New York State Court of Claims

New York State Court of Claims

BAUER v. THE STATE OF NEW YORK, #2006-016-039, Claim No. 103652


The State failed to make adequate study of safety at an intersection, and was found one-third (33 1/3%) liable for claimant’s collision with another vehicle.

Case Information

MADELINE BAUER, as Administratrix of the Estate of GEORGE BAUER, JR., and MADELINE BAUER, individually
1 1.At trial the caption was amended to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
At trial the caption was amended to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
The Gucciardo Law FirmBy: Brian W. Raum, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Denis McElligott, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 23, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)

George Bauer, Jr. was killed in a vehicular accident at the intersection of Church Street and State Route 454 in the community of Holbrook in Suffolk County. This is the decision following the trial on liability.
For our purposes, traffic on Route 454, also known as Veterans Highway, shall be considered as traveling east-west, and on Church Street, north-south.
Church Street intersects Route 454 from the south, but ends there and does not cross it. There are two lanes in each direction on Route 454, with a grass median between them. Church Street is one lane each way separated by a double yellow line.
The intersection of the two roads is controlled by a stop sign facing northbound Church Street traffic; there is no traffic light at the intersection. Cars traveling westbound on Route 454 that intend to turn south onto Church have a left turn lane set aside for them. It is undisputed that the defendant State of New York is responsible for traffic design and planning at the intersection.
At about 6 p.m. on Monday, December 27, 1999, Mr. Bauer was driving his 1993 Plymouth sedan north on Church Street, approaching Route 454. His adult grandson, Nelson Medina, was with him in the car. When Bauer attempted to make a left turn onto 454, his car was struck by a 2000 Toyota Corolla traveling eastbound in the left lane of Route 454. Mr. Bauer was killed; Mr. Medina was injured. The driver of the Corolla, David Sollender, was not injured. (Cl exh 1, first unnumbered page).
The turn that Mr. Bauer had attempted was permissible at the time. His claim, or rather that of his estate, contends that such should not have been the case, i.e., that a left turn from Church Street onto Route 454 should either have been prohibited with a no left turn sign, or blocked physically by reconfiguring the area. In effect, claimant maintains that the design and planning for the subject intersection was inadequate and that such was the proximate cause of Mr. Bauer’s accident.
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At trial, we heard from Richard Causin, an engineer with the State Department of Transportation (DOT), who at the time was the manager of the Traffic Control and Signal Design units for Nassau and Suffolk counties (Region 10). The Traffic Control Unit has the responsibility to develop studies for analyzing safety on State highways within the Region. From 1998 to 2001, Mr. Causin was the traffic control supervisor for Region 10.
Causin observed that “every study is different. My job is to develop a study that would analyze the particular concern.” Typically, a concern would be expressed in a letter of complaint like that from then Suffolk County Legislator Steve Levy, dated June 29, 1999, to the regional director, on behalf of a resident of Holbrook who sought a separate right turning lane for traffic on Church Street (def exh A). Initially, Legislator Levy received a response from the DOT in August of 1999, explaining that “[w]e have scheduled an investigation of this location and will notify you of our findings at the conclusion of our study. Regrettably, there may be some delay in concluding our study since this office receives numerous requests for traffic controls in Nassau and Suffolk Counties.” (Def exhs B & C, two identical letters dated August 13 and August 20, 1999). The county legislator received a written response, dated October 25, 1999, from Thomas Oelerich, the regional traffic engineer, which in relevant part provided as follows:
Our accident analysis reviewed the most current three years of data available from the Department of Motor Vehicles. Our analysis did not show a pattern of accidents that would be correctable by the addition of a right turn lane.
In addition, our field observations have shown that we are not able to install a right turn lane due to insufficient roadway width of Church Street. . . .
However, to increase the overall safety of this intersection, we will be replacing the worn “One Way” and “Keep Right” signs on Route 454. These signs will be installed by our Maintenance Group as soon as their work schedule permits. [Cl exh 3].

