New York State Court of Claims

New York State Court of Claims

GROSVENOR v. THE STATE OF NEW YORK, #2004-010-002, Claim No. 100246


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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New York
By: Dian Kerr McCullough, Assistant Attorney GeneralVincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 17, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)
2004-010-003, 2004-010-004

Claimants in Claim Nos. 100246, 100247 and 100248, which were tried jointly, seek damages for injuries they sustained in a one car accident on the evening of February 7, 1999.
The trial of these claims was bifurcated and this Decision pertains solely to the issue of liability.
The following facts are undisputed. On the night of February 7, 1999, Charlene Grosvenor (claimant),[1] was driving a 1994 Honda Accord from her home in Rockland County to the Westchester County Airport. Her brother, Dane Grosvenor, was a front seat passenger and her mother, Cynthia Grosvenor, was a rear seat passenger. It had been snowing for several hours. Visibility was limited and the roads were covered with snow. At approximately 8:00 p.m., claimant was proceeding northbound on Route 120 in Harrison, New York. Route 120 has one northbound and one southbound lane and ends at a "T" intersection with Lake Street. Lake Street has one eastbound and one westbound lane. Claimant was not familiar with the area and maintains that she did not see a stop sign at the intersection. She drove through the stop sign and turned right onto Lake Street. The car proceeded across the two lanes of Lake Street and crashed through the guiderail on the opposite side of Lake Street. The guiderail was a "W" corrugated beam system with posts at 12 and a half foot intervals. The car slid down an embankment before coming to rest. The speed at which claimant was traveling when she struck the guiderail was disputed at trial.
Claimants contend that the stop sign was not sufficiently visible and the guiderail was not properly installed and maintained as evidenced by its failure to prevent the car from leaving the roadway. Claimants further contend that defendant failed to conduct an investigation or study of the site after the occurrence of a number of similar accidents. Defendant maintains that it was not negligent in its installation or maintenance of the guiderail, nor was a study of the site warranted because a significant number of prior similar accidents had not occurred. Defendant further maintains that the guiderail functioned properly given the speed and angle at which the car struck the guiderail.
Claimant testified that she was traveling at a speed of 10 to 15 mph because the visibility was so poor (T1:98, 100).[2] She described the conditions as snowing heavily, extremely dark and foggy (T1:101). She stated that she could see no farther than the front of her car (id.). She was unfamiliar with the area and thought Route 120 was a continuous road (T1:100). Claimant did not see the stop sign nor did she realize that she had reached an intersection until after she had passed the stop sign and her brother Dane told her to turn right (T1:99, 108-109). Claimant turned the wheel and applied her brakes. She has no further recollection of the accident.
Cynthia Grosvenor was asleep in the back seat and did not awaken until she heard her son loudly direct
claimant to turn right. The next thing Cynthia remembered was seeing a lot of trees.
Harrison Police Officer Vito Castellano testified that he responded to
the accident scene at 7:53 p.m. He prepared an accident report noting 30 feet of damaged guiderail. It appeared that the car had traversed over the guiderail and landed 15 to 20 feet down an embankment (T1:14-15, Ex. H). He testified that pursuant to his investigation of the accident, he determined that "the main apparent contributing factor was a slippery pavement and the roadway conditions themselves" (T1:23). He also determined that the second contributing factor was claimant's "unsafe speed" (T1:23). The officer explained that he drew these conclusions from his investigation and from arriving at the scene in a path of travel similar to claimants' (T1:24). He stated that it was snowing heavily and the ground was covered with snow. Therefore, he had to adjust his speed because of the road surface (T1:22). Accordingly, he concluded that claimants' accident was caused by the slippery condition of the road and claimant's unsafe speed (Ex. A).[3] He testified that in his five years as a police officer, he has responded to fewer than five accidents at that location and "none to that level or type" (T1:12-13).
Dr. Irving U. Ojalvo, a licensed professional engineer, offered expert testimony on behalf of
claimants. Ojalvo testified that, "[E]ssentially you want the guiderail to redirect errant traffic into a safe position, or safe path and avoid the obstacles and the hazards" (T1:33). Upon viewing the photographs of the damage to the front of claimant's vehicle and the downed guiderail, Ojalvo used the standard formulas promulgated by the National Highway Traffic Safety Administration to determine the crush force necessary for the car to crash through the guiderail posts (T1:35-37). He also calculated the energy associated with the collapsed posts (id.). He did not consider the energy necessary to bend the posts and did not consider the forces relating to the tension in the beam in his calculations. In his analysis, the primary source of energy was that which supported the posts and he determined that the speed of the car was a minimum of 18 and a maximum of 24 mph at the time of impact (T1:37). Ojalvo reasoned that, according to the guiderail standards promulgated by the American Association of State Highway Transportation Officials (AASHTO), a guiderail of this type should have been able to contain a 4000 pound vehicle traveling parallel to the guiderail at a speed of 60 mph and striking the guiderail at an angle of approximately 28 degrees (T1:34, 38). Therefore, if claimants had been traveling at 20 to 25 mph and impacted the guiderail at a 90 degree angle, the car should have been stopped by the guiderail (T1:40-41, 43).
Ojalvo conceded that this type of guiderail was proper if it had been installed correctly.
He testified that, "I can't explain easily why this guiderail didn't hold up. *** So there had to be something wrong with its manufacture or its installation *** or its maintenance" (T1:41-42). He concluded that, "the most likely suspect is that they [the posts] weren't inserted properly and the ground wasn't tamped properly" (T1:56-57). He maintained that for proper anchorage of the guiderail posts, holes should have been dug and then the ground tamped with a pneumatic tool to compact the earth before driving the poles into the ground (T1:48-50). Without such tamping, there would not be the proper resistance if the guiderail were struck (T1:49-50). The proper anchorage would give more resistance and the posts would just bend rather than come out of the ground (T1:50). If the posts were knocked over or damaged and just put back in the same spot without compacting the ground, the system would be significantly weakened (T1:51-52). Ojalvo further testified that the New York State Department of Transportation (DOT) simply drove in the posts, often in the same hole when doing repairs and there were no indications of tamping. Additionally, since this guiderail was on a slope, there could be erosion, which could weaken the soil on the backside of the post (T1:52-54).
When asked if he could tell what happened to the guiderail posts when the impact occurred, Ojalvo responded:
"I can't tell. These photographs don't give me enough detail. I see the posts coming up at an angle, but there's no indication of what's happening below ground."

