New York State Court of Claims

New York State Court of Claims

MERCURIO v. THE STATE OF NEW YORK, #2006-010-022, Claim No. 102937


Claim of negligent roadway design dismissed - held driver’s own error to be sole cause of accident.

Case Information

1 1.The Court has, sua sponte, amended the caption to reflect the correct spelling of the parties’ last name.
Claimant short name:
Footnote (claimant name) :
The Court has, sua sponte, amended the caption to reflect the correct spelling of the parties’ last name.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Vincent Cascio,Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 14, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Joseph A. Mercurio, Jr.,
seeks damages for injuries he sustained on a Saturday afternoon of August 22, 1998 when he was driving his Porsche Carrera 911 southbound on the Saw Mill River Parkway (Saw Mill). A guiderail separates the two northbound lanes from the two southbound lanes of traffic on the Saw Mill. Claimant contends that the accident was due to the limited sight distance as he approached the road’s horizontal and vertical curve and was confronted with two slow moving vehicles ahead of him. In an attempt to avoid rear ending those vehicles, claimant purportedly slammed on his brakes. He then lost control of his car, went off the roadway and into a ditch until the car came to rest when it hit a large rock. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that he was driving his Porsche Carrera 911 at a speed of 60 mph which concededly exceeded the posted speed limit of 55 mph. Shortly after passing the Chappaqua exit, claimant traveled through the curve of the road and as he reached the crest of the hill, he purportedly observed two automobiles ahead of him. Claimant testified that he specifically recalled looking at his speedometer and he was traveling 60 mph just prior to applying his brakes (T:21).
According to claimant, there was one vehicle in each lane and they both appeared to be stopped side-by-side or proceeding at a speed of approximately 10 mph which effectively blocked claimant from passing either vehicle.
At trial, claimant testified that the cars were at a distance of 35 to 90 yards when he first observed them (T:64). However, on cross-examination, he was confronted with his examination before trial testimony of: “I don’t know, 70 yards. Anywhere between 100 and 60 yards. You know, 100 to 60 yards” (T:65). Claimant’s explanation at trial regarding this discrepancy was, “35 to 100, what’s the difference? It’s still in between there” (id.). Claimant testified that he was familiar with the area of roadway because he had traveled this route prior to his accident on a somewhat frequent basis of approximately twice a week (T:44, 49, 50). However, he maintained that he never noticed any visibility concerns when he had previously traveled through the area of the curve (T:50-51). He also testified that generally, his Porsche 911 traveled through the hills and curves of the Saw Mill better than his Honda Civic (T:43-44).
Police officer Mitchell Serlin responded to the accident and prepared a report. Serlin noted that claimant remarked at the scene that “he was going a little to [sic] hot for the turn and went off the roadway” (Ex. L). At trial, claimant testified that he did not specifically recall making the statement; however he conceded that he probably had.
William DeBonis, an eyewitness to the accident who was also familiar with the parkway, was subpoenaed by defendant to testify at trial. DeBonis testified that on August 22, 1998, he observed a Porsche in his rearview mirror traveling behind him in the right lane. DeBonis explained that he liked sports cars and wanted to see how the Porsche handled the turn. DeBonis was admittedly traveling beyond the speed limit at a rate of 70 mph and he maintained a watchful eye on the Porsche through his rearview mirror. He noted that the Porsche was “coming up pretty quick” (T:692). DeBonis stated that claimant came around the curve wide, hit the curb, then corrected and overcorrected causing the Porsche to spin onto the grass. After calling the police to report the accident, DeBonis left the scene.
DeBonis testified that, as he drove through the turn, he was changing lanes from the right to the left. He explained that he had no difficulty making this transition because there were no other cars traveling in front of him on the Saw Mill and no cars stopped on the road ahead.
The curve in question was part of a New York State Department of Transportation (DOT) project on the Saw Mill identified as Number 8216.50. In September 1987, DOT issued a Transportation Project Report, Problem Definition and Project Proposal, Rehabilitation and Preservation Projects on the Saw Mill (Ex. I). Five years later in September 1992, DOT issued a Final Design Report for the Saw Mill River Parkway Rehabilitation and Preservation (the Design Report) (Ex. G).
Lance E. Robson, a licensed engineer, offered expert testimony on behalf of claimant. Early in his career, he spent approximately 19 years in an engineering firm, but has not designed any roads since founding his own forensics business in 1987.
