New York State Court of Claims

New York State Court of Claims

HALLORAN v. STATE OF NEW YORK, #2004-018-298, Claim No. 94869


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
COUGHLIN & GERHART, LLPBy: James P. O'Brien, Esquire
Defendant's attorney:

Third-party defendant's attorney:

Signature date:
March 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)
2004-018-295, 2004-018-296, 2004-018-297

The four referenced cases were joined for trial as the claims all arise from a two-vehicle accident which occurred on October 8, 1994. Wilbur National Bank is suing for damages on behalf of Chandra Kaly and Sarah Kaly, both of whom were killed in the accident (Claim Nos. 94863 and 94864). Utica National Bank is suing as subrogee of John Halloran for property damage and medical expenses paid on behalf of the Hallorans (Claim No. 94869) and the Hallorans[1] sued for their personal injuries and loss of consortium (Claim No. 96809).
The claimants seek damages for the State's negligent highway design and maintenance. Specifically, the claims allege that the State failed to place appropriate signage on Route 89 warning of the intersection with Route 139, and improperly continued a passing zone for northbound traffic on Route 89 through the intersection with Route 139.

At the time of trial, John Halloran was unavailable for medical reasons, and by stipulation, redacted versions of his and his wife's depositions were received into evidence.[2]
Mr. Halloran recalled that on October 8, 1994, he and his wife left their home in Ovid just before 4:00 p.m. in their Dodge Caravan minivan. A few minutes later, Mr. Halloran, who was driving, stopped at the intersection of Routes 139 and 89 in Seneca County. State Route 89 is a rural two-lane- two-way State road that runs north-south and intersects with County Route 139, also a two-lane- two-way road which runs in an east-west direction. The Hallorans were traveling westbound on Route 139, a route they used regularly. After stopping at the stop sign and checking Route 89 for traffic, Mr. Halloran moved forward to the eastern edge of Route 89 and again looked for traffic before entering the intersection. Although a vehicle was approaching from the south, he determined he had more than enough time to turn left onto Route 89. There was nothing obstructing his view of the road south to a small knoll, approximately 1,000 feet away. The approaching vehicle was approximately 800 feet away, moving slower than the 55 mph speed limit. Mr. Halloran made the turn and upon straightening his vehicle in the southbound direction, he saw a second vehicle pull out into his lane to pass the vehicle Mr. Halloran first observed. In an attempt to avoid the accident, Mr. Halloran moved partly onto the shoulder of the road, but the Halloran vehicle and the passing vehicle hit in a near head-on collision just south of the intersection. Mrs. Halloran had no recollection of the accident.
Mr. Halloran could not estimate the time that elapsed from the time he saw the second vehicle move into his lane until impact. He had time to turn his head, step on the accelerator, and turn the wheel toward the shoulder of the road. The other vehicle was being driven by Chandra Kaly. Mr. Kaly's wife and another passenger were also in the car.[3]
Mr. and Mrs. Kaly were killed and the passenger was injured. The vehicle which the Kalys were passing never stopped.
The only other testimony regarding the accident scene came from John P. Cleere, a Seneca County Deputy Sheriff who investigated the accident. The claimants called Deputy Cleere to testify briefly on their direct case, and the State also called him on its direct case.

Deputy Cleere arrived at the scene approximately two hours after the accident occurred. Upon his arrival at the site, the deputy learned that there had been a two-car collision involving the Hallorans in a 1990 Dodge Caravan and the Kalys in a 1992 Cadillac. This was the only information elicited from Deputy Cleere on the claimants' direct case.

