New York State Court of Claims

New York State Court of Claims

FALLAT v. THE NEW YORK STATE THRUWAY AUTHORITY, #2006-013-522, Claim No. 106050


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:
Defendant’s attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This accident took place on November 12, 2001 at approximately 4:00 a.m. as Claimant Nicole Fallat was proceeding westbound on the New York State Thruway (Thruway) going from her parents’ home in Auburn, New York, to the University of Buffalo in Amherst, New York, where she was enrolled. The accident happened in the vicinity of mile marker 361.7 (Exhibit 1). This trial was bifurcated and this decision deals solely with issues related to liability.
Ms. Fallat testified that she had only had approximately four hours of sleep before starting the trip and acknowledged that she dozed off as she was heading westerly, nearing exit 46 on the Thruway, driving in the right-hand lane. She awoke while in the left-hand lane, just prior to striking the median guardrail, but her efforts to avoid the ensuing accident were to no avail. The front end of her vehicle apparently struck the median guardrail, veered across the westbound driving lanes striking the guardrail off the right-hand shoulder, and then went back across the travel lanes, with her car ending up partially on the south shoulder of the roadway and partially on the travel surface of the left lane, facing easterly. Her vehicle struck the guardrails with sufficient force to dislodge a bumper cover and other parts from her car, with the debris strewn in the travel portion of the roadway.
A vehicle being operated by Roland DeMay was proceeding west on the Thruway when it ran over some of the debris from Claimant’s vehicle. Something became lodged under Mr. DeMay’s car and he stopped his vehicle on the north (right) shoulder some distance further west and thus past the location where Claimant’s vehicle came to rest. While not entirely clear, Mr. DeMay testified that he saw Claimant’s vehicle and was driving past it when he struck the debris and then slowed his vehicle and pulled off the road onto the shoulder. He testified that his cruise control was set at 74 mph as he contacted the accident debris in the roadway. Thus, while the testimony with respect to the distance between the vehicles was somewhat equivocal, it may well have been close to the distance of 500 feet (Trial Transcript - p. 47).
Claimant shut her car off because it was smoking and she exited the vehicle. While not positive, she believed that she had engaged her warning lights before she exited her car, but could not recall if they were operational, as both the headlight and taillight portions of her vehicle had been damaged as she caromed off the guardrails. She attempted to call her mother on her cell phone, but was unable to complete the call as her phone went dead. She observed that Mr. DeMay, whom she did not know prior to this accident, had exited his car and was walking back toward her. Ms. Fallat crossed the two westbound lanes of traffic walking toward Mr. DeMay. It was estimated that she traversed perhaps two-thirds of the 500± feet between the vehicles (Trial Transcript - p. 49), when they convened. He ascertained that she seemingly was uninjured, albeit quite upset, and allowed her to use his cell phone to complete her call to her mother. Mr. DeMay had made a 911 emergency phone call to notify the State Police of the accident, and the two of them decided to step over the guardrail on the north side of the roadway to await the arrival of the State Police. This was done to avoid the possibility of being struck by oncoming vehicles that travel at speed in excess of 65 miles per hour or by the accident debris that might be propelled by passing vehicles in their direction. While it was not articulated at the time, it appears from trial testimony that each felt that the guardrail could act as a shield against any debris that might be struck by passing westbound traffic. It was pitch black outside, with no streetlights and neither Mr. DeMay nor Claimant could see what and where this debris might have been strewn.
A short time later a New York State Trooper arrived and parked his vehicle a distance from, but in front of Claimant’s car on the south shoulder. He exited his car, apparently crossed over the road to the right-hand shoulder and proceeded to walk on the paved shoulder, westerly in the direction of Claimant and Mr. DeMay. They in turn, while still behind (north of) the guardrail, started walking easterly toward the Trooper, a distance estimated by Mr. DeMay to be perhaps 300 feet (Trial Transcript - p. 52). Both Ms. Fallat and Mr. DeMay describe the early morning as being very dark; there was no artificial or natural illumination in the area. Claimant proceeded ahead of Mr. DeMay toward the Trooper who by then, according to her, was 20 to 25 feet away from them and closing the distance as they walked toward each other.
