New York State Court of Claims

New York State Court of Claims

LAFONTAINE v. THE STATE OF NEW YORK , #2004-030-016, Claim No. 101308


Synopsis



Case Information

UID:
2004-030-016
Claimant(s):
ROGER LAFONTAINE AS ADMINISTRATOR OF THE ESTATE OF MICHELLE LAFONTAINE, DECEASED
Claimant short name:
LAFONTAINE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101308
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
BARTLETT, PONTIFF, STEWARD & RHODES, P.C. BY: MARK E. CERASANO, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL.
Third-party defendant's attorney:

Signature date:
June 21, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Roger Lafontaine, Claimant, alleges in Claim Number 101308 that on November 9, 1997 Claimant's decedent, Michelle Lafontaine, was killed in an automobile accident as a result of the Defendant's negligence. Decedent was a passenger in a 1995 two-door Honda Civic automobile driven by Thomas J. Powers, which was struck in the eastbound lane of Interstate 84 (I-84) by a tractor-trailer driven by Curtis Meyers. Trial of this bifurcated action was held on April 21, 22 and 23, 2003. This decision relates only to the issue of liability.
FINDINGS OF FACT
On Saturday, November 8, 1997, Michelle Lafontaine and her fiancé, Thomas J. Powers, began the first leg of a weekend trip from Glens Falls, New York, to attend a Sunday afternoon birthday celebration for Michelle's grandmother in Durham, Connecticut[1]. The party was to begin approximately mid-day on Sunday.

Mr. Powers was driving Michelle's vehicle, a 1995 Honda Civic sedan. It was a wet morning. Rain was falling at the start of their trip and was falling heavily when the accident occurred. The evening of November 8, 1997 was spent at the home of friends in Coxsackie, New York. On Sunday morning November 9, 1997 they departed from Coxsackie and resumed their trip southward on the New York State Thruway, intending to then take I-84 eastward into Connecticut.

There is no direct highway interchange between the New York State Thruway and I-84. Thruway travelers wishing to access I-84 exit the Thruway at the Exit 17 toll barrier in Newburgh, New York, travel a short distance northward on State Route 300 and enter I-84 at its Interchange 7.

Although not overly familiar with the area, Mr. Powers had reviewed maps and had some knowledge of the highway interchange. He had no difficulty leaving the Thruway through the toll barrier or in following the directional signs to the entrance for the eastbound lanes of I-84. It was raining heavily and persistently as the couple drove from the Thruway toll plaza onto and along Route 300 northbound to the entrance ramp for the eastbound lanes of I-84. The vehicle's headlights were on and the windshield wipers working to maintain what Mr. Powers referred to as "adequate" visibility.

As of November 9, 1997 the posted speed limit for Route 300 North was 45 mph, and the posted speed limit for I-84 eastbound was 55 mph. There is a ramp speed sign on Route 300 prior to the entrance ramp indicating a speed of 25 mph. Approximately halfway down Ramp J - the ramp leading from Route 300 North to I-84 East - there is a right-curve sign with an advisory speed of 25 mph on the right side of the ramp, and near the bottom of the ramp there were four chevrons on the left side of the ramp pointing to the right.

Ramp J is 1600 feet long. It has three curves as it descends to the same elevation as I-84, and becomes parallel with the travel lanes. After the final ramp-approach curve, that has a radius of 477 feet, an acceleration lane begins and tapers into the rightmost through-lane of I-84 eastbound. On the right-hand side of the acceleration lane there is a shoulder, a ditch and a rock outcropping.

Mr. Powers indicated he was traveling at a rate of between 10 and 20 mph when he entered the ramp from Route 300 North. Stating that he anticipated the need to merge with the flow of traffic from the interstate, he immediately began to accelerate once he was on the ramp. He did not recall seeing any recommended ramp-speed sign, curve sign, advisory speed sign or chevrons marking the final curve of the ramp. At the last curve of the ramp, as the car was turning eastward in the acceleration lane to travel parallel to the oncoming traffic, the rear end of the vehicle slid to the left, pointing the car to the right, toward the southerly shoulder of the acceleration lane. In order to correct the slide, Mr. Powers moved the steering wheel. The car was thrown into a counterclockwise rotation, entered the interstate's travel lanes and was struck by an eastbound tractor-trailer. Neither Mr. Powers nor Ms. Lafontaine was wearing a seatbelt, though the car was equipped with functioning, three-point harness seatbelts.

The actual impact occurred in the passing lane of the highway. The truck, driven by Curtis E. Meyers,[2] had moved to the left to avoid hitting the Honda, but was unsuccessful. Its right bumper struck near the front passenger door area of the car. After the impact, the car continued to move and the passenger door opened. Mr. Meyers described the car as "doing a donut . . . in front of . . . [him]." [Exhibit 44, Page 11]. When the car came to a stop Ms.

Lafontaine did not make any sounds or exhibit any signs of consciousness that Mr. Powers observed, although he did see that she was breathing. [Exhibit 95, Page 15]. It was noted that she was apparently dead in the accident report completed by Trooper Robert Russell who had responded to the scene. [Exhibit 1].

