New York State Court of Claims

New York State Court of Claims

SHEVLIN v. STATE OF NEW YORK, #2004-034-012, Claim No. 99789


Claim for wrongful death and negligence dismissed. Sole proximate cause of accident was Claimant's failure to respond to readily apparent conditions he faced. Claim alleged that State was negligent in its use of roadblock on Route 17 in the vicinity of the Cattaraugus Indian Reservation during the tax protests that were ongoing at the time

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

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Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 10, 2005

Official citation:

Appellate results:

See also (multicaptioned case)
These claims arise from an accident on Route 17, in Steamburg, New York, on the morning of April 8, 1997, that resulted in the death of James D. Spoon. At that time the decedent was operating a truck owned by his sister, Claimant E. Darlene Shevlin. Liability issues proceeded to a bifurcated trial on the 22nd, 23rd, 24th and 26th of March, and the 16th day of April 2004, during which 12 witnesses were called to testify. A deposition transcript with exhibits from another eyewitness, Richard D. Schmigel, also was introduced into evidence (Exhibit 17), as were excerpts from a deposition of Kevin G. Molinari of the New York State Police. On consideration I will now deny and dismiss the claims, finding and concluding as follows.

In June 1996 Ms. Shevlin purchased a Dodge 3500 series V10 Ram truck, a large twin-axle pickup truck with two front and four rear tires. It does not appear that she ever used that vehicle for her own purposes. Instead, her brother, James D. Spoon, drove the truck in the conduct of a hauling business. At times he would transport recreational trailers for Hoosier RV, a business located in Indiana. At other times he apparently would perform hauling work for the military or members of the armed forces in Florida. To facilitate such operations the vehicle was equipped with a "reese" hitch in the back bumper area. At some point an auxiliary gas tank also was installed, improperly, on a wooden mount in the open bed of the pickup truck, behind the cab area.[1]

Ms. Shevlin testified that on Sunday, April 6, 1997, the decedent telephoned her at her home in Chautauqua County to advise that he was in Florida, and was about to drive to Indiana to pick up a recreational trailer for delivery to the Binghamton, New York, area. While the substance of that out-of-court communication, the last she would hear from her brother, must be discounted on hearsay grounds, there clearly came a point on the morning of April 8, 1997, when Mr. Spoon began to drive eastbound on Route 17 toward Binghamton, hauling a 25- to 30-foot travel trailer from that Indiana distributor.

Route 17, also known as the "Southern Tier Expressway," is a four-lane, limited-access highway that runs east-west across the central and western portions of the State, near the Pennsylvania border. At that time the speed limit on the expressway was 65 miles per hour. Sections of the highway in Cattaraugus County adjoin the Seneca Nation's Allegany Indian Reservation. Those sections extend over approximately 28 miles of Route 17, starting just east of Exit 17 at Steamburg, and stretching easterly to the Hinsdale area. During the spring of 1997 that area of the expressway experienced intermittent incidents corresponding with a Native American tax protest. The incidents included the setting of fires on or near the shoulders of the highway. Commencing at some point in March 1997, a number of State Police officers became assigned to details that addressed the protests, roadside fires, and other demonstrations or vandalism. On several occasions traffic on sections of the expressway had to be stopped, temporarily, to allow the State Police to push burning tires and other debris away from the edge of the roadway. This incident occurred during one such traffic stoppage.

Given the location of the accident some description of the topography of Route 17 in the area of Exit 17 is appropriate. Traffic approaching that exit from the west would travel on a downward slope, and gradually arc to the left, before reaching a straight, level section of highway that crosses over Route 394. The straight length of the expressway then continues for approximately three- to four-tenths of a mile beyond the Route 394 overpass before curving to the right. Just west of the overpass a one-lane exit ramp slopes downward on an angle to intersect with Route 394, which runs in a northwest-southeast direction. Directly across from the end of the eastbound off-ramp is a corresponding on-ramp, which slopes upward on an angle until it gradually merges into the south lane of the expressway, shortly before the eastbound roadway curves to the right.

