New York State Court of Claims

New York State Court of Claims

GORDON v. NEW YORK STATE and THE NEW YORK STATE THRUWAY AUTHORITY, #2004-034-571, Claim No. 103754, Motion No. M-68142


Claimants' motion for summary judgment is denied. In order to prevail Claimants must establish not only negligence as a matter of law, but the absence of contributory negligence and there can be no more than one proximate cause of an accident. Additionally, the degree to which the State may be immune for road design is to be determined after a trial on the issues of study and planning

Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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Motion number(s):
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Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 29, 2004

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See also (multicaptioned case)

Claimants have moved for summary judgment against Defendant New York State Thruway Authority under CPLR 3212. The Court hereby denies the motion.

The Court has considered the following papers in connection with this motion:

1. Verified Claim (#103754-Gordon), verified January 23, 2001, filed January 30, 2001;

2. Answer, verified February 20, 2001, filed February 21, 2001;

3. Verified Claim (#103869-Miller), verified February 15, 2001, filed February 22, 2001;

4. Answer, verified March 30, 2001, filed April 2, 2001;

5. Notice of Motion, dated March 5, 2004, filed March 9, 2004;

6. Affirmation in Support of Motion of Michael J. Grace, dated March 1, 2004, with attached exhibits, Memorandum of Law and select pleadings;

7. Affidavit in Opposition of Richard B. Friedfertig, sworn to April 9, 2004, filed April 13, 2004, with attached exhibits;

8. Reply Affirmation of Michael J. Grace, undated, filed April 19, 2004;

9. Supplemental Affidavit of Lawrence M. Levine, P.E., sworn to April 27, 2004, filed April 30, 2004;

10. Memorandum of Law of Richard B. Friedfertig, dated April 29, 2004;

11. Reply Affirmation in Support of Motion of Michael J. Grace, undated, filed May 11, 2004, with attached exhibits;

12. Memorandum of Law of Michael J. Grace, dated April 28, 2004 (also submitted in letter form);

13. Supplemental Affidavit in Support of Motion of Lance E. Robson, P.E., sworn to May 10, 2004, filed May 13, 2004.

These claims arise from a one-car accident that occurred on October 17, 1999 on the eastbound New York State Thruway, Interstate 90, in the Town of Newstead, near the Millgrove Road overpass. At the time of the accident the vehicle, a 1992 Pontiac Grand Am, was operated by Amy Vassallo, although owned by another occupant, Shannon Slavin. Jessica Gordon, Rachel Miller and Megan Condon were also passengers in the automobile. The five young women were all students at the Rochester Institute of Technology, and were returning to the university from Canada at the time of the accident. All five had attended a late-night dance party or concert in Toronto before starting their return trip early that morning, without having slept, in a rainstorm that appears to have diminished from a downpour to a light rain as they proceeded toward Rochester.

The accident occurred at approximately 7:40 a.m., when the Pontiac allegedly slid or hydroplaned off the south shoulder of the road, rode onto a guide rail, overturned and struck a concrete jersey barrier. As a result Ms. Gordon sustained injuries that have rendered her a quadriplegic. Ms. Miller suffered fatal injuries.

Both claims have alleged inter alia that Defendants were negligent: in the design and maintenance of the roadway; in improperly installing a guide rail with a "Type II End Assembly" and jersey barrier; in allowing ruts to remain in the wheel paths of the roadway, thus creating a hazard for hydroplaning; and in failing to follow accepted traffic rules, regulations and industry standards in the design, installation and maintenance of the roadway. The answer in the Miller claim asserted numerous affirmative defenses, including comparative fault and qualified immunity for the decisions of the Thruway Authority and its employees. The answer in the Gordon claim also asserted various affirmative defenses, but inexplicably did not set forth comparative fault or qualified immunity as defenses.[1]

Claimants now seek summary judgment against the Thruway Authority on questions of liability. In so moving they urge that both the initial loss of vehicle control, and subsequent vaulting over the guide rail, were the sole result of that Defendant's negligent roadway maintenance and rail design. They further contend that irrespective of any questions of fault in the initial loss of vehicle control, the sole proximate cause of the injuries in each claim was the Thruway Authority's failure to install a proper guide rail. For reasons that follow the motion must be denied.

Summary judgment is a drastic remedy, one which should not be granted where there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]; Sillman v Twentieth Century- Fox Film Corp., 3 NY2d 395, 404 [1957]). Issue-finding rather than issue-determination is the focus of the Court in reviewing the submissions (Sillman, 3 NY2d at 404), with all evidence viewed in a light most favorable to the non-moving party (Rotuba Extruders, Inc., 46 NY2d at 231). To obtain such disfavored relief a movant must establish his cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment" in his favor (CPLR 3212 [b]), and must do so by tender of evidentiary proof in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). Summary judgment is rarely appropriate in negligence cases "because even when the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances" (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). Moreover, assessments of proximate or legal cause in such cases are also usually left to a trier of fact, due to the uniqueness of each such inquiry (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315 [1980]).

