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
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
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
and provided a far greater amount of deflection than the system which it
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
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
AD2d 224, affd
46 NY2d 792, Van De Bogart v State of New York
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
, 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
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
, 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
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
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
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.