New York State Court of Claims

New York State Court of Claims

MARVIN v. THE STATE OF NEW YORK, #2004-019-001, Claim No. 103697


Case Information

KARL H. MARVIN, as Administrator of the Estate of SARA M. MARVIN
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:
CHERUNDOLO, BOTTAR & LEONE, P.C.BY: Anthony S. Bottar, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Karl H. Marvin, brings this claim as administrator of the Estate of Sara M. Marvin, deceased, alleging that the death of the decedent was caused as a result of the negligence of the State of New York. The trial of this claim was held in the Binghamton District on September 17, 2003, and was bifurcated. Consequently, this Decision addresses the issue of liability only.

On January 25, 1999, the decedent Sara M. Marvin, age 65, and employed by Gladding Braided Products in South Otselic, New York, went to work as usual. At the end of her shift at the factory, decedent left work and apparently started her route home. She was operating a 1990 Oldsmobile south along New York State Route 26 (hereinafter "Route 26"), in the Town of Pitcher, Chenango County. Brenda L. Torrey, a co-worker of the decedent, also left work at about the same time. Ms. Torrey was traveling in her vehicle, immediately behind the decedent and said that both vehicles were traveling between 45 and 50 mph in an area with a posted speed limit of 55 mph. At this time the weather was sunny and it was relatively clear, there was no snow or rain and the roadway appeared to be dry. The vehicles were approaching the intersection of Baumann Road with Route 26 south. Baumann Road, a two-way roadway, intersects with Route 26 from the west, forming a "T" intersection with Route 26. Immediately south of Baumann Road, Route 26 crosses the Otselic River by way of a bridge which is located on Route 26 making a gentle curve to the east once a vehicle passes the Baumann Road intersection.

As described by Ms. Torrey in her testimony, the decedent's vehicle inexplicably failed to negotiate the slight curve to the west on Route 26 just before the Otselic River bridge, left the highway, and struck a snow embankment just north of the bridge located on the west side of Route 26. Ms. Torrey saw no brake lights or slowing of the decedent's vehicle. Rather, Ms. Torrey witnessed decedent's vehicle sail over the guide rail, become airborne and land upside down in the Otselic River. Ms. Torrey immediately went to a nearby trailer park to summon help by asking residents in the park to call 911. Emergency crews arrived shortly thereafter and extricated the decedent whereupon she was immediately transported to Wilson Memorial Hospital. She was pronounced dead at approximately 10:30 p.m. of hypothermia and anoxia.

New York State Police Officer Jean Oliver testified that he was working the A-line, or 7:00 a.m. to 3:00 p.m., on January 25, 1999. He received a call from 911 advising of an automobile accident with a vehicle overturned in the Otselic River. Upon arriving at the scene, emergency crews were already present. The Trooper controlled traffic as the emergency crews attempted to rescue the decedent from her vehicle. Subsequently, the Trooper investigated the accident, spoke to Ms. Torrey, and his investigation confirmed that the decedent was traveling in a south/westerly direction along Route 26 when she left the highway. The Trooper also stated that Route 26 was in good condition and that there was no evidence of any loss of vehicle fluid or skid marks on the roadway. Any snow that had fallen in the area had been removed from the travel portion of the highway and had been plowed back from the shoulder. Snow was accumulated and piled along the guide rail area, but off the shoulder of the highway. Trooper Oliver measured the height of the snowbank where the decedent's vehicle left the road at approximately between 15 and 18 inches in height.

Claimant called as an expert witness Joseph Champagne, who analyzed the accident scene photographs taken by the New York State Police. He testified that Route 26 was constructed sometime around 1985 and that the record plans for reconstruction (hereinafter "1985 Reconstruction Plans"), included specifications for installation of a box beam guide rail on the west side of the highway both north and south of the bridge crossing the Otselic River. (Cl. Ex. 43). Mr. Champagne measured the height of the guide rails along the northbound and southbound lanes of Route 26 and found the guide rails 27 inches and 21 inches high, respectively. The 1985 Reconstruction Plans for Route 26 required the guide rail to be 2 feet 6 inches high, or approximately 30 inches above the ground and at least 27 inches above the paved shoulder of the roadway. He stated that anything less than 27 inches below the paved shoulder of the roadway was a deviation from good engineering practice and from the 1985 Reconstruction Plans. Mr. Champagne determined that the 21 inch guide rail at the point where decedent's vehicle left the roadway was a violation of the State Department of Transportation's (hereinafter "DOT") own standards as well as a deviation from good and accepted engineering practice. It was Mr. Champagne's expert opinion that the 21 inch height of the guide rail was a significant contributing factor to the decedent's vehicle going over the guide rail and flipping into the Otselic River. He testified that if the guide rail was a proper height, the decedent's vehicle would have been redirected back toward the roadway and not up and over the guide rail and into the river. Moreover, Mr. Champagne opined that if the vehicle had been so deflected, the decedent would have had an opportunity to regain control of her vehicle rather than becoming airborne.

