New York State Court of Claims

New York State Court of Claims

CHURCH v. THE NEW YORK STATE THRUWAY AUTHORITY, #2004-032-508, Claim No. 92341


Case Information

NED S. CHURCH and GILBERT P. CHURCH The caption has been amended, sua sponte, to reflect the fact that claimant Ned S. Church is now an adult. Gilbert P. Church's claim is derivative, and unless otherwise indicated, or required by the context, the term "claimant," when used in the singular, will refer to Ned Church.
Claimant short name:
Footnote (claimant name) :
The caption has been amended, sua sponte, to reflect the fact that claimant Ned S. Church is now an adult. Gilbert P. Church's claim is derivative, and unless otherwise indicated, or required by the context, the term "claimant," when used in the singular, will refer to Ned Church.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Thorn, Gershon, Tymann and Bonanni, LLP By: Arthur H. Thorn, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Dennis M. Acton, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
September 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

On December 26, 1992 Barbara and Gilbert Church, along with their 9-year-old son Ned, left their home in Shelburne, Vermont, around noon for a Christmas visit with Gilbert's parents in Wilmington, Delaware (Tr, 798). Barbara was the driver of their 1992 Volkswagen Jetta (Tr, 5, 799, 898), Gilbert Church was seated in the front passenger seat, and claimant was seated in the right rear passenger seat, with his three-point
seat belt fastened (Tr, 898). It was an overcast, cold day but there was no precipitation (Tr, 799). Barbara Church had not taken any prescription medication or consumed any alcohol that day (Tr, 800). Heading south on the New York State Thruway ("Thruway"), there came a time when Barbara Church fell asleep at the wheel,[1] and the car drifted off to the right side of the Thruway near milepost 132.7 southbound. The car eventually traveled over an embankment and became airborne. It struck the ground with significant force and finally came to rest at the bottom of a slope. Claimant sustained severe injuries that resulted in quadriplegia.
Although the evidence in this case is comprehensive and the injuries are tragic, the central issue is fairly simple: is defendant liable for the injuries suffered by claimants because it failed to install a guide rail at the location where the Church vehicle left the road?

Claimant contends that the New York State Thruway Authority ("Thruway Authority") was negligent in failing to follow its plans and specifications for a 1985-1986 highway reconstruction project when installing the guide rail at that location, particularly in its failure to meet the requirements of the 350-foot rule contained in the New York State Highway Design Manual ("Design Manual"). Defendant contends that the original length of the guide rail contained in its plans and specifications was changed in the field by the resident engineer, who is now deceased but had the authority to make such a change, and that such length was sufficient to meet the requirements of the 15-degree rule contained in the Design Manual.

The defendant's positions in this action are not sustainable. After multiple attempts by the Court to resolve this matter both before and during trial, the unified trial concluded without a settlement. It appears that defendant believes it will prevail on appeal of a certain defense to the claim, which this Court previously found to be without merit.[2]
After careful consideration of the parties' arguments, the Court finds defendant failed to install the length of guide rail specified in the plans for contract TAA 85-13; that there were no field changes that altered the length of this guide rail; that the length of guide rail actually installed did not comply with either the 15-degree rule or the 350-foot rule; and that defendant failed to properly instruct its employees with regard to their duties for inspection and approval of the rehabilitation project. The defendant's improvident litigation strategy (see Appendix B), delaying its preparation of this case although a note of issue had been filed in 1998, resulted in the preclusion of certain experts which has led to an anomalous damages award. On the basis of a preponderance of credible evidence presented at trial, the Court concludes that the defendant's negligence was a proximate cause of the accident in which claimant Ned Church, who has an approximate life expectancy of 65 years old, was catastrophically injured and that he is entitled to a total award of $42,356,022.00. Gilbert Church is awarded $314,400.00 for his derivative claim.
Mark Stevens, a non-party eyewitness, recounted the events of the accident at an examination before trial (Exhibit 68). He stated that he was driving in the right-hand lane of the southbound side of the Thruway at approximately 60 mph. At some point the Church vehicle passed him on his left, traveling at approximately 65 mph. He noticed that there were three passengers in the car and was particularly struck by the little boy in the backseat who looked just like Macaulay Culkin from the movie "Home Alone". The little boy had a Teddy Bear with him and waved to Mr. Stevens as he passed by.

After the Church vehicle passed his car, it then pulled in front of him and continued to move at a slightly faster rate. Mr. Stevens estimated that the Church vehicle was approximately 200 yards ahead of him when it slowly drifted off the road onto the right shoulder. It went over the shoulder's crushed gravel, onto the grass, and then eventually over an embankment (Exhibit 68, pp 4-11). When the Church vehicle was approximately 50 yards off the roadway and moving on a grassy, bumpy area, Mr. Stevens thought he saw the vehicle roll. "If it did not roll, it at least left the ground on the driver's side, both wheels" (
id. at 79). He later added, "[i]f it were to have rolled, it would have had to roll at least one complete rotation, because when it went over the embankment, it was on all four wheels" (id. at 90).
Mr. Stevens pulled his car over to the shoulder of the Thruway and went down to where the Church vehicle had come to rest in a dry creek bed. He observed that it was still pointed in the direction that it had been traveling and that it was on all four wheels (
id. at 21). Mr. Stevens was successful in getting Gilbert Church out of the car, but he could not open the driver's door to assist Barbara Church. He stated that she was conscious and concerned about her son (id. atp 14-15). Ned Church was slumped over the shoulder harness part of his safety belt, and Mr. Stevens observed that his lips had started to turn blue (id. at 18). Mr. Stevens then unfastened the shoulder harness of the seat belt and, hardly moving claimant's neck, blew air into his mouth for a few minutes (id. at 19). This caused claimant's color to improve slightly. The emergency medical squads soon arrived and took over the care of claimant and his parents (id. at 19).
Contract TAA 85-13 (
see Exhibits 125 and126) was a safety upgrade contract for 22.3 miles of the Thruway. It was executed in 1985, and the project was to be completed by November 21, 1986. The prime contractor for this project was Callanan Industries ("Callanan"); Clough Harbour Associates ("Clough Harbour") was hired to serve as the Thruway Authority's engineering inspector; and the subcontractor hired to install the guide rails was San Juan Construction and Sales Company ("San Juan").[3]
The design components for guide rail at mileposts 120-130 were completed by James O'Donnell, a Thruway Authority project engineer and project manager for design on this project. The design components for guide rail at mileposts 130-140, which included the accident site, were prepared by Envirodyne Engineers of New York ("Envirodyne"), a design consultant firm (Tr, 38, 66, 73, 79). For this portion of the work, the Thruway Authority reviewed the preliminary plans submitted by Envirodyne before the plans were finalized (Tr, 78). If any portion of those plans was not in compliance with the Design Manual (Exhibit 17), the Thruway Authority's project manager had the responsibility to correct those discrepancies (Tr, 74-76). Although the proposed and the "as-built" plans (Exhibits 3 and 4) were introduced into evidence at trial (Exhibits 3 and 4), the Thruway Authority had not preserved any of the surveys or background work completed by Envirodyne.

It is undisputed that the design plans incorporated in contract TAA 85-13 provided for 312.5 feet of guide rail to be installed at the accident location. It is also undisputed that only 212.5 feet of guide rail were actually installed. Claimants contend that if the full 312.5 feet of guide rail had been installed in the manner required by the project plans, it would have prevented the accident.
There are three issues in this claim. One is whether the plan requirements were changed in the field, using the procedures necessary to effect such changes. The second question is whether a guide rail of 212.5 feet was in conformance with either the 350-foot rule or the 15- degree rule as set forth in the Design Manual. It appears that the original plans applied the 350-foot rule, but defendant maintains that the 15-degree rule was also an appropriate rule to use at this location and that the length of the installed guide rail was more than sufficient under this alternative standard. If the guide rail that was actually installed did meet a different rule, the final question arises: whether the policy considerations that bestow qualified immunity to government planning decisions under
Weiss v Fote (7 NY2d 579 [1960], rearg denied 8 NY2d 934), that are properly documented after adequate study, preclude the Court from second-guessing the Thruway Authority's initial plan?
Professor Richard McGinnis[4]
testified as claimant's guide rail expert. His measurements of the accident site revealed that only 212.5 feet of guide rail were installed, making it approximately 100 feet short of the length provided for in the project plans (Tr, 672). He stated, however, that the as-built drawing (a drawing developed after construction was completed to show the features that were actually installed, i.e., incorporating any changes from the pre-construction plans and drawings) erroneously showed that the planned 312.5-foot length of guide rail was present at this location (Tr, 670-671). He could put forth no explanation for the error in the as-built plans, noting that these plans accurately reflected changes made at other locations that were far more insignificant than deletion of 100 feet of guide rail. For example, they show an increase of 6¼ feet of bridge rail at one location and a reduction of 6 feet of guide rail at another, by order of the resident engineer (Tr, 659-662; Exhibit 20).
With respect to which Design Manual standard should have been applied to determine the length of guide rail at this location, Dr. McGinnis explained the two principal rules in effect for the installation of guide rail when contract TAA 85-13 was executed. The 350-foot rule was used for cases where there was a lateral hazard, perpendicular to the roadway, with a long dimension (Tr, 642). According to the Design Manual, the guide rail should have started approximately 350 feet in advance of such hazard "assuming the terrain behind the guide rail is conducive for an out of control vehicle to run toward the hazard"
(Exhibit 17, §10.01.04). Under this rule, the "point of need," a term designating where the guide rail section should begin, is to be determined in the field by the resident engineer (Tr, 725-726; Exhibit 17, §10.01.04). The guide rail then runs from the point of need for approximately 350 feet (Tr, 642-645).
The second rule, the 15-degree rule, was used where the hazard is a fixed object of limited dimensions, such as a light pole or a bridge abutment (Tr, 645; Exhibit 17, §§10.01.02[A] and 10.01.04; Exhibit 78). To determine the length of guide rail required by this rule, a 15-degree angle is measured from the line of the guide rail to the back of the fixed object. According to Dr. McGinnis, this rule is not flexible. The beginning of the guide rail should be no further and no closer than the point indicated by the 15-degree measurement (Tr, 649-650).

Dr. McGinnis testified that southbound traffic on this section of the Thruway was exposed to two hazards: 1) a bridge abutment, or wing wall,
from the overpass over a local road (Stylebarrek Road) and 2) the non-traversable slope over which the Church vehicle traveled, which constituted a long lateral hazard. His review of the construction plans led him to conclude that the guide rail in the project plans had been designed according to the 350-foot rule to protect against the non-traversable slope.[5]
He stated that when an engineer encounters a non-traversable slope, which he defined as a slope which a vehicle could not travel without severe injury to the occupants in the vehicle (Tr, 655), he or she must first determine if the slope can be flattened to make it traversable, thereby removing the problem and the danger to motorists. If reconfiguring the terrain is not feasible, the engineer then must design a guide rail to shield motorists from the non-traversable slope. A non-traversable slope, he stated, is quite different from a fixed object hazard, to which the 15-degree rule would apply (Tr, 657).
In his review of the construction drawings, the inspector's reports, and the resident engineer's daily project diary (Exhibits 25-29), Dr. McGinnis found nothing to indicate that the 15-degree rule had been considered (Tr, 678), nor did he find any record of a decision to delete 100 feet from the amount the length of guide rail called for in the project plans (Exhibit 20 [blowup of page RP-16 from Exhibit 4]).

Use of the 15-degree rule would have been appropriate, he stated, only if the bridge abutment (wing wall) had been the sole hazard from which traffic was to be shielded. If that had been the case and the 15-degree rule had been applied to the wing wall, it would have required that 112.5 feet of guide rail be installed. Consequently, according to Dr. McGinnis, the 212.5 feet of guide rail that was actually installed did not comply with either of these rules or design methods set forth in the Design Manual (Tr, 751). The existing guide rail was approximately 100 feet too short to satisfy the requirements of the 350-foot rule, and it was approximately 100 feet too long to satisfy the requirements of the 15-degree rule.

Kevin Breen[6]
, an accident reconstructionist, testified on behalf of the claimant and introduced Exhibit 54, which is a schematic of the accident site that was drawn by him. This schematic shows the Church vehicle driving off the slope, becoming airborne and landing near a dry creek bed. This depiction of the accident was based upon a survey of the accident site by Mr. William Shover (Exhibit 69 ["Shover survey"]) and Mr. Breen's own analysis. The Design Manual defines a "traversable slope" as a "slope a vehicle can pass through without severe damage to the vehicle or occupants" (Exhibit 7, §10.01.02[B]). Slopes with a "a rise to run ratio" of 3:1 (one foot vertical drop for every three feet of horizontal movement) or greater are considered traversable and would not normally require a guide rail.
Mr. Breen opined that the accident occurred between cross sections 10+30 and 10+40 of the embankment's slope on the Shover survey (Exhibit 69, p 2). Mr. Breen calculated the rise to run ratio at this location as approximately 2.5:1, a smaller ratio than the 3:1.
In Mr. Breen's opinion, the embankment was not a slope that could be traversed by any automobile without sustaining significant damage and having strong forces felt by the occupants (Tr, 371). It was, therefore, a non-traversable slope that created a long lateral hazard that triggered the installation of a guide rail and use of the 350-foot rule.
Richard Bovee, who managed the construction inspection services and transportation design groups for Clough Harbour in the mid 1980's, also testified for claimant. The contract agreement between Clough Harbour and the Thruway Authority (Exhibit 5
) provided for Clough Harbour to take full charge of the inspection of this contract (id. at 2, 3rd paragraph).[7] The Clough Harbour employee who served as resident engineer on this contract, Robert Raczyk, is now deceased and testimony relating to information in his daily diaries was given by Richard Bovee. Mr. Raczyk was in charge of the inspection staff for this project (Tr, 197). The inspectors were required to be on the work site daily, to record activities and to report back to the resident engineer concerning compliance (Tr, 198-199). The resident engineer wrote a daily diary summarizing the activities and conversations that he had with the inspectors, the contractor, and/or the client Thruway Authority (Tr, 99).
Mr. Bovee testified that the contract plans called for 312.5 feet of 606.20 guide rail[8]
to be installed at the accident location. He confirmed that only 212.5 feet were actually installed. He found nothing in the daily diaries or any other records to indicate that Robert Raczyk had made a conscious decision or expressly proposed to omit 100 feet of guide rail at this location. The documents signed by Mr. Raczyk indicated that 312.5 feet of guide rail were intended to be installed and that the project was going more slowly than anticipated due to paving and guide rail installation delays (see Exhibits 25-29; Tr 690-704). An October 30, 1986 letter from Clough Harbour to Callanan expressed concern about the untimely completion of guide rail installation by the subcontractor San Juan Construction near the accident site (Exhibit 23). An Engineer's Daily Project Diary, dated October 8, 1986 and signed by Robert Raczyk, also noted concern about the installation of guide rail near the accident site by San Juan Construction (Exhibit 24).
According to Mr. Bovee, the omission of the 100 feet of guide rail was quite simply a mistake (Tr, 204-205). Based upon his attendance at a kick-off meeting for the project in the office of Anthony Gregory, then the Director of the Bureau of Construction and Design at the Thruway Authority (Tr, 56), and his attendance at weekly project meetings, Mr. Bovee testified that Clough Harbour did not have the authority to make any changes in the field without first receiving approval from the Thruway Authority (Tr, 200, 224, 225, 226; Exhibit 8). Consequently, if Robert Raczyk had deemed it necessary to suggest a change in the plans specifications, he would have brought the suggestion to the attention of Robert Sovik, the liaison engineer for the Thruway Authority who had the responsibility to check Clough Harbour's work (Tr, 205), or to William Clark, the Engineer-in-Charge of this project for the Thruway Authority (Tr, 1216). Mr. Clark, Bovee stated, was on site either weekly or biweekly to review any proposed changes with Mr. Raczyk (Tr, 212-213).