Robson testified that the Saw Mill Rehabilitation Project adopted a minimum 525-foot stopping sight distance while leaving the vertical curve in the vicinity of claimant’s accident with a nonstandard 230-foot stopping sight distance (Ex. G, p 24). According to Robson, while the parkway was designed for travel at 60 mph, a curve with a 230-foot stopping sight distance should only be driven at 35 mph. In Robson’s view, defendant declared this curve an exception in the Design Report without conducting the evaluation mandated by Section 2.8 of the New York State Highway Design Manual (the Manual). He contends that the Manual required a formal presentation with an accident and economic analysis of each nonstandard feature of the project. Here, there were no formal studies or consideration of the accident history on the road. Robson conceded that defendant’s engineers did consider the curve and accident history in the 1987 Problem Definition and Project Proposal for the Saw Mill and that this proposal led to the final report. However, Robson maintained that the accident history considered in 1987 did not analyze sight distances.
Robson explained that a rehabilitation project addresses the improvement of select features, while a reconstruction project addresses a more fundamental, basic alignment of the roadway. He acknowledged that the Saw Mill Project consisted of resurfacing, banking, drainage improvements, and the addition of a jersey barrier and a paved shoulder; the project was not intended to bring the parkway up to current design standards. Nonetheless, Robson maintained that, due to the horizontal curve, the road should have been widened to provide a larger right shoulder. Robson stated that he would have calculated widening the road based upon the stopping sight distance rather than the accident history. Ideally, it should have been widened eight feet but, if that was not possible, any incremental widening would have been an improvement. To address the vertical curve deficiency, Robson maintained that the crest of the hill had to be changed which required raising the roadway (T:112-14). While offering this conclusory recommendation, he did not calculate how much the road would be raised around the curve or how the traffic would be diverted during construction.
Robson concluded that the cause of claimant’s accident was the limited sight distance of the vertical curve and that defendant was 100 percent liable. Robson, however, also testified that, the stopped cars should bear some responsibility for causing claimant’s accident because the condition they created would not have been anticipated by claimant as he came around the curve. Robson rejected claimant’s speeding as a contributing factor because he opined that the stopping sight distance was so deficient that, even if claimant had been traveling at the posted 55 mph speed limit, the accident could not have been avoided. Robson conceded that there was not a high accident rate clustered in the area of the curve and that this was a factor in determining whether a nonstandard area needed remediation (T:165-67). However, Robson maintained that a low accident history should not prevent rebuilding the curve (T:184). He conceded that rebuilding the curve would require considering the railroad, the river and the aqueduct as determining factors in the cost and feasibility of addressing the curve in that area (T:172-73).
Thomas Mason, who has been employed by DOT for 36 years, testified that he has been the Assistant Resident Engineer in the Southern Westchester Residency since 1991. His responsibilities include maintenance of five parkways in Westchester including the entire span of the Saw Mill. He testified that, on the date of claimant’s accident, a reverse curve sign with a 50 mph recommended speed was posted approximately 1000 feet prior to the site of claimant’s accident.
Joseph Foglietta, a professional engineer who has been employed by DOT for 28 years, testified that for the past 13 years, he has been manager of a Design Group supervising engineers and has been directly involved in design for 15 to 16 years. In 1993, Foglietta was the manager of the design group assigned to Project 8216.50, covering the four-mile stretch on the Saw Mill from the Hawthorne Interchange to Route 120.
Foglietta testified that he was familiar with the Design Manual and Section 2.8. The Saw Mill project was a rehabilitation project which retained the original alignment and profile of the road. He explained that this differed from a reconstruction project
which involves total realignment of a road to extend its useful life by 20 to 30 years. A rehabilitation project maintains the existing infrastructure and addresses improvements to signage, guiderails or pavement. The priorities considered are accidents, safety, traffic volume and features of the road and nonstandard features are typically maintained if they do not contribute to accidents. By contrast, a reconstruction project conforms the road to current standards and any substandard feature which is not conformed to current standards, requires a written analysis necessary to justify the departure.
In terms of Project 8216.50, reconstruction of the road was rejected since it would have exceeded the allocated funds of nine million dollars (Ex. G, p 10). According to Foglietta, reaching this determination did not require a detailed study and calculation. Using their experience, Foglietta and his group, considered accident statistics and traffic volume. The Saw Mill was not congested and its accident rate was below the State average. The project in the area of claimant’s accident included repaving, new curbing, shoulder and drainage improvements, and the placement of a median barrier.
