New York State Court of Claims

New York State Court of Claims

LOMBARDO v. THE STATE OF NEW YORK, #2003-032-512, Claim No. 101734


The State has 30 per cent responsibility for a highway accident caused by its inadequate plan for the design of a channelization project and its failure to review the implementation of its design plan to recognize dangers that were created.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Zwiebel, Brody, Gold & Fairbanks, LLPBy: Alan S. Zwiebel, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 2, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose on March 5, 1999 when claimant, Giuseppe Lombardo, was involved in an automobile accident with a tractor trailer on State Route 52 in the Town of Wawarsing, New York. The claim alleges that the State was negligent in the design, construction, operation and maintenance of State Route 52 in the area of the accident. The trial was bifurcated and this decision addresses only the issue of liability. The Court finds that both parties were responsible for the occurrence of this accident, the State because of inadequate study and design and claimant because of negligent operation of his own vehicle. Liability is apportioned 70 per cent for claimant and 30 per cent for defendant.

At approximately 7:00 A.M. on the morning of March 5, 1999, Giuseppe Lombardo ("Claimant")[1]
awoke, fed his horse, got into his car and started his drive to work. He was employed by the Pine Grove Resort Hotel and that day was supposed to be his last day of employment there. He had traveled this road for seven years, the time during which he was employed by the Pine Grove Resort Hotel. After traveling on Briggs Highway, where he resided, claimant entered Route 52 and headed in an eastbound direction towards Ellenville. Route 52 is a two-lane rural highway that runs east and west and has a 55 miles per hour (mph) speed limit. Briggs Highway is approximately one mile west of Duso Foods, the location where an accident occurred between claimant's pickup truck and a tractor trailer. There is a right curve in the road as one approaches the accident site in an eastbound direction.
On the day in question, the weather was good; the road was dry; and the sun was not yet up at the time claimant was traveling on Route 52. As claimant drove toward Duso Foods he maintained a speed of 55 mph up until the time his vehicle impacted with a tractor trailer which straddled Route 52 in front of Duso Foods.[2]
Claimant testified that he never saw the tractor trailer before the accident and that he did not apply his brakes at any time before the accident (Tr, 69-71). This testimony coincides with the testimony of both experts that there were no skid marks at the accident site (Tr, 204, 286). However, claimant's expert, Lawrence Levine, testified that, in his opinion, claimant took evasive action by moving his vehicle to the left prior to impact (Tr, 192).
Mr. George Gasparro was the driver of the 66 foot tractor trailer that was

straddled across Route 52 that morning.[3] Mr. Gasparro had delivered produce to Duso Foods for approximately twenty-six years, and in March 1999, he was at the facility three times per week. Mr. Gasparro had arrived at Duso Foods at approximately 5:30 that morning after picking up a load of produce at the Hunt's Point Market in the Bronx, New York. He approached Duso Foods as he headed west on Route 52, coming from Ellenville.
Duso Foods, which is located on the south side of Route 52, has an eastern driveway and a western driveway. Mr. Gasparro used the western driveway to enter the facility, but in order to do this he had to pull into the State-owned parking lot located on the north side of Route 52 and swing his truck wide enough to pull into the Duso Foods driveway by driving across Route 52. He had to do this maneuver because the curbing in front of Duso Foods made it difficult to drive a westbound truck directly into the facility's parking lot. After pulling into the western driveway of Duso Foods, Mr. Gasparro drove to the eastern end of the Duso parking lot, got out of his truck, opened the back doors, and then backed the truck into the loading bay. He was able to do this maneuver because at 5:30 A.M. the Duso Foods parking lot was not yet filled with cars and trucks.

Mr. Gasparro testified that ordinarily after his truck was unloaded, he would drive across Route 52 and enter the State-owned parking lot on the north side of Route 52 in order to close his truck's back doors (C-Exhibit 2, pp 277-278, 509-510, 526-527).[4]
He could not follow the same maneuver that he used prior to backing up to the loading bay, driving to the eastern end of the Duso Foods parking lot to close his doors because other trucks and vehicles had arrived and the parking lot was congested (id, pp 529-530). On the morning in question, Mr. Gasparro followed his usual routine, pulling his truck away from the loading bay and over to the eastern driveway. He stopped his vehicle at the edge of Route 52 and looked both ways. At trial, he estimated that he could see approximately 400 feet to the west from that location. Seeing no vehicles approaching, he proceeded to drive across Route 52, intending to pull into the State-owned parking lot on the north side. As his tractor crossed into the westbound lane of Route 52, he could see further to the west around the curve in Route 52. It was at that point that he saw claimant's pickup truck heading eastbound towards him. He estimated that claimant was driving 55 mph. When the pickup truck did not slow down, Mr. Gasparro stepped on the gas to get across the road more quickly. He stated that prior to impact he never heard brakes screeching. The front of claimant's pickup truck hit the rear wheels of the Gasparro trailer. Another vehicle that was proceeding east on Route 52 immediately behind claimant was able to stop without striking either of the vehicles involved in the accident (C-Exhibit 2, p 505).
Claimant has advanced three theories under which, it is alleged, the State could be held liable for his injuries. Thus, the Court is required to determine 1) whether a construction project carried out by the New York State Department of Transportation (DOT) to channelize the flow of traffic outside the Duso Foods facility created a dangerous condition that caused or contributed to Mr. Lombardo's accident; 2) whether the stopping sight distance created by this construction project was inadequate under DOT's own standards or standards established by the American Association of State Highways and Transportation Officials (AASHTO); and 3) whether signage at the accident site conformed to the requirements of the channelization project and, if not, who was responsible for the maintenance of the signage. Defendant State of New York argues that it is immune from liability with respect to its decision to implement a channelization design, because the design was based upon an adequate study and had a reasonable basis for implementation. Defendant further contends that the design complied with the DOT standards, that AASHTO standards are inapplicable to this case, and that claimant's negligence in the operation of his motor vehicle was the sole proximate cause of the accident.

