New York State Court of Claims

New York State Court of Claims

GOODMAN v. THE STATE OF NEW YORK, # 2003-030-018, Claim No. 100036


Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
June 30, 2003
White Plains

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See also (multicaptioned case)

Clematine Goodman, the Claimant herein, alleges in Claim Number 100036 that the Defendant's negligent design, construction and maintenance of the Taconic State Parkway (hereafter Taconic) at the site of her one-car accident are the proximate cause of her personal injuries. Trial of the matter was held on November 18, 20, 21, 22, 25, 26, 2002, December 4, 6, 9, 2002. This decision relates solely to the issue of liability.

In her claim, Ms. Goodman alleges that excessive water on the road surface caused her to lose control of her Mazda Protegé, hit "two poles on the right side of the roadway," and then crossed the northbound lane, striking the center guardrail. [Claim No. 100036, ¶7]. She alleges that the Defendant was negligent in the design, maintenance and ownership of the Taconic, and that such negligence was a proximate cause of her accident and attendant injuries. [
Ibid, ¶¶10 and 11].
On March 31, 1997, Claimant testified, she was driving northbound on the Taconic at approximately 7:30 a.m. as part of her regular commute from her home in Mount Vernon to Hopewell Junction. [T. 46, 49]. She had made the same commute for five years. The vehicle was only five years old and her tires were about six months old. [T. 47, 65]. The vehicle had always handled well in the three years that Ms. Goodman owned it prior to the accident. [T. 65]. It had been raining for a couple of hours, and Claimant asserts she was traveling between 35-40 miles per hour because of the weather conditions. [T. 49]. She left an hour early to allow extra time to get to work. [T. 48].

Shortly after passing the Miller Hill Road intersection, her vehicle began to slide and she experienced a sudden loss of control when the vehicle stopped responding to her attempts to steer it. [T. 49-50]. Recalling her brothers' advice regarding the danger of applying her brakes under such circumstances, she did not apply her brakes to avoid spinning or flipping the car. [T. 51]. The loss of control occurred just past Miller Hill Road, where the road begins to curve to the right. [T. 49]. The vehicle continued to slide for two to three seconds (or perhaps five), during which time it veered to the right, went up an embankment, hit a pole or a sign, came back across the Taconic, hit the guide rail, and knocked her back across the road [T. 49-51]. Claimant described the vehicle's impact with the median barrier as "very hard,"[1]
and the vehicle came to rest facing south. [T. 52-53].
Claimant identified Exhibits 57 and 58 as photographs depicting where her vehicle came to rest, at a one-way sign and stop sign approximately 1100 feet north of the intersection of the Taconic and Miller Hill Road. [Exhibits 57 and 58, T. 58-64, 77, 85, 300, 303].

Some inconsistencies between the deposition testimony at one of her two depositions in which Claimant had indicated that the accident had taken place south of the Miller Hill Road intersection, as well as identification of a photograph of a stop sign at her deposition as the sign she hit when she lost control of the car, were somewhat adequately explained at trial as the result of medication and vision problems. Clearly, Claimant simply does not know what sign or pole she hit - or if she even hit a sign or a pole - and attempts to pin down the exact sign she hit through her testimony were only marginally reliable.

During prior commutes, Claimant had not observed any excess accumulation of water, nor did she observe any on March 31, 1997. [T-74-76].

State Trooper Bruce W. Murphy, the trooper who first arrived at the scene of the accident, also testified. In the accident report he prepared in connection with Claimant's accident, he measured the distance between Miller Hill Road and where he found Claimant's vehicle as two tenths of a mile north of Miller Hill. [Exhibit 1; T. 27]. Two tenths of a mile equals 1056 feet. A 55 mph sign is located at approximately 1049 feet north of Miller Hill Road. [T. 300-303]. Trooper Murphy noted in the accident report that Claimant reported that she lost control of her vehicle because the pavement was slippery. [
See, Exhibit. 1]. "Unsafe speed" is noted as a contributing factor on the report, the road condition is noted as "wet" and the weather as "rainy." [Id].
To arrive at the accident scene, Trooper Murphy had traveled on the northbound side of the Taconic just as Claimant had. He did not observe standing water or puddling. When he retraced for investigatory purposes, the route from Miller Hill Road to the place he found Claimant, he observed running water alongside the road running north to south, but again did not observe any standing water or puddling. He did not observe water running across the parkway from the east to the west. [T. 37]. He explained that his notation on the accident report that the pavement was wet or slippery, was merely to indicate that it was not dry, not to imply that it was any more slippery than any other wet road on a rainy day.

Trooper Murphy did not observe any damage to any of the signs between Miller Hill Road and the place where Claimant's vehicle came to rest either when he first drove northbound on the Taconic to find Claimant, or on his second, investigative tour. During the five years preceding Claimant's accident, the trooper had driven on the Taconic perhaps 75 times. He had never observed a water or puddling problem between the intersection of Miller Hill Road and two tenths of a mile north. [T. 36].

Notably, in the contemporaneous police accident report Trooper Murphy prepared pursuant to his investigation, including any information Claimant may have given him at the time, there is no indication that the Claimant's vehicle left the roadway as she described at trial.

