New York State Court of Claims

New York State Court of Claims

RUSSELL v. STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2005-037-012, Claim No. 095683, Motion No. M-70202


Claimants allege that the Thruway Authority failed to promptly install median guiderails on a portion of the Thruway thereby creating a dangerous condition which proximately caused the deaths of Claimants' decedents. Defendants moved for summary judgment upon the ground that the highway improvement plan adopted by the Authority prior to the accident granted them qualified immunity from liability. Motion granted.

Case Information

DESIRE RUSSELL, Individually and as Administratrix of the Estate of CHERYL TAMIKA BULLS, deceased,on behalf of said decedent's estate
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:
Siegel, Kelleher & KahnBy: Clayton L. Silvernail, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Richard B. Friedfertig, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 23, 2005

Official citation:

Appellate results:

See also (multicaptioned case)
2005-037-013, 2005-037-014


The following papers were read and considered by the Court on Defendants' motion for summary judgment dismissing Claimants' claims pursuant to CPLR 3212:
1. Notice of Motion, dated May 26, 2005 and filed May 27, 2005, with supporting

affidavit of Assistant Attorney General Richard B. Friedfertig sworn to May 26, 2005, and annexed Exhibits A-F;

2. Amended Affidavit of Assistant Attorney General Richard B. Friedfertig sworn to

June 7, 2005 and filed June 8, 2005;

3. Affidavit of Clayton L. Silvernail, Esq., (Silvernail Affidavit) attorney for Claimants

Moore and Russell, sworn to August 16, 2005 and filed August 18, 2005, with annexed Exhibits A-U, Memorandum of Law and Expert Disclosure;

4. Affidavit of David G. Henry, Esq., attorney for Claimant Willoughby, sworn to and

filed August 19, 2005;

5. Reply Affidavit of Assistant Attorney General Richard B. Friedfertig (Friedfertig

Reply Affidavit) sworn to September 12, 2005 and filed September 13, 2005, with annexed Exhibits A-B;

6. Supplemental submissions by Assistant Attorney General Richard B. Friedfertig

received October 4, 2005;

7. Supplemental submissions by Clayton L. Silvernail, Esq., received October 12, 2005,

including a Supplemental Affidavit of Dr. James W. Pugh, sworn to October 11, 2005;

Filed papers: Claims of Russell (095683) and Moore (095684), dated February 12, 1997 and filed February 21, 1997; Claim of Willoughby (097366), dated November 17, 1997 and filed November 19, 1997.

Claimants Desire Russell, individually and as Administratrix of the Estate of Cheryl Tamika Bulls, deceased ( Russell); William and Mary Moore, individually and as Co-Administrators of the Estate of Lanette Moore, deceased ( Moore); and Antoinette L. Willoughby, as Administratrix of the Estate of Susan L. Willoughby, deceased (Willoughby) (collectively Claimants), filed separate claims seeking damages for the wrongful deaths of their daughters which occurred when the westbound automobile they occupied crossed the median of Interstate 90 (I-90) and collided with an eastbound tractor trailer. Claimants allege that this accident resulted from the negligent failure of the New York State Thruway Authority (Authority) to provide a safe roadway. Specifically, Claimants allege that the Authority failed to install guiderails in the median of I-90 where the accident occurred which would have prevented the automobile from crossing over into the opposite lanes, and that the absence of guiderails was the proximate cause of the accident. Defendants assert that at the time of the accident guiderails were not required at that location and they were in compliance with all applicable guidelines for both the design and maintenance of the roadway and, therefore, that they are entitled to summary judgment dismissing the claims.

The following recitation of facts is based upon the Court's review of the papers submitted in connection with this motion. At approximately 11:15
on November 25, 1996, Susan L. Willoughby was operating her 1987 Pontiac automobile westbound on I-90, commonly known as

the New York State Thruway (Thruway), in the Town of Stafford, Genesee County. Cheryl Tamika Bulls and Lanette Moore were passengers in the vehicle and it is understood that the three women, all 21 years of age, were traveling to Buffalo from Rochester where they were students at the Rochester Institute of Technology. The weather at the time was a combination of snow, sleet and freezing rain and the roadway was wet with slush and icy spots. The driver lost control of her vehicle, crossed over the grass median separating the east and west travel lanes, and collided with an eastbound tractor trailer at or near milepost marker number 386.5. The three occupants of the automobile were pronounced dead at the scene.

According to the accident report filed by New York State Police Sergeant Stephen J. Patruska, I-90 is an east-west four lane highway with a grass median dividing the travel lanes. Each driving lane is 12 feet in width, the right shoulder is 10 feet in width, and the left shoulder is 4 feet, 6 inches in width. At the point of the accident the median is 45 feet wide and the roadway is straight with a slight positive grade westbound and a slight negative grade eastbound. Based upon his investigation, Sergeant Patruska concluded that Ms. Willoughby was traveling too fast for the road conditions which caused her to lose control of the vehicle and cross into the opposite lanes (see Notice of Motion, Exhibit D).

