New York State Court of Claims

New York State Court of Claims

ROSARIO v. THE STATE OF NEW YORK, #2004-029-445, Claim No. 103673


Synopsis


Highway intersection accident; intersection controlled by stop sign. Based upon evidence, Court finds that claimants failed to establish that the State failed to perform an adequate study regarding the stop sign. Court finds sole proximate cause of accident was the driver of the vehicle that hit claimants' vehicle; failure to use reasonable care.

Case Information

UID:
2004-029-445
Claimant(s):
GERALDO ROSARIO and YOLANDA ROSARIO
Claimant short name:
ROSARIO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103673
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Miller, Miller & Shandler, Esqs.
By: Rende, Ryan & Downes, LLP, of CounselBy: James J. Downes, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Judith C. McCarthy, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 12, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
This claim for personal injuries arose from a two-vehicle automobile accident at the intersection of Route 202 and Gurnee Avenue in Haverstraw, New York on the evening of October 22, 2000. The trial was bifurcated and this decision deals only with the issue of liability.

On October 22, 2000, at approximately 7:00 p.m., the claimants were in their 1987 Honda automobile proceeding eastbound on Route 202 at the intersection with Gurnee Avenue. Claimant, Geraldo, was driving and his wife, Yolanda, was in the front passenger seat. The Rosario vehicle was making a left turn onto Gurnee Avenue when it was struck by a pickup truck driven by James Quinn. The Quinn vehicle was proceeding westbound on Route 202, failed to stop at a stop sign and collided with the Rosario vehicle.

Claimants assert that the State was negligent in failing to replace the stop sign at the intersection of Route 202 and Gurnee Avenue with a traffic signal.

James Quinn testified at trial pursuant to a subpoena issued by claimants' counsel. Quinn testified that October 22, 2000 was a dark, dry night and he was on his way home. He has lived within two miles of the accident scene for his entire life and had been a licensed driver for seven years at the time of the accident. Quinn testified that he had no alcoholic beverages on the day of the accident. Quinn stated he was very familiar with the intersection and had driven through it countless times before October 22, 2000. He described Route 202 at the intersection as being a straight road which intersected with Gurnee Avenue at an angle with a stop sign that controlled his lane at the northeast corner of Gurnee Avenue. As he approached the intersection, he was aware he would have to come to a full stop at the stop sign, move up to the stop bar to observe the traffic and only proceed into the intersection if it was safe to do so. Quinn testified that as he approached the intersection he saw claimants' vehicle traveling east on Route 202 and believed the car did not have its turn signal on. He said he expected the car to proceed straight on Route 202. Quinn stated that after glancing at the intersection and thinking that the intersection was clear, he accelerated quickly through the intersection, so he could "beat" a car traveling up Gurnee Avenue toward Route 202. He did not worry about claimants' car making a left into the intersection due to the absence of the turn signal. As he approached the stop sign, he downshifted to second gear and accelerated quickly, "gunning" it through the intersection at 25 to 30 miles per hour, never applying the brakes prior to impact. Quinn admitted that he never came to a complete stop. He hit claimants' car head-on and the impact occurred at approximately the center of the intersection, in the westbound lane. The front end of his vehicle collided with the front end of the claimants' vehicle. His vehicle's airbag deployed and his truck was totaled.

After the accident, Quinn's truck was found parked in the driveway of a home just beyond the accident scene on Gurnee Avenue. Both truck doors were open. Although Quinn testified that he does not recall where his pickup truck came to rest after the accident, he admitted that it was his pickup truck parked in the nearby driveway. He claims that because of the large lump on his head suffered during the accident he somehow "wandered off".

Quinn was subsequently charged with a felony - leaving the scene of an accident. He ultimately pled guilty to two counts of misdemeanor assault in the third degree. At trial, the State attempted to offer the accusatory instrument charging Mr. Quinn with a crime and the certificate of disposition for the criminal matter into evidence. The documents were marked as Exhibits S and T respectively. The Court reserved decision on claimants' objection to the introduction of the documents and directed the parties to address the issue in post-trial memoranda of law. Claimants' objection is now sustained. The Court accepts Mr. Quinn's statement that he was charged with a felony and pled guilty to a lesser charge of a misdemeanor. CPLR § 4513 provides:

"A person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to answer any relevant question, or by the record. The party cross-examining is not concluded [sic] by such person's answer".