Portions of the deposition of Roger Griemsmann, the New York State Department of Transportation (hereafter DOT) resident engineer for Putnam and Southern Dutchess Counties since 1984, were read into evidence on Claimant's direct case. Mr. Griemsmann testified on Defendant's direct case as well. As the resident engineer it was his responsibility to supervise the maintenance of the Taconic in the area of its intersection with Miller Hill Road. [T. 120]. He testified that he was not personally aware of when the Taconic was last repaved prior to March 31, 1997. A "Road History" he maintained for the DOT would normally include such information, however the one maintained for that particular section of the Taconic only went back to 1991, when his responsibility for maintaining the subject area began. [
See, Exhibit 15; T. 1906]. He was aware, however, that the road had been repaved in 1987 because he had the contract records showing that such repaving had occurred, and added such information to the road history he prepared. [See, Exhibit 15].
In terms of record keeping by the DOT, Mr. Griemsmann credibly explained that the supervising authorities for the parkways in New York State changed over time resulting in gaps in the paper work. [T. 1916-1917]. Under the East Hudson Parkway Authority, responsibility for maintaining one entire parkway would be assigned to a unit such as his, as opposed to dividing the parkways along geographical lines. The East Hudson Parkway Authority was dissolved at some point, "in the 1980's" and the DOT took over responsibilities. In 1991, the approach of assigning responsibility for an entire parkway was changed, and responsibility for parkway maintenance was subdivided based upon "geographic residencies." When the geographic residencies were created, in 1991, Mr. Griemsmann did not receive any maintenance records from the parkway residency. It is unclear, however, whether any repaving pursuant to those contract records in 1987 impacted the area north of Miller Hill Road to the resting site of Claimant's vehicle. A repaving job noted in 1992 was north of the area of Claimant's accident. [
See, Exhibit 15].
Portions of the deposition of Joseph Foglietta were also read on Claimant's direct case. Mr. Foglietta, employed by the DOT for 24 years, is currently a design manager of a design group, responsible for preliminary and final design for highway projects, as well as when design modifications may be necessary. [T. 131-132]. He noted that the section of the Taconic from its intersection with Miller Hill Road to one-half mile north was constructed "in the 1930's", and had undergone some modifications over the years. [T. 133-134]. Based on the danger of crossover accidents, a center median had been constructed "in the 1960's," and no design changes to the median had been made from that time until 1997. Various portions of the roadway had been resurfaced, and changes in the striping and the regulatory signs were made as well.

Some of Mr. Foglietta's deposition testimony concerned what was intended with respect to water flow in the original design of the Taconic. He stated: "As per the original design, the water was to stay on the pavement to the height of the curb, which was a three-inch curb reveal and flow on the roadway to the basin . . . and some water that was off the road would flow onto the road also, and the road would convey that water down to the basin too." It was also Mr. Foglietta's testimony that when water fell onto the Parkway at Miller Hill Road it would flow 650 feet downward to the basin.
[T.173-174]. Resurfacing changed the original design in that "[i]t caused the water to not stay on the roadway, but to also travel outside of the roadway and seek other paths to . . . its lowest point," across the roadway "in some spots." [T. 174]. Mr. Foglietta also stated, however, that the resurfacing and reduction of curb reveal does not cause the water to "spread wider" on the pavement. [T. 186-188]. Depending on the grade of the road or the erosion behind the curb, the water will be carried behind the curb, pushing the water off the road. "If the original design was there, you would carry the water on the roadway. By resurfacing to the top of the curb, you are pushing the water off the road. Instead of getting to the basin, it's actually going over the side and down the embankment . . . [Going over the side near the vertical curb does not cause flooding] because it's getting off the road. The water is actually getting off the road." [T. 187- 188].
David Parker, an employee of the DOT, conducted a highway safety investigation in 1994, and a study was generated on January 13, 1995. [Exhibit 17]. Portions of his deposition were read into the record on both Claimant's and Defendant's direct cases. The highway safety investigation study he conducted covered the area on the Taconic from Horton Hill Road to between four tenths and five tenths of a mile north of Miller Hill Road. [T. 627]. To prepare the study, Mr. Parker had reviewed accident reports, had gone to the various sites, and performed engineering analyses of the various data generated by a computer program. [T. 622]. He analyzed patterns of accidents that were happening at the Miller Hill Road intersection with the Taconic. [T. 622]. Mr. Parker indicated that he "was not aware of any" complaints of slippery road conditions in the section of the Taconic north of the Miller Hill Road intersection, or of drivers losing control of their vehicles, although it would be part of his department's function to review such complaints. [T. 1926-1927] The major concern relative to that intersection was the configuration of the intersection itself, and the need "to remove the conflicts of right angle movements," resulting from the curved nature of the intersection and the grade. [T. 1924-1926]. This is borne out by a review of the study itself, wherein most of the accidents are at or near the intersection and involve crossing problems. [
See, generally, Exhibit 17]. The study contains a recommendation to resurface the pavement within the study area with skid resistant pavement. [Ex. 17, p. 4]. Read in context, the recommendation refers to an area south of the Miller Hill Road intersection.
Christopher John Sherman, an individual who had a car accident on the southbound side of the Taconic on September 22, 1996 also testified briefly. He indicated that he was traveling south on the Taconic about 100 feet north of Miller Hill Road when his car started to slide, he lost control and hit the guardrail. [T. 453-454]. Although it had been raining, he could not recall the severity of the rain, nor did he note any particular water accumulation on the northbound side on that or other occasions. [T. 454-462]. Mr. Sherman admitted that he was ticketed for traveling at an unsafe speed for the conditions. [T. 464].

Felix G. Andrews, Claimant's engineering and highway design expert, offered his views of how Claimant's accident occurred. His experience includes design and rehabilitation of highways, bridges, and railroads primarily in the New York metropolitan area, as well as prior positions as Commissioner of Public Works for the Town of North Hempstead and Deputy Commissioner of Public Works for Nassau County. [
See, Exhibit 61]. He testified concerning the Defendant's alleged deviation from good and accepted engineering, safety, roadway design and maintenance practices. He discussed the Defendant's alleged negligence in allowing excessive water runoff and inadequate drainage to exist - a known, dangerous condition - and failing to remedy the condition; Defendant's alleged negligent failure to maintain the pavement on the roadway so as to retain a sufficient coefficient of friction allowing the tires on Claimant's vehicle to still grip the roadway despite its wet condition; and the Defendant's alleged negligent failure to properly design the Taconic to include an adequate recovery area that would have halted the travel of Claimant's car once she lost control.
His understanding of the mechanics of Claimant's accident was based upon a review of her deposition, and the "significant" parts of the police accident report wherein Trooper Murphy indicated Claimant's vehicle came to rest at two-tenths of a mile north of Miller Hill Road, and the sketch Trooper Murphy included showing how the vehicle swerved [T. 281]. From Miller Hill Road to approximately 450 to 500 feet north of the intersection the road is banked to the left for a northbound motorist. Banking, he explained, "is the procedure to raise the outside of a curve so that a vehicle tends to have more control on a curve . . . [Thus when a road is curving to the left] the edge of the pavement on the right side would be higher than the pavement on the left side so that a vehicle would not slide off the pavement going around a curve." A crowned section of a road slopes in both directions from a high point in the center, and is the "normal" configuration for roadway pavement in straight sections of highway. [T. 281-282]. At approximately 500 feet north of Miller Hill Road the normal crown returns.