In 1980, nearly twenty years prior to the time of the accident, Duso Foods and the State entered into negotiations about Duso Foods' desire to make use of a portion of the State's right of way on the southern side of Route 52 adjacent to the Duso Foods property (Exhibit 3 [Wickeri EBT], pp 11-12; Exhibit 16). In order to obtain the proper permits to convert State lands for such purposes, Duso Foods was required by the State to channelize the flow of traffic at the front of its property in such a way as to force trucks entering or exiting the facility to move in a certain direction. In this instance, the State wanted to require any traffic leaving by way of the facility's easterly driveway to make only right turns onto Route 52 (Exhibit 3, pp 27, 38). When Duso Foods' initial site plan was reviewed by DOT in early 1987, the State required that it be modified to include, among other features, a "right turn only exit" located east of the new main access (Exhibit 16 [Letter dated Feb. 6, 1987]). This was the exit by which Mr. Gasparro left the Duso Foods lot on the day in question.

Claimant argues that the study and design requirements imposed by the State for the permit to use the State land at the Duso Foods site were inadequate, particularly with respect to the decision about how to "channelize" this right turn only exit. Claimant's expert, Lawrence Levine, specifically maintained that the channelization design was made without adequate, or perhaps any, consideration of both sides of the road, because it still allowed trucks to pull straight across Route 52 into the north side parking lot[5]
. A curb on the other side of the road easily would have prevented this, he said. In addition, according to Mr. Levine, the design of the exits and entrances, as well as the channelization of the Duso Foods interchange, did not meet the engineering standards set forth in DOT's "Policy and Standards for Entrances to State Highways" (see, 17 NYCRR 1.2, Item No. 41)("DOT Policy manual"; C-Exhibit 7) and in the AASHTO "Policy on Geometric Design of Highways and Streets" ("AASHTO manual"; Exhibit 18) for sight distances. In his opinion, the exit's improper design, its failure to meet these design standards, was a proximate or substantial cause of the accident.
There was evidence at trial that the State carried out some inspections of the Duso Foods premises and did consider some channelization studies before undertaking to place certain requirements for the channelization design of this project. Jeffrey Wickeri, an assistant regional traffic engineer for DOT's Region 8, was the highway work permit coordinator for this project. He visited the Duso Foods site twice to conduct field reviews related to the issuance of an air rights permit. The purpose of the field review, he stated, was "to determine if there is any reason, from a traffic engineering and safety involvement, that we should not issue a permit for that site" (C-Exhibit 3, p 14). While at the site, he estimated the sight distances of the two proposed driveways to help effectuate the channelization. Primarily because of concern about the sight distance to the east, Mr. Wickeri indicated changes to Duso Foods' original 1997 design plan that would angle the easterly exit "to allow right turns out only and * * * basically discouraged other movements" (C-Exhibit 3, p 30; Exhibit 16 [Memo dated October 3, 1980]).

Duso Foods submitted a revised plan in 1987, but this was also rejected following a field inspection. In a February 6, 1987 letter to Duso Foods' engineer (Exhibit 16), W. Elgee, DOT permit engineer for Orange and Ulster Counties, required the main access to be moved 170 feet west of the existing access but added that "[t]o allow for better internal circulation we will also allow the construction of additional right turn exit only at the existing access location" (
id). This "right turn only exit" is the driveway by which Mr. Gasparro left Duso Foods on the day of the accident. Sometime later, in response to a protest against the proposed channelization, Mr. Wickeri replied that channelization is used Statewide to "direct entering/exiting vehicles into a specific, defined flow pattern" and that "National and State studies have proven that channelization insures maximum protection to the traveling public by minimizing the points of conflict"(Exhibit 16 [Letter dated Feb. 5, 1991]).
The State construction plan for channelization required a 30 foot wide driveway to be built at the western end of the Duso facility which had a center line aligned perpendicularly with the edge of the pavement (i.e., allowed a 90 degree right-hand turn). This was to be used as an entranceway. The State also required a 20 foot wide driveway to be built at the eastern end with the center line skewed at a 120 degree angle, thereby forcing a right-hand turn (Exhibits 16, 17). The eastern driveway was 20 feet wide, standard for a one-way driveway and was to be used as an exit. As noted above, DOT did not want other movements being made at that driveway because of the limited sight conditions. The channelized islands would also provide an additional ten feet of eastbound lane so that a truck turning right could stay off the road as long as possible.

The State construction plan did not contain any reference to the State's parking lot on the north side of Route 52. However, there was sufficient notice that the presence of that parking lot affected the traffic flow at the Duso Foods site. As noted above, in order to turn into the westerly entrance driveway, Mr. Gasparro pulled his truck into the north side parking lot in order to swing it around sufficiently. In addition, he testified believably (see footnote 4) that after his truck was unloaded, it was his almost unvarying practice to drive across Route 52 and into that north side lot as he was leaving, in order to close the back doors on his truck.[6]
During the course of negotiations relating to the permit, at least some State officials were aware that Duso Foods employees were parking on the shoulder of the north side of Route 52 which was State property. In his February 6, 1987 letter (Exhibit 16), Mr. Elgee, wrote:
Our field inspection of the site also revealed employees of this development are parking in the shoulder on the north side of Route 52. To eliminate this practice we strongly recommend the developer provide adequate on-site parking. If this practice continues the Department may legally prohibit parking in this area.

On August 1, 1990 counsel for Duso Foods warned in a letter to the DOT (Exhibit 16) that channelization

...will prevent tractor trailers from accessing these premises, maneuvering on the premises, and impair the users of Route 52 because the tractor trailers will have to pull out onto the highway to thereafter back into the loading docks. At present the maneuver can be safely made all within the property on the south side of Route 52. If this channelization be compelled, it will require tractor trailers to block the highway in the process of backing into the loading docks....