They were walking, single file, on gravel, variously described as a path, but in reality was merely the composition of the shoulder in this area. It was very dark, visibility was limited, and Mr. DeMay was able to just make out Claimant’s silhouette in front of him. After taking just five or six steps towards the Trooper, Ms. Fallat stepped on what she described as a stone slab and then fell some 24 feet onto an abandoned railroad bed (see Exhibits G, J, K and L). Mr. DeMay said that one second she was in front of him and then she disappeared. When he realized what had occurred, he stepped back over the guardrail onto the paved shoulder and hollered to the Trooper that Claimant had fallen and to call for help.
The Thruway in this area is described as being straight with a slight downward slope from east to west as it crosses over the abandoned railroad bed. As one proceeds to the west there is a guardrail on both sides of the road to deflect vehicles away from the non-traversable slope leading to the railroad right-of-way (Exhibits G, K and L). The bridge over the railroad bed has a rigid bridge rail to prevent vehicles from going over the side of the bridge, which was constructed with and supported by two wing walls. It was from one of these wing walls that Claimant had fallen (Exhibit G). It was part of the original construction of the Thruway to carry traffic over the existing railroad bed and had a length of approximately 30 feet with a clearance height of 24 feet. In 1990, work was performed to bring the guardrail system up to current standards, and, as one approached the bridge, the easterly end of the guardrail system had heavy support posts installed. The exit side of the bridge, i.e., the west end of the bridge where Claimant fell, did not have these supports installed or any other type of guard to prevent anyone from falling onto the railroad right-of-way.
Claimant’s expert, Eugene Penzimer, a Civil Engineer licensed by the State of New York, testified that he had visited the site of the accident several times and taken measurements from the bottom of the bridge to the railroad right-of-way. In addition to that, he had driven this area several times, exiting his vehicle and walking over the area to familiarize himself with the layout on both the westbound and eastbound sides of the Thruway in this area. He also reviewed the accident report, Defendant’s Exhibits A to L and deposition testimony.
In his expert opinion the sole proximate cause of this unfortunate accident was the Defendant’s negligence in failing to act with reasonable care to properly maintain the highway at the site of this accident in a safe condition. More particularly, he opined that it was negligence for the Defendant to fail to have taken measures to erect a barrier or warning mechanism to alert users of the Thruway system of the dangerous drop-off at the accident site. He stated that the construction of a fence or even a couple of horizontal posts would have alerted Claimant to the danger. Cost of such an obstruction is minimal and would have, in his opinion, prevented Claimant’s fall. He testified that the gravel on the north side of the guardrail was a path which he apparently felt in the dark could or would lead one to believe was a pathway that could be safely traversed, in effect setting a trap for the unwary. Had there been either of the two mechanisms in place at, or just before, the stone slab, Claimant would not have been able to step up and then off into the precipice. To have replicated the installation of the steel posts that were evident in Exhibit L on the side that Claimant was on would have provided a sufficient barrier that, in his opinion, could have prevented the accident. He opined that a fence would be among the best resolutions to eliminate the hazard of falling 24 feet to the railroad bed, or a sloping of the dirt bank, as shown on Exhibits 5 and 6, as another means Defendant could have employed to eliminate the drop-off.
Mr. Penzimer also was of the opinion that Defendant breached its duty of care in failing to follow the recommendations set forth in the New York State Department of Transportation Design Manual §§10.04.01(C); 10.04.02(A)3;10.04.02(B);10.04.02(C)2;10.04.02(c)3 (Trial Trans-cript pp. 95-100 ). It was his opinion that each of these sections had applicability to the instant matter. The first section, §10.04.01(C), has applicability since it posits that fencing is required to prevent the general public from entering unsafe places, and if there had been a fence at the wing wall then Claimant would not have fallen. The second section,§10.04.02(A)(3) directs that fencing be in place to prevent vehicles and people from entering the highway at unauthorized places. The third section of the design manual, §10.04.02(B) dealing with unsightly areas and their unsightliness, was also applicable to this case in his opinion. The next section, §10.04.02(C)(2), was applicable since it specifically calls for a fence to be erected at excavations having side slopes steeper than one-on-one grade, which according to him was certainly the case in the area of this fall. The final cited section, §10.04.02(C)(3), clearly applied in his opinion since it required a fence in an area where there was a steep slope or embankment.