To counter Mr. Champagne's testimony, the State called Michael Schwartz, resident engineer for the DOT in Chenango County who testified that the guide rail installed at the site of the accident was installed either by DOT or contracted out. Mr. Schwartz confirmed that Route 26 had been reconstructed with the installation of new box beam guide rails in 1985 and resurfaced in 1998. Mr. Schwartz testified that the guide rails were to be installed with a height of 27 inches pursuant to the 1985 Reconstruction Plans. (Cl. Ex. 43, p 37). Mr. Schwartz acknowledged that prior to the mid-1980s, guide rails were required to be 30 inches in height, but were later reduced to the current requirement of 27 inches. Mr. Schwartz opined that the controlling height for guide rail installation was 27 inches at the time this roadway was reconstructed in 1985. Mr. Schwartz further testified that when a roadway is repaved the plans allow for a deviation in the height of a guide rail at plus or minus 3 inches. Therefore, Mr. Schwartz indicated that the guide rail on Route 26 could have a height of 24 inches at a minimum and 30 inches at a maximum.

The State also offered at trial the deposition testimony of Chris Bistocchi, the superintendent of public works for the City of Cortland. Mr. Bistocchi measured the guide rail in question in numerous locations in November of 1999 finding its height to be anywhere from 20 1/2 inches to 22 inches. Mr. Bistocchi's measurements confirm Mr. Champagne's measurements of the guide rail of approximately 21 inches.

Claimant alleges that the guide rail's actual height of 21 inches along the southbound lane of Route 26 was a substantial factor in the decedent's vehicle going over the guide rail since it was a 6 inch deviation from the 27 inch height standard set forth in the 1985 Reconstruction Plans or, using the State's acceptable height of 24 inches, a 3 inch deviation therefrom. Mr. Champagne concluded that an additional 3 inches in height for a total of 24 inches, would have deflected the decedent's vehicle back onto the southbound lane of Route 26 providing the decedent with an opportunity to regain control of her vehicle, thereby avoiding the fatal consequences which ultimately occurred.

The State argues that an additional 3 inches of height on this guide rail would not have allowed for the redirection of the decedent's vehicle back to the roadway even if snow had not been accumulated along the guide rail at the point where the decedent's vehicle left the roadway. In any event, the State argued that when snow is properly plowed against the guide rail in order to keep the travel portions and shoulder portions of the roadway clear, as here, claimant's expert's position is even less tenable. (
Bonet v State of New York, Ct Cl, Ruderman, J., January 8, 2002, Claim No. 92263 [U.I.D. No. 2002-010-057]).[1]

The court finds that there was a deviation of the acceptable standard of 24 inches minimum height for guide rails required by the 1985 Reconstruction Plans, down to a height of approximately 21 inches - a deviation of 3 inches - at the point of the decedent's impact with the snowbank. That having been said, however, claimant has failed to establish that said deviation was a proximate cause of this accident. Rather, the court finds that a substantial factor in the decedent's vehicle leaving the shoulder and becoming airborne over the guide rail was the presence of the snowbank piled up along the guide rail. (Cl. Exs. 2, 3 &4). While we may never know why the decedent's vehicle left the travel portion of the roadway in the first instance, it is obvious upon hitting the snow piled along the guide rail the same acted as a ramp redirecting decedent's vehicle up and over the guide rail with sufficient velocity, allowing it to flip in the air and come to rest upside down in the Otselic River some 55 feet south of the point where the decedent's vehicle left the roadway. The court is not satisfied that an additional 3 inches of guide rail at the point of the decedent's impact with the snowbank would have been sufficient to overcome the velocity and force of the decedent's vehicle as it became airborne, instead forcing the same back onto the travel portion of Route 26. In other words, if the court were to accept claimant's argument then the court in essence would be finding that a guide rail with an additional 3 inches of height would be sufficient to redirect a vehicle traveling 50 mph which had veered off the traveled portion of the roadway back onto the same. The court is satisfied that once the decedent's vehicle struck the snowbank, that snowbank acted as a substitute for the roadway and tragically provided the necessary elevation and lift for the vehicle to become airborne. Consequently, claimant has failed to establish to the court's satisfaction that an additional 3 inches of guide rail would have prevented this tragic result.

Based upon the foregoing, the claimant has failed to sustain his burden of proof and consequently Claim No. 103697 should be, and hereby is, DISMISSED.

Any motions upon which the court previously reserved, or which remain previously undecided, are hereby denied.


March 29, 2004
Binghamton, New York

Judge of the Court of Claims

[1]Unreported decisions from the Court of Claims are available via the internet at