y most accounts the area of Exit 17 becomes readily observable as eastbound expressway traffic passes beneath a highway overpass located between one-half and eight-tenths of a mile to the west. The slight downward slope and gradual arc appear to enhance the ability of eastbound motorists to view the area of the exit.
On the morning of Tuesday, April 8, 1997, a small group of protesters gathered at the west edge of the reservation, along the south side of the expressway. That spot had been the subject of repeated protest fires on or adjoining the shoulder of the road. From a videotape (Exhibit 9) filmed by witness Melody L. Peterson, who resided to the immediate north of the expressway, it is clear that at times those fires were rather large. On April 8, however, the fire was described as smouldering with fairly light smoke, and positioned at the top of the elevated highway embankment that adjoined the south shoulder of the road. Various groups or "details" of State troopers responded that morning to the protest, initially congregating at a fire hall located on Route 394, near the expressway exit. From the proof it appears that approximately 25 to 27 officers responded in total, under the direction of Captain Kevin G. Molinari, who drove to the fire hall as part of a group of six to eight cars from his Olean command post. After conferring to develop a plan for addressing the protest Captain Molinari led a group of officers to the area of the fire, wearing protective helmets. He spoke with the protesters, approximately six in number, and determined that the situation was not adversarial. Nevertheless, he remained concerned that lanes of traffic would become impaired by smoke or fire, and conferred with Lieutenant Christopher Cummings about removing the burning materials from the edge of the road. He then placed Lieutenant Cummings in charge of debris removal, and left the protest site.

Under the plan implemented by Lieutenant Cummings a payloader on loan from the Department of Transportation (DOT) during the protests was used to remove the burning materials from the edge of the road. The debris was then pushed down the adjoining embankment toward the south edge of the expressway property to make it more difficult for the protesters to again build their fire along the road itself. The use of that equipment necessitated that the eastbound lanes of traffic be temporarily stopped. Two State troopers, Randy A. Hugg and James Fechsenhaar, were directed to drive their marked police vehicle up the eastbound entrance ramp at Exit 17, and position the car sideways, with emergency lights activated. In so doing they were able to block not only the two eastbound lanes of traffic, but also any vehicle entering the expressway from Route 394. The payloader, which for safety concerns was operated by a State trooper rather than a DOT employee, was then driven onto the expressway to push the smoking pile back from the road embankment. A number of State Police officers stood at the debris site, approximately four-tenths of a mile from Exit 17, to deter any violence. Other officers remained back at the Cold Spring Fire Hall to secure that staging area. Lieutenant Cummings did not dispatch any officers westward to warn oncoming traffic, believing that the topography of the roadway in the area provided for ready visibility, and knowing that the traffic stoppage was temporary, with an estimated duration of only 15 to 20 minutes. Ultimately, however, the State Police needed close to 40 minutes to complete their task.

The direction to block traffic was transmitted at 8:31 a.m., and was promptly implemented by Troopers Hugg and Fechsenhaar. Eastbound traffic, characterized by most observers as light, was caused to stop, and slowly began to back up. Some approaching vehicles received notice of the traffic stop through Citizens Band radio communications. Others simply observed the growing lines of cars and trucks as they approached the site, and stopped at the end of traffic, with the driving line backing up more quickly than the passing lane. Some vehicles exited down the Exit 17 off-ramp to Route 394. Over time, several stopped vehicles also maneuvered down the eastbound on-ramp to Route 394, until a Cattaraugus County Sheriff's Department vehicle joined Troopers Hugg and Fechsenhaar to further block that ramp. A few trucks also pulled over to the south shoulder of the expressway in the area of the Exit 17 off-ramp.

A number of witnesses testified regarding their observations that morning as they drove eastbound on Route 17, and approached the area of the traffic stop. Those recollections varied in a number of respects, including the ease or difficulty experienced in reacting to the lines of stopped vehicles. However, all of those drivers were able to respond to the traffic stoppage without collision, as did the numerous other cars and trucks that waited in line while the State Police pushed the pile of burning debris and other combustible materials down the road embankment and away from the expressway.

Neal Higley reported that as he approached the area of the overpass that morning he was able to observe stopped traffic from a distance of approximately one-quarter mile away. Traveling at 55 miles per hour, which he incorrectly believed to be the speed limit, he stopped his truck without any problem. He described weather conditions as sunny and clear. Mr. Higley estimated that he then remained in the right lane of traffic, west of the overpass, for 30 to 40 minutes before the accident. Approximately 10 minutes before the accident a dump truck pulled up and stopped directly behind him, again without incident. A few cars ahead of him then maneuvered backward and off the expressway ramp, and he drove his vehicle several car lengths forward. The dump truck did not move, and thereby created a gap between their vehicles. He also recalled other cars and trucks waiting in the passing lane, although at a point ahead of the line of traffic in his lane. As Mr. Higley waited he observed two police vehicles in the area of the on-ramp. He further reported that just prior to the accident he noticed something approach quickly from behind, then heard the squeal of what he believed were brakes before a truck and trailer struck the dump truck behind him.

