New York State Court of Claims

New York State Court of Claims

PENSABENE v. THE STATE OF NEW YORK, #2004-015-601, Claim No. 105396


Synopsis


Court found that State had engaged in adequate study of traffic control at intersection involved in this near fatal accident which precluded the substitution of Court's judgment for that of DOT. Claim dismissed and counterclaim for indemnification and contribution dismissed as moot.

Case Information

UID:
2004-015-601
Claimant(s):
DONNA J. PENSABENE, Individually and as Legal Guardian of LAURIE A. HERMAN and Legal Custodian of GARRETT J. HERMAN, an Infant
Claimant short name:
PENSABENE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105396
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Cade & Saunders, P.C.
By: Alan M. Blumenkopf, EsquireOf Counsel
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Michele M. Walls, Esquire and Belinda A. Wagner, Esquire, Assistant Attorneys General
Third-party defendant's attorney:

Signature date:
September 29, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The trial of this matter which involves an automobile accident occurring on Route 9 at its intersection with Malta Avenue and Malta Avenue Extension in the Town of Malta, Saratoga County, was bifurcated by order of the Court dated July 2, 2003. The decision herein addresses the issue of liability only.

The first witness called at trial was Rodney Niedeziejko, a Deputy Sheriff in the Saratoga County Sheriff's Office. On June 26, 2000 Officer Niedeziejko responded to a radio transmission directing him to the scene of an automobile accident at the intersection of Route 9 and Malta Avenue Extension in Saratoga County, New York. State Route 9 is a north/south highway which at that time contained two lanes of travel for traffic proceeding in a northerly direction and two lanes for vehicles proceeding southerly. Malta Avenue Extension intersects Route 9 on the easterly side of the highway adjacent to the northbound lanes of traffic. Directly across Route 9 from Malta Avenue Extension is Malta Avenue which intersects Route 9 on the westerly side of the highway adjacent to the southbound lanes. The intersection was controlled by a standard green, amber and red traffic signal for traffic proceeding south on Route 9 and entering Route 9 from both Malta Avenue and Malta Avenue Extension. Northbound traffic on Route 9 was controlled by a standard three-color signal as well as a left-turn arrow allowing traffic to turn west onto Malta Avenue.

Upon his arrival at the accident scene Officer Niedeziejko observed a white Dodge[1]
Neon automobile with extensive damage to the right side. The Dodge Neon had been impacted by what Officer Niedeziejko described as an F-350 dump truck to which was attached a trailer carrying a Bob Cat four-wheel front-end loader. Emergency personnel were already on the scene. The officer identified various photographs designated Exhibits 2, 3, 4, 5 and 6. The photographs depict both vehicles and the location where the vehicles came to rest following impact. Officer Niedeziejko testified that the photographs were taken by the Saratoga County Sheriff's Department and that they fairly and accurately depict his observations at the scene. Exhibits 2 through 6 were received in evidence without objection.
According to the officer he joined the Saratoga County Sheriff's Department in 1988 or 1989 and regularly drove through the subject intersection as part of his normal patrol duties. He described Route 9 between the intersection of Malta Avenue and Malta Avenue Extension and Route 9P which is located south of the intersection as generally straight. The officer also described a "dip" in the northbound lanes of Route 9 south of a firehouse which is located on the southeast corner several hundred feet south of the intersection. The officer testified that the speed limit on Route 9 in the vicinity of its intersection with Malta Avenue and Malta Avenue Extension is 55 miles per hour and that he regularly performed speed checks using a radar gun at that location prior to June 26, 2000. According to the officer during his speed enforcement activities he would observe speeds of between 55 and 75 miles per hour. He estimated that 30 to 40 percent of vehicles observed there were exceeding the posted speed limit.

Officer Niedeziejko testified that he has regularly traveled through the intersection of Route 9 and Malta Avenue/Malta Avenue Extension in a southbound direction on State Route 9. According to the witness southbound traffic can, depending on traffic flow, experience difficulty viewing oncoming northbound Route 9 traffic as vehicles enter what he earlier described as a "dip" in the northbound lanes of Route 9 south of the intersection. The witness reviewed claimants' Exhibit 9 which he described as a photograph depicting Route 9 looking south from its intersection with Malta Avenue/Malta Avenue Extension and showing the dip in the northbound lanes of traffic described in his previous testimony. Exhibit 9 was received in evidence without objection.

On cross-examination the witness testified that June 26, 2000 was a sunny day, road conditions were dry and visibility was good. He testified that on a normal day he would travel between 80 and 150 miles during his patrol which covered zones five and six and included the Towns of Milton, Malta, Providence, Galway and Charlton within Saratoga County. The officer was then asked to review Exhibit 2 which he described as a photograph depicting the location where the vehicles involved in the collision came to rest following the accident. He testified as he had on direct that the ability of southbound traffic to observe traffic approaching the intersection in a northerly direction was limited as those vehicles transited through a dip in the northbound lanes of traffic. The witness testified that the extent to which a southbound driver's view was affected would depend primarily upon the height of the respective vehicles. He agreed that the truck depicted in Exhibit 2 is a large Ford truck with an attached trailer upon which is a small front-end loader otherwise known as a Bobcat.

Gary J. Hebert was called to the stand and testified that he is a pool installer and part-time employee of the Leprechaun Pub located at the intersection of Route 9 and Malta Avenue Extension. Mr. Hebert related that he began work at the Leprechaun Pub in 1995 as a full-time employee working the 11:00 a.m. to 7:00 p.m. shift. Mr. Hebert also lived near the Leprechaun Pub in 1995.

Mr. Hebert testified that from the time he first began working at the Leprechaun Pub he heard vehicles skidding and the sounds of vehicles colliding at the intersection "[a]t least two or three times a week, almost once a day sometimes". He testified that when he heard the sounds he would call 911 and report the accident but would not leave the bar area or look out the window although patrons would many times exit the bar following such incidents and attempt to render assistance. He also testified that he heard similar sounds of tires skidding and vehicles colliding from his home approximately one block from the intersection. According to the witness when such incidents occurred while he was working at the bar he would eventually have an opportunity to look out the window and observe the vehicles involved which "[m]ost times they ended up just almost in our parking lot which would be the northeast corner".

Mr. Hebert stated that at no time during the period he has been employed at the Leprechaun Pub have representatives from the State Department of Transportation come to the Pub to speak to him regarding the intersection. The witness identified Claimant's Exhibit 10 as depicting the intersection of Route 9 and Malta Avenue/Malta Avenue Extension and the Leprechaun Pub. The Exhibit was received without objection.

According to the witness he has traveled through the subject intersection while proceeding southbound on Route 9 and would often turn left onto Malta Avenue Extension to gain entry to the pub parking lot. He related that he experienced some difficulties turning left onto Malta Avenue Extension from the southbound lanes of Route 9 and that "there were a couple of times it was a little scary" because he would lose sight of northbound vehicles as they entered a dip south of the intersection. If the northbound vehicles were speeding they would come upon the witness unexpectedly as he attempted to make a left turn onto Malta Avenue Extension. Finally, the witness related that Exhibit 9 is a photograph depicting a southbound view of Route 9 at the intersection in which the dip discussed in his previous testimony is visible.

On cross-examination the witness stated that he began working at the Leprechaun Pub in approximately 1995 and continued working there on a full-time basis as a bartender until January, 1998. During that time he worked the 11:00 a.m. to 7:00 p.m. shift five days a week, Monday through Friday. He became employed as a pool installer in 1998 and went to work at the pub on a part-time basis working the night shift (7:00 p.m. until 1:00 a.m.) five days a week for approximately three years or until sometime in 2001.

The witness related that he lived on Silver Beach Road near the Leprechaun Pub from 1995 to 1996. When traveling to the Leprechaun Pub from his home on Silver Beach Road the witness generally took a route which did not require him to enter the intersection of Route 9 and Malta Avenue/Malta Avenue Extension. He would travel on Hearn Road to Malta Avenue Extension and then directly across Malta Avenue Extension into the pub parking lot. He also testified that there is a pub entrance on Route 9 approximately 50 yards north of the intersection. When Mr. Hebert moved from his Silver Beach Road residence in 1996 he moved to Clifton Park, New York. When traveling to work at the Leprechaun Pub from the Clifton Park location he would generally proceed north on Interstate 87 to Exit 13 and then south on Route 9. He would enter the pub property by utilizing the driveway on Route 9 north of the intersection. He agreed that the Route 9 driveway entrance is shown on Exhibit 10 and marked the photograph at that location with a red "X". He related that the speed limit on Route 9 in the area of the Leprechaun Pub between 1995 and 2000 was 55 miles per hour.