The attorney's letter also referred, in the first paragraph, to "the parking of vehicles on State owned land on the north side of Route 52 west of the Village of Ellenville" (emphasis supplied).[7]
Duso Foods continued to raise the same objections even as the permit was being issued. A rider to the September 11, 1990 permit states: "Permittee requests that channelization of traffic not be required; such will prevent tractor trailers from accessing the subject premises, maneuvering thereon and impair access to and from Route 52" (C-Exhibit 8). Persons familiar with the property were aware that trucks exiting the Duso Foods lot might block Route 52. The night manager at Duso Foods testified at an examination before trial that he saw Duso Foods' employees from time to time walk onto Route 52 to act as flagmen for trucks that were exiting the Duso Foods parking lot (C-Exhibit 2 [Sklar EBT], pp 415-416).
Despite these many indications that the parking lot on the north side of the highway was used by those working at or delivering goods to Duso Foods, and despite the indications that the State was aware of at least some of this activity, Jeffrey Wickeri testified that he had no knowledge that Duso employees were making use of that parking lot (C-Exhibit 3, pp 28, 52) and that he did not perceive the possibility that trucks would pull across Route 52 to close their doors and/or turn around (
id, 27, 47, 48, 68; Tr, 49). He also stated that if he had known that private individuals were using the north side lot as a parking lot or that trucks were crossing the highway to use the parking lot, he would have investigated it and the State would have established specific rules and policies for such use (id, pp 51-54).
It was Mr. Wickeri who responded to the August 1, 1990 letter from counsel for Duso Foods. In his response (Exhibit 16 [Letter of February 5, 1991]), he stated, in relevant part, that channelization is necessary to "delineate the driveway" and to "prevent further encroachments into the remaining State lands immediately adjacent to the rented area." In support of the decision to channelize, he stated:

Uncontrolled access normally results in hazardous operating procedures. Consequently, channelization of commercial properties is a Statewide policy to direct entering/exiting vehicles into a specific, defined flow pattern, while separating on-site vehicular movements from the highway traffic. National and State studies have proven that channelization insures maximum protection to the traveling public by minimizing the points of conflict.

He concluded by stating that the channelization issue had been well documented and that "[i]n our opinion the proposed design represents a proper treatment for this type of facility and must be undertaken."
Sight Distance
Claimant also asserts that the channelization project was undertaken without adequate study of whether there was sufficient stopping sight distance to allow drivers of vehicles proceeding on Route 52 to see trucks entering or exiting the Duso Foods facility. At issue is whether the design for the exits and entrances meet the engineering standards set forth in DOT's Policy/Standards manual and the AASHTO manual relating to sight distances, and that requires a determination of which standards are applicable.

"Sight distance" is the length of roadway ahead that is visible to the driver. The minimum sight distance available on a roadway should be sufficient to enable a vehicle

traveling at or near the design speed to stop before reaching a stationary object in its path (AASHTO manual, [p 136]). "Stopping sight distance" is the sum of two distances: "the distance traversed by the vehicle from the instant the driver sights an object necessitating a stop to the instant the brakes are applied and the distance required to stop the vehicle from the instant brake application begins" (id, p 136). "Decision sight distance," on the other hand, is the distance required "for a driver to detect an unexpected or otherwise difficult-to-perceive information source or hazard in a roadway environment that may be visually cluttered, recognize the hazard or its threat potential, select an appropriate speed and path, and initiate and complete the required safety maneuver safely and efficiently" (id, p 145).
According to claimant's expert, the applicable standards are those for decision sight distances, which provide that for a car going 50 mph a safe decision sight distance would be 750 to 1,025 feet. This standard should be used, he opined, because a driver could not see around the curve as he approached the Duso Foods facility, nor could he see through the foliage that was growing out of the embankment.[8]
Once in sight of the stretch of highway in front of Duso Foods, there would be a number of features competing for the claimant's attention: a parking lot on the left (north) side of the road with 300 feet of frontage and no driveway control, another driveway on his right that he could only partly see, traffic in the Duso Foods parking lot, and possibly trucks exiting from the far end of that lot. On the day in question, there was a truck on the Duso Foods premises that, according to Mr. Levine, was parked within the Duso parking lot but in a manner that blocked claimant's view of the Gasparro tractor trailer pulling out of the premises (see, Exhibit 12).[9] Using photologs 8.67 and 8.70 (Exhibits 13G, 13H), he measured the sight distance at 300 feet, which is well below the AASHTO requirements for decision sight distances (Tr, 105). According to Mr. Levine, photolog 8.67 represents the first time that an eastbound driver would be able to see the eastern driveway, while photolog 8.70 represents the first time that driver could see the curbing of the eastern driveway (Tr, 106-108).
According to the defendant's expert, Alvin M. Bryski, decision sight distances are to be used to calculate stopping time when a very complex situation lies ahead of a driver, e.g., when a driver needs to determine whether a certain exit is the appropriate one for him to take (Tr, pp 295-296). Here, he indicated, there were no options for Mr. Lombardo to weigh other than whether or not to apply his brakes, thus making the longer decision sight distance standard inapplicable to this case (
id). "There's nothing to consider here but a truck in front of you on a two-lane road" (Tr, p 94). Since the pavement was dry, Mr. Lombardo, driving at 55 mph, should have been able to stop within 215 feet. Mr. Bryski further maintained that the proper measurement for the Court to adopt is the "stopping sight distance" from the DOT Policy/Standard manual. This publication indicates that the proper stopping sight distance on wet pavement for a car going 55 mph is a minimum of 450 feet and desirable of 550 feet.[10]
Defendant called two witnesses who measured the sight distances from the eastern driveway looking west. Mr. Mark Morano stated that he measured the sight distance using two methods, a laser and a measuring wheel. Both methods indicated that there was a 645 foot sight distance from the eastern driveway looking in a westerly direction. Mr. Morano also testified that he checked the accident histories maintained by the Department for the period of March 1993 to March 1995 and found no reported accidents in front of Duso Foods.[11]
Defendant's expert, Mr. Bryski, also measured the sight distance. He stood ten feet back from the fog line at the eastern driveway, and using little flags positioned along the road, calculated that he could see 500 feet to the west. This 500 to 645 foot sight distance is within or exceeds the requirements of the DOT Policy/Standards manual.
Sight distance, of course, is also affected by the presence or absence of vegetation that would block a driver's view. The 1991 construction plan for the channelization of the frontage of Duso Foods also provided that all vegetation obstructing sight distance to the west of the facility should be removed along the shoulder of the highway (Exhibit 17). According to Jeffrey Wickeri, the shrubbery on the south side of Route 52 west of the driveway was of particular concern to DOT (Tr, p 45). The work permit application stated that the permittee (i.e., Duso Foods) was responsible for the maintenance of all work to be done regarding such permit, including removing the vegetation. However, the State had the power to come in at any time and remove the vegetation, and, indeed, there was evidence that brush and vegetation control had been carried out in front of Duso Foods on the south side of Route 52 on February 24, 1999 (Exhibit R-1).