In view of Quinn's testimony, there is no need to establish the fact by documentary evidence (
cf. Sansevere v United Parcel Service, Inc., 181 AD2d 521 [trial court's refusal to allow defense to introduce witness's criminal record was reversed on appeal. CPLR 4513 provides conviction can be proven by questioning or by the record]).
Police Officer Hector Torres (hereinafter P.O. Torres) was called as a witness by both parties. He testified that he has been a police officer with the Village of Haverstraw for 17 years. P.O. Torres routinely conducts accident investigations and investigated the subject accident. P.O. Torres arrived at the scene at around 7:00 p.m. and observed a badly damaged 1987 Honda with claimants inside. He noted that the vehicle was in the middle of the intersection, in the westbound lane of Route 202 (see Exhibit 23). He also noted that the other vehicle involved in the accident, a red Ford pickup truck, was parked two houses west of the accident scene in a driveway. In his accident investigation report, P.O. Torres stated that the pickup truck failed to stop at the stop sign and ran head-on into the Honda (see Exhibit 30). He further noted that witnesses to the accident saw the driver and passenger of the pickup truck running from the accident scene. Upon arriving at the Honda, P.O. Torres observed that Geraldo Rosario was conscious but incoherent and he was not wearing a seatbelt. At the scene, claimants were not able to tell him what happened. In order to remove the claimants from their vehicle, the doors and roof of the car were removed and both claimants were transported to the hospital.

Nicholas Dellolio was called as a witness by claimants. Dellolio testified that he was familiar with the subject intersection and has driven through it on occasion. On October 22, 2000, Dellolio was in a driveway standing behind his truck and facing the intersection. Dellolio was in the driveway for about a minute or two prior to the accident and at the time of the accident he was opening up the back of the truck. Dellolio saw claimants' car veering left and a pickup truck enter the intersection and collide with claimants' car. The witness stated that the vehicles were traveling between 30 and 40 miles per hour and that neither vehicle slowed down. He does not know whether either vehicle had its lights on.

Yolanda Rosario testified with the aid of an interpreter. She testified that at the time of the accident she and her husband were headed home via Route 202. Mrs. Rosario stated she has no memory of the accident, but does remember visiting their granddaughter prior to the accident. She testified that Route 202 is their usual route home from their granddaughter's and they do not usually turn onto another street from Route 202 on their way home.

Thomas Weiner was called as a witness by both parties. He is currently employed by the New York State Department of Transportation (hereinafter DOT) as a Civil Engineer 3 in the Planning and Program Management Group in Poughkeepsie. From 1983 through January 2000 he was a member of the Traffic, Engineering and Safety Department.

Weiner stated that the department's tasks include,
inter alia, doing traffic control investigations, safety investigations and designing, installing and maintaining traffic signals. He stated that the Route 202 and Gurnee Avenue intersection is a State highway. Weiner further testified that he is assigned to DOT Region 8 which comprises the Counties of Westchester, Putnam, Dutchess, Columbia, Rockland, Orange and Ulster.
Weiner explained that a traffic and engineering investigator is a person who has been assigned to investigate requests or complaints from the public or from public officials for various traffic control devices. Tammy Germiller was at one time an investigator within Region 8, however, she was not the only investigator assigned to that region. Gerald O'Shea was an investigator who retired in 2000.

Weiner explained that Exhibit 35 is a DOT Notice of Order which is used to add, amend or repeal traffic regulations on the State highway system. Exhibit 35 relates to the installation of a stop sign at the subject intersection. The order directs a sign to be installed in 1988 on West Side Avenue on the westbound side of the intersection. Weiner testified that the stop sign was installed and was in place on or about October 22, 2000. The witness stated that the stop sign on the west side of Route 202 replaced a yield sign on Gurnee Avenue. He stated that in his experience, this type of order would not be issued without first doing a study.

Weiner testified that DOT considers traffic volume in determining whether or not to install a traffic light. The Manual of Uniform Traffic Control Devices (hereinafter MUTCD) governs determinations with regard to the volume of traffic applicable for the installation of a traffic light. Weiner explained that the State determines traffic volume in one of two ways: (1) utilizing a counter with a tube across the road, to collect the hourly traffic volume which is then downloaded onto a computer and made available to a traffic investigator or (2) by employees standing at the intersection counting the cars. Weiner further testified that Exhibit 36 is the State's record of tube traffic counts for Route 202. The counts were taken from April 28, 1992 to December 8, 1997 (see Exhibit 36, Pages 1-12).

