KANE v. THE STATE OF NEW YORK, #2005-016-076, Claim No. 103936
Even though a number of years pass between the determination that a traffic
light is appropriate and it's actual installation, during which time the
pedestrian claimant was struck by a car in the subject intersection, defendant
is immunized because such delay was the result of the ordering of priorities
based on available funding.
PAULINE KANE, Individually and as Executrix of the Estate of Patrick J. Kane, Deceased
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Herzfeld & Rubin, P.C.By: Michael B. Sena, Esq.
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Esq.
December 8, 2005
See also (multicaptioned
This decision follows the trial of the claim that arose from the injury suffered
by Patrick Kane when he was struck by a car at about 8 p.m. on Friday, April 21,
2000 while crossing the road at the Hicksville station of the Long Island
Railroad (LIRR), in Nassau County. Mr. Kane died July 28, 2002 of causes
unrelated to the accident; the claim of his wife Pauline (who is also the
executor of the Estate) is derivative of her husband's, and therefore,
references herein to "Kane" or to "claimant" will mean the late Mr. Kane.
Kane worked in Manhattan and would commute there on the LIRR, usually from its
Seaford station. On the evening in question, claimant returned on the train
from Manhattan to the Hicksville station instead, because he was going to a
bachelor party at a friend's house in that village. Intending to take a taxi,
Kane walked down from the train platform to the street level and while
attempting to cross Newbridge Road, was struck by a vehicle driven by Scott
Albach (cl exh 1). In April of 2000, the crossing at that point on Newbridge
Road, a named portion of Route 106, was not controlled by a traffic light.
Much of the focus at trial was on the process undertaken by the State
Department of Transportation (DOT) to install a stop light at the Newbridge Road
crossing. The Department is organized statewide into regions; Region 10
comprises Nassau and Suffolk counties. Shaik Saad, a civil engineer employed by
DOT since 1989, took the stand. From 1994 to 1997, Mr. Saad ran a section for
Region 10 that had traffic safety responsibilities including accident
investigations. Then, until 2002, Saad headed the Region's group that was in
charge of the design of signals and pavement markings. Also testifying from
Region 10 was civil engineer Michael Ufko, who for the period covering this
matter was a traffic signal designer.
Part 271 of the Manual of Uniform Traffic Control Devices supplies the
framework for DOT to make a determination on the installation of a traffic light
at a given location. The Manual is part of the Codes, Rules and Regulations of
the State of New York (17 NYCRR §271
). Part 271 is entitled "Warrants for Traffic Control Signals" (cl
The term "warrant" reflects its
plain usage; Mr. Ufko observed that, "[t]he manual has warrants - just because a
signal is warranted, doesn't mean it should be put in." Similarly, the section
entitled Consideration of Warrants provides, in part:
Analysis of conditions at many traffic signal installations, coupled with
the judgment of engineers with extensive traffic signal experience, has produced
a series of warrants that outline minimum conditions under which a traffic
control signal may
[17 NYCRR §271.2(a) (emphasis added).]
In making such a determination, engineering judgment is an important
element (§271.2(e)), together with various quantitative measures, including
vehicle volume (Warrant 1), pedestrian volume (Warrant 3) and accident
experience (Warrant 6).
On August 21, 1996, an internal memorandum was generated by James Frein and
Saad of the traffic group, the text of which read as follows:
We have completed our investigation of the subject location and have
determined that a traffic signal for pedestrians crossing Route 106 at the
Hicksville Railroad Station is appropriate.
We will have our Signal Design section include this work in the next Signal
Requirement Contract. [cl exh 18].
Saad stated that "once the determination is made that a signal is appropriate,
that signal will be added to the list of signals that needs to be installed" -
- these were capital projects. Too late for the Route 106 stoplight to be
included in the 1996-1997 signal requirement contract, it was part of the
1997-1998 contract. The signal did not become operational until July of 2000.
In 1996, Region 10 had about 1,100 intersections controlled by traffic signals.
Both Ufko and Saad described the contract as a rolling list of signals to be
Ufko agreed that there were numerous requests for traffic controls and that he
had employed five investigators working full-time on them. A particular site
may be looked at or studied when DOT receives a letter from a citizen or a
public official, or as often happens, the former induces the latter (see cl exh
19). In late 1996 into 1997, Saad recalled, there were over 80 signals on the
list and "at least over 60 to 70 signals" in 1999. Saad, a credible witness
with an excellent memory, explained that only 12 to 18 or 20 signals can be
installed during a year, and that the signals on the top of the list had
priority. He indicated that in the late 1990's, Region 10 had an annual budget
for signal installation of $800,000 to $1,000,000, with the cost of the average
signal running from 50 to $60,000.
Saad stated that the time frame for installation of a normal signal is
"anywhere between three and five years." The Newbridge Road light was "a normal
signal. It was studied during my tenure as a traffic control engineer . . . it
was an appropriate signal. It was not a required signal. It was not an urgent
signal. It was a regulation installation."
From the August 21, 1996 determination of appropriateness, the installation of
this signal in July of 2000 is within the three- to five-year time frame. As we
shall see, the Newbridge Road signal was not a high priority item. The signal
was completed at about the midpoint of the three- to five-year period, and was a
more complex undertaking than average: it was budgeted at $106,000 (twice the
average cost); because of an existing telephone bank, a foundation had to be
moved; the mast arm was not a stock item; its visibility in light of a large
advertising sign on the railroad trestle had to be reviewed (cl exh 19, p 1);
and in 1999, a fairly involved issue arose regarding its use by the visually
, p 44).
