New York State Court of Claims

New York State Court of Claims

CROSBY v. THE STATE OF NEW YORK, #2005-019-020, Claim No. 102562


Claims dismissed; Claimants failed to establish a prima facie case of negligence by the State in design, construction, and or maintenance of roadway. Court found sole proximate cause of accident was driver's speed, alcohol consumption, inattention, and/or removing both hands from the steering wheel.

Case Information

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):

Claimant's attorney:
DELDUCHETTO & POTTERBY: Ernest A. DelDuchetto, Esq., of counsel
Defendant's attorney:
BY: O'Connor, Gacioch, Leonard & Cummings, LLPJames Gacioch, Esq., of counsel
Third-party defendant's attorney:

Signature date:
August 29, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

These are two separate claims brought by brothers Danny H. Crosby (Claim No. 102562) and Gary J. Crosby (Claim No. 102582) both of whom allege they were injured as a result of a single car accident when the pickup truck in which they were passengers overturned on Ives Road near the intersection of State Route 235 in the Town of Coventry, County of Chenango, State of New York, at approximately 7:45 p.m., on June 14, 1998. Both claimants allege that the State of New York (hereinafter "State") was negligent in the inspection and approval of the repaving of Ives Road by Rifenburg Construction Company (hereinafter "Rifenburg") particularly in relation to the requisite cross-slope.

The parties agreed to a joint trial of these claims which were heard on April 13 and 14, 2005 in the Binghamton District. Both trials were bifurcated and this Decision addresses the issue of liability only with respect to both claims. All parties requested and were granted additional time to submit post-trial memoranda.

  1. On June 14, 1998, at approximately 7:45 p.m., both claimants were passengers in a 1987 Ford F150 pickup truck operated by a friend, Richard L. Tracy and owned by Mr. Tracy's parents. Mr. Tracy was driving the vehicle, with Danny Crosby, age 18, in the middle seat and his brother Gary Crosby, age 23, in the right seat, closest to the passenger-side door. The Tracy vehicle was traveling southbound on Ives Road approaching the intersection of State Route 235 in the Town of Coventry. The parties agree that the State had entered into a contract with Rifenburg for a bridge reconstruction project on State Route 235. During said construction, traffic on Route 235 was detoured onto Ives Road, a town road in the Town of Coventry, in exchange for which the State agreed to pave Ives Road which was previously a gravel and oil/stone road. The posted speed limit on Ives Road during this construction was 30 m.p.h.

Danny Crosby, seated in the middle, testified that the Tracy vehicle was traveling at 40 m.p.h. and that he was looking toward a friend's house when he felt the truck travel off the pavement. As he looked forward, Danny did not see Mr. Tracy with either hand on the wheel and heard his brother Gary yell out and saw Gary reach across him (Danny) in the middle seat with his left hand and grab the steering wheel and turn it to the left. Almost simultaneously, Danny heard the tires screeching and saw a guardrail coming up. Danny testified that the vehicle continued straight, despite Gary's attempts to turn the wheel to the left. Although Danny recalled the vehicle hitting the guardrail, he had no recollection of anything else that happened before getting out of the truck, which had come to rest upside down in a creek bed.

On cross-examination, Danny conceded that he may have previously estimated the speed of the vehicle as 45 m.p.h. in a prior hearing. Additionally, Danny stated that he was not wearing a seatbelt and did not check whether one was available to him in the vehicle. Danny testified that he had consumed one or two beers prior to this accident and saw Mr. Tracy drink at least one beer.

Gary Crosby testified that he was seated next to the passenger door and was looking toward a friend's house when he felt the vehicle go off the road. Gary testified that when he looked toward Mr. Tracy he did not see Mr. Tracy's hands on the steering wheel so he reached with his left hand (across Danny seated in the middle) and grabbed the steering wheel at approximately 4:00 and turned it as far as his arm would reach to about nine or 10 o'clock, but the vehicle did not change its course. At this time, Gary saw Mr. Tracy grab the wheel with both hands, lock his elbows and apply the brakes, almost standing up while doing so.

On cross-examination, Gary admitted he had approximately 4-5 beers prior to this accident. Gary explained that he had spent the morning at his parents' house and recalled Mr. Tracy arrived in his pickup truck with a beer in hand. Gary testified it was not unusual for Mr. Tracy to have beer in his vehicle. Gary also testified that when the beer ran out at his parents' home, he and Mr. Tracy went to a local store and bought two six-packs. After returning home, they all went to a mutual friend's house and at some point thereafter, Gary, Danny, and Mr. Tracy decided to go to Nineveh. Gary also admitted that he had been in Mr. Tracy's truck about 15 times previously and knew seatbelts were available but decided not to use one as he did not believe in seatbelts (at that time).