There was considerable testimony about whether "one-way" and/or "right turn only" signs were supposed to be installed where trucks would be exiting Duso Foods' lot and, if so, whether they were in place on the day of the accident. Claimant contends that the proposed one-way signs in the eastern driveway failed to conform to the New York State Manual of Uniform Traffic and Control Devices (NYSMUT) and that the signs were placed in the wrong direction. Specifically, claimant argues that the "right turn only" sign, which was on the same pole as a one-way sign, was erected so that it suggested to drivers heading west on Route 52 that they could turn right onto the north side parking lot rather than directing drivers to the right out of the Duso Foods facility onto Route 52. There was also much discussion at trial as to whether the "No Left Turn" signs required under the construction plan were in place on the morning of the accident. Defendant argues that whether the "No Left Turn" signs were up that morning is irrelevant because such signs were there to protect traffic heading in a westbound direction from trucks exiting the Duso Foods facility. The signs were not up to protect Mr. Lombardo who was heading in an eastbound direction. Further, defendant argues that it was the responsibility of the permittee, Duso Foods, to maintain the signs according to § 3.6 of the DOT Policy/Standards manual.

The construction plan required that back-to-back "no left turn" signs (designated as R3-10C on the construction plan) and "one way" signs (designated as R3-11C on the construction plan) be raised near the eastern driveway (Exhibit 17). Additionally, the plan required

that a "no left turn" sign also be placed directly across the street from the eastern
driveway (Exhibit 17; Tr, p 44). According to Mr. Wickeri, it was the policy of DOT to require such signs to be placed on the near right and far left if left turns were to be prohibited (C-Exhibit 3, p 30).
There was conflicting testimony as to whether the one way signs were up on the morning of the accident. Mr. Sklar, the night manager of Duso Foods, testified at an examination before trial that the signs were "almost always there" (
id). However, Jeff Joray, an employee of
Duso Foods who loaded and unloaded the trucks, testified at an examination before trial that the signs were not up the morning of the accident (id). Claimant testified at trial that prior to the date of the accident he did not recall whether a "right turn only" sign was up at the Duso Facility. However, at his EBT claimant testified that there were signs up in front of Duso Foods (Tr, 71-73).
Claimant's expert, Mr. Levine, testified that the "right turn only" sign was facing

the wrong way, with the result that it informed traffic on Route 52 heading in a westerly direction that they could only turn right into the parking lot on the north side of Route 52, rather than informing traffic exiting the facility that they could only turn right onto Route 52 (Tr, pp 155-156, 162). Mr. Levine also testified that the one way sign post which had other signs on it was not in compliance with either the construction plan or the NYSMUT.
Jeffrey Wickeri testified at an examination before trial that the permit requirements, including signage, are monitored by the State only during construction. After construction

there is no direct monitoring program (C-Exhibit 3, pp 20-21). If DOT did notice that signs were down, he indicated, it would then write a letter to the permittee telling them to reinstall the sign. A "right turn only" sign on the same post as a one way sign by the easterly driveway was not a standard Department sign, nor was it a type of sign permitted to be placed in conjunction with a one way sign. If an inspection had revealed such sign placement, there would have been some instruction to the permittee to remove it.
Thomas Story, a DOT Assistant Resident Engineer who supervised the coordination of permits from 1996-2000, could not recall whether the signs were up when he visited Duso Foods in 1996 (Tr, pp 225- 230). He also testified at trial that it is the permittee's responsibility to maintain the signage on their land. While a project is under construction, the State can enforce the requirements of the construction plan, including signage. After construction, it is more difficult for the State to enforce compliance with these requirements, although the State retains the power to do so. Mr. Story never checked to see if the signs were erected according to the construction plans when he visited the Duso Foods premises prior to March 5, 1999. Moreover, he indicated, there was no formal mechanism within the Department to determine whether the appropriate signage was erected according to plans.

Two of claimant's asserted theories of liability were not proven, and they will be discussed first
. With respect to the allegations of inadequate design of the channelization project, however, claimant succeeded in proving that the State was negligent and could be liable for such negligence.
The Court finds that claimant failed to establish by a preponderance of the credible evidence either that the State was responsible for the maintenance of the signs in front of the Duso Foods facility or that the signs were missing or improperly placed. More fundamentally, the Court holds that improper signage on the day of the accident was not a proximate cause of this accident. Liability based on an actor's negligence can be imposed only when the actor owed a duty to the injured party and breached that duty in such a way that the breach was a proximate cause of the injury (79 NY Jur 2d, Negligence §§ 8, 9).