To establish an entitlement to relief herein each Claimant must not only establish negligence as a matter of law on the part of the Thruway Authority, but also the absence of any comparative fault (Drew v J.A. Carmen Trucking Co., 8 AD3d 1112 [2004]; Bodner v Greenwald, 296 AD2d 564 [2002]; King v Washburn, 273 AD2d 725 [2000]). As noted earlier, comparative negligence was clearly raised as an affirmative defense in the Miller matter. That question can also be considered in the Gordon motion, since an unpleaded affirmative defense may be invoked to defeat a summary judgment motion (see Preferred Capital, Inc. v PBK, Inc., 309 AD2d 1168 [2003]), and counsel can hardly claim surprise or prejudice, in light of his joint representation of both Claimants. In opposing summary judgment the Thruway Authority has tendered substantial evidentiary support addressed to culpable conduct on the part of Ms. Gordon and Ms. Miller. When viewed in a light most favorable to that Defendant those submissions compel denial of Claimants' motion.

Passengers in an automobile possess an independent duty to exercise reasonable care for their own safety (see Nelson v Nygren, 259 NY 71 [1932]; Posner v Hendler, 302 AD2d 509 [2003]; Stewart v Taylor, 193 AD2d 1078 [1993]; see generally PJI 3d 2:87 [2004]). Here, there is evidence that when the young women left the dance party at 4 o'clock that morning, Ms. Slavin requested that they find a hotel room in Toronto to sleep. Her suggestion was motivated by her state of exhaustion, and impairment by the alcohol and two Ecstacy pills that she had consumed at the party, which caused her to believe that she could not safely operate her car. The others rejected the proposal, and Ms. Miller and Ms. Vassallo instead offered to alternate driving duties. Ms. Miller then briefly drove the car as they started their return trip, before relinquishing those duties to Ms. Vassallo. At that point the five occupants knew that, as with all of them, Ms. Vassallo had consumed two Ecstacy pills at the Toronto dance club, where they had just spent seven hours listening to music and dancing. They knew that Ms. Vassallo had gone virtually an entire day without sleep, and that she had played in an intercollegiate soccer game shortly before they had driven to Toronto the day before. They knew that she was unfamiliar with Ms. Slavin's car. All of the occupants must have heard Ms. Slavin's repeated and loud admonitions to Ms. Vassallo to slow down, as she drove at speeds as high as 75 to 85 miles per hour, late at night, and in rain conditions that at times were quite heavy. They must also have heard a similar request to slow down by Ms. Condon, and, possibly, Ms. Miller herself. They were in the car when their driver exited from the roadway to make a rest stop, and "basically skidded into the gas station," which led to a "fight" between the driver and owner about speeding (see Friedfertig Affidavit, Exhibit B [Deposition Transcript of Shannon Slavin, August 8, 2003, p 22]). They also were in the car when, as Ms. Vassallo exited the gas station, she again drove too fast, missed an entrance road, and drove off the road itself (see Friedfertig Affidavit, Exhibit B [Slavin Deposition Transcript, p 44]). Disregarding the claimed effects of Ecstacy on vehicle operation for lack of an expert's affidavit, those circumstances present sufficient evidentiary support to raise an issue of fact concerning the exercise of care by Ms. Gordon and Ms. Miller for their own safety. Since evidence exists that the accident occurred on a straight section of highway, while Ms. Vassallo was again exceeding the speed limit, in the rain, and the car simply slid off the side of the roadway, the Court cannot find as a matter of law that no causal connection exists between that known conduct and the accident itself. On that basis alone the Court must deny Claimants' motion.

