ROSE v. THE STATE OF NEW YORK, #2003-016-048, Claim No. 89930
CHONG SUK ROSE, Individually and as Administratrix of the Estate of JOSEPH KENNETH ROSE
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
WILLIAM PAGAN & ASSOCIATESBy: Tanya Pagan, Esq. and William Pagan, Esq.
Eliot Spitzer, Attorney GeneralBy: Victor D'Angelo, Esq., AAG
June 30, 2003
See also (multicaptioned
Joseph Kenneth Rose was killed when the gasoline tanker truck he was driving
tipped over, slid through a guide rail and burst into flames on an exit ramp
leading from a service road of the Long Island Expressway in Queens County.
This is the decision following the trial of the claim brought by his widow,
Chung Suk Rose, individually, and on behalf of the estate of her late
On the afternoon of May 15, 1994, Mr. Rose took his tanker truck to
the Paidge Avenue fuel depot in Greenpoint, Brooklyn, near the Queens border,
which was used by a number of companies, including Rose's employer, Exxon. He
was driving a Mack truck, which was pulling a Heil aluminum gasoline tanker;
eight feet wide, the entire rig was 48 feet long. After filling up, Rose
proceeded to the Long Island Expressway (LIE), heading eastbound and was on its
service road as he approached an exit ramp (Ramp G) that leads to the
Brooklyn-Queens Expressway (BQE) northbound toward La Guardia Airport. Def exh
It is undisputed that the day was sunny, the pavement dry, and that it was
about 3:30 p.m. Robert Flutie, who was in a vehicle behind Rose's truck, took
the stand at trial.
Mr. Flutie, who at the time lived in Manhattan, was accompanying his
fiancée to La Guardia in a livery vehicle, a "generic black Town Car."
He was sitting in the middle of the back seat, his future wife to his right.
Flutie said that there was no partition between driver and passengers; he had a
clear view ahead.
The witness initially noticed Rose's truck in the service road of the LIE: "It
was the part of the LIE that merges over to the right that allows you to take
the exit ramp to the BQE. That's when I first observed the tanker." According
to Flutie, the tanker was about three or four car lengths ahead of him, with no
vehicles between them. They were both in the right-hand lane of the service
, ready to take the exit ramp to the BQE. See cl exh 3, photos
Flutie continued with the narrative:
... we were both in the right-hand lane, merging onto the exit ramp to get
on the BQE ... And the exit ramp to get onto the BQE is almost a - - a full
circle ... To get off the LIE onto the BQE, you have to do a complete turn, and
I was watching the tanker or ... the truck negotiate that turn in the far
right-hand side of the exit ramp.
... the tanker was in the right-hand side of the exit ramp, and as
the truck was starting to come around the first part of the bend, I noticed how
close he was to the curb ... the part where there would normally be a
shoulder, he was right up against the curb.
The witness described what he
saw happen next to the cab and its tanker:
And you can see that as, you know, trucks have a hitch ...You could see
that the front of the truck was starting to take the turn, but it did not appear
like the back of the truck wanted to follow him...[T]he cab, of the truck came
out a little bit to the left and then it took a sharp right-hand turn. And it
was almost as if he - - I'm assuming that the driver would have jerked the
steering wheel, because what happened then was, the front of the cab went right,
but the back of the truck appeared to push the cab from its momentum...
It pushed it straight almost, because what happened was, he was taking the
turn, the back of the - - the truck was not capable of taking the turn. There's
no room to negotiate it. When he pushed it a little bit further to the right,
it pushed the cab and then the ... the wheels on the right-hand side came up off
the ground. And then it literally pushed - - the entire thing got pushed over
to its left side . . . [and] . . . slid for a certain distance.
added that the cab and tanker, when he first noticed them, were close to the
right hand part of the ramp, which was the inside part of the curve. It was not
until the tanker portion pushed the cab that the two began to "tilt over to the
left toward the center of the road."
At no time, while the tanker truck was moving did Flutie observe any vehicle
pass it on either side. When he saw the driver of the tanker jerk the front
wheels to the right, it was "very abrupt"
; Flutie then looked to see if there was anything in front of the cab, but the
"ramp was completely clear ahead of the truck." After the truck flipped over on
its left, or driver's side, the witness saw no vehicles in front of
Flutie was a straightforward, credible witness who had a good view of the
actions of the tanker truck
and whether there were any vehicles that could have caused the truck to move the
way he observed it. His testimony on these matters was definitive and assured.