While Mr. Penzimer described Claimant’s fall as occurring in an area where there was more of a vertical drop as opposed to a steep embankment, he nonetheless opined that engineers find that sometimes it is not always appropriate to “follow the book,” and sometimes they must use their independent judgment when confronted with a situation different than that described in the manual. Consequently, he was of the further opinion that there was a situation extant at the accident site requiring independent engineering judgment calling for the erection of a chain link fence or some other barrier to prevent either the general public or a patron of the Thruway from gaining access to the wing wall and falling. He estimated the cost of a fence for this area to be between $1,000.00 to $1,500.00 per section. He stated that, in his opinion, the NYSDOT Design Manual §10 applied to the accident site, and that there should have been a fence in place to prevent anyone from proceeding further into the danger that Claimant faced on the date of this accident (Trial Transcript - pp. 95-100). More particularly, he pointed out that the warrants regarding fences were drawn up in an effort to prevent pedestrians and wild life from entering the highway right-of-way and, in Claimant’s case, she had not left the right-of-way.
He acknowledged that he was unable to find any other accidents similar to that of Claimant’s occurring at any bridge site on the Thruway (Trial Transcript - p. 110). While he was of the belief that it was unsafe for her to remain in her vehicle, he conceded that it would have possibly been safe for her to stand behind the guide rail on the median side of the Thruway where her car had come to rest (Trial Transcript - p. 110). However, he stated that he had failed to take any measure-ments of the shoulder on that side of the roadway. He further acknowledged that as a vehicle approached this bridge the guardrail was made stiffer by the placement of the posts as shown in Exhibit F and the necessity for the same rigidness was lessened as it exited the bridge (Trial Transcript - p. 117). He was unsure as to what the Defendant was intending to do when it designed the guardrails at the site of this accident. He went on to state that when the design of a highway and its structures is undertaken, in most instances, the design engineers follow the guidelines as contained in the AASHTO and NYSDOT Design Manuals, but they must always be permitted to, and do exercise engineering judgment. In other words, the engineers will be confronted with a situation that is not covered in the manuals or books and then they must rely upon common sense and experience to resolve the issue, at all times keeping in mind the safety of highway users. It was this expectation and conclusion that portended Mr. Penzimer to his expert opinion that the Defendant had breached its duty to Claimant in this instance.
Not surprisingly, the Defendant’s expert, Mr. Thomas Gemmiti, using his common sense and his engineering experience, came to a different conclusion than Mr. Penzimer. Mr. Gemmiti, a licensed engineer, has been employed as a design engineer by the New York State Thruway Authority for 22 years. In preparation for his testimony, he viewed the site and reviewed the original “as built” plans and other plans relating to the subsequent rehabilitation of the site. This included a guide rail
rehabilitation in 1990, prior to the instant accident, to bring them up to the standard for that time. During his employment he has been involved in projects which required fencing being erected along the Thruway. He also was not able to locate any records documenting falls from bridges similar to Claimant’s. In his opinion there was not a warrant for right-of-way fencing in this area because of its rural nature, the tree line and the fact that this is a controlled-access highway. While he alluded to one area of the Thruway where there was fencing along the right-of-way, it was a rest area in Angola where people would walk in order to stretch and perhaps walk pets, and the area of this accident was not of this type or nature. It was his opinion that the cost to erect fencing at the four corners of the bridge, excluding design costs, would be approximately $40,000, plus annual maintenance costs.
Mr. Gemmiti went on to testify that in his experience of designing areas along limited or controlled access highways involving fencing, §10.04.02(A) of the NYSDOT Design Manual and the warrants that are associated with it in the AASHTO guidelines were considered, and not any other subdivision of §10.04.01 (Trial Transcript - pp.164-166). It was his opinion that given the provisions of the Design Manual and the AASHTO guidelines, as well as his experience in design, his review of the facts of this case, and his investigation of the records, including the lack of any other known accident similar to the instant matter, there is no warrant for fencing at the site of Claimant’s fall.