Traffic citations for speed unreasonable under the circumstances and failure to use available seatbelt restraint were issued to Mr. Powers, but resolved by a guilty plea to a lesser violation. [Exhibits 1 and I]. No citation was issued to Mr. Meyers.

Alan T. Gonseth, a professional engineer[3] called as Claimant's expert, testified at length based upon his review of transcripts of the testimony of Mr. Powers and Trooper Russell, photographs of the scene, the accident reconstruction report of Trooper Michael Voss [see Exhibit 2], the report of Heather Guay, the 1968 "as-built" plan of the interstate [Exhibits 87, 88, 89], various contract plans relating to the subsequent reconstruction of Route 300 and the interstate, changes or replacement of signing on the interstate, a proposal for the reconstruction and reconfiguration of the Thruway/State Route 300/I-84 interchange [Exhibit 43] and reports of accidents occurring at or near the location of the ramp for a 15-year period. He was the only witness to testify on Claimant's direct case. In his opinion, although the design and construction of the ramp comported with the accepted engineering standards at the time when the interstate highway was constructed, over time, given the progressive increase in the number and speed of vehicles using the ramp, its basic geometric design features would tend to "encourage" motorists to drive the ramp at too great a speed.

He testified that in order to slip into a gap in the traffic stream generally, as one would when entering a highway, the driver has to be traveling at the same speed as the traffic stream of the highway. [T-109]. Although the posted speed for I-84 was 55 mph, the so-called "85th percentile speed" - or the speed at which 85% of the drivers traveled - was actually 65 mph. Similarly, the posted speed along the ramp was 25 mph, yet 85% of the drivers would travel at 49 mph. [T-314-315]. As the ramp neared I-84, in addition to curving left, then straight, then right, there was a steep downgrade of 4.5 percent leading into the right-hand curve just before the end of the ramp. The terminal curve to the right has a 477 foot radius.[4] [T-73].

The whole idea behind an acceleration lane, he said, is to allow the driver the opportunity to accelerate and move smoothly into the ongoing traffic. Because of the downgrade and the high rate of speed the main traffic was traveling at, a driver on the ramp would tend to travel faster, he opined, putting a lot of side pressure on a vehicle as it approaches the steep downgrade and hits the tight curve just before entry onto I-84. Vehicles would tend to slip to the left side because of the right-hand curve into the oncoming traffic.

Mr. Gonseth described the surface of the pavement as asphaltic cement. He defined the term coefficient of friction as the action between the tires and the road surface that allows a driver to brake, accelerate, sideslip or yaw. It varies depending on the type of road surface, so that the greater the coefficient of friction, the better it allows tires to grip the surface. The co-efficient of friction for Portland cement as a road surface is higher than the coefficient of friction for asphalt, for example. The presence of water lowers the coefficient of friction for asphalt road surfaces. He opined that with dry pavement, the range of between 0.5 and 0.6 is accepted in the traffic engineering profession for asphalt. The newer the asphalt, the higher the number. With wet pavement, the coefficient of friction would be lower than 0.6 on asphalt.

Trooper Robert Russell, whose Traffic Hazard Report dated September 11, 1997 was reviewed by Mr. Gonseth and admitted in evidence, notes that people tended to lose control of their vehicles as they entered I-84 from this ramp, and would either cross two lanes of traffic were they to slide to the left, or spin out into the ditch on the right shoulder near a rock outcropping. [See Exhibit 42]. Because they are generally traveling too fast on the ramp, he said there is a tendency to oversteer at the intersection. Trooper Russell suggested that yellow caution lights on the curve and/or a Jersey barrier[5] at the intersection of the ramp and the road might cause drivers to slow down, or at least prevent their entry onto the eastbound lanes should the car lose control. In his report Trooper Russell recommended that the Jersey barrier and the yellow caution lights be installed at the last, tight curve just before the ramp joins the acceleration portion.

Mr. Gonseth opined that exactly what Trooper Russell suggested could occur at that ramp happened when Mr. Powers was driving on November 9, 1997. Mr. Powers steered hard to the right,[6] and when he began spinning, he overcorrected by turning to his left, and ended up going into a counterclockwise spin and being sent into the two eastbound lanes of I-84. [T - 119; Exhibit 1].

Mr. Gonseth reviewed a chart [Exhibit 103] taken from a project proposal dated, initially, September, 1993 and expanded in August 1995 [Exhibits 43-1, 43-2] that was prepared by a consulting engineering firm for the New York State Thruway Authority (hereafter Thruway Authority) to suggest ways of providing a direct connection between I-84 and I-87. He noted that with reference to this interchange, there was an accident rate of 4.72 accidents per million vehicle miles. [T-128]. From the same chart, he identified the State average for accidents at interchange connections to interstate highways as 1.28 accidents per million vehicle miles, and the rate of accidents for mainline sections without interchanges as 1.01 accidents per million vehicle miles. He found the difference between the accident rate at interchanges statewide, and the accident rate at this interchange a "very significant difference." [T-129].

