New York State Court of Claims

New York State Court of Claims

CAPRIO v. THE STATE OF NEW YORK, #2004-015-596, Claim No. 103245


Synopsis


Court found claimant failed to sustain burden of proof of State's negligence in action to recover for personal injuries sustained in a two vehicle accident. Other vehicle turned left into path of claimant's vehicle. Claimant alleged state was negligent in allowing vehicles to park adjacent to and minimally infringing upon State's right-of-way.

Case Information

UID:
2004-015-596
Claimant(s):
SARAH J. CAPRIO and DAVID CAPRIO
Claimant short name:
CAPRIO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103245
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Girvin & Ferlazzo, P.C.By: Salvatore D. Ferlazzo, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 15, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The claim herein seeks to recover for personal injuries sustained by Sarah J. Caprio in a two vehicle accident which occurred on November 25, 1998 on State Route 145 approximately one-quarter mile north of its intersection with Frank Hitchcock Road in the Town of Cairo, Greene County.[1]
The claim is grounded on the alleged negligence of the State in failing to properly design, construct and maintain the subject roadway in a reasonably safe condition. Claimants also allege that the defendant failed to warn motorists of a dangerous, defective and hazardous condition. The trial of this matter was held beginning on January 29, 2004 and the decision herein addresses solely the issue of liability.
The claimant, Sarah J. Caprio, testified on her own behalf. She stated that in November, 1998 she resided at 119 Frank Hitchcock Road in Cairo, New York. At the time of her accident she had resided at that address for only one month but had lived in the surrounding area of Greene County since 1993. Ms. Caprio stated that she was familiar with Route 145, and specifically that portion of the roadway near a Tire Kingdom store where the subject accident occurred.

Ms. Caprio next described the accident in which she was involved on November 25, 1998 stating that at the time she was operating a 1997 Ford Explorer described by her as being "in excellent condition". In describing the events which occurred immediately preceding the accident she testified that she left home at approximately 3:00 p.m. with her children to go to one of the children's school. She drove down Frank Hitchcock Road, turned right onto Route 145 and proceeded north past the Tire Kingdom store to the high school. Ms. Caprio was familiar with that particular portion of Route 145 having lived locally and also through her service as a visiting nurse. The witness then reviewed pages one through six of Exhibit A which contain photographs the claimant described as depicting the view of a driver proceeding northbound on Route 145 from a point north of Frank Hitchcock Road and continuing progressively closer to the Tire Kingdom store, the location of which is identified by a yellow sign on the left-hand side of the photograph.

After concluding her business the claimant and her children left the school and proceeded south on Route 145 at or about the posted speed limit of 55 mph to return home. She described the area of Route 145 approaching the Tire Kingdom as a generally downhill slope which changes to an incline as you approach the Tire Kingdom store which is on the right or westerly side of the highway. According to the witness "as you get to the top of the hill, Pirelli Tire would be on your right hand side".

Ms. Caprio testified that she first observed a vehicle being operated by Thomas O'Brien in the northbound lane of Route 145 from a distance of approximately two hundred feet. She stated that she was scanning the road looking left, right and straight ahead as she approached the point where she observed the O'Brien vehicle. The witness stated that in observing Route 145 traffic she observed northbound traffic far back on the road. There were also vehicles in front of the claimant in the southbound lane of Route 145 and to the right of the roadway claimant observed cars parked along the westerly side of the road. She testified "there's cars parked on the right hand side of the road. And you can't tell if someone's going to pull out of the driveway there. So, I was using caution and watching the driveways", referring to two separate driveways providing ingress to and egress from the Tire Kingdom store. Claimant stated that she was aware that vehicles go in and out of the Tire Kingdom's driveway and that there is more than one driveway servicing the store. The witness reiterated her prior testimony concerning her first observation of the O'Brien vehicle from a distance of approximately 200 feet and marked that point in red on the photograph contained on page 8 of Exhibit A. When she first observed the O'Brien vehicle it was moving in what was described as a "catty-corner" manner attempting to enter the northernmost Tire Kingdom driveway which claimant marked as driveway #1 on the photograph on page 11 of Exhibit A. Claimant described what happened next stating "I hit my brakes and I remember saying 'hold on' to my children and, then, that's all I really remember". According to the witness the two vehicles collided near driveway #1 as shown on photograph A-11.

