SPRAGUE v. THE STATE OF NEW YORK, #2005-016-038, Claim No. 100218
Passenger in vehicle hit by car making left turn onto highway failed to
prove that the absence of a left-turn prohibition was the proximate cause of
RICHARD G. SPRAGUE II & RICHARD G. SPRAGUE
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Reilly & Reilly, LLPBy: David T. Reilly, Esq.
Eliot Spitzer, Attorney GeneralBy: Denis J. McElligott, Esq.
May 23, 2005
AFFIRMED 35 AD3D 843 2D DEPT 2006
See also (multicaptioned
This decision follows the trial on liability of the claim which arose from
the injury of Richard Sprague II in a traffic accident on July 4, 1996. The
action of Mr. Sprague’s father is a derivative one, and references in this
decision to “Mr. Sprague,” “Sprague” or
“claimant” in the singular will therefore refer to the younger
Mr. Sprague was a passenger in a vehicle driven by Vincent Appel,
which had been headed eastbound on Middle Country Road, also known as Route 25,
in the Village of Selden within Suffolk County. Mr. Appel’s Chevy
Suburban van was struck by a car driven by Jerome Klein, who had made a left
turn out of a shopping plaza onto Route 25 intending to travel westbound.
Claimants maintain that defendant is negligently responsible for Sprague’s
injuries because, in the State’s reconstruction of Route 25, it neglected
to maintain a prohibition on left turns like the one Mr. Klein attempted.
The accident occurred just east of where Route 25
is crossed north and south by College Road. Situated on the southeast parcel of
this intersection is the Country Corners Shopping Center. Klein was exiting the
shopping center after he and his party had eaten dinner at a restaurant. The
exit is 150 feet east of College Road.
The exit was 28 feet across and, at the time of the accident, had two yellow
arrows on the pavement near the curb cut, one pointing perpendicularly out
towards Route 25, and the other, an entrance arrow, also perpendicular to the
highway. There were no traffic signs facing exiting vehicles.
(Claimant’s exhibit 7).
At the time of this accident, Route 25, from
the Country Corners exit, going straight across from south to north, was made up
of the following :
- a shoulder;
- two eastbound lanes of through
- two sets of double yellow lines enclosing yellow cross hatching
(that is less than half a lane wide);
- a left-turn lane for westbound
- two westbound lanes of through traffic;
- a right-turn lane onto
College Road, northbound. (Cl exhs 9 & 13).The
Appel testified that on that July 4, he left a family
barbecue intending to go to a friend’s house. He was driving his
father’s 1986 Chevy Suburban with three passengers, including Richard
Sprague. Appel recalled that it was about 7 p.m. as he drove toward Route 25,
made a right turn on it and headed east. Appel said that about 150 to 200 feet
from the intersection with College Road, he had moved over to the left lane and
could see the traffic light ahead, which was green for him.
Appel, about 20 or 25 feet before the intersection, he first noticed
Klein’s car, a Cadillac on the right: “I observed him pulling out
attempting to make a left . . . He was stopped . . . The nose of his car was in
the right lane,” which he amended to “at the white line”
separating the right lane from the shoulder.
The driver of the Suburban van
testified that even though the Cadillac did not have its directional signal on,
he concluded that Klein intended to make a left turn because he was waiting,
whereas a right turn could have been made. Appel recalled that he had the
Cadillac in sight continuously until the accident, and he was driving through
the intersection when Klein “[h]it the gas” coming out
“[s]traight . . . [p]erpendicular to the lines of traffic . . . He jumped
Appel explained that when he saw Klein move out into the road,
he stepped on the brake and bore “to the left to avoid” him, but
the Cadillac struck the right front part of his van. As a result of the impact,
Appel’s vehicle spun into the westbound lanes and was struck by a second
Appel testified that his speed was 35 to 37 m.p.h. and was
prepared to stop if someone had pulled out in front of him. Klein did not
testify about the speed of Appel’s vehicle. On this point, the testimony
of a witness from a prior trial, Jessica Stahl, was read into the record. Ms.