No evidence was presented as to when the new signs were installed, but there has been no contention that replacing the worn signs with new ones containing the same message would have prevented Bauer’s accident. Even had the Levy exchange of letters ultimately resulted in a prohibition of a left turn at the intersection, it is not clear whether such could have been done prior to December 27, 1999. In any event, a delay between recognizing a dangerous condition and remedying it is not actionable if it “stemmed from a legitimate ordering of priorities with other projects based on the availability of funding.” Friedman v State of New York, 67 NY2d 271, 287, 502 NYS2d 669, 676 (1986). Causin noted that DOT would try to investigate every complaint or request, even though Region 10 receives between 1,000 and 1,200 a year; defendant, for its part, put forth no schedule of ordered priorities.
The Oelerich letter is dated two months before Bauer’s accident. The Levy-Oelerich set of letters is the earliest we have in evidence; the other available correspondence was all sent after the accident (def exhs D through T). The focus here then becomes what had been done previously. DOT’s Causin stated that Veterans Highway was built in 1948 by the County of Suffolk and turned over to the State in 1972. No documents were offered on its construction or any reconstruction or rehabilitation at the intersection that may have occurred prior to Mr. Bauer’s accident. The only information presented was contained in claimant’s exhibit 4.
Such exhibit includes: three pages tabulating accidents at the intersection from October 1, 1995 to September 30, 1998; five photographs; a one-page map of the area; and a handwritten diagram of the intersection with distances marked off and the Church Street entrance to the Sun-Vet Mall indicated. The 10-page packet was described as a traffic control study by Causin. Causin never stated, or otherwise implied, that there was any other pre-accident investigation or study of the Route 454/Church Street intersection. In fact, the 1995 to 1998 accident history was used in evaluating the complaint forwarded by Levy, and is mentioned in Oelerich’s letter of October 25, 1999, quoted above.
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The State, or any municipality, has a duty to keep its highways and roads in reasonably safe condition. Friedman v State of New York, 67 NY2d 271, 502 NYS2d 669 (1986). However, the determination of an expert governmental planning body is not subject to review in a lawsuit for negligence unless its design or plan “evolved without adequate study or lacked reasonable basis.” Weiss v Fote, 7 NY2d 579, 589, 200 NYS2d 409, 416 (1960). With that said, the governmental entity is under a “continuing duty to review its plan in the light of its actual operation.” 7 NY2d at 587, 200 NYS2d at 415.
A study can be sufficient without necessarily being formal, for example, the “sight distance” study described in Ernest v Red Creek Cent. School Dist., 93 NY2d 664, 695 NYS2d 531 (1999), rearg denied 93 NY2d 1042, 697 NYS2d 571 (1999), which was used to determine how close motorists had to be to a school’s driveway to see exiting school buses.
In this matter, the State’s highway planning or design as to the safety of left turns from Church Street onto Route 454 was inadequate. Among other things, no documentation was presented that any reasoned determination thereon was ever made. Claimant’s exhibit 4 describes and plots 17 accidents in a three-year period. There is no conclusion. The study or tabulation does not have a vehicle count, and thus there is no basis for maintaining that such is a high, medium or low number of accidents.
That vehicle counts are necessary in such circumstances has extensive precedential support (see for example, Schuster v McDonald, 263 AD2d 473, 692 NYS2d 721 (2d Dept 1999); Romeo v State of New York, 273 AD2d 934, 709 NYS2d 783 (4th Dept 2000)); is contained in the Uniform Traffic Control Devices regulations, 17 NYCRR §200 et seq, particularly Part 271; and was, as Causin testified, DOT policy:
Every situation is a little bit different. So we look at the volumes, the average daily volumes that drive the road; the speed of the motorists; the configurations; sight distances; we take general field observations and we design a study, we take that into consideration because the higher the volume, percentagewise, you’re going to have more accidents. A low-volume road that only has four cars, you’re not going to see more accidents as a roadway that has one thousand or two thousand vehicles going through the intersection on any given day. So, we take into consideration the configuration, the speed, the volume when we look at the number of accidents.

