes. The witness testified that in his opinion the intersection was adequately lighted. He also stated that he was unable to determine from his investigation whether Mr. Harrigan utilized the pedestrian push button in the median in attempting to cross the westbound lanes of Route 37 on the evening of May 30, 1998. The witness testified that from the median at night a pedestrian could observe a "faint glow" of light emanating from the signal head controlling traffic on Route 420 as well as a glow of light from the visors mounted over the signals controlling westbound Route 37. Using these visual cues an individual might be able to determine the status of the signal face governing the westbound approach to the intersection. Finally, Mr. Griffin testified that although the intersection was lit by street lights the light shone only indirectly on the crosswalk spanning the westbound lanes of Route 37.

The claimant next called Raymond L. Lee, Jr. as its expert Dr. Lee testified that he is an Adjunct Professor in the Division of Mathematics at the U.S. Naval Academy in Annapolis, Maryland and that the bulk of his professional career has involved the study of light, its transmission through the atmosphere and "how people perceive the consequences of that transmission and interaction with the atmosphere". The witness has studied visual perception under reduced light conditions and the effect of age upon a person's perception of objects under nighttime roadway conditions.

Dr. Lee asserted expertise in the study of human factors which he described as the manner in which individuals interact with the environment, whether natural or man-made, including roads and walkways. The witness testified that he has twice addressed the National Transportation Safety Board on reduced visibility accidents on highways. He described the circumstances underlying claimant's accident on May 30, 1998 as meeting the definition of a reduced visibility accident in that nighttime driving and walking constitute a more demanding activity than when performed during the daytime. The witness stated that the study of human factors is a recognized scientific discipline which is the subject of peer reviewed journals, including literature pertaining to pedestrians, pedestrian reaction times and pedestrian behavior. Finally, the witness related that he has previously testified concerning similar subjects in the Court of Claims.

Under voir dire
conducted by defense counsel Professor Lee stated that he holds a Doctorate in Meteorology with a speciality in atmospheric optics. He testified that he has also published various articles in peer reviewed publications concerning vision and visibility and has addressed the National Transportation Safety Board and worked with the National Research Council on surveys of research literature addressing reduced visibility and its effect on drivers and pedestrians. At the conclusion of voir dire the Court qualified Dr. Lee as an expert entitled to provide his opinion concerning (i) issues related to the claimant's ability to accurately perceive the speed and position of oncoming traffic and (ii) the claimant's ability to accurately perceive the extent to which he was visible to approaching traffic.
Dr. Lee testified that pedestrians' assumptions concerning the extent to which they are visible to drivers are often subject to mistake and exaggeration. Although it was not possible to know Mr. Harrigan's specific thoughts at the time of the accident, Dr. Lee testified that it is typical of pedestrians to have an exaggerated idea of the distance at which they can be viewed by oncoming traffic. Often a pedestrian assumes that they can be seen equally as well as they may be able to view an oncoming vehicle. This perception or misperception increases with age and the decline of visual acuity and contrast sensitivity. According to the witness, when combined with a decrease in cognitive processing speed these conditions make it more difficult for elderly pedestrians to accurately perceive the location and speed of oncoming traffic and also results in a less accurate understanding of the extent to which they are able to be perceived by others.

Dr. Lee testified that one of the factors which leads an elderly pedestrian to inaccurately perceive the speed of oncoming traffic is the linear separation of a vehicle's headlights. Essentially, he argued that a pedestrian generally assumes the degree of headlight separation found on most passenger cars as "normal". A misperception of estimated speed and distance results when the vehicle viewed at night is not a passenger car but, for example, a Safari van such as that driven by Mr. Kedovary on the night of the accident which has more widely separated headlights. According to Dr. Lee "if you have misperception or exaggeration of estimated distance of the vehicle this leads to inappropriate and unintentional risky crossing behavior because you assume that the vehicle is not a threat to you where as in fact if it is closer it will be".

The witness also testified that he conducted research which examined the phenomenon of increased light scattering in older individuals as part of a project for the Federal Highway Administration. He explained that as individuals age the eye experiences an increase in debris such as floaters which causes a scattering of light within the eyeball. Increased scattering reduces the contrast or brightness differences usually used to safely negotiate a particular environment. Light scattering is especially pronounced in the case of an older individual looking at headlight glare. Although older individuals compensate for the physical effects of aging through the exercise of additional caution, Dr. Lee testified that enhanced caution cannot always counterbalance the reduced information available to that individual as a result of decreased visual function.