Weiner testified that the State did not investigate installing a traffic light at this intersection between 1994 and January 2000, when he left the Traffic, Engineering and Safety Department of DOT. The witness stated that when DOT receives a letter from the public requesting a traffic signal be installed at a particular location, DOT responds in some manner and makes a determination of necessity. If a study is needed, DOT creates a case file and conducts the study.

Weiner stated that in response to a November 24, 1993 letter from Assemblyman Gromack referencing to a meeting held the previous day wherein public officials from the Village of Haverstraw and the Assemblyman requested that DOT (1) look into relocating a utility pole at the intersection of Route 202 and Gurnee Avenue and (2) consider repositioning the stop sign at the same intersection (see Exhibit 32, Page 21), Mr. O'Shea conducted a field study and drafted diagrams of the intersection, the stop sign and utility pole that were being evaluated. The State had the utility company remove the offending utility pole. Weiner further testified that O'Shea did not do any traffic volume studies or accident analysis of the intersection.

Weiner testified that the diagram on Page 17 of Exhibit 34 depicts 25 accidents at the intersection for the period from November 1996 through September 1999. He stated that five of those accidents occurred a block away on Route 9W. Weiner agreed that 15 of those accidents are clearly referenced to the intersection. He explained that the State obtains accident reports from the Department of Motor Vehicles (hereinafter DMV).

Weiner further testified that the MUTCD guidelines state that five or more correctable accidents in a one-year period would meet the accident history warrant (MUTCD § 271.8 [Warrant 6]). He said it is also important for DOT to consider the geometry of the intersection in engineering analysis. He stated that an acute angle at an intersection would be an important consideration in determining whether to install a traffic light. The volume of the traffic is also important in determining whether to install a traffic light.

On cross/direct-examination by defense counsel, Weiner explained that O'Shea conducted a study of the subject intersection from 1993 to 1994. At the time the study was performed, Weiner was O'Shea's supervisor and he was responsible for the quality of O'Shea's work. The department conducted this study because village officials complained that the utility pole was causing tractor trailers to shy away from the pole and possibly cross the center line. The village officials also expressed concern that the location of the stop sign prevented motorists from seeing traffic coming up from Gurnee Avenue (see Exhibit 32, Page 21). The 1993/94 study entailed a site visit to observe the conditions cited in the complaint, the location of the stop sign, the visibility for motorists and the location of the utility pole relative to the vehicles that would have to proceed around it. Weiner testified that the conclusion of the study was that the stop sign could not be relocated because of the physical layout of the intersection and that the stop line was placed beyond the stop sign at a location where there is maximum sight distance for all vehicles.

Weiner testified that the MUTCD prescribes warrants that define the minimum conditions under which a traffic signal may be justified. MUTCD § 271.2 (a) states that the selection and use of a control device should be preceeded by a thorough engineering study of roadway and traffic conditions. Weiner stated that these guidelines are not mandatory.

Weiner further testified that the 1993/94 study was not a traffic signal study because the complaint was specific and an analysis of the stop sign location did not warrant a full traffic study. Traffic signal studies are extensive and time-consuming and there are not enough resources to always perform one. A full traffic study would be triggered by a request from the public or a public official or it could be based on the observations of a State worker during the course of his work. He stated that engineering judgment must enter into any signal study. The witness testified that the warrants (MUTCD Part 271) are simply guidelines which the traffic engineering and safety group look at if they are doing a full signal study. Weiner stated that a correctable accident under the MUTCD is one that a traffic signal would normally reduce. The types that are most often correctable are right-angle accidents which are described as traffic on the main road hitting or being hit by the traffic on the side road. He also stated that left-turn accidents are possibly considered correctable. He would only consider left-turn accidents correctable if the proposed signal had special phases to deal with the left turn. He said that rear-end accidents are not normally considered correctable accidents and, in fact, may be increased by a traffic light.

Weiner testified that a traffic light does not have to be installed simply because an intersection meets a particular warrant. It is important to look at the whole picture, especially how the signal would operate in the future. Weiner testified that "[t]here's many cases where the volumes are high and meet one of the warrants, but if you went out there and observed the traffic, it operates relatively well and if the accident history was...not in the range where you thought you needed a signal, we wouldn't put it in just based on the volume warrant" (Trial Transcript, Volume 2, Page 143).