Mr. Higley also claimed to have observed the payloader, as well as flames from the tire fire, which he estimated as rising 10 feet in the air, at a point beyond the parked police vehicles. While I do not doubt that the testimony represented the witness's best recollection, he would not have been able to see the fire from the point where his car was parked. It appears more likely that Mr. Higley had joined the number of motorists who briefly exited their vehicles and walked further east, in order to observe the problem. In the alternative, he might mistakenly have recalled a protest fire on another date. Regardless, I credit his testimony to the extent that at some point he observed the payloader and fire.

Bradley Rogers was the operator of the dump truck that stopped behind the Higley vehicle. An employee of a gravel hauling business, Mr. Rogers had loaded his truck, a 10-wheel White brand vehicle with 12 to 14 tons of gravel earlier that morning. As a standard business practice he also checked the lights on the truck before he began his delivery. While driving eastbound at approximately 60 miles per hour he observed the traffic backup as he rounded the curve on the expressway to the west of the Steamburg exit, a distance he estimated as approximately one-quarter mile. Although he initially could not determine whether traffic was completely stopped or moving at a very slow pace, he was able to brake his truck without difficulty, notwithstanding the weight of his load. At that point the dump truck would have been located in the driving lane of traffic, just east of the start of the Exit 17 off-ramp, and west of the overpass itself. The Court accepts Mr. Rogers' testimony that he then activated his four-way flashers, and briefly exited the truck to determine the reason for the delay. He then returned to his truck to wait for traffic to clear. Approximately 10 to 15 minutes after he first arrived at the site he felt an impact from the back. He then observed the Spoon vehicle move up along his driver's side before stopping, in flames, in front of his truck. Mr. Rogers attempted to move his truck back and away from the fire, but was blocked by the upper section of the trailer the decedent had been hauling, which had become dislodged from the trailer chassis as it also struck the rear of the dump truck.

Two other motorists offered testimony regarding their observations of the Spoon vehicle as they traveled eastbound on Route 17. Richard Chapman, who drove a tractor-trailer for Roadway Express, claimed that he observed the Dodge Ram and trailer when he first entered onto the expressway at Exit 13, approximately 18 miles west of the accident site. He described traffic conditions as "light," which in his experience was typical for the expressway after 8:00 a.m., when morning commuter traffic ended. Traveling at 60 miles per hour Mr. Chapman believed that his rate of speed was only slightly slower than the Dodge Ram, such that he only lost sight of that vehicle just prior to the incident, at which point he was approximately one mile behind Mr. Spoon.

Mr. Chapman acknowledged that no signs or emergency vehicles warned of the traffic stop, and that he had learned of the problem from radio communications. He then proceeded to use an arm motion out his driver's-side window to warn another driver, Darryl Green, to slow down as that vehicle passed him approximately one mile west of Exit 17. Mr. Chapman did not actually observe the accident, but did see the explosion of flames immediately thereafter. When he arrived at the scene he parked his truck and approached the burning vehicle with a fire extinguisher. He noted that the external gas tank had ruptured, and that the body of the trailer had become separated from its chassis, which remained attached to the burning truck. As a result the Dodge Ram came to a stop to the front of the dump truck, with the chassis positioned along the driver's side. The body of the trailer was positioned on the road surface itself, to the immediate rear of the dump truck.

Darrell Green also claimed to have observed the Spoon vehicle well west of the Steamburg exit, although his recollections differed in many respects from those of Mr. Chapman. He first noted the Dodge Ram and trailer as he entered onto the expressway at Exit 12 in Jamestown, approximately 20 miles west of the accident site. At that point Mr. Spoon moved to the left to allow him to enter the right travel lane of traffic. Mr. Green then proceeded to follow the Spoon vehicle at what he estimated was 70 to 75 miles per hour, as they both drove east on Route 17. At a point just prior to the incident they passed a Roadway Express truck in the right lane. Mr. Green believed that the truck driver motioned to both vehicles to slow down by means of an arm extended out his driver's-side window. The witness reduced his rate of speed. The Dodge continued the prior pace, and the distance between their vehicles increased. Mr. Green then saw that the traffic ahead had stopped. He observed the Spoon truck approach the lines of vehicles without slowing, then move to the left from the travel lane immediately before it struck the rear of a stopped dump truck. At no point did Mr. Green observe the Dodge or trailer brake lights illuminate.