On cross-examination Ms. Caprio testified that she had not applied her brakes prior to the time that she first observed the O'Brien vehicle and that she was traveling at an approximate speed of 50 - 55 mph. She agreed that Mr. O'Brien was operating a pick-up truck and that she was driving a 1997 Ford Explorer at the time of the accident. She also agreed that a driver's position was higher relative to the road in a Ford Explorer than he or she would be in a normal sedan and that she utilized a built-in step to enter the Explorer. The witness confirmed that she had lived in the general vicinity of Route 145 and the Tire Kingdom store since 1993 and was aware that the store had two driveways entering Route 145. She lived on Frank Hitchcock Road approximately one mile from the Tire Kingdom store on Route 145 for one month preceding the accident.

Claimant restated her previous testimony that the O'Brien vehicle was attempting to enter the northernmost of the two Tire Kingdom driveways, the driveway first encountered by a vehicle proceeding in a southbound direction on Route 145. She also stated, as she had on direct, that the O'Brien vehicle was in a "catty-corner" position prior to impact. She did not recall whether Mr. O'Brien had used his turn indicator. Finally, Ms. Caprio stated that she had not been involved in either an accident or a close call in the area of Route 145 near the Tire Kingdom store prior to November 25, 1998. Portions of claimant's examination before trial in which the claimant related that she did not recall where her vehicle and Mr. O'Brien's came to rest following the accident were read into the record.

On redirect examination the claimant identified Exhibits 15 and 16, which were admitted in evidence without objection, as photographs depicting the view of a northbound driver on Route 145 near the location of the northernmost driveway entrance. Claimant related her understanding that the photographs were taken the day following her accident and stated that the vehicles shown parked perpendicular to Route 145 along the westerly side of the highway in the photographs are in the same location as the vehicles she observed on November 25, 1998.

Claimants next called to the stand Robert L. Winans, Jr., who testified that he has been the New York State Department of Transportation resident engineer for maintenance in Greene County since 1992. Mr. Winans testified that his duties include the planning of maintenance work, supervision of 45 - 50 employees and management of department funds. He stated that Greene County included approximately 450 lane miles of highway and that he was familiar with Route 145, including that portion of the highway at or near the Tire Kingdom store. He testified that his office was located 1½ miles east of the intersection of Route 145 and Route 23 approximately 4 miles from the store.

Exhibit 5 containing photo logs of Route 145 from 1993 and Exhibit 6 containing photo logs from 1997 were received in evidence without objection. Mr. Winans described the photo logs as photographs taken by the Department of Transportation every several years from a motor vehicle equipped with an automatic camera that takes one photograph every 52 feet. According to the witness the photo logs are stored in the regional office of traffic and safety as well as the DOT home office in Albany, New York. He went on to state that prior to joining the DOT Maintenance Division he was involved in highway design and construction activities for the Department for approximately 15 years. The witness described the State right-of-way as "the roadway and the other pieces of the highway that are purchased or obtained through acquisition to accommodate the highway". The right-of-way includes the paved portion of the highway as well as areas outside the pavement which are necessary for maintenance or other purposes. The witness reviewed what was identified as photograph 16 from among the photographs contained in Exhibit 6. Mr. Winans stated that the printed information at the bottom of the photograph includes the date the photograph was taken (August 20, 1997) and a number in the right corner indicating the point at which the photograph was taken in the sequence of photographs included in the photo log.

The witness testified that his duties as resident engineer for maintenance include safety issues which may be brought to his attention as well as maintenance of the State's right-of-way including mowing of the right-of-way three to four times per year and the removal of any obstructions which might interfere with highway maintenance. He stated that the speed limit on Route 145 is 55 mph for at least one mile north and south of the Tire Kingdom. He identified Exhibit 18 as the original plans for construction for Route 145 dated 1932 and Exhibit 17 as a set of plans for the resurfacing of Route 145 in the area near the Tire Kingdom. He stated that the work portrayed in Exhibit 17 was accepted in 1984. Both Exhibits were received without objection.

Mr. Winans next identified Exhibit 1 as a portion of the highway work permit issued in 1979 to the then owner of what is now the Tire Kingdom store allowing the construction of an additional 20 foot driveway on the west side of Route 145. Exhibit 2 is a copy of the application submitted in relation to the highway work permit referenced above which contains several pages, the first of which lists the applicant's name and describes the work to be performed as the improvement of a commercial entrance on the west side of Route 145. The second and third pages of Exhibit 2 set forth the responsibilities of the permitee as well as a sketch of the proposed work which also depicts an existing driveway located at station 96 south of the entrance proposed to be constructed. The final page of Exhibit 2 contains directions regarding the performance of work within the State highway right-of-way.