Ojalvo further opined that the intersection was problematic
based on the number of similar accidents at the location. He stated that the area could be improved by installing a flashing red light indicating a full stop and that would have been more visible than a stop sign in inclement weather (T1:59). He also maintained that additional lighting would also improve the area.
Vincent Lu, who has been employed by DOT for 29 years, testified that he is currently a civil engineer III. Since 1990, he has been a design manager and is responsible for construction projects.
He stated that the purpose of a guiderail is to keep an errant vehicle from hitting a hazard more dangerous than the guiderail itself (T1:131). He explained that any barrier, like a guiderail, is a fixed object and the softest barrier appropriate for the site should be selected. The softest type is a cable guiderail which gives the most deflection, and the stiffest type is a concrete barrier which gives no deflection. A "W" beam guiderail is designed to stop or redirect errant vehicles traveling parallel to the guiderail at a maximum of 62 mph, striking the guiderail at a 25 degree angle (T1:137-38). It is not designed to protect vehicles impacting at a 90 degree angle (T1:137).
Lu explained that in a
guiderail "W" beam corrugated system, the posts hold the rail in place and the ends of the rail are secured in a concrete block. Soil plates hold the posts in place. The strength of the guiderail comes substantially from the tension generated from the "W" rail and not the posts (T1:143). The posts hold the rail in position and maintain the tension of the post (T1:143-44). The State has a standard specification book detailing proper installation and materials. According to this standard, the posts should be driven into the ground with a pneumatic machine unless otherwise provided. Holes are never dug in advance unless the installation is into rock or over a concrete culvert. Lu maintained that, although the posts play some factor in creating tension, even if an area had continual damage, the strength of the guiderail should not be weakened if it is repaired according to the original standard (T1:145). He testified that it is permissible to drive a new post into the same hole as the original post and that it would also be permissible to simply bend a post back into place (T1:146). This would not affect the strength of the system (T1:147).
Lu stated that once a guiderail system is installed, a particular location is not normally reevaluated unless the accident history reveals a pattern of three or more of the same type of accidents (T1:148-50). On the issue of whether this area warranted further investigation, Lu was asked to review
defendant's exhibit J and directed to three MV-104 reports for accidents at this location on January 8, 1996, September 7, 1996 and October 10, 1996 (T1:153-54). The January 8, 1996 report stated that the driver "[a]ttempted to stop @ stop sign and skidded past stop sign into Lake St." The September 7, 1996 report stated that the driver "was unable to see the stop sign due to heavy fog and rain, thus causing him to collide with the guiderail" (Ex. J). The October 10, 1996 report stated:
"[o]perator states that he did not observe the stop sign that was clearly posted at intersection. He states that he did not observe the end of the roadway either. Operator further states that he does not believe that he was wearing his eyeglasses (in his pocket)"