Foglietta testified that the curve in issue was one of 45 nonstandard features identified and retained in the project. All of these features were evaluated in terms of the accident history in the three years prior to the initiation of the project. The accident history regarding the curve was analyzed and found nonexceptional. The Saw Mill is a narrow parkway bordered by a railroad and a river and included bridges. Therefore, it was not a roadway which was capable of being widened without accommodating these conditions. The curve was near the aqueduct for the New York City water system and the Metro North Railroad. Foglietta and his engineers considered improving the sight distance to current standards and concluded they would have had to reconstruct more than a half mile of parkway in each direction before and after the curve because of the aqueduct located underneath the roadway. The presence of the aqueduct prevents leveling off the roadway therefore, the roadway extending outward from the crest of the hill in both directions would need to be raised to achieve the desired result. Additionally, since there is very little clearance between the bridge and the aqueduct below, the bridge would need to be lifted before construction. It would have been impossible to divert traffic while rebuilding the road.
Foglietta and his colleagues also contemplated widening the bridge over the aqueduct and weighed the cost, time, public impact and scope of such a project and considered rates from past projects of construction per lane mile. Foglietta maintained that a detailed study was not required to justify the group’s decision because, from their vast experience, they knew the expenses involved from past projects. It was not necessary for them to prepare a formal detailed written analysis for each substandard feature since there were many and it was sufficient that DOT discussed the ballpark figures for the costs. This, Foglietta maintained, was standard practice for a rehabilitation project. Similarly, incremental improvements were discussed, but were not memorialized in the written documents.
Foglietta outlined the procedure followed for the Saw Mill project. At its initiation, it was determined that the scope would be rehabilitation. Then at the preliminary design stage, accident reports, pavement, drainage and photographs are studied. According to Foglietta, a large scale change was not warranted because the accident rate was close to the statewide average and there is only limited money available; therefore there was an assessment as to the best allocation of funds (T:305). Foglietta further explained that the deflection of traffic and the need to build a parallel road during construction posed the biggest problem. The design report is circulated to construction, maintenance, traffic planning groups as well as the Federal Highway Administration (FHWA) and the Design Quality Assurance Bureau in Albany. The FHWA had oversight because they provided funding. On July 17, 1992, FHWA approved retention of all of the nonstandard design features (Ex. 32; T:305).
Nicholas Pucino, a professional engineer with DOT and its predecessor agencies for over 30 years before retiring in 1991, offered expert testimony on behalf of defendant.
He was responsible for establishing the State’s system for identifying road deficiencies through accident analysis. During his tenure, he oversaw the completion of safety projects on many of the Westchester parkways including the Saw Mill. From 1989 to 1991, he was DOT’s Regional Construction Engineer and supervised the inspection and construction of roads in a seven county region that included Westchester.
Pucino testified that there was a curve warning sign and a 50 mph speed limit sign posted in the area before claimant’s accident site. He considered the sign to be appropriate to notify motorists of the horizontal and vertical curve ahead. Pucino assessed the profile of the road by examining the record plans and analyzed the relevant stopping sight distance and sight distance. He noted that the profile was designed to clear the aqueduct causing a steep slope. The Saw Mill, which was built in the 1930's, followed the contours of the road which was typical of highways built in that era.
After reviewing the prior New York State Department of Motor Vehicles accident reports from 1995 to 1998, covering the length of the project, Pucino concluded there was no pattern of accidents at the pertinent location. Thus, he opined that there was nothing in the history to justify rebuilding the bridge or doing anything about the sight distance. Pucino explained that to bring the sight distance up to current standards, it would be necessary to change the profile of the road by raising it 12 feet on both sides of the crest. This would involve extensive rebuilding of one half mile of parkway, replacing the existing bridge aqueduct, and building a parallel bridge while construction was ongoing. Pucino concluded that defendant’s decision not to rebuild the road conformed to good engineering standards. It was appropriate to do just the rehabilitation work in light of the accident history, time, delays and cost. Given the accident history prior to the project, no study would have made a difference in DOT’s determination.
Pucino disagreed with Robson’s interpretation of Section 2.8 of the Manual and explained that Robson was not familiar with DOT’s customary practices and procedures. According to Pucino, if a reconstruction project is undertaken and a substandard condition is retained, DOT needs to explain that decision more fully; however a rehabilitation project requires a different analysis. The existing road is maintained and it is not necessary to prove why each substandard feature is not upgraded.