Weiner further testified that it can take three months to a year or more to complete a traffic signal study because it takes time to obtain traffic counts, collect the accident data from DMV sources, analyze the data, make field trips and observe traffic at the intersection. After a traffic signal study is completed and DOT decides to install a traffic signal, it can take anywhere from 18 months to 3 years to complete. Weiner testified that in his experience, it would not have been possible to conduct a traffic signal study and, if warranted, install a traffic light from the date of August 25, 2000 (the date of the letter from the Village Attorney [Exhibit 34]) to October 22, 2000 (the date of the accident). He explained that traffic counts are not required for the installation of stop signs. However, in deciding whether to install a stop or yield sign, traffic volumes and accident records are considered.

Claimants' engineering expert, Professor Daniel W. Haines[1]
testified that he is familiar with the MUTCD. The witness opined to a reasonable degree of engineering certainty that a stop sign is not adequate at the intersection where the accident occurred and he believes that, going back to at least 1995, a traffic light should have been installed there. He stated that his opinion is based upon the guidelines set forth in the MUTCD and engineering judgment.
Professor Haines believes that the pre-1995 traffic counts and the letter from Assemblyman Gromack should have triggered a thorough study of the intersection. He believes that the study done by O'Shea should have taken into consideration the traffic counts on Route 202 and Gurnee Avenue, accident records, the geometry of the intersection, a pedestrian study and any unusual traffic situations.

The witness reviewed the traffic counts that were taken in 1992 for Route 202. These traffic counts indicate that over a three-day period there were over 500 vehicles per hour for 50 of the 71 hours recorded, which exceeds the standard for an artery set forth in the MUTCD § 271.3. He contends that the traffic volume on Route 202 was heavy enough to exceed the requirement of Warrant 1 (§ 271.3) in the MUTCD. He also asserts that Assemblyman Gromack's 1993 letter calling attention to the stop sign should have triggered a thorough study of the intersection.

The witness testified that prior to the date of the subject accident, the last traffic count was taken in July 1999 and these counts were within 50 feet of Gurnee Avenue. The vehicular counts indicate that of the 68 hours taken, 57 hours exceeded 500 vehicles, with some over a 1,000 vehicles. The witness stated that on August 26, 2002 he went to the subject intersection and took traffic counts by counting the vehicles as they passed. He took this count for a 20-minute period and extrapolated it to an hour by multiplying the number by three. Professor Haines' numbers for Route 202 projected over 700 vehicles per hour and about 300 vehicles per hour on Gurnee Avenue. The witness stated that traffic volume alone is not considered a basis upon which to install a traffic light. The other considerations are the number of accidents over a period of time at the intersection, the geometry of the intersection and the patten of traffic flow. Professor Haines observed that Gurnee Avenue intersects Route 202 at an acute angle very close to 45 degrees.

Haines further testified that the accident history at an intersection is significant and the MUTCD Warrant 6 (§271.8) states that five or more accidents at an intersection over a period of one year qualifies for the warrant as long as there is sufficient traffic volume. He reviewed the accident history of the intersection for the years 1996 through 1999 inclusive. He stated that in each of those years, there were at least five accidents. The witness concluded that based upon the traffic count, the accident history and the geometry of the intersection, a traffic light should have been installed.

Professor Haines believes to a reasonable degree of engineering certainty that the failure to have a traffic signal was the proximate cause of this accident. He opined that a traffic light would have prevented the accident because a light is "a much stronger signal" (than a stop sign) since it draws attention to itself. He stated that a traffic light leaves less judgment to a driver than a stop sign.

On cross-examination, the witness admitted that in a seven-year period there were only two requests from the public concerning the subject intersection (see Exhibit 32, Pages 20-21 [letter from Assemblyman Alexander Gromack dated November 24, 1993] and Exhibit 34, Pages 1-2 [letter from the Village Attorney to DOT dated August 25, 2000]).