Exhibit 26, an Inspector's Report ("IR")[9]
signed by Robert Raczyk and Chris Faulkner, an inspector for Clough Harbour, suggests the manner in which the mistake occurred. This document, IR# 1578, is dated November 4, 1986 and states on page 3:
The plans show for 312.5 LF [linear feet] of rail to go in at this location [MP132.75 to 132.72 SB], but when shoulder was paved, it was paved to only a length of 275 LF. Sub drove posts in this 275 LF, and the remainder 37½ LF will be driven when the shoulder is paved back far enough to allow for all of the 312.5 LF of posts to be placed in the black-top [sic].

A subsequent Inspector's Report (IR #1688), dated December 12, 1986 (Exhibit 29) states: "Sub finished tightening hardware on corrugated guide rail from . . . MP132.75-132.72 +/- SB (312.5 LF)." In fact the full 312.5 feet of guide rail were never installed. One can only conclude that San Juan, having installed the guide rail on that portion of the shoulder where paving had been completed, never returned to finish the installation when the remainder of the shoulder was paved. The result was a guide rail significantly shorter than the one called for in the plans. It further appears that this omission was never noticed, either by the subcontractor (San Juan), the contractor (Callanan), the engineering inspector (Clough Harbour), or the Thruway Authority when it made frequent inspections, including its final inspection.
That the omission of the last portion of guide rail was an unnoticed mistake is reinforced by the fact that, according to Mr. Bovee, the payment documents indicate that San Juan was paid for installation of the entire 312.5 feet of guide rail at the accident location (Tr, 211) and, Callanan was also paid in full for the completion of this project by the Thruway Authority (Tr, 139-141; Exhibits 14 and 41). It appears that everyone assumed this aspect of the contract had been fully performed with none of the parties actually confirming that the work had been done. Duane Dodds was called both as a witness for the claimants and as an expert for the defendant.[10]
During his testimony for claimant he stated that he is presently retired from the Thruway Authority but was a supervisor of the programming and planning unit in the early 1980's. In the fall of 1986, he became the design supervisor within the Thruway Authority's Bureau of Construction and Design (Tr, 32-33). He was familiar with design standards, the letting of contracts, and the responsibilities of those working on construction jobs (Tr, 33-34). He testified that Anthony Gregory had overall supervisory responsibility for the design and construction of this particular project (Tr, 56). He also confirmed that the contract plans and specifications called for the installation of 312.5 feet of 606.20 guide rail at the accident site (Exhibit 3, p 42, Drawing #RP-16) and that only 212.5 feet had actually been installed (Tr, 40). He further acknowledged that the as-built revisions nevertheless reflected that the 312.5 feet of guide rail had been erected at that location (Exhibit 20; Tr, 43-44).
Mr. Dodds testified that the Thruway's project manager for the construction aspect of this project was Robert Sovik, the liaison engineer (Tr, 80). Mr. Sovik was supervised by William Clark (Tr, 1217, 1222), who in turn reported to Anthony Gregory, the Director of the Thruway Authority's Bureau of Construction and Design (Tr, 1428). Mr. Sovik was the person who interacted directly with Callanan, Clough Harbour, and Thruway Authority personnel. If at any point Mr. Sovik thought that Clough Harbour was not performing as it should under its contract, it was his responsibility to inform Clough Harbour. The liaison engineer was the only Thruway Authority employee in the field on a regular basis while the project was underway (Tr, 87), although Mr. Clark was there at least on a biweekly schedule.

Contrary to Mr. Bovee's testimony, Mr. Dodds claimed that Clough Harbour did not have to seek permission to adjust guide rail lengths since the resident engineer on their staff represented the Thruway Authority and had the authority to reassess roadside features, identify points of need, and adjust the guide rail to appropriately reflect the conditions that he encountered (Tr, 102). However, a June 18, 1985 letter from Anthony Gregory to Callanan, the general contractor (Exhibit 8) conflicted with Mr. Dodd's testimony. It states:

An Engineer-In-Charge and/or a Resident Engineer has been assigned to this project [TAA 85-13]. In addition, other engineers and Authority personnel will visit the work site from time to time. None of these individuals are authorized to alter, change, add to or relax the requirements of the plans and/or specifications. No work is to be done at other than the contract unit prices within the contract quantities without first receiving a written order from this office.

The type of written order that would be issued from Mr. Gregory's office to authorize a change is found in the Manual for Uniform Record Keeping on Highway Contracts ("the MURK Manual" or "Manual") (Exhibit 16). This manual explains the procedures to be followed to effect a change in a construction contract. Except for very minor variations or additions, a document known as an "order-on-contract" must be created to increase or decrease contract items in any contract. The Manual provides that the delineation between major and minor is subjective but states that orders-on-contract are needed for any changes in specifications or design standards (Exhibit 16, pp 1-10 and 1-11). Another document, a field change sheet, can also be prepared to provide clear-cut instructions to the contractor and construction supervisors regarding necessary changes to the contract plans, standards or signing, but a field change sheet does not have to be prepared if the order-on-contract fully explains the change. In either case, the modifications that are carried out must be in writing and should be shown on the as-built plans. Any changes in design or specifications must be reviewed and agreed to by the original approving agents (Exhibit 16, p 1-11, § 104[B][1]). In addition, any field changes would also be documented in an IR, and eventually there would be a quantity adjustment so that the appropriate payment could be made (Tr, 99-100).

Claimants placed into evidence Exhibit 30 which contains an August 7, 1986 letter from Anthony Gregory to Clough Harbour concerning field changes for contract TAA 85-13. These changes covered insignificant items such as changing hardware on bridge rails from hexhead bolts to carriage bolts and, at another location, a 6-foot 3-inch increase to a guide rail near milepost 132.71 (Tr, 119-121). In this letter, Mr Gregory also noted that, "[o]ther than the above change in quantities, the modifications are considered minor and, therefore, shall be accomplished at no change in cost." Claimants also produced Exhibits 34-36, orders on contract for this project, that reflect some increases and decreases to corrugated beam guide rail but no reference to the deletion of 100 feet of guide rail at the accident location.

As noted above, Mr. Dodds was also called as defendant's expert at trial, and in that capacity he testified regarding the proper length of a guide rail at that location. In a 1995 affidavit, he had indicated that the length of guide rail proposed in the plans suggested that the 350-foot rule had been utilized to determine the amount of guide rail needed at this location (Tr, 45). However, further inquiry was made.

In a March 7, 1995 memorandum (Exhibit 131), apparently in anticipation of litigation, John Blinstrub, a Thruway Authority employee, reviewed the situation and noted the discrepancy among the project plans, the as-built plans (both of which show 312.5 feet of guide rail at this location) and the actual guide rail on site (which is only 212.5 feet long). He suggested that a new survey be performed to determine if the slope leading down to Stylebarrek Road might not be traversable (i.e., may have a rise to run ratio of greater than 3:1): "If so, the protection that exists for the wingwall . . . is more than sufficient. . . . If it is not, and found to be less than 3:1, the entire transverse slope leading down to the ‘farm' crossroad should have been considered a ‘large lateral hazard' under the design standards at the time of construction and would have required a minimum of 350' of guide rail protection prior to the hazard." In other words, the Thruway Authority wanted to determine if the 15-degree rule could be applied despite the fact that the 350-foot rule had apparently been used in the design plans.

Although there was nothing to suggest that the 15-degree rule had been used in the original plans, Mr. Dodds authorized an employee to compute the amount of guardrail that would have been needed under the 15-degree rule (Tr, 49-52). That amount was determined to be 125 feet (Tr, 52-53). At trial, Mr. Dodds did not have an explanation as to why 212.5 feet of guide rail were installed, rather than the 125 feet that the 15-degree rule would have required or the 312.5 feet called for in the design plans.

Despite the fact that there was no earlier design report, drawing, plan or specification that called for the 125 feet of guide rail at this location (Tr, 53-55) and that Mr. Dodds did not see any computations regarding the 15-degree rule prior to the letting of the contract ( Tr, 164-165), he testified at trial that the 15-degree rule could apply to this location, because a bridge wing wall near mile post 132.7 was the fixed object that required a guide rail and because all slopes in proximity to the accident site were traversable (Tr, 168-169). Mr. Dodds acknowledged, however, that in his analysis he did not take into consideration the definition of a traversable slope contained in the Highway Design Manual (Exhibit 17, §10.01.02[B])
In reaching the conclusion that the slope was traversable, Mr. Dodds focused on the "slope averaging method" to calculate the slope at the accident site.[11] Claimants' counsel also objected to this testimony because it appeared that defendant was substituting its judgment for that used by Envirodyne, the designer of the guide rail at the accident location. He also argued that he made multiple requests for documents relating to Envirodyne during discovery and was informed that none existed. However, Mr. Dodds made it clear that he was not speaking for the methods used by Envirodyne (Tr, 1273, 1310). Therefore, the Court will treat this testimony as a theory independently proposed by defendant. Claimants' objections as noted above, as well as one based on relevancy, are overruled. Exhibits K, L, and M are admitted into evidence.
Using several cross sections of the accident scene, as depicted in a survey of that location (Exhibit 69), Mr. Dodds estimated that all three cross sections had a "rise to run" ratio of 3.125 on 1, which is greater than 3 to 1 (Tr, 1279). He testified that this method of determining the steepness of a slope was widely accepted and, in fact, was used in the guide produced by the American Association of State Highway and Transportation Officials ("AASHTO") (Tr, 1256). When asked to identify the sections of the AASHTO Guide that supported his remarks, Mr. Dodds referred the Court to pages 30 and 31 of Exhibit 19, specifically to the sections describing sections A-A and E-E as depicted on page 29. The Court notes that these sections appear to use a weighted average of a slope when roadside hazards are near the slope, such as a line of trees or rough rock cut, not to determine the traversability of the slope itself. Mr. Dodds could not point to any sections of AASHTO or other references that indicated this method was widely accepted or used for the latter purpose. When claimants' expert, Dr. Richard McGinnis, was called as a rebuttal witness,[12] he stated that the sections of the AASHTO Manual referenced by the defense in support of slope averaging only apply to side slopes (Exhibit 9, p 29, sections E-E and A-A). The slope that the Church vehicle encountered was perpendicular to the highway (Tr, 1616-1617). In Dr. McGinnis's opinion, there is nothing in the AASHTO Manual that would justify using slope averaging to determine whether the slope on which the Church accident occurred was traversable (Tr, 1617).
Mr. Dodds further opined that all of the slopes at the accident scene were traversable because there were no high embankments with drop offs and there were no features at the toe of the slope that would invoke the use of the 350-foot rule. He pointed out that there was a wing wall associated with the overpass at Stylebarrek Road, to which the 15-degree rule applied, and further opined that that rule was satisfied (Tr, 1294-1297).[13]
Although he had previously testified that a guide rail of 125 feet would be required under the 15-degree rule, Mr. Dodds now testified that the calculations for the minimum amount of guide rail required for the 15-degree rule was 94 feet (Tr, 1323).
Upon cross-examination, Mr. Dodds admitted that neither the AASHTO Guide (Exhibit 19) nor the Design Manual (Exhibit 17) contained any specific text about using slope averaging for the purpose of determining traversability (Tr, 1309). Mr. Dodds also conceded that the slope averaging method is dependent upon where the measurements are taken (Tr, 1319). He agreed that Mr. Breen's calculation of 2.5 on 1 as the degree of slope present at the precise point where Mr. Breen thought the Church vehicle traveled down was correct (Tr, 1317).

At a deposition taken before trial, William Clark, the Thruway Authority's Engineer-in-Charge for this project, stated that Robert Sovik, the liaison engineer, attended progress meetings, toured the project, answered questions from the field, and reviewed the IRs and daily reports to make sure that Clough Harbour was doing its job (Tr, 1220). His purpose for being at the site, according to Mr. Clark, was to provide quality assurance (Tr, 1220), and no one other than Mr. Sovik would review these documents (Tr, 1219). Clough Harbour derived its estimates and measurements from the IRs (Tr, 1219-1220). Although Mr. Clark authorized payments to Callanan that certified that the amount of work done and the materials incorporated under the contract were necessary and "ha[d] been established from estimates and actual measurements and inspections" which he had made or were made under his supervision (Exhibit 41), he stated that he did not know exactly what had been done in terms of the estimates and measurements, and did not ask Mr. Sovik for those specifics (Tr, 1223). Instead, he would skim the progress meeting minutes (Tr, 1225). Mr. Clark did not have any oral communications with Mr. Racyzk from Clough Harbour and he had no personal knowledge about what Mr. Racyzk did with relation to the guide rail from MP 132.7 to 132.8 (Tr 1224).