Deborah Lattimore testified that she is the manager of the Leprechaun Pub Bar and Restaurant and has been employed there for approximately seven years. She was first employed at the pub on a part-time basis working weekends from approximately 11:00 a.m. to 7:00 p.m. Within one year she began working Mondays, Wednesdays and Fridays in addition to weekends on the same 11:00 a.m. to 7:00 p.m. shift.

Ms. Lattimore related that the Leprechaun Pub is located at the intersection of Route 9 and Malta Avenue Extension and that since the time that she began work at the pub she would hear the sound of screeching tires "[a]t least daily". When asked how often she heard the sound of vehicles colliding outside the pub she responded at one point "at least once a week" and at another "twelve times a week" explaining that it "was a regular common occurrence". When she heard the sound of vehicles colliding she would generally call 911 and go to the window and look outside. According to the witness if she looked outside she could observe the location where the vehicles came to rest which she testified was generally near the pub's mailbox which was located on Route 9 a short distance north of the intersection adjacent to the northbound lanes of traffic.

Ms. Lattimore was working at the pub on June 26, 2000 and heard the sounds of a collision outside the pub at approximately 3:20 p.m. She went to the window and observed that the vehicles involved in the incident had come to rest just outside the window. The witness identified Exhibit 2 as depicting the post-accident location of the vehicles from the same perspective as she observed them from the pub window.

Ms. Lattimore related that during the time she has worked at the Leprechaun Pub no Department of Transportation representatives have come to speak to her or to anyone else at the bar regarding the intersection. She testified that she has traveled Route 9 in a southbound direction every day since she began working at the Leprechaun Pub. Generally she enters the pub premises via the driveway entrance on Route 9 north of the intersection but has also on occasion driven through the intersection in the southbound lanes of Route 9. She stated that during those times that she's traveled through the intersection in a southerly direction she experienced some difficulty in observing cars proceeding northbound on Route 9. Ms. Lattimore identified Exhibit 13 as a photograph depicting Route 9 from a perspective south of the intersection looking north. Exhibit 13 was received without objection. The witness also identified Exhibit 10 as a photograph showing the subject intersection as well as the Leprechaun Pub and the mailbox located adjacent to Route 9 north of the intersection.

On cross-examination Ms. Lattimore testified that vehicles approaching the intersection in the northbound lanes of Route 9 proceed uphill through the area depicted in Exhibit 13 to a point on Route 9 where the road begins to level as one gets closer to the intersection as shown in Exhibit 9. The witness testified that as a result of her experience with accidents occurring at the intersection

she exercised enhanced caution when traveling southbound on Route 9 and executing a left turn onto Malta Avenue Extension.
David R. Meager, Town Supervisor of the Town of Malta, was called to the stand next. Mr. Meager has been the Malta Town Supervisor since January 1, 1972 and described the town as centrally located in Saratoga County north of Clifton Park and south of the City of Saratoga Springs. Mr. Meager testified that according to census data the population of the Town of Malta was approximately 3,800 people in 1970. The 2000 census revealed a population of 13,005. Along with the growth in the town's population there was a concomitant increase in motor vehicle traffic including on State Route 9 within the Town of Malta.

Mr. Meager stated that he is personally familiar with the intersection of Route 9 and Malta Avenue/Malta Avenue Extension and that he has driven through that particular intersection previously. He has in the past received complaints or statements of concern regarding the safety of that particular intersection and testified that when complaints are received or concerns are expressed concerning the safety of State roads within the Town of Malta his general procedure is to correspond with the State Department of Transportation concerning the matter. The witness confirmed that he has, in fact, corresponded with the Department of Transportation regarding the intersection of State Route 9 and Malta Avenue/Malta Avenue Extension. Mr. Meager's remaining testimony pertained to Exhibits 14 through 25, correspondence between Mr. Meager and DOT concerning the intersection of Route 9 and Malta Avenue/Malta Avenue Extension. The exhibits were received in evidence.

Exhibit 14 is a letter dated September 11, 1981 from Mr. Meager to the then-Commissioner of the New York State Department of Transportation requesting that the Department investigate the feasibility of installing a controlled or three-color traffic signal at the intersection of Route 9 and Malta Avenue which at the time the letter was written was controlled only by a flashing signal light. Exhibit 15 is a letter by John H. Shafer, Director of the DOT Traffic and Safety Division, written in response to Mr. Meager's letter of September 11, 1981. Mr. Shafer indicates in his correspondence that a study would be conducted to determine if "conditions are such that a change in the signal operation might be needed". In Exhibit 16, J. W. Kelly, DOT Regional Traffic Engineer, relates in a letter to Mr. Meager dated January 27, 1982 that the results of a three-day traffic count taken at the intersection did not justify the installation of a three-color signal. Exhibit 17 is correspondence dated February 3, 1982 written by Mr. Meager requesting that DOT reconsider its decision to deny the previous request for the installation of a three-color signal. In Exhibit 18, Mr. Kelly responds to Mr. Meager and again denies the previous request for a three-color signal at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension. Exhibit 19 is a copy of correspondence from J. W. Kelly of the Department of Transportation to Mr. Meager written in response to a telephone request seeking further reconsideration of the prior request for a three- color signal at the intersection. Mr. Kelly indicates that recently updated accident data did not justify "another signal investigation at this intersection". Exhibit 20 is correspondence dated June 17, 1985 written by David Meager to Mr. Donald Geoffroy of the Department of Transportation. In his correspondence Mr. Meager thanks the Department for installing a three-color traffic signal at another intersection within the town and relates the following:
There is another dangerous intersection in Malta which would greatly benefit from a similar installation. It is where Malta Avenue crosses Route 9 just south of Northway Exit 13.

In Exhibit 21 J. W. Kelly responds to Mr. Meager on behalf of the Department by letter dated June 24, 1985 indicating that the DOT will study the matter and advise Mr. Meager of the results. Mr. Meager requested an update regarding the status of the Town's request "for a full traffic signal at Route 9 and Malta Avenue per your letter of June 24
th" in correspondence dated October 11, 1985 (Exhibit 22). Exhibit 23 is correspondence addressed to Mr. Meager from J. W. Kelly dated November 18, 1985 in which Mr. Kelly indicates that a further study of the intersection had determined that "it would be appropriate to change the existing flasher signal to a three-color traffic control signal". Finally, by correspondence dated May 8, 1997 (Exhibit 24) Mr. Meager informed William Logan, Regional Traffic Engineer for DOT Region 1, that vehicles proceeding south on Route 9 and turning right onto Malta Avenue were not yielding to vehicles proceeding north on Route 9 and turning left pursuant to a left-turn arrow onto Malta Avenue. Mr. Meager recommends that a no right turn on red sign be installed north of the intersection prohibiting southbound Route 9 traffic from turning right on red onto Malta Avenue. Mr. Logan responded on August 5, 1997 (Exhibit 25) denying Mr. Meager's request and indicating that following a review of accident data and sight distances the Department had determined that a sign prohibiting right turns on red by southbound Route 9 traffic onto Malta Avenue was not justified.
On cross-examination the witness agreed that the Department of Transportation responded to each of the requests, concerns or suggestions he made regarding the intersection.

The next witness, Travis Croteau, testified that he is a salesman and has been a member of the Malta Ridge Fire Department since May, 1983. Since 1994 Mr. Croteau has been the department's Chief. According to the witness the Malta Ridge firehouse is located on the easterly side of Route 9 south of the intersection of Route 9 and Malta Avenue/Malta Avenue Extension.