On cross-examination the witness testified that although it is not possible to know the specific effect the issues brought out on direct examination had upon Mr. Harrigan on the night of the accident it would be unusual if he were not subject to the same conditions experienced by other individuals of the same age. He noted that Mr. Harrigan was likely wearing glasses on the night of the accident since an eyeglass lense was found at the scene of the accident. He also testified that elderly individuals are not always aware of the limitations and decreased physical abilities they are experiencing. Dr. Lee did not know the precise distance between the headlights on the Safari van operated by Mr. Kedovary but stated that typical van headlight configurations are slightly farther apart than normal sedans. He admitted that he did not take any measurements concerning the separation between the van's headlights nor did he review any materials which may have provided those measurements. He further reiterated his previous testimony that spacing between the headlights of a vehicle which is wider than those of other vehicles contributes to a misperception that the vehicle's distance from the viewer is greater than it actually is. Under questioning from the Court the expert testified that although eyeglasses may improve visual acuity and the ability to determine distance at night their beneficial effect is reduced by the reflection of lights within the eyeglasses which complicates the visual process.

Claimant's next witness was George Pope, a Forensic Engineer employed by the firm of Robson Lapina. Mr. Pope is a registered and licensed professional engineer in the States of Indiana and New York, has attended crash reconstruction and investigation courses at Northwestern University Traffic Institute and has previously testified as an expert accident reconstructionist in New York State Courts. Mr. Pope testified that he examined the intersection under both daytime and nighttime conditions and took certain measurements concerning the roadway and intersection with particular emphasis on the westbound lanes of Route 37. He stated that immediately north of the edge of the median is an area the witness referred to as a shoulder bordered by a painted roadway line which he measured to be 5' 9" wide. The travel lanes of Route 37 West are both 12 feet in width and are bounded on the north by a roadway edge line and shoulder which the witness measured as approximately 11' in width.

The witness was asked to review and identify Exhibits 11 and 12 which are photographs taken from the median and depicting westbound traffic on Route 37 as it approaches the intersection of Route 420 from the east. Exhibit 11 is a photograph taken by the witness while standing directly in front of the pedestrian push button designed to control travel north across the westbound lanes of Route 37. A round pole is located directly in the center of the photograph. Exhibit 12 is a photograph also looking east toward approaching traffic on Route 37 West but taken from a position several feet north of the place where Exhibit 11 was photographed. Visible in Exhibit 12 are two orange cones which the witness testified were placed at a distance of 335 feet and 393 feet from the center line of the crosswalk and represent the position of the Kedovary vehicle when the claimant passed the pedestrian push buttons while crossing the median. The distances marked by the cones were determined using the point of impact between Mr. Harrigan and the Kedovary vehicle, the speed of the Kedovary vehicle (40 mph) as well as the witness's assumption that Mr. Harrigan proceeded across westbound Route 37 at a speed of approximately 3 - 3.5 feet per second. Mr. Pope stated that an examination of both Exhibit 11 and Exhibit 12 demonstrates that an individual standing in front of the pedestrian push button looking east would not be able to view the Kedovary vehicle which would have been positioned behind the metal streetlight pole shown in the center of Exhibit 11.

Mr. Pope testified that he examined the perception time for Mr. Kedovary as he approached the intersection of Routes 37 and 420 using a perception and reaction time of 1 ½ to 2 seconds. He stated that he had reviewed the expert disclosure for defendant's expert Mr. Camerota and that in his opinion the use of a perception time of "0" seconds by Mr. Camerota in his reconstruction of the accident was "physically impossible."

On cross-examination the witness agreed that although the view of a pedestrian positioned in front of the pedestrian push button located in the median of Route 37 would be obscured by the light pole pictured in Exhibit 11, he or she could move slightly forward (north) or slightly back (south) in order to obtain an unobstructed view of oncoming Route 37 West traffic. He recognized that Exhibit 12 was taken only several feet north of the pedestrian push button and provides a clear view of oncoming Route 37 West traffic. He also admitted that he assumed Mr. Harrigan was aware that the pedestrian push button located within the median of Route 37 West was not functioning properly. In calculating the placement of the traffic cones along Route 37 Mr. Pope testified that he calculated their distance based upon a point of impact between 20 and 24 feet from the pedestrian signal box and a walking speed for Mr. Harrigan of 3 - 3.5 feet per second. He assumed that the point of impact between Mr. Harrigan and Mr. Kedovary's vehicle was approximately 3 feet inside the most northerly westbound lane of Route 37.

Mr. Pope testified that he calculated the speed of the Kedovary vehicle at 40 mph based upon the length of the skid marks as reported by the police despite Mr. Kedovary's deposition testimony in which he stated that he was proceeding at a speed of 35 mph. As to the walking speed assumed for Mr. Harrigan, he relied upon published tables concerning the walking speeds of elderly persons.