Despite driving a six-wheel truck that was larger than the Spoon vehicle, and transporting a 6000-pound load, Mr. Green was readily able to stop. The witness was clear in his recollection that the Roadway Express driver had motioned both the Spoon vehicle and his vehicle to slow down, a point that is inconsistent with Mr. Chapman's own recollection. The witness remembered that the weather conditions that day were cloudy and cool, and the road conditions dry. Significantly, Mr. Green noted that once he reached the bridge overpass approximately one-half mile from the accident site he could see all the way to the Steamburg exit. Despite his lack of prior knowledge of the protest he also could observe the lines of stopped vehicles at the Route 394 overpass without difficulty.

The recollections of Mr. Chapman and Mr. Green are inconsistent in several respects that cannot be conformed. I accept the testimony that Mr. Chapman used his arm to warn Mr. Green, at a point that would have been between one and two miles west of the accident site. I also credit Mr. Green's statement that he was following behind the Spoon vehicle at that time, and that he continued to observe the Dodge Ram up to the time of the accident. As a result Mr. Chapman must have been incorrect in his recollection that the decedent had passed him in the area of Exit 13, some 18 miles west of the accident. Moreover, since the Spoon and Green vehicles were traveling in tandem, it is possible that Mr. Chapman could have signaled both vehicles, although I make no finding in that regard. I accept and find it significant that Mr. Green continued to observe the Spoon truck as he himself began to slow down, and watched it begin to change lanes just before striking the dump truck. Notwithstanding Mr. Green's testimony I conclude from later witnesses that Mr. Spoon did apply his brakes just prior to the accident, although not to a degree where he began to skid. I also believe that the vehicles traveled slightly slower than Mr. Green recalled, based upon Mr. Chapman's recollection of his own speed, and a belief that he must have slowed to below 60 miles per hour as he warned Mr. Green, and possibly, Mr. Spoon. Further, I accept Mr. Green's testimony that the Steamburg exit and the lines of stopped traffic could readily be observed from the overpass area, and that he experienced no difficulty in braking his heavily loaded vehicle.

Other witnesses testified to greater difficulty in stopping. Timothy Francis Nye, who at the time of the incident worked for the same automobile dealer as Mr. Green, experienced problems in both observing the stopped traffic and in braking as he drove under the viaduct and around the curve in the area of the Steamburg exit. The witness, who was driving a three-quarter-ton truck between 65 and 70 miles per hour, reported that sunlight from the east impaired his ability to initially see the roadway ahead, and that he had to stop hard, "smashing" on his anti-lock brakes, to avoid a collision. He noted that there were no warnings posted, but conceded that he might not have been paying close attention as he approached the area. I agree that inattention must have played a role in Mr. Nye's need to apply his brakes hard. The mark he made on a photograph in evidence (
see Exhibit 3, "T.N.") to identify where he ultimately stopped placed him several hundred feet east of the eventual accident site, along a straight and level segment of the expressway. In addition, since the line of traffic in the right lane was longer than the passing lane where he was driving, he should have had some additional room to brake as the traffic condition became apparent. Also, Mr. Nye's report of sun-related visual problems were not corroborated by other drivers. Once again, however, the witness was able to stop.
The deposition transcript of Richard Schmigel also supports that some motorists experienced difficulty in stopping, although his testimony is inconsistent with that of other witnesses in so many respects that I regret not being able to assess his demeanor in person. Mr. Schmigel was a self-employed trucker who operated a tractor-trailer on Route 17 on the morning of the incident. As he traveled eastbound he learned of the traffic stop from a Citizens Band radio communication, and saw no other warnings that the police had blocked the road. He was able to observe the line of stopped vehicles from between one-half and three-quarters of a mile to the west. Mr. Schmigel then parked his rig on the right shoulder area of the highway just west of the start of the Route 394 exit ramp. At that point the witness began to review a map in anticipation of leaving the expressway and taking "old Route 17," an east-west roadway immediately to the north of the expressway, around the traffic stop. Mr. Schmigel watched several tractor-trailer rigs experiencing difficulty in braking as he waited. Other vehicles, however, appeared to stop without difficulty. The witness observed the Rogers dump truck pull up and park, and its driver exit that vehicle. He testified that the vehicle remained unoccupied from that time onward, and that its flashers were not illuminated. He noted that the dump truck was in the right lane, and that the line of traffic in the passing lane was several car lengths shorter.