On the State's direct case, Deputy Cleere testified that at the time he arrived at the accident scene, the drivers and passengers were gone, but the vehicles remained where they had come to rest. Photographs were identified and admitted into evidence which show the vehicles after the collision and the accident scene.[4]

The Halloran vehicle came to rest in the northern portion of the intersection, facing east, blocking the southbound lane of Route 89. The Kaly vehicle, which had been traveling north on Route 89, came to rest in the eastbound lane of Route 139, facing northwest. There was a debris field[5]
and several tire marks on the southwestern portion of the intersection, as well as two sets of gouge marks in the roadway. Deputy Cleere testified that the gouge marks indicate the place where the vehicles engaged each other after initial contact, each gouge mark representing the location where the front underside of each vehicle was forced into the road. Based upon the debris field location, the gouge marks, the resting position of each vehicle, and the damage to the vehicles, Deputy Cleere concluded that Mr. Halloran failed to yield the right-of-way at the stop sign, and was hit by the oncoming Kaly vehicle in the intersection, before he had an opportunity to complete the turn. He felt the testimony of Mr. Halloran was inconsistent with the scene as he found it. Deputy Cleere arrived at his conclusion as to the cause of the accident without performing any accident reconstruction, without speaking with any witnesses, and without determining the pre-impact speed[6] of the vehicles or the location of the Kaly vehicle at the time of contact or impact.
Deputy Cleere testified about this incident in an earlier proceeding in the Town of Ovid, and his recollection of exactly where the gouge marks were was refreshed by his prior testimony.[7]
In that proceeding, Deputy Cleere stated the gouge marks were not within the intersection - they were south of it. He then acknowledged at trial that the impact occurred south of the intersection, but maintained his position, that the damage to the Halloran van was inconsistent with Mr. Halloran having completed his turn onto Route 89 prior to the accident. The Court finds Deputy Cleere's testimony about the cause of the accident inconclusive at best.
Both claimants and defendant called Raymond McDougall as a witness. Mr. McDougall is the Assistant General Traffic Engineer for the New York State Regional Department of Transportation (hereinafter DOT), a position he has held for 18 years. He supervises 30 DOT employees and is responsible for traffic control devices, signing, signals, and roadway markings on State highways within a six county area, including State Route 89 and the intersection with County Route 139.

Mr. McDougall testified that no design changes occurred at the site of this accident for more than10 years prior to this accident. The only upgrades to the area were prompted after a 1993 study was completed, at Mr. McDougall's direction, by DOT employee, James Lawler. That study was conducted after an accident at the intersection,[8]
which prompted a request by the Seneca and Cayuga Counties Resident Engineer, Peter Houghton, that DOT review the signing at the intersection. The study was conducted in accordance with DOT procedures.
Mr. McDougall testified that DOT maintains a location file[9]
which contains all studies conducted on a particular roadway, any complaints sent to DOT, and an accident history of the roadway or intersection.[10] Mr. Lawler reviewed all correspondence and the accident history in the location file, and then went to view the intersection from all four approaches to determine whether everything conformed to the Manual of Uniform Traffic Control Devices (hereinafter MUTCD). Both experts and Mr. McDougall agreed that the MUTCD sets the standard the State must meet in order to have reasonably safe roads for the traveling public. After assessing the intersection's compliance with the MUTCD, Mr. Lawler determined certain changes were necessary; specifically, the size of the stop sign and the warning stop ahead signs were increased for travel east and west on Route 139, and a spruce tree was cut back from the westbound approach to Route 139. Mr. McDougall testified that the markings on Route 89 were reviewed as well, however, there was no documentation to support this testimony.
Claimant's expert, John H. Comiskey, a licensed engineer, was employed by various municipalities and the State of Pennsylvania prior to becoming a traffic engineering consultant. Mr. Comiskey testified that the State should have performed various engineering studies to determine whether or not to allow a passing zone on Route 89 northbound past the Route 139 intersection and to determine the appropriate signing. It was Mr. Comiskey's opinion that the State's study conducted in March 1993 was inadequate.

To determine the appropriateness of the signs and road markings, Mr. Comiskey indicated that an engineering assessment was required which would include a determination of the sight distance to the intersection and beyond it, average speed of travelers, traffic volume, accident history, and physical considerations, such as grade, angle of the intersection, etc.