Robert Sovik had testified at an examination before trial that he did not participate in the approval or disapproval of any proposed changes to the guide rail plans on this project. Any revisions to the specifications called for in the plans needed the approval of Mr. Clark (Tr, 1235). Contract TAA 85-13 was Mr. Sovik's first job at the Thruway Authority (Tr, 1231). He did not receive any formal training before commencing work (Tr, 1232). Mr. Sovik had no memory of guide rails being discussed at any progress meetings, although he sometimes read the minutes of these meetings (Tr, 1229-1230). He also did not recall having any discussions about guide rails with anyone from Clough Harbour, Callanan or San Juan (Tr, 1227-1228). He did not authorize Callanan or San Juan to install a shorter span of guide rail than provided for in the plans and specifications (Tr, 1232-1233). In contrast to Mr. Clark's testimony, Mr. Slovik claimed that it was not his responsibility to insure that Clough Harbour was doing its job. His responsibility was only to set up meetings to resolve problems (Tr, 1226). Consequently, he did not take any measurements of guide rail and was unsure as to who would have been responsible to take such measurements (Tr, 1228, 1234).

Anthony Gregory,[14]
then the Director of the Bureau of Construction and Design at the Thruway Authority, was called as a fact witness and as an expert for defendant. Mr. Gregory testified that neither the contractor nor the subcontractor was authorized to make changes in the length of guide rail called for in the project plans. However, contrary to the statements he made in the June 18, 1985 letter to Callanan (Exhibit 8 discussed above), he testified at trial that the resident engineer, Mr. Racyzk, an employee of Clough Harbour, did have authorization to make on-site changes to the project specifications and plans. When asked if he had given Clough Harbour any authorizations to change the plans or specification, Mr. Gregory stated that "[t]he authorizations they needed were contained in their contract agreement and in the construction contract documents" (Tr, 1454).
The contract between Clough Harbour and the Thruway Authority (Exhibit
5) indicates that Clough Harbour was to immediately notify the Thruway Authority if it perceived the necessity for extra work (Exhibit 5, Art. 4), to immediately notify the Thruway Authority if any work was rejected as non-compliant (Exhibit 5 [Schedule A, sub1.1]), and to submit all documents, including orders on contract, in accordance with the MURK Manual (Exhibit 5 [Schedule A, sub1.5]). No other authorizations relating to changes in the plans or specifications are contained in the contract.
Mr. Gregory also testified that he would have expected his staff to be aware of any decrease in guide rail length but not necessarily to have participated in the determination that it was necessary (Tr, 1455). Again, this was contrary to his deposition testimony, in which he stated that his staff not only should have been aware of any changes but also should have participated in the determination that the change was necessary (Tr, 1456). At the deposition, he also stated that if Clough Harbour believed that field conditions warranted a modification of the plans, it would have been appropriate for them to investigate and develop recommendations "and then bring that back to the Authority through the chain of command, which could lead to changes." Those changes would have to be authorized in writing, he had stated, and "would definitely require involvement by the Authority and formal approval at some point in time" (Tr, 1458).

With respect to the final inspection that was made by the Thruway Authority prior to accepting the contract, Mr. Gregory stated that since the entire project was 20 miles in length, it would have been a ride-by type of inspection where the resident engineer, the contractor, and various Thruway Authority staff, would stop at various locations on the job, particularly bridges, to ensure that everything was accomplished in the manner required (Tr, 1451-1452).[15]
The videotape of that inspection was introduced into evidence (Exhibit 124).
As for the standards for determining the proper length of the guide rail, Mr. Gregory placed great weight on two documents that were dated November 4, 1996. The first, IR #1578 (Exhibit 26) is quoted above. It indicates that although the plans called for 312.5 feet of guide rail at this location, only 275 feet of that stretch of roadway had been paved and, consequently, the subcontractor was to go back and place posts along an additional 37.5 feet once paving was complete. The second document is the resident engineer's diary for the same day (Exhibit 25), which states on page 3:

This office observed that the blacktop at the farm road overpass approximate MP 132.7 S-BD is lacking a paved extension for guide rail of approximately 75'. This will be taken care of as soon as possible by the prime contractor probably tomorrow. In the meantime San Juan will only drive posts for 275' until the remain [sic] blacktop is placed and the point of need[16] can be adequately established for that run of rail on the approach side S-BD.[17]

It is on the basis of these notations (although his reasoning was not precisely clear) that Mr. Gregory presented defendant's central argument: that the length of guide rail at this location should or at least could have been calculated by the 15-degree rule because the chief danger to motorists at this location was a fixed object, the wing wall to an overpass.[18]
Mr. Gregory indicated that the 15-degree rule would have required 125 feet of guide rail to be installed (Tr, 1352-1353).[19] In contradiction to Dr. McGinnis, Mr. Gregory stated the 15-degree rule sets only the minimum, not the maximum, length of guide rail. Therefore, when San Juan installed a greater length (i.e., 212.5 feet), the engineer would have weighed the cost of removing the excess guide rail already installed against just leaving it as is, and would have left the excess amount standing (Tr, 1364).
Mr. Gregory could not provide the authority for the proposition that the 15-degree rule sets a minimum, not the maximum or fixed, length of guide rail. Nor could he explain why San Juan would have erected more than the 125 feet as required by this rule. He acknowledged that when a guide rail is installed without any need, it is a hazard (Tr, 1449;
see also, Exhibit 17, §10.01.02[A] ["guide rails are themselves a roadside hazard"]). In addition, Mr. Gregory failed to provide any testimony as to the comparative costs for removal of guide rail as compared to leaving it in place, to support his hypothesis as to why a greater length would have been left in place. Finally, he failed to explain why the November 4, 1986 documents still referred to additional amounts of guide rail being needed or why the original plans and the subsequent as-built drawings reflected the longer, 312.5-foot length as being planned and supposedly installed at the accident location (Tr, 1419). Upon cross-examination, Mr. Gregory admitted that his file did not contain any written statement relating to a field change either before or after the November 4, 1986 date on the documents mentioned above.
As to the structure of responsibility within the Thruway Authority staff on this project, Mr. Gregory explained that Mr. Clark, as Mr. Sovik's immediate supervisor, would meet with Mr. Sovik periodically to provide him direction and to review his responsibilities. Mr. Gregory was not aware of any problems with Mr. Sovik's performance (Tr, 1428), and he encouraged Mr. Clark to spend more time in the field (Tr, 1429). The resident engineer had weekly field meetings with the contractor's superintendent and prepared minutes of those meetings. It was Mr. Sovik's responsibility to review those meeting minutes (Tr, 1430-1431). Mr. Gregory acknowledged that San Juan had been generally slow with the installation of the guide rail (Tr, 1431).[20]
He admitted that if Mr. Sovik discovered a problem with San Juan at a weekly progress meeting, Mr. Sovik should have informed Mr. Clark, who in turn would have informed him (Tr, 1432).
Kevin Breen, claimant's accident reconstructionist, testified regarding the path of the vehicle and forces to which it was subject. After viewing the photographs of the Church vehicle following the accident (Exhibits 2G-2K; Exhibits 43-45 ) and noting that the roof rack, roof corners, and windows were still intact, he concluded that the car did not roll over (Tr, 268-272). Mr. Breen observed that the trunk was sprung and the right rear bumper was pushed up more than the left bumper (Tr, 269-270). He testified that this type of damage indicates that at some point in the accident the right rear part of the car landed hard on the ground (Tr, 273). Exhibit 45 shows that the left front wheel of the Church vehicle was forced back into the wheel well; the front bumper cover had broken free; there was greater damage to the right front grill than to the left front grill; the hood was sprung; the windshield was pushed up; and there was a noticeable "V" in the roof on the left hand side of the car. This type of damage, he said, indicated that a force came up to the bumper, not straight into the front of the car. The force flexed the car so that the front end was bent in a "V" shape relative to the back of the car (Tr, 277-279). A less severe force impacted the rear of the car and bent the rear bumper, allowing the bumper cover to fall off and spring the trunk (Tr, 283).[21]

As noted above, Exhibit 54, a schematic drawn by Mr. Breen, shows the slope over which the vehicle traveled while airborne, the point where the vehicle touched the ground after being airborne, and the point where it finally came to rest. As the front of the vehicle made contact with the ground after being airborne, it sustained a large force that caused the "V" in the roof, and as the rear end of the car touched the ground, the vehicle sustained another force which resulted in the damage to the bumper and the trunk lid (Tr, 362). According to Mr. Breen, the "Delta V" of this accident, a term used to measure the severity of a crash, was in excess of 20 MPH. He estimated that this would be the equivalent of jumping off a two story building in terms of the forces that the occupants of the vehicle experienced (Tr, 369).

Based upon various photographs[22]
taken the day of the accident by defendant and the damage sustained by the Church vehicle, Mr. Breen opined that the vehicle left the paved portion of the roadway near mile marker 132.8, contacted the reflector delineator with the left front corner of the vehicle, contacted the corner of the anchor pad (the curved section marking the end of the guide rail) with the left part of the vehicle,[23]continued down through the ditch and up the opposite side of the ditch. It continued on all four wheels until it reached the point of an embankment where it became airborne, following a trajectory to a point 15 feet below it. It ultimately contacted the ground, first with the front part of the vehicle striking the sloped toe area of the embankment and then followed by the rear of the vehicle. It rolled out and came to a stop (Tr, 330-331; see Exhibits 52 and 54). He also relied on the deposition of Mark Stevens, the eyewitness to the accident, in his analysis (Exhibit 68).
Mr. Breen testified that the angle of departure (the physical angle that the vehicle makes with the road as it leaves the road) was a shallow 5 degrees (
see Exhibit 56). The shallowness of this angle indicates that a drift happened without any driver input (Tr, 345-346). The angle of departure also affects the deflection of a vehicle from a guide rail. The exit angle, the angle at which a vehicle would exit from contact with the guide rail (Tr, 347) is always less than the departure angle. In this case the exit angle would have been 3 degrees if a guide rail had been in place (Tr, 348).
Exhibits 56 through 58 show how the Church vehicle hit the guide rail over the anchor pad and how the Church vehicle would have hit a guide rail if there had been one in place at this location as called for in the contract plans. If there had been a longer guide rail in place, the Church vehicle would have hit it at a shallow 5 degree angle, deflected from the guide rail at an angle less than 3 degrees, thereby placing it parallel to its path of travel but in the shoulder of the road. If this had occurred, he stated, the accident would have resulted in little more than a "glancing blow" on the guide rail with redirection of the vehicle back onto or parallel to the roadway and no transfer of severe forces to its occupants (Tr, 405-406). The primary damages would have been to the Church vehicle and that would have been repairable (Tr, 407). Mr. George Gaborow, a claims engineer at the Thruway Authority, testified for the defendant. Utilizing Exhibits P and P-3, photographs of the anchor and guide rail assembly at the beginning of the 212.5 foot section of guide rail directly in front of the point at which the Church vehicle left the road, he testified that the height of the anchor closest to the roadway was seven inches above ground and the height of the anchor furthest away from the roadway was 11 inches (Tr, 1473,1475; Exhibit P). The height of the guide rail assembly closest to the road was 11 inches and the height of the guide rail assembly furthest away from the roadway was 12 inches (Tr, 1475; Exhibit P-3). Using an exemplar vehicle of a 1992 Volkswagen Jetta, he measured the distance between the undercarriage and the ground as 6¼ inches. He testified that to the best of his knowledge no photographs were taken of the anchor on the day of the accident, and he had no information as to whether the ground had changed in any way in the 11 years since the accident (Tr, 1492). Based on the photographs, however, he did not think the ground had changed much since then.[24]
Apparently the thrust of this testimony was to imply that the injury to the Church vehicle, and thus to claimant, could have been caused when the vehicle impacted with the guide rail anchor rather than when it went down the slope. The testimony of the accident reconstructionist, however, convincingly suggests that the damage to the vehicle could not have been caused by that relatively slight impact.
Dr. Murray Mackay[25]
, a mechanical engineer who specializes in the biomechanics of injuries, vehicle design and crash performance, also testified as an expert witness for claimants. He defined biomechanics as the study of the human body subject to mechanical forces, crash forces, accelerations and loads. Part of the determination of a vehicle's crashworthiness, the ability of a vehicle to protect its occupants and other road users, is an analysis of its seat belt restraints (Tr, 564-565). The best belt is the diagonal shoulder belt which claimant was wearing the day of the accident (Exhibits 73 & 74). In his opinion the seat belt that claimant was wearing that day was functioning properly (Tr, 574).
Dr. Mackay testified that there can be horizontal and vertical forces in accidents. Because the majority of accidents happen horizontally, vehicles have energy absorbing front and rear ends and reinforced side structures (Tr, 574). Claimant's accident had a horizontal and vertical component, however, and most vehicles are not designed to handle any vertical component of a crash, which in this case was the vehicle's drop of 12½ feet (Tr, 575). Indeed, according to Dr. Mackay, the vertical component of the accident was a significant factor in claimant's injuries (Tr, p 577). While the vehicle was airborne and coming down, it forced claimant down into the seat and forward into the belt so that his head went forward, his chin went to his chest, and there was an elongation of the neck that caused severe bleeding in and around the spinal cord (Tr, 580). Dr. Mackay opined that the injury occurred when the vehicle landed nose down, which generated a force that came up from an angle, not a horizontal force. Consequently, claimant went down in his seat and forward into his restraint system at the same time (Exhibit 62). That combination of forces generated a "flexion distraction injury" for claimant, who was wearing a lap/shoulder belt (Tr, 585).

Dr. Mackay explained that a nine-year-old child has a relatively large head in proportion to his body but his neck structure is not as advanced as it would be with full growth. He estimated that the circumference of claimant's neck as a nine-year-old was only 11 inches for his height and weight, while the average adult male neck is 15 or 16 inches. The smaller, weaker neck is one of the biomechanical factors that predisposes small infants and children to this type of neck injury (Tr, 590-592; Exhibit 61).