Stahl stated that she was the second car stopped at a red light on College Road
heading north at its intersection with Route 25, and estimated Appel’s
speed at 50 to 55 m.p.h. With that said, I will not rely upon Stahl’s
estimate of speed: she had no experience in or method of estimating speeds;
nor was this the case of a driver being passed in the same direction and when
overtaken, looking down at her speedometer.
Klein was driving a new car that was owned by his friend, who was sitting
in the front passenger seat; there were two other people in the back seat. The
four had just had dinner in the shopping center at Boston Market and were going
to visit a friend in Stony Brook Hospital, which was west of the shopping
Klein had the time of the accident at closer to 8 p.m. than
Appel did, but it was undisputed that it was dusk - everyone had his lights on -
- and drizzly. Klein said that he had not seen Appel’s car until the
collision, and that the contact had occurred in the right lane.
maintained that he had looked both ways, and in a material difference with
Appel’s testimony, asserted that he waited until the light controlling
east-west traffic was red before pulling out “very slowly.” He
testified that when he was moving forward, he thought he had been looking
straight ahead. Later in his testimony, Klein said that before moving out he
was looking left; and that his front seat passenger had assured him it was clear
on the right. Klein made no reference to the use of his directionals.
Appel’s version of events has the better of it; he was credible and
realistic when talking about perceiving that Klein’s car was attempting to
make a left turn because it did not have to wait to turn right. To accept
Klein’s version would mean that the Chevy Suburban ran the red light,
which is not credible and which Ms. Stahl did not see; Stahl was stopped at the
red light facing Route 25. Moreover, Klein had previously testified otherwise,
or at least been less sure of himself. I also conclude that Appel was in the
left lane, which was consistent with Ms. Stahl’s recollection.
The Reconstruction of Route 25
The road configuration in the area
was the result of a project in the early 1990's to increase the capacity of
Route 25 by doubling the number of through lanes. Previously, Route 25 had had
one lane of traffic in each direction - - with a left- and a right-turn lane
for westbound traffic only (cl exh 12). Before reconstruction, a westbound
vehicle traveling on Route 25 could not make a left turn into the shopping
center; nor could a car leaving the shopping center go left onto Route 25. Both
limitations were implemented by the same method - - a small triangular-shaped,
or channelized, island at the point of the subject entry/exit of Country Corners
(cl exhs 1 & 1A; 4 & 4A). In addition, a no left-turn sign was
positioned facing traffic exiting the shopping center.
This design feature
did not survive the reconstruction project. The State possesses a qualified
immunity for road planning and design: these are matters entrusted to experts,
who are not to be subject to second-guessing in a courtroom. Nonetheless,
immunity can be overcome by showing that a particular design was built without
adequate study or a reasonable basis. Weiss v Fote
, 7 NY2d 579, 200
NYS2d 409 (1960). A formal study is not needed in every instance, but what is
required is that the road design or configuration be the result of a
deliberative decision-making process appropriate to the particular issue.
Ernest v Red Creek Central School District
, 93 NY2d 664, 673, 695 NYS2d
531, 535 (1999).
Claimant read portions of the deposition of two longtime
employees of the State Department of Transportation (DOT), Michael Geiger and
Alfred Bachner. Mr. Geiger, who has a degree in civil engineering, was the
consultant manager on the project, who served as the liaison between the
Department and the consulting engineering firm. Geiger could not say why the
channelized island was removed, and testified that he knew of no safety reason
to do so. As far as Geiger knew, its removal was not the result of a plan or
deliberative decision-making process.
Claimant’s exhibit 17, a plan
sheet for the Route 25 project, shows the island, and Geiger could not identify
an individual who had knowledge that the removal of the island was part of the
reconstruction project. Nor could Mr. Bachner, a civil engineer in DOT’s
Traffic Engineering & Safety Group, who had supervised a unit that reviewed
permits for obtaining access to State highways, explain why the prohibition on
making left turns was not preserved.