Professor Haines agreed that in the 1993 letter, the Assemblyman asked DOT to look at the location of a utility pole located on Route 202 and Gurnee Avenue and the possibility of repositioning the stop sign. He admitted that there is no indication in the letter that the writer saw a need for a traffic light at this intersection. The witness stated that there are seven warrants that must be reviewed in a complete traffic signal study (MUTCD Part 271). He said that the traffic count numbers for Route 202 would not,
per se, trigger DOT to do a complete signal study. He stated that it would not have been a reasonable engineering process for DOT to extrapolate traffic volume numbers the way he had. He stated that when deciding what type of traffic control device to install, the engineer makes a basic assumption that the traffic control device will be obeyed.
Professor Haines testified that the MUTCD § 271.8 (Warrant 6) is met when all four items listed are satisfied. The first requirement is an "adequate trial of less restrictive remedies, with satisfactory observance and enforcement, has failed to reduce accident frequency" (Exhibit 1 [MUTCD § 271.8 (a) (1)]). The second requirement provides that "five or more reported accidents, of types susceptible of correction by a traffic control signal, have occurred within a 12-month period" (MUTCD § 271.8 (a) [2]). Professor Haines believes that all of the accidents he cited are susceptible to correction by a traffic control device. He admitted that traffic control signals cannot be expected to reduce rear-end collisions (which usually increase at signalization) (see MUTCD § 271.8 (c) (1) [I]). He agreed that the MUTCD states that traffic signals can be expected to reduce (1) substantially right-angle collisions or those involving conflicts between vehicles which approach on intersecting highways, (2) those involving straight-moving vehicles and crossing pedestrians, and (3) those involving straight-moving and left-turning vehicles approaching from opposite directions if a protected left-turn interval will be provided during the signal cycle for the left turn movement (MUTCD § 271.8 (c) [2]). He stated that DOT employees are required to use their engineering judgment on whether a signal is warranted or not. Professor Haines further opined that DOT employees can disregard the MUTCD if there is a conflict between their opinion and the MUTCD.

The witness stated that under the definitions in Warrant 6 (MUTCD § 271.8) there was only one accident in 1997, one in 1998 and one in 1999 that were susceptible to correction by a traffic control device. He testified that under the MUTCD's definition of accidents susceptible to correction, there is no year that meets the threshold of five or more accidents (see MUTCD § 271.8 (a) [2]).

On re-direct examination, Professor Haines testified that the MUTCD § 271.8 (c) does not preclude rear-end collisions from consideration in accident analysis, but it does indicate that rear-end collisions are usually increased, rather than decreased, by the installation of a traffic signal.

Claimant, Geraldo Rosario, was unavailable to testify at trial. The transcript of his examination before trial was received into evidence as Exhibit 48. At his deposition, Mr. Rosario testified that he does not recall the accident. Claimants' expert neurologist, Dr. Glenn Seliger[2]
, testified that Mr. Rosario suffered a closed-head injury as a result of trauma sustained in the accident. He explained that the injury damaged the portion of Mr. Rosario's brain that controls memory.
Based upon Dr. Seliger's testimony and Mr. Rosario's medical records (Exhibit 47), the Court concludes that Mr. Rosario cannot recall any details of the accident. Claimants assert that Mr. Rosario's amnesia and Mrs. Rosario's lack of memory of the accident entitles them to a diminished capacity inference regarding the happening of the accident (see
Noseworthy v City of New York, 298 NY 76). A claimant who suffers amnesia as a result of defendant's acts is not held to as high a degree of proof in establishing the right to recover for injury as is a claimant who can describe the events under the Noseworthy Doctrine (Sawyer v Dreis & Krum Mfg. Co., 67 NY2d 328; Schechter v Klanfer, 28 NY2d 228). In the instant matter, the Court credits both Mr. and Mrs. Rosario's loss of memory as true. However, based upon the fact that there were witnesses who testified - Quinn, Dellolio and Lee[3] - this was not an unwitnessed accident. Therefore, the Noseworthy Doctrine is not applicable (Horne v Metropolitan Tr. Auth., 82 AD2d 909; Abbott v St. Luke's Mem. Hosp. Center, 38 AD2d 176) since direct evidence is available.
Henry Lee testified pursuant to a subpoena issued by defense counsel. Mr. Lee stated he is very familiar with the subject intersection. On October 22, 2000, Lee was at the subject intersection and witnessed the accident. At the time of the accident, Lee was driving up Gurnee Avenue with his wife and was about to turn west on Route 202. Prior to making a right onto Route 202, Lee stopped, looked to his left and observed a pickup truck run the stop sign at an excessive rate of speed. Lee stated that after the pickup truck hit claimants' car, it proceeded on for a couple hundred feet, stopped and two people left the truck. The witness stated that the impact occurred in the westbound lane of Route 202 as claimants' car was in the process of making its turn. A split second elapsed from the time Lee first saw the pickup truck and the time of the impact.