Using the "key" [Exhibit 98] utilized by the Department of Motor Vehicles and police agencies to interpret the contents of an MV-104A accident report prepared in connection with any accidents - including the present one - Mr. Gonseth also reviewed other accident reports and was able to testify as to the roadway surface and weather conditions at the time.[7] The similarities found among the 19 accident reports that predate the subject accident include either wet roadway pavement or excessive speed, or both, vehicles losing control at the final tight curve on the ramp before the ramp reached the acceleration lane, and spinning either into the rock ditch to the right shoulder or into the active lanes of eastbound I-84. [T-204]. Mr. Gonseth opined within a reasonable degree of engineering certainty that the design and construction of the ramp with a relatively straight steep downgrade into a tight curve at the bottom of the ramp encouraged people to travel too fast on the ramp, resulting in skidding and spinning either into the right-hand ditch or through overcorrection into the active eastbound lanes. [T-205]. All the accident reports between January, 1987 and November, 1997 that he indicated were similar contained one of those scenarios and involved either single vehicle accidents or impact from through-vehicles on the main line of I-84. [See generally Exhibits 47, 49, 50, 51,108, 109,110, 111, 112, 113, 114, 118, 122, 125, 126, 127, 128, 130].[8] Additionally, accident reports describing accidents occurring after the subject accident [See Exhibits 57, 58, 59, 62, 64, 65, 68] having similar conditions were considered as well. Although there was some colloquy concerning whether additional chevrons had been placed at the end of the curve since the subject accident, and/or an additional 25-mile-per-hour speed limit sign, Mr. Gonseth opined that the design and construction flaws of Ramp J would still be there, regardless of signage.

On cross-examination Mr. Gonseth agreed that Ramp J was built in or about 1965 in accordance with what he presumed were the engineering standards of the day, and pursuant to highway plans. [Exhibits 89, 90, M; T-302-306; 311]. To his knowledge no physical modifications were made in intervening years. [T-303]. He stated that the design speed for the ramp was 29 miles per hour, and reiterated that the terminal curve on the ramp was at a radius of 477 feet and had a superelevation of 0.6. [T-308-309; 311; see Exhibit 103, Table C-4]. Based upon these factors, Mr. Gonseth opined that a maximum speed for traveling on that curve on wet pavement would be up to 55 miles per hour. [T-313]. A driver ". . . would start to feel discomfort at a much lower speed . . . start to feel a shifting in your body weight . . . But you would be able to negotiate right up to about 55, and then you would go into a yaw, depending upon the conditions of your tires and whatever." [Id]. He hypothesized that decedent's vehicle was traveling at about 55 miles per hour as it rounded the curve. [Id]. It is noted that Mr. Gonseth later indicated that the actual design speed for the terminal curb were he to select it would be 50 miles per hour, and that when an entire ramp is involved it is the lowest design speed for all the curves that is used, here, 29 miles per hour. [T-337]. He concurred that Mr. Powers disregarded a sign posting a 25-mile-per-hour speed on the ramp before entering the ramp, and the additional 25-mile-per-hour speed sign on the ramp itself, but said that ". . . most drivers, if they are going to enter a high speed interstate highway, attempt to get up to the mainline speed prior to trying to merge into a gap . . . [in] a high volume interstate highway . . . [where] gaps are infrequent." [T-316-317].

In terms of this compulsion to speed, Mr. Gonseth viewed a photograph [Exhibit 96] taken approximately midway on the ramp looking toward I-84, showing the ramp approximately 800 feet before it reaches the acceleration lane, at the point at which Mr. Powers estimates he accelerated. [Id]. He then admitted that a motorist at that location would not see a gap in traffic to fit into. [Id]. At the actual point where the ramp and the acceleration lane meet, a driver would have 770 feet to accelerate to a speed that would allow him to get on the highway. Although Mr. Gonseth could not calculate whether a driver could accelerate from the posted speed limit of 25 miles per hour to 55 miles per hour along the 770 feet of the acceleration ramp, he did say that at 49 miles per hour - a speed at which a driver would not lose control on wet pavement - a driver could accelerate to highway speed. [T-318-319].

Mr. Gonseth again reviewed the project proposal completed by the consulting engineers for the Thruway Authority in 1995, whose stated objectives, among others, were to ". . . provide efficient, (sic) connector roadways for major traffic movements between I-84 and I-87, . . . [reducing] traffic congestion, . . . provid[ing] an interchange system that will reduce the accident potential in the interchange area through direct interchange improvements . . . "[Exhibit 43-1, Page I-2] [T-233]. The primary thrust of the report is to facilitate the interchange of traffic between I-87 and I-84. [T-299-300]. Three proposals are contained therein, all impacting Ramp J, as well as other ramps, and all either eliminating Ramp J or altering its configuration to increase the radius of the terminal curve, or straighten it entirely.

As an interim measure between implementing any of these proposals, Mr. Gonseth opined that Trooper Russell's suggestion concerning adding a Jersey barrier and caution lights was a good one. The barrier ". . . would prevent people from going into the I-84 eastbound lanes where they would be impacted by mainline traffic going at a high rate of speed." [T-239].