A reevaluation of the site was not done (T1:157). Lu explained that three accidents might not be substantial when evaluated with the volume of traffic (
id.). When asked if these three accidents would have warranted a further evaluation of the site, Lu responded, "I might consider that there was possibly a problem at this location. Then I would have to look at it further to identify whether or not there was" (T1:158). But merely because three accidents occurred within one year would not necessarily warrant further study of the site (T1:159-60).
David Parker testified that he is employed by DOT as a civil engineer in the Traffic Investigation Unit. In his position, he investigates accident locations generated by complaints from the public or from the statewide highway investigation project. He explained that in order to decide whether a traffic control device is needed, he studies the accident history of the location for three years to determine whether the accident would be addressed by a device. Initially, he looks for similar accidents and assesses whether there are more than expected on the road. Then, the accident reports are read to discount for human error factors. The designation of a rate of accidents above the state level depends upon the volume of traffic and the number of accidents per vehicular miles. In regard to the intersection, Parker was not aware of any investigation by his office
that had been generated by the statewide surveillance system (T2:171).
Thomas Mason, who has been employed by DOT for 33 years, testified that he is the assistant resident engineer for the Southern Westchester Maintenance Unit, which includes the intersection. He explained that his unit was responsible for replacing damaged guiderails. Mason stated that if a portion of guiderail is damaged due to a bent post, the post is removed and the rail disassembled. The post is then reinstalled where it had been before and the rail is reattached. The ground is retamped and a pneumatic device or sledge hammer is used to drive the post to the proper height. He maintained that there were no major repairs to the guiderail at the intersection prior to the accident.

Nicholas Pucino, a professional engineer with DOT and its predecessor agencies for over 30 years, before retiring, offered expert testimony on behalf of
defendant. From 1979 to 1989, Pucino was in charge of the State Highway Improvement Program. He has had extensive experience designing guiderail improvement projects and investigating accidents involving guiderails.
Pucino testified that the guiderail conformed to the standards as they existed at the time of their installation. He explained that traffic proceeding north on Route 120 would impact the guiderail at a 90 degree angle and guiderails were not designed for that kind of impact. A guiderail is designed to deflect a 4000 pound car traveling at 60 mph, impacting at a 25 degree angle. The guiderail standards have "never" changed to cover a 90 degree impact (T3:46).
If a guiderail were stiff enough to stop a car head-on, then the guiderail would not be able to bend and perform its intended function.
"Theoretically you could make a barrier that nobody could ever get through but then, you know, it may kill the people that you're trying to protect. So, you have to make this trade-off in deflection and energy of impact"

(T3:34). Pucino concluded that the guiderail functioned as intended, to slow down the vehicle.
Pucino opined that
claimant had been traveling at a speed greater than 25 mph and he criticized Ojalvo's analysis of claimant's speed. Pucino explained that Ojalvo misunderstood the nature of the "W" beam post guiderail system, which operated through tension in the beam. In calculating speed, Ojalvo failed to take into account that tension. Pucino stated:
"you can't just use the energy from bending the post which are [sic] supposed to bend and get out of the way anyway, you have to take into account the tension in the beam. And by failing to take into account the tension in the beam, you miss a major part of the energy that would be absorbed by the barrier and having failed to consider that energy, when you go to calculate the impact speed of the vehicle, you're way low because you've missed a great part of the energy that that beam would've absorbed"