Mr. Andrews indicated that between the Miller Hill Road intersection and two-tenths of a mile north there are only two signs on the northbound side of the Taconic. The first is an intersection sign at approximately 500-546 feet north, and the second is a 55 mph sign approximately 1049 feet north. [T. 301-303; Exhibit 29;
See, also Exhibit F]. Based upon Claimant's indication that she lost control of her vehicle a few seconds after passing the Miller Hill Road intersection, Mr. Andrews opined that she lost control somewhere within the 500 feet north of the intersection - or between 210-371 feet north of Miller Hill Road [T. 320-323] - ran off the road and struck the intersection sign, returned back to the road striking the median guardrail, then coming to rest by a stop sign and one way sign two-tenths of a mile north of Miller Hill Road.[2] He opined that Claimant's vehicle left the roadway approximately ten feet south of the intersection sign, and returned to the roadway approximately ten feet north of the intersection sign. [T. 565].
As noted, going north from Miller Hill Road, the Taconic is first configured as banked - with the easternmost edge on the northbound side higher than the center - then containing a "lesser bank" in a "transition area", and finally a normal crown. [T. 354]. Where the road is banked, water is removed from the pavement by flowing across the roadway. [T. 356;
See, Exhibit 31]. In a "transition section" the road's "high side starts to rotate down . . . until you get to the normal crown section . . . In the transition . . . [the water] still goes across." [Id]. In a "crown section", the "normal procedure, [according to Mr. Andrews], is to put the structures in the gutter section," so "the water goes from the center line to the gutter on . . . [each] side." [Id].
The area to the east of the Taconic within two-tenths of a mile north of Miller Hill Road is higher than the road's surface, incorporating Hasman Mountain, which reaches an elevation of 1200 feet. [T. 360]. At the section wherein Mr. Andrews states Claimant went off the road, the elevation to the east is 500 feet. He asserted that there was, therefore, "700 feet of mountain . . .shedding water down to the Taconic.
[Id]. He stated that there are no engineering controls in place to remove runoff water until a crowned section of the roadway approximately 730 feet north of Miller Hill Road where there is a structure to intercept the water. [T. 360-361]. According to his evaluation of data collected by the DOT [See, Exhibits 33 and 34], 29 cubic feet per second of run off water would reach the travel lanes of the Taconic. [T. 363]. Visualizing a cubic foot of water as water that is 12 inches x 12 inches x 12 inches, this figure describes the amount of water that moves forward per second. [T. 364]. On March 31, 1997, he opined that 90% of the water on the pertinent portion of the Taconic would come from run off, and that the run off water would increase the likelihood that a vehicle would have an accident due to lubrication. [T. 365]. He further voiced the opinion that the drainage on the Taconic as of March 31, 1997 may have been adequate "for whatever water fell from the sky on the pavement, but it did not have adequate drainage for the water shed from the mountain." [Id]. The design of the drainage facilities, he stated, fell below the generally accepted standards of engineering at the time the Taconic was built.
Mr. Andrews explained that hydroplaning is a phenomenon whereby a vehicle's tires cannot push the water out of the way in front of it, and a wedge of water is formed that the vehicle essentially mounts, leaving the car with no contact with the roadway and resulting in a total loss of control of the vehicle. [T. 325]. Although admittedly not an expert in hydroplaning, Mr. Andrews said that a vehicle like Claimant's - a Mazda Protegé - had to be traveling at a speed of at least 41 mph in order to hydroplane, [T. 346; 495-496], although even a lesser speed on a pavement that had water on it might result in a lack of control of some degree. [T. 347].

With regard to the original design of the Taconic in the 1930's, Mr. Andrews stated that as originally designed it had only one lane traveling north, and another traveling south. [T. 366]. There was no median barrier, and a ditch ran alongside the road. He asserted that the ditches alongside the road were designed to allow for water to drain. A "typical section" is shown in Exhibit A, pages 5 and 6, showing a drainage ditch "approximately seven or eight feet back from the curb line." [T. 367]. In approximately 1938, an additional lane was added in each direction. When those lanes were added, the ditch area was eliminated to accommodate the extra lane. Mr. Andrews stated that by adding the lanes, "they destroyed the ditch system." [T. 366]. There was a widening of the road by 11 feet on both sides. [T. 369; Exhibit C]. Because there were no ditches, Mr. Andrews opined that "90 percent of the water would not have been on the pavement [during Claimant's accident] if the drainage had been intercepted by a ditch alongside." [T. 370].

Mr. Andrews also spoke about the surface of the pavement, and the alleged failure to maintain the surface in order that it allow for sufficient traction for the vehicles using the Taconic to proceed safely. "Aggregates" are any of several natural products, such as crushed rock and sand, used to make concrete. [T. 372]. Aggregates provide strength to an asphalt road. [T. 373]. Liquid asphalt acts "as the glue or binder," keeping the crushed stone and sand together to form a "bed" for vehicles to ride on. [
Id]. Harder aggregates in a road surface last longer and maintain the "coefficient of friction" for a longer period. [T. 374] The coefficient of friction, he explained, is the relationship between the amount of force needed to pull something across a surface and the surface itself. [T. 374]. When a surface is more slippery, less force is needed to pull an object across it.
Based upon his examination of photographs, and a brief visual examination of the Taconic road surface itself in December 1998, Mr. Andrews opined that the pavement surface between Miller Hill Road and two tenths of a mile north of the intersection "had been in place for quite a while" on March 31, 1997. [T. 376]. He thought the pavement was nine to 10 years old and described the aggregate as "polished": a condition which occurs as traffic moves over the surface, polishing the stone, wearing away the surface. [T. 376-377]. The surface contained nothing but stone, "realigning" itself as the traffic rolled over it. The coefficient of friction "varies inversely with the age of the pavement . . . [T]he older the pavement, the less the coefficient of friction." He did not perform any skid resistant tests on the pavement, but nonetheless opined that from the color of the pavement and his view of its age the coefficient of friction was "probably half of what it was when it was new." [T. 378]. Additionally, with a wet pavement, the coefficient of friction "drops" "probably 17 percent."