On cross-examination Mr. Gonseth conceded that it was not known exactly where Mr. Powers' vehicle left the acceleration lane since no measurements were given in the State Police Investigation Report [see Exhibit 2], but he nonetheless opined that a Jersey barrier would have prevented this accident. [T-240-241]. He also could not say exactly where the Jersey barrier would best be placed but noted that the concrete barrier would be between the acceleration lane and the travel lane, commencing at some point "[d]own around the curve and along the beginning of the acceleration lane for some distance . . ." to be determined after site and engineering study.

Viewing a photograph [see Exhibit 76] depicting the eastbound travel lane, the shoulder next to the travel lane, the acceleration lane as it connects to the travel lane, and the shoulder adjacent to the acceleration lane, Mr. Gonseth conceded that placing a Jersey barrier would allow eastbound traffic to stop in a shoulder lane before the connecting point, and beyond the Jersey barrier as well, but would not allow access across the acceleration lane to the shoulder at its side for whatever distance the barrier was in place. [T-243]. More importantly, he conceded that a Jersey barrier would not prevent vehicles from spinning out on the pavement of the curve, and while it would redirect a car on impact with it into the acceleration lane, that lane would be narrower by 2½ feet because of the width of the barrier itself. [T-247]. The acceleration lane is 12 feet wide. Mr. Gonseth admitted that reduction in its width to 9½ feet would not comport with good and accepted engineering standards for a highway. [T-248]. He did not measure the shoulder to the right of the acceleration lane. He noted that rather than having a too narrow acceleration lane it would be likely that space would be taken from the rightmost shoulder, and that the shoulder lane would in turn need to be widened so it was not too narrow. As a result, the road would be closer to the rock abutment on the right for the length of any barrier. [T-251-252]. Additionally, by adjusting these lanes a curve would have been introduced to the acceleration lane, also against good and accepted engineering practices. [T-252]. When reminded of the traffic history involving impact with the rock abutment, Mr. Gonseth indicated that perhaps another Jersey barrier would be placed on the rightmost side of the acceleration lane. He conceded - somewhat - that a 36-inch-high barrier on either side of the acceleration lane might cause visibility problems for motorists both in the travel lanes and in the acceleration lanes. In other words, the interim measure of one or two Jersey barriers would not necessarily be the reasonable course and could create other traffic issues, including the problem of a fixed object next to a high speed road in contravention of engineering principles. [T-351-352]. Moreover, although it might contain the vehicle on the ramp by redirection, it would not prevent it from losing control. [T-354].

Mr. Gonseth agreed that 11,292 vehicles use the ramp daily. [T-265]. His conclusion that this was nonetheless a "dangerous location" was explored on cross-examination. [T-284]. As noted earlier, he found significant the difference between the statewide average accident rate for mainline sections of the highway with interchanges of 1.28 accidents per million vehicle miles, and the accident rate on the subject ramp - after elimination of accidents not occurring under the same or similar circumstances as the subject accident - of 3.2 accidents per million vehicle miles. [T-285-288; see Exhibit 43-1]. When pressed, Mr. Gonseth conceded that the accident rates given by the State in its study were all based upon sections of highway with or without interchanges, versus actual ramps. [T-296].

When the actual accident reports Mr. Gonseth relied on were examined, he admitted that if consideration were limited to those substantially similar reported accidents occurring before the State transferred jurisdiction over the interstate highway in August, 1992, to the Thruway Authority [see Exhibit H], that history did not give reasonable notice of similar accidents recurring on the ramp with such frequency as to warrant consideration of a need to study and possibly improve its safety. [T-350; 381 See Exhibits 108,109,110,111,112,113]. Indeed, there were only two accidents in 1991 [Exhibits 108, 109]; and four in 1992. [Exhibits 110,111,112, 113]. Mr. Gonseth nonetheless reiterated that while the design of the ramp was not defective when it was first constructed, sometime in the interim before Claimant's decedent's accident the State should have done something to modify the ramp. He stated, "[a]s the operating speed increased and as the accident rate increased on that particular ramp, . . .it should have been known by the appropriate authorities that modification should have been made." [T-372].

In terms of accident reports admitted in evidence regarding accidents occurring after August, 1992, it is noted that on October 21,1992 there was an accident at the ramp involving unsafe speed where the merging vehicle struck the embankment [Exhibit 114]; there was one accident in December, 1993 [Exhibit 118]; there were no accidents in 1994; there were two in 1995, in May and November, respectively [Exhibits 122 and 125]; there were four in 1996 [Exhibits 47, 126,127, 128]; and four in 1997 [Exhibits 49, 50, 51,130].

Halsey Peter Gustafson, the Director of Traffic Engineering for the Thruway Authority since January, 1987, was called as a witness by the Defendant. He testified that after a recommendation by field personnel after a serious accident occurring in November, 1995, and review of the other accident history of Ramp J, he determined in July, 1996 to place 4 chevrons at the terminal curve of the ramp. [T-421]. At the time it was not deemed necessary to propose that any capital improvement be required on the ramp. [T-422]. In order to initiate a capital project, that is, to do more than place additional signs at a particular location as he did, more would be required than the accident history that existed in 1996. [T-423]. Had there been an identified problem, his department would contact the New York State Department of Transportation (hereafter DOT) and would ask that they initiate a capital project.