The Newbridge Road station crossing was, at most, of average priority. The
priority on the list, as Ufko testified, was "made by the traffic engineer" - -
engineering decisions within the purview of
Weiss v Fote
. The vehicular count for the crossing met the
warrant of § 271.3; it was undisputed that the stipulated daily count of
28,761 over a 24-hour period satisfied the warrant in Table 271-1.
The pedestrian count and accident experience for the subject crossing are
contained in claimants' exhibits 15 and 16, respectively. Neither satisfied the
applicable warrants therefor (§§271.5 and 271.8). The pedestrian
warrant requires a pedestrian count of at least 150 in each of any eight hours,
not necessarily consecutive (§271.5(a)(2)), but understood in the field to
mean the busiest hours. Claimants' exhibit 15 shows that there were at least
150 pedestrians in only four hours, but in its judgment of the busiest times,
DOT looked only at 6:30 to 8:30 a.m., noon to 2 p.m., and 4 to 6 p.m. With 315
pedestrians counted in the 7:30 to 8:30 a.m. period, it does not seem unlikely
that the count for the next hour would have exceeded 150, but that of course
would only be the fifth hour that met the threshold. In any event, Newbridge
Road was clearly not a busy enough pedestrian crossing to justify a high
priority on the list for the installation of a traffic signal.
The accident study for the area covered a four and a half-year
and itemized ten accidents, no five of which were in any 12-month period, and
thus, by that measure alone, without consideration of the type of accident, the
warrant was not met (§271.8(a)(2) & (c)).
The State is charged with the duty to maintain its roads in reasonably safe
condition for vehicles and pedestrians, but does possess a qualified immunity in
planning and design: the planning decisions of governmental bodies regarding,
for example, traffic control are not to be subject to second-guessing by the
trier of fact in a courtroom. With that said, immunity can be overcome by
showing that a particular design, signage or signal configuration was built or
installed without adequate study or a reasonable basis.
Weiss v Fote
, 7 NY2d 579, 200 NYS2d 409 (1960).
The decision to install the Newbridge Road signal and not to treat it as a high
priority item were decisions within
Weiss v Fote
No evidence was adduced that the
conditions had changed such that the priority should have been increased.
Claimants rely upon Friedman v State of New York
, 67 NY2d 271, 502 NYS2d
669 (1986), but that case which comprehended three highway median cross-over
cases, held that a delay between recognizing a dangerous condition and remedying
it is not actionable if such "stemmed from a legitimate ordering of priorities
with other projects based on the availability of funding . . ." 67 NY2d at 287,
502 NYS2d at 676 (citations omitted). Nor do we have sufficient facts from the
proffered Onorato v City of New York
, 258 AD2d 633, 684 NYS2d 637 (2d
Steven Kane, a safety engineer expert witness who appeared on behalf of
claimants, was generally knowledgeable and experienced, but given the evidence
in this case, was unable to demonstrate that the Newbridge Road signal should
have been in place at an earlier date. Further, the immunity afforded the State
was not breached when the Regional Director on July 1, 1999 wrote a letter to a
citizen, stating that the traffic signal "will be completed by the end of
December 1999" (cl exh 19, p 14); no special duty, estoppel or other theory has
been advanced with any precedential basis. On the facts in this case, qualified
immunity obtains and shields the defendant from liability.
In any event, to this trier of fact, there was no showing that the absence of a
traffic light was the proximate cause of Mr. Albach's car hitting Mr. Kane.
Myrna Salter, who was in her car waiting for the light so she could turn left
into the train station in order to pick up her husband, was an eyewitness to the
accident and testified at trial. Kane's eyeglasses were "all wet"; he had been
drinking (def exhs M and N); did not use the crosswalk on a rainy night; and had
gone out into the road, thinking it was clear and then went back and
Moreover, he was familiar with the
Hicksville station, having used it periodically as of early 2000, and when
previously residing at a different address, had commuted from Hicksville on a
daily basis for several years. Persons exiting a train at Hicksville would come
out onto an elevated platform and could directly descend to either side of
Newbridge Road, without having to traverse it at ground level (cl exh 13; def
exhs C through F).
In view of the foregoing, the claim of Pauline Kane, individually and on behalf
of the Estate of Patrick Kane (claim no. 103936), is dismissed. The Clerk of
the Court is directed to enter judgment accordingly.
December 8, 2005
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
The Part 271 in evidence as claimant's
exhibit 14 was promulgated in 1983, and the parties do not question its
applicability during the relevant times in this case. (The current Part 271
became effective March 31, 2001).
Sections 271.3, 271.5 and 271.8,
From January of 1991 to June of 1995;
claimants supply no subsequent accident history.
The only factual information the appellate
court's decision contains is that, like here, a pedestrian was struck in a
crossing for which a traffic light had been approved, yet not installed. But
the Second Department concluded that where a municipality determines that a
traffic light was necessary to remedy a "dangerous condition," it must do so
with "reasonable speed" and without "unjustified delay." 258 AD2d at 634, 684
NYS2d at 638. Agreeing with Supreme Court that there was no evidence of
unjustifiable delay, the Appellate Division affirmed the order granting
defendant's motion to dismiss.
The Police Accident Report Listed as an
Apparent Contributing Factor, "pedestrian...error/confusion" (cl exh 1, Item