Thus, it was his opinion that the combination of the wet surface from the rain, run off and lack of drainage, and the polished pavement were part of the cause of the loss of control of Claimant's vehicle on March 31, 1997 between Miller Hill Road and two-tenths of a mile north. [T. 379]. He thought certain steps might have been taken to improve the condition of the pavement with respect to its coefficient of friction, including the placement of some type of "seal coat" that would include an aggregate component, or "longitudinal grooving" to improve traction. [T. 379-380].

When the Taconic was originally designed, no "recovery areas" were incorporated in the plan. Mr. Andrews defined recovery area as an area where "a vehicle that travels outside of the paved area can come to rest without going into another vehicle." [T. 391]. Today recovery areas are placed at both the inside and outside lanes of a highway. There were no protections from oncoming traffic in the original design, although the outer edge had sufficient depth at the shoulder to work as a recovery area. [T. 392]. The outer edge was eliminated, however, with the reconstruction in 1938 to increase the travel lanes in each direction. Mr. Andrews opined that the concept of a recovery area was instituted in the 1950's, and that by the 1970's - when the median barrier on the Taconic was installed - it was common knowledge within the engineering community that recovery areas should be included in the design. [T. 392-393]. With regard to the hazards presented by the lack of a recovery area, there is simply no place for a disabled vehicle to go, and the likelihood of a second impact is increased. [T. 393]. Mr. Andrews opined that had there been a recovery area to the east of the Taconic in the area of Claimant's accident she would not have hit the center guardrail but would have come to rest on the side of the highway immediately after hitting the intersection sign. [T. 394]. Although not designed for originally, Mr. Andrews said there was a functional recovery area before the Taconic was reconstructed in 1938, thus the second design was a deviation from the original. [T. 396].

Mr. Andrews testified very briefly on direct examination concerning the accident history on the Taconic from the Miller Hill Road intersection to two-tenths of a mile north, based upon accident studies prepared by the DOT using "nodes" to describe accident locations instead of mile markers. [
See, Exhibits 17 and 18]. He limited the accidents he considered comparable to those that involved sliding of any kind - including on ice, and dry pavement - and loss of control of a vehicle for whatever reason, within a geographical range he considered appropriate. [T. 386]. He stated that the 33 accidents of the type he stated were relevant should have alerted the DOT of the asserted drainage problems, and road surface problems. [T. 387].
Several issues were explored on cross-examination. The intersection sign Mr. Andrews indicated Claimant struck is at least 8 feet off the road, and set on an incline that begins the elevation of Hasman Mountain to the east of the Taconic. [T. 535; 360; Exhibit F, No. 96]. In front of the sign, is a sapling of some 12 feet in height, and other saplings appear north of the intersection sign. They appear undamaged in the photograph taken two months after the accident. [Exhibit F, No.96]. The witness testified that after "sideswiping" the intersection sign with the left side of her vehicle, the car went around the sign and back onto the roadway. He described the angle at which Claimant's vehicle left the Taconic to ascend the incline toward the intersection sign as a 54-degree angle, and her return to the roadway as a 36-degree angle. [T. 562-565]. He never inspected Claimant's vehicle, or saw pictures of it, but rather was told that there was damage to the front of Claimant's car. [T. 431-433]. Even with a recovery area of seven feet, Mr. Andrews could not say that had Claimant's vehicle left the roadway at a 54-degree angle, it would have had sufficient room to recover and avoid an accident. [T. 578-579]. Mr. Andrews admitted that if a vehicle were traveling at a rate of speed between 35 and 40 mph and struck a sign post it would knock the sign down. [T. 526].
When Mr. Andrews inspected the accident location site in December 1998, he could not recall how far north he walked from the intersection of Miller Hill Road, although he thought he may have walked as far as the intersection sign. [T. 638]. It was during this walk that he formed his conclusion concerning the age of the pavement, finding the color "rather light" and seeing "stones on the surface, which were rather polished." [T. 640; 643]. In a report dated August 1, 1999, however, Mr. Andrews cites only the weather, lack of adequate drainage, and inadequate recovery areas as the three conditions leading to Claimant's accident. [T. 656; Exhibit
CCCCC]. There is no mention of polished stone or deteriorating aggregates. [Id].
With respect to his accident analysis, on cross-examination he admitted that he had never obtained the actual police accident reports pertaining to the accidents he thought were comparable. Thus, when the particulars were subject to more probing inquiry, Mr. Andrews could not provide a single accident that involved hydroplaning in the area of Claimant's accident. [T. 605-606]. Because he used all accidents that noted "loss of control" as a factor, he included irrelevant accidents in his analysis involving, for example, other factors such as a driver's distraction by a passenger, and the presence of a flag man merging traffic. [T. 593-594]. He also admitted that the studies included sections of the Taconic with completely different drainage and sloping characteristics from those in the area of Claimant's accident. [T. 595-597; 599]. Additionally, Mr. Andrews admitted a bias toward determining that in the event of his uncertainty as to whether to include an accident in his totals, he would include it.

It was only on redirect examination of Mr. Andrews that Claimant introduced portions of an engineering textbook from 1935 to attempt to establish what the applicable engineering standards of the day concerning drainage were at the time the Taconic was constructed. [
See, Exhibit 62]. The chapter introduced has the limited utility of showing that drainage - defined as the process of removing excess water from the roadway or preventing excess water from reaching it - was a recognized concern in highway design in 1935. [T. 811]. Mr. Andrews' opinion that ditches were the methodology used to collect surface water as an "engineering custom of the 1930's" is echoed in the text. It was not established, however, when the use of ditches as a drainage system for different types of roads (for example, local roadways, or parkways, or high speed roads) was applicable.
Nicholas Pucino, the Defendant's engineering and highway design expert, also testified at length. Mr. Pucino has a significant history of employment with the DOT as a civil engineer with hands on experience in all phases of highway design and construction. [T. 990-991;
See, Exhibit S]. Significantly, he served as a liaison to the East Hudson Parkway Authority which was responsible for the design and construction of all major parkways in the entire mid-Hudson region. [T. 991]. He was also responsible during his tenure as Chief Engineer for overseeing the safety needs of the parkway system, and developed a computer-assisted program and methodology for analyzing accident history as a basis for planning, prioritizing, and scheduling needed improvements. [T. 992-993].
Mr. Pucino explained that the parkways had been designed with certain unique characteristics, including aesthetic and recreational values. [T. 996]. Using curbing to control drainage was one of those aesthetic considerations, allowing the roadside character to remain neat, and avoiding the dangers associated with the use of ditches, specifically vehicles becoming trapped in ditches. [T. 997]. Instead of an open drainage system with ditches, the parkways were designed with closed drainage systems, directing drainage onto the travel way and controlling it by curbing and internal pipes and sewers. [T. 996-997].