(T3: 35-36). Pucino explained that Ojalvo should not have translated speeds from tests of a car impacting at 25 degrees to the 90 degree situation (T3:47-48). When a car hits a guiderail at an angle, there is a dynamic force as it slides along. In contrast, when a car strikes at 90 degrees, it hits with a single force. Consequently, by failing to consider the different energies, Ojalvo's estimated speed of claimant's vehicle was too low. Based on Ojalvo's own calculation, Pucino opined that claimant's vehicle had to be traveling more than 20 to 24 mph (T3:51). Since Ojalvo failed to take into account all of the energy dissipated, any additional energy would necessarily increase the speed. Pucino testified that the guiderail probably would have contained the car impacting at a 90 degree angle at a speed between 20 to 24 mph (T3:49-50).
Pucino also criticized Ojalvo's crash analysis because he did not distinguish between damage to the car resulting from the impact to the guiderail and the damage which incurred after penetration (T3:37). Pucino explained:
"[t]hat being the case, there would be no way to demonstrate that these injuries were caused by some failure in the guiderail because we don't see any big crush from a tree or something beyond there. *** So, basically what we're saying is that these injuries could just as well have been caused by the impact of the guiderail performing its function"

(T3:37-38). Pucino pointed out that nothing significant happened to the car after getting through the guiderail. Rather, the car lost almost all of its energy upon impact with the guiderail (T3:40).
"[M]y conclusion is the guiderail pretty much did its job up to its capabilities. I mean it slowed the vehicle down enough so that we didn't have any serious or significant secondary impacts. I believe the guiderail, you know, did the best it could under those circumstances. A stiffer guiderail is going to cause more injuries"

Pucino disagreed with Ojalvo's assumption that the guiderail was defective because the posts were driven rather than placed in a hole and tamped. All posts, Pucino insisted, are driven unless they are installed through concrete or rock (T3:41). Driving posts fully complied with the required state specifications. Pucino stated that posts are essentially driven into the same hole and this has a marginal or "insignificant effect" on the overall strength of the guiderail because the posts are not the critical component; the beam is the critical component (T3:70-72). Pucino also stated that he visited the scene and testified, "I'm positive there was no erosion." Therefore, Pucino disagreed with Ojalvo's opinion of erosion being a cause for concern (T3:42).

Additionally, Pucino maintained that the flat plates were installed properly. They are designed to facilitate driving the posts and limit the bending of the posts (T3:42-43). They are not intended to prevent the posts from coming out of the ground (T3:43). The posts are weak posts that are intended to be knocked out of the way easily. It is the tension of the beam, and not the posts, which constrains the vehicle (T3:45).

Pucino reviewed the intersection's accident history from 1989 to 1999. He noted that there were only 12 accidents in 10 years, only two of which involved an impact with the guiderail (T3:54). Using the traffic counts for the site (Ex. K), Pucino projected that 6.6 million cars approached the intersection during that period (T3:55). Slightly more than one accident per year with that volume of traffic would not, he concluded, be considered a high accident location.

Pucino assessed the lighting conditions and noted that there was a light pole near the stop sign (T3:56). He emphasized that street lights are not intended to illuminate stop signs. Stop signs are illuminated by vehicle headlights. Pucino also opined that the three traffic control devices at the intersection (the stop, double arrow and Route 120 arrow signs) conformed with the requirements set forth in the New York State Manual of Traffic Control Devices (T3:58-59).

Pucino testified that if
claimant had been proceeding at 15 mph, as she testified, claimant's car would have been contained by the guiderail (T3:61). He further stated:
"I did an analysis of the stopping distance for a vehicle approaching this intersection and starting at the stop sign deciding at that point that they had to stop or make a sharp turn and at 15 mph even under a snow and ice condition, the vehicle would have stopped before they reached the guiderail. It's a hundred feet from the stop sign to the guiderail so she had to travel quite some distance across there. So, even under a snow condition, not ice condition, snow condition, in my opinion if she had been going 15 mph at the stop sign and had some perception-reaction at that point in time, she would have been able to stop the vehicle in time"