In Dr. Mackay's opinion, simply hitting the portion of the guide rail curved over the anchor pad at 60 MPH could not have caused the injuries that claimant sustained, particularly since that blow was to the left-hand side of the car and claimant was seated on the right-hand side.[26]
According to Dr. Mackay, there was no situation in this accident that could have generated the forces necessary to cause claimant's injury until the vehicle became airborne and had a nose down impact (Tr, 597-600). He agreed with Mr. Breen that if the Church vehicle had hit a guide rail at a 5-degree angle, it would have been deflected parallel to the roadway with no major damage to the vehicle and probably none to the occupants (Tr, 601-603).
Property owners owe a duty of reasonable care to those with whom they interact (Basso v Miller, 40 NY2d 233, 241 [1976]), and the scope of that duty is measured in terms of foreseeability (Perrelli v Orlow, 273 AD2d 533, 534 [3d Dept 2000], citing Pizzola v State of New York, 130 AD2d 796 [3d Dept 1987]). With respect to roads and highways built, owned and maintained by public entities, such as the State or the Thruway Authority, there is a nondelegable duty to adequately design, construct and maintain these roadways in a reasonably safe condition (see, Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579). The State is not an insurer of the safety of its roadways, however, and therefore the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1990]). In general, the State has fulfilled its duty to the traveling public when a highway is made reasonably safe for those who obey the rules of the road, despite the fact that almost any road can be made safer in some fashion (Tomassi v Town of Union, 46 NY2d at 97). In the instant case, claimants bear the burden of establishing that defendant was negligent in connection with its reconstruction of this part of the Thruway and that such negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020, 1021-22 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]; Demesmin v Town of Islip, 147 AD2d 519 [2d Dept 1989]).
Ordinarily, liability will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to remedy it (
see, Brooks v New York State Thruway Auth., supra; Valentino v State of New York, 62 AD2d 1086 [3d Dept 1978]; Rinaldi v State of New York, 49 AD2d 361 [3d Dept 1975]). But the owner of a property or a structure is deemed to be on notice of a defect or danger if it caused or created the condition by affirmative acts of negligence or active negligence:
An exception to the general rule exists where the condition causing the injury was created or maintained by the public authority itself . . . in which case no notice is necessary as a condition precedent to liability. Moreover, where the condition causing the injury constitutes a nuisance, as where there was improper construction of the highway in the first instance . . . no notice thereof is necessary as a condition precedent to liability.
(65 NY Jur 2d, Highways, Streets, and Bridges § 397; see also, Hughes v Jahoda,
75 NY2d 881 [1990]["[t]he Town was aware of the ‘condition' when it designed and constructed the roadway and positioned the utility pole."]; Herzog v Schroeder, 9 AD3d 669, [3d Dept 2004]["defects affirmatively created by the municipality in its highway constitute an exception to this general rule" requiring proof of notice]; Fiege v State of New York, 189 AD2d 748 [2d Dept 1993].)
The State and Statewide entities, such as the Thruway Authority, have qualified immunity with respect to discretionary decisions made in the planning and designing of a highway. This means that liability cannot be imposed unless such decisions were based on a study that was plainly inadequate and/or the plan or design lacked a reasonable basis. "[L]iability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis" (
Weiss v Fote, 7 NY2d at 589). The Court of Appeals explained the reason for immunizing the planning body in these situations: "To accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts." (Id. at 585-586; see also Friedman v State of New York, 67 NY2d at 283-284. ["While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality's planning and decision-making functions." id. at 283]). Immunizing these decisions, when they are appropriately made, is thus supported by public policy, as it prevents the trier of fact from "second-guessing the planning decisions of governmental bodies regarding such operations as traffic control and regulation" (Deringer v Rossi, 260 AD2d 305, 306 [1st Dept 1999]).
Conferring immunity in this context is in accordance with the general protections of sovereign immunity because planning and design decisions made with respect to the design, repair and maintenance of highways are discretionary or quasi-judicial in nature (
id.; Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [3d Dept 1983], affd 61 NY2d 955).
[T]his immunity [for discretionary actions] reflects a value judgment that – despite injury to a member of the public – the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.
(Haddock v City of New York, 75 NY2d 478, 484 [1990]). Typically, therefore, if experts have varying opinions about whether a planning decision was proper, that difference of opinion is sufficient to establish that the decision was reasonable (Schwartz v New York State Thruway Auth., supra; Trautman v State of New York, 179 AD2d 635 [2d Dept 1992]). "[S]omething more than a choice between conflicting opinions of experts is required before a governmental body may be held liable for negligently performing its traffic planning function" (Affleck v Buckley, 96 NY2d 553, 557 [2001]; see also Buhr v State of New York, 295 AD2d 462 [2d Dept 2002]; Joyce v State of New York, 152 AD2d 306 [3d Dept 1989]).
The question presented here is rather unique, however. Neither party contends that there was any problem with the original plans and design, developed for the Thruway Authority by Envirodyne, that provided for a 312.5-foot guide rail at the location in question. It is the shortening of the guide rail to 212.5 feet that is challenged by claimants. They contend that this change was erroneous, a negligent mistake for which the Thruway Authority can be liable.

Defendant has no information about the manner in which Envirodyne made the decision to provide for 312.5 feet of guide rail at the accident location in its original plans. Defendant also possesses no documents or other information that supports its theory that the shorter guide rail was properly authorized. It contends, nevertheless, that change was made intentionally and was one that Mr. Raczyk was authorized to make. This change, the defendant argues, can be justified by reference to the 15-degree rule, rather than the 350-foot rule that was apparently used by Environdyne. All three of these contentions, on which defendant bases its case, are wrong and suggest a type of analysis that should not be undertaken.

There is absolutely nothing in the evidence presented at trial, testimonial or documentary, to suggest that there was an intentional decision, on the part of anyone, to shorten the guide rail at this location. There is only speculation by the Thruway Authority about what could have happened in the mind of someone who is now deceased. There is simply no factual basis to support this speculation. There were no contemporaneous records, no change order as required by the contract and the MURK manual, no adjustment to the unit price for materials not used, no notes in weekly meetings, and no memory on the part of anyone about conversations with Mr. Raczyk about such a proposed change. Records produced at trial, that related to more minor changes to the original plans, demonstrate what type of evidence the Thruway Authority should have provided to support and explain its alleged decision to use the 15-degree rule.

If Mr. Raczyk had for some reason determined that a shorter guide rail was needed, he would have had to put the requested change into writing, obtained the approval from the Thruway Authority and taken other steps such as changing the quantity of materials to adjust the amount owed to suppliers. Since he did this on the other, even smaller, changes and did not follow the same procedure with respect to the alleged decision to delete 100 feet of guide rail at the accident location, the inescapable conclusion is that everyone involved intended the design plans to be followed and believed that they had been followed. This is also supported by the fact that San Juan billed for the installation of the full amount of guide rail and was paid by the Thruway Authority as if the additional 100 feet had been installed. The August 7, 1986 letter from Mr. Gregory (Exhibit 8), stating that no additional work is to be performed unless there is a written order, also reinforces this conclusion. The Thruway Authority had ample opportunity and a duty to see that the contract was fulfilled and that it received the work for which it paid. Mr. Sovik was on site daily, and if he did not fully understand the duties of his job, it was up to his supervisor to correct that. Mr. Clark was frequently on site. Mr. Gregory was involved with and aware of even small details, and it was the Thruway Authority that made the final inspection and accepted the complete project. Finally, there can be no dispute that neither Mr. Raczyk nor anyone else was authorized to make field changes to the specifications of the original plans without commencing the order on contract process and, at some point, obtaining the Thruway Authority's agreement to the change.

Inasmuch as there was no conscious, intentional decision to modify the design requirements by shortening this section of the guide rail, there is nothing for the Court to determine with respect to whether the alleged decision to change the design was based upon adequate study and/or had a reasonable basis. There simply was no decision. In the Court's view, the inquiry could, and perhaps should, stop here. If the Thruway Authority can rely on the doctrine of implied immunity when it carries out reasonable, adequately based design plan decisions, then it seems only logical and fair that it loses that immunity as soon as it fails to carry out those design plan decisions. Just as public policy requires the presumption that soundly developed plans provide the necessary protection for the public, it should also be presumed that failure to carry out such plans does not provide the necessary protection when injury occurs from that failure. It is not the province of the Court to second-guess the decision of the planning body in either situation to determine if something better could have been designed in the situation where the plans are followed or to determine if a departure from the plans created a result that might also be considered satisfactory. When a governmental entity properly develops a design plan for construction, the courts are to accept that plan as the standard to be met in either direction: compliance with the plan's specifications entitles the defendant to immunity because it meets the standard, and non-compliance with the plan's specifications deprives the defendant of immunity, leaving it liable for injuries that are caused, at least in part, by the deviation from the plan.

In a recent case, another judge of this Court has taken this approach. As with the instant case, the original design plans in
McDonough v State of New York (Ct Cl, Claim No. 100565, July 14, 2004, Lebous, J., UID # 2004-019-011) called for a guide rail that extended across the accident site. The as-built plans in that case did note the omission, but no explanation was provided. Although the standard in effect at the time of reconstruction did not necessarily require a guide rail to be placed there, because one had been indicated in the design plans, the Thruway Authority was required to "come forward with . . . proof indicating that it adequately studied the situation and that there was a sound engineering basis for the exclusion of the guide rail." When it failed to do so, Judge Lebous held that the Thruway Authority had breached its duty to design, construct and maintain its highways in a reasonably safe condition.
Taking this approach, the Court's inquiry would go immediately to the consideration of whether the missing section of guide rail was a proximate cause of claimant's injuries. The unavoidable fact is that in this case the "decision" to shorten the guide rail to 212.5 feet was not a decision at all: it was shortened as a result of a mistake. An essential part of the immunity accorded discretionary design plan decisions is that the governmental entity actually made a decision about the feature in question. The Third Department has stated that in order to take advantage of the immunity accorded to governmental planning decisions,
[I]t is defendant who has the burden initially of demonstrating, prima facie, its right to judgment on the basis of qualified immunity; it must show that the decision to refrain from placing a guardrail or warning signs on the curve was the product of a deliberative decision-making process, of the type afforded immunity from judicial interference . . . Only after such a showing has been made does the burden shift to plaintiff to present evidence supporting a finding that immunity should be denied on one of the grounds set forth in Weiss v Fote (supra, at 586).
(Appelbaum v County of Sullivan, 222 AD2d 987, 989 [3d Dept 1995][citations omitted].) In the instant case, defendant did not provide any probative evidence to demonstrate that the actual length of guide rail at this location was the result of any "deliberative decision-making process."
Nevertheless, defendant apparently believes that the Thruway Authority can avoid liability if it is shown that the configuration that was actually built, had it been normally adopted as an actual plan, would be considered an acceptable design reached in accordance with the relevant standards of highway design. Defendant wants to take advantage of the qualified immunity in both situations: where it has built a structure in accordance with a design plan that meets the
Weiss v Fote requirements and also where it has deviated from the original design plan but, in the process, produced another configuration that could be said to have a reasonable basis, even if that "design" was achieved not after careful study but by happenstance. In the Court's opinion this comes dangerously close to "having one's cake and eating it, too." If public policy prevents the courts from second-guessing discretionary governmental planning decisions, even though individuals may be harmed by those decisions and are denied recovery, can public policy in different circumstances, allow courts to engage in the otherwise forbidden second-guessing for the sole purpose of denying recovery when the government's planning decisions were not implemented and injury resulted?
While the Court is of the opinion that the answer to that question would be in the negative, it is not necessary to decide the matter at this point, for in the instant case defendant entirely failed to prove that the existing 212.5-foot guide rail conformed to either of the standards set forth in the Design Manual. First, in order to say that the 15-degree rule was applicable, it would be necessary to find that the slope the Church vehicle traveled was traversable. The only evidence to suggest that it could be considered traversable was the testimony of Mr. Dodds, who used the questionable "slope averaging" method, who admitted that he did not apply the definition of traversable found in the Design Manual, and who agreed with Mr. Breen's calculation that at the precise point where the Church vehicle left the roadway the slope was 2.5 on 1, which makes it non-traversable under the Design Manual's criteria. This testimony must be weighed against the testimony of Dr. McGinnis, the testimony and measurements of Mr. Breen, and the rather indisputable and compelling fact that the Church vehicle was not able to safely traverse the slope. Surely all of the measurements and estimates of traversability are an effort to determine, without carrying out actual experiments, whether a vehicle can safely go down certain slopes. Here, unfortunately, there is concrete evidence that it could not.[27]

In addition, a proper application of the 15-degree rule would not result in a 212.5-foot guide rail. Mr. Gregory testified that this rule sets "only the minimum, not the maximum, length of guide rail," but Dr. McGinnis testified to the contrary, stating that rule is not flexible, that guide rails must be the length indicated by the measurement, no shorter and no longer. Here, according to defendant's witnesses, the 15-degree rule would call for a guide rail of either 125 or 94 feet. In fact, the guide rail that was installed was 212.5 feet, a significant increase whichever starting figure is accepted. In view of the fact that a guide rail is considered a hazard, the Court finds it highly unlikely that any rule of measurement would be so flexible that it would allow a doubling of the designated length of a rail. The language of the Design Manual supports Dr. McGinnis's view on this issue. Pursuant to section 10.01.04, when the 350-foot rule is used, the starting point (the "point of need") is to be "determined in the field." With respect to the 15- degree rule, in contrast, there is no similar language indicating such flexibility in the beginning and ending point of the guide rail. No witness, not even Mr. Gregory or Mr. Dodds, suggested that Envirodyne had applied the 15-degree rule when designing the original plans. Indeed the possible application of that standard only appears for the first time as the Thruway Authority was preparing for this lawsuit. The inevitable conclusion is that this method of measuring guide rail length was inapplicable to this location, was never applied to this location and, if applied, would not have resulted in a guide rail of 212.5 feet.

There is no legal defense available to defendant in this case. The original plans were not followed because of a mistake, a mistake that was not noticed even though it was known that the full length of guide rail had not been installed because the area had not been fully paved. Thereafter, it appears that everyone who was in a position to have noted the discrepancy simply assumed that the full length of rail had been installed once paving was complete. Thruway Authority employees were negligent in failing to see to it that the additional portion of guide rail was installed and in failing to catch the irregularity once the mistake was made. These employees were negligently trained since they were unaware that they should monitor compliance. There were several points at which this monitoring could, and should have occurred. Instead, San Juan was paid for all the planned work, despite the fact that some of that work was not performed, and the project was accepted after an inspection which could have and should have easily shown that a significant portion of the planned railing was missing.