It was his understanding that since 1992 the Thruway Authority has had the responsibility of identifying problem locales on I-84 in need of capital improvement. Prior to the date of the accident, the witness had not notified New York State of the need for a capital improvement at this location. [T-424].

On cross-examination however, Mr. Gustafson stated he was aware of the project proposal created in August, 1995, proposing a connector between I-87 and I-84 [ Exhibits 43-1 and 43-2], and agreed that it was a large capital project. [T-425-426]. He also noted it was to be shared between the DOT and the Thruway Authority. He could not recall if there had been other fatal accidents at the ramp location between 1992 and 1997 other than the one in November, 1995 [see Exhibit 125], and reconfirmed that in 1996 when he directed that additional chevrons be placed along Ramp J he did not consider the ramp a severe problem. [T-426]. He also stated that the DOT maintains track records of accident reports ". . . Statewide, every road," [T-427] but could not say what the DOT did with records concerning "Thruway jurisdiction roads" such as I-84, including whether the DOT analyzed any records. [T-428].

Heather Ann Garrison, an Assistant Traffic Supervisor for the Thruway Authority in November, 1997, also testified. She was responsible for the New York Division extending along I-87 from the Bronx to New Paltz; I-84 from Connecticut to Pennsylvania; I-287 in Westchester; and I-95 from New York City to Connecticut. Those responsibilities included responding to ". . . any large-scale incident that may negatively impact traffic, . . . review[ing] safety issues items, oversee[ing] construction work zones, traffic control plans, towing services on the Thruway [and] tandem operations." [T-431]. When there were "serious" automobile accidents on the highway her department would ". . . do an overall investigation and document evidence and [prepare a] report . . . " [Id].

She responded to the accident scene on November 9, 1997, observed the tractor-trailer in the median as well as decedent's black Honda Civic off to the right in the acceleration lane and took numerous photographs. [Exhibits 3-38]. She walked the area with the New York State Police "reconstructionist", Michael Voss, took measurements, and prepared a written report. [Exhibit N].[9] According to the report and her testimony, after her investigation, she concluded that the probable cause of the accident was unsafe speed for the conditions. [T-440].

Nicholas Pucino, Defendant's engineering expert,[10] also testified. He indicated that speeds indicated on signs are considered advisory. The recommended speed as calculated by using the Uniform Manual of Traffic Control Devices given the degree of slope on the super-elevated portion on the terminal curve of Ramp J was between 37 miles per hour based upon .04 degrees of banking, or slightly higher based upon .05 degrees of banking. Any advisory speed would generally be rounded down to the nearest 5 miles per hour. [T-488-489]. He opined that the design speed for the terminal curve was 35 miles per hour, and was safely traversable under wet pavement conditions at between 40 and 45 miles per hour. [T-496-497]. "Critical speed" - another term used by Mr. Pucino - was defined as ". . . the speed at which you're right at impending skidding, just ready to slip [off the roadway]." [T-502]. He said that the "calculation of the critical speed is exactly the same formula. . . . [used] for both the design speed and the recommended speed." [T-503]. Without a skid test on the particular pavement to determine its coefficient of friction however, you could not accurately determine the critical speed of the curve.

Mr. Pucino noted that after his examination of the various accident reports furnished, he found that there were three accidents prior to August 28, 1992, two occurring in 1991 and one occurring in 1990. [T-506]. There were four more accidents after August, 1992 up to November 9, 1997, that he found comparable. He did not find that this number of accidents would be indicative of a high accident location. Additionally, he disagreed with Mr. Gonseth's conclusions that the statewide accident rates developed for highway sections with interchanges could be compared to accident rates on ramps, although, the two witnesses appeared to concur that no statewide accident rates for ramps alone have been developed. [T-512-513]. He also disagreed with Mr. Gonseth's acceptance of Trooper Russell's suggestion concerning installation of a Jersey barrier as a good and accepted engineering solution. [T-516]. With such a barrier, he opined, there would be an absence of a clear recovery area, more difficulty in merging, and sight line issues, with the resulting potential for more accidents. [T-517-518]. He said that warning signs are there ". . . to advise motorists of conditions that they have to make adjustments for conditions ahead; their speed or position . . . " and stated that "[y]ou can't design out all problems." [T-519].

Mr. Pucino, too, had reviewed the proposals for changes to the interchange, but thought the major focus of the proposal - which he noted was only a draft and not a design document - was the creation of a direct interchange between I-87 and I-84. [T-520] [See Exhibits 43-1, 43-2]. He noted that the need for the direct interchange would of necessity alter the various ramps already in place, not necessarily safety concerns. It was his opinion that when the ramp was constructed and as it existed on the date of the accident, it complied with good and accepted engineering standards applicable at the time of its design. He also opined that the geometrics and design of the ramp did not have anything to do with the accident at issue. [T-523]. Mr. Pucino also stated that nothing in his review of the project proposal suggested that the proposed changes to Ramp J were anything but a side-product of the overall object to provide direct access from I-87 to I-84. [T-522; Exhibits 43-1, 43-2].