The witness reported that he first observed the Spoon vehicle in his rear view mirror from a distance of one mile away, noting that the truck appeared under control, and traveling at the speed limit. He again observed the Dodge Ram at a distance of less than one-half mile, and became concerned that the vehicle did not appear to be slowing down. After some brief period he thought that he should exit his truck to warn the Spoon vehicle, but by the time he opened his door the Dodge had approached to approximately 50 feet from the dump truck. He then heard tires "squeal" and saw the body of the truck rise upward, which he interpreted to mean that the driver had forcefully applied his brakes. He next observed the truck strike the end of the dump truck, then move to the front of the stopped vehicle and catch fire. Mr. Schmigel estimated that the Dodge's speed just prior to applying its brakes would have been 60 miles per hour.

Several facets of Mr. Schmigel's deposition testimony concern me. First, his certainty that the dump truck was unoccupied at the time of the crash does not take into account that while he observed Mr. Rogers initially exit the truck, he may not have noticed him re-enter. So also, his statement that the dump truck flashers were not activated is not only repugnant to the testimony of the operator, but also the forensic evidence later developed by the State Police. In those respects I favor the testimony of Mr. Rogers, particularly noting his detailed testimony regarding the movement of the Dodge Ram immediately after the incident, and also because immediately after the crash he attempted to move the dump truck backward, and away from the burning pickup truck. I do not see how he could have attempted to move his truck from the fire if he had not been inside it at the point of the collision.

Conversely, I accept Mr. Schmigel's recollection that Mr. Spoon started to brake as he swerved to the passing lane just behind the dump truck, notwithstanding the complete absence of any brake-related skid marks behind the dump truck. The truck elevation and sounds Mr. Schmigel heard are consistent with some degree of braking. I attribute the absence of skid marks to the truck's anti-lock braking system (
see Exhibit N), or a modest application of his brakes as Mr. Spoon also changed lanes. In all likelihood at least some of the truck's movement and noise, as reported by the witness, actually were caused by the collision itself.
Lastly, I am puzzled at the witness's claimed use of old Route 17 to drive eastward around the site following the accident, since several other witnesses made clear that sections of that highway had been abandoned, and not readily capable of use. Whether that statement represents a misstatement, failure of recollection or misimpression of the name of the route he traveled remains unsettled. More generally, in areas of conflicting testimony I have tended to discount Mr. Schmigel's recollections in favor of that of other witnesses, and documentary evidence derived from the accident.

Some expert evidence also was introduced at trial. Dennis M. May, who retired from the New York State Police in the summer of 1995, was called by Claimants to testify regarding traffic control procedures at the site. Mr. May had worked for over 22 years as a patrol officer assigned to traffic enforcement, including three years specifically on the Southern Tier Expressway, and several additional years patrolling other areas of Cattaraugus County. In the course of those assignments the witness had exposure to Seneca tax protests in the Salamanca area in 1993, and along the Cattaraugus Reservation in Erie County in 1995. The former included some tire fires, although off to the side of the highway, and thus not designed to impair traffic, while the 1995 incidents did not include that form of protest. More generally, Mr. May had experience in traffic stoppages, and had investigated approximately 300 accidents over his career. Conversely, the witness had no supervisory experience with his former employer. His prior experience with blocked traffic would have involved road checks for safety equipment violations and alcohol-related offenses, under the direction of a superior officer. The witness had been required to block traffic on the Southern Tier Express and other limited access highways in his career, although again pursuant to the order of a higher ranking member of the State Police.

Mr. May testified that as a matter of course in any type of road closing he had been taught to give fair and proper warning to oncoming traffic. The exact location of such notice would vary with road and traffic conditions, all aimed at protecting the safe passage of the motoring public. The witness offered suggestions concerning the potential borrowing of sign boards from the DOT, the positioning of marked cars with emergency lights flashing toward traffic, and the use of police personnel and flares well west of the Steamburg exit as means to warn motorists of the need to slow and stop.

In Mr. May's opinion the traffic stop on April 8, 1997 involved methods and tactics that were improper, inappropriate and inherently dangerous, based upon what he characterized as a lack of visibility and warning of an impending danger. He also believed that the accident was preventable if some manner of warning had been provided, particularly if a rerouting of traffic had also occurred. In that regard the witness suggested that with the select placement of cones two to three troopers could have moved vehicles off the expressway at the Steamburg exit, then north onto Route 394 for a short distance to old Route 17, then east to Salamanca, where traffic could have reentered the eastbound expressway well beyond the area of the tire fire.