He acknowledged that he did not review any of the plans pertaining to the 1990 rehabilitation of the guide rails at the site of this accident and was unable to state whether or not the installation of fencing at the site was considered. He also acknowledged that he did not personally search the records for any similar type accidents but had apparently asked others to do so for him. He stated that the reason for the fencing at Angola was due to users of the highway walking in that area at that rest stop, and he acknowledged that at the area of this accident people could also walk. He was unable to quantify what number of people walking in an area would necessarily trigger consideration of the installation of a fence, but stated that it became a matter of engineering judgment after an analysis of a site and the expectation of people walking in that area. While he knew that people did walk along the Thruway on either side of a guide rail, he could not state the number but offered that if they did so he believed that they were doing so illegally. His conclusion, and one to which I subscribe, was that fencing was placed in areas where there was an expectation that people would be walking, and here there was no such reasonable or anticipatory likelihood.
When shown photographic Exhibit F, Mr. Gemmiti stated that he did not know the cost of the bracing of the guide rail as depicted in the photo but did acknowledge that if they had also been installed in the westerly end of the bridge it was possible that Claimant might have run into them and perhaps avoided the accident. He also conceded the possibility that if a fence had been placed on the side where these jut out posts had not been erected, perhaps this accident would not have occurred. He also conceded that §10.04. 01(C) of the Design Manual, denominated “Purposes,” could apply to this situation, since Claimant entered an unsafe location but was not a member of the general public as used in that subsection. Rather, he believed her to be a patron of the Thruway and therefore not a member of the general public as used and intended by that subsection since, in his opinion, there is a distinction for each status. He went on to state that the Defendant will also protect patrons of the Thruway in places such as the Angola rest area where there was a perceived pedestrian exposure to an unsafe condition. While the Thruway does consider the potential danger to its patrons/pedestrians when contemplating the installation of fencing, he stated that he did not know if that occurred in regard to the site of Claimant’s accident. It was his opinion that regardless of how little it would cost to put a fence up where Claimant fell he would not advise it to be done.
Parenthetically, I allowed into evidence a Thruway toll ticket (Exhibit W) and an official map of the Thruway (Exhibit X) over the objection of Claimant’s counsel, but noted that Claimant had an E-Z pass and therefore had neither of these two items in her possession on the morning of the accident. I permitted the introduction of these exhibits in spite of the apparent lack of relevance, stating that I would give them whatever weight I deemed they warranted. In light of that ruling, I now find that they are irrelevant and have accorded them little or no weight.
As I noted in Russo v State of New York (Ct Cl, UID #2001-013-506, Claim No. 96902, April 26, 2001),
the State (and the Thruway) has a duty to construct and maintain its highways in a reasonably safe condition (Matter of Kirisits v State of New York, 107 AD2d 156). It must use reasonable care in its construction and maintenance of any shoulders it provides for emergency use (see Stiuso v City of New York, 87 NY2d 889, 891; Bottalico v State of New York, 59 NY2d 302, 305-306; Pontello v County of Onondaga, 94 AD2d 427, lv dismissed 60 NY2d 560). It must, where circumstances warrant, protect motorists from culverts and other foreseeable hazards located immediately adjacent to the shoulder (see Stiuso v City of New York, 87 NY2d 889, supra; compare Terwilliger v State of New York, 96 AD2d 688, lv denied 60 NY2d 558 [State liable for accident caused by culvert and head wall located in "unnecessary proximity" to shoulder] with Muller v State of New York, 240 AD2d 881 [State had no duty to protect motorist from culvert located "well beyond" the shoulder]). In Kimber v State of New York (294 AD2d 692, 694), the Court cited with approval Muller v State of New York (240 AD2d 881, supra), noting that the drop inlet was "beyond the traversable shoulder and ... [the] emergency use of such additional area was ... [not] foreseeable."
Of course, neither the State nor the Thruway is an insurer of the safety of motorists, and negligence cannot be inferred from the mere happening of an accident (Edwards v State of New York, 269 AD2d 863; Hamilton v State of New York, 277 AD2d 982, lv denied 96 NY2d 704). To prevail, a claimant must prove that injuries he or she sustained were proximately caused by the State's negligence (see Hamilton v State of New York, 277 AD2d 982, lv denied 96 NY2d 704, supra; Edwards v State of New York, 269 AD2d 863, supra). While there seem to be no prior decisions directly paralleling the instant circumstances, the language of the courts in comparable instances is persuasive and of sufficient precedential import to rely thereupon. In assessing whether the State was negligent, one must bear in mind that certain risks are unavoidable and that objects such as drainage ditches and culverts are often located in close proximity to the traveled way, but nevertheless pose no unreasonable danger for drivers who exercise reasonable care (Tomassi v Town of Union, 46 NY2d 91).