The witness stated that when he became Chief in 1994 he began spending mornings and afternoons at the firehouse three to four days a week. When he was not at the firehouse he was notified of accidents through a pager alert system. He testified that beginning in 1994 accidents occurred at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension on a weekly basis. He related that the firehouse is approximately 300 to 350 feet south of the intersection and that when he was in the firehouse he would hear the sound of screeching brakes every day. Since 1994 the witness has personally heard the sound of motor vehicles colliding at the intersection two or three times per month. Many times individuals would come to the firehouse to report accidents at the intersection. The witness would generally contact the sheriff's office and then proceed to the intersection to provide assistance. He estimated that between 1994 and June, 2000 he witnessed seven or eight accidents in which the vehicles involved came to rest on the shoulder of the Route 9 in front of the Leprechaun Pub. He stated that his experience regarding the frequency of accidents and the sound of screeching tires was approximately the same during the period between 1983 and 1994. The witness did not know whether all of the accidents he testified to were reported to the police or whether some had gone unreported.

Mr. Croteau related that he was summoned to the scene of an accident at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension on June 26, 2000. When he arrived at the scene the witness observed a dump truck with a trailer and a Dodge Neon automobile on the shoulder adjacent to the northbound lanes of Route 9 approximately sixty to seventy feet north of the intersection. He approached the vehicles and looked inside the Dodge Neon. Mr. Croteau radioed the sheriff's office to advise them that the accident involved a head injury and to request an ambulance.

The witness testified that he is familiar with the intersection of Route 9 and Malta Avenue/Malta Avenue Extension and that he has traveled on Route 9 in both directions for over 30 years. According to the witness between 1994 and June, 2000 he often experienced difficulty turning left onto Malta Avenue Extension from southbound Route 9 as a result either of vehicles stopped in the northbound lane of Route 9 turning left onto Malta Avenue blocking his view of northbound through traffic or the speed of vehicles proceeding through the intersection. He stated "if there's cars stacked up in the left lane, it can be very difficult to determine who is coming northbound and what, you know, how many". Mr. Croteau was familiar with the dip in the northbound lanes of Route 9 south of the firehouse and stated that in his opinion a southbound vehicle stopped at the intersection on Route 9 is not able to view traffic proceeding through the dip in a northbound direction. He did, however, testify that a vehicle at the intersection in the southbound lanes of Route 9 attempting to turn left onto Malta Avenue Extension would first see northbound vehicles in the area between the entrance to Hearn Road and the firehouse. Mr. Croteau testified that representatives of the Department of Transportation have not come to the firehouse to speak to him or anyone else to his knowledge regarding the intersection of Route 9 and Malta Avenue/Malta Avenue Extension.

The witness next identified various exhibits beginning with Exhibit 10 which he described as a photograph depicting the northbound lanes of Route 9 at the intersection of Malta Avenue/Malta Avenue Extension. Exhibit 11 depicts the same scene approximately 100 feet south of the point from which Exhibit 10 was photographed. Exhibit 12 shows the southbound lanes of Route 9 approximately 100 feet north of the intersection with Malta Avenue and Malta Avenue Extension. Exhibit 12 also shows the Malta Ridge firehouse which is located in the southeast corner of the intersection. He identified Exhibit 13 as depicting the northbound lanes of Route 9 from a perspective south of Hearn Road and containing a view of the dip referenced in his previous testimony. Exhibit 9 provides a view from a point north of the intersection looking south which includes the street sign for Hearn Road which was circled by the witness on the photograph.

Mr. Croteau testified on cross-examination that the firehouse depicted in Exhibit 12 and located at the southeast corner of the subject intersection was first opened in 1996. The Malta Ridge Fire Company also has a second station approximately two miles south on Route 9. He described Hearn Road as beginning behind the firehouse and continuing south a short distance where it enters Route 9. Mr. Croteau lives on Silver Beach Road approximately 1½ miles from the intersection of Route 9 and Malta Avenue Extension.

The witness testified that he was familiar with Donna Pensabene prior to June 26, 2000. The witness did not know Laurie Herman prior to June 26, 2000 but has come to know her subsequent to the accident.

Arthur Travis testified after having been sworn that he is currently disabled but that prior to his disability he drove a truck for a flower store named Schrade's Posie Peddler in Saratoga Springs, New York. In June, 2000 Mr. Travis resided at 381 Malta Avenue in Ballston Spa, New York. He testified that at approximately 3:20 p.m. on June 26, 2000 he was proceeding west on Malta Avenue Extension towards Saratoga Springs after having completed a flower delivery. As he approached the intersection of Route 9 and Malta Avenue Extension in his Dodge delivery van the light controlling traffic on Malta Avenue Extension turned from yellow to red. He testified that he stopped at the red light and began surveying northbound traffic so that he could execute a right turn on red onto Route 9 north. As he looked to the south he noticed that although the northbound and southbound lanes of Route 9 were governed by a green light there was a small compact car stopped in the right-hand lane of northbound traffic. According to the witness the occupant of the vehicle was attempting to manipulate a rope holding a picnic table to the car roof. Mr. Travis then observed "a truck pulling something behind it approaching the intersection in the right-hand lane of northbound traffic". The truck remained in the right-hand lane of traffic until it reached the top of the hill approaching the intersection and the location where the compact car was still stopped. The vehicle's operator activated his left directional signal and entered the left-hand lane of northbound traffic at a point north of the Malta Ridge Fire Station and approximately 500 feet south of the intersection.

The witness identified Exhibit 11 as a photograph depicting the northbound lanes of Route 9 from a perspective just north of the Malta Ridge firehouse. He marked the photograph with an "X" to indicate the point in the roadway where he observed the driver of the truck first turn on his left directional signal. Mr. Travis testified that he continued to observe the compact vehicle stopped at the intersection in the right-hand lane of traffic when he heard the sounds of vehicles colliding. He was unable to estimate the speed of the truck at the time its left directional signal was first activated but estimated that it was only a matter of seconds between the time the truck's directional signal was activated and the vehicle moved into the left lane of northbound traffic until the time he heard the sound of vehicles crashing. He then looked toward the source of the crashing sounds and observed the truck pushing a car through the intersection and onto the northbound shoulder. He testified "I can't be one hundred percent sure . . . I believe it was still on" when asked whether the truck's left directional signal continued to blink following the collision. At the time he heard the sounds of the crash the compact vehicle with the picnic table attached to it was still stopped at the light in the right-hand northbound lane of Route 9. Travis testified that he was familiar with the intersection of Route 9 and Malta Avenue/Malta Avenue Extension and traveled through the intersection two to three times a week while working for Schrade's Flowers. When asked when in his experience as a driver proceeding north on Route 9 he could first observe the traffic signal at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension he responded "maybe about a quarter of the way up once you hit the bottom of the dip and start coming back up, a quarter way up, it's pretty visible". On cross-examination Mr. Travis testified that June 26, 2000 was a sunny day and that the roads were dry and visibility was good. He stated that he observed the truck traveling north on Route 9 for approximately ten seconds prior to the time that the operator first activated the vehicle's left directional signal. The witness stated that traffic volume at the intersection at the time of the accident was "very light". He did not witness the impact between the truck and the white Dodge Neon operated by Laurie Herman and did not observe the Herman vehicle at the intersection prior to impact.

Claimant next called William Logan. Mr. Logan has been an employee of the Department of Transportation since 1970 and has held the position of Region 1 Traffic Engineer since 1994. He explained that as a part of his duties he receives complaints from members of the public regarding highway safety issues. When complaints are received they are investigated by Department of Transportation staff and submitted to Mr. Logan for his review and approval.

Exhibits 29, 30 and 31 were received in evidence. Mr. Logan identified Exhibit 29 as a letter received by him from Marlene A. Stipano. He testified that he considered Exhibit 29 to be a complaint regarding the ability of northbound Route 9 traffic to safely turn left onto Malta Avenue stating:
She had made a specific request for a northbound left-turn arrow to be added to the traffic signal, the signal that was already there. So a typical way to handle an investigation like this is to observe the traffic, collect accident data, determine if there were unusual delays or unusually high volumes of traffic making that left turn to see if we could substantiate that there was a problem.

Mr. Logan stated that he was familiar with the intersection of Route 9 and Malta Avenue/Malta Avenue Extension and had been to the intersection prior to the time he received Ms. Stipano's letter in October, 1995.