The witness identified Exhibit 3 as the Department of Transportation's Policy and Standards for Entrances to State Highways effective January 1, 1973 and Exhibit 4 as the same document effective February, 1998. Mr. Winans related that driveway entrances should meet certain minimum sight requirements, if possible, and confirmed that the documents contained in Exhibits 1 and 2 relating to the construction of a second driveway at the Tire Kingdom store did not contain measurements or findings with respect to sight distances as of 1979. The witness then reviewed the photograph appearing on page 6 of Exhibit A and in response to a question from claimants' counsel stated that the centerline striping of Route 145 in the area depicted in photograph A-6 permitted passing from the approximate center of the Tire Kingdom property for southbound traffic and prohibited passing by northbound vehicles. He related that Route 145 in the area of the Tire Kingdom was resurfaced during the summer of 1999, prior to the date that photograph A-6 was taken on October 6, 1999. Mr. Winans did not know whether the road striping depicted in Exhibit A-6 is the same as existed on November 25, 1998, the date of claimant's accident, stating that matters pertaining to road striping are generally addressed by the Region I Traffic and Safety Unit. The witness then reviewed the photograph at page 8 of Exhibit A and affirmed certain statements contained in his examination before trial in which the witness stated that had the State been aware that the vehicles shown parked along the westerly side of Route 145 in photograph A-8 were within the State's right-of-way, the Department would likely have instructed the property owner to remove the vehicles to an area outside the right-of-way. The deposition transcript reflects Mr. Winan's statement that removing any vehicles within the State's right-of-way would have been important to avoid collisions with any vehicle which might run off the road and prevent the parked vehicles from obscuring or blocking the view of vehicles using the driveways to exit the Tire Kingdom store.

On cross-examination Mr. Winans explained that at the time of his deposition he had not reviewed the record plans for Route 145 in order to determine the exact width of the State's right-of-way at the accident site. After reviewing the plans he determined that the State's right-of-way in the area shown in photograph A-8 extends approximately 27 feet from the center line near the northernmost Tire Kingdom driveway to a point "a little bit beyond the top of the ditch back slope". The witness stated that he had not measured the distance between the center line and the back slope of the ditch apparent in photographs 8 and 9 of Exhibit A. He did testify that the front portion of certain of the cars appearing in the photograph are likely within the State's right-of-way.

Exhibit 8, a police accident report dated November 25, 1998 pertaining to the accident involving the claimant and Thomas O'Brien, was received in evidence. That document indicates that the accident occurred at or near reference marker 1119 on Route 145 which, as measured by the witness, was located 270 feet south of the southernmost Tire Kingdom driveway. He went on to testify that as part of his duties as resident engineer he would observe roadways on which he traveled, including Route 145 north and southbound lanes, for any potential hazards including issues involving sight distances. At no time during his travels on Route 145 was he concerned that a potential problem involving sight distances existed in the area at or near the Tire Kingdom store. He described the term road geometry as including the highway profile, grades on curves and horizontal alignment. Mr. Winans related that he had reviewed the history of road work performed on Route 145 within one-half mile both north and south of the Tire Kingdom store and determined that the geometry of Route 145 had not been altered or changed since its original construction in 1932. According to Mr. Winans his review of both the road history sheet and project plans maintained by DOT indicate that a resurfacing project was undertaken in 1984. He confirmed that although resurfacing was in the past sometimes referred to as reconstruction, Department documentation reflects no actual reconstruction work had been performed on Route 145 in the area of the Tire Kingdom store since 1932. He explained that simple resurfacing projects involve the overlay of 1½ inches of asphalt on top of existing pavement and do not affect the relative geometry of the roadway. The witness stated that he was not aware of any prior accidents at or near the Tire Kingdom store and that he had received no complaints involving the store's driveways prior to November 25, 1998.

Claimants next presented the testimony of Lawrence M. Levine, a Licensed Professional Engineer in the State of New York since 1978. Mr. Levine related his educational background and that he has been self-employed as a professional engineering consultant since 1983. He described his work as involving general civil engineering including highway design and traffic engineering matters. The witness has testified previously in the Court of Claims and in other legal proceedings on behalf of both plaintiffs/claimants and defendants.

Mr. Levine first described his investigation of claimant's accident of November 25, 1998 stating that he conducted a site visit and examined the police accident report. He then obtained a copy of the Tire Kingdom driveway permit, as-built roadway plans, photo logs and road history reports. Mr. Levine also reviewed examinations before trial and conducted research to determine driveway standards applicable for "the era in question". He stated that at the time the second Tire Kingdom driveway was installed in 1979 applicable standards included the Department's Policy and Standards for Entrances to State Highways, Department rules containing the I.T.E. (Institute of Transportation Engineers) tables regarding left-turning sight distance to and from a driveway and the provisions of the Manual of Uniform Traffic Control Devices relating the methodology used in determining sight distances. Mr. Levine also researched stopping distances and took field measurements regarding sight lines and sight distances at the accident location. The witness related that he was unable to obtain right-of-way maps. According to the witness he visited the site soon after the claimant's accident as well as several times subsequent to the repaving of Route 145 in 1999. He testified that the post-accident resurfacing work included more than the usual addition of 1½ - 2½ inches of asphalt and that part of the road had been resurfaced with up to 6 inches of new asphalt. The witness testified that due to the variation in depth caused by the unusual method of resurfacing the highway the sight distances measured shortly after claimant's accident differed from the same measurements taken subsequent to the 1999 resurfacing project.