The next witness called by the claimant was Scott Harrigan, William J. Harrigan's grandson. Scott described his grandfather as robust, active and "kind of a curmudgeon". William Harrigan lived at 156 Maple Street which was north of the intersection of Routes 37 and 420. He also owned a property on Route 420 four or five miles south of the intersection. Scott Harrigan testified that his grandfather would often walk between his home and the property south of the intersection on Route 420. He described his grandfather's health prior to the accident as excellent and stated that Mr. Harrigan suffered no major illnesses. He described his grandfather's usual daily routine, which included walking long distances between his home and the property on Route 420. He described the pace at which his grandfather walked as slowing over the years but that at the time of his accident Mr. Harrigan walked "like somebody might stroll".

Claimant next recalled L. Raymond Powers to the stand. Mr. Powers testified that an individual seeking to utilize the pedestrian push button in the median of Route 37 to cross the westbound lanes of traffic would not receive a walk indication "no matter how long you pushed that button." The witness also testified that the pedestrian push buttons were rebuilt as part of a project undertaken in 1997 and that the pedestrian push buttons and "walk/don't walk" signals were originally installed near the intersection of Route 37 and Route 420 in order to provide pedestrians a safe means for crossing the highway.

Claimant next offered the examinations before trial of Sarah Markell and Louis Kedovary. The substance of Ms. Markell's deposition testimony has been related previously. Mr. Kedovary testified that at approximately 11:45 p.m. on May 30, 1998 he was driving a 1991 GMC Safari van west on State Route 37 on his way home from work at the General Motors Plant in Massena. He testified that he had approximately 60,000 miles on his vehicle which he described as in good repair. He was familiar with Route 37 and its intersection with Route 420 as he passed through the area each day on his way to and from his place of employment.

Mr. Kedovary described the highway conditions as clear and dry and testified that he was driving at approximately 35 mph as he approached the intersection of Route 37 and Route 420. According to Mr. Kedovary he first observed the claimant just prior to the point at which Mr. Harrington entered the southern most westbound lane of Route 37. Kedovary was operating his vehicle in the northern most westbound lane and described the circumstances immediately preceding the accident as follows: "Before the accident I was coming up to the traffic light and the light was green. I was watching so that I'd make sure I wouldn't get a ticket for anything. And as I was coming up to it, I seen the fellow started running out - he wasn't running. Older gentleman, he was kind of shuffling out. So by the time I seen him I hit my brakes and I tried to veer off to – away from him rather than hit him you know." The witness testified that he applied his brakes and attempted to turn his vehicle to the right as soon as he noticed the claimant in the roadway. Mr. Kedovary testified that the claimant continued straight across Route 37 from the time he first observed him until the point where the claimant impacted the windshield and left side of his vehicle. Mr. Kedovary did not observe the claimant look in his direction at any time.

Upon receipt of the transcripts of the examinations before trial and certain other evidence the claimant rested. Defendant moved to dismiss for failure to establish a prima facie case. The Court reserved on the motion and the motion is now denied.

Raymond Powers was again called to the stand, this time by the defendant. Mr. Powers testified that although he had not been to the scene of claimant's accident at night he was familiar with the configuration of the intersection and signals at that location. He stated that an individual standing in the median of Route 37 would likely be able to observe only indirectly the traffic signal controlling Main Street traffic. He stated that from such a position an individual would be able to see the reflection of the signal faces in the sun shield or visor for at least one of the signal heads. The witness testified that Exhibit 3 shows that at night the color of the signal governing westbound traffic on Route 37 is reflected on wires mounted above the intersection and directly in front of the signal. On cross-examination, Mr. Powers confirmed that Exhibit 3 is a photograph taken from a position approximately in the middle of the two westbound lanes of Route 37. He also agreed that an individual standing in the median may well have a different perspective than the one depicted in Exhibit 3.

Defendant next called its expert witness Eugene Camerota. Mr. Camerota is an Assistant Professor of Engineering Science at Onondaga Community College in Syracuse, New York and a consulting engineer. He stated that his work as a consulting engineer primarily involves accident reconstruction and product liability issues and that his accident reconstruction experience includes pedestrian/automobile accidents. The witness has testified as an expert in state and federal courts including New York and is a member of the Society of Automotive Engineers, the National Society of Professional Engineers, New York State Traffic Accident Reconstruction Society and the New York State Professional Accident Reconstruction Association. Mr. Camerota visited the scene and in preparing his testimony reviewed photographs, the police accident report and various professional sources with regard to pedestrian walking speeds and information concerning braking distances for a 1991 GMC Safari van. He also took measurements of the roadway.