Based upon his experience in reviewing plans for "just about every section of parkway built in this area", Mr. Pucino testified that the "five parkways" were all designed to "have drainage run off the side slopes over the curb and onto the travel way, . . . to be taken care of by the curbed roadway and the internal drainage system of catch basins that are part of the parkway itself." [T. 1030-1031]. A 1935 paving contract showing the original stages of construction of the Taconic indicates that four lanes of travel were intended. [T. 1037; Exhibit A]. Mr. Pucino explained that although only two lanes were built initially, the road was graded out an additional 15 feet on the left-hand side, and an additional 11 feet on the right-hand side, in order to incorporate the expansion to four lanes. [T. 1038]. Because no internal drainage system had yet been installed - although one was intended - ditches were put in place. [T. 1038-1041]. In 1938 when the road was expanded, the ditches were removed. Mr. Pucino opined that this was standard parkway engineering practice to have a curbed roadway with an internal drainage system without ditches. [T. 1040].

Immediately to the north of Miller Hill Road, as designed, the road was banked for approximately 300 feet with one intention being to have water run across the parkway. [T. 1043-1044]. In the banked area, water came down the slope over the curb, ran across the pavement to the southbound side of the Taconic, and into drainage basins. [T. 1051-1052]. After the banking portion, Mr. Pucino indicated that there was a transition area (at approximately 300 feet) where the road evolved from being banked or sloped to a normal crown at approximately 400 - 460 feet north of Miller Hill Road. [T. 1051]. Once the crowned area is reached, the southbound lanes continue to take water away from the median, but the northbound lanes tilt to the east, so the water falls on that portion of the pavement to the east, and runs along the curb line in a north/south direction. [T. 1052]. Reminded of Trooper Murphy's testimony concerning his observations of some water flowing in a north to south direction along the Taconic, Mr. Pucino opined that this demonstrated that the water was being carried the way it was supposed to be. [T. 1053].

As a road is resurfaced, the curb is gradually buried, changing not how the water goes over the roadway, but how the water runs off the roadway. [T. 1106]. The water will "run to the soil, the ground, or shoulder" bordering the roadway. The curb is not a dam; it was never intended to extend above ground level at the outside shoulder area. It was designed to be "flush with the ground on the outside of it or the shoulder area." [T. 1107]. If there is a super-elevated section of the roadway, and you have the full curb height, the water would merely run over the grass, over the top of the curb and onto the travel way. If the curb is buried, the same thing happens. [T. 1105-1107].

In terms of designs and topographical features of the Taconic impacting on drainage, Mr. Pucino explained that north of the Miller Hill Road intersection, a paved area sloping away from the northbound travel lanes to the east intercepts water and carries it back toward Miller Hill Road and down into a field inlet. [T. 1045]. Water is intercepted to the east by Rockledge Road, running parallel to the Taconic, and intersecting with Miller Hill Road. [
See, Exhibit F, Nos. 84 and 86]. Mr. Pucino opined that this interception of water by Rockledge Road would operate for approximately 400 or 500 feet north of Miller Hill Road. [T. 1047-1049]. From 150 feet north of Miller Hill Road - where there is a rock outcropping and a steep slope, any water that came down the slope beyond Rockledge Road would travel across the travel way onto the southbound lanes as designed. [T. 1044]. Additionally, a contour map as well as Mr. Pucino's own observations show that there is a swale - meaning a width of land containing a depressed area - commencing at approximately 700 feet north of the Miller Hill Road intersection, and containing a field inlet "in the heart of the swale." [T. 1023 - 1028; T. 1116-1117; Exhibits 28; BB, CCCC]. A field inlet is the equivalent of a catch basin. [T. 1027]. This field inlet is downgrade from the 55 mph sign - located at two-tenths of a mile north of Miller Hill Road - and north of the 55 mph sign by about 150 feet. [T. 1028]. Any water collected in the swale would run north toward the field inlet. [T. 1030].
Mr. Pucino conducted an accident analysis for the five years preceding Claimant's accident, and found no pattern of accidents implicating drainage concerns, including hydroplaning. [T. 1053]. He found two wet weather accidents south of Miller Hill Road. [T. 1054]. As part of his investigation, he obtained copies of accident reports maintained by the Department of Motor Vehicles, reviewed highway traffic volume, as well as statewide averages for wet weather accidents as compared to the averages along the Taconic, as well as the highway safety investigations conducted by the State and plans for the Miller Hill Road improvement project commenced after the subject accident. [T. 1053-1059; Exhibits 16, 17, 18]. He noted that for the entire 5 year period before Claimant's accident over 15 million vehicles drove over the subject section of the northbound Taconic, yet he found only the two wet weather accidents. [T. 1055-1056]. Together with the highway safety studies no drainage problems in the pertinent area were deemed noteworthy. [T. 1058]. Mr. Pucino stated that the percentage of wet weather accidents from the areas studied was well below the statewide average. [T. 1058]. No accident could be considered a hydroplaning accident. [T. 1102]. He opined that if there were a hydroplaning problem in that area "you're going to get a lot of accidents because there's nothing a motorist can do to avoid it once it occurs, so it's going to be reflected in the accident pattern." [T. 1103].