Claimants' expert opined that the State of New York failed to adequately inspect Route 145 at or near the Tire Kingdom store and, therefore, failed to discover that the numerous vehicles parked along and across the State's right-of-way line at the top of a steep hill created a critically restricted sight distance to the driveway for a vehicle approaching the northernmost driveway in the southbound lane of traffic. Levine suggested that the manner in which the vehicles were positioned created a distraction for an oncoming southbound driver because it created the illusion that one or more of the vehicles were pulling out onto the highway which, in turn, drew the driver's eye to the right and away from oncoming traffic. Mr. Levine stated that the sections of the Manual of Uniform Traffic Control Devices pertaining to intersection sight distances establish minimum sight distance measurements based upon vehicle highway speeds. Although his testimony in this regard was somewhat confusing, Mr. Levine appeared to testify that the sight distance for a southbound driver cresting the incline and approaching the northernmost Tire Kingdom driveway (driveway #1) was approximately 350 feet. He stated that sight distance at that location becomes critical under 450 feet based upon the MUTCD provisions concerning intersection sight distances and those found in the applicable department policy and standards. He acknowledged that his calculations were based upon measurements taken prior to the 1999 resurfacing. Sight distance measurements using the American Association of State Highway and Transportation Officials policy on geometric design of highways criteria for deciding sight distance established, according to the witness, a critical sight distance of 750 to 1,000 feet.

Mr. Levine testified that the existence of cars parked along or within the State's right-of-way north of driveway #1 constituted an obstruction which obscured a southbound motorist's view of driveway #1. Asked what effect such an obstruction would have on a driver proceeding southbound on Route 145 the witness related:
"Well, it would be more of a distraction that would pull your vision to the right as you're coming over this crest and where sight distance is normally limited for approaching vehicles coming northbound and also you've got two driveways to deal with you can't see as well. . . . [W]ithout the vehicles being parked there all the time, you would see one vehicle parked there, you might not see the driveway over the crest, but you would see a vehicle, you'd know there's a vehicle there. You shouldn't be looking at twenty cars coming out at you. You should only - You should know it's a driveway and you should know there's a car coming out, one car. You shouldn't have to stare that way to make sure that you're not mistaken".

Mr. Levine also related that he calculated the sight distance from the front bumper of a northbound vehicle turning left into the northernmost Tire Kingdom store driveway (driveway #1) to the front bumper of a vehicle proceeding in the southbound lane of Route 145. The witness stated that the Department of Transportation's Policy and Standards for Entrances to State Highways requires that a left-turning vehicle such as the O'Brien vehicle be provided between 598 to 910 feet of sight distance. According to the witness, his measurements establish that the sight distance available to Mr. O'Brien as he attempted a left-hand turn into driveway #1 was approximately 505 feet.

The witness stated that his field investigation revealed that there were no intersection, driveway or entrance and exit signs at or in advance of driveway #1 although such signs "would be recommended" and, in fact, were required given the presence of cars parked along the westerly edge of the highway in advance of driveway #1.

Finally, Mr. Levine testified that based upon his knowledge, training and the results of his investigation of the claimant's accident it was his opinion that the limited sight distances available to northbound and southbound traffic on Route 145 together with the lack of signing and the presence of cars parked along the westerly boundary of the highway and within the State's right-of-way created a distraction which caused or contributed to the happening of claimant's accident. In this regard, Mr. Levine stated "[s]he should have been focusing straight ahead. She shouldn't have had to move her eyes one way or the other. It should have all been visible". He went on to state:
"Any distraction increases reaction time and there was none to spare here. Somewhere else where there's lots of sight distance, maybe it wouldn't have mattered. But they were approaching at just the right time, at just the right speeds. It wouldn't happen all the time. It's not that busy of a road. But, they come right at the same time and one's turning into Pirelli's, it's an accident waiting to happen. But, it's a rare occasion, you know, very rare that that would happen right at that moment. But, having those cars there parked along the right of way almost made a certainty".