Mr. Logan assigned Paul Mayor to investigate Ms. Stipano's complaint. He reiterated the factors which he considered important in determining whether the traffic signal controlling the intersection should be modified to incorporate a left-turn arrow. He also stated that in his opinion the most important factor in making that determination is the accident history. He agreed that when considering the addition of a left-turn arrow for northbound Route 9 traffic it would be important to have the most up-to-date accident history data. Mr. Logan testified that accident records were obtained by the Department in investigating Ms. Stipano's complaint and that the Department's general practice is to obtain accident data from the Department of Motor Vehicles for the most recent available three-year period. The information provided by the Department of Motor Vehicles does not include all accidents through the date of request. He did not instruct Mr. Mayor to speak to or survey residents of the area concerning accidents at the intersection stating "it's unreliable, it's not factual and it can't be used in our investigation". Logan was familiar with the accident data collected as part of Mr. Mayor's investigation which included a collision diagram and additional information providing details concerning the accidents listed in the diagram dated December 28, 1995. Mr. Logan identified Exhibit 34 as a collision diagram prepared by Paul Mayor. Exhibit 34 was received in evidence. Mr. Logan testified that the collision diagram covers accidents occurring at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension between January 1, 1992 and December 31, 1994. The document relates 18 accidents occurring within that period.

The witness stated that the investigation prompted by Ms. Stipano's letter began in October 1995 and considered safety issues affecting the entire intersection. He stated that in performing an accident investigation all accidents occurring at the intersection are noted on the collision diagram. If the accident data reveals other problem areas at the intersection those issues would also be investigated. In addition to traffic history Mr. Logan related that the investigation of the Stipano complaint considered the number of northbound vehicles on Route 9 attempting to turn left onto Malta Avenue as well as the delays experienced by those vehicles in executing the maneuver. He testified that the Department counted the number of vehicles attempting left-hand turns onto Malta Avenue from the northbound lanes of Route 9 as part of the Stipano investigation but did not make similar counts regarding southbound vehicles attempting to turn left onto Malta Avenue Extension. According to the witness it was not necessary to determine the number of southbound vehicles on Route 9 turning left onto Malta Avenue Extension given the nature of the complaint received and the accident history data contained in the collision diagram.

The witness testified that although a single accident involving a southbound vehicle on Route 9 turning left onto Malta Avenue Extension in the three-year period preceding the Department's investigation would not be significant, had there been several such incidents exhibiting a pattern of accidents the Department would attempt to address that issue as well as the issues raised in the complaint which initiated the investigation. Mr. Logan agreed that the letter from Ms. Stipano which is dated October 13, 1995 relates that "a serious accident occurred this morning at the intersection of Route 9 and Malta Avenue in the Town of Malta, Saratoga County". He did not instruct Mr. Mayor to inquire regarding the details of the accident referenced in Ms. Stipano's correspondence stating that the true measure of the safety of the intersection was to obtain accident history data covering an extended period of time so that any pattern of accidents might be discovered.

The witness identified Exhibit 38 as a police accident report dated October 13, 1995 regarding an accident at Route 9 and Malta Avenue Extension. He did not know whether Mr. Mayor was aware of this particular accident report and testified that he did not instruct Mr. Mayor to interview police officers involved with that particular accident as part of his investigation. Mr. Logan did not speak to anyone at the Leprechaun Pub concerning the October 13, 1995 accident referred to in Ms. Stipano's letter nor did he instruct Mr. Mayor to speak to anyone at the bar. Neither he nor Mr. Mayor spoke to anyone at the firehouse at the southeast corner of the intersection or at the motel on the northwest corner. Mr. Logan did not instruct anyone at the Department of Transportation to interview Ms. Stipano concerning the minor accidents she had witnessed at the intersection according to her October 13, 1995 correspondence stating that "factual accident reports from the Department of Motor Vehicles . . . indicate specifically the accidents that occurred at any location". Although the Department reviews the police accident reports for each accident listed on the collision diagram Mr. Logan did not direct that Mr. Mayor speak to the police officers involved in preparing each of the reports. The witness agreed that not all accidents are reported to DMV and that some accidents are "underreported"; accidents which are not required to be reported but for which a report is filed with the Department of Motor Vehicles. In his opinion it was not necessary to interview local residents, police and/or public officials regarding underreported or unreported accidents when determining whether to modify a traffic signal stating that the anecdotal information provided by untrained persons regarding unreported or underreported accidents should not and would not be used in the Department's investigation.

Mr. Logan could not recall whether sight distance measurements for vehicles approaching the intersection in a southbound direction were taken by Mr. Mayor as part of his investigation. He testified that the speed of vehicles is not generally an important factor in determining whether to modify a traffic signal. He then described exclusive left-turn lanes as an area of the highway separated from through traffic and utilized only by vehicles intending to execute left turns. Exclusive left-turn lanes are sometimes but not always controlled by a traffic signal, including a left- turn arrow controlling the movements of left-turning vehicles. Logan agreed that exclusive turning lanes are the safest type of left-hand turn configuration providing the fullest protection from opposing through traffic.

Mr. Logan related that in his view Ms. Stipano's letter constituted a recommendation for the installation of a left-turn arrow for northbound traffic at the intersection of Route 9 and Malta Avenue. He described her letter as a catalyst for the Department's investigation but stated that "from that point on we collected the data that we would collect for any traffic engineering investigation, made the decision based on that data". Although the State's investigation considered safety issues pertaining to the entire intersection Mr. Mayor ultimately recommended the addition of a left-turn arrow to the traffic signal controlling northbound Route 9 traffic. When asked whether the State considered adding a left-turn arrow for southbound Route 9 traffic Mr. Logan testified:
We considered the entire intersection and the accident diagram was prepared for the entire intersection. All the movements at the intersection and the lack of any accidents southbound, any left-turn accidents in our investigation was enough to tell us that a left-turn arrow was not justified, was not necessary at that time.

The accident diagram prepared by the State as part of its investigation covered the period January 1, 1992 to December 31, 1994. The witness confirmed that the left-turn arrow for northbound Route 9 traffic was installed and work was completed on February 7, 1996. Logan did not instruct Mr. Mayor to inquire regarding accidents occurring between December 31, 1994 and the date the left-turn arrow was installed stating that the three-year period for which such data was available was sufficient and that the State used the latest data available. He related that at the time the left-turn arrow was installed there was a one-year delay in receiving accident records from the Department of Motor Vehicles.

Mr. Logan identified Exhibit 28 as a typical cross section of Route 9 in Saratoga County. He stated that as shown on Exhibit 28 Route 9 in the vicinity of Malta Avenue and Malta Avenue Extension contained four twelve foot travel lanes, a four foot wide center median and two eight foot shoulders in October, 1995. Although Route 9 was wide enough to accommodate exclusive left-turn lanes for northbound and southbound traffic the State did not consider establishing exclusive turning lanes.

In 1998 the State installed a loop in the northbound left-turn lane and increased the all-red clearance for northbound and southbound traffic on Route 9 at the intersection of Malta Avenue and Malta Avenue Extension. The Department did not review the accident history at the intersection prior to undertaking this work. Exhibit 24 was identified by the witness as a letter dated May 8, 1997 received by him from David R. Meager, Supervisor of the Town of Malta. In his letter Mr. Meager relates that area residents had expressed a concern that southbound Route 9 vehicles turning right onto Malta Avenue were not yielding to northbound vehicles turning left onto the same roadway. In investigating Mr. Meager's complaint the Department of Transportation considered the accident history data for the entire intersection during the period January 1, 1993 to June 30, 1996.