The evidence satisfied me that pedestrian travel beyond the paved roadway and shoulder where this fall occurred was neither contemplated nor foreseeable (Tomassi v Town of Union, 46 NY2d 91, supra; Guy v Rochester Gas & Elec. Corp., 168 AD2d 965, lv denied, 77 NY2d 808; Adamy v Ziriakus, 199 AD2d 1018, lv denied 83 NY2d 755; Warren v New York Tel. Co., 238 AD2d 961, lv denied 91 NY2d 805). The Thruway had no way to reasonably foresee or anticipate that this locale would be the site of the events that led to Claimant’s accident. To hold the State of New York responsible for failing to anticipate these events and for failing to erect a barrier to prevent injury would in effect transform it into an insurer (see Tomassi v Town of Union, 46 NY2d 91, supra).
As Judge Ferris Lebous noted in reiterating the law in Kelley v State of New York (Ct Cl, UID #2002-019-015, Claim No. 101747, July 10, 2002), “the State's duty is conditioned upon the prevailing circumstances and extends only to foreseeable uses of the highways by vehicular traffic and pedestrians alike.... While the State is required to use reasonable skill and diligence in making its highways safe and convenient for travel, ‘[i]t is under no obligation to provide for everything that may happen upon its highways, but only for such use of them as is ordinary and as reasonably may be expected’ [citation omitted].” He further considered the foreseeability of danger, took into consideration proof of prior accidents under similar conditions, or the absence thereof, and noted that “ ‘[w]hen a lack of lighting renders ineffective the use of one's eyesight as to the condition of the route upon which he is traversing, ordinary prudence requires that he refrain from proceeding further without first ascertaining if he may safely proceed [citations omitted]’ (Halstead v Kennedy Valve Mfg. Co., 36 AD2d 1005, 1007, affd 31 NY2d 901).”
As I observed in Guyder v State of New York (Ct Cl, UID #2003-013-510, Claim No. 88495, December 31, 2003), “[t]o impose a duty upon the State in these circumstances would effectively require it to place guide rails or other devices on every State road where a drainage ditch, hazard or a fixed object lies just beyond the perimeter of the shoulder [citation omitted]... The law does not support the imposition of such an unreasonable and cost-prohibitive burden, and it is a step I decline to take.”
This claim seeks to impute the Thruway’s culpability for this unfortunate accident. But after reviewing all the circumstances and all the evidence before me, it would be difficult to ascribe negligence to either party. On one hand, one could speculate that Claimant might have stayed in one spot with Mr. DeMay on the north side of the guardrail and simply waited for the trooper to continue walking and meet them where they stood (compare the actions of the claimant in Kelley v State of New York [Ct Cl, UID #2002-019-015, Claim No. 101747, July 10, 2002, supra]). Or that Mr. DeMay and Claimant might have retraced his steps and returned to his vehicle on the shoulder off the travel portion of the roadway to await the trooper. The benefit of hindsight and a reasoned rational approach in the serenity of a non-stressed, illuminated environment allows for such speculation. Of course, that is unfair to Claimant and I decline to do so.
On the other hand, as noted above, it would similarly be unfair to hold the Defendant culpable for this accident because it was not reasonably foreseeable, and to hold otherwise would cast the Defendant in the role of an insurer for which its negligence would not pertain.

Accordingly, based upon the above, the claim must be, and hereby is, dismissed. All motions not heretofore ruled upon are now denied.

December 29, 2006
Rochester, New York

Judge of the Court of Claims

  1. [1]It is clear that, given the darkness of the night, the stress and anxiety of the moment, and the subsequent fall, the distance estimates vary quite a bit. Regardless, these differences appear to be inconsequential and of no probative significance for my analysis.
  2. [2]There is a venerable tradition in this Court that claimants consistently refer to “guardrails” while defendants embrace “guide rails.” The subtly differing connotations are not lost on the Court. Regardless, they mean the same to me and I consider the terms interchangeable.
  3. Decisions and selected orders of the New York State Court of Claims are available on the Internet at