I conclude from Flutie's testimony, which was not contradicted by the police
report of the accident, that there was no other vehicle on the scene that in any
way affected Rose's truck. When it came to the relative speeds of his and
Rose's vehicles, Flutie was less assured, but frankly said
At trial, we heard from two gasoline drivers, who worked for another company,
and were a few minutes behind Rose - - at the Greenpoint fuel depot and on Ramp
G. Jonathan Desir and James Riddick tried valiantly
to rescue their fellow truck driver after the accident. Desir and Riddick were
riding in the same truck; Desir was training Riddick. Both testified that the
ramp was widely used by gasoline tanker drivers. Rose had driven for Exxon for
eight years. Not objected to was defendant's expert Stephen Coulon's testimony
that Rose was on the ramp daily, perhaps three or four times a day. In any
event, for our purposes, claimant was sufficiently familiar with Ramp
Furthermore, both Desir and Riddick remembered very distinctly that when Rose
left the Greenpoint depot, fuel was leaking from the "belly" of the Exxon truck.
In fact, they tried to follow Rose in order to catch and tell him about the
* * *
The State of New York has a duty to design and construct its highways to be
reasonably safe, but it is not an insurer.
Redcross v State of New York
, 241 AD2d 787, 660 NYS2d 211 (3rd Dept
1997), lv denied
91 NY2d 801, 666 NYS2d 563 (1997). Moreover, the State
is entitled to qualified immunity for highway design and planning that is the
result of a deliberative decision-making process. Weiss v Fote
, 7 NY2d
579, 200 NYS2d 409 (1960); Friedman v State of New York
, 67 NY2d 271, 502
NYS2d 669 (1986). While the State remains under a continuing duty to review its
plan in light of its actual operation (Friedman
), consider that the claimants here can point to no comparable
accidents on Ramp G prior to May 15, 1994. See Hough v State of New
, 203 AD2d 736, 610 NYS2d 659 (3d Dept 1994); Kaplan v City of New
, 10 AD2d 319, 200 NYS2d 261 (1st Dept 1960).
That an accident occurred does not necessarily establish liability on the part
of the defendant; claimants bear the burden of connecting the injury to a
breach of duty owed by defendant and of showing that defendant's acts or
omissions were a substantial cause of the events which produced the injury.
Russell v Hepburn Hospital
, 173 AD2d 985, 569 NYS2d 826 (3d Dept
The ramp in question, Ramp G, was designed and constructed
by the defendant between 1967 and 1971, as part of the larger project to connect
the LIE and the BQE (cl exh 4, contract FIQME 67-1).
Two decades later
in 1987, the State let out another contract. While a number of BQE overpasses
were reconstructed as part of this contract, the only Ramp G work the contract
called for was the replacement of the existing boxbeam guide rails with
corrugated W rails. To do that, it was necessary to set up a detour. Begun in
1987, work under contract D252299 was completed in 1990. Cl exh
When the original 1967 construction was finished, jurisdiction over the
maintenance therefor was transferred to the City of New York (def exh
) and became subject to the New York State/New York City Maintenance Agreement
(cl exh 7). Page 2 of the Agreement states that the municipality (in this case,
the City of New York) will perform the maintenance, that the maintenance work
will be "inspected continuously" by the State Department of Transportation
resident engineer, and that a failure to comply would give the State the right
to terminate the project. That language, supported by the testimony, does not
implicate more than a very limited supervisory role for the State over
maintenance done by the City. It underscores the State's potential power of
enforcement, but is far from a hands-on supervisory role. Where there is a role
for the State, that is specifically set forth, such as resurfacing, which is
characterized as a "major improvement" (page 3, cl exh 7). See Nowlin v
City of New York
, 81 NY2d 81, 595 NYS2d 927 (1993).