On cross-examination Mr. Logan related that his office conducts 500 to 700 traffic engineering investigations per year. In response to the letter of Marlene Stipano concerning the difficulty experienced by northbound Route 9 traffic attempting to turn left onto Malta Avenue the Department collected accident data which included all accidents occurring at the intersection. The information included data for the latest available three-year period which in the witness's opinion is an adequate and appropriate period for determining the existence of accident patterns. Mr. Logan reiterated his testimony on direct that at the time Paul Mayor conducted his traffic engineering study at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension accident data and reports were not available from the Department of Motor Vehicles for the year 1995. He went on to explain through reference to page 2 of Exhibit 34 that the accident represented on the collision diagram as occurring on October 10, 1995 actually occurred on that same date in 1994. According to the witness the Department considers non-reportable accidents when conducting traffic studies. Referencing defendant's Exhibit F, an enlarged version of the collision diagram (Exhibit 34), the witness correctly related that the diagram reflects a series of accidents involving northbound vehicles on Route 9 turning left onto Malta Avenue between January 1, 1992 and December 31, 1994. No accidents involving southbound traffic attempting to turn left onto Malta Avenue Extension are listed on the diagram for the same period. Mr. Logan testified that a single accident involving a southbound vehicle attempting to turn left onto Malta Avenue Extension would not be significant in that the department examines the data to determine the existence of accident patterns. He estimated the sight distance for a southbound vehicle at or near the intersection at approximately 700 feet based upon his review of photologs maintained by the Department. He confirmed that at the time the 1995 study of the intersection was conducted the Department of Transportation had received no complaints regarding available sight distance for southbound vehicles on Route 9 or the speed of vehicles passing through the intersection.

On re-direct examination Mr. Logan testified that the Department sometimes requests accident reports directly from the State Police and that generally the reports requested are received in a timely manner. He agreed that no such inquiry was made of either the State Police or the Saratoga County Sheriff's Department in response to the letter received from Ms. Stipano.

Although he agreed that it was important to have the most current accident data possible when conducting a traffic study, Logan stated that the Department received the most recent data available from the Department of Motor Vehicles for its 1995 study of the subject intersection. He testified that a single accident involving a southbound vehicle on Route 9 turning left onto Malta Avenue Extension in the period between January 1, 1995 and February, 1996 would not have effected the Department's ultimate determination to install a left-turn arrow only for northbound traffic on Route 9.

Mr. Logan denied that there was a dip in the northbound lanes of Route 9 south of the intersection. He defined a dip as a depression in a highway and described the northbound lanes of Route 9 as one approaches the intersection of Malta Avenue and Malta Avenue Extension as a steady incline.

On re-cross examination the witness related that an examination of accidents occurring during 1992, 1993 and 1994 at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension was sufficient to establish the existence of any accident patterns for purposes of the study conducted by the Department in 1995 in response to the letter received from Marlene Stipano. The traffic accident data reflected a pattern of left-hand turn accidents involving northbound Route 9 traffic attempting to turn onto Malta Avenue which was appropriately addressed by the installation of a left-turn arrow.

Claimant next called Thomas Michael Ceremuga. Mr. Ceremuga, a machine equipment operator for the Town of Halfmoon, testified that on October 13, 1995 he was operating a tandem dump truck traveling north on Route 9 in the vicinity of Malta Avenue/Malta Avenue Extension. The traffic signal controlling the intersection was red as he approached in the left or passing lane of Route 9 and then turned green when Mr. Ceremuga's vehicle was approximately 10-vehicle lengths south of the intersection. He was traveling at an approximate speed of 45 miles per hour and there was a small compact Ford automobile in front of him in the left lane. As he continued his approach to the intersection he observed a bus in the left or passing lane of southbound traffic which "pulled right into the lane that the Ford was traveling in front of me. He turned left right in the path of the car in front of me."

On cross-examination the witness related that December 13, 1995[2]
was a sunny day and the roads were dry. He related the sequence of events previously testified to on direct and further stated that both of the vehicles involved in the accident were damaged on the left side. Mr. Ceremuga did not recall seeing a left-turn directional signal activated on the school bus. He did not notify the Department of Transportation regarding the accident nor did he speak to police at the scene.
Paul Mayor was the next witness called. He testified that he has been employed by the Department of Transportation since 1984 and has overseen a traffic maintenance crew and performed design and signal investigation studies since 1989. In October, 1995 Mr. Mayor undertook an investigation of the signal controlling the intersection of Route 9 and Malta Avenue/Malta Avenue Extension in Saratoga County. Mr. Mayor then identified Exhibit 29, the letter from Marlene Stipano, which he agreed was the impetus for the investigation he conducted to determine the propriety of adding a left-turn arrow governing northbound Route 9 traffic. Although Mr. Mayor reviewed the signal file maintained by the Department for the signal controlling the intersection of Route 9 and Malta Avenue/Malta Avenue Extension several weeks prior to trial he could recall relatively little regarding its contents or the particulars of his investigation. He stated that a typical investigation to determine whether a signal modification was appropriate would include collecting accident data for a three-year period and determining traffic volume, delays and sight distances. Accident data utilized would be that which was available from the Department of Motor Vehicles. The witness testified that he did not as part of his investigation attempt to determine whether there were additional accidents subsequent to the dates covered in available DMV accident data records. Mr. Mayor could not recall without reviewing the signal file either the date of his visit to the intersection or what actions were taken in conducting his investigation. He did recall recommending the installation of a left-turn arrow for northbound traffic on Route 9. The basis for that recommendation was primarily the high number of left-turn accidents involving northbound Route 9 traffic at that location as revealed by the three-year accident history. Mr. Mayor did not make any inquiries regarding the intersection at either the Leprechaun Pub located on the northeast corner or the firehouse on the southeast corner. He stated that any information gained by speaking to people who live or work in close proximity to the intersection would be anecdotal and not required by good and proper engineering practice. In the witness's opinion information regarding accidents occurring after the three-year period between January 1, 1992 and December 31, 1994 were neither relevant nor necessary for purposes of his investigation. In his view accident data for the most recent available three-year period was adequate to determine the existence of a pattern of accidents requiring a modification of the signal controlling the intersection.

Mr. Mayor could not recall whether sight distances were determined for either the northbound or southbound approaches to the intersection. Nor could he recall whether vehicle counts were taken. He did confirm, however, that no speed checks were taken. Finally, Mr. Mayor testified that he considered but did not recommend establishing exclusive left-turn lanes for northbound and southbound traffic on Route 9. Although he stated that Route 9 was wide enough to accommodate exclusive left-turn lanes for both northbound and southbound traffic he later stated that in his view installation of exclusive left-hand turning lanes was not feasible because the pavement area was not of sufficient width. Mr. Mayor did not measure the width of Route 9 in the vicinity of its intersection with Malta Avenue/Malta Avenue Extension.

On cross-examination the witness identified Exhibit G as a seven page document relating the results of a vehicle delay study he performed at the intersection of Route 9 and Malta Avenue on January 9, 1995[3]
. He identified Exhibit H as a document containing sight distance and posting measurements for signs for the eastbound approach on Malta Avenue as well as sight distance measurements for northbound Route 9 traffic stopped at the intersection and waiting to turn left. He stated that his recollection was refreshed by review of Exhibit H and that in fact sight distance measurements were taken for stopped northbound vehicles waiting to turn left onto Malta Avenue. Mr. Mayor testified that the sight distance for northbound vehicles stopped at the intersection and waiting to turn left onto Malta Avenue was approximately 2,100 feet plus or minus. With regard to Exhibit G, the witness testified that a vehicle delay study measures the time that a vehicle is stopped at an intersection waiting to turn. He could recall little regarding the results of the vehicle delay study he conducted stating that he has been involved in many investigations concerning numerous different intersections and signals since 1995.
The witness recalled that he recommended the installation of a left-turn arrow for northbound Route 9 traffic as a result of his study. A left-turn arrow was not recommended for southbound traffic primarily because the accident history data revealed no southbound left-turn accidents during the three-year period studied. In conclusion, Mr. Mayor clarified that the delay study designated Exhibit G was conducted on January 9, 1996 and not on the same date in 1995 as he had testified previously. Sight distance measurements reflected in (Exhibit H) were obtained on January 18, 1996.

On re-direct, Mr. Mayor described the process utilized to determine sight distances for northbound Route 9 traffic stopped at the intersection intending to turn left onto Malta Avenue. Similar measurements were not taken for southbound traffic.

Claimant's final witness was Larry J. Feeser, a Professor of Civil Engineering at Rensselaer Polytechnic Institute. He described the subject intersection prior to February, 1996 as including two eight-foot shoulders, four twelve-foot wide travel lanes and a four-foot paved median. The intersection was controlled by a standard red, amber and green traffic signal.