Without a plan or a reasonable basis
to eliminate the channelized island from the reconstruction project, the
defendant State cannot be shielded by immunity. As we have seen, no such
support by way of evidence was offered as a basis for omitting left turn
restrictions at the exit Mr. Klein had tried to use; and in fact, for its part,
defendant does not rely upon Weiss v Fote
Closing Statement, pp. 322-327).Proximate Cause
immunity defense overcome, claimants still must prove that the accident was
proximately caused by defendant’s negligence. Atkinson v County of
, 59 NY2d 840, 464 NYS2d 747 (1983); Alexander v Eldred
NY2d 460, 483 NYS2d 168 (1984). The Appel-Sprague van was struck while in the
left lane of two lanes of eastbound traffic by a car making a left turn
intending to go westbound.
The area was flat and Route 25 a straightaway;
granted the summer weather was drizzly, but Klein said that he could see. Klein
stated that July 4, 1996 was the first time he had been to Boston Market, but he
did not testify about his familiarity with other retail facilities in the
Country Corners Shopping Center or along that commercial strip of Route 25.
Klein had lived in the area for some 20 years, although half the time he resided
By restricting left turns, the channelized island reduced
vehicular points of conflict; essentially, the conflicts are a result of the
proximity of the Country Corners exit to the College Road intersection with
Route 25. In fact, Mr. Mazzola in his expert testimony referred to a 1975
letter to the local planning board from the State DOT suggesting that the
building and driveway be re-situated on the site, with the driveway on the
easterly side of the property (cl exh 3, p.1). On that note, Mazzola testified:
Now in my opinion because of the proximity to the intersection and with the
new configuration that the state put into place . . . on Route 25, the left turn
lane for College Road begins you know very close to . . . [the] driveway. So a
vehicle turning . . . would be doing so just at the beginning of the left turn
lane which you would try to avoid that if you can and again coming out within
about a hundred and fifty feet of a signalized intersection and crossing that
many lanes of traffic, in my opinion the island should have been put back.
addition, consider the following exchange with Mazzola:
Q. The left turn
across is one conflict, but a vehicle stopped there waiting to make a left turn
into Country Corners creates an additional conflict, correct?
A. Creates a
potential rear end conflict.
. . .
Q. So the conflict that’s
created is if somebody is waiting to make a left turn into Country Corners, the
person behind them or approaching may think that person is in the left turn lane
[for] College Road . . .
A. That’s possible yes.
the facts as this trier of fact has found them, what occurred here was an
accident which could have taken place at an entrance or exit from any property
along Route 25 when a driver is inattentive, impatient or distracted and hence
unmindful of other vehicles. In 1996, there were about 30 such exits onto Route
25 in the area and none had a channelized island; pre-reconstruction, the
Country Corners driveway had been the only one such design among about 20 exits
on that stretch of Route 25. The accident here did not involve a conflict
arising from the proximity of the College Road intersection, and the lack of a
left-turn prohibition was not its proximate cause.
Richard Sprague II was grievously injured on July 4, 1996, but in order to
recover, his injury must have been proven to have been proximately caused by
the negligence of the defendant. Such has not been proven, and I am constrained
to dismiss the claim of Richard G. Sprague II and Richard G. Sprague (cl no.
100218) against the State of New York.
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 23, 2005
HON. ALAN C. MARIN
Judge of the Court of Claims
Claimants’ expert witness, Thomas
Mazzola described the distance as 150 feet, which figure claimants used in their
Brief (p. 18). His conclusion is consistent with that which can be calculated
from the site maps in evidence (cl exhs 14 and 18).
The parties stipulated that the speed
limit on Route 25 was 45 m.p.h. west of College Road and 40 m.p.h east of
The cases claimants cite in their Brief
are not persuasive vis-à-vis
the facts of this case: Nuss v
State of New York
, 195 Misc 38, 87 NYS 592 (Ct Cl 1949), reversed
App Div 300, 94 NYS2d 274 (4th Dept 1950), reversed
301 NY 768 (1950);
Derdiarian v Felix Contracting Corp.
, 51 NY2d 308, 434 NYS2d 166 (1980);
Gayle v City of New York
92 NY2d 936, 680 NYS2d 900 (1998); and
Bailey v Honda Motor Company, Ltd.
, 144 AD2d 119, 534 NYS2d 711 (3d Dept