Mr. Comiskey visited the intersection and roadway and determined that when a driver approaches the intersection, as Mr. Halloran did, on County Route 139 going west, there is a 3.4 percent upgrade to the intersection and a 60
angle to State Route 89. Mr. Comiskey opined that these factors affect the ability of a person, from Mr. Halloran's perspective, to see on-coming traffic and to complete a lefthand turn onto Route 89, because the angle of the intersection requires a driver to look over his left shoulder in order to see traffic on Route 89. Because he is on the downslope, the driver cannot see a second vehicle following closely behind a first. The second vehicle can be masked by the first, which is what Mr. Comiskey opined happened here. The masking problem exists, despite the sight distance from the intersection looking south on State Route 89 being over 1,000 feet to a little knoll or vertical curve. The sight distance from the intersection north is more than 2,000 feet.

Mr. Comiskey opined that a driver heading north, as the Kaly vehicle was, would have encountered a no-passing zone until reaching the knoll in the road, at which point, visibility would have exceeded 3,000 feet, enticing a driver to pass. Without a sign warning of the upcoming intersection, coupled with the difficulty seeing the intersection, a dangerous situation existed as realized by the Kaly-Halloran accident. Mr. Comiskey believed that this is an irregular intersection because of the grade and angle. The MUTCD required an assessment of the intersection and the application of engineering judgment to determine whether a passing zone should be permitted. He felt engineering judgment was not used in this case. Specifically, Mr. Comiskey relied upon § 262.16(2)(3) of the MUTCD which reads:

Irregular intersections[11]
Irregular intersections, or those where roads enter at flat angles,
require detailed evaluation to best accommodate the natural

and probable traffic patterns to the basic principles prescribed in

this manual...

He noted, that although under the MUTCD the sight distance was appropriate for a passing zone, there are times when, as here, the irregularity of the intersection requires a no-passing zone. After reviewing the State's location file, Mr. Comiskey testified he found no evidence a proper engineering study was performed. The failure to do the appropriate study was, according to Mr. Comiskey, a proximate cause of this accident.
The State, on its case, called Timothy R. Faulkner, a Senior Traffic Engineer and partner with Clough-Harbour Associates. Mr. Faulkner also went out to State Route 89, as it intersects with County Route 139. Mr. Faulkner visited the intersection four times, observing the physical characteristics of the roadway and intersection, reviewing the particulars of this accident and collecting data, including sight distance, traffic volume, and reviewing the accident history for the 7 ½ years prior to this accident. Mr. Faulkner testified that in determining whether to mark a rural highway, such as State Route 89 as a passing zone, consideration would be given to sight distance, traffic volume, and accident history, as required by § 200.2(f) of the MUTCD.

Mr. Faulkner testified that the sight distance for traffic traveling north on State Route 89 exceeded the minium sight distance required to permit a passing zone at the 55 mph speed limit pursuant to the MUTCD. Section 262.14(a)(1) of the MUTCD provides: "Sight distance, therefore, is the critical factor used to determine whether passing is to be prohibited or permitted." Table (262-1) sets the guidelines for determining sight distance based upon the 85 percentile speed.[12]
The sight distance for a passing zone at speeds of 55 mph is 900 feet. The measured distance from the intersection south to the crest or knoll was 1,023 feet.
Mr. Faulkner also testified that the traffic volume for this intersection was very light, at the busiest time of the day, there was a vehicle approximately every two minutes on Route 139, and a total of 1,200 to 1,300 cars per day on Route 89. Also, according to Mr. Faulkner, the accident history for this intersection would not require a no-passing zone. There were no accidents related to passing on this roadway for the 7½ years reviewed prior to this accident, although because of the low-volume of traffic on these two roadways, the accident rate was higher than the State average.[13]
Despite this, Mr. Faulkner testified that there were no factors which would have required the State to change the road markings to prohibit passing prior to this accident.
Mr. Faulkner, based upon his observation of the intersection and in his engineering judgment, testified that the State Route 89 intersection was not an irregular intersection. He stated the 3.4 percent grade was not significant, and the grade and the 60
angle did not make the intersection "irregular" by the MUTCD; therefore, a no-passing zone was not required pursuant to § 262.16.