Mr. Feeser was familiar with the letter authored by Marlene Stipano on October 13, 1995 as well as the investigation conducted by the Department of Transportation in response to Ms. Stipano's correspondence. According to the witness Ms. Stipano's letter required an examination of all traffic movements at the intersection. Further, a proper study should have included information pertaining to vehicle speeds on Route 9, Malta Avenue and Malta Avenue Extension, data relating accident history at the intersection and interviews with individuals living and working in the area surrounding the intersection who might provide additional information concerning vehicle accidents in and around the intersection. In his view, the investigation conducted by the Department of Transportation was inadequate in several respects. In particular, he noted that the investigation conducted by the Department considered only left turning northbound Route 9 traffic, failed to include a traffic count of southbound vehicles turning left onto Malta Avenue Extension and did not collect information concerning vehicle speeds. Furthermore, Department of Transportation personnel failed to obtain information from individuals living and working in the vicinity of the intersection. Although Department records reflect that sight distances were measured for northbound traffic no such measurements were taken for vehicles proceeding in a southbound direction on Route 9.

Mr. Feeser related his opinion that the reference to a serious accident occurring on the morning of October 13, 1995 in the letter written by Marlene Stipano required that Ms. Stipano be interviewed so that the Department of Transportation investigation would include the most up-to-date information available. It was also his opinion that near misses, close calls and minor accidents should have been considered by the Department in determining whether and in what manner the intersection should be changed or modified.

The witness expressed his further opinion that the exercise of proper engineering judgment required the establishment of exclusive left-turn lanes for both northbound and southbound traffic on Route 9. According to the witness the paved surface area on Route 9 in both directions was adequate to accommodate exclusive left-turn lanes which provide left-turning vehicles the highest degree of protection and could have been installed through a simple re-striping of the highway and the installation of left-turn arrow signals controlling both northbound and southbound traffic. In this regard the witness testified:
The individuals in the exclusive left- turn pocket would have their own signal indicating when it was safe to make a left turn and would not have to be dependent upon observing the traffic from the opposite direction approaching the intersection who they would know has a red signal, a stop signal.

The witness next reviewed Exhibit 11, a photograph depicting the northbound approach to the intersection of Route 9 and Malta Avenue/Malta Avenue Extension. He estimated the distance between the white stop line which runs perpendicularly across the northbound lanes of traffic at the intersection and the green "X" marked on the photograph by Arthur Travis as approximately 150 - 160 feet. He stated that a vehicle proceeding at 55 mph would cover that distance in approximately two seconds. Mr. Feeser concluded his direct testimony by stating that in his opinion the configuration of the intersection of Route 9 and Malta Avenue/Malta Avenue Extension on June 26, 2000 contributed to the happening of claimant's accident.

On cross-examination the witness acknowledged that Laurie Herman's negligence in attempting to execute a left turn without assuring that there was no oncoming northbound traffic was a potential contributing factor to the accident. He also agreed that the operator of a vehicle waiting to execute a left-hand turn in the left lane of southbound Route 9 with an approximate sight distance of 700 feet in a southerly direction would have approximately eight and one-half seconds to observe approaching traffic.

Mr. Feeser stated that although accident history data is an important part of a proper intersection investigation, additional information such as traffic counts and speed data should also be considered. Provided the most current available data is utilized the witness agreed that when modifying an intersection it is appropriate to utilize accident history data to determine the existence of a pattern of accidents. He agreed further that the collision diagram prepared by the Department as part of its investigation of the intersection of Route 9 and Malta Avenue/Malta Avenue Extension revealed a pattern of accidents involving northbound Route 9 vehicles attempting to turn left onto Malta Avenue. He also concurred that the collision diagram prepared by Mr. Mayor did not demonstrate the existence of any accidents involving southbound vehicles on Route 9 turning left onto Malta Avenue Extension during the time period surveyed. It was his opinion, however, that the Stipano letter placed the Department on notice of the accident which occurred on October 13, 1995 which should have been considered in preparing the collision diagram. He testified that one of the benefits of installing an exclusive left-turn lane in both directions on Route 9 would be the elimination of rear-end accidents involving left-turning vehicles. He acknowledged that the accident history data collected by the Department revealed no rear-end accidents involving northbound Route 9 traffic.

On re-direct examination the witness testified that proper engineering practice made it incumbent upon the Department of Transportation to determine the type and number of accidents which had occurred at the intersection during the period January 1, 1995 to February, 1996, the date the signal controlling the subject intersection was modified to add a left-turn arrow for northbound traffic turning left onto Malta Avenue.

At the conclusion of Mr. Feeser's testimony the claimant rested and the defendant moved to dismiss the claim for failure to establish a prima facie case. The Court reserved on the motion which is now denied.

The defendant first called Mr. John Bovee. Mr. Bovee was the operator of the F-450 Ford truck[4]
which collided with Laurie Herman's car on June 26, 2000 at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension. Mr. Bovee explained his activities prior to the accident stating that he entered Route 9 at its intersection with Route 9P approximately 1 - 1½ miles south of the intersection of Route 9 and Malta Avenue/Malta Avenue Extension. He described the afternoon that day as sunny and the road conditions as dry and testified that there was a trailer carrying a small skid steer attached to the rear of his vehicle. From the intersection of Route 9 and Route 9P he proceeded north in the right hand lane of Route 9. He described traffic volume that day as moderate and testified that he observed that the signal controlling northbound traffic at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension was red. As he drove up the hill approaching the intersection from the south he noticed that the light had turned to green. He described what transpired as he continued his approach to the intersection stating "I seen a car was parked in the right-hand lane. So I pulled to the left to proceed to go up the hill and the lady pulled out in front of me and that was it". Mr. Bovee testified that he activated his left directional signal prior to moving his vehicle from the right northbound lane of Route 9 to the left lane and continued up the hill at a continuous rate of speed. He did not observe the Herman vehicle in the left lane of southbound traffic until he had entered the intersection. Mr. Bovee stated that the Herman vehicle unexpectedly turned into the left-hand northbound lane of traffic at a point where his vehicle was "right underneath the light" and that his vehicle sustained damage primarily to the right or passenger side.
On cross-examination Mr. Bovee described the northbound lanes of Route 9 as containing a dip in the roadway approximately one-half to three-quarters of a mile south of the intersection of Route 9 and Malta Avenue/Malta Avenue Extension at a point where the road "comes up and goes into an incline". As he proceeded up the hill toward the intersection he observed a vehicle stopped in the right lane of northbound traffic. As the light controlling the intersection turned green he activated his left-turn signal and pulled into the left lane of northbound traffic. He denied that his left blinker signal continued to operate as he passed through the intersection.

Brian Scott Jennings was the next witness called. He testified that on June 26, 2000 he witnessed a motor vehicle accident occurring at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension. He related that he left his place of employment in Wilton, New York at approximately 3:00 p.m. and entered the Northway at Exit 16. The witness traveled south to Exit 13 where he exited the roadway and proceeded south on Route 9 toward the Malta Ridge firehouse at the southeast corner of the intersection. He continued south on Route 9 intending to turn left at the intersection onto Malta Avenue Extension and proceed then to the Malta Ridge firehouse. As he approached the intersection the light controlling southbound Route 9 traffic was red and he brought his vehicle to a stop in the left southbound lane behind a white Dodge Neon automobile. He testified that the traffic light turned green and, referring to the operator of the Dodge Neon directly in front of him, that "she moved forward just a little bit and the few cars that were stopped on the other side of the road started to go . . . then all of a sudden, she just turned and that's when the pickup truck hit her". He estimated that approximately 30 to 35 seconds transpired between the time the light turned green and the time of impact. The witness was able to observe the white pickup truck as it was proceeding up the hill. From behind the Herman vehicle he observed the top of a white truck proceeding northbound and what looked to be a black cage behind the truck. The witness reviewed Exhibit 9 which he described as depicting a southbound view of Route 9 at its intersection with Malta Avenue/Malta Avenue Extension. Mr. Jennings estimated that the white truck was at approximately the same point on Route 9 proceeding north as the red car shown in the photograph. The witness, who was involved with the Malta Ridge Fire Department, estimated that the red vehicle shown in the photograph was located south of the driveway in front of the firehouse. With regard to the actions of the operator of the white Neon automobile in front of him in the left lane of southbound traffic Mr. Jennings stated:
I didn't understand why somebody would just turn in front of a vehicle like that, that size anyway. The vehicle looked to be going at a normal speed up the roadway. I just - I couldn't fathom why something [sic] would do that.