Mr. May opined that the State Police vehicle that blocked traffic at the end of the eastbound on-ramp should not have been positioned across the lanes of traffic. Instead, the car should have faced traffic, to allow the front-end emergency lights to be viewed in addition to the flashing roof lights. He did not believe that the tire fire presented an emergency situation, or that the closing of the highway for between 34 and 39 minutes could be characterized as a temporary shutdown. He also stated that if traffic could not have been routed off Route 17 at the Steamburg exit, then five to six troopers should have placed their vehicles in a manner facing traffic over a distance of between 1½ and 2 miles from the site, with emergency lights flashing, and the officers stationed to provide hand warnings to slow down. In his opinion an important factor in the placement of vehicles was that the approach to Exit 17 was both curved and on a downward slope, thereby limiting the view of oncoming motorists.

In assessing the testimony of Mr. May I am concerned that in 22 years with the State Police he had never been promoted, and never had the responsibility for planning and implementing a traffic stop. While his retirement from the State Police is attributable to injury, the witness also had some disciplinary history with his former employer, and I sensed some discomfort toward the State Police that is inconsistent with a favorable long-term relationship.

I also question several of his recommendations. The issue of whether the vehicle that blocked traffic should have faced sideways across both lanes or directly into traffic is debatable, and clearly irrelevant since the line of traffic undisputedly blocked any view of that car by motorists to the west of the Route 394 overpass. His proposal for the redirection of traffic did not take into account that old Route 17 was no longer fully in use. His suggestions for personnel allocation appeared quite casual, and did not account for the protest itself. The claim regarding impaired sight lines for oncoming traffic is inconsistent with the descriptions of other witnesses, and post-accident measurements. The belief that the protest and fire was not an emergency was not tied into any definition or established policy, but simply a matter of opinion. Although I understand the assertion that public safety could have been promoted by positioning vehicles as much as two miles west of the stop, once again Mr. May's comments on the point reflected his own thought processes, without any tie to a specific rule or policy of the State Police, or established doctrine or authority in the general law enforcement community.

Timothy Panus, an accident reconstructionist employed by the New York State Police, also offered expert opinions derived from his investigation. Trooper Panus and a second accident reconstructionist, John Dineen, who was recovering from back surgery at the time of trial, had been called to the scene by the State Police shortly after the accident. Upon arriving at the site he and his partner commenced an investigation directed at determining causes for the collision. The officer testified that weather conditions were overcast, with gusty winds but no precipitation, and that the road surface at the accident site itself was straight and level. They then measured the maximum sight distance west from the point of collision through the use of a laser measuring device. The investigators found that the accident site could be observed from a point just west of the bridge overpass identified as a reference point by several witnesses. Through a remeasurement shortly before the trial the trooper determined that the distance between the accident site and the earliest point of observation was approximately 2,900 feet. Testimony further developed that because the highway in the area curved in an outward arc, and the laser would have measured a straighter sight line, the travel distance between the first point of observation and the accident site was actually longer than the measured distance.

Relying on test data for human reaction times for both average and fatigued drivers, the witness testified that at 60 miles per hour a nonfatigued driver could react and stop a vehicle over a distance of between 291 and 312 feet, while a tired driver could react and stop at some point between 370 and 391 feet. At 70 miles per hour those distances would vary between 369 and 398 feet for an alert driver, and between 462 and 491 feet for a fatigued individual. Even at 80 miles per hour the distances would vary between 454 and 491 feet for a nonfatigued driver, and 560 to 597 feet for a tired individual.

Trooper Panus offered other observations relevant to this matter. First, he noted that the Dodge Ram had not squarely struck the rear of the dump truck, which was positioned in the travel lane. Instead, the Spoon vehicle had moved part way into the passing lane prior to the accident, such that its right front corner struck the left rear of the stopped vehicle. The Dodge then continued to move forward in the passing lane, with its rear wheels sliding somewhat in a clockwise direction. In the process the travel trailer also struck the rear of the dump truck, shearing its body from the chassis. The investigator also reported that he did not find any skid marks that were the result of braking. He characterized the tire marks that he did observe as scuff marks, located to the side of the dump truck, which he attributed to lateral sliding after the initial collision. Various testings or inspections also revealed: that the steering and braking systems on the Spoon vehicle were functional; that the trailer also had a braking system; and that at the point of collision the dump truck's four-way flashers had been activated. The officer noted that the highway was dry, and without potholes or other defects, and the weather conditions would not have caused any glaring on the road surface.

