New York State Court of Claims

New York State Court of Claims

MEYER v. THE STATE OF NEW YORK, #2004-009-136, Claim No. 99381


Synopsis


Claimants sought damages for personal injuries suffered by their daughter in an automobile accident on Rt. 89 in Wayne County, when the vehicle in which she was a passenger struck in guide rail and the end of a girder on Caruso Creek Bridge. The Court found that no engineering study was performed prior to replacement of the guide rail system, and therefore the State was not entitled to qualified immunity. The Court further found that the replacement system was inadequate for its intended purpose, and failed to adequately protect motorists. In the absence of any evidence of comparative negligence, the Court found the State 100% liable.

Case Information

UID:
2004-009-136
Claimant(s):
In the Matter of the Claim of KERILYNN J. MEYER, JON R. MEYER and JOANNE C. MEYER The Court, sua sponte, has amended the caption to reflect that claimant Kerilynn J. Meyer has reached the age of majority.
Claimant short name:
MEYER
Footnote (claimant name) :
The Court, sua sponte, has amended the caption to reflect that claimant Kerilynn J. Meyer has reached the age of majority.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99381
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
FOLEY AND FOLEY
BY: James F. Foley, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Michael R. O'Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
December 20, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimants Jon R. Meyer and Joanne C. Meyer instituted this claim on behalf of their daughter, Kerilynn J. Meyer, who suffered injuries in an automobile accident on New York State Route 89 in the Town of Savannah, Wayne County, on September 16, 1998. At the time of the accident, Kerilynn J. Meyer was an infant. In addition to their claim on behalf of their daughter, claimants Jon R. Meyer and Joanne C. Meyer also asserted their derivative claim for damages.

Claimant[1]
was a passenger in a 1990 Dodge Dakota pickup truck that was driven by Mark Fedele when Mr. Fedele's truck struck a guide rail, and then the end of a girder at the corner of the Caruso Creek Bridge on Route 89. The impact caused the vehicle to flip onto its side and slide along the roadway, resulting in the injuries suffered by claimant.
At trial, both claimant and Mark Fedele testified as to the circumstances surrounding this accident. Their testimony established that at approximately 8:20 p.m. on September 16, 1998, they left Mr. Fedele's residence on Bixbywood Road in the Town of Savannah, intending to drive to Seneca Falls. Mr. Fedele turned onto Route 89 at its intersection with Bixbywood Road, and proceeded to drive in a southerly direction. As they approached the Caruso Creek Bridge on Route 89, located approximately 1/4 mile south of this intersection, a racoon entered the roadway directly in front of Mr. Fedele's vehicle. Mr. Fedele applied his brakes and attempted to steer around the racoon to avoid hitting it. When he applied his brakes, however, his wheels locked and the truck slid to the right. His vehicle struck the guide rail located at the northwest corner of the Caruso Creek Bridge, and then collided with the bridge girder at the northwest corner of the bridge structure, causing the vehicle to flip onto its side and slide across the roadway, where it came to a stop near the southeast corner of the bridge. Testimony from these witnesses established that Mr. Fedele was driving at approximately 40 to 45 miles per hour as he approached the bridge.

The essence of this claim is that the State was negligent in the design, construction and maintenance of the guide rail system of this bridge structure, and that such alleged negligence was the proximate cause of the injuries suffered by claimant in this accident.

Merton J. Edwards, a licensed professional engineer employed by the Department of Transportation, was called as a witness by the claimants. Additionally, claimants offered the testimony of John A. Serth, Jr. who presented expert engineering testimony. Richard R. Church, a licensed engineer, testified as an expert on behalf of the State.

Their testimony established that the Caruso Creek Bridge was originally constructed in 1928. According to Mr. Edwards, the "as built" plans did not indicate that guide rails were installed at the time of the original construction.

Although there was no documentary evidence, testimony established that during the early 1970's, Department of Transportation maintenance personnel erected a system of guide rails which extended out from all four corners of the bridge. The system which was installed consisted of a painted W-beam guide rail, supported by wooden posts spaced approximately 12 feet apart.