It was the witness's recollection that the left-turn signal of the Dodge Neon was not operating at the time the vehicle attempted to execute a left turn from Route 9 onto Malta Avenue Extension.

On cross-examination the witness agreed that at his examination before trial on October 6, 2003 he had answered affirmatively when asked whether the left-turn signal of the Dodge Neon was activated at the time the turn was initiated. On the day of the accident Mr. Jennings was driving a 1999 Dodge Dakota pickup truck which he described as somewhat taller than the Dodge Neon operated by Ms. Herman. He related that he traveled Route 9 south to the intersection of Malta Avenue/Malta Avenue Extension and came to a stop at a red light behind a white Dodge Neon automobile. He estimated that the red light continued for approximately one minute. When the light turned green the Dodge Neon moved approximately one foot forward while cars waiting in the northbound lanes proceeded through the intersection. Approximately 25 seconds later Mr. Jennings first viewed the top of the cab portion of the truck traveling north on Route 9 which ultimately collided with the Herman vehicle. He estimated that the white truck was approximately 100 yards south of his location at the time he first viewed it. He agreed, however, that at his examination before trial he testified that the pickup truck was approximately 45-50 yards away from the intersection at the time it first came into view. He estimated that it was no less than five seconds between the time he first observed the truck proceeding north on Route 9 and the time the truck collided with the white Dodge Neon automobile. After the collision the two involved vehicles came to rest on the left hand shoulder of Route 9 north of the intersection.

On re-direct examination Mr. Jennings stated that as he waited at the signal to turn left onto Malta Avenue Extension the traffic light changed from red to green. He testified that he observed the white pickup truck approaching the intersection and "I observed her vehicle pull in front of the white pickup truck". He related that he is not able to estimate distances well but, referring to Exhibit 9, testified that the red vehicle shown in the Exhibit is at the same point in the roadway where he first observed the white truck approaching the intersection from the south.

The defendant next called Richard Withers, a Licensed Professional Engineer in the State of New York since 1973. Mr. Withers joined the Department of Transportation in 1969 and continued in various positions until his retirement in 2001. The witness's curriculum vitae was received in evidence as Exhibit J without objection.

Mr. Withers testified that he was retained by the Office of the Attorney General to investigate actions taken by the Department of Transportation regarding the intersection of Route 9 and Malta Avenue/Malta Avenue Extension prior to June 26, 2000. As part of his investigation the witness reviewed the pleadings in the instant matter, deposition transcripts, the signal file for the traffic light governing the intersection, photologs and the Manual for Uniform Traffic Control Devices. Mr. Withers described a traffic study as the process of examining various aspects of a particular highway or intersection including accident history, sight distances, roadway geometry and traffic characteristics including traffic volumes or speeds. As part of his investigation the witness became aware, through his review of the signal file maintained by the Department, of a traffic study conducted at the intersection of Route 9 and Malta Avenue Extension in 1995. He reviewed the study which included accident history data, a collision diagram, a traffic delay study and sight distance measurements for northbound traffic on Route 9. In his opinion the traffic study performed by the Department in 1995 conformed with good and accepted engineering practices. He testified it was not necessary for Department of Transportation personnel to interview residents or other persons living and working in the area around the intersection as part of the traffic study stating that the information collected by the Department as part of its study was more reliable and consistent than could be obtained by a door-to-door survey. The collection of accident history data covering a three-year period such as that collected by the Department in 1995 was sufficient for purposes of conducting a proper traffic study. The fact that the data was current only through December 31, 1994 was not significant in that the available data was adequate to establish the existence of accident patterns within the intersection. The data revealed only a single problem at the intersection, a pattern of accidents involving northbound Route 9 traffic turning left onto Malta Avenue. In his opinion the installation of a left-turn arrow was a reasonable means for ameliorating the established pattern of accidents involving left-turning northbound Route 9 traffic. The accident data included in the diagram did not indicate a problem involving vehicles in the southbound lanes of Route 9 attempting to turn left onto Malta Avenue Extension. According to the witness it was not necessary to install exclusive left-turning lanes for both northbound and southbound traffic.

On cross-examination the witness admitted that for approximately 23 of the 30 years he was employed by the Department of Transportation he was involved in litigation matters as a member of the claims unit. As part of his review in preparing to testify Mr. Withers reviewed the letter received by the Department from Marlene Stipano dated October 13, 1995. In his view it was not necessary to interview Ms. Stipano regarding the serious accident referenced in her letter as having occurred on the date the correspondence was written because a single accident would not influence the results of the traffic study. He agreed that an appropriate study would consider accident data history relative to all accidents occurring at the intersection to identify any problems which needed to be addressed. Because the accident history data collected by the Department revealed no accidents involving left-turning southbound traffic it was not necessary to collect additional data or recommend any further changes with regard to southbound traffic on Route 9 attempting to turn left onto Malta Avenue Extension. He did not consider information concerning unreported or underreported accidents to be necessary to a proper investigation of the intersection and related that the provisions of the Highway Design Manual are applicable only with regard to road construction projects.

Mr. Withers described an exclusive turning lane as one in which a specific portion of a roadway is reserved for one particular traffic movement at an intersection. He acknowledged that the study conducted at the intersection of Route 9 and Malta Avenue/Malta Avenue Extension in 1995 did not refer to exclusive turning lanes or the installation of a left-turn arrow for southbound Route 9 traffic. Nor did the Department's investigation include a speed study at the intersection. The witness stated that the speed of vehicles going through the intersection was not a factor in determining the proper method for modifying the signal controlling the movement of traffic.

It is well established that the State is under a non-delegable duty to maintain its roadways in a reasonably safe condition for the traveling public (
see Friedman v State of New York, 67 NY2d 271; Hough v State of New York, 203 AD2d 736). This includes the design, installation, operation and maintenance of traffic control devices to regulate, warn and guide vehicular and pedestrian traffic at intersections under the State's control (see Vehicle and Traffic Law § 1681; Wood v State of New York, 112 AD2d 612). The State, however, is not an "insurer of the safety of its roads and no liability will attach unless the ascribed negligence of the State in maintaining its roads in a reasonable condition is the proximate cause of the accident" (Hearn v State of New York, 157 AD2d 833, 885, lv denied 75 NY2d 710). A highway may be considered "reasonably safe when people who exercise ordinary care travel over it in safety" (Boulos v State of New York, 82 AD2d 930, 931, affd 56 NY2d 714).
It is equally well established that "[i]n the field of highway safety planning, a municipality is immune from liability and negligence for acts involving judgment or discretion (see Tomassi v Town of Union, 46 NY2d 91; Lewis v State of New York, 70 AD2d 707), unless its plan or design was adopted without adequate study, or lacked reasonable basis (see Weiss v Fote, 7 NY2d 579; Puliatti v State of New York, 91 AD2d 1192)" (Spanbock v Trzaska, 287 AD2d 496, 497, lv denied 97 NY2d 610). In determining whether the State or one of its subdivisions failed to discharge its duty to adequately plan highways for the safety of the traveling public "something more than a mere choice between conflicting opinions of experts is required" (Weiss v Fote, supra at 588; see also Cangemi v Pickard, 270 AD2d 802, 803; Joyce v State of New York, 152 AD2d 306).
In
Harford v City of New York (194 AD2d 519, 520) and O'Brien v City of New York (231 AD2d 698, 699) the Appellate Division, Second Department noted that "the decision as to whether to install a traffic control device is a discretionary governmental function which will not expose a municipality to liability." Qualified immunity arising out of a reasoned highway planning decision has also been found in cases involving issues of highway design such as the presence or absence of medians (Chary v State of New York, 265 AD2d 913; Light v State of New York, 250 AD2d 988) and those involving safety elements such as traffic signals (Buhr v State of New York, 295 AD2d 462; Affleck v Buckley, 276 AD2d 507; Romeo v State of New York, 273 AD2d 934; Monfiston v Ekelman, 248 AD2d 518; Harford v City of New York, supra), stop signs (Schuster v McDonald, 263 AD2d 473) and warning signs (McCabe v Town of Brookhaven, 289 AD2d 541; Gregorius v County of Livingston, 280 AD2d 936).
The evidence presented at trial established that in October, 1995 DOT received a letter from Marlene Stipano which stated that she was prompted to write and voice her concerns about the subject intersection after having observed what she described as a serious accident on the morning of October 13, 1995. While her letter does not provide details of the accident itself she is quite specific in her suggestion that "a left-turn arrow signal is desperately needed at this intersection for Northbound traffic on Route 9 to turn onto Malta Avenue." Upon receipt of her letter William Logan, DOT's Regional Traffic Engineer for Region 1 ordered an investigation of the Route 9/Malta Avenue intersection and assigned Paul Mayor, the Engineer-in-Charge of the Traffic Signal Group to conduct the investigation. Although Mayor's recollection of the details of the investigation was less than optimal he testified that it consisted of collecting sight deviance and traffic delay information and compiling accident data for the three-year period from January 1, 1992 to December 31, 1994. He explained that generally a request for signal modification would trigger a study which would consider a three-year accident history, the highway's geometry, signs and pavement markings and 24 hour traffic volumes. Although he could not recall what specific actions he took as part of the 1995 study, he did recall that as part of the study he prepared a collision diagram (Claimant's Exhibit 34). He noted that the accident history data revealed that there were no southbound left-turn accidents reported to the New York State Department of Motor Vehicles for the three-year period studied. Mayor explained that collision diagrams are used by DOT to discover a pattern of accidents occurring over time. Based upon the number of left-turn northbound accidents shown on the diagram Mayor recommended the installation of a left-turn arrow for northbound traffic on Route 9, the precise relief requested by Ms. Stipano in her letter which prompted DOT's investigation. The witness testified that interviewing people living or working near an intersection was not required as part of a proper engineering investigation since such information would be anecdotal and unreliable.