It is evident that the Thruway Authority's negligence, in its failure to recognize that its plans were not followed, was a proximate cause of claimant's injuries. The evidence establishes that if the guide rail had been in place as designed, the outcome of this accident would have been very different.
As noted above, although defendant alleged that the culpable conduct of claimant or a third party caused or contributed to the damages in this claim, defendant did not prove at trial or argue in its brief that either claimant or a third party contributed to damages (Verified Answer).

Dr. John Long,[28]
claimant's pediatrician since the age of 4, testified that claimant was in excellent health prior to the accident. According to claimant's mother, claimant was a good student and an excellent soccer player. Although he was active with basketball, baseball, and skiing, soccer was the sport in which he excelled (Tr, 804-805). During the summer prior to the accident he had learned how to water ski at Lake George where his family spent a few weeks each summer. Claimant was actively engaged in recreation with his friends (Tr, 895).
As claimant's primary physician, Dr. Long testified regarding claimant's medical history since the accident. Immediately following the accident, claimant was transported to Albany Medical Center where he was admitted to the Pediatric Critical Care Unit. His initial Glasgow coma scale was 4.[29]
At Albany Medical Center, claimant was diagnosed with an epidural hematoma from C1 to C5 (the spinal column in the area of the neck; Exhibit 1), a cerebral edema (swelling of the brain tissue), a subarachnoid hematoma (a collection of fluid between one of the layers covering the brain and the brain tissue), and a partial transection of the left side of the spinal cord between C1 and C2 (approximately half of the spinal cord was cut) (Exhibit 118, pp 8-10). Since the left side of the spinal cord was partially severed there was a discontinuity between the brain stem and the C1 level (the very beginning of the spinal cord) and the rest of the spinal cord, rendering claimant a quadriplegic (Exhibit 119, p 17; Exhibit 1). This partial transection of the spinal cord also caused Brown-Séquard syndrome, which causes claimant to have sensory preservation on the left side of his body, but not on the right side, which is his stronger side (Exhibit 119, pp 12 and 32). Any spinal cord injury above the C3 level cuts off the nervous system to the diaphragm, affecting his ability to breathe. Claimant will be ventilator-dependent for the rest of his life (Exhibit 119, p 18).[30]
He underwent laminectomies from C2 through C5 to evacuate a blood clot, a tracheostomy to breathe, a gastrotomy (a hole in the abdominal wall and a tube placed directly into the stomach/G-tube) that allows him to be fed, and the placement of a ventriculoperitoneal shunt that drains spinal fluid from the brain cavity. All of these procedures are permanent. Additionally, for the rest of his life he will require catheterization for drainage of his bladder every 4 hours and a program every other night to allow normal bowel function (Exhibit 118, pp 13-14). He will also remain completely dependent on others for the activities of daily living (grooming, bathing, personal hygiene and eating) (Exhibit 118).

In early 1993, claimant was transferred from Albany Medical Center to the Alfred I. duPont Institute in Delaware for intensive rehabilitation for six months. At this institute, claimant underwent an anterior cervical fusion from C2 through C5 because he developed an early post laminectomy kyphosis of the cervical spine that limited motion.[31]
He regained some control of his head and learned to move his wheelchair through a mouth stick (Exhibit 118, p 15). Approximately 2½ years later, claimant recovered minimal use in his right hand-fingers so he could move his wheelchair by a hand device (Tr, 868-869). According to Dr. Long, he will be wheelchair dependent the rest of his life. Claimant is now able to do some computer work with his right hand (Exhibit 118, p 27), but he also utilizes voice recognition software (Exhibit 118, pp 27-28).
In July 1993, claimant returned home to Shelburne, Vermont, where his parents had renovated their home to accommodate him,[32]
to start his new life as a quadriplegic. He required then, and will always require, 24 hours per day of nursing assistance. Claimant has had one nurse, Fred Langevin, for one shift per day for almost the entire time since he returned home from the A.I. duPont Institute. During the early years after the accident, Mr. Langevin accompanied claimant to school on the bus, sat with him in class, and took notes for him as needed. Claimant was on the ventilator 24 hours a day and needed to be frequently suctioned to remove fluid from his airways, since he is unable to cough (Exhibit 119, 23). When the ventilator's alarm went off during school, Mr. Langevin would bring him to the nurse's office, suction him and bring him back to class. At lunch time, claimant would receive a nutritional supplement through his G-tube and then go back to class. In addition to his regular daily routine, twice a week the day nurse has to put claimant in a standing frame, which places him in an upright position (Exhibit 67). This procedure stimulates muscle strength and bone development (Exhibit 118, p 51).
Claimant can never be alone. The State provides 16 hours a day of nursing (Tr, 901). Until claimant went to college, claimant's parents usually provided nursing care for the evening shift (3:30 P.M.-11:30 P.M.)(Tr, 810). They catheterized him;[33]
brought him to physical therapy, occupational therapy, or hydrotherapy sessions when needed; made sure he got his proper fluid intake; and gave him his medication and food (Tr, 902). The night nurse (11:30 P.M.-7:30 P.M.) would catheterize claimant every four hours, give him an enema every other night, give him his supplements and fluids, turn him every two hours to prevent bed sores, do range of motion exercises and place splints on his hands and feet to prevent muscle atrophy (Tr, 865). Also, night nurses are responsible for monitoring the ventilator and claimant's respiratory function. If claimant develops a mucous plug while on the ventilator, the ventilator may not function. Therefore, claimant's breathing and oxygen levels must be monitored. The ventilator also needs to be checked so that there is no equipment failure. If there is a blackout, a generator must be activated (Tr, 1041). As noted above, claimant has weaned himself off the ventilator for 10 to 12 hours per day but he is always ventilator-dependent at night.
In addition to his weekly therapies, claimant took part in special programs to treat his quadriplegia. In 1996, claimant went to Baylor College of Medicine in Houston, Texas, for electrical nerve stimulation. He also went to Wayne State University in Detroit, Michigan, for medication to stimulate his respiratory function (Exhibit 118, p 23). Claimant also sees and will continue to need seeing several specialists on a regular basis. These include a primary care physician, a pulmonologist, a neurologist, a physical rehabilitation physician, a nutritionist, and a urologist.

Claimant is prone to urinary tract infections from the continual use of a catheter (Exhibit 118, p 29). He is presently on several medications including: Fosamax (for bone loss), Ditropan and Levbid (for bladder function), an antihistamine and enemas (Exhibit 118, pp 30-31). Claimant has developed a syrinx which is an abnormal collection of fluid within the spinal cord. If it expands it could put pressure on the remaining spinal tissue and compromise his functioning (Exhibit 118, p 43). Risky surgery to correct this condition may be needed at a later date.

Dr. Jay Rosenfeld[34]
, a physical medicine and rehabilitation physician whom claimant has seen sporadically over the years, also testified for claimant. He stated that some of the potential medical problems that quadriplegics commonly develop include osteoporosis and bone fractures since there is no nervous system stimulation to the bones below the level of injury, pressure sores from the constant sitting and lying, infections of the respiratory system, and heart attacks. Claimant's genitourinary system will have to be closely monitored for kidney failure. Since the bladder is disconnected from the brain stem, it could contract on its own and place more pressure on the kidneys (Exhibit 119, pp 36-42). Dr. Rosenfeld testified that claimant can feel pain since he does have preservation of sensation over the left side of his body (Brown-Séquard Syndrome). Potentially, central pain syndrome (a severe burning sensation below the level of injury) could cause pain on the right side.
Dr. Rosenfeld testified that claimant's life expectancy is approximately 65 years and that he will always require around-the-clock nursing care (Exhibit 119, pp 44 and 46). He believed that claimant could greatly benefit from visiting a center for spinal cord injury so he could be made aware of all the advances being made in this area.[35]
He also thought that claimant would be a candidate for Functional Electrical Stimulation ("FES") that enables a quadriplegic to pedal a bicycle through the use of electrodes and a computer program. This will enable claimant to stay in shape so if there is a cure for spinal cord injuries, he would be in the best physical shape to take advantage of it (Exhibit 119, pp 47-49). He opined that claimant could become a father only through electro-ejaculation where sperm is stimulated through a probe and then artificially inseminated (Exhibit 119, p 55). He testified that claimant will need the following services for the rest of his life: a case manager to bring together the various disciplines that are taking care of him, physical therapy, medical specialists, durable equipment such as wheelchairs, ventilators, medications, and various disposable goods (Exhibit 119, pp 52-54).
At the time of trial, claimant was a junior at the University of Vermont, majoring in psychology with minors in English and art (Tr, 922). He is contemplating a career in counseling (Tr, 923). He lived in a dormitory for the first two years of college, and remarkably, now lives off campus in an apartment with his nurses and three roommates (Tr, 922). Other than studying, his activities include painting[36]
, going to the movies, boating, paintball[37], and attending baseball games. Due to the current nursing shortage, the nursing agency cannot cover all shifts so claimant's parents have hired or provided supplemental nursing themselves from Thursday nights through Sunday. On average his parents provide two to three shifts per week usually on the weekends (Tr, 917).
Claimant produced Exhibits 85 through112 which were verified as past damages by Barbara Church (Tr, 828-859).[38]
These damages include costs for Albany Medical Center, the Alfred I. duPont Institute, various physician medical charges, dental costs, renovations to the home of claimant's parents, nursing, travel, a computers and software, occupational and physical therapy charges, pharmaceuticals, and durable equipment. The total for these past medical damages was $2,903,636.00.
Claimant produced two witnesses who testified regarding future damages: Jane Mattson,[39]
a certified life care planner, and James Lambrinos,[40] an economist. Dr. Mattson met with claimant, his family and his physicians and presented a life care plan for him based upon his estimated life expectancy of 65 years. She divided her life care plan (Exhibit 120)[41] into the various categories over several age periods of claimant's life. These categories and her estimations of their present value are:
Care: Continuation of 24 hours of licensed practical nurse care per day is recommended but the nurses should be hired privately rather than through an agency which is more expensive. Licensed practical nurses are paid $25.00 per hour. The plan incorporates a one- time agency buy-out fee so claimant may retain some of his present nurses. Funds are included for health benefits for two of claimant's nurses (Tr, 1043-1044).
Case Management: Since claimant will have the skills to take over his own case management in a few years, the plan front loads case management fees in the first three years for 250 hours, 200 hours and 100 hours, respectively. Thereafter, the plan includes only 25 hours per year for case management (Tr, 1045).
3. Rehabilitation Services: Claimant will need to receive physical therapy twice a week until age 22 and two physical therapy evaluations per year after the age of 22. Claimant will also need to maintain membership in a health club for access to a pool for aquatic exercise (Tr, 1045-1046).
Rehabilitation Evaluation: Dr. Mattson recommended a one-time, three-week visit to a premier center for rehabilitation, such as Craig Hospital in Colorado or TIRR in Houston, Texas, for claimant's evaluation and education regarding the issues of medical care, therapies, technology, equipment and sexuality. She also recommended an annual spinal cord evaluation at a spinal cord center and a visit to the St. Louis Rehabilitation Facility for the evaluation of claimant for a StimMaster FES bicycle and the purchase of a StimMaster bicycle (Tr, 1046-1049).
Medical Insurance: In order to make claimant more attractive to prospective employers, the life care plan includes funds for private medical insurance for him from the age of 22 (Tr, 1049-1050).
Medical Care [42]: Amounts are included in the life care plan for claimant to visit a state- of-the-art treatment center for spinal cord injuries which may not be covered by insurance costs, and a one time allowance is included for the treatment of claimant's syrinx. This part of the plan also includes: an annual 5-day spinal cord reevaluation at a spinal cord injury center; two extra visits per year to an internist; urinalysis tests four times a year; blood tests twice a year; visits to a pulmonologist twice a year; visits to a podiatrist four times a year; and an annual allowance for hospital stays (Tr, 1051-1052).
Durable Equipment: Amounts are included for the following equipment: a power wheelchair and manual wheelchair (replaced every 5 years), an electric hospital bed (replaced every 10 years), hydraulic standing frame (replaced every 10 years), StimMaster bicycle (replaced every 10 years), and ventilators (replaced every 5 years) (Tr, 1052-1054; Exhibit 120,
p 6).
Medication: Claimant will need, on a permanent basis, Ditropan, Fosamax and an annual allowance for antibiotics for urinary tract infections (Tr, 1054).
Disposable Items: This list of equipment includes catheters, lotions, gloves, suctioning tubes, tracheotomy kits and other supplies needed on a daily basis (Tr, 1054).
Home Modification: An allowance is incorporated into the life care plan to pay for modifications to two homes for claimant in the future (Tr, 1055).
Household Services: Assuming claimant has his own home at age 30, funds are included for house cleaning once a week and outdoor maintenance of 10 hours per month (Tr, 1055; Exhibit 120, p 7).
Transportation: Funds are provided for modified vans with a computerized drive system to enable claimant to drive his own van. The cost of the vans is amortized over the life of each vehicle (8 years) (Tr, 1055-1056; Exhibit 120, p 8).
A number of the items listed above can be classified as one-time or non-recurring. These include the nursing agency buyout; modifications to two homes in the future (Tr, 1055); the initial case management of 475 hours; fee for joining the YMCA; the initial rehabilitation evaluation; home modifications; initial case management; initial evaluation at a spinal center; initial FES StimMaster evaluation; fund for state-of-the-art procedures or products not covered by insurance; and the syrinx treatment or surgery (Tr, 1057-1058). Dr. Mattson estimated that these items would cost a total of $453,550.00, calculated in 2003 dollars (
see Exhibit 120).
The continual costs (daily care, case management, rehabilitation services, medical expenses, durable equipment, and disposables) were calculated for different periods, as claimant's needs would vary somewhat depending on his age. The cost estimates were broken down into separate totals for the following ages: 20-21, 21-22, 22-30, and 30-65. The total for all these annual costs, in 2003 dollars, is $14,590,175.00. This total includes all one-time non-recurring costs (
see Exhibit 120).
Dr. James Lambrinos[43]
, a professor and economist from Union College, testified regarding the amount of lost wages that claimant will incur due to his disability in future years and the inflation rates to be applied to Dr. Mattson's life care plan costs. In order to calculate claimant's future earnings, Dr. Lambrinos used data from the Age Earnings Profile[44] in 1999 from the U.S. Bureau of the Census for a college graduate. He then chose the "all workers category", which includes people who are not working full-time, as opposed to the "full-time workers category", which would have produced a higher number (Tr, 952-954). In order to choose a wage inflation rate, he studied the rates for the past 25 years and chose a lower inflation rate of 3%. The work-life expectancy of a 22 year old white male graduate is 39 years, so Dr. Lambrinos calculated that claimant could earn $5,537,277.00 over the course of 39 years until the age of 61. He added $675,548.00 for social security contributions (6.2% of earnings ) and a private pension plan (6% of earnings from a U.S. Chamber of Commerce study) for a total of $6,212,825.00 (see Exhibit 116) for earnings and benefits over claimant's lifetime. Dr. Lambrinos calculated that claimant could lose earnings from the loss of time in the workplace. Dr. Mattson had estimated that claimant could be out of work between 10 to 25% of the time due to his disability on the basis of information collected for the National Spinal Cord database (Tr, 1108-1111). Dr. Lambrinos estimated, therefore, that a loss of 10% of time would trigger a $621,283.00 loss in earnings and a 25 % loss of time would trigger $1,553,206.25 in lost earnings (Exhibit 116).
With respect to the life care costs calculated by Dr. Mattson, Dr. Lambrinos applied the following inflation factors, taken primarily from the Medical Care Price Index averaged in with the lower Consumer Price Index: health care, case management 3.56%; physician services, 4.16%; hospital services, 5.12%; durable equipment, 3.0%; disposables, 3.07% and transportation, 3.14% (Tr, 975-976). Taking into account claimant's life expectancy of 65 years, the total of the life care plan over that time would be $33,831,103.00 (Exhibit 117).