Section 3.6 of DOT's Policy/Standards manual, entitled "Maintenance Responsibility," indicates that traffic signs installed by the property owner are to be maintained by the property owner, and in this instance, the work permit issued by the State (C-Exhibit 8) indicates that the permittee (Duso Foods) is responsible, at its own expense, for any repairs, improvements or maintenance work of any kind on the property. There was insufficient evidence from which the Court could conclude that the State was responsible for signage, and thus owed a duty to claimant in connection with the signs. In addition, there was conflicting testimony at trial about whether the signs were in place on the day of the accident. Testimony was contradictory, and there was no photograph that depicted the view that would have been seen by a driver using the easterly exit from Duso Foods.[12]

More fundamentally, it would be difficult if not impossible to conclude the presence or absence of a sign or signs on this particular day could have served as a "substantial factor in bringing about the injury." Mr. Gasparro testified that he drove to this site an average of three times a week and had done so for many years. He also testified credibly that with very few exceptions, every time he pulled out of the Duso Foods parking lot, he drove across the highway and into the north side parking lot in order to close his doors. In short, whether the "right turn only" and "one way" signs were fixed in their correct position on the date of the accident is irrelevant to this lawsuit. The presence of such signs in the past had not deterred the behavior that led to the accident (crossing the highway, rather than making a right-hand turn), and there is no reason to believe that signs prohibiting this action would have had any effect on the events of the day in question.

In order for the absence of a warning sign or signal to be considered a proximate cause of an event, it must be established that the actor's course of conduct leading up to the accident would have been different if the signs were present
(Vasquez by Vega v Consolidated Rail Corp., 180 AD2d 247, 249 [3d Dept 1992]). Thus, a driver's familiarity with an intersection or portion of a roadway may supersede any negligence of the property owner in failing to erect warning signs (id, at 250 [absence of a sign on the day of the accident would not have altered the actions of a driver who had passed through an intersection 36 times]; see also Alexander v Eldred, 63 NY2d 460, 467-468 [1984]; Applebee v State of New York, 308 NY 502, 507 [1955]). The Court is confident that this accident would have occurred whether or not the signs were in place.
Sight Distance
The Court believes that the proper measurement to be applied in this case is the "stopping sight" distance of 450 to 550 feet, as established by DOT's Policy/Standards manual, rather than the "decision sight" distance of 750 to 1,025 feet contained in the AASHTO manual. The Court credits the testimony of Mr. Alvin Bryski in this regard, in that claimant did not have to make the very sophisticated determinations that are necessary to trigger the need for decision sight distances. The Court further finds that the tractor trailer could have been seen from locations in the State's photologs further west than those shown in photographs 8.67 and 8.70, specifically those locations shown in photographs 8.64 and 8.66 (Exhibits 13D, 13F). Claimant's expert testified that the photographs depicted in 8.67 and 8.70 are the first photos where both the driveway and the curbing of the eastern driveway could be seen. Claimant, however, needed to see a 66 foot tractor trailer coming out of that driveway, not the curbing of the driveway.

The Court also finds the methods of measurement utilized by Mr. Mark Morano and Mr. Alvin Bryski to be reasonable methods for measuring sight distances. These witnesses calculated that there was a sight distance well within or exceeding the minimum sight distance as required under standards set forth in the DOT Policy/Standards manual, and the Court accepts their conclusion. Consequently, the Court concludes that the sight distance was proper and therefore not a proximate cause of this accident.