William Logan's testimony regarding DOT's 1995 study of the intersection essentially corroborated that of Mayor but was slightly more inclusive. Logan related that the investigation examined accident data to determine if changes other than those related in the Stipano letter might be required. Upon being questioned regarding the October 13, 1995 accident involving a bus turning left from Route 9 south onto Malta Avenue Extension the witness testified that a single left-turn southbound accident did not constitute a pattern of accidents requiring either further investigation or the installation of a southbound left-turn signal. The witness explained that he did not specifically instruct Mayor to investigate the October 13, 1995 accident and that it was not DOT's policy when conducting a traffic study to interview police who investigated a reported accident or to interview witnesses listed on MV-104 forms filed with DMV. Logan explained that although the Highway Design Manual may suggest that unreported and underreported accidents be investigated by talking to residents and police, that manual is used by DOT in designing highways and is not applicable to signal modification projects.

Both Mayor and Logan acknowledged that they considered exclusive left-turn lanes for northbound and southbound traffic at the subject intersection. Mayor was uncertain of the highway's width at the time of the study but believed that exclusive left-turn lanes could have been installed without changing the intersection's geometry. He determined, however, that the intersection's accident history did not require such action.

The claimant's expert opined that the 1995 study was inadequate because it failed to take into account the October 13, 1995 accident which prompted Ms. Stipano's letter to DOT and failed to include in the study interviews with persons familiar with the intersection including Ms. Stipano, the police officer who investigated the October 13, 1995 accident, employees of the Leprechaun Pub located on the northeast corner of the intersection and members of the Malta Ridge Fire Department located southeast of the intersection. He further opined that DOT's study was inadequate based upon an admission by Paul Mayor, DOT's Engineer-in-Charge of the Traffic Signal Group who conducted the 1995 study, that he considered but did not recommend an exclusive left-turn lane for both northbound and southbound traffic at the subject intersection.

The defendant's expert, on the other hand opined that the 1995 traffic study conducted by DOT conformed to accepted engineering principles and that no further investigation was required.

The question of the adequacy of a three-year accident history in a DOT traffic signal study was addressed by the Appellate Division, Second Department in
Buhr v State of New York (295 AD2d 462), a case remarkably similar to the instant case. There the Court in affirming dismissal of the claim rejected claimant's argument that DOT's study was flawed in that it considered only accident data from 1991-1993 and failed to take into account the site's accident history for 1994, the year in which the study was initiated. In the instant case claimant alleges that DOT's 1995 study was inadequate since it included data for the period January 1, 1992 to December 31, 1994 but failed to include the October 13, 1995 accident. However, both Messrs. Logan and Mayor testified that the October 13, 1995 accident standing alone would not have altered the State's decision in February 1996 to install a left-turn arrow for northbound Route 9 traffic only. Like the claimant in Buhr the instant claimant has failed to establish that had the October 1995 accident been included in the study it would have changed DOT's decision regarding the signal modification. Claimant's proof, in fact, demonstrates the opposite.
While the parties' experts clearly differ as to whether the study otherwise conformed to accepted engineering practices and standards, courts have been instructed not to examine the criteria that were considered by the State's professional staff, emphasize factors allegedly overlooked and, with the benefit of hindsight, rule that the study was inadequate as a matter of law since to do so "would constitute the type of judgment substitution that
Weiss v Fote (supra) prohibits" (Friedman v State of New York, 67 NY2d 271, 286). Furthermore, "due respect must be accorded the judgment of the [State] based on studies prepared by its professional staff" (Muller v State of New York, 108 AD2d 181, 188).
The accident history data collected by the Department as part of its investigation revealed no accidents involving vehicles turning left onto Malta Avenue Extension from the southbound lanes of Route 9 and no complaints concerning left turning southbound Route 9 traffic were received by the Department from any source whether police agencies, motorists or persons living or working in the area including Mr. Hebert and Ms. Lattimore of the Leprechaun Pub or Chief Croteau of the Malta Ridge Fire Department. Upon the proof presented at trial the claimant has simply failed to establish that the study conducted by the Department was inadequate or that the decision to install a left-turn arrow only for northbound traffic on Route 9, the only intersectional movement for which a pattern of accidents was identified, lacked a rational basis. As a result, the Court finds that the defendant is immune from liability under the facts of this case.

The attorneys for the parties stipulated that had Dr. Mark Dentinger, a professor of neurology at Albany Medical College been called to testify at trial he would have testified
inter alia that Laurie Herman suffered from severe, permanent neurologic deficits as a direct result of the motor vehicle accident and is unable to testify and recount her version of the events of the accident.
The stipulation provides predicate facts for the application of the principles related in
Noseworthy v City of New York (298 NY 76), which allows the finder of fact to assign more weight to circumstantial evidence "because the more direct and proper source of this evidence no longer exists" (Holiday v Huntington Hosp., 164 AD2d 424, 428). In the instant matter, however, the proof devolved to questions of whether the State's 1995 traffic study was adequate and the reasonableness of its decision to install a left-turn arrow for northbound traffic at the intersection. Neither of those issues is affected by claimant's inability to testify or by any diminished burden of proof (see Freund v State of New York, 137 AD2d 908 lv denied 72 NY2d 802; Harris v State of New York, Ct Cl September 19, 2002 [Claim No. 95287, UID # 2002-005-011] Corbett, J., unreported)[5].
The claim is dismissed.

In light of the dismissal of the claim the defendant's counterclaim for indemnification and/or contribution from claimant for her culpable conduct is likewise dismissed.

The Clerk shall enter judgment in conformity with this decision.


September 29, 2004
Saratoga Springs, New York

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




[1]Witnesses referred to this vehicle as both a Dodge Neon and a Plymouth Neon. For purposes of this decision the vehicle will be referred to as a Dodge Neon.
[2]Obviously a reference to the prior accident date of October 13, 1995 referenced in the Stipano letter.
[3]See infra.
[4]Previous testimony referred to this vehicle as a F-350 Ford truck.
[5]Unreported decisions from the Court of Claims are available via the internet at