In view of the fact that defendant was precluded from presenting its life care plan and economist (
see, Appendix B), defense counsel engaged in lengthy cross-examination of these two witnesses. In response to defense counsel's questions, Dr. Mattson discussed her background, the fact that she is not a physician, the preparation she puts into developing a life care plan, and how much time she spent with claimant and his family. She also agreed that, just as claimant's parents had taken one of the nursing shifts for a number of years, it would be possible for someone with training, other than a registered nurse or a licensed practical nurse, to provide care. Such a worker could not be obtained through an agency, however, because they must place someone who is at least a licensed practical nurse with anyone who is on a ventilator. In developing the life care plan, Dr. Mattson based her estimate on the lower salary of a licensed practical nurse, which would be the same as for a student nurse. She confirmed that in estimating lost wages, she had allowed for six or seven years of no income to cover the years claimant would be getting his advanced degree and assumed that, because of his disabilities, he would stop work earlier than normal.
With respect to the amount of time that she estimated claimant would lose from work, Dr. Mattson acknowledged that he might be able to work as a psychologist from his home but contended that he would still lose time from foreseeable problems such as pneumonia, skin breakdown, decubitus ulcer, or similar conditions that often develop in people with spinal cord injuries, which could prevent him from sitting in a wheelchair or feeling well enough to perform his work (Tr, 1100-1103). Although she also conceded he had been able to attend school fairly regularly, that was not dispositive of his work time as he aged. She stated that she had taken his general good health into account. Dr. Mattson stated that while in most cases the likelihood of a quadriplegic individual getting and holding a job would be very low, in light of the fact that claimant "is an incomplete C-1" and that he is very bright and he has been healthy, she concluded that he would be able to work, although he would have periods of illness or complications (Tr, 1112).

Upon further cross-examination, Dr. Mattson maintained that she felt the annual five-day spinal cord evaluations were a necessity for claimant, and she would hold this opinion even if some physicians did not share it (Tr, 1105-1107). She also defended her conclusions that during a typical year claimant would need more doctor visits than an ordinary person and that he would need to see a pulmonologist every six months, stating that in patients with spinal cord injuries who are on ventilators, it is standard for both the person and the equipment to be reevaluated at least once every six months (Tr, 1113). Defense counsel also questioned the need for a podiatrist four times a year since claimant never has had podiatric treatment to date. Dr. Mattson explained that the need for additional foot care develops as an individual grows older and begins wearing shoes rather than sneakers (Tr, 1115-1116). During the years Dr. Mattson has known claimant, he has had three power wheelchairs, four manual ones, and two special beds. The replacement rate for equipment was calculated from data for people with disabilities, usually taken from the reorder information sent to manufacturers (Tr, 1117). With respect to the cost of the van, she had applied an offset of $10,000.00 to the estimated cost, to cover the cost of a vehicle that he otherwise would have had (Tr, 1122-1123). She also explained that even though claimant's condition did not improve with physical therapy, he would still need physical therapy workups for education and maintenance (Tr, 1126). The areas in which he would need education would vary as he matures and when any changes in his physical condition occurred (Tr, 1126-1129). When questioned about the likelihood that claimant may choose to live at home with his parents, whose house was already modified, Dr. Mattson pointed out that she assumed that he would do so until the age of 30 and, consequently, she had not added in amounts for housecleaning and yard care until he reached such age (Tr, 1132).

Dr. Lambrinos testified on cross-examination that his job was to apply the accurate inflation rates to the costs that are listed in the life care plan. He conceded that if there was some part of the life care plan that was inaccurate or carried the wrong cost estimate, his figures would be inaccurate in a corresponding manner (Tr, 986-987). In response to questioning he also stated that the comparatively high (higher than the inflation rate for college graduates) inflation rate applied to nursing salaries was quite likely understated due to projections that the nursing shortage, already in existence for more than 50 years, is likely to become worse (Tr, 987-994). Counsel also inquired into the existence of government programs that affect the cost of some medical services, but Dr. Lambrinos said that he could not project what, if any, portions of the projected costs might be paid for by a government program or private health insurance.

On the basis of the evidence and testimony presented at trial, the life care plan developed by Dr. Mattson appears to be realistic and reasonable. It is undisputed that claimant will require constant care and assistance for the rest of his life. He has both the cognitive ability and the drive to have a remarkably full life despite his disabilities, and should have the resources to develop his remarkable potential. With respect to the amount of time that claimant will lose from work, the Court finds that the 10% estimate is more realistic. The economic analysis of the cost of that life care plan also appears reasonable, with the inflation percentages used being in line with, or slightly below, rates used in similar cases.

The proof presented by claimants at trial indicates that the total cost of Dr. Mattson's life care proposal is $34,384,650.00. Past medical and care costs ($2,903,636.00), past pain and suffering of $1,000,000.00, future loss of earnings ($621,283.00) and future pain and suffering of $4,000,000.00, will be added for a total award of $42,909,569.00.[45]

The Court recognizes that the amount indicated for future medical care is not in keeping with the total awards that have been made in recent years in similar cases, those in which a relatively young person has been rendered quadriplegic but who is otherwise able to function mentally in a normal or almost normal fashion (
see, Schifelbine v Foster Wheeler Corp. 4 AD3d 736 [4th Dept 2004], rearg denied 6 AD3d 1250, lv denied __ NY3d ___ [June 29, 2004] [laborer; quadriplegia and other injuries]; Coniker v State of New York, 2002 WL 32068270 [Ct Cl 2002] [23-year-old, quadriplegia]; Auer v State of New York, 289 AD2d 626, supra [18-year- old woman, quadriplegia and cognitive deficiencies]; Brown v City of New York (275 AD2d 726 [1st Dept 2000] [two young men; quadriplegia and pentaplegia] Driscoll v New York City Tr. Auth. (262 AD2d 271 [2d Dept 1999] [19-year-old; quadriplegia]).
It was, to say the least, improvident for defendant to delay for so long its preparation for the damages portion of the trial, particularly in view of the catastrophic nature of claimant's injuries. There had been sufficient notice and opportunity to do so. The claim was filed in 1995 and a note of issue was filed in 1998 with no objection from defendant. The Court has been informed that the Thruway Authority participated in, or at least observed, the Supreme Court trial and settlement negotiations. Finally, the claim against the Thruway Authority had been reopened in January 2003, ten months before trial was held. The trial date was fixed in July 2003, six months prior to trial. Defendant, as with any other party, "must accept the consequences of its choice of litigation strategy" (
Schwartzreich v E.P.C. Carting Co., 246 AD2d 439, 441 [1st Dept 1998]); People v Avery, 129 AD2d 852 [3d Dept 1987]).
This Court must base its award on the credible evidence that was presented at trial. It cannot substitute its own opinion (or best guess) about such matters as the life care needs of a quadriplegic or the cost of such services and equipment. Nor is it the trial court's place to guess what the outcome would have been if defendant had prepared its case on damages in a timely fashion and been able to present it at trial. The cross-examination of claimants' expert witnesses failed to raise significant doubts about specific elements of the life care plan or the economic analysis of their cost, so there is no basis for deduction of any amount.[46]

The standard for determining whether damages are excessive or inadequate that is set forth in CPLR 5501(c) -- whether the award "deviates materially from what would be reasonable compensation," -- applies to appellate courts reviewing jury verdicts and, in some instances, has been applied to trial courts when they are asked to set aside a jury's verdict (
see Allen v Amzoski, 2 Misc 3d 1001[A] [2004 WL 354208 (NY Sup Ct 2004)] and cases cited therein). The role of this court, however, is to make findings of fact and conclusions of law based on those facts (see e.g. CPLR 4404[b] [power of court on motion after trial where a jury was not required]), and the only facts presented with respect to damages are those set forth by claimants' qualified and credible witnesses. The Court is constrained to make an award based on those facts.
Claimant's damages, therefore, are as follows:
Past pain and suffering $1,000,000.00
Past medical and care $2,903,636.00
Total past damages: $3,903,636.00
Future pain and suffering $ 4,000,000.00
Future medical and care $33,831,103.00
Future loss of earnings $ 621,283.00
Total future damages: $38,452,386.00

Total award to claimant Ned Church: $42,356,022.00
Derivative Claim of Gilbert Church
Gilbert Church, claimant's father, is entitled to recover for the reasonable value of the nursing and other services that he has provided to his son since the accident. "[W]ith respect to care provided by a parent to a child, a parent may be compensated for such services ‘from the party [who] negligently caus[ed] the injury' " (
Auer v State of New York, 289 AD2d at 628, and cases cited therein). There was testimony that Mr. Church and his wife (who has not made a claim) regularly took the evening shift, from 3:30 P.M. to 11:30 P.M., a period of eight hours, and during that time the care given was that equivalent to care provided by the nurses who covered the other shifts, as claimant required catheterization, monitoring and assistance with all activities. In addition, there was testimony that the average wage of a licensed practical nurse hired to cover the other shifts was $25.00 per hour. Claimant's parents provided these services for 8 years, from the time of the accident until claimant went to college (August 1993-August 2001). Because both parents were available and provided care, it is reasonable to assume that Mr. Church worked half of the shifts. The Court concludes that he is entitled to the sum of $314,400.00 as a fair and reasonable compensation for the nursing and other services that he provided to his son.
Since the amount of future damages awarded to claimant Ned Church exceeds $250,000.00, a structured judgment is required. Consequently, judgment will be held in abeyance pending a hearing pursuant to CPLR Article 50-B at which time the offset of the $8,000,000.00 previously received in settlement in Supreme Court will be applied. The Court encourages the parties to agree upon an attorney's fee calculation and the discount rate to be applied to formulate a proposed structured judgment of their own (
see CPLR 5031[f]). In the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing conforming to the requirements of CPLR Article 50-B within 60 days of the service of this decision upon them by the Clerk of the Court. A hearing will then be scheduled at the mutual convenience of the parties and the Court.
All motions not heretofore decided are denied.

September 29, 2004
Albany, New York

Judge of the Court of Claims



In a decision issued November 14, 2003 (Motion No. M-67557), the Court denied defendant's motion for summary judgment dismissing this claim. In that motion, defendant contended that claimants did not have a viable claim in the Court of Claims because they were collaterally estopped by a judgment entered in a related Supreme Court action from proving that their damages were any greater than an amount they had already received in settlement of the Supreme Court action.

The action in Supreme Court, Albany County (Index No. 6378-95, RJI No. 01-99-060168) was commenced in 1995, when claimants (plaintiffs in that action) sued the construction project's prime contractor ("Callanan"), the firm serving as the Thruway's engineering inspector ("Clough Harbour"), and the subcontractor that installed the guide rail ("San Juan"). Third-party actions were then brought against Barbara Church and Volkswagen Credit, Inc. There were also certain cross motions between the various defendants. Prior to trial, both Callanan and San Juan moved for summary judgment dismissing the complaints against them. Those motions were denied by the trial court in September 2000, and both parties appealed.

In March 2001, shortly before the scheduled trial began, claimants settled with Callanan, Clough Harbor and the two third-party defendants, receiving the sum of $8.7 million. This settlement led to the dismissal of Callanan and Clough Harbour's appeal of the denial of the summary judgment motion. Trial commenced against the remaining defendant, San Juan, and on April 11, 2001, the jury determined that San Juan was 10 percent at fault and "[found] for the plaintiff in the total amount of $6,815,925.75" (Jury Verdict Sheet, defendant's notice of motion,

Motion No. M-67556, Exhibit D). Claimants' counsel promptly filed a post-trial motion challenging the amount of damages.[47]

On July 5, 2001, less than two months after the conclusion of the San Juan trial and before a decision could be issued on the post-trial motion, the Appellate Division, Third Department, ruled on San Juan's earlier appeal and granted summary judgment dismissing the complaint against the subcontractor (Church v Callanan Indus., 285 AD2d 16). Because two judges dissented, claimants were entitled to an appeal as of right to the Court of Appeals. Their first effort to bring this appeal was unsuccessful, however, and it was dismissed on the ground that the appellate decision did not finally determine the action within the meaning of the Constitution (97 NY2d 638 [Oct 2001]). The parties returned to Supreme Court and a final judgment that formally dismissed outstanding cross-claims was issued on January 18, 2002. Claimants' second attempt to appeal to the Court of Appeals was successful, and on November 19, 2002, the high court affirmed the Third Department's decision dismissing the complaint against San Juan (Church v Callanan Indus., 99 NY2d 104).

