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
DANNY H. CROSBY
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
DELDUCHETTO & POTTERBY: Ernest A. DelDuchetto, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: O'Connor, Gacioch, Leonard & Cummings, LLPJames Gacioch, Esq., of counsel
August 29, 2005
See also (multicaptioned
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
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
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
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
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
(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
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
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
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
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
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
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
(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. (
, 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
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.
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.
LET JUDGMENTS BE ENTERED ACCORDINGLY.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
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.
Selected unreported decisions from the Court
of Claims are available via the Internet at