In 1983, this system was replaced by Department of Transportation maintenance personnel. Again, there was no documentary evidence to establish precisely what work was done, or when it was done. There was no question, however, that the system installed in 1983 again consisted of W-beam guide rails, now supported by metal posts with the same spacing as before (approximately 12 feet between posts). This was the guide rail system in place at the bridge on the evening that the accident occurred.

According to the testimony of Mr. Edwards, the bridge girder was considered a fixed object within the clear zone of the highway, and therefore required protection to minimize its danger to the motoring public. The guide rail system was intended to prevent vehicles from colliding with this hazard.

According to claimants' expert, John Serth, a guide rail system designed to protect a motorist from colliding with a fixed object, such as the bridge girder, should provide minimal or no deflection. He testified, however, that the guide rail system installed in 1983, with metal posts, constituted a "weak post system"[2]
and provided a far greater amount of deflection than the system which it replaced.
In Mr. Serth's opinion, the system which was installed in 1983 with the weak metal posts was designed to provide approximately eight feet of deflection. In his opinion, the system, as installed, would not prevent a vehicle from striking the girder, and therefore was insufficient to accomplish its intended purpose. He concluded that if a guide rail system had been installed which provided for a zero deflection distance, Mr. Fedele's vehicle would not have struck the girder. He testified that the replacement of the guide rail system in 1983 should not have been done without an engineering study. If such a study had been performed, Mr. Serth testified that safety standards in existence at that time would have required a guide rail system with zero deflection.

Richard Church, who testified as the State's expert, testified that an engineering plan was not required for this type of project, since it was not considered a capital project, but rather was viewed as a maintenance project only, for which no engineering plan is required. He testified that the highway maintenance guidelines relied upon by Mr. Serth were not applicable to this particular type of bridge (a "through girder bridge"), and that there were no specific standards in effect for guide rail replacement on this type of structure. He concluded that the guide rail system installed in 1983 provided proper protection at the bridge location, based upon prior accident history, even though it did not prevent the accident which occurred in this claim.

It is well settled that the State has a non-delegable duty to adequately design, construct, and maintain its roadways in a reasonably safe condition (
Friedman v State of New York, 67 NY2d 271). The State, however, is not an insurer of the safety of its roadways, and the mere happening of an accident does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Additionally, the State is not obliged to undertake expensive reconstruction, simply because highway safety design standards have changed since the original construction (see Holscher v State of New York, 59 AD2d 224, affd 46 NY2d 792, Van De Bogart v State of New York, 133 AD2d 974). Claimants have the burden to establish that the State was negligent, and that such negligence was the proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020; Demesmin v Town of Islip, 147 AD2d 519).
Additionally, in claims arising from highway planning decisions, it is equally well established that the State is accorded a qualified immunity from liability when it has relied upon an engineering study in making roadside improvements (
Weiss v Fote, 7 NY2d 579; Friedman v State of New York, supra).
In this matter, however, the State acknowledges that no engineering study was performed prior to the replacement of the guide rail system in 1983 by bridge maintenance personnel of the Department of Transportation. It is the State's position that since the replacement of the guide rails did not constitute a reconstruction or major rehabilitation, no such study was required. Whether such a study was required for this type of project, however, is merely an academic issue. Since a study was admittedly not conducted, the State is not entitled to the qualified immunity provided by
Weiss, and the State's duty must therefore be considered under the ordinary principles of negligence referred to above.
The State's duty to maintain its highways in a reasonably safe condition certainly includes the duty to construct and maintain safe guide rails (
Van Son v State of New York, 116 AD2d 1013), and when it replaces guide rails, the State is obligated to use due care in such renovations (Segnit v State of New York, 148 AD2d 519).
In this case, it is undisputed that in 1983 the entire guide rail system for the Caruso Creek Bridge was removed and replaced. Furthermore, it is undisputed that such replacement was made with a different type of post, in which weak metal posts were utilized instead of the rigid wooden posts that had previously been in existence at the site.