On cross-examination, Mr. Pucino conceded that he had been a 23 year employee of the DOT, had testified perhaps 30 times as an expert on their behalf over a 12 year period and had also testified as an expert for the Thruway Authority. [T-554-555]. When shown a table extracted from the project proposal [Exhibit 43-1], Mr. Pucino agreed that there was an indication on the table that the design speed for the first curve - not the terminal curve - was deficient at 29 miles per hour based upon the superelevation noted at 4.5. [Exhibit 103]. Additionally, he testified that he measured the acceleration lane as 979 feet, when design standards for acceleration lanes in 1957 was recommended at 1000 feet. [T-565]. He also indicated that his measurements could be off by 20 or 30 feet because of the paint lines. [T566]. He reiterated that the State does not compute accident rates applicable only to ramps, and that the statistical accident rates for interstate highways were computed based upon accidents occurring over the entire highway system, without regard to geographical or topographical features. The accident history, he reaffirmed - particularly when taking into account only the two accidents he found factually similar to decedent's - was not indicative of the existence of a problem on the ramp, given also the volume of traffic passing through safely on a daily basis.

William D. Fitzpatrick, the Director of Traffic Engineering Safety for the Hudson Valley for the DOT, also testified. The geographical area he is responsible for includes all of I-84 as it passes through the State of New York. [T-526]. He testified that when I-84 was first built and up until 1992, I-84 was a responsibility of the DOT. [T-527]. Since 1992 however, he testified that the DOT retained responsibility for capital improvements on I-84, but the Thruway Authority took over the maintenance and operational responsibilities. He noted that maintenance and operational responsibility encompasses review and analysis of accidents occurring on the highway. For those State highways in the seven county geographical district that the DOT is responsible for, his staff maintains operational safety reviews.

Mr. Fitzpatrick identified the agreement turning over the maintenance and operational responsibilities of I-84 to the Thruway Authority in 1992. [Exhibit H]. The agreement, dated March 19, 1992, but effective on August 28, 1992, provides that the State of New York, through its agent the DOT, transfer and convey all interest the State had in I-84, and its exit and entrance ramps among other areas, to the Thruway Authority. [See Id]. According to the agreement, as well as the legislative authorization for entry into same [see Laws of 1991, Chapter 53; Sections 10 and 11; see also Public Authorities Law §356(3) and Title 9 generally], as of the effective date the Thruway Authority assumed responsibility for the operation and maintenance of I-84, but did not assume responsibility for the financing or performance of any capital projects on I-84 or the adjacent areas.

Mr. Fitzpatrick indicated that since 1992 his division has not reviewed any accidents occurring on I-84, nor was it obligated to in his understanding. With respect to capital improvements he outlined two ways the DOT is notified of any need for improvement on I-84. If operational difficulties have been identified by the Thruway Authority mandating capital improvement, then the Thruway Authority notifies the DOT. The second circumstance not applicable here has to do with ". . . periodic rehabilitation policies and procedures on . . . roadways and bridges, culverts . . . structures that . . . [the State] routinely perform[s]."

[T-529].[11] Mr. Fitzpatrick - who stated that he would be the person given such information - had never been informed of the need for a capital improvement of Ramp J at the intersection of Route 300 North to I-84 East based upon safety needs. [T-531]. He also noted that repaving would not necessarily be a State capital improvement, nor would placement of signs, or Jersey barriers.

On cross-examination, Mr. Fitzpatrick agreed that the DOT maintains the State accident surveillance system (hereafter SASS), a database that records ". . . locations on the State highway system, or even the local system, relative to high accident locations, or locations that have higher than normal accident statistics, it provides that information to the Department." [T-532-533]. This includes all highways in New York State, regardless of jurisdiction, including I-84. Additionally, the DOT publishes Statewide accident rates every year based upon two prior years of information. The information is compiled in Albany at the main office of the DOT as part of the SASS system. The New York State Department of Motor Vehicles (hereafter DMV) is the source for accident reports obtained from DMV computers. [T-534]. Since 1992, he reiterated, the DOT only collects the information and stores it in its database; but does not engage in any analysis.

No other witnesses testified.
DISCUSSION AND CONCLUSION

Applicable Law
The State has a non-delegable duty to maintain its roads and highways in a reasonably safe condition to prevent foreseeable injury, but is not an insurer of the safety of its roads. See Friedman v State of New York, 67 NY2d 271 (1986).[12] No liability may attach unless the ascribed negligence in maintaining the roadway is a proximate cause of the accident. Hearn v State of New York, 157 AD2d 883(3d Dept 1990), lv denied 75 NY2d 710 (1990). In fulfilling its obligation the State may assume that those using the roads will use reasonable care and obey the law governing the operation of motor vehicles. See Tomassi v Town of Union, 46 NY2d 91, 97 (1978).[13]