The State's engineering expert, Nicholas Pucino[4]
, testified that he inspected the intersection on May 19, 2003 and made observations of the conditions of the intersection, including evaluating sight distance, observing the location of the traffic control devise, the sight line and the traffic operation and patterns. He stated that he did not take traffic counts because he had traffic counts available from DOT. He performed a detailed analysis of the accident history and the DOT traffic counts, examining them to determine if they met any of the seven traffic signal warrants in the MUTCD Part 271.
Pucino explained that until 1988 the only traffic control device at the intersection was a yield sign coming out of Gurnee Avenue. In 1988, the stop ahead sign and the stop sign were installed on the westbound approach of Route 202 and the yield sign was removed. Pucino explained that before DOT can replace a yield sign with a stop sign, DOT must complete a study that takes into consideration traffic operation, traffic volume, sight distance and how the intersection operates and functions. There is no specific volume based warrant in the MUTCD for a stop sign or yield sign.

Pucino reviewed DOT's 1993/94 study (Exhibit 32). He stated that the purpose of the study was to determine whether or not the location of the stop sign and the stop bar was the optimum site to get "maximum observance by motorists as well as providing ample sight distance" (Trial Transcript, Volume 3, Page 148). He stated DOT made a decision that the stop sign and stop line are in the optimum position and motorists pulling up to the stop bar have adequate sight distance. He testified that to do the type of study done in Exhibit 32, DOT would not have to get actual traffic counts because one looks more at the activity of the intersection than the numbers. There is no warrant in the MUTCD requiring that the installation of a stop sign be based on a minimum number of cars per hour. The witness opined that the failure to do an accident history analysis in the 1993/94 study is not indicative of an inadequate study because the purpose of the study was to optimize the existing devices. It was not a "full blown" analysis of the intersection.

Pucino explained that several criteria trigger a full traffic signal study. The primary trigger is the identification of the location as a high-accident location and there are mechanisms within DOT to do that. Another trigger is repeated complaints from the traveling public or public officials that a certain intersection needs a traffic signal. A third trigger is feedback from State or local police.

The witness reviewed the 1993/94 DOT study and stated that the DOT investigator who conducted the study observed the flow of traffic and a number of vehicles to see how drivers behave and perceive the traffic control devices and the stop sign at the intersection. Pucino testified that the DOT investigator (O'Shea) concluded that most drivers who stopped at the stop line appeared to have sufficient sight distance and could continue on their way with certainty and without the need for a second look to verify if traffic was approaching on Gurnee Avenue. Pucino concluded that the 1993/94 study of the stop sign was an adequate study.

Pucino also opined that the intersection did not require a traffic control signal. In reaching his conclusion, Pucino reviewed the prior accident history, the traffic counts taken in 2002 and the various traffic movements at the intersection. He stated that the 2002 traffic volumes may have met the traffic volume warrant for a signal (MUTCD § 271.3). The witness stated that Exhibit M is the traffic count he reviewed to determine whether MUTCD § 271.3 (traffic volume count) was met. These counts look at the peak conditions and are based on the number of turning movements and through movements in 15-minute intervals for a total of four hours.

Pucino testified that in order to determine whether the traffic counts have been met, one needs to look at the intersection counts and the number of vehicles turning in and out of the intersection. He said that extrapolation of 20-minute traffic counts to determine an eight hour count, as claimants' expert did, would be unreliable. He stated that an accurate traffic count usually requires ten hours to find enough hours that might meet the criteria.

Pucino stated that it would be bad practice to install traffic signals where warrants are not met. The public would not benefit because it does not always make the condition safer. In his experience, the coverage counts set forth in Exhibit 36 would not trigger a traffic signal study for any intersection because it would be a waste of effort. The witness testified that the MUTCD does not recommend a traffic control signal be installed at every intersection that meets one of the warrants. The manual sets forth the minimum conditions under which a signal
may be justified. He said there are other considerations and many intersections have volumes which exceed the warrant but where a signal would not be appropriate for other reasons.
Pucino testified that he reviewed the police accident reports for the three-year period October 1, 1996 to September 30, 1999. In his opinion, over that three-year period, there were only three angle accidents that could qualify as susceptible to correction with a traffic signal. He found a fair number of rear-end accidents which are not considered correctable. Pucino opined that the accident warrant (MUTCD § 271.8) was not met, or even approached, for any time in the three-year period he reviewed. In addition, Pucino stated that with a traffic signal at the subject intersection, traffic would be stopped eastbound on Route 202 and on Gurnee Avenue and there would be more rear-end accidents at both locations. He testified that the MUTCD makes it clear that traffic signals do not reduce rear-end accidents. Further, rear-end accidents at stop signs are minor accidents, whereas rear-end accidents at traffic signals are generally more serious. He said this is a reason to be careful about including rear-end accidents into the warrant analysis.