Based on the testimony, it is apparent to this Court that the 1983 renovations went far beyond typical maintenance work. This project was much more involved than the simple repair of an isolated broken post or the replacement of a rusted or bent beam, but rather consisted of the replacement of the entire guide rail system at the bridge site.

According to Department of Transportation "Highway Maintenance Quality Guidelines", whenever a major guide rail repair is undertaken, "current design standards should be checked to determine if the installation is still warranted, if an old type guide rail should be replaced by a newer type guide rail, or if a more economical type of guide rail may be used" (see Exhibit CC[3]
).
In this matter, there is no evidence whatsoever that highway personnel consulted any guidelines prior to the renovations performed in 1983. Although there was no documentary or other evidence to establish precisely what was done, it appears from testimony that bridge maintenance personnel simply utilized materials which were available at the time. It does not appear that any consideration whatsoever was given to existing guidelines, the deflection characteristics of the new system versus the existing system, and whether the materials actually used were appropriate for their intended purpose in providing protection from the bridge girder.

Claimants' expert testified, without contradiction, that the new system which was installed, with the "weak" metal posts, did not comply with existing guidelines, and actually provided less protection than the rigid post system it replaced. In his opinion, the failure to replace the guide rail system in 1983 with proper materials was a failure to exercise due care, since the new system provided a far greater deflection distance than was recommended at the time. Furthermore, claimants' expert testified that if a study had been conducted prior to the replacement, or if an engineer had been consulted, the system which was installed in 1983 would not have been recommended or installed.

Based on the testimony, therefore, this Court finds that the guide rail system which was installed in 1983 was plainly inadequate for its intended purpose, and that it failed to adequately protect motorists from coming in contact with the bridge girder. Furthermore, since the State admittedly did not conduct any engineering study prior to installing this system, it has no basis on which to justify the use of the weak metal posts utilized in this project, and as previously stated, does not enjoy any qualified immunity for its decision to use these materials. Such actions are therefore found to constitute actionable negligence by the State.

Based on this finding of negligence, the Court must now determine whether such negligence was the proximate cause of claimant's injuries. The testimony and evidence at trial established that the Fedele vehicle first struck the guide rail and then was directed against the bridge girder, and that the impact with the girder caused the vehicle to flip on its passenger side, and that the vehicle then slid across the roadway to the opposite and far side of the bridge. Based on this uncontradicted testimony, the Court finds that the failure of the guide rail system in preventing impact with the bridge girder was the proximate cause of the injuries suffered by claimant.

The Court must therefore consider whether claimant should be charged with any comparative negligence. As set forth previously, claimant was a passenger in a vehicle operated by Mark Fedele, and there is no evidence whatsoever that claimant took any actions which contributed in any way to this accident or her injuries.

With regard to the operator of the vehicle, Mark Fedele, the Police Accident Report (Exhibit 21) made reference to his inexperience as a driver. To the contrary, Mr. Fedele's testimony indicated that he had been a licensed driver for approximately two years prior to this accident. Furthermore, Mr. Fedele testified that he was very familiar with the roadway and bridge, since he drove it on almost a daily basis. His testimony established that he lost control of his vehicle when he applied his brakes in an attempt to avoid the racoon on the roadway. There is no indication at all that speed, alcohol, or drugs were involved in this accident.

Accordingly, this Court finds that there was no evidence presented on which to attribute any comparative negligence to either claimant or the operator of the vehicle.

Based on the foregoing, the Court hereby finds that the State is fully liable for the injuries suffered by claimant in this accident, and must therefore respond in damages.

The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.

Any motions not heretofore ruled upon are hereby denied.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


December 20, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] Unless otherwise indicated, all references to claimant in this decision are to Kerilynn J. Meyer.
[2] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
[3] Although the Guidelines admitted into evidence as Exhibit CC were dated July, 1987 (a date after the renovation which occurred in this matter), the sections pertaining to Guide Rail Maintenance were revised effective April 1, 1978 (a date which predated the replacement of the guide rail system in the instant claim).