The State's expert also testified no intersection-ahead warning sign was required, given the visibility of the intersection. Mr. Faulkner testified that under the MUTCD § 232.1, an intersection-ahead warning sign should be used where there is insufficient visibility or where more than normal caution needs to be exercised. The MUTCD provides that at 55 mph speeds, where there is less than 500 feet of visibility to the intersection, a sign is required, and where there is 1,100 feet of visibility, no sign is necessary. In between that range, engineering judgment must be used. Here, there was 1,023 feet of visibility to the intersection, and Mr. Faulkner felt no such warning sign was necessary.

The State has the absolute duty to maintain its roadways in a reasonably safe condition for the traveling public (
Friedman v State of New York, 67 NY2d 271, 283; Hough v State of New York, 203 AD2d 736). Although the duty is non-delegable, courts limit the intrusion into a municipality's planning and design decisions, according the State a qualified immunity from liability for decisions arising from such functions (Friedman v State of New York, 67 NY2d at 283; Weis v Fote, 7 NY2d 579, 585-586) "Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan."(Citations omitted) (Friedman v State of New York, 67 NY2d at 284). Once made aware of a dangerous traffic condition, the State must undertake reasonable study of the problem in an effort to alleviate the danger (Friedman v State of New York, supra). Once a reasonable traffic plan has been implemented, the State has an on-going obligation to regularly review its plan and assess its functionality (Friedman v State of New York, supra; Weis v Fote, 7 NY2d at 579).
It is the claimant's position that the State had an obligation to re-evaluate its roadway markings and signing along State Route 89 and the intersection with County Route 139 in 1993, and that the study the State conducted was inadequate. According to claimants, given the configuration of this intersection, coupled with the increased traffic volume and accident history, a no-passing zone should have been established; and at the very least, an intersection-ahead warning sign was required. The Court, for the reasons that follow, disagrees with claimants' position.