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 Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579, 584). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on its roadway does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). In the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (see, Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). Additionally, “[s]omething more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public”(Weiss v Fote, supra, at 588). The State “is not obligated to employ a constant vigilance over its highway network, but only to pursue reasonably plausible measures” (see Freund v State of New York, 137 AD2d 908, 910-11). Absent proof of a dangerous condition, the State is not required to upgrade any roadway to conform to new standards which evolved subsequent to the original construction (Merino v New York City Tr. Auth., 218 AD2d 451, affd 89 NY2d 824; Trautman v State of New York, 179 AD2d 635).
Here, the evidence presented was sufficient to establish that defendant adequately considered a new design plan for the curve in accordance with its rehabilitation project on the Saw Mill and the decision to retain the curve in the remediation project did not lack a reasonable basis and was not plainly inadequate (see Rizzuto v Wenger Contr. Co., 91 NY2d 343, 349 [violation of a rule of an administrative agency is merely some evidence which the finder of fact may consider on the question of negligence]; Spanbock v Trzaska, 287 AD2d 496 [no pedestrian accidents therefore no recommendation for improving pedestrian safety; court rejected argument that failure to consider pedestrian activity rendered traffic study plainly inadequate or without reasonable basis]). Notably, a rehabilitation project is distinct from a reconstruction project. A rehabilitation project addresses the improvement of select features, while a reconstruction project addresses a more fundamental, basic alignment of the roadway. In a rehabilitation project, the road is not made to conform to current design standards and nonstandard features are typically maintained if they do not contribute to accidents.
In this particular rehabilitation project, the accident rate on the Saw Mill was below the State average and the parkway was bordered by a railroad, a river, and included a bridge over the aqueduct. Therefore, correcting the sight distances of the curve would require a reconstruction of the roadway, which was well beyond a rehabilitation project. There were 45 nonstandard features which were retained, including the curve in issue. The reasons for retaining the curve were: the lack of an accident cluster in the area; the inability to correct the curve due to the physical limitations of widening the roadway; the financial assessment; a traffic rerouting problem; and the time constraints. All of these factors exceeded the scope of a rehabilitation project. Claimant’s expert conceded that there was not a high accident rate cluster in the area of the curve and that this was a factor in determining whether a nonstandard feature needed remediation. Claimant’s expert also conceded that addressing the curve would require consideration of all the physical limitations and costs. In sum, the Court finds that claimant has failed to meet his burden of establishing that the State was negligent and that such negligence was a proximate cause of his accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-22; Sinski v State of New York, 2 AD3d 517 [liability will not attach unless State’s alleged negligence was a proximate cause of the accident]; Clark v State of New York, 250 AD2d 569 [claimant failed to prove that State’s action or inaction was a proximate cause of his accident]).
While proof of prior accidents at the same place and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice, in this case, the proof established that the number of accidents on the roadway was below the State average and that there were not a significant number of accidents in the area of claimant’s accident to warrant a change in the roadway (see Martin v State of New York, 305 AD2d 784 [the number of accidents was well below the State average; prior accident history was insufficient to put defendant on notice of a dangerous condition or impose a duty to take remedial action]). To the extent that claimant argues that there was another accident on August 3, 1998 involving another vehicle which struck a rock in that area; this Court finds that even if that accident were considered a prior similar accident, it alone would not be sufficient to put the State on notice of a potentially dangerous situation which needed to be addressed within the following weeks prior to claimant’s accident.
Claimant has failed to show that defendant was negligent in failing to reconstruct the curve in the roadway to meet current design standards or that the roadway design was a contributing cause of claimant’s accident (see Martinez v County of Suffolk, 17 AD3d 643 [driver’s conduct was sole proximate cause of accident; therefore County’s purported negligence cannot be deemed a proximate cause]; Sellitto v State of New York 250 AD2d 754 [claimant failed to prove that the State either caused a dangerous condition or had notice of a recurrent dangerous condition existing in a specific area]; (Stanford v State of New York, 167 AD2d 382 [claimant had adequate warning that it was necessary to reduce his speed as he prepared to enter the left curve; alleged negligence of the State in permitting warning sign to become obscured was not a proximate cause of accident]).
It is well established that:
“[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury”