Mr. Levine, on cross-examination, testified that although he measured sight distances for both driveways servicing the Tire Kingdom store on Route 145 his testimony on direct was addressed to issues affecting only the northernmost driveway (driveway #1). He stated that should the evidence establish that claimant's accident took place several hundred feet south of the northernmost Tire Kingdom driveway that fact would directly affect his prior testimony and conclusions. He agreed that the redacted police report received in evidence as Exhibit 8 refers to reference marker 1119 which, if established as the actual site of claimant's accident, "wouldn't be anywhere near Pirelli's".

There followed a long colloquy in which defendant's counsel attempted to discern the methods employed by claimants' expert in determining the sight distance measurements related in his testimony on direct examination. Defense counsel's efforts were largely unsuccessful in clarifying the precise methodologies used by the witness in reaching his conclusions regarding sight distances not only between a southbound driver on Route 145 and a vehicle located in the northern driveway (driveway #1) of the Tire Kingdom store but also between a southbound driver on Route 145 and a vehicle proceeding in the northbound lane and turning left into said driveway. Mr. Levine did relate that, whatever the methodology employed, sight distances are measured from a point 42 inches above the road surface. He did not adjust the sight distance measurements to account for the fact that the claimant was operating a Ford Explorer in which she was seated at a level higher than would be the operator of a sedan. When asked whether such a differential in elevation would result in enhanced sight distances Mr. Levine answered "theoretically, yes".

The witness testified that he did not actually measure and plot the location of the right-of-way on the westerly side of Route 145 near the Tire Kingdom store because the right-of-way shown on the original 1932 construction plans was unclear and utilized a scale which did not permit accurate measurement. Instead, Mr. Levine stated that he relied upon the location of two poles, one at the apparent southern boundary and one at the northern boundary of the Tire Kingdom property, as establishing the edge of the State's right-of-way. In this regard the witness stated:
"Well, to the best of my estimation looking at the plan and judging by what, where the, the poles are put on property lines, and this right-of-way goes in and out there, and based on my measurements from that, the poles, the setbacks of other monuments along the road, and also the permit diagram, that the right-of-way line pretty much follows, if you drew a line connecting the two poles and you keep going down the road pole to pole, that's the right-of-way".

Mr. Levine stated that his file did not contain a copy of the road history report for Route 145 at the subject location and that he did not review the deposition transcript of Mr. O'Brien

Claimants' next witness was Trooper Christian N. Quinn who testified that he was assigned to the New York State Police Catskill Barracks on November 25, 1998. Trooper Quinn testified that he investigated the accident involving the claimant and Mr. O'Brien near the Tire Kingdom store on Route 145 and completed a police accident report. The witness reviewed the accident report received in evidence as Exhibit 8 and confirmed that it indicated reference marker 1119 as the location of the accident in the box provided therefor. He described the reference marker indicated as "the general area where the accident occurred" but also testified that reference marker 1119 was actually somewhat south of the accident scene while another reference marker, 1120, was located a short distance north of the accident location. The trooper testified that the collision between the claimant's vehicle and the vehicle driven by Mr. O'Brien actually occurred between the two reference markers. According to Trooper Quinn his general practice is to note the reference marker first observed as he leaves the scene of an accident. In the case of claimant's accident the trooper exited the accident site heading southbound on Route 145 and thus noted reference marker 1119, the marker closest to the accident scene in the direction he was traveling.

On cross-examination the witness stated that he is familiar with the area of Route 145 near the Tire Kingdom which is within his general area of patrol. As such, Trooper Quinn is familiar with both driveways which service the Tire Kingdom store. The witness reviewed photograph 11 of Exhibit A and related his observation at the scene that the O'Brien vehicle had come to rest near the southern most tire store entrance marked as driveway #2 on Exhibit A-11.

Claimants next called Robert McKinley, Ms. Caprio's son and a passenger in claimant's vehicle at the time of her accident on November 25, 1998. Mr. McKinley was seated in the rear passenger-side seat of claimant's Ford Explorer. He testified that he recalled traveling along Route 145 returning home from his school and that he observed vehicles parked along the side of the highway near the Tire Kingdom store on that day. He also recalled the collision between the claimant's vehicle and that driven by Mr. O'Brien and stated that he was aware of the potential impact "a second or two before it happened". He observed the O'Brien vehicle for what he described as a split second during which time he noticed that the O'Brien vehicle was moving and partially within the southbound lane of traffic attempting to enter the northernmost Tire Kingdom driveway designated as driveway #1 on Exhibit A-11. The witness stated that the O'Brien vehicle was in a catty-corner position and was struck by claimant's vehicle on an angle. After the collision, the claimant's vehicle continued past the southern driveway (driveway #2) and off the road onto a lawn area near the Tire Kingdom store.