With regard to the assumed walking speed of Mr. Harrigan, the witness testified that he consulted professional sources which provide information concerning average walking, jogging and shuffling speeds for males aged 60 or older. He also utilized the length of the skid marks left by the Kedovary vehicle as measured by police and applied an equation to determine the speed of the van at the onset of braking. He noted that although the skid marks shown on Exhibit 6 begin at the approximate center of Route 420 and continue to the point at which the van came to rest, Mr. Kedovary could have begun braking at some point prior thereto. He also stated that although the testimony of Mr. Kedovary at his examination before trial and other information available to him indicated that the van was equipped with an anti-lock braking system, he suggested that the skid marks left by the van were not indicative of an ABS braking system. He stated that typically an ABS braking system will leave skid marks only at intervals relating to the pulsations exerted by the system. It is unusual according to the witness for an anti-lock braking system to leave a continuous skid mark such as that left by the Kedovary vehicle.

Essentially, Mr. Camerota performed an analysis in which he assumed two ranges for the walking speed of Mr. Harrigan. The first was a shuffling speed for a male 60 years old or older of approximately two feet per second. The second was a walking or fast shuffle speed of approximately 4.6 feet per second. He then estimated the distance which Mr. Harrigan traveled from the edge of the median to the point of impact near the center line between the two westbound lanes of Route 37. He measured that distance at approximately 17 ½ feet. Utilizing the walking speeds for Mr. Harrigan and the 17 ½ foot distance which he traveled from the edge of the median to the point of impact Mr. Camerota alleged that he was able to determine the position of the Kedovary vehicle at the time that Mr. Harrigan began to cross the westbound lanes of Route 37. Assuming a speed of between 36 and 40 mph for the Kedovary vehicle and a two feet per second shuffling speed for Mr. Harrigan, Camerota estimated that it would take the claimant approximately 8.8 seconds to walk from the median to the point where he impacted with the Kedovary van. These calculations led Mr. Camerota to estimate that the Kedovary vehicle was approximately 446 feet east of the point of impact at the time the claimant left the median and began to cross Route 37 West. Utilizing the higher walking or fast shuffle speed the same analysis yielded a time of 3.8 seconds for the claimant to travel from the median to the point of impact leading to the conclusion that the Kedovary vehicle under such circumstances was 167 feet east of the point of impact at the time that Mr. Harrigan left the median.

The witness also addressed perception and reaction times relative to Mr. Kedovary as he proceeded westbound on Route 37. Mr. Camerota described perception time as "the amount of time it takes for someone to perceive that there is going to be a hazzard and then start to react." He then defined the term reaction time as "the amount of time that you actually react. In other words, your brain tells your foot or whatever it is to do something." Mr. Camerota utilized a perception time of "0" seconds based upon the fact that Mr. Kedovary was approaching an intersection with which he was familiar and that under such circumstances a defensive driver will automatically assume a higher level of alert for potential hazards. As a result of his analysis and after noting that the Kedovary vehicle was estimated to have been capable of stopping within 120 feet at the speed he was proceeding, the witness concluded that Mr. Kedovary's inattentiveness was a contributing factor to the accident stating "[h]e had enough distance and time to slow and stop his vehicle as Mr. Harrigan started to cross based on my calculations where the reaction time and stopping capability of this vehicle at thirty-eight miles per hour, which is the speed I assumed." He also concluded that Mr. Harrigan should have been able to observe the lights of the Kedovary vehicle as it approached and, as a result, Mr. Harrigan's failure to observe the oncoming vehicle also contributed to the happening of the accident.

On cross-examination the witness agreed that a walk/don't walk pedestrian signal is a safety device intended to provide a safe means for facilitating pedestrian crossings of roadways. Mr. Camerota was unaware that the claimant regularly walked long distances between his home and the garage located south of Route 37 on Route 420. He was also not aware of testimony that the claimant was in excellent physical health for a man of his age.

With regard to the perception and reaction times testified to by the witness on direct, Mr. Camerota indicated that he defined perception time as the amount of time it takes one to perceive an actual hazard and not merely the potential that a non-specific hazard might exist. He reiterated his view that a cautious driver should be at a higher state of alert approaching an intersection and therefore should be able to immediately perceive a hazard resulting in a perception time of "0" seconds. The witness agreed that utilization of a two second perception and reaction time in the analysis outlined in his direct testimony would yield a different result regarding the relative speed and position of the Kedovary vehicle in relation to Mr. Harrigan. At 38 mph, which is the speed assumed by the witness, the Kedovary vehicle traveled 55.75 feet per second or a total distance of approximately 111.5 feet in two seconds. That distance when combined with a stopping distance of sixty four feet for the Safari van yields a total distance (175.5 feet) in excess of the estimated 167 feet between the Kedovary vehicle and the claimant when he left the median crossing the highway at a speed of 4.6 mph. According to Mr. Camerota "[a]nd, so, therefore, there would have been a difference of, of about eight and a half feet which means he [Kedovary] would have hit him."