With regard to asserted defects in the pavement, Mr. Pucino disagreed with Mr. Andrew's assessment of the surface of the road in the pertinent area. He noted that in the physical checklist portion of a field report contained in one of the DOT studies, there is no indication that the pavement was in any way compromised from the Miller Hill Road intersection to three-tenths of a mile north on the northbound side. [T. 1080-1082;
See, Exhibit 17]. He stated that it was not possible to tell from photographs whether pavement was polished, but rather one needed to " to put your nose practically against the pavement and feel it and get a sense through the texture." [T. 1104]. The lighter color depicted in photographs reflects only normal oxidation. [T. 1105; See, Exhibit F]. He indicated that if a road surface were susceptible to polishing, resulting in a loss of frictional resistance, it would generally occur in the first few years of the pavement's life. [T. 1107-1109]. If the polishing has not occurred within two to three years, "the frictional characteristics stabilize and it remains pretty much constant over the remaining life of the pavement." [T. 1109]. Mr. Pucino opined that had there been a polished pavement problem in the area of Claimant's accident it would have been reflected in an accident pattern not present here. [T. 1103-1104]. Additionally, no skid tests were performed by the DOT north of the Miller Hill Road intersection. [T. 1120]. Such tests will be performed when there's a location with a high incidence of wet weather accidents, or as a means of testing the performance of a particular type of pavement. [T. 1119].
Finally, with respect to the mechanics of Claimant's accident, Mr. Pucino opined that the mechanics proposed by Mr. Andrews were not credible. [T. 1114-1116]. He stated: "[D]riving down a highway at 35 to 40 miles an hour and being able to make a turn of 54 degrees is so farfetched it's inconceivable even to a lay person. There's no way you could make that quick a turn on a pavement, whether wet or dry. There's no way she could have left the roadway that close to the sign [
i.e., within ten feet] and gotten around the sign . . . She also had to climb a fairly steep slope, get all the way around that sign . . . there's brush and there's a pretty hillside around that sign, she'd have really been sort of tilting, but this is like trying to make a right angle turn from 30 or 40 miles an hour, you can't do it . . . [Assuming] that somehow that happened, then the vehicle got around the sign, then [came] back to within ten feet of the sign, which . . . is not a u-turn, that's a v-turn. Cars have enough time [sic] making u-turns, but at 35 or 40 miles per hour to make a v-turn? . . . [Assume] that the vehicle got around that sign, comes down and hit the median barrier in a near head-on . . . Now, to continue down the road after hitting that barrier on that high an angle and continue down the road 500 feet? It's just impossible." [T. 1115-1116].
On cross-examination, Mr. Pucino agreed that roads are generally more slippery when they are wet, and that a polished road is more slippery when wet than dry. [T. 1158]. He confirmed again that part of his responsibility when working for the DOT had been identifying sites for which design flaws were contributing to a substantial number of accidents, determining the priority for rehabilitation, and scheduling improvements. [T. 1209-1210]. He had been unable to find any records of resurfacing of the Taconic prior to 1991, nor did he of his own personal knowledge recall a resurfacing, except one done in the pertinent area in 1972. [T. 1223-1226]. He reiterated that it was water of a certain depth that could cause a hazard such as hydroplaning, not just water on the parkway. [T. 1265]. He conceded that the steepness of the embankment - assuming she really did go off the road - might have propelled her vehicle back to the roadway. He agreed that in a different case he had testified that a hydroplaning vehicle had traveled 325 feet. He maintained, however, that in Claimant's case it was unlikely she was only traveling at 40 mph.

DISCUSSION AND CONCLUSION Claimant argues that the State designed and maintained the Taconic State Parkway in a manner which predisposed vehicles to a loss of control both during dry and wet weather and further extended the amount of time that said vehicles remained out of control. Claimant contends that the inadequate design and lack of maintenance of the roadway caused her car to go out of control and prevented the loss of control from being recovered which enhanced the severity of her accident.
The State has a non-delegable duty to maintain its roads and highways in a reasonably safe condition to prevent foreseeable injury, but is not an insurer of the safety of its roads.
See, Friedman v State of New York, 67 NY2d 271 (1986).[3] No liability may attach unless the ascribed negligence in maintaining the roadway is a proximate cause of the accident. Hearn v State of New York, 157 AD2d 883 (3d Dept 1990), lv denied 75 NY2d 710 (1990). In fulfilling its obligation the State may assume that those using the roads will use reasonable care and obey the law governing the operation of motor vehicles, including maintaining a reasonable speed for the conditions. See, Tomassi v Town of Union, 46 NY2d 91, 97 (1978).[4]
Where a claim is based upon negligent design, the State's planning and decision making function enjoys qualified immunity.
Weiss v Fote, 7 NY2d 579 (1960), rearg denied 8 NY2d 934 (1960). Liability attaches only when the design was evolved without an adequate study or lacks reasonable basis. It is the standards of the day that apply with respect to a design, but when renovations or reconstructions occur, the State is obligated to exercise due care in the renovation. See, Segnit v State of New York, 148 AD2d 519 (2d Dept 1989), lv denied 75 NY2d 702 (1989). Once the State has implemented a traffic plan, it is under a continuing duty to review its plan in the light of its actual operation. Friedman v State of New York, supra, at 284; Olson v State of New York, 139 AD2d 713, 715 (2d Dept 1988 ). Failing to correct a known hazardous design could render the State liable based upon that continuing duty to review plans in light of actual operation. See, Atkinson v County of Oneida, 77 AD2d 257, 261 (4th Dept 1980), see also, Van Son v State of New York, 116 AD2d 1013 (4th Dept 1986); Zalewski v State of New York, 53 AD2d 781(3d Dept 1976).[5]
No liability may attach, however, unless Claimant establishes that the State had actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct the condition.
Brooks v New York State Thruway Auth., 73 AD2d 767, 768 (3d Dept 1979), affd 51 NY2d 892 (1980).
The State's negligence is not established by the mere presence of ice, snow or water on a highway when a vehicle loses control.
Timcoe v State of New York, 267 AD2d 375 (2d Dept 1999); Fiege v State of New York, 189 AD2d 748 (2d Dept 1993). Claimant must establish that any flooding in a particular area was a recurrent condition of which Defendant should have been aware. Freund v State of New York, 137 AD2d 908, 909 (3d Dept 1988), lv denied 72 NY2d 802.
Finally, whatever kind or degree of negligence is asserted it is the Claimant's burden to show that the negligence claimed is the proximate cause of her injuries.
Jordan v State of New York, 249 AD2d 279 (2d Dept 1998); Hearn v State of New York, supra, 885. While she is not obligated " . . . to rule out all plausible variables and factors that could have caused or contributed to the accident . . . [or] positively exclude every other possible cause of the accident . . . the proof must render those other causes sufficiently 'remote' or ‘technical' to enable the . . . [fact finder] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence [citation omitted]." Gayle v City of New York, 92 NY2d 936 (1998); See, also, Burton v State of New York, 283 AD2d 875 (3d Dept 2001).
As an initial matter, Claimant asks that the Court grant her a "missing document presumption." This would allow an unfavorable inference to be drawn concerning the paving of the Taconic - or the failure to pave it - based upon Defendant's alleged failure to produce evidence within its control which it would naturally be expected to produce. "In order to receive a missing document . . .[presumption], a party must make a
prima facie showing of entitlement, i.e., that the documents in question actually existed and were in the adversary's control. Fares v Fox, 198 AD2d 396, 397 (2d Dept 1993); see also, Chary v State of New York, 265 AD2d 913 (4th Dept 1999). The Claimant has not established entitlement to such a presumption.
As noted above, Mr. Griemsmann's explanation of the lack of paperwork for certain periods is credible given the changes in administration and authority over the parkways during the time periods in question. Although once Mr. Griemsmann took over record-keeping functions such records have been maintained, there is nothing in this record to credibly establish what the "normal practice" was, thus whether such documents existed is not established.