As a general proposition, property owners owe the duty of reasonable care to those with whom they interact (
Basso v Miller, 40 NY2d 233, 241 [1976]), and the scope of that duty is measured in terms of foreseeability (Perrelli v Orlow, 273 AD2d 533, 534 [3d Dept 2000], citing Pizzola v State of New York, 130 AD2d 796[3d Dept 1987]). In other words, the risk of injury or damage must have been foreseeable, as negligence is gauged by the ability to anticipate (79 NY Jur 2d, Negligence, §12). Determinations of what accidents were reasonably foreseeable and what preventive measures should reasonably have been taken are ordinarily questions of fact (id, at 534, citing Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539[2d Dept 1989]).
In particular, foreseeability is the key to a determination of liability where the alleged wrong was improper or inadequate design or planning by the State. It is well-settled that "[i]n claims based upon negligent design, the State is entitled to qualified immunity for claims arising out of its highway planning decisions, unless its study was plainly inadequate or lacked a reasonable basis"
(Smith v State of New York, 191 Misc 2d 553, 567, citing Weiss v Fote, 7 NY2d 579 [1960], rearg denied 8 NY2d 934). Planning decisions made with respect to the design, repair and maintenance of highways are discretionary or quasi-judicial in nature and consequently are protected by a qualified immunity (Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [3d Dept 1983], affd 61 NY2d 955; Weiss v Fote, supra). Thus, the State may have been aware of a certain risk of injury (i.e., it may have been foreseeable) but no liability will ensue unless the decision not to guard against such risk was based on inadequate information or had no rationale.
In most instances, where experts have varying opinions about whether a planning decision was proper, that difference of opinion is sufficient to establish that the decision was reasonable (
Schwartz v New York State Thruway Auth., supra; Trautman v State of New York, 179 AD2d 635 [2d Dept 1992]). "[S]omething more than a choice between conflicting opinions of experts is required before a governmental body may be held liable for negligently performing its traffic planning function" (Affleck v Buckley, 96 NY2d 553, 557 [2001]; Buhr v State of New York, 295 AD2d 462 [2d Dept 2002]; Joyce v State of New York, 152 AD2d 306 [3d Dept 1989]). Finally, even if the injured party succeeds in establishing that planning studies were inadequate or altogether absent, they must also provide some evidence that an adequate study would have altered the decision made by officials in a way that would have prevented the accident (Schuls v State of New York, 92 AD2d 721, 722 [4th Dept 1983]).
This is not to say, however, that all discretionary planning decisions immunize the State from liability that results from design defects or features, for the State may nevertheless be liable upon proof "that the plan either was evolved without adequate study or lacked reasonable basis"(
Ganios v State of New York, 181 AD2d 859, 860 [2d Dept 1992], quoting Gutelle v City of New York, 55 NY2d 794 [1981] and Weiss v Fote, supra). For example, it has been determined that there was inadequate study and/or an insufficient basis for a design plan or decision in the following instances: where a sight distance study that adequately protected vehicle traffic failed to consider the safety of schoolchildren walking in the area and a child was subsequently hurt (Ernest v Red Cr. Cent. School Dist., 93 NY2d 664 [1999]); where city officials failed to consider an existing traffic count and did not comply with DOT's relevant standard in deciding not to erect a stop sign (Alexander v Eldred, supra); where DOT delayed in installing a traffic signal that it had previously, by adequate study, determined was necessary for the safety of an intersection (Marren v State of New York, 142 AD2d 717 [2d Dept 1988]); where repavement of a road stopped arbitrarily in the middle of a curve for no reason other than that work crews had exceeded the amount of material they were supposed to use (Ganios v State of New York, supra; where a municipality permitted the design and safety features of a location to "evolve without adequate study" (Cordero v City of New York, 112 AD2d 914 [2d Dept 1985]); and where a system of incomplete sidewalks were built with no justifiable reason and only partially in compliance with applicable State policy (Sanford v State of New York, 94 AD2d 857 [3d Dept 1983]).
The Court finds that the defendant failed to exercise reasonable care in developing the channelization design and, further, that the final design was not based on sufficient information or adequate study. The key to this finding are two letters, the work permit issued by the State, and the testimony of Jeffrey Wickeri. One of the letters (Exhibit 16 [February 6, 1987 letter]) was written by Mr. Elgee, the DOT permit engineer for this region, and confirms that State officials were aware that Duso Foods employees were parking across Route 52 in the north side parking lot that was owned by the State. In the other letter (Exhibit 16 [August 1, 1990 letter]), counsel for Duso Foods wrote to DOT and gave notice that channelization would "impair the users of Route 52 because the tractor trailers will have to pull out onto the highway to thereafter back into the loading docks..." Attached to the
September 11, 1990 work permit issued by the State (C-Exhibit 8) was a rider which stated that Duso Foods "requests the channelization of traffic not be required; such will prevent tractor trailers from accessing the subject premises, maneuvering thereon and impair access to and from Route 52." DOT was aware, therefore, that moving tractor trailers onto and off Route 52 was a problem, that the maneuvers required might well block or impair access to Route 52, and that there was a lot across the street, on State-owned land, that was regularly driven and parked on.
Despite this knowledge possessed by at least some within DOT, Jeffrey Wickeri, who was the highway work permit coordinator for the channelization project, testified at his examination before trial that he was unaware that employees were parking on the State-owned north side parking lot. He was also unaware that trucks would have to pull out onto Route 52, or into the lot across the road, in order to maneuver into and out of the Duso Foods parking lot or to get their doors closed after unloading. Mr. Wickeri further testified that he would have investigated this situation if he had known about the potential problems (C-Exhibit 3 [Wickeri EBT], pp 27, 47, 48, 51, 52, 68). It is difficult to believe that he could have remained unaware of either of these facts, even though he only made two site visits, but that is his testimony. Later, in response to the letter from Duso's counsel that once again directed attention to the north side parking area and the need for trucks to pull out onto Route 52 to be positioned for the loading docks at Duso, Mr. Wickeri supported DOT's design only with very generalized statements regarding the overall purpose of channelization, the fact that channelization "is a Statewide policy," and national and state studies supported channelization. He did not address the anticipated problems of the State's design at this location, even though they had been mentioned in the letter to which he was responding. He also made no reference at all to the facts that caused the concern: use of the north side parking lot, difficulty of tractor trailers in accessing the Duso lot, or the need for tractor trailers to pull out onto the highway, blocking highway traffic, in order to maneuver within that lot. As the highway work permit coordinator for this project, Mr. Wickeri should have been familiar with the principal features and needs of the property for which the project was being designed and he should have been able to explain why channelization was appropriate and workable at this location, in light of the traffic flow, space available for maneuvering, and routine vehicular use of land located directly across the road.

The 1990 letter provided notice to the Department that the channelization project would cause some tractor trailers to straddle Route 52 while backing into the facility, and it appears from claimant's testimony that truckers were using creative, albeit dangerous, maneuvers to work around the channelization's entrances and exits. If tractor trailers would block Route 52 when backing up to the loading docks, it is also foreseeable that when exiting the facility they might well go onto, straddle, or even drive across Route 52 to get to the north side parking lot. Foreseeability is the measure of liability, and the State's duty encompasses not only the

surfaces and shoulders of its highways but also areas adjacent to and above the road that would foreseeably result in injury to those using the highways (Gomez v New York State Thruway Auth., 73 NY2d 724,725; Rinaldi v State of New York, 49 AD2d 361; Trabisco v City of New York, 280 NY 776).
The Court is not convinced, therefore, that defendant conducted extensive studies before it required this channelization to be implemented at this location. Mr. Wickeri visited the site twice and did actual sight distance measurements by estimations, but he claims that he did not know of the parking lot across the street which, all other evidence indicates, was in constant use by Duso Foods employees. Mr. Elgee visited the site only once. Although there is a reference to State and national studies supporting channelization in Mr. Wickeri's 1991 letter, the record is devoid of any evidence that those studies were consulted or their conclusions applied to this particular project, or that a study had been conducted to determine if channelization, and if so what channelization, should be implemented for this site. Stating general maxims of highway design cannot suffice to show that those maxims were applied appropriately in a specific situation. The Court holds that the defendant's planning decision regarding this channelization project was inadequate and lacked a reasonable basis.