On cross-examination, Mr. McKinley testified that following the collision the claimant's vehicle came to rest south of the southernmost Tire Kingdom driveway. The witness marked the location in blue on Exhibit A-11.

Claimants rested at the conclusion of Mr. McKinley's testimony and the defendant moved to dismiss the claim for failure to establish a prima facie cause of action. The Court reserved on the motion which is now denied.

Defendant's first witness was Mr. Reed G. Sholtes, currently employed by the New York State Department of Transportation as Supervisor in charge of traffic operations in the Region I Traffic, Engineering and Highway Safety Section. Mr. Sholtes stated that he is a Licensed Professional Engineer in the State of New York and that his duties include receiving and evaluating complaints regarding traffic and highway safety issues within Region I. In particular, the witness stated that his duties include evaluating road signage and issues pertaining to sight distances as they relate to road and highway safety. Mr. Sholtes was qualified as an expert witness in the field of highway traffic safety without objection.

The witness stated that he first conducted a field investigation of the accident location on Route 145 in March, 2002. In preparing for his investigation the witness reviewed the road accident history, 1997 photologs, and applicable policy and standards as well as the Manual of Uniform Traffic Control Devices. For purposes of his field investigation, Mr. Sholtes assumed that claimant's accident occurred at or near the northernmost driveway of the Tire Kingdom store on Route 145. In this regard, the witness's investigation included a determination of the sight distance available to a vehicle turning left into the northern entrance relative to a vehicle approaching in the southbound lane of traffic. The measurements taken also included the sight distance available to a southbound vehicle viewing a vehicle in the northernmost driveway of the Tire Kingdom at a point 12 feet from the pavement edge pursuant to the New York State Manual of Uniform Traffic Control Devices. The sight distance testified to by Mr. Levine on behalf of the claimants considered a similar road setback relative to available sight distances.

The witness stated that he determined the geometry of Route 145 at and near the Tire Kingdom store had not changed between the time of claimant's accident and his field visit in March, 2002. This determination was reached after the witness's review of the relevant road history and a comparison between the roadway as depicted in the 1997 photologs and his observations at the accident site. He concluded from his review of the roadway history that no work other than a repaving project in 1984 had been performed at the subject location prior to claimant's accident. He stated that a resurfacing of the highway would not have affected the geometry of the roadway. Because the road history did not reveal any work constituting a reconstruction or alteration of the roadway since the northernmost Tire Kingdom driveway was installed in 1979 the witness stated that he utilized the 1973 Policy and Standard for Entrances to State Highways as well as the 1974 and 1983 Manual of Uniform Traffic Control Devices in evaluating compliance with relevant standards.

Mr. Sholtes testified that utilizing the 1997 photo logs he determined that a southbound vehicle on Route 145 had approximately 1,800 feet of sight distance to a vehicle located in the northernmost Tire Kingdom driveway. He also stated that a vehicle traveling south on Route 145 had an approximate sight distance of 1,400 feet to a northbound vehicle turning left into the same driveway. According to the witness the sight distances at the accident site were "more than adequate" and did not justify the installation of intersection or driveway warning signs under either the 1974 or 1983 version of the Manual of Uniform Traffic Control Devices.

The witness next testified that although the standard method for determining sight distances is to measure from a point 42" above ground level to a second point at an equal height, in circumstances such as the accident involving the claimant, where both vehicle operators were seated at a level higher than 42", the actual sight distance available would be in excess of that related by the technical sight distance measurements. He stated that the northernmost Tire Kingdom driveway was built in compliance with relevant standards contained in the 1973 Policy and Standards for Entrances to State Highways in effect at the time the driveway was constructed in 1979. He further testified the highway markings in place at the time of claimant's accident were also compliant with then existing standards.

