New York State Court of Claims

New York State Court of Claims

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.

Case Information

PAULINE KANE, Individually and as Executrix of the Estate of Patrick J. Kane, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Herzfeld & Rubin, P.C.By: Michael B. Sena, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Esq.
Third-party defendant's attorney:

Signature date:
December 8, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)

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
et seq). Part 271 is entitled "Warrants for Traffic Control Signals" (cl exh 14).[1] 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 be justified.
[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).[2]
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 installed.

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 impaired (
id., 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, infra. 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 period[3]
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 immunity. 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 Dept 1999).[4]
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 slipped.[5] 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
New York, New York

Judge of the Court of Claims

[1] 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).
[2] Sections 271.3, 271.5 and 271.8, respectively.
[3] From January of 1991 to June of 1995; claimants supply no subsequent accident history.
[4] 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.
[5]The Police Accident Report Listed as an Apparent Contributing Factor, "pedestrian...error/confusion" (cl exh 1, Item 21).