Trooper Panus also testified to a history of earlier dealings with protests along the expressway. From his experience tire fires and other traffic impediments had not been confined to the Steamburg exit, and instead would occur at various points along the 28 miles where sections of the expressway adjoined the reservation. Despite a need to periodically stop traffic, to his knowledge there had never been a prior accident involving those vehicles. Additionally, the officer refuted assertions by Mr. Schmigel and Mr. May concerning the actual use and possible rerouting of traffic eastward along old Route 17 toward Salamanca. Based upon his familiarity with that highway Trooper Panus stated that only portions of that road remained open and functioning. As a result, vehicular traffic would not have been able to use old Route 17 to travel eastward to the next expressway on-ramp at Salamanca. Thus, and contrary to Mr. May's assertion, any detour of eastbound traffic would have been longer and more circuitous. On that issue I also credit the testimony of Lieutenant Cummings, who believed that a detour to the next eastbound on-ramp would have involved 20 to 25 miles of highway travel, and substantial manpower allocation.

In denying recovery I must first focus on the issue of causation, an inquiry recognized as unique in each case (
see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Clearly, there can be more than one proximate cause of an occurrence (see Derdiarian, 51 NY2d at 314-316; see also Gordon v Eastern Ry. Supply, 82 NY2d 555, 561-562 [1993]; Sheehan v City of New York, 40 NY2d 496, 503-504 [1976]; McMorrow v Trimper, 149 AD2d 971 [1989], affd 74 NY2d 830 [1989]). In some instances independent acts of negligence can be deemed concurring causes of an accident and injury, such that the perpetrator of either or both acts may be held responsible, while at other times an act could be deemed an intervening cause, and thereby prevent a recovery on account of the act, or omission of the original wrongdoer (Sheehan, 40 NY2d at 503-504). Whether that independent act should instead constitute a superseding cause, such that the other negligent act(s) would not support liability, would depend in turn on whether that intervening cause "interrupts the natural sequence of events, turns aside their course, prevents the natural and probable result of the original act or omission, and produces a different result that could not have been reasonably anticipated" (Sheehan, 40 NY2d at 503-504, quoting 1 Warren's New York Negligence §5.08, at 122).
On the proof presented I find that the sole legal cause of the accident was Mr. Spoon's failure to respond to the readily apparent conditions he faced, and that the traffic stoppage simply provided the condition or occasion, rather than a cause, for that tragic incident. Highway traffic can be expected to slow or stop at times for any number of reasons. Drivers are expected to "maintain safe distances between their cars and cars in front of them (Vehicle and Traffic Law §1129 [a]), and this rule imposes on them a duty to be aware of traffic conditions, including vehicle stoppages" (
Johnson v Phillips, 261 AD2d 269, 271 [1999], citing Sass v Ambu Trans Inc., 238 AD2d 570 [1997]). Absent nonnegligent explanations, rear-end collisions with stopped vehicles are deemed the fault of the driver of the rear vehicle (see Pitchure v Kandefer Plumbing & Heating, 273 AD2d 790 [2000]; Johnson, 261 AD2d at 271). I am mindful that the death of Mr. Spoon precludes testimony that he might have offered had he lived, and that under Noseworthy v City of New York, 298 NY 76 (1948), his estate's representative is held to a lesser degree of proof in my review of evidence of his operation of his vehicle. However, on the proof it is inescapable that in the exercise of due care the decedent should have been able to observe, react and stop his vehicle quite easily over a distance of several thousand feet as he approached the Route 394 overpass. That traffic had been stopped was obvious even without the activation of flashing lights on the rear of the Higley vehicle. That Mr. Spoon was conscious and alert, and that his brakes worked, is evident from his application of his brakes and effort to change lanes as he approached the rear of the dump truck. His consistent speed, appropriate passing and change of lanes, and successful negotiation of the highway curve over the mile leading to the crash site also establish his conscious operation of a functioning vehicle at that time. No evidence, direct or circumstantial, tends to support any factor other than driver inattention as the cause of the collision, and even under a favorable view of the circumstantial evidence and lesser degree of proof Claimants have not met their burden of establishing that the traffic stoppage was a legal cause of the accident. Everyone else stopped, and despite some complaints regarding the need for the sudden application of brakes that are wholly inconsistent with the proof of sight lines and stopping distances, there is no credible evidence that any other vehicle came close to experiencing a collision. In contrast Mr. Spoon did not begin to apply his brakes, or change lanes, until he had driven to within 50 feet of a stopped truck with its four-way flashers activated. That conduct overwhelms any other consideration, and is the sole legal cause of the accident.