On cross-examination Mr. Sholtes testified that his primary professional duties pertain to issues of signage and traffic control devices. He stated that radar data contained in his file indicates that the 85
th percentile speed on Route 145 near the Tire Kingdom store was 60 m.p.h. The data related that 37% of vehicles were in violation of the posted 55 m.p.h. speed and that approximately 2% of vehicles exceeded 65 m.p.h. He testified that there are circumstances in which obstructions placed by a property owner within the State's right-of-way might act to obscure the sight distance or sight line of vehicles entering or exiting a driveway. Under such circumstances the Department might well direct the owner to remove the obstructions. Asked whether any such infringement upon the right-of-way might act as a distraction to drivers Mr. Sholtes replied "I guess it could be". The witness testified that he was not aware of any general relationship between the location of telephone poles and the State's right-of-way. In response to an inquiry from claimants' counsel Mr. Sholtes agreed that the 1973 Policy and Standards for Entrances to State Highways stated that "[a] minimum of 15 feet should be provided between the right-of-way line and the near edge of a building, structure, or appurtenance serving vehicular traffic. In any case, this distance shall be sufficient to preclude the servicing and parking of vehicles on state property". The witness then related the methodology he used to establish the sight distances testified to on direct examination.
Defendant also called Trooper Christian Quinn to testify. Trooper Quinn investigated claimant's accident and had testified previously on behalf of the claimants. Trooper Quinn testified that he considers the general layout of the roadway in preparing an accident report such as Exhibit 8, including consideration of whether sight distance was a factor contributing to an accident. The trooper testified that had he determined sight distance was a factor in the claimant's accident he would have included information to that effect in the police accident report. Further, the fact that sight distance is not included on Exhibit 8 as a contributing factor indicates, as the witness confirmed, that in his judgment sight distance was not a contributing factor to the subject accident.

From his familiarity with the area of Route 145 approaching the Tire Kingdom store the witness stated that a northbound vehicle has a sight distance of approximately one-half to three-quarters of a mile. A vehicle traveling southbound on Route 145 travels uphill as it approaches the Tire Kingdom store but would not in so doing lose sight of a northbound vehicle. According to the witness the incline approaching the Tire Kingdom store does not interfere with the ability of a southbound vehicle to view another vehicle proceeding in the opposite or northbound direction.

On cross-examination the witness stated that although he could not reference the precise State rules and regulations concerning sight distance evaluation, he had been trained to use his judgment in determining if sight distance was a contributing factor in causing an accident. He did not take any notes or measurements during the time he was at the accident scene nor did he take photographs, measure skid marks or plot accident debris. The trooper reiterated his prior testimony that the accident occurred between reference marker 1119 and 1120 and that reference marker 1119 was noted in the police accident report because it was located in his direction of travel when leaving the accident scene.

At the conclusion of the defendant's direct case the claimants recalled Lawrence Levine to testify in rebuttal. Mr. Levine testified that had the collision between claimant's vehicle and the vehicle operated by Mr. O'Brien occurred at some point between driveway #1 and driveway #2 that fact would have no effect relative to his opinions expressed previously at trial.

It is well settled that the State is under a non-delegable duty to design, construct and maintain its roadways in a reasonably safe condition (
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). 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).
Claimants have the burden of establishing that the State was negligent and that its negligence was a proximate cause of the accident (
see, Montgomery v State of New York, 206 AD2d 737; Boyle v State of New York, 94 AD2d 901, 901-902, lv denied, 60 NY2d 554). Generally liability will not attach unless the State had either actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct it (see, Brooks v New York State Thruway Auth., supra, Valentino v State of New York, 62 AD2d 1086). The State, however, is "not obligated to employ a constant vigilance over its highway network, but only to pursue reasonably plausible measures" (Johnson v State of New York, 265 AD2d 652, 653, quoting Freund v State of New York, 137 AD2d 908, 910-911, lv denied, 72 NY2d 802).
Here claimants have alleged that the State was negligent in allowing vehicles to be parked in the State's right-of-way and permitting the construction of a commercial driveway with inadequate sight distance for vehicles traveling on State Route 145. Claimants have not met their burden of proof with regard to either of these alleged contributing factors.

Claimants' expert failed to establish the parameters of the State's right-of-way at or near the scene of this accident. His assertion that the utility poles visible in the photographs in evidence mark the outer limits of the State's right-of-way on the western side of Route 145 is both speculative and unsupported in the record. Moreover, even if claimants' expert were correct in his assertion no evidence was received at trial which established the location of the parked vehicles vis-à-vis the State's right-of-way on the date of the accident.

Although on redirect examination the claimant related her understanding that the photographs marked as claimants' Exhibits 15 and 16, and received in evidence without objection, were taken on the day following her accident and depict the placement of the vehicles on the Tire Kingdom property on November 25, 1998 claimant neither alleged that she was the photographer nor identified the basis for her belief stating only that she was told they were taken the day after the incident. Even assuming that the two photos were properly authenticated, the Court cannot determine from Exhibits 15 and 16 that the vehicles depicted therein encroached upon the State's actual right-of-way on the date of the accident since the proof did not adequately establish the parameters of the right-of-way itself.