The City's maintenance responsibility included repainting the lines demarcating
the lanes at least once a year and if faded, repainting them "as necessary" (cl
exh 7, p 10 [
Standard 8]). Under the Agreement, damaged and missing signs are to be replaced
by the City of New York so that traffic control devices remain as they were
"when originally installed" (cl exh 7, p 10).
Ramp G was designed as two lanes from where the LIE service road joins it until
a short distance before it connects with the BQE, at which point it narrows to
one lane. The lanes are of course created by a broken white line (
cl exh 3). The photographs taken by the New York City Fire Department on May
15, 1994, the testimony of Flutie and the photographs taken three days later by
claimant's expert engineer, Steven Kane, indicate that the lane markings had
worn away (cl exhs 1 & 2; def exhs B, F and G).
That responsibility belonged to the City of New York, and knowledge of the
missing pavement markings cannot be reasonably imputed to the State, which had
resident engineer, but no maintenance crews for New York City. Be that
as it may, the missing lane marker was not a factor in Rose's accident. Its
absence effectively transformed the exit road into a single-lane ramp.
Ironically, Mr. Kane, claimant's expert, maintained that the ramp was too narrow
for two lanes, measuring it at 27 feet, 2 inches. Given the size of Rose's
vehicle and my crediting of Flutie's testimony that no other vehicles were near
them, then arguably a wider berth, if anything, made the task of negotiating the
In addition, claimants contend that there should have been speed limit and
curve signs on the ramp. W
arning signs are posted to identify or emphasize a particular condition (17
NYCRR § 230.1(a), from the Manual of Uniform Traffic control devices, 17
NYCRR §200 et seq
). The subject here is not a road that winds or
curves, without some advance signal thereof; this is an exit ramp that
represents a change of direction which is clearly visible. The sign overhead at
the beginning of the ramp, which reads "Bklyn-Queens Expwy...La Guardia
Airport," has an arrow tilted 45 degrees to the right (cl exh 3, photo 58).
Once on the ramp, no structures or trees block the driver's view of its at least
270-degree sweep (cl exh 4, sheet 378R1, cl exh 2). Section 230.1(a) of the
Manual provides, in part, that "Warning signs are particularly useful to drivers
who are unfamiliar with the highway." Finally, the use of warning signs is
subject to sound engineering judgment; as the Manual notes, warning signs should
be kept to a minimum: excessive use dulls their message
Claimants' view of the facts is that there was no advisory speed
in place on the ramp. In fact, under
the 1967 as-built contract plans, an advisory speed sign with the word "RAMP" on
top was situated on the right of the service road just before Ramp G begins (cl
exh 4, sheets 378R1 & 380).
provides that "[w]arning signs should generally be located in advance of the
condition to which they apply" (17 NYCRR §230.2[a]; and see Table 230-2).
The 1982 photo log shows the 25 mph advisory speed sign for the Ramp in the same
spot (cl exh 3, #57). Per the as-built plans and trial testimony, reevaluating
signage text and placement was not part of the 1987 contract (cl exh 5). The
Fire Department photo taken the day of the accident shows a sign in the same
place, also rectangular, but its text and color legend cannot be made out (def
exh H). In any case, had the sign been knocked down or damaged, replacement was
the responsibility of the City of New York. In sum, a fair inference from the
credible evidence is that Rose knew of the advisory speed, either because it
was posted, or if the sign was down, from his experience.
Claimants' case was not focused on how fast Rose might have been driving, but
their expert safety engineer, Steven Kane, testified that the police
department's estimate of 46 mph was not accurate. Among other things, Mr. Kane
stated that the defendant's calculation was improperly based on the radius, or
curvature, of the ramp as 211 feet. Kane, who made two on-site visits, measured
it at something less. Moreover, in Kane's opinion, the absence of skid marks
indicated that there was no evidence of a rapid deceleration, i.e.
brakes were not strongly applied.
New York City police detective Louis Amen, who responded immediately to the
accident scene, found no skid marks. He measured the curvature of the ramp at
211.3 feet. The police accident report described what happened as follows:
"Operator of vehicle # 1 proceeding around turn on E/B BQE entrance ramp from
E/B LIE service road. Operator lost control of vehicle and overturned ..." (def
exh A, p. 2). There was no mention of speed, except in the attached witness
statement from Robert Flutie. Amen testified the accident occurred mid-way
along the length of the ramp.