Based on his review of the accident history at the subject intersection, Pucino's opinion is that while the intersection may meet the volume warrant (MUTCD § 271.3), it clearly does not meet the accident warrant (MUTCD § 271.8). He also opined that the geometry of the intersection is a standard type of "Y" intersection, which does not make the intersection any more in need of a traffic signal than any other intersection.

It is Pucino's opinion that the traffic control devices in place at the subject intersection - the stop-ahead sign, the stop sign and the stop bar - meet the requirements of the MUTCD and are all appropriate devices, properly situated, clearly visible and are "optimizing the operation of that intersection" (Trial Transcript, Volume 3, Page 167). He stated that because there have not been numerous serious angle accidents or serious injuries, the accident history indicates that the stop-ahead sign, the stop sign and the stop bar are adequate for the safe operation of the intersection.

Pucino opined to a reasonable degree of engineering certainty that on October 22, 2000 no deficiencies in the roadway or the traffic control devices in place contributed to this accident. He stated that the primary contributing factor was James Quinn's action. If it is true that Mr. Rosario did not activate his left turn signal, his behavior also contributed to the accident. The witness also opined to a reasonable degree of engineering certainty that this intersection did not require a traffic light and the State's decision to install a stop sign as the traffic control device was reasonable.

On cross-examination, Pucino explained that he would want to know from a traffic capacity standpoint how a traffic light at Route 202 and Gurnee Avenue would affect the Route 9W traffic signal, but the accident history at Route 9W would not have much of an impact on his analysis. The witness stated that the stop line is located at a point where the sight distance is best, but the stop sign is not located in the maximum position for the motorist to view oncoming traffic. He testified that the MUTCD states that a stop sign shall be placed on the right side of the roadway as near as practicable to the point where the vehicles are to stop. He admitted that this is not the case at the subject intersection. He stated that he does not believe the sign could be moved any closer to the stop line.

Pucino stated that the State did not take a count of the cross-intersection roads at Route 202 and Gurnee Avenue until 2002. At that time, the volume probably exceeded the warrant. He said that the State clearly considered the request from Assemblyman Gromack to reposition the stop sign and made a judgment that moving the stop sign was not advantageous. He also said that there is no indication how many complaints Assemblyman Gromack received about the location of the stop sign. He said that he does not think the subject intersection is hazardous or dangerous. Pucino agreed that there could be a difference of opinion between experts regarding whether the intersection is hazardous. The witness testified that between the August 25, 2000 letter from the Village attorney and the day of the accident, October 22, 2000, there would not have been enough time to complete a traffic signal study. Moreover, there would not be enough time to award a contract to get the signal installed. He stated that in his experience, to complete a traffic signal study, award a contract and install a traffic signal would require 12 to 18 months.

It is well-settled that the State of New York has an absolute, nondelegable duty to maintain its roadways in a reasonably safe condition and that breach of this duty will result in liability to the State for injuries therefrom (
Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). Inherent in this duty is the obligation to construct, design and maintain roadways in a reasonably safe condition taking into account such factors as existing traffic conditions, terrain and pedestrians (Gutelle v City of New York, 55 NY2d 794). The State's duty extends to the design, installation and maintenance of traffic control devices at intersections of the roadways under its control (Wood v State of New York, 112 AD2d 612, 614).
However, the mere occurrence of an accident on a State roadway does not confer liability since this duty does not have the effect of making the State an insurer of the safety of its roadways (
Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Claimants have the burden of establishing that the State was negligent and that such negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020). Additionally, before liability will attach, the State must have had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (Rinaldi v State of New York, 49 AD2d 361).
Furthermore, in the field of traffic design engineering, the defendant is accorded a qualified immunity from liability arising out of a highway planning decision (see
Friedman v State of New York, supra; Weiss v Fote, supra). Under this doctrine of qualified immunity, the defendant can only be found liable for injuries "arising out of the operation of a duly executed highway safety plan," when there is "proof that the plan either was evolved without adequate study or lacked reasonable basis" (Weiss v Fote, supra, p 589; see Friedman v State of New York, supra; Redcross v State of New York, 241 AD2d 787, lv den 91 NY2d 801). Claimants contend that this qualified immunity is not available because the State's plan evolved without adequate study.
Claimants allege that the State was negligent in failing to do an adequate study prior to the date of the accident which should have resulted in the installation of a traffic signal to replace the stop sign. Claimants allege that despite actual knowledge dating back to 1993, the State never performed traffic volume studies, accident analyses or a detailed engineering diagram until after the accident.

