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
|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.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
The Gucciardo Law FirmBy: Brian W. Raum, Esq.
Eliot Spitzer, Attorney
GeneralBy: Denis McElligott, Esq., AAG
May 23, 2006
See also (multicaptioned
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.
purposes, traffic on Route 454, also known as Veterans Highway, shall be
considered as traveling east-west, and on Church Street,
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
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
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.
* * *
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.
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
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.
* * *
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
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.
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
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.
* * *
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.
LET INTERLOCUTORY JUDGMENT BE ENTERED
May 23, 2006
HON. ALAN C. MARIN
Judge of the Court of Claims
. More precisely, Route 454 runs from
northwest to southeast in this area, and Church Street meets it at an
.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.]