In addition, and as a separate basis for imposing liability, there was no evidence to indicate that after the channelization plan was implemented, DOT followed up and investigated to find out if the problems that others had anticipated actually developed. The State can also be liable when a plan that was properly adopted and executed actually creates a dangerous condition. The fact that the original plan may have complied with the appropriate engineering standards or was the product of a reasonable decision-making process is no defense (
Giske v State of New York, 191 AD2d 675 [2d Dept 1993]), for when the State implements a plan, it is under a continuing duty to review the situation in light of the plan's actual operation (Friedman v State of New York, 67 NY2d 271 [1986]; Heffler v State of New York, 96 AD2d 926 [2d Dept 1983]). When the State is made aware of a dangerous highway condition and does not take action to remedy it, the State can be held liable for resulting injuries (Friedman, supra, at 286; Olson v State of New York, 139 AD2d 713 [2d Dept 1988]). It must then undertake a reasonable study with an eye toward alleviating the danger (Friedman v State of New York, supra, at 284, quoting Heffler v State of New York, supra, at 927; Sanford v State of New York, supra, at 859; Atkinson v City of Oneida, 77 AD2d 257 [4th Dept 1980]). There is no reason to doubt that, if the State had gone back to the location and studied the traffic flow after this channelization project was completed, they would have seen westbound trucks using the north side lot in order to make a left turn into the Duso lot, trucks pulling onto Route 52 in order to back up to the Duso loading docks, trucks and other vehicles leaving the easterly exit in directions not contemplated by the channelization plan (i.e., crossing over onto the north side lot or making left hand turns to head west on Route 52). There may not have been a long history of accidents at this location, but in the Court's view this is likely attributable to the relative remoteness of the location, the low traffic volume, and quite possibly the caution of truckers and area residents who knew about the problems. Nevertheless, a highway design that, in effect, required tractor trailer trucks to frequently intrude onto or straddle the highway was poorly-planned and/or inadequately reviewed after construction. It was, in effect, an "accident waiting to happen." An accident of the sort that occurred here was eminently foreseeable, and thus the State was negligent in either failing to plan adequately for it or to correct the dangerous situation when the situation was reviewed after the channelization was put into place.
Causation and Claimant's Culpable Conduct
CPLR § 1411 provides that "culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages." Defendant has raised claimant's culpable conduct as an affirmative defense and, further, argues that his negligence was the sole proximate cause of the accident.

An act or omission is a proximate cause of an injury if it was a substantial factor in bringing about the injury (
Root v Feldman, 185 AD2d 409 [3d Dept 1992]).[13] An accident or injury may have two or even more proximate causes (Santiago v New York City Hous. Auth., 268 AD2d 203 [1st Dept 2000]). "[A] defendant's negligence need not be the sole cause of the injury; rather it need only have been a substantial factor in bringing about the injury" (Marren v State of New York, supra, at 720). Even where an accident is obviously caused, at least in part, by the negligence of the injured party or a third party, the State may nevertheless be liable if its negligence was a concurrent proximate cause (Humphrey v State of New York, 90 AD2d 901, 902).
Without question, claimant was negligent in his operation of his vehicle. A person is bound to see what, by the proper use of his senses, he might have seen (79 NY Jur 2nd, Negligence § 105). In the instant case, claimant failed to see the 66 foot tractor trailer that was completely blocking the road in front of him. If he had seen it when he came around the curve, the Court has determined there would have been sufficient distance in front of him to stop his vehicle and avoid the accident. Claimant testified several times that he simply did not see the tractor trailer, and this testimony is supported by the fact that there were no skid marks at the scene of the accident. Although Mr. Levine thought that claimant may have attempted to steer his vehicle to the left just before impact, it is also possible that claimant's vehicle was moved to the left due to the impact. Even if, as suggested in the police accident report, glare may have played a role, it would not have kept him from seeing an object the size of the tractor trailer as he came closer to it. The only reasonable explanation of the evidence is that claimant was not looking at or paying attention to the road in front of him.

While there is no doubt that claimant's conduct was a substantial factor in bringing about the accident, i.e., a proximate cause of the accident, the more difficult question is whether it was, as defendant argues, the accident's sole proximate cause. Where, as here, both the claimant and defendant were negligent and their negligence can logically be seen as contributing to the happening of an accident, a trial court's duty is to apportion the fault between them, based on a fair interpretation of the evidence (
Olson v State of New York, supra). The only way in which a defendant can still escape liability in these situations is if it is determined that the claimant's (plaintiff's) negligent conduct rises to "such a level of culpability as to replace the defendant's negligence as the legal cause of the accident" (Mesick v State of New York, 118 AD2d 214, 218).
When the defendant negligently injures the plaintiff, the plaintiff's own fault is normally relevant only under the rules of contributory negligence or comparative fault. In many instances, the plaintiff's fault would be ground for reducing the recovery of damages, but would not exclude recovery altogether. On the other hand, some cases hold that the plaintiff's fault may sometimes count as a superseding cause, or, as courts often say, the sole proximate cause of the plaintiff's own harm. If so, the plaintiff does not merely suffer a reduction in damages but is barred completely.