Claimants' expert, Mr. Haines, believes that the 1993 letter from Assemblyman Gromack (Exhibit 32, Page 20) should have triggered a thorough study of the subject intersection by DOT. He stated that the accident history at the intersection is significant and the MUTCD § 271.8 (Warrant 6) states that five or more accidents at an intersection over a one-year period qualifies for the warrant as long as there is a sufficient volume of traffic. He stated that based upon his review of the accident reports (Exhibit 34) at the intersection, there were six accidents in 1997 and seven accidents in 1998, thus qualifying the intersection for Warrant 6 (MUTCD § 271.8). The witness did state that the traffic volume on Route 202 was not sufficient for DOT to do a complete traffic signal study. Haines admitted that in 1997, of the six accidents reported, only one was a left-turn accident, similar to claimants', which according to the MUTCD would be correctable by a traffic light. Of the seven accidents in 1997, one accident definitely, and one possibly, would be correctable by a traffic light. He also stated there were four accidents at the intersection in 1999 and only one of those would be correctable by a traffic light.

The State's expert, Pucino, testified that in his review of the accident reports for the three-year period from October 1, 1996 to September 30, 1999, he found only three accidents which would be considered correctable by a traffic signal. Thus, based upon the evidence adduced at trial, the Court finds that claimants have failed to establish by a preponderance of the credible evidence that MUTCD § 271.8 (a) [2] (see Court Exhibit 1) has been met in that the evidence did not establish that five or more correctable accidents occurred in a twelve-month period. Since the four subparts of MUTCD § 271.8 (a) are conjunctive, the Court finds that claimants failed to establish by a preponderance of the credible evidence that the warrant was satisfied and that a traffic signal should have been considered or installed.

The Court further finds that claimants failed to establish by a preponderance of the credible evidence that the State failed to perform an adequate study regarding the stop sign. Both Weiner and Pucino testified that the State performed a field study following receipt of Assemblyman Gromack's letter. The letter from Assemblyman Gromack requested DOT to (1) look into removing a utility pole and (2) relocate the stop sign. The evidence established that the utility pole was removed. The evidence also established that the study concluded the stop sign could not be relocated because of the physical layout of the intersection. Both Weiner and Pucino testified that the stop line, placed after the stop sign, was at a location where drivers had maximum sight distance.

Pucino disagreed with Haines' conclusion that the 1993/94 study was not adequate. In contrast, Pucino concluded that the study was adequate for its purpose. He also opined that a traffic signal study was not required. Weiner concurred with Pucino stating that the 1993/94 study did not warrant a full traffic signal study. "[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 (
Weiss v Fote, 7 NY2d 579, supra at 588). Merely because claimants' expert opined that a traffic signal would improve the intersection does not establish that defendant breached its duty (see Schwartz v New York State Thruway Auth., 61 NY2d 955). In the absence of either: (1) a violation of a regulatory mandate; or (2) a clear abuse of discretion, DOT is entitled to the benefit of qualified immunity (Friedman v State of New York, 67 NY2d 271, supra; Weiss v Fote, supra).
From the evidence presented at trial, the Court finds that the sole proximate cause of the accident was Mr. Quinn's failure to exercise reasonable care and his aggressive driving in running the stop sign while looking to his right and not paying attention to traffic, which had the right-of-way, turning in front of him.

The claim is hereby dismissed. All motions made a trial, upon which the Court reserved decision and have not been ruled on herein, are now denied. The Chief Clerk is directed to enter judgment accordingly.

November 12, 2004
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1] The educational and professional background of the witness can be found in the Trial Transcript, Volume 2, Pages 157-164.
[2] The educational and professional background of this witness can be found in the Trial Transcript, Volume 2, Pages 8-10.
[3] Mr. Lee was called as a witness by the defendant and his testimony will be discussed infra.
[4] The education and professional background of the witness can be found in the Trial Transcript, Volume 3, Pages 130-136 and in his curriculum vitae (Court Exhibit 2).