The defendant called to the stand two experts, engineer Bruce Savik and
accident reconstructionist Stephen Coulon. Mr. Savik testified as to a number
of issues that are unnecessary to reach, such as lane widths and their
conformance with the applicable standards at the time of the 1967-1971
Mr. Coulon has analyzed several thousand vehicular accidents, hundreds of which
involved trucks and 15 to 20 of which were gasoline tanker accidents. Coulon
was a highly experienced witness whose vivid analysis of what happened was more
sophisticated and better grounded factually than that of claimant's expert
Using the curve radius of 211 feet, the super-elevation or banking of 3 or
plugging in the length, width and height of the center of mass of the vehicle,
and assuming the tank was almost full with gasoline, such a vehicle would tip
over and lose control at a speed of 40 to 45 miles per hour, plus or minus two
or three mph. The witness, who took no measurements of his own, said that he
did not disagree with Kane's measurements, although he used Detective Amen's
radius of curvature. However, unlike claimants' expert, and credibly so, Coulon
was able to calculate the height of the truck's center of mass.
A fair amount of time at trial was expended with regard to ramp curbs and
shoulders. I conclude from the evidence, as did Coulon, that these features, or
lack thereof, played no part in Rose's fatal accident. Coulon explained that
everything happened within the 28 feet of pavement, between the turf shoulder
and the guide rail:
The physical evidence indicates that the truck began its turn through the
radius of that curve on the inside edge, and then for whatever reason drifted
across through the center line [or simply the center] of the ramp, across onto
the other side and made contact with the guide rail. The reason for that
happening could have been excessive speed. In this case clearly excessive speed
was involved. Or it could have been a conscious motion on the part of the
driver to try and flatten the curve, but in so doing, he lost control because he
was going too fast. Certainly the former, I don't know so much about [the]
The location of scuff marks confirmed his conclusion as to the movement of the
vehicle and its shifting weight.
These, as Coulon noted, are distinguishable from skid marks caused by braking
strongly enough to lock the wheels, and were thus not noted in the police
report. Coulon also confirmed, from his reconstructionist's perspective,
Flutie's observations that there was no second vehicle, which Rose might
suddenly have had to avoid:
As the truck was moving from the inside edge of the curve or the inside
lane of the curve to the outside lane, remember please the truck is forty-eight
feet long. As it moves across into the left hand or outside portion of the
curve, there is a diminishing point where vehicles will not fit between the left
side of the truck and the ... guide rail.
* * *
In view of the foregoing, claimants have failed to prove by a fair
preponderance of the credible evidence that the horrible tragedy that befell Mr.
Rose on Ramp G on May 15, 1994 was caused by any design or maintenance failures
on the part of the defendant (maintenance was the responsibility of the City of
New York), rather than by vehicle speed and/or driver inattentiveness.
Therefore, the claim of Chong Suk Rose, individually, and as Administratrix of
the Estate of Joseph Kenneth Rose (claim no. 89930) is dismissed
motion not previously ruled upon is hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
June 30, 2003
HON. ALAN C. MARIN
Judge of the Court of Claims
Flutie was not driving, and could not check
the speed of his own vehicle from the instrument panel; he said he tried to
gauge speed from the faster traffic on the LIE service road. He testified that
Rose's truck entered the ramp at 35 to 45 mph and that on the ramp, Rose was
going 35, although Flutie subsequently said Rose was moving at something less
than 35 mph.
The Official Order transferring maintenance
responsibility to New York City is dated April 21, 1971.
Mr. Rose was quite familiar with the ramp.
There is no solid evidence on when the lines had last been there, but it was
likely Rose was familiar with the ramp when it had pavement markings.
Advisory speeds are posted with black
numbers on yellow backgrounds (17 NYCRR §§231.2 & 231.8). Maximum
speed limits signs also have black numerals, but on a white background (17 NYCRR
The 1967 contract was completed before the
Manual came into effect in September of 1971; see the Historical Note at 17
NYCRR, Part 200 and note 2, above.
The 3% figure is from Detective Amen; 3.5%
is from claimant's expert Kane. Defendant's engineer Savik had the ramp banked
more steeply - - at 6%.