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