Claimants called James Napoleon, a licensed engineer in New York, as an expert in the field of engineering. Mr. Napoleon testified that the term "cross-slope" is used to define the difference in elevation from the center of a road to the side within one travel lane. Mr. Napoleon testified that the State deviated from safe and accepted engineering practices regarding the recommended 2% cross-slope as published by three sources, namely: (1) the 1994 manual published by the American Association of State Highway and Transportation Officials (hereinafter "AASHTO"); (2) the State 1995 DOT Highway Design Manual; and (3) the DOT Standards for Non-Freeway Resurfacing, Restoration and Rehabilitation Projects issued on July 1, 1992. Mr. Napoleon opined that the Ives Road paving project fell within the definition of a "3R" project which refers to projects involving resurfacing, restoration and rehabilitation. (Cl Ex 21, subd [b]). In sum, Mr. Napoleon opined that the standard cross-slope is and should be 2% with an acceptable range being between 1.5% and 3%. As such, Mr. Napoleon opined that the actual cross-slopes of 9% (as measured by claimants' accident reconstruction witness, William C. Fischer) were not consistent with such standards and would easily interfere with the control of a vehicle. Mr. Napoleon further opined that a 9% cross-slope would send a vehicle to the right or off the pavement and would essentially negate any ability to regain entry onto the roadway. In sum, Mr. Napoleon opined that the State should not have approved this repaving project with cross-slopes ranging between 3% to 10.8% which were not in accordance with the above-named standards.

Claimants also called William C. Fischer, a licensed private investigator in New York in the area of accident reconstruction. Mr. Fischer testified that he measured the cross-slope at the location of this accident and found variances ranging from 3% to 10.8%. Mr. Fischer opined that these excessive cross-slopes "significantly contributed" to this vehicle leaving the paved portion of the road, as well as the driver's inability to regain control and entry onto the road. (Partial Trial Transcript, p 37). Mr. Fischer testified that the failure of Mr. Tracy to have both hands on the wheel would not alter his opinion since that meant the driver was not giving constant positive direction to the vehicle so the cross-slope would have caused the drifting to the right. On cross-examination, Mr. Fischer conceded he was unable to perform a skid test to estimate the speed of the Tracy vehicle due to location conditions.

On its case, the State read into evidence at trial selected excerpts from the deposition testimony of the driver, Mr. Tracy, from the related supreme court proceeding, although the entire transcript was also admitted into evidence.[1]
(St's Ex P). A summary of Mr. Tracy's deposition testimony is warranted. Mr. Tracy testified that he drank between 3-5 beers throughout the course of the day prior to this accident and saw Danny drink 1-2 beers and Gary 3-5 beers as well. Mr. Tracy stated that he pled to a charge of driving while ability impaired in the Town of Coventry Town Court as a result of this accident. Mr. Tracy estimated his vehicle was traveling between 40-45 m.p.h. when the tires first left the road. Generally, Mr. Tracy's deposition testimony agrees with that of claimants with two notable exceptions. First, Mr. Tracy denied having a beer in hand upon his arrival at the Crosby home earlier in the day. Second, Mr. Tracy testified that he had his left hand on the steering wheel just prior to the accident, although he admitted that he had removed his right hand to reach for a cigarette and had taken his eyes off the road as well. Mr. Tracy stated that after someone yelled out, he looked up and realized the vehicle's two right wheels were already off the road, at which point he tried to turn the wheel to the left to get back on the road and began continuously applying the brakes. The witness also indicated that the vehicle had three operable seatbelts although neither he nor his passengers were wearing them.

The State next called Thomas M. Hoskins as a witness, a licensed engineer in New York and the DOT engineer-in-charge on the Rifenburg contract including the Ives Road paving. The witness testified that Ives Road was paved with a single-course, 1½-inch overlay. The witness also indicated that the State posted 30 m.p.h. speed-limit signs on Ives Road while it was being used as a detour. Contrary to claimants' witnesses, Mr. Hoskins stated that there was no cross-slope requirement on the detour portion of this project, namely Ives Road. The witness testified that the AASHTO and other 2-3% cross-slope standards did not apply to the detour on Ives Road since said paving alone did not qualify as a "3R" project. More specifically, Mr. Hoskins explained that the State did not change the base on Ives Road and did not seal any cracks, replace any damaged roadway, or conduct any milling, all of which are part of "3R" projects. As such, the witness testified that the State was not obligated to check the cross-slope on Ives Road and whatever cross-slope existed prior to paving would not have been changed by this paving job. On cross-examination, this witness conceded that the Ives Road detour was not a temporary detour being used solely during a construction project, but rather was a permanent road that would return to normal Town use.