The rule governing summary judgment is well established: "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus., 258 AD2d 776 [1999]). Once the proponent of the motion has established its entitlement to judgment, the burden shifts and the party in opposition to a motion for summary judgment "must assemble and lay bare affirmative proof to establish that the matters alleged are real and capable of being established upon a trial" (Matter of Izzo v Lynn, 271 AD2d 801, 802 [2000]; see Hasbrouck v City of Gloversville, 102 AD2d 905 [1984], affd 63 NY2d 916 [1984]).

Defendants, in support of their motion for summary judgment, proffer the deposition testimony of Peter M. Melewski, P.E. (Melewski), Director of Design for the Authority, whose job is to design and coordinate construction projects for the Thruway. He noted that the Thruway opened in 1954 and since then the Authority has periodically reviewed and, at times, issued directives modifying the standards or goals for guiderail placement in medians with the determining factor being the width of the median. The width of medians requiring guiderails was increased in 1990 from 30 feet to 44 feet, and in 1994 from 44 to 54 feet. Melewski further noted that the 1994 directive relating to guiderail placement was advisory and represented a new design standard or goal to be achieved over time and did not require the immediate placement of guiderails in medians of 54 feet or less. The new standard would be implemented when sections of the Thruway were reconstructed as part of roadway and bridge rehabilitation projects. He stated that at the time of the accident the roadway and median met the relevant design standards in effect at the time of their construction. In 1997 the Authority placed guiderails in the median where this accident occurred as part of a large roadway rehabilitation project involving approximately 39 miles of the Thruway (see Notice of Motion, Exhibit E; Thruway Design Bulletins dated February 5, 1990 and November 17, 1994; Silvernail Affidavit, Exhibit R, Construction Contract Proposal TAB 97-62; and Friedfertig Reply Affidavit, Exhibit A).

Claimants submit that in the five years prior to November 25, 1996, there were 69 reported motor vehicle accidents within 3 miles east and west of milepost 386.5. Three of those accidents were crossover accidents, two occurring in 1993 and one in 1996 (see Silvernail Affidavit, Exhibit N). Based upon this history of prior accidents, Claimants argue that the Authority had an obligation to protect the decedents by placing guiderails in the median along this area of the Thruway prior to the date of the accident. In support of this position, Claimants submit the expert affidavit of Dr. James W. Pugh, an accident reconstruction specialist, who states that he reviewed, inter alia, the police accident reports, photographs of the vehicles and accident scene, accident history, deposition of Melewski, Construction Contract Proposal TAB 97-62 and related documents from which he concludes, within a reasonable degree of engineering certainty, that the presence of a median guiderail would have prevented the Willoughby vehicle from crossing the median and would have prevented this particular collision from occurring. He further states that, in his opinion, the Authority should have installed median guiderails at the subject location prior to the accident.

The Authority counters that none of the crossover accidents occurred at the site of this incident, the nearest being one half mile away, and none involved fatalities. Furthermore, the Annual Average Daily Traffic (AADT) report compiled by the Authority shows that on an average day in 1994 approximately 29,917 vehicles, in 1995 approximately 31,204 vehicles and in 1996 approximately 32,536 vehicles passed the subject location which calculates to over 34 million vehicles for the three preceding years passing the point of this accident with one crossover incident (see Reply Affidavit of Richard B. Friedfertig, Exhibit B). Claimants fail to present any evidence of a similar incident occurring at the accident location prior to this accident.
It is well settled that the State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (see Weiss v Fote, 7 NY2d 579, 584 [1960]; Friedman v State of New York, 67 NY2d 271 [1986]). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [1979], affd 51 NY2d 892 [1980]). In maintaining older highways, the State is not obligated to undertake expensive reconstruction simply because highway safety design standards have changed since the original construction (see Holscher v State of New York, 59 AD2d 224, 227 [1977], affd 46 NY2d 792 [1978]; Van De Bogart v State of New York, 133 AD2d 974 [1987]). Absent a hazardous condition of which the State has notice, the State's duty is met when the highway comports to the standard applicable at the time of the construction or reconstruction (Cipriano v State of New York, 171 AD2d 169 [1991], lv denied 79 NY2d 756 [1992]). Claimants must show by a preponderance of the evidence that a dangerous condition was present, the defendant either created or had actual or constructive notice of the condition and failed to take reasonable measures to correct the condition (Brooks v New York State Thruway Auth., supra at 768).