Further, I conclude that in responding to the protest, and in blocking traffic while they removed burning debris from the edge of the expressway, the State Police were performing a function that must be characterized as governmental rather than proprietary. The activities clearly involved traffic regulation along Route 17. Moreover, the size and organization involved in the police response, as well as the use of riot gear and investigation of the potential for an altercation with the protesters at the site, also evidence their performance of a crime prevention function. Either of those purposes would have been governmental in nature, since they were undertaken for the protection and safety of the public pursuant to the State's general police powers (
see Balsam v Delma Eng'g Corp., 90 NY2d 966, 967-968 [1997]). The State cannot be held liable for ordinary negligence in the performance of such governmental functions, absent a special relationship between the injured parties and the State (see Balsam, 90 NY2d at 967). No special duty has been established in this instance.
Third, and on a related basis, the State would be immune from liability for the ordinary negligence claimed herein pursuant to Vehicle and Traffic Law § 1104 (e). I find that the starting of a fire along the shoulder of an expressway did create an emergency circumstance, and that the parking of a police vehicle with its emergency lights activated to assist in addressing that fire and related conduct, fell within the scope of "emergency operation" under Vehicle and Traffic Law § 114-b. That the fire was apparently off the road shoulder itself, and smouldering at the time of the incident, is of no moment to me. The videotape filmed by Melody Peterson demonstrated the size and intensity of several fires at that same location in the days that preceded the incident, and there is no reason to conclude that but for the State Police intervention the fire that morning would not have grown to a similar size. When Lieutenant Cummings spoke with the protesters that morning he observed debris not just at the fire, but running down the embankment as well. Even accounting for the payloader's travel time up and down the eastbound entrance ramp, it is telling that enough combustible material existed at the site that the operator of that vehicle needed some 30 minutes to move the debris to the edge of the right-of-way. Under those circumstances the State Police would not be liable for the ordinary negligence alleged in each claim as they used an emergency vehicle to block traffic (
see DiFlorio v Worden, 303 AD2d 924 [2003]). Mr. May's representations regarding appropriate police practices were conclusory. He failed to identify a specific rule or procedure that the responding officers failed to follow, or other basis for finding reckless behavior, rather than ordinary negligence, which is nonactionable (see DiFlorio, 303 AD2d at 925; cf Allen v Town of Amherst, 294 AD2d 828, 829 [2002], lv denied 3 NY3d 609 [2004][evidence of officer's violation of police agency's own rules and regulations raised issue of fact of recklessness]). Even assuming, however, that the circumstances did not present the type of emergency contemplated by Vehicle and Traffic Law §114-b, the State would still be exempt from liability for ordinary negligence. The police blocked traffic to allow a DOT payloader to remove an existing or potential hazard from the edge of a highway. Such conduct would fall within the scope of Vehicle and Traffic Law § 1103 (b), which likewise exempts a "hazard vehicle" from liability for ordinary negligence (see Riley v County of Broome, 95 NY2d 455 [2000]). Under Vehicle and Traffic Law § 117-a, a "hazard vehicle" is defined as including "every vehicle engaged in highway maintenance," which here would extend to both the payloader and the police cruiser that blocked traffic to allow that DOT vehicle to enter onto the expressway and perform its debris removal functions.
Lastly, even viewed under a standard of ordinary negligence I would not find the State liable. Mindful of the history of fires at that location, and the presence of additional combustibles, the police could not simply assume that the fire on April 8, 1997 would remain in its precise state and location. Even the modest fire along the shoulder edge still represented a source of smoke, distraction and potential alarm, and the determination to alleviate that hazard was a reasonable exercise of judgment. With hindsight Mr. May's opinion that warnings should have been placed over a mile or two west of the site may appear to be well-founded. However, as of that date there had never been an accident in a protest-related stop, and at that time traffic was light, and road conditions were clear and dry. The immediate area of the stop was straight and level, and the arcing slope further west should have enhanced motorists' observation times. Based upon those factors I cannot find that Claimants have established negligence in the means employed to address the protest and remove debris from the shoulder area.

In view of the above I find it unnecessary to consider whether sufficient evidence of Lieutenant Cummings' planning existed to support immunity under
Weiss v Fote, 7 NY2d 579 (1960).
The claims are hereby dismissed.


January 10, 2005
Buffalo, New York

Judge of the Court of Claims

[1] During the trial the parties stipulated that the propriety of the gas tank and its role in causing the death of Mr. Spoon would be determined in the trial of damage issues, should Claimants prevail herein.