No judgment incorporating the jury's verdict was ever entered because that verdict was immediately challenged by claimants' post-trial motion. In fact, the only judgment issued by Supreme Court was the January 18, 2002 judgment that referenced dismissal of the cross claims.
That judgment contained no reference to the trial that had been held in the San Juan action or to the jury's verdict. The only statement that it contained relevant to San Juan was the following: [It is] ORDERED, ADJUDGED AND DECREED, that the complaint is dismissed against defendant San Juan Construction and Sales Company, on the merits and without costs . . .
Nevertheless, in the instant claim, defendant Thruway Authority moved for summary judgment in its favor on the ground that the jury verdict fixed the total amount of claimants' damages and collaterally estopped them from attempting to prove a greater amount in this Court of Claims action. In denying that motion, the Court held that that verdict, which had been immediately challenged by claimants, never reduced to a judgment and reached in an action that was ultimately dismissed, was not fully litigated or sufficiently final so as to serve as a basis for collateral estoppel. In so ruling, the Court rejected defendant's argument that the issue was somehow distinguishable from that presented in Towne v Asadourian (277 AD2d 800 [3d Dept 2000]), in which the Third Department held that collateral estoppel was inapplicable "because no order or final judgment was ever entered in [the earlier] action" and because " ‘[a] decision ... upon which no formal judgment [or order] has been entered has no conclusive character and is ineffective as a bar to subsequent proceedings' " (id., quoting Ruben v American & Foreign Ins. Co., 185 AD2d 63, 65 [4th Dept 1992]).

Defendant's argument that a judgment had been entered in this claim was unpersuasive. The Court observed that while the January 2002 judgment, which dismissed the complaint against San Juan, could be used to preclude claimants from instituting another action against that

Defendant, "[i]t cannot be used, however, to prevent relitigation of an entirely different issue – the amount of claimants' damages – that was not incorporated in, enforced, or decided by the judgment in question" (Decision and Order, Motion No. M-67556, sl opn, p 9). During settlement negotiations both parties were referred to an additional authority, Morley v Quinones (208 AD2d 813 [2d Dept 1994]), which held that a judgment on the issue of liability could not be given collateral estoppel effect when the action was dismissed on another ground and plaintiffs were prevented "from obtaining appellate review of the jury's findings" (id., at 814).



Prior to trial, claimants moved for an order precluding defendant from presenting testimony by its expert witnesses (Motion No. M-67557). Despite extremely sketchy CPLR 3101(d) responses filed by defendant, the motion was denied with respect to three engineers who, as State employees, had been deposed by claimants and thus were known to claimants, and an accident reconstructionist who was known by claimants to have been involved in the case. The motion was granted, however, with respect to another engineer and to defendant's proposed damages experts, an economist and an expert in life care plans. The Court was mindful of the significant impact that this ruling would have on defendant's ability to present its case but in the circumstances saw no alternative. The basis for the decision to grant claimants' motion in part will be briefly summarized here and is set forth in greater detail in the decision filed November 5, 2003.

The events giving rise to this claim occurred in December 1992 and after claimants successfully moved for permission to file an untimely claim (Court of Claims Act §10[6]), the claim was filed in August 1995. Discovery proceeded and it was determined by former Court of Claims Judge Louis C. Benza that the trial would be unified. In June 1998, claimants filed a note of issue and certificate of readiness, which defendant did not move to strike and to which it made no other objection. Because the related Supreme Court action was proceeding to trial, this claim was conditionally dismissed because claimants could have potentially received full recovery in that action.

As indicated in Appendix A, the Supreme Court case resulted in a settlement with most of the defendants but, with respect to the subcontractor San Juan, there was motion practice which was appealed and, in addition, a trial was conducted. Matters were finally resolved in November 2002, when the Court of Appeals affirmed dismissal of the complaint against San Juan (Church v Callanan Indus., 99 NY2d 104).

Thereafter, in January 2003, claimants elected to have the Court of Claims action restored. The conditional dismissal order, which had been signed by both parties in June 1998, required that, upon restoration, a note of issue and certificate of readiness be filed at the latest within 75 days. Because a note of issue had already been filed, it was anticipated by the Court that the matter would be ready for trial almost immediately and claimants were prepared to proceed.

A July 2003 conference was held to verify the status of the action, and it was at that time that the Court learned neither party had served their CPLR 3101(d) expert responses. The following schedule was established: claimants were to serve their responses within two weeks of the conference; defendant was to serve its responses six weeks after receipt of claimants' responses; defendant was to conduct any updated medical examination of Ned Church prior to September 2003; and trial of both liability and damages was to commence on December 8, 2003 almost a year after restoration of the claim. The parties were informed that this trial date would not be adjourned. Present at this conference, on behalf of defendant, were the Assistant Attorney General who tried the case and several attorneys from the Thruway Authority. When the Court inquired why the defendant was so late in its preparation for trial, the Court was informed that the Thruway Authority had been "looking for papers."

Claimants complied with the Court's direction and served their 3101(d) responses[48] on July 21, 2003, making defendant's responses due September 2, 2003. Despite several reminders from both claimants' counsel and the Court, no responses were received until September 30, 2003, when the résumés of three engineers and the accident reconstructionist were provided. Despite the paucity of these responses, the later motion to preclude was denied with respect to these four witnesses. There were no 3101(d) responses relating to any damage witnesses.

A second conference was held on October 20, 2003, to inquire into the reasons for defendant's non-compliance with the scheduling order and to consider an unanticipated request by defendant to make a motion for summary judgment. The Court again informed the parties, unequivocally, that the trial date would not be adjourned. Defense counsel and counsel for the Thruway Authority stated at this point that they wished to bring the potentially dispositive motion for summary judgment (see Appendix A), and the Court agreed to hear that motion on an expedited basis.[49] The Court of Appeals has recently, and wisely, held that the statutory requirement means that a party who wishes to make a motion after the designated deadline has passed must provide "a satisfactory explanation for the untimeliness" (Brill v City of New York, 2 NY3d 648, 652 [2004]. While refusing to entertain a meritorious motion for summary judgment may result in "burdening the litigants and trial calendar with a case that in fact leaves nothing to try," it was the view of the Court of Appeals' majority that by refusing to countenance the statutory violation, litigants will develop the habit of compliance with the statutory deadline rather than delaying such motions until trial looms (id. at 653). In the instant case, defendant compounded its error in failing to bring the motion in a timely manner by assuming, with absolutely no reason to do so, that if the motion was unsuccessful an adjournment could be requested again. Claimants' counsel, who had been ready to proceed to trial for three

months, indicated that it felt obliged to move to preclude the expert witnesses, and the Court agreed to also entertain that motion.

On October 21, 2003, the day following the second conference, defendant faxed a twelve-page document captioned "Response to Demand for Expert Information," which purported to include the requisite CPLR 3101(d) information relating to seven experts, the four whose résumés had been provided in late September and three additional experts who had not previously been noticed. Claimants' counsel objected to this submission as both untimely and inadequate. The substantive portions of the responses relating to two of the new witnesses, the life care planner, Sharon Reavis, and the economist, Kevin Decker, are set forth in full in the decision on Motion No. M-67557. These CPLR 3101(d) responses were entirely inadequate, conveying neither the substance of the facts and opinions of the expected testimony nor any summary of the grounds for such opinions. As the Court stated in its motion decision, the responses were "in fact, the equivalent of no response at all." Even if these responses had contained the necessary and statutorily required information, it was the Court's opinion that the limited time remaining would have been insufficient for claimants and their experts to have adequately evaluated and prepared to rebut the opinions. The response relating to engineer Thomas Gemmiti was only slightly more informative and did not include his credentials. In addition, neither he nor his expected testimony had ever been mentioned to claimants or to the Court prior to October 21, 2003.

The Court ruled to preclude the testimony of these three witnesses. The legal authority for the ruling is set out in detail in the motion decision. To that authority, the Court would add two recent decisions, Lissak v Cerabona (10 AD3d 308 [1st Dept 2004]) and Gross v Sandow (5 AD3d 901 [3d Dept 2004]).

[1]Barbara Church conceded this at trial (Tr, 802). Article 16 of the CPLR provides that, in a personal injury action, where a defendant's liability is 50% or less of the total liability of all tortfeasors, that defendant is responsible for paying only its equitable share of the non-economic damages. To limit its liability pursuant to CPLR Article 16 when the other tortfeasor is not a party to the action, a defendant must prove "by a preponderance of the evidence its equitable share of the total liability" (CPLR 1603; see e.g. Bigelow v Acands, Inc., 196 AD2d 436 [lst Dept 1993]). In the instant case, the only party whose negligence defendant referenced was Barbara Church. While falling asleep at the wheel may readily be considered negligent, defendant presented no evidence that her negligence played a significant (i.e., 50% or greater) role in bringing about claimant's injuries. Defendant's suggestion that Barbara Church might have struck a guide rail and then overcorrected, going into oncoming traffic, is unduly speculative (Tr, 738-739). As explained below, the only competent evidence presented at trial was that her negligence alone was minimal and would have resulted in little more than property damage to the vehicle if the guide rail had been installed according to defendant's plans and specifications.
[2]See Appendix A.
[3] Claimants sued Callanan, Clough Harbour, and San Juan in a Supreme Court action. As set forth in Appendix A, Callanan, Clough Harbor, and two third-party defendants, one of whom was Barbara Church, settled with claimants prior to trial, and the complaint against San Juan was ultimately dismissed.
[4]Professor McGinnis has taught civil engineering at Bucknell University since 1970. His undergraduate degree in civil engineering is from Bucknell University; his master's degree in civil engineering is from Northwestern University; and his doctorate in transportation engineering is from the University of California at Berkeley (Tr, 626-627). For the past ten years Professor McGinnis has researched run-off-the-road accidents and guardrails (Tr, 629). He has published a lengthy list of publications and has conducted presentations on engineering that include the topics of guide rails and roadside safety. He is a licensed engineer in Pennsylvania.
[5]Dr. McGinnis also discussed the concept of "toe of the slope," the bottom of a slope where there is a transition from an angled slope to a relatively flat slope (Tr, 658). At this location there was a ditch or drop inlet at the bottom of the slope. He noted that the toe of this slope was not rounded as required by the Design Manual. According to Dr. McGinnis, in order for a stretch of land to be traversable it must have a rounded toe of slope, and the absence of such rounding is sufficient to make it non-traversable even if the slope is not steep (Tr, 665-668, 675). The Court notes that this conclusion was disputed by George Gaborow, a claims engineer for the Thruway Authority who testified later in the trial. (Tr, 1485, 1508; Exhibit 69). He testified that the Design Manual provides that where there is a ditch or similar structure in the immediate vicinity, toe of the slope rounding is not required (Exhibits 18, 21; Tr, 1508). The Court finds that the statement in the Design Manual is ambiguous. This issue is not critical here, however, because of the Court's findings regarding the angle of the slope.
[6]Mr. Breen is employed by Engineering Systems. He received a bachelor of science degree in engineering from the University of Illinois in 1978. He received a masters degree in industrial engineering with a focus in the area of human factors from Midwest College of Engineering in 1984. Human factors is the discipline of how people interact with equipment and information in various environments. He is a licensed engineer in Wisconsin. Since 1976 he has been employed with various companies doing automotive research and accident reconstruction. He has taught accident reconstruction to police organizations. He has been a consultant to the States of New York, North Carolina, Florida, Illinois and California, as well as the United States Coast Guard and the United States Department of Defense.
[7]The contract also provided that Clough Harbour would indemnify and save harmless the Authority for any acts of negligence on the part of Clough Harbour. As noted above, Clough Harbour settled with claimants in the Supreme Court action. The instant claim is based on allegations that the Thruway Authority itself was negligent in failing to properly oversee and monitor the work of Clough Harbour and in accepting as complete the project including the shorter than designed guide rail at the accident site.
[8]The number 606.20 references the type of guide rail known as "corrugated beam guide rail."
[9]The IRs consisted of daily reports written by Clough Harbour inspectors who documented the activity at the job site, including the quantities of material used, the staffing of the contractor, and the hours worked (Tr, 199).
[10] Mr. Dodds has a bachelor of science degree in civil engineering from Clarkson University and is a licensed professional engineer. After college, he initially worked with the New York State Department of Transportation for 13 years. In 1980, he was hired by the Thruway Authority, where he held positions of progressive responsibility: senior civil engineer, design supervisor, director of highway design, deputy director of the Office of Facilities Design, and director of the Office of Facilities Design.

[11]Slope averaging is a technique that requires that the slope be computed a number of times as one progresses up the hill (Tr, 1319). Claimants' counsel objected to this part of Mr. Dodds' testimony on the basis that it was not disclosed in a CPLR 3101 (d) statement. However, paragraph six of the disclosure statement states: "Mr. Dodds will opine that based on his review and study of this installation and the survey cross sections, the guiderail that was installed at milepost 132.7 southbound on the New York State Thruway under Thruway Project TAA 85-13 met design standards at the time." This implies that part of the study of the cross sections from the Shover Survey (Exhibit 69) served as a basis for Mr. Dodds' theory of slope averaging. The objection is overruled.

[12]Defendant objected that Dr. McGinnis is not a proper rebuttal witness, citing Marshall v Davies (78 NY 414 [1879]). To the extent that Dr. McGinnis testified about the slope averaging method and the inspection of the job (see below), the Court finds that Dr. McGinnis was a proper rebuttal witness since "[r]ebutting evidence . . . means . . . evidence in denial of some affirmative fact which the answering party has endeavored to prove" (id. at 420).
[13]Counsel for claimants objected to this opinion as an undisclosed opinion not within the 3101(d) statement. The Court finds that the 3101(d) response was sufficient as it specified that Mr. Dodds would testify as to guide rail installation at mile post 132.7. The Court finds that his analysis as to what hazards existed there is relevant to the guide rail installation. The objection is overruled.
[14]Mr. Gregory has a bachelor's degree in civil engineering from Manhattan College and a master's degree in civil engineering from Rensselaer Polytechnic Institute. He was employed by the New York State Department of Transportation for ten years and by the New York State Thruway Authority for 25 years. At the Thruway Authority he started as a structural designer and progressively advanced to chief engineer of the Department of Engineering. He has been a licensed professional engineer in New York for 36 years. He is presently the President of Ysrael A. Seinuk, P.C., a consulting engineering firm. His public sector clients include the New York State Department of Transportation and the Thruway Authority.
[15]When claimants' expert, Dr. McGinnis, was asked how the Authority would go about checking every small detail on a 20-mile project, he testified that checking guide rail length should not have been a problem. The Authority could have used Exhibit 39, the photo log, to count the number of posts that had been installed. Since the posts are installed at standard lengths, it would have been quite easy to calculate how much guide rail was installed (Tr, 1605-1606).
[16]The "point of need" is a term designating the beginning of a guide rail section under the 350-foot rule and is to be determined in the field by the resident engineer (Tr, 725-726).
[17]Although all sources indicate that the plans called for 312.5 feet of guide rail, the evidence is inconsistent as to the lesser amount that San Juan installed before reaching the end of the pavement and having to leave some part for later. As noted, the Inspector's Report stated that 37.5 feet remained undone; the resident engineer's diary for the same day states that the installation was 75 feet short; and in fact, only 212.5 feet of guide rail was ever installed, leaving approximately 100 feet remaining to be done. There was no explanation for these discrepancies given at trial. The only logical conclusion is that, even though there was pavement for 275 feet of the total length on November 4, San Juan stopped after installing only 215.5 feet, intending to go back and complete the job at a later time when all the paving had been done.
[18]Claimants' counsel's objection to this line of questioning is overruled. Mr. Gregory, an expert, was responding to a hypothetical question.
[19]Exhibit N which was presented by the defendant as an aid to the Court is not admitted into evidence, as it is overly complicated and does not provide assistance in simplifying or making clear the matters under consideration (see, generally, Prince, Richardson on Evidence § 474 [Farrell 11th ed]). Consequently, Mr. Gregory's and Mr. Gaborow's testimonies related thereto is stricken. Regarding other exhibits reserved upon at trial: Exhibits 133, Q and J are also not admitted but Exhibits 132, R, S and T are admitted.