(T3:61). He attributed the accident to claimant's speed and impaired visibility. Claimant testified that she could not see past the hood of her vehicle. Under those conditions and her unfamiliarity with the road, she should have proceeded at a crawling speed (T3:63).
It is well settled that the State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition and that duty encompasses the guiderails and the area adjacent to its roadways (
see Gomez v New York State Thruway Auth., 73 NY2d 724; Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579; Zalewski v State of New York, 53 AD2d 781). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on a State roadway 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). Claimants have the burden of establishing that defendant was negligent and that such negligence was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-22; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519). Liability will not attach unless defendant had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (see Rinaldi v State of New York, 49 AD2d 361). Additionally, "something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (Weiss v Fote, supra at 588). Thus, merely because claimants' expert opined that a flashing red light and additional lighting would improve the area, does not establish that defendant breached its duty (see Schwartz v New York State Thruway Auth., 61 NY2D 955 [liability will not be imposed where standards were not met and to go beyond the standards was a planning decision which would only have involved giving the public more complete protection]).
In the field of traffic design engineering, defendant is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (see Friedman v State of New York, supra; Weiss v Fote, supra). In Friedman v State of New York, the Court of Appeals stated at 284:
"Once the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger * * * Moreover, after the State implements a traffic plan it is ‘under a continuing duty to review its plan in the light of its actual operation' " (citations omitted).

Contrary to
claimants' assertion, the Court finds that, given the volume of traffic, there was not an unusual number of prior similar accidents at this location which should have put defendant on notice of a dangerous condition requiring further study (see Friedman v State of New York, supra at 284; Weiss v Fote, supra; Patti v State of New York, 217 AD2d 882, 883; Hough v State of New York, 203 AD2d 736 [claimant did not prove prior similar accidents and road was safe when built; accordingly State was not required to upgrade road to conform to new standards]; Segnit v State of New York, 148 AD2d 519 [State not obligated to replace guiderails with newly designed guiderails where there was no proof that hazard was posed by existing guiderails]).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
claimants failed to establish that defendant was negligent. Defendant's expert effectively attacked the conclusions reached by claimants' expert with regard to the speed of the vehicle and the effectiveness of the guiderail. Indeed, defendant's expert conceded that if claimant's speed had been 15 mph, as she had testified, then the guiderail would have contained the car. Moreover, an analysis by defendant's expert established that, at 15 mph, claimant would have been able to stop the car prior to reaching the guiderail. Defendant's expert established that guiderail standards were met and they were never designed to contain a 90 degree impact. He noted that nothing significant happened to the car after going through the guiderail; rather the car lost almost all its energy upon impact. Thus, there is no basis for finding that the guiderail failed to perform as designed or that defendant was negligent in its installation or maintenance of the guiderail.
"Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury" (Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7). Here, it was just as reasonable and probable that the claimant's own negligence was the sole cause of the accident. Claimant was obligated to operate her car at a rate of speed in such a manner of control as to avoid an accident (see Woolley v Coppola, 179 AD2d 991, 992). Thus, the Court concludes that the sole proximate cause of the accident was claimant's unsafe speed under the conditions where it had been snowing for several hours, claimant was unfamiliar with the road, and claimant could not see beyond the front of her car (see Schwartz v New York State Thruway Auth., 95 AD2d 928, 929, affd 61 NY2d 955).

February 17, 2004
White Plains, New York

Judge of the Court of Claims

[1] Unless otherwise noted, claimant shall refer to Charlene Grosvenor.
[2] All references to the trial transcript are indicated as follows: the transcript of October 29, 2002 is preceded by "T1"; the transcript of October 30, 2002 is preceded by "T2" and the transcript of April 8, 2003 is preceded by "T3".
[3] Claimants' attorney did not object to the officer's testimony or the admissibility of the officer's conclusions as stated in the accident report. Rather, claimants' attorney argued that the officer's conclusion that a contributing cause of the accident was claimant's "unsafe speed" should be accorded no weight because the officer did not observe the accident nor did claimant relate to the officer the speed at which the car had been traveling. Castellano testified at trial regarding his personal observations while carrying out his police duties and in the course of his investigation of the accident. Additionally, he was subjected to cross-examination. Accordingly, the report, to which no objection was raised, was properly admitted into evidence (see Claimant's Letter Dated January 14, 2004; Beeley v Spencer, 309 AD2d 1303; Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396). The Court has considered the officer's testimony explaining the basis for his conclusions in the report and has not accorded his testimony and conclusions undue weight.