The Claimant did not establish that the pavement in the area from Miller Hill Road to two-tenths of a mile north was in a polished condition creating a hazard about which the State should have had notice. Mr. Andrews' opinion of the pavement's condition appears to have been added to his overall theory of the case after the fact. As noted, he did not include any observations of the pavement in a report from August 1, 1999. [
See, Exhibit CCCCC]. Moreover, the basis for his opinion was primarily photographs. The Court credits Mr. Pucino's suggestion that the only way to truly assess a pavement's condition is to examine it very closely - something Mr. Andrews did not do. Additionally, Mr. Pucino's description of the road surface demonstrated a familiarity based upon actual, close, observation.
Claimant also contends that drainage on the Taconic was inadequate because it failed to intercept run off water, which dramatically increased the amount of water on the Parkway and caused her loss of control. Since the Taconic State Parkway was reconstructed in 1938, drainage was and has remained an essential highway design feature. While certainly water on a parkway was recognized as a hazard in 1930, Claimant has failed to establish that the State negligently designed the Taconic as an initial matter, and that it thereafter failed to exercise due care in continually reviewing the utility of the design based upon its actual operation. Claimant has not satisfied her burden of showing that the State had actual or constructive notice of a dangerous condition and failed to remedy the hazard.
With respect to the standards of the day, the Court finds that an isolated chapter from an engineering textbook addressing drainage does not do more than suggest that the designers of the 1930's were aware that water could be a problem, addressed in varying ways. The Court finds Mr. Pucino's explanations of the special design considerations involved in constructing the parkway systems of the State internally consistent and highly credible. While
Mr. Andrews opined that a ditch absolutely should have been maintained when the expansion to four lanes occurred in 1938, Mr. Pucino more cogently established that the expansion had been contemplated in the initial design, and that the ditches were but a temporary measure to be discarded upon installation of the closed drainage system. To some degree, it is counterintuitive to think that a roadway was designed to allow water to run across travel lanes at all, but that is essentially what both experts testified to, to varying degrees. The Court finds Mr. Pucino's experience in this area of parkway design is formidable, and fully credits his opinion that the Taconic was built to the standards of the day.[6]
Claimant lost control of her vehicle when it began to slide and stopped responding to her attempts to steer it.
The only witnesses to the actual conditions present on the day of the accident are Claimant and Trooper Murphy, who both indicated there was no observable puddling of water, and that despite frequent trips on that portion of the Taconic, there had been no observable excess water in the past. See, Green v County of Niagara, 184 AD2d 1044 (4th Dept 1992). Trooper Murphy's accident report says nothing about going off the roadway and hitting a sign of any kind, but mentions only striking the median. [Exhibit 1]. While the Court is mindful that Claimant appeared an honest witness, the information she provided on the day of her accident seems more meaningful than the information she somewhat inconsistently provided at two depositions and at trial. The Court is simply not convinced that her vehicle ever left the roadway as later versions described.
When she identified the cause of her accident to Trooper Murphy on the actual day of the accident, she said there was slippery pavement. [Exhibit 1]. Claimant was issued a ticket for unsafe speed, although she was not convicted of the charge. While there is no other evidence to suggest that Claimant was driving in a less than prudent manner or that the condition of her vehicle played any role in the accident, nonetheless, her testimony concerning the mechanics of her accident is not reliable. Accordingly, Mr. Andrews' opinions concerning how this accident occurred and the reasons for it are too speculative for this Court to credit.

Mr. Pucino's concessions on cross-examination concerning the possibility of Claimant's car being propelled off the embankment back onto the road, and prior testimony in another trial to the effect that the hydroplaning vehicle traveled some 325 feet notwithstanding, the Court does not find at all credible the accident reconstruction presented by Mr. Andrews - involving unlikely angles of travel for the car, and going against the actual, forensic evidence at hand in the form of the testimony of Trooper Murphy and Claimant. Mr. Pucino stated the accident was caused by weather and an excessive rate of speed for the conditions[7]
. Mr. Pucino has been recognized as an accident reconstruction expert by the Court of Claims in at least one other case. See, e.g. Twirbutt v State of New York (Ct Cl) Lebous, J., April 14, 2000, UID No. 2000-019-003, Claim No. 90316, ( In this Court's view, the reconstruction presented by Mr. Andrews was advanced without substantial basis or adequate investigation. As noted earlier, the original Claim alleges only general negligence in the design, construction and maintenance of the Taconic. In the Bill of Particulars dated August 19, 1999, Claimant alleges only that there was excess water on the roadway and inadequate drainage. It is only later, in an undated supplemental Bill of Particulars, that Claimant first mentions a polished roadway surface and a failure to provide a recovery area. Whatever inspection Mr. Andrews conducted was done in 1998, yet even in the report of August 1, 1999 - and the Bill of Particulars from the same time frame - these additional opinions are not included. In this Court's view, their later inclusion also renders the opinion not credible.
Both experts agree that once a vehicle begins to hydroplane the driver cannot control the vehicle's movements. While it is true that Claimant would not be responsible for the condition of a road upon which she drove, neither is the State responsible if poor road conditions were not known.