Mr. Camerota admitted that he did not examine the tires on the Kedovary vehicle and did not have information regarding their brand or tread depth. He stated that issues concerning the depth of tread and type of tire would have an effect upon the vehicle's braking distance.

On redirect examination Mr. Camerota stated that he was unable to view the Kedovary vehicle because it was unavailable for inspection. He stated that in the analysis related on direct examination he utilized a perception time of "0" and a one second reaction time.

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, affd 56 NY2d 714).
First, the Court finds that the underlying facts of this case justify application of the principles related in
Noseworthy v City of New York, 298 NY 76 permitting a lesser burden of proof by a party who has become incapacitated as a result of allegedly negligent acts of a defendant (see also, Schechter v Klanfer, 28 NY2d 228; Orloski v McCarthy, 274 AD2d 633). The proof submitted at trial will be considered accordingly.
That proof establishes that late in the evening of May 30, 1998 claimant William Harrigan was attempting to cross State Route 37 near its intersection with Route 420 in Massena, New York. Mr. Harrigan first crossed the two eastbound lanes of Route 37 and arrived in the median between the eastbound and westbound lanes. The claimant was familiar with the intersection and was likely aware that the pedestrian signals were inoperable from his frequent walks between his home on Main Street north of Route 37 and a separate property south of the intersection on Route 420. Scott Harrigan testified to the claimant's routine in this regard and no proof establishing an available alternate crossing location was provided at trial. Indeed the proof indicates that use of any alternative site to cross Route 37 is unlikely given the fact that there are no sidewalks on Route 37 which could be used to safely and conveniently access any other potential site. Since the Court concludes that the claimant was aware that the pedestrian signals could not be actuated through the use of the push button located on the southerly side of the pole within the median of Route 37, claimant's argument that the signage and/or light pole within the median blocked the claimant's view of the oncoming Kedovary vehicle is discounted. This is so because the proof was offered to show that an individual standing at the push button could not have viewed the Kedovary vehicle due to the interference imposed by the pole and signage. The proof at trial demonstrated that an individual seeking to cross the westbound lanes of Route 37 in a northerly direction needed to move only slightly north or south in order to obtain a clear and unencumbered view of oncoming Route 37 westbound traffic.

The proof regarding the circumstances which transpired upon claimant's attaining the median are unclear. What is clear is that the claimant crossed the median, moved safely across the left- hand or most southerly westbound lane and was struck by a vehicle operated by Louis Kedovary slightly inside the right- hand or northern most lane of Route 37 West. The proof established that pedestrian crossing signals and pedestrian push buttons are safety devices installed for the purpose of ensuring the safety of pedestrians in crossing a roadway. In particular, the intersection of Route 37 and Route 420 was designed to have operable pedestrian signals and push buttons. In fact, however, as a result of miswiring which occurred in 1997 the rebuilt mechanisms accepted by the State in September, 1997 were fundamentally inoperable. The negligence of the State in failing to ensure that the pedestrian signals and push buttons were correctly wired created a situation where the claimant was deprived of the safe crossing which would have otherwise been available to him. From the median the 86 year old claimant had available no direct visual or other indications of when it was safe to cross the shoulders and two twelve foot wide lanes which constitute westbound Route 37. Sarah Markell testified that the claimant appeared to be hurrying across the westbound lanes when he "kind of got caught . . . in the way." The uncertainty experienced by the claimant and observed by Ms. Markell was directly related to the absence of pedestrian signals which the defendant admits were necessary and called for in the intersection's design. Accordingly, the Court finds the State negligent in failing to discover and correct the miswiring of the pedestrian push buttons and signal heads at the time it accepted the work performed by its contractor and that such negligence was the sole proximate cause of the vehicle/pedestrian accident in which the claimant was injured.

There is insufficient evidence to support the defendant's assertion that either the claimant or Louis Kedovary contributed to the happening of the accident.

The Clerk is directed to enter an interlocutory judgment on the issue of liability. A trial on the issue of damages will be scheduled as soon as practicable.

All motions not previously decided are deemed denied.



May 29, 2003
Saratoga Springs, New York

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




[1]The term "claimant" refers to William J. Harrigan.