The primary inquiry in determining whether or not a passing zone should be permitted is the sight distance. The MUTCD, which sets forth the minimum standards the State must meet, as all the experts acknowledged, does not mandate, but
suggests, a certain sight distance based upon the 85 percentile speed. Claimants pointed to the fact no 85 percentile speed study was performed, and argued, as a result the 85 percentile speed was unknown, thus precluding a determination of the appropriate sight distance. Without this information, claimants argue permitting a passing zone was unreasonable.
At this location, it was undisputed that sight distance to the intersection was well in excess of the 900 feet suggested in the MUTCD for a 55 mph speed limit.[14]
Sight distance beyond the intersection was almost "limitless"- more than 2,000 feet. The sight distance exceeded what is suggested in the MUTCD, even if the prevailing speed on the roadway was 70 mph. Moreover, other than claimant's expert's opinion, there was nothing to suggest excessive speed was a problem here. Under these circumstances, the failure to perform an 85 percentile speed study was not unreasonable.
Claimant buttressed its argument for the 85
percentile speed test with its position that this particular intersection required a "no-passing" zone even though sight distances were sufficient, because it is an irregular intersection as stated in MUTCD § 262.16(a)(3). No definition of an irregular intersection is proved in the manual. Not surprisingly, Mr. McDougall and Mr. Faulkner testified that this was not an irregular intersection,[15] Mr. Comiskey testified that it was. "[S]omething more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (Weis v Fote, 7 NY2d at 588; Elmer v Kratzer, 249 AD2d 899, 900, app. dismissed 92 NY2d 921). No such evidence was provided. The Court is not persuaded that this is an irregular intersection. From the pictures in evidence, it is clear the 3.4 percent change in grade from Route 89 was not appreciable, lowering a vehicle less than three inches when six feet from the intersection.[16] The angle of the intersection also does not appear significant.
In determining whether an intersection-ahead warning sign is necessary, the visibility of the intersection is the basic consideration (MUTCD § 232.1[2]). Other factors include accident history and unusual geometry. Engineering judgment prevails in assessing the need for this type of warning sign (MUTCD § 232.1[2]). Mr. Comiskey opined that because of this intersection's physical configuration causing problems with visibility, an appropriate assessment or study including traffic volume, accident history, and an 85 percentile speed study, was required to properly determine whether this warning sign was necessary. The MUTCD provides Figure 232-1, which is a chart depicting sight distance along the left side axis and 85 percentile speed along the bottom axis. The chart is divided into three groups: 1) critically limited sight distance requiring an intersection-ahead warning sign; 2) where the warning sign not usually necessary but may be used when other factors indicate a need; and 3) where more than adequate sight distance exists, and absent unusual circumstances, an intersection-ahead sign should not be used. For a 55 mph speed, between 400 - 500 feet of sight distance or less requires the warning sign. If there is more than 1,100 feet, a warning sign should not be used. Here there was 1,023 feet from the crest to the intersection, even at 85 percentile speed of 70 mph, no warning sign would be required.[17]
Moreover, there was a sign approximately 100 feet from the intersection on State Route 89 North, indicating "Sheldrake 1"[18] with an arrow pointing right. This sign, as Mr. Comiskey acknowledged, alerted drivers traveling north of an upcoming intersection on the right, the point from which the Halloran vehicle entered State Route 89. This sign was visible from approximately 1,000 feet south of the intersection. From the pictures in evidence, the Route 139 stop signs at the intersection are also visible from close to the knoll, the point where the roadway markings change from no-passing to a passing zone. Pursuant to the MUTCD, intersection-ahead warning signs are usually not necessary with the sight distances that exist here, and the failure to provide these warning signs, under these circumstances, was certainly not unreasonable.
Mr. Comiskey testified repeatedly that the study performed in 1993 was plainly inadequate; however, there was admittedly nothing in the location file that would indicate additional study was necessary. The configuration of the intersection has not changed, the traffic volume, although increased, was still very light; there was no accident history which would suggest a problem with the passing zone, and it appears to this Court that the State acted in compliance with the MUTCD (
see Zecca v State of New York, 247 AD2d 776). Under these circumstances, the study performed by the State engineer in 1993, although limited, was not arbitrary or unreasonable.
Accordingly, the claimants' evidence fails to show that the State's 1993 study of the intersection was inadequate or that there was no reasonable basis for its existing traffic plan. The claims must be DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

March 30, 2004
Syracuse, New York
Judge of the Court of Claims

[1]Mrs. Adelaide Halloran died before the commencement of the trial, and a representative was substituted on her behalf.
[2]See Exhibit 33.
[3]The Hallorans sued the Kalys in Supreme Court and obtained a settlement in the amount of $265,000.
[4]Exhibits 35 - 46, 48 - 55, and Y, Z, AA, BB, and CC.
[5]This was defined as an area covered by small bits of broken glass, fiberglass, and plastic which indicates generally the area of impact.
[6]There was no indication the Kaly vehicle was speeding.
[7]Unfortunately, none of the photographs taken at the scene show the gouge marks.
[8]That accident involved a car proceeding west on Route 139 through the intersection, failing to yield to a vehicle northbound on Route 89.
[9]The location file for Route 89 and the intersection with County Route 139 was admitted as Exhibit 1.
[10]The filed contained numerous complaints from property owners north of the intersection regarding the speed limit and passing zone on Route 89 in front of their property. These complaints are irrelevant to this matter.
[11] There is no definition in the manual for an irregular intersection.
[12]This is a test to determine the speed exceeded by 15% of the vehicles on a given route and used to determine, among other things, what speed limit should be set.
[13]Both experts and Mr. McDougall agreed that the other accidents were dissimilar to the Halloran-Kaly accident.
[14]This section of the MUTCD is discretionary, not mandatory.
[15]Mr. McDougall when called by the claimants at one point testified this was an irregular intersection; the Court gave little weight to his position on this issue given his conflicting testimony.
[16]At the time of the accident, Mr. Halloran was driving a minivan in which a driver sits in a higher position than a driver in a car.
[17]MUTCD Figure 232-1.
[18]The sign indicates the Town of Sheldrake is one mile east on Route 139 and implies an upcoming intersection.