Where a claim is based upon negligent design, the State's planning and decision making function enjoys qualified immunity. Weiss v Fote, 7 NY2d 579 (1960), rearg denied 8 NY2d 934 (1960). Liability attaches only when the design was evolved without an adequate study or lacks reasonable basis. It is the standards of the day that apply with respect to a design, but when renovations or reconstructions occur, the State is obligated to exercise due care in the renovation. See Segnit v State of New York, 148 AD2d 519 (2d Dept 1989), lv denied 75 NY2d 702 (1989). Once the State has implemented a traffic plan, it is under a continuing duty to review its plan in the light of its actual operation . Friedman v State of New York, supra, at 284; Olson v State of New York, 139 AD2d 713, 715 (2d Dept 1988). State liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either evolved without adequate study or lacked a reasonable basis. Martin v State, 305 AD2d 784 (3d Dept 2003), lv denied 100 NY2d 512 (2003). Failing to correct a known hazardous design could render the State liable based upon that continuing duty to review plans in light of actual operation. See Atkinson v County of Oneida, 77 AD2d 257, 261 (4th Dept 1980); see also Van Son v State of New York, 116 AD2d 1013 (4th Dept 1986); Zalewski v State of New York, 53 AD2d 781(3d Dept 1976).[14]

No liability may attach, however, unless Claimant establishes that the State had actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct the condition. Brooks v New York State Thruway Auth., 73 AD2d 767, 768 (3d Dept 1979), affd 51 NY2d 892 (1980).

Perhaps most importantly, whatever kind or degree of negligence is asserted, it is the Claimant's burden to show that the negligence claimed is the proximate cause of Claimant's injuries. Jordan v State of New York, 249 AD2d 279 (2d Dept 1998); Hearn v State of New York, supra, 885. While a Claimant is not obligated ". . . to rule out all plausible variables and factors that could have caused or contributed to the accident . . .[or] positively exclude every other possible cause of the accident . . . the proof must render those other causes sufficiently ‘remote' or ‘technical' to enable the . . .[fact finder] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence (citation omitted)." Gayle v City of New York, 92 NY2d 936, 937 (1998); see also Burton v State of New York, 283 AD2d 875 (3d Dept 2001).
Proper Party
In its Answer, in addition to general denials and other defenses, the State asserted as its third affirmative defense that it was the Thruway Authority, and not the State of New York, that was responsible for the maintenance of the highway where the accident occurred. As noted, an Agreement between the State of New York and the Thruway Authority, effective August 28, 1992 according to its terms, provides that the Thruway Authority undertake responsibility for the operation and maintenance of the highway, including entrance and exit ramps among other areas, while the State, through its agent the DOT retained the obligation to complete already scheduled capital improvement projects and to finance any future capital improvements for the highway. [Exhibit H].

Defendant argues that in order to find any State liability stemming from an accident occurring five (5) years after the transfer of jurisdiction provided for in this agreement the Claimant would have to show either some positive action of the State regarding the highway, or that some essential feature of the highway inherent in its geometric design - unchanged by the intervening passage of time and vehicles and unaffected by the operation and maintenance functions performed by the Thruway Authority - was the proximate cause of this accident. The Court agrees.

It is well established that the Thruway Authority is a separate entity, possessing the power to sue and be sued in its own right. See Public Authorities Law §354(1). The Thruway Authority is solely responsible for its own negligence in the performance of its usual functions, including maintenance and operation of highways over which it has jurisdiction. See e.g. Mickle v New York State Thruway Auth., 182 Misc 2d 967, 970 (Ct Cl 1999).

Claimant argues that while the design of the ramp may have been in accordance with engineering standards of the day, the State thereafter failed to exercise due care in continually reviewing the utility of the design based upon its actual operation and the number and kind of accidents found at the same location. Indeed, Claimant argues that the project proposal shows that the State as a "partner" with the Thruway Authority in the redesign process had notice of the dangerous condition of Ramp J. Notice is shown also, Claimant asserts, because of accident reports reflecting accidents occurring under the same or similar circumstances at the end of Ramp J between 1990 and 1997, as well as Trooper Russell's hazard report. [Exhibit 42].

Claimant relies, however, incorrectly on the DOT's acknowledged partnership with the Thruway Authority concerning capital improvements - including the project proposals discussed at length by Claimant's expert - as the means to annex two distinct entities and establish liability against the only Defendant over which this Court now has jurisdiction. In addition to the DOT involvement in the proposed changes to create the direct interchange, Claimant argues that the compilation of accident data Statewide, as well as the presumed receipt by Trooper Russell's supervisor in the New York State Police of his hazard report, are sufficient to establish State involvement over an interchange over which it had no jurisdiction on November 9, 1997.
With respect to the design standards extant at the time of the highway's construction, the Court finds Mr. Pucino's explanations of the design considerations involved in constructing ramps in the early 1960's, and Mr. Gonseth's testimony, are in accord. Both essentially opined that Ramp J was initially designed in accordance with engineering principles of the day.

The Court is not unmindful of the tragedy that has befallen this family with the death of their daughter. I can only imagine - having a daughter of a similar age - what the Lafontaine family has suffered at her loss. I have labored over this decision for a long time, considering the theories put forth by Counsel. Upon reflection and review however, I am constrained to find that the State engaged in no culpable conduct.

On this record, prior to 1992 there was no notice to the State that there was any defect in design or utility of Ramp J warranting closer examination of the ramp and any change in its configuration. Claimant's own expert indicated that the accident history presented at that time would not have been sufficient to alert the State of any dangerous condition. It is noted that the raw figures comparing Statewide accident figures on the mainline of highways to accident figures at this ramp are inherently flawed, given the lack of any direct correlation absent Statewide figures applicable to ramps. Certainly, one would intuit that accidents at ramps would generally be more frequent given the various decisions prudent drivers need to make to negotiate them, but such data has not been presented to suggest that this ramp is more dangerous than others.