For the sake of argument, then, if the conditions alleged existed, the State did not have actual or constructive notice of such hazards.
See, Harris v State of New York, (Ct Cl), Corbett, J., September 19, 2002, UID #2002-005-011, Claim No. 95287 Mr. Foglietti and Mr. Pucino stated that a high rate of a specific type of accident is a factor that is considered in deciding whether to modify an existing highway. Mr. Pucino also testified that the DOT does skid tests if there is an identified slippery pavement problem. Except for the notation in Mr. Parker's study concerning slippery pavement south of the Miller Hill Road intersection, there was no internal identification of such condition. The accident descriptions in the studies do not support the view that a significant portion of the accidents were caused by drivers experiencing a loss of control related to any of the allegations of the claim - that is, attributable to lack of drainage and polished pavement, or the lack of a recovery area.
Accordingly, Claimant did not establish that the State had actual or constructive notice of the conditions alleged to have caused Ms. Goodman's accident, and that these conditions were causing an inordinate amount of accidents. Prior to 1997, although the intersection of the Taconic and Miller Hill Road had been identified as a significant accident location, those accidents were not related to slippery conditions due to polished pavement or water run off, or to a lack of a recovery area. It was Claimant's burden to show that prior accidents of a similar nature were caused by the same or similar contributing factors causing the accident at issue.
Hough v State of New York, 203 AD2d 736, 739 (3d Dept 1994); Whiter v State of New York, 148 AD2d 825, 826 (3d Dept 1989), lv denied 74 NY2d 613 (1989); Restifo v State of New York, 40 AD2d 889 (3d Dept 1972).
On this record, the Claimant has simply not shown " . . . that the asserted negligence of the State was a substantial factor in bringing about . . . [the accident]."
Murray v State of New York, 38 NY2d 782, 784 (1975); See also, Sosa v City of New York, 281 AD2d 469 (2d Dept 2001); Stanford v State of New York, 167 AD2d 381 (2d Dept 1990), lv denied 78 NY2d 856 (1991); Sebukaty v State of New York, 73 AD2d 705 (3d Dept 1979).
In this case, Claimant has failed to meet her burden of establishing the existence of a dangerous condition created by the Defendant or of which Defendant had actual or constructive notice requiring dismissal of the claim.

All trial motions not otherwise disposed of are hereby denied and Claim Number 100036 is hereby dismissed.

Let judgment be entered accordingly.

June 30, 2003
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to the transcript of trial testimony unless otherwise indicated.
[2] The Court notes that an inordinate amount of time was spent on the exact plotting of the distances between the Miller Hill Road intersection and the signs along the way until the point where Claimant's vehicle was found, and the differences between the distances described. The topographical maps used [See, Exhibits 27, 28 and 29], the traffic studies [See, Exhibits 17 and 18], and the design drawings from the reconstruction project initiated after 1997 and from the 1930's [See, Exhibit 32] were simply not scaled the same way, nor did the testimony of Mr. Andrews or Mr. Pucino - the State's expert - or Trooper Murphy, speak to the distance measurements they were discussing with any great consistency. For example, at one point a witness indicated that when he was speaking of measurements from Miller Hill Road to a given point north he was measuring from the middle point of the road versus its edge. In short, neither expert could really state the precise location of any of the mechanical events of Claimant's accident to within less than 50 feet. Since their opinions were based upon the relative distances between topographical features and the signs along the way, for the purposes of the opinions of the two experts, the exact measurements in terms of feet were not necessary. The relative distances, however, were meaningful in the general sense that they inform the credibility of the respective experts' opinions of how far an out of control vehicle could be expected to keep careening - and in what directions - once it was set in motion.
[3] These four cases decided concurrently all involved so-called ‘cross-over' accidents occurring on State constructed and maintained highways in which the alleged negligence is the State's failure to install median barriers.
[4] " . . . 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 . . .", at 97.
[5] Zalewski, supra, Van Son, supra, and Segnit, supra, all involve the failure to either upgrade or appropriately replace guardrails. With respect to the first two cases, notice of a dangerous condition was well established. In Zalewski, supra, the State contended that the correctness of their design could not be reviewed by the courts
because the structure in question complied with good engineering practices in effect at the time it was built. In rejecting this argument, the Court held that the State was liable if the design lacked a reasonable basis and subsequent events demonstrated the presence of a dangerous condition.
With regard to Segnit, however, no notice was established.
[6] Claimant renewed her in limine motion to strike Mr. Pucino's opinion that the Taconic was built in accordance with the standards of the day because the opinion lacks any foundation in evidence, is speculative, circular and unreliable. This issue was briefed and the Court reserved ruling on this issue. The motion to strike is denied. Claimant urges that because Mr. Pucino could not identify distinctions between highways and parkways in the drainage chapter of the State's current highway design manual, [T. 1854, 1855], he should not be able to state that such distinctions were thought of in the 1930's. Current standards are not the issue. While today, in standards promulgated by the DOT in the highway design manual, the design criteria for drainage on parkways and Rural Arterials, (highways) may be the same [See, Exhibit. 36,, 2.7.2], the Court finds that does not negate the validity of Mr. Pucino's expert testimony concerning parkways of the 1930's. That the State did not present any documentary evidence to support the conclusion that parkways and highways had different drainage design criteria in 1938 is not dispositive, given the time frame involved, and the weight given to Mr. Pucino's experience.
[7]Indeed, Mr. Andrews had opined that in order to hydroplane the vehicle must have been traveling at least 41 mph: directly contradicting claimant's testimony that she was traveling between 35 and 40 mph.