(Dobbs, The Law of Torts [Practitioner Treatise Series, West Group 2001], §196, p 489.) It has been suggested that, in jurisdictions where comparative negligence is the rule, a plaintiff's (or claimant's) own actions should be viewed as the sole cause of an accident only when "the defendant's negligence simply does not create a risk of the kind of harm that the plaintiff suffered" (id, p 490).
The same decisions that are cited by defendant in support of its argument likewise point to foreseeability as the determining factor and direct courts to inquire whether the injury that occurred was the type of harm that defendant's negligence would foreseeably cause. A defendant may be relieved of liability, the Third Department stated, when "an unforeseeable superseding force," which can be the plaintiff's own negligence, intervenes and breaks the "chain of causal connection" (
Mesick v State of New York, supra, at 218). In that case, however, a young man negligently ran to grab a rope that was hanging from a tree over water. Tragically he slipped as he was reaching for the rope, fell to the rocks below and was rendered a quadriplegic. It was determined that the State had been negligent in allowing the rope to remain at that location and that the young man's conduct in attempting to use the rope in such a manner was also negligent. His negligence did not supersede the State's however, because it was foreseeable that someone would attempt to get a running start at the rope and slip while running at the rope (id). In contrast, in Nikolaus v State of New York (129 AD2d 865 [3d Dept 1987]), the same court concluded that even if a State Trooper had been negligent in parking so close to the driving lane that oncoming traffic could not safely pass, the State could not be liable for the injuries of a motorist who left her lane of traffic, crossed the center line of the highway, and collided with a car travelling in the opposite direction. Her actions, the Court held, were "extraordinary independent intervening acts, not emanating from any original negligent act chargeable to the State" (id, at 866).
In the instant case, the foreseeable result of the State's negligent channelization design was to essentially force tractor trailer trucks to pull onto or to drive all the way across Route 52, to maneuver into the Duso Foods parking lot or to close the cargo doors after unloading. The risk of harm created was the possibility that oncoming traffic would collide with the trucks while they were jutting out into or straddled across the road. This was a foreseeable consequence and is precisely what occurred here. Defendant's negligence, therefore, was a proximate cause of the accident, as was claimant's negligence. The Court concludes, however, that claimant's conduct was the chief cause of the accident and apportions liability 70 per cent on the part of claimant and 30 per cent on the part of the State.

The Chief Clerk is directed to enter judgment on the issue of liability in the proportions set forth above. A trial on the issue of damages will be scheduled as soon as practicable.

Let interlocutory judgment be entered accordingly.

June 2, 2003
Albany, New York

Judge of the Court of Claims

[1]Carmella Lombardo's cause of action is derivative in nature and unless otherwise indicated or required by context, the term "claimant" refers to Giuseppe Lombardo.
[2] At trial claimant did not remember if he was going 55 mph right up until the time of impact (Tr, 66-70), but he had testified at his examination before trial that he had maintained that speed (C[Court]-Exhibit 5A, p 18; C-Exhibit 6A, p 11).
[3] All of the facts pertaining to Mr. Gasparro are derived from the transcripts of his examination before trial and trial testimony (C-Exhibit 2) in a related Supreme Court action in which claimant sued Mr. Gasparro. In the instant case, Mr. Gasparro's negligence was not argued by either party, and thus the Court does not address the issue of his potential liability.
[4] This testimony was called into question by Harvey A. Sklar and Jeff Joray, Duso employees, who stated at their depositions that they had never seen Mr. Gasparro pull across Route 52 into the opposite parking lot (C-Exhibit 4, p 425; C-Exhibit 1, pp 162-163). The Court credits Mr. Gasparro's testimony on this point. His statements were consistent, even though he was asked about this point on several different occasions and in several different ways; he explained convincingly why he felt the maneuver was necessary (congestion in the Duso Foods parking lot; steel posts that prevented the doors from swinging around if he stopped in the Duso lot [C-Exhibit 2, p 254]; and almost being run over when he tried to turn right and close the doors while the truck was in the acceleration lane [C-Exhibit 2, p 511]); and the back doors of the trailer were open at the time of the accident (see, Exhibits 10, 11 [photographs]).
[5] The Court reserved on an objection by the defendant at trial that the issue regarding the consideration of both sides of the road was not alleged in the bill of particulars or the §3101(d) expert disclosure, therefore testimony regarding the north side of Route 52 should be stricken (Tr, pp143-146). The testimony will remain as part of the record since claimant's bill of particulars (¶ 14) and his §3101(d) disclosure specifically mention this subject matter.
[6] It should also be noted that Mr. Gasparro had driven to this site, sometimes as often as three days a week, for 26 years (C-Exhibit 2, p 249) and thus is very familiar with it. Prior to the channelization project, he stated, there were no curbs at the Duso Foods site and "it was nice to get in and out of" (id, p 275).
[7] The reference was made in an apparent misstatement of the reason for the permit application: "The purpose of the permit is to allow the parking of vehicles on State owned land on the north side of Route 52 west of the Village of Ellenville. In conjunction with this, the State is seeking to channelize traffic on the property located on the south side of Route 52."
[8] The Court notes that the accident occurred in March when little or no foliage would be growing.
[9] Claimant continually maintained at trial that a truck parked on the Duso Foods premises blocked claimant's view of the Gasparro tractor trailer pulling out of the driveway (Tr, p 125). The Court finds that that truck, commonly referred to as the "Valley Brook truck", was parked in a place that did not block the eastern driveway of the Duso Foods facility. It was parked on the premises, not the road, and it did not block the view of any potential vehicle pulling out from the eastern driveway, whether the truck stopped at the fog line on the road or pulled across Route 52.
[10]At one point during the trial claimant argued that the Court should adopt Table 3 from the Policy/Standard manual (p 53) which indicates that 1600 feet was necessary for a truck to enter a driveway safely if the truck was traveling at 50 mph. The Court notes that the manual states that "these sight distances are designed to enable vehicles exiting from the driveway to turn left or right and to accelerate to the operating speed of the highway without causing vehicles on the highway to reduce their speed by more than ten miles per hour." The Court determines that Table 3 is not relevant to this case.
[11] It is not clear exactly when the reconfiguration/channelization of the Duso Foods property was actually performed. Insurance coverage for the work was issued in April 1991 and expired in April 1992 (C-Exhibit 8), so presumably the work was accomplished during that period.
[12] There was no proof that the photograph showing a sign post (Exhibit 7), with two signs affixed to it, lying on the ground was taken on the day of the accident. Comparing the roadway surface of that picture to that of pictures taken at the time of the accident suggest that it was not. In any event, that photograph does not depict the view that would be seen by Mr. Gasparro.
[13] "The word ‘substantial,' in this context, means such an effect in producing the harm as to lead reasonable persons to regard it as a cause, using the word in its popular sense" (79 NY Jur 2d, Negligence § 50).