Between August, 1992 and November, 1997 there were twelve accidents at the ramp. Over 11,000 vehicles traverse Ramp J daily. This history, too assuming for the sake of argument that it has any applicability to the State as Defendant, is insufficient to serve as notice as well. Reviewing the project proposals commenced in 1993 and expanded upon in 1995 establishes only that there was thought of creating a direct interchange from I-87 to I-84 and that those proposals would of necessity eliminate the ramps at the interchange as they existed. There is no indication in the proposals, beyond general assertions that safety is an issue when a road designed some decades earlier is being used by a higher volume of traffic, that this interchange was viewed as a high accident location. In any event, these proposals present design alternatives and show that planning and design decisions were in the works.

As to whether there was any unjustifiable delay in implementing any plan [see generally Ames v City of New York, 177 AD2d 528, 531 (2d Dept 1991)], Claimant did not establish that these were more than proposals. There was no evidence that a specific plan had been formulated which the State failed to implement promptly. See also Trautman v State of New York, 179 AD2d 635 (2d Dept 1992).

More importantly, the mechanics of this accident cannot be ignored. The driver of this vehicle acknowledged that he was driving faster than 25 miles per hour - indeed Claimant's expert opined he was probably driving 55 miles per hour - on a ramp leading onto a highway with which he had only a passing familiarity, containing posted signs that he admittedly ignored, on wet pavement on a very rainy morning. Both experts acknowledged that had Mr. Powers driven at the posted speed limit, and up to approximately 50 miles per hour, the accident would not have occurred.

On this record, the Claimant has simply not shown ". . . that the asserted negligence of the State was a substantial factor in bringing about . . . [the accident]." Murray v State of New York, 38 NY2d 782, 784 (1975); see also Sosa v City of New York, 281 AD2d 469 (2d Dept 2001); Stanford v State of New York, 167 AD2d 381 (2d Dept 1990), lv denied 78 NY2d 856 (1991); Sebukaty v State of New York, 73 AD2d 705 (3d Dept 1979).

Claimant has failed to meet its burden of establishing the existence of a dangerous condition created by the Defendant or of which Defendant had actual or constructive notice, has not established that the State failed to fulfill a continuing duty to maintain and operate the highway so that it is reasonably safe for its intended use, and has not established that any asserted negligence was the proximate cause of the accident occurring herein, requiring dismissal of the claim.

All trial motions not otherwise disposed of are hereby denied, and Claim Number 101308 is hereby dismissed in its entirety.

Let judgment be entered accordingly.

June 21, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]Events prior to the accident, as well as the account of the accident from his perspective as the driver of the car, are taken from the testimony of Mr. Powers at a hearing before the Department of Motor Vehicles (Exhibit 44) and his deposition in this action(Exhibit 95). Mr. Powers did not testify at trial.
[2] Curtis E. Meyers also testified at the motor vehicle hearing, but did not testify at trial. [See Exhibit 44].
[3] Mr. Gonseth's resume was placed in evidence as Exhibit 99.
[4] The lower the number for the radius, the sharper the curve. [T-72].
[5] A Jersey barrier was defined as a concrete barrier that was developed in the State of New Jersey that has approximately a two-foot-wide base and narrows toward the top. It is approximately three feet high and is supposed to redirect a vehicle back into the lane of travel because of the angle at which it sits.
[6] In his deposition testimony, Mr. Powers had difficulty recalling exactly what direction he turned the steering wheel. He seemed to recall turning into the skid to the left when pressed, but when asked directly what direction he turned the wheel he did not remember. [Exhibit 95, Page 12].
[7] The MV-104A key allows interpretation of the numerical designations in an accident report that the writer will insert concerning these areas among others.
[8] It is noted that these accidents include those occurring after August, 1992 when the Thruway Authority took over responsibility from the State of New York.
[9] There was testimony establishing that the "H. Guay" noted as the author of the report is Heather Garrison.
[10] Mr. Pucino's résumé was placed in evidence as Exhibit O.
[11]Under State law, regardless of jurisdiction, the DOT is responsible for biannual inspection of bridges and periodic inspection of culverts over a certain dimension.
[12] These four cases decided concurrently all involved so-called "crossover" accidents occurring on State- constructed and maintained highways. All four alleged the negligence is the State's failure to install median barriers.
[13] " . . . So long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied. . . ."
[14] Zalewski, supra, Van Son, supra, and Segnit, supra, all involve the failure to either upgrade or appropriately replace guardrails. With respect to the first two cases, notice of a dangerous condition was well established. In Zalewski, supra, the State contended that the correctness of its design could not be reviewed by the courts
because the structure in question complied with good engineering practices in effect at the time it was built. In rejecting this argument, the Court held that the State was liable if the design lacked a reasonable basis and subsequent events demonstrated the presence of a dangerous condition.
With regard to Segnit, however, no notice was established.