Moreover, claimants offered no proof that a de minimis encroachment such as that arguably depicted in the photographs constituted a dangerous condition to motorists traveling along Route 145 which the State was duty-bound to remedy notwithstanding claimant's assertion that the vehicles served as a visual distraction to her as she proceeded south on the date of the accident. Claimant offered no proof of prior accidents at or near the scene or that motorists had previously complained that the parked vehicles were a visual distraction or obstruction. Claimant does not claim that the parked vehicles actually obstructed her view in any physical manner which contributed to the happening of the accident and her allegation of visual distraction is belied by claimant's acknowledged familiarity with Route 145 in the vicinity of the Tire Kingdom store and her admission that vehicles were routinely parked in the same manner and in the same location as portrayed in the photographic evidence received at trial.

Significantly, even if the State were found negligent for allowing vehicles to be parked within its right-of-way the Court finds that under the circumstances any such negligence was not a proximate cause of the accident since the O'Brien vehicle was traveling in the northbound lane of travel and claimant's ability to observe that vehicle was neither obstructed nor impaired by the alleged encroachment. The Court finds that the placement of the parked vehicles, even if within the State's right-of-way, was not a substantial factor in causing this accident.

Claimants' expert also failed to demonstrate that the sight distances available to either claimant or Mr. O'Brien violated applicable sight distance standards. The expert testified that O'Brien had an available sight distance of 505 feet and that claimant had a sight distance of 350 feet to the northernmost tire store driveway. In the Court's view, claimants' expert did not satisfactorily authenticate his figures or explain the method by which he computed the measurements on either direct or on cross-examination.

The proof supports the conclusion that Route 145 was originally constructed in 1932 and had not been subsequently reconstructed prior to claimant's accident on November 25, 1998 (
see, Benjamin v State of New York, 203 AD2d 629; Mason v State of New York, 180 AD3d 63). Claimants' expert at p. 170 of his testimony references the Institute of Transportation Engineers (I.T.E.) standard contained in 17 NYCRR § 125.22. That standard, however, has an effective date of March 28, 1990, approximately eleven years subsequent to the construction of the Tire Kingdom's northernmost driveway and establishes a standard sight distance for a vehicle exiting a driveway onto a highway, a situation not relevant here. Even if the Court were to assume that Levine intended to refer to 17 NYCRR § 125.23 entitled "Left turn sight distances at entrances" the standards contained therein were also effective on March 28, 1990 and would not be applicable to a driveway constructed in 1979. Claimants, therefore, failed to establish that the State negligently permitted the construction of the Tire Kingdom's northernmost driveway with substandard sight distances in violation of applicable regulations.
This case differs significantly on its facts from the cases of
Jennifer Hine v State of New York, Ct Cl, August 13, 1999 [Claim No. 94483], Bell, J., unreported, and Christopher Michael Rurycz v State of New York, Ct Cl, August 13, 1999 [Claim No. 93311], Bell, J., unreported (decision attached to claimants' post-trial brief) and relied upon by the claimants. Those cases involved sight distances at a rural intersection where claimants' vehicle was controlled by both a stop line pavement marking and a stop sign. The claimants demonstrated to the Court's satisfaction that while the stop line pavement marking was placed in accordance with relevant highway safety standards the vision of a driver stopped at that marking was obscured to the right by pine trees which had grown in such a way as to overhang the State's right-of-way along the intersecting State highway. Judge Bell found the State negligent based upon a violation of the State's Highway Maintenance Guidelines § 3.221 which established a duty on the part of the State to remove limbs from roadside trees for reasons of public safety. The standard further required that overhead clearance and sight distance on the inside of curves and at intersections be checked at least twice a year and that dangerous limbs be removed as needed. Judge Bell determined that the State's standards were violated and that such negligence was a proximate cause of the accident and therefore found the State to be liable.
In the instant case claimants' proof is insufficient to establish with any reasonable level of certainty that the driveway permit issued in 1979 failed to comply with applicable standards in effect at that time. Likewise, the proof is inadequate to establish either the actual boundary of the State right-of-way at the accident scene or the actual sight distances available to either the claimant or Mr. O'Brien. In this regard the Court rejects the testimony of claimants' expert as lacking any meaningful foundation on the basis that he failed to provide a clear explanation of the methodology employed in reaching his conclusions. Finally, the proof does not establish that signage was required or that the lack of signage at the site of claimant's accident was unreasonable.

Rather, the preponderance of the proof presented at trial supports the conclusion that the claimant's accident was attributable to the reckless operation of the O'Brien vehicle and the claimant's general inattentiveness to all aspects of the roadway upon which she was traveling. Having failed to establish the basic elements of her cause of action the claim must be and hereby is dismissed.

The Clerk shall enter judgment in accord with this decision.


June 15, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1]The claim of David Caprio is derivative only. For the sake of convenience all references to the claimant in the singular shall refer to Sarah Caprio.