[20] Exhibit 23, a letter written by Mr. Raczyk to Mr. Adam Jakiela of Callanan Industries on October 30, 1986 and copied to Mr. Clark, Mr. Bovee and Mr. Sovik, reads as follows:
This letter is being written to express the Thruway Authority's concern over the lack of timely completion of guide rail items by your subcontractor San Juan Construction. San Juan has consistently not completed the installation of guide rail within the 3-week time frame as stated in the contract proposal. As a result there are potential hazardous locations around the jobsite . . . For example . . . [I]n the SB-D lane @ MP 132.7 the rail was taken down on 6-18-86 and no attempt has been made to begin work on the thrie beam at that location.

Mr. Gregory was also shown Exhibit 122, a document entitled "Progress Meeting Minutes held on 10-24-86." It was dated October 28, 1986 and was written by Mr Racyzk with Mr. Gregory and Mr. Sovik copied. On page 3 of that document it states:
3. RAR [Robert Racyzk] discussed at some length the progress being made by San Juan Construction with the guide rail installation . . . The Thruway is very concerned about the

hazardous areas exposed to the traveling public for such a long length of the Thruway

and the fact that the potential for accidents exists . . . The Thruway is contemplating the

potential for liquidated damages against the subcontractor since he is not

complying with the requirements of the contract documents."

This was not the first time that Mr. Gregory became aware of the problem with San Juan (Tr, 1437). Another "Progress Meeting Minutes", authored by Robert Raczyk and dated November 20, 1986, regarding mileposts 120.0 to 142.3, was copied to Mr. Gregory and Mr. Sovik. It noted that "the guide rail is way behind schedule" and the Thruway's concern with the delay (Exhibit 123, p 3, para 6). Mr. Gregory did not recall any specific directives given to Mr. Sovik as a result of the contents of either document (Tr, 1438-1439, 1445).

[21]As noted in Appendix B of this opinion, defendant was precluded from presenting certain experts at trial due to late expert disclosure. Defendant did call Mark Thompson, a Volkswagen auto mechanic for 31 years, as an ordinary witness, who expressed some opinions regarding the wheel trim of the Volkswagen Jetta, specifically that certain parts of the wheel well were among the scattered debris pictured in Exhibit O, a photograph (Tr, 1552-1564/Exhibit R). The Court finds that an ordinary person without Mr. Thompson's expertise would not have been able to discern the debris depicted in Exhibit O and line it up with Exhibit R, a Volkswagen Jetta wheel trim (Meiselman v Crown Heights Hospital, Inc., 285 NY 389 [1941]). An expert may be qualified through "long observation and actual experience" (Price v New York City Hous. Auth., 92 NY2d 553 [1998], 684 NYS2d 143 [1998]). The Court finds that Mr. Thompson is an expert. His proposed testimony should have been properly disclosed to claimant pursuant to CPLR 3101(d). Mr. Thompson's skill, training, knowledge and experience are adequate to support an assumption that the opinion he rendered was reliable (id.), but since expert disclosure was not provided to claimants, his testimony will be stricken.
[22]The Court discerned tire marks at the accident scene in Exhibits 2A, 2C, 2D, 2J and 2N but did not note any tire marks in Exhibits 2B, 2E, 2L and 2M. There was sufficient evidence to support Mr. Breen's opinion of the path of the Church vehicle.
[23]Exhibit 50, a photograph taken on July 17, 1996, 3½ years after the accident, depicts damage to the guide rail over the anchor pad at the accident site. Since the photograph was taken so long after the accident occurred, the Court does not give it much weight.
[24]There was much discussion about Mr. Gaborow's testimony on how the ground had not changed since the time of the accident. The Court finds that it would be difficult to make such determination from just observing photographs and not having taken definite measurements at the time of the accident. Accordingly, this testimony is given little, if any, weight.
[25]Dr. Mackay, who resides on the Isle of Mann in the United Kingdom, received his bachelor's degree in mechanical engineering from the University of Birmingham in England and his master's degree from the Massachusetts Institute of Technology. He returned to the University of Birmingham to commence research in traffic safety and also received two doctorate degrees (crash investigation and biomechanics of injuries). He commenced teaching at the University of Birmingham in 1964 and eventually became a full professor in transport safety. He is presently emeritus professor of transport safety. He is a chartered engineer in the United Kingdom and is a member of various professional societies and editorial boards. Dr. Mackay is an adjunct professor at the Medical College of Wisconsin in Milwaukee. He was requested on behalf of several organizations to do an accident reconstruction of the accident in Paris that killed Princess Diana (Tr, 552-564). He served as a consultant to seat belt manufacturers, auto manufacturers such as Jaguar and British Leyland, and various legislative committees in the United States and the United Kingdom (Tr, 568). He has authored countless articles on vehicle safety design, seat belts, biomechanics and other like topics.
[26]Defense counsel objected to this line of questioning on the basis that it was outside the scope of the 3101 (d) for this witness. Having reviewed the relevant 3101(d) statement, the Court determines that it did indeed include a provision that "Dr. Mackay will testify in the areas of injury mechanism and causation, biomechanics, occupant kinematics . . . seatbelts . . . and crashworthiness in various collisions including and not limited to guiderail contact and off-road events such as that encountered by the Church vehicle." The objection is overruled.

[27] Somewhat ironically, this type of hard evidence does not necessarily control where there is proof that the design plan decisions were reached appropriately and carefully followed. In Cipriano v State of New York (171 AD2d 169 [3d Dept 1991], lv denied 79 NY2d 756), the driver fell asleep and his vehicle drifted off the side of the Thruway at a point where there was no guide rail, became airborne and crashed. The parties' experts disputed whether the Authority had a duty, under existing highway construction guidelines, to extend the guide rail an additional twenty-five feet. If they had done so, serious injury would have been avoided. The Third Department, reversing the lower court, held that the Authority had met its duty in interpreting the guidelines as it had and that claimant could not recover unless "there is some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it (id. at 173)." (See also, Martin v State of New York, 305 AD2d 784 [3d Dept 2003], lv denied 100 NY2d 512 [State is entitled to qualified immunity where highway design study was adequate and there was no showing that the State violated its own regulations].)

[28]Dr. Long received his medical degree from the University of Vermont. He completed his internship at Strong Memorial Hospital at the University of Rochester, New York. His pediatric residency was completed at the Children's Hospital in Seattle and his fellowship in neonatal and perinatal medicine was done at the University of Vermont. He is licensed to practice medicine in Vermont and has done so for the past 24 years. He is certified in pediatrics and neonatal/perinatal medicine by the American Board of Pediatrics. He is on the clinical faculty of the Department of Pediatrics at the University of Vermont Medical School (Exhibit 118, 3-6). Dr. Long's testimony was by videotape which was also transcribed (Exhibits 71 and 118).
[29]The Glasgow Coma Scale is a numerical scale, from 3 to 15, used in emergency rooms and in the field to assess nervous system function in a person with a head injury. An assessment of 3 is the worst assessment on the scale (Exhibit 119, p 12).
[30]Although claimant has weaned himself off the ventilator for 12 hours a day, he still needs a ventilator when sleeping and will be dependent on this for the remainder of his life (Exhibit 119, p 18). The ventilator will need to be replaced periodically throughout his life (Exhibit 118, pp 51-52).
[31]See surgical notes dated 3/16/92 from the Alfred I. duPont Institute (Exhibit 38).
[32]Claimant's parents recently renovated their house again to give claimant more privacy now that he is a young man in college (Tr, 807-808).
[33]Gilbert testified that he and his wife gave Ned two of his daily catheterizations.
[34]Dr. Rosenfeld is a graduate of Bowdoin College and Boston University School of Medicine. He completed a year of internal medicine training at Faulkner Hospital, Tufts University Medical Center, and three years of residency in physical medicine rehabilitation at Baylor College of Medicine in Houston, Texas. He completed one year of post-residency fellowship at Baylor College of Medicine. He is licensed to practice medicine in Massachusetts. He is board certified in physical medicine rehabilitation and in pain medicine and electrodiagnostic medicine. He belongs to the American Medical Association, the American Academy of Physical Medicine Rehabilitation, the American Pain Society, the International Association for the Study of Pain and the Society of Neuroscience. He is an oral examiner for the American Board of Physical Medicine Rehabilitation. From 1996-2001, he was the medical director of the Rehabilitation Hospital of the Cape and Islands. Dr. Rosenfeld's testimony was videotaped and also transcribed (Exhibits 72 and 119).
[35]Dr. Long concurred with this opinion (Exhibit 118, p 42).
[36]Claimant paints by holding the brush in his mouth (Exhibits 84, 113, 114 and 115).
[37]His family and friends have created a mechanical device for him to operate in order for him to participate in the game (Tr, 926).
[38]Although defense counsel did not object to these exhibits he indicated that he would present in his post-trial brief any argument as to whether they represent damages in this case (Tr, 1020). Since his briefs were silent to this regard, the Court assumes he had no objection with respect to these exhibits.
[39]Jane Mattson holds a bachelor of science degree in occupational therapy from Columbia University, College of Physicians and Surgeons, and a Ph.D. from the Heller School of Brandeis University with a specialty in medical economics, health policy, epidemiology, and social welfare policy. Her dissertation at Brandeis University concerned long term care giving for individuals with quadriplegia. She is a licensed occupational therapist in New York and Connecticut; a certified life care planner; a certified case manager and a certified rehabilitation counselor. Dr. Mattson is a member of the American Congress of Rehabilitation Medicine, the American National Spinal Injury Association, the National Brian Injury Association, and the International Academy of Life Care Planners. She is the author of various articles concerning head trauma and spinal cord injuries.
[40]James Lambrinos is a professor of economics at the Graduate Management Institute of Union College. He has taught at Union College since 1979. He holds a bachelor of arts degree in mathematics and economics from Fairleigh Dickinson University and a master's degree and a Ph.D. in economics from Rutgers University. He is an author of many articles on economics.
[41]The Court wants it to be clear that Exhibit 120 is admitted into evidence. Defense counsel did not persuade the Court during cross-examination of this witness that it should not be admitted nor did he raise it at the end of trial when the Court reviewed admitted evidence with counsel.
[42]Claimant withdrew the amounts contained in the life care plan for the Vocare Bladder System (Tr, 940).
[43]Dr. Lambrinos teaches medical, labor and managerial economics at Union College. He received his undergraduate degree in mathematics and economics from Fairleigh Dickinson University and his master's degree and Ph.D. in economics is from Rutgers University. He has taught at Union College from the time that he graduated from Rutgers University. He is the author of 40 journal articles concerning economics and currently serves on the editorial board for the Journal of Forensic Economics.
[44]The Age Earnings Profile from the U.S. Bureau of Census includes earnings for a variety of career individuals. Dr. Lambrinos acknowledged that although claimant now indicates that he wants to pursue psychology as a career, he once wanted to be stockbroker, too. College students frequently change their minds and this was factored into his analysis.
[45]In Auer v State of New York (289 AD2d 626, 629 [3d Dept 2000]), the Third Department instructed that when arriving at an award for pain and suffering "we must examine comparable cases to determine any error since such an award is ‘not subject to precise quantification' ". The comparable cases considered by the Court in fixing this portion of the award are listed in the text. It should be noted that none of these decisions appear to involve an injured party who is ventilator-dependent.
[46]For the reasons set forth in the Court's earlier decision and summarized in Appendix B, defendant lost its opportunity to present such evidence, apparently relying on its belief that the motion for summary judgment would be successful (see Appendix A) and, if it were not, that an adjournment would be granted, despite the fact that the Court had stated on several occasions that there would be no adjournments.
[47]Although no documents detailing this post-trial motion were admitted into evidence in this trial, the Court was informed, in connection with settlement discussions that took place after Motion No. M-67557 was decided, that it was based on claimants' contention that the jury had failed to follow the trial judge's instruction in fixing the amount of damages. They had been directed to determine the total amount of damages suffered by claimants and the percentage of liability applicable to San Juan. The trial court would then apply that percentage to the amount of damages to determine the exact extent of San Juan's liability (see, New York Pattern Jury Instructions - Civil, §2:36.1). Claimants contended that the jury had improperly applied the defendant's percentage of culpability (one tenth) to their actual calculation of total damages, approximately $68 million, and in that fashion reached the $6.8 million figure listed on the verdict sheet.
[48]Claimants' expert disclosure varied from 1 page to 23 pages for the damages expert.

[49]In retrospect, the Court realizes that it should have refused to entertain the motion for summary judgment at this late date, despite defendant's earnest, if ultimately inaccurate, assurances that the motion was meritorious and would obviate the need for trial. CPLR 3212(a) provides that motions for summary judgment must be brought within 120 days after the filing of a note of issue, "except with leave of court on good cause shown." In this case, since the note of issue had been filed prior to the conditional dismissal, defendant should have brought the motion immediately upon restoration of the claim. There were no facts necessary or relevant to the motion that were not known at that time (see Appendix A), and defendant had no cause, much less "good cause," for its delay in bringing the motion.