The State also submitted into evidence the deposition transcripts from Duncan B. Thompson, project superintendent, and Kevin Ture, project manager of Rifenburg. (St's Exs Q & R).
It is well-settled that the State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition. (
Weiss v Fote, 7 NY2d 579, 584; Friedman v State of New York, 67 NY2d 271). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on State property does not render the State liable. (Tomassi v Town of Union, 46 NY2d 91, 97; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). The State has fulfilled its duty to the traveling public when a highway is reasonably safe for those who obey the rules of the road, notwithstanding that almost any road can be made safer. (Tomassi, 46 NY2d at 97).

Claimant has the burden of establishing that defendant was negligent and that such negligence was a proximate cause of the accident. (
Marchetto v State of New York, 179 AD2d 947, lv denied 80 NY2d 751). Liability will not attach unless the State had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition. (Rinaldi v State of New York, 49 AD2d 361). However, the State may be relieved from liability when a driver fails to obey the rules of the road or exercise reasonable care. (Tomassi, 46 NY2d at 97; Boulos v State of New York, 82 AD2d 930, 931, affd 56 NY2d 714).

The parties spent substantial time during trial and post-trial briefs regarding arguments relating to the applicability of the various cross-slope standards to the paving of Ives Road, as well as arguments for and against the admissibility of the testimony of various witnesses. However, the court need not and does not reach the issue of whether the paving of Ives Road was a 3R project subject to the cross-slope standards identified during trial since the court finds the issue of causation dispostive on these facts even if the above-named standards were applicable.

Turning to the key issue of causation, liability may only be imposed when the proof shows that the injuries resulted, in whole or in part, by a cause for which the defendant is responsible. (
Stuart-Bullock v State of New York, 38 AD2d 626, 627, affd 33 NY2d 418; Pontello v County of Onondaga, 94 AD2d 427, 430, lv dismissed 60 NY2d 560).

Accordingly, it is well-settled that a claimant:
[n]eed not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently "remote" or "technical" to enable the [finder of fact] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence (see, Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 744). A plaintiff need only prove that it was "more likely" (id., at 745) or "more reasonable" (Wragge v Lizza Asphalt Constr. Co., 17 NY2d 313, 321) that the alleged injury was caused by the defendant's negligence than by some other agency.

(Gayle v City of New York, 92 NY2d 936, 937). As such, it is claimants' burden to establish that the State's failure to comply with the pertinent cross-slope requirements was a substantive factor in the sequence of events that led to these injuries.

Here, the undisputed evidence at these trials established that the driver, Mr. Tracy, was speeding in excess of the posted 30 m.p.h. speed limit; had consumed at least 3-5 beers prior to the accident; and had taken his eyes off the road. Moreover, the court finds the testimony of the claimants credible that Mr. Tracy had taken both hands off the steering wheel, rather than just one as described by Mr. Tracy himself, while he looked for a cigarette. Additionally, it was undisputed that claimant Gary Crosby, the right-front passenger, grabbed the steering wheel when the vehicle started going off the paved surface of the road. While the court considered the possibility that multiple factors or concurrent causes may have played a role in causing this accident, the court is of the opinion that claimants herein have failed to prove that it was "more likely" or "more reasonable" that the alleged accident and injury were caused by the negligence of the State than by these other causes. (
Gayle, 92 NY2d at 937). In fact, any one of these other causes (e.g., speeding, drinking, inattention, hands off the wheel, and/or passenger grabbing the wheel), standing alone, would have been sufficient for this court to reach the same conclusion. However, taken together, the conclusion is inescapable that the alleged negligence of the State in failing to comply with cross-slope standards, if the same are even applicable on these facts, was not a proximate cause of the accident and that the only negligence shown to have caused or contributed to the accident, even setting aside the questionable action of Gary Crosby in grabbing the steering wheel, was that of Mr. Tracy in failing to operate his vehicle with due care. (Stanford v State of New York, 167 AD2d 381, lv denied 78 NY2d 856; Rager/Lehner v State of New York, Ct Cl, December 7, 2000, Read, P.J., Claim No. 98606 [UID No. 2000-001-516]; Russo v State of New York, Ct Cl, April 26, 2001, Patti, J., Claim No. 96902 [UID No. 2001-013-506]).[2]

In sum, claimants have failed to establish this accident was proximately caused in any way by the negligence of the State and therefore there is no basis for the imposition of liability against the State. Consequently, based upon the foregoing, Claim Nos. 102562 and 102582 are DISMISSED.

All motions on which the court previously reserved or which were not previously determined at trial, are hereby denied.


August 29, 2005
Binghamton, New York

Judge of the Court of Claims

[1]Marie Yenchak was sworn in to read the part of Mr. Tracy. The deposition was taken on March 8, 2000 in the Supreme Court Chenango County case captioned Danny Crosby and Gary Crosby, Jr. versus Richard L. Tracy and Richard L. Tracy, Jr., and Rifenburg Construction, Inc.

[2]Selected unreported decisions from the Court of Claims are available via the Internet at