Additionally, "no liability will attach unless the ascribed negligence of the State in maintaining its roads in a reasonable condition is the proximate cause of the accident" (Hearn v State of New York, 157 AD2d 883, 885 [1990], lv denied 75 NY2d 710 [1990]). As "long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied" (Tomassi v Town of Union, supra at 97; see Boulos v State of New York, 82 AD2d 930 [1981], affd 56 NY2d 714 [1982]).

There is nothing before the Court to suggest that this area of the Thruway was designed and constructed improperly or in an unreasonable manner, or that it was not maintained in a reasonably safe condition. The lack of any accidents of this nature at milepost 386.5, given the significant volume of traffic passing by that location on a daily basis, supports the conclusion that the roadway was reasonably safe for people who obey the rules of the road or exercise reasonable care. Consequently, the duty imposed on the Authority is satisfied (Tomassi v Town of Union, supra ).

In these claims, there is no question that the actions of Susan L. Willoughby, the operator of the automobile, were the sole cause of the vehicle leaving the roadway. However, the issue before the Court is not whether the Authority was responsible for the vehicle leaving the roadway but rather pertains to the obligation of the Authority to provide for the safety and protection of the driver and passengers once the vehicle left the roadway.

Claimants submit that the Authority was negligent in delaying implementation of a plan for the placement of guiderails at the accident location for approximately three years and in that regard have cited Friedman v State of New York, supra. The proof does not support this supposition. A plan for the reconstruction of 39 of the 640 miles of roadway that make up the Thruway was let out for bidding on June 25, 1997, after the accident occurred (see Silvernail Affidavit, Exhibit R). This plan involved the reconstruction of 39 Thruway miles, including the area of the subject accident, and incorporated, inter alia, plans for drainage as well as for guiderails. Melewski testified that it typically takes a year or two to design a project of the size of this plan. There is no evidence to establish exactly when this plan was formulated and no evidence that the plan was delayed once formulated. However, delay alone, even if a delay had been established, in acting upon a highway reconstruction proposal is not actionable. That judgment falls squarely within the discretionary determinations of Weiss v Fote, and for that reason is beyond review as a simple question of negligence. Given the absence of a significant crossover accident history at or near the subject location, the formulation and implementation of the 1997 reconstruction plan was a matter of judgment by Authority employees which must be afforded qualified immunity (see Tomassi v Town of Union, supra at 97).Thus, "liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis" (Weiss v Fote, supra at 589).

Here, there has been no showing that the Authority's plan for median upgrades was developed without adequate study or that it lacked a reasonable basis. Absent such proof, "the wisdom of such plan may not be questioned nor may this exercise of governmental discretion give rise to liability in negligence" ( Niagara Frontier Tr. System v State of New York, 57 AD2d 59, 63 [1977]; see Tomassi v Town of Union, supra; Cipriano v State of New York, supra). Furthermore, there is no evidence to conclude that the lack of median guiderails at the accident site constituted a dangerous condition requiring expedited action. There remains a significant difference between the identification of a potential hazard leading to an upgrade in current design standards and the recognition of a dangerous condition. The pivotal inquiry is whether the Authority exercised reasonable diligence in maintaining the roadway under the prevailing circumstances (Freund v State of New York, 137 AD2d 908, 909 [1988], lv denied 72 NY2d 802 [1988]). Claimants and their expert have failed to produce any evidence that the Authority was not diligent or did not act reasonably in formulating the 1997 plan which included guiderails in the area of this accident.

Liability will not attach unless the Authority 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 [1975]). Once again, there is no evidence of a dangerous condition at the accident site. But even had there been such evidence, the Authority may still be relieved from liability when, as here, the driver fails to obey the rules of the road or exercise reasonable care (Tomassi v Town of Union, supra at 97; Boulos v State of New York, supra at 931). The independent accident investigation concluded that the driver was traveling too fast for the road conditions which caused her to lose control of the vehicle.

The Court is mindful of the tragedy that has befallen these families and is clearly sympathetic to them, but is governed by the evidence and must apply the applicable law which does not support Claimants' theory of liability. The conclusion is inescapable that any alleged negligence of the Defendants was not a proximate cause of the accident and that the only negligence shown to have caused or contributed to the accident was that of the driver in failing to operate her vehicle with due care (Stanford v State of New York, 167 AD2d 381 [1990], lv denied 78 NY2d 856 [1991]; Rager/Lehner v State of New York, Ct Cl, December 7, 2000, Read, P.J., Claim No. 98606 [UID No. 2000-001-516]).[1] Accordingly, it is

ORDERED, that the Defendants' motion for summary judgment No. M-70202 is hereby granted and it is further

ORDERED, that Claim Nos. 095683, 095684 and 097366 are dismissed in their entirety.

The Clerk of the Court is directed to close the files.

November 23, 2005
Buffalo, New York

Judge of the Court of Claims

[1] This and other unreported Court of Claims decisions may be found at the Court of Claims web site at