(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also Bernstein v City of New York, supra). Indeed, upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant’s testimony as to the alleged cause of his accident is not worthy of belief and rather the Court finds the version based in part upon the testimony of an eyewitness to be more credible (see Newland v State of New York, 205 AD2d 1015 [Court of Claims had the advantage of observing the witnesses testify and was better able to assess credibility in rejecting claimant’s theory of the cause of his accident as unsupported by the credible evidence and instead accepting a version based in part on an eyewitness account of another driver]). William DeBonis, an eyewitness to claimant’s accident, testified that he maintained a watchful eye on claimant’s Porsche because DeBonis wanted to see how the Porsche handled the curve of the roadway. DeBonis was admittedly traveling beyond the speed limit at a rate of 70 mph and observed claimant “coming up pretty quick” (T:692). Claimant was familiar with the roadway and had traveled that route on a somewhat frequent basis prior to his accident.
Claimant was concededly traveling in excess of the speed limit at a rate of 60 mph and he probably told the responding police officer that the speed at which claimant had been traveling “was a little to[o] fast for the turn” (Ex. L; see Haughey v Noone, 262 AD2d 284 [driver traveling at 25 mph exceeded the 20 mph posted speed limit and admitted to police officer at the scene of the accident that he was traveling “too fast;” summary judgment was awarded finding driver liable for accident]). Claimant was obligated to operate his car at a rate of speed and in such a manner of control as to avoid an accident (see Woolley v Coppola, 179 AD2d 991, 992). Indeed, claimant was familiar with the roadway, was admittedly speeding, and should have reduced his speed before entering the curve (Rose v State of New York, 19 AD3d 680 [claimant’s “familiarity with the ramp, coupled with his excessive speed, eliminate as a proximate cause of his accident any negligence by the State”]; Perry v Kazolias, 302 AD2d 575 [driver’s excessive rate of speed and failure to keep a proper lookout during a turn he was familiar with severed any connection between Town’s alleged negligence and the happening of the accident]). Thus, it appears that the sole proximate cause of the accident was claimant’s inability to maintain control of his vehicle and claimant’s inattentiveness while driving (see Schichler v State of New York, 110 AD2d 959, affd 66 NY2d 954; Schwartz v New York State Thruway Auth., 95 AD2d 928, 929, affd 61 NY2d 955).
Defendant’s motion to dismiss, upon which decision was reserved, is now GRANTED.
All other motions not previously ruled upon are DENIED.

August 14, 2006
White Plains, New York

Judge of the Court of Claims

[2]. The claim of Constance Mercurio, claimant’s wife, is derivative. In this Decision, claimant shall refer to Joseph Mercurio unless otherwise specified.
[3]. References to the trial transcript are preceded by the letter “T.”
[4]. At a 50-h hearing in a related Supreme Court action, claimant testified that the cars were not traveling at the speed limit; he did not elaborate (Ex. Z, pp 19-20).
[5]. Despite this distinction, reconstruction is a common term that is sometimes used on record plans of projects that are actually rehabilitation projects (see e.g. Ex. D).
[6].The Court permitted Pucino to testify over claimant’s objection that his 3101(d) disclosure was inadequate. The Court has limited its consideration of Pucino’s testimony only as to that which was adequately detailed in defendant’s 3101(d) and any testimony which was clearly beyond the scope of the disclosure was not considered by the Court.