None of this was done as part of claimant’s exhibit 4, except that its last page does contain a reference to a sight distance (“SD”) of about 1000 feet, which covers vehicles stopped at Church Street looking left. Where there is an adequate plan, a plan with a reasonable basis, the government’s qualified immunity will not be overcome by a battle of competing experts. Affleck v Buckley, 96 NY2d 553, 732 NYS2d 625 (2001). The only two witnesses at trial were two professional engineers, Causin and claimant’s outside expert, Nicholas Bellizzi, but whether their design opinions on the intersection differed was beside the point. Rather, their testimony - - and the exhibits - - made it clear that defendant did not undertake an adequate study.
Causin testified that there were five accidents between an eastbound vehicle and a northbound vehicle (first two pages of cl exh 4: boxes 4, 5, 7, 10 and 17). He indicated that he was not sure whether the five accidents were the same as Mr. Bauer’s; the data is somewhat vague. Claimant’s exhibit 4 terms these five accidents to be “right angle” accidents, as it does for the accident represented by box 14, which involved a westbound vehicle (rather than an eastbound one). To this trier of fact, it is likely that all or most of the five designated “right angle” accidents involved left turns, inasmuch as a vehicle intending to make a right turn could relatively easily get onto the rightmost of the two eastbound lanes of Route 454. The left turning vehicles were in more peril, having to cross two lanes of traffic and then slow down as they approached the median, looking for westbound traffic. Note also that the sixth right-angle accident, represented by box 14, with a westbound car, could only have involved an attempted left turn, unless, for example, the northbound driver misread the intersection and thought Church Street continued northward on the other side of Route 454 (see cl exh 2A).
Five other accidents are described as “left turn” accidents, which occurred between two cars approaching the intersection from opposite directions; in four of the five accidents, a left turn onto Church Street was attempted, and in the other instance, one vehicle tried to execute a U-turn and was struck by another vehicle (id., boxes 3, 6, 9, 11 and 12). In any event, there was no reasoned determination on how to handle potential conflicts in the intersection.
In sum, without an adequate study, Weiss v Fote immunity is unavailable to the State. Defendant failed in its duty to make the intersection safe. It was fairly on notice as to the kind of accident that claimed Bauer’s life, and the 1995-1998 accident history also showed a number of accidents involving left turns from Route 454 onto Church Street, which could have become part of an overall evaluation of the safety of the intersection. A no-left-turn sign would have been inexpensive; two new signs, but with the old message, had been installed as a result of the Levy correspondence. Moreover, in view of the risk of serious collisions, the expenditure of resources necessary to close off the opening in the median which would have prevented left turns from either Church Street or Route 454 would not have been disproportionate. Under either design option, the evidence was clear that there were sufficient alternate routes, such as Broadway, that required, at most, very little extra driving (see the map in claimant’s exhibit 4).
Finally, was the State’s failure to prohibit a left turn the proximate cause of Bauer’s accident? The basic facts of the accident are not at issue. Defendant stated on the record, “. . . it is stipulated that this accident occurred when Mr. Bauer was traveling northbound to make a left turn and was struck by an eastbound vehicle. That is not in dispute.” Nor is there any question that the left turn Mr. Bauer was attempting was permissible. A reasonable person would regard such failure as a substantial factor in causing the accident of December 27, 1999 and Bauer’s resulting death (see PJI 2:70), and defendant is liable in negligence therefor.
This is not to say that the State is solely responsible. The Police Accident Report in evidence includes witness statements (cl exh 1), and 22 photographs taken by the police at the accident scene (cl exhs 2A through 2V). The police took statements from three individuals: Sollender, the driver of the Corolla; Medina; and John Raimo, who was driving westbound and had slowed so that he could make a left turn onto Church Street in order to go shopping at Sun-Vet Mall.
Bauer and Sollender had valid driver’s licenses; their registrations and inspections were current; and the two vehicles had no mechanical problems. Sollender stated that he had just finished work and was driving home in the left lane of Route 454 at about 40 mph. According to Sollender’s statement, as he approached the intersection with Church Street, there were no vehicles in front of him and then, “all of sudden a white car came out from Church St. and crossed the highway in front of him.” (Cl exh 1, second and third unnumbered pages). No evidence was offered that Sollender was exceeding the speed limit or was otherwise at fault.
Mr. Medina said that his grandfather had stopped at the stop sign and waited to make a left turn, and that several cars were making left turns from 454 onto Church Street. When Bauer “saw a chance to go, he pulled out to make the turn but did not see a car heading eastbound.” Mr. Raimo said that “he noticed a car coming out of the intersection of Church Street to his left. This vehicle then went into the path of [a] car heading east.” (Id., third unnumbered page).
Bauer may have looked right, but he did not look left. After stopping at the stop sign, a motorist was required to yield to the traffic on Route 454, which, in my view of the evidence, Mr. Bauer failed to do. Vehicle & Traffic Law §1142(a); Morgan v Hachmann, 9 AD3d 400, 780 NYS2d 33 (2d Dept 2004).
In evaluating the above, Bauer must bear a significant proportion of the fault; to this trier of fact, a two-thirds share.
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I find defendant State of New York to be one-third (33 1/3%) liable for the December 27, 1999 accident that killed George Bauer. A trial on damages will be scheduled by the Court.

May 23, 2006
New York, New York

Judge of the Court of Claims

[2]. More precisely, Route 454 runs from northwest to southeast in this area, and Church Street meets it at an angle.
[3].Note that while the specific request was for a right turning lane, it was made within the broader context of the effect of left-turning motorists. Legislator Levy’s June 29, 1999 letter to the regional director, describing his constituent’s request, contained the following: “Additionally, the left turning lane and the lane for motorists heading north are one lane. Mr. Mankuta feels that a separate right turning lane should be installed . . . as he feels that traffic is frequently backed up in the north bound and left turn lane.” [Def exh A.]