It is Claimants' position that any negligence on the part of Ms. Miller and Ms. Gordon is irrelevant for several reasons. First, they have urged that the initial accident was the result of hydroplaning on an accumulation of water in ruts on the roadway, at a point where Ms. Vassallo was driving within the design speed for the Thruway, and was not otherwise negligent. Second, relying upon Kirisits v State of New York, 107 AD2d 156 (1985), Claimants have asserted that any negligence on the part of the driver and passengers must be disregarded, in that the sole cause of the injuries sustained by Ms. Miller and Ms. Gordon was the failure of the guide rail end assembly to perform properly. However, on the submissions I cannot find as a matter of law that the operator was not negligent, or that her negligence was not a substantial factor in causing injury to her two passengers. Further, I reject Claimants' assertion that, under Kirisits, operator negligence is to be disregarded in a guide rail design case. 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 [1983]; 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 present a recovery on account of the act, or omission of the original wrongdoer (Sheehan, 40 NY2d at 503-504). In determining such causal connections a party need not demonstrate that the precise manner in which the conduct happened or the injuries occurred was foreseeable, but only that the risk of some injury from the conduct in issue was foreseeable (Gordon, 82 NY2d at 562; Derdiarian, 51 NY2d at 314-315; McMorrow, 149 AD2d at 972-973). 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). The liability of the initial tortfeasor would thus turn on whether the intervening act was itself a normal or foreseeable consequence of the situation created by the initial negligence (Derdiarian, 51 NY2d at 315). In assessing liability for alleged highway defects the negligence of the vehicle operator as a causative factor can be considered (see Humphrey v State of New York, 60 NY2d 742 [1983]).

Independent of questions of comparative negligence and superseding cause Claimants' motion must be denied. Notwithstanding the volume of submissions on behalf of Claimants, and credibility challenges that are more appropriately matters for trial, I must credit the opinions of Defendant's engineer, Lawrence M. Levine, concerning issues of both negligence and proximate cause. Considering all submissions I reject Claimants' assertion that the engineer's opinions lack sufficient factual support, and must therefore be rejected as conclusory or speculative. In that regard I am mindful that while conflicting expert opinions generally present a credibility issue necessitating denial of summary judgment, an expert affidavit that fails to provide a factual or scientific basis for an opinion is rendered conclusory and insufficient to defeat summary judgment (see Romano v Stanley, 90 NY2d 444, 451-452 [1997]). I also note that Mr. Levine's conclusions are not the only evidence offered in opposition to the motion, and that he also has challenged the foundations for the opinions of Claimants' engineer.

Specifically, I must accept Mr. Levine's statements that the initial loss of vehicle control resulted from speed on wet pavement, rather than hydroplaning on roadway ruts. So also, the defense engineer's description of the impact speed and angle of contact with the railing provide serious challenge to Claimants' allegations regarding the significance of the stated deficiencies in the Type II rail end section in causing the rollover. Further, I must credit Mr. Levine's assertion that the likely consequence of striking a Type I end assembly at the angle in question would also have been significant injury, due to the performance limitations in that type of guide rail.

Lastly, Claimants have failed to establish the Thruway Authority's fault as a matter of law for the decision to use a Type II rail end assembly rather than a Type I section. The authority may not be held liable for its highway planning decisions in the absence of proof that its study of a condition was plainly inadequate or lacking in any reasonable basis (see Friedman v State of New York, 67 NY2d 271, 283-284 [1986]; Weiss v Fote, 7 NY2d 579, 585-586[1960], rearg denied 8 NY2d 934 [1960]). The railing in question was reconstructed as part of a 1995 project involving the adjoining Millgrove Road bridge overpass. Although the original design by the project engineers called for a Type I end assembly, that design was changed at the request of a Thruway Authority project supervisor, Walter Celej, after inspecting the site, and evaluating adjoining structures that had not been incorporated into the project. Those structures consisted of a salt barn, located to the immediate west of the overpass, as well as a maintenance truck turnaround positioned across the roadway median at that location. Mr. Celej requested a change to a Type II assembly in the belief that the proposed Type I assembly would extend too far into the service area that surrounded the salt barn to allow ready access to the barn by trucks crossing the median.

In urging summary judgment Claimants have provided proof that the measurements used by the authority's representative included an error in the computation of the distance between the overpass and the barn, as well as its positioning in relation to the edge of the road surface. Such proof, however, fails to establish as a matter of law that the official's study was plainly inadequate, or that the ultimate judgment lacked any reasonable basis. The recommendation occurred only after Mr. Celej physically traced the anticipated position of the longer Type I assembly onto the salt barn's parking lot, and determined that it would impair the safe crossover of salt trucks toward the doors of the barn, which faced east, toward the overpass. Whether that problem should have been remedied as determined, or by the repositioning of the crossover or the barn itself, or whether no action should have been taken, all involved matters of judgment that were not, as a matter of law, solely dependent upon a purported arithmetic error.

Based upon the foregoing, it is

ORDERED, that Claimants' motion for partial summary judgment on questions of liability is denied.

September 29, 2004
Buffalo, New York

Judge of the Court of Claims

[1] Defendants subsequently filed and served a motion (No. M-68481) to amend their answer in Gordon to add comparative fault and qualified immunity as defenses. By Decision and Order filed September 29, 2004, I have granted that relief, over objection.