New York State Court of Claims

New York State Court of Claims

SALZER v. THE STATE OF NEW YORK, #2006-028-010, Claim No. 97738


Case Information

MARC SALZER, by his Parent and Natural Guardian, THOMAS K. SALZER, and Thomas K. SALZER and MARILYN SALZER, Individually The caption of this action is amended to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
BASSO & ASSOCIATES BY: John J. Basso, Esq.
Defendant's attorney:
BY: Belinda A. Wagner, Esq.
Assistant Attorney General and
Michele M. Walls, Esq.
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 22, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

This Claim for personal injuries and property damage arises from a two-vehicle accident at the intersection of State Routes 9 and 20 (also known as Columbia Turnpike) and the Ames Shopping Plaza in the Town of East Greenbush, Rensselaer County.

It is undisputed that on November 4, 1997 at approximately 6:40 p.m. Claimant[1]
was traveling west on Columbia Turnpike on a motorcycle. He was in the process of making a left turn into the driveway of Stewart's Convenience Store (hereinafter Stewart's) located on the south side of Columbia Turnpike. Claimant was struck by an automobile driven by Gregory Fylak. Mr. Fylak was traveling in the eastbound right lane of Columbia Turnpike, and the accident took place in that lane.
Claimant alleges that the State was negligent in that 1) the site distance for vehicles traveling westbound and making a left turn into Stewart's was inadequate and 2) in allowing westbound traffic on Columbia Turnpike to make a left turn into Stewart's as the roadway was configured on November 4, 1997.

Claimants assert that Marc Salzer's lack of memory of the accident entitles them to a diminished capacity inference regarding the happening of the accident (see Noseworthy v City of New York, 298 NY 76). Under the Noseworthy Doctrine, a Claimant who suffers amnesia as a result of Defendant's acts is not held to as high a degree of proof in establishing the right to recover for injury as is a Claimant who can describe the events (Sawyer v Dreis & Krum Mfg. Co., 67 NY2d 328; Schechter v Klanfer, 28 NY2d 228). In the instant matter, the Court credits Mr. Salzer's loss of memory as true. However, based upon the fact that there were witnesses who testified - Mr. Denue, Ms. Denue-Forquer, Ms. Gonyea and Mrs. Meade - this was not an unwitnessed accident. Therefore, the Noseworthy Doctrine is not applicable (Horne v Metropolitan Tr. Auth., 82 AD2d 909; Abbott v St. Luke's Mem. Hosp. Center, 38 AD2d 176) since direct evidence is available.
The State of New York has an absolute, nondelegable duty to maintain its roadways in a reasonably safe condition and the breach of this duty will result in liability to the State for injuries therefrom (Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). Inherent in this duty is the obligation to construct, design and maintain roadways in a reasonably safe condition taking into account such factors as existing traffic conditions, terrain and pedestrians (Gutelle v City of New York, 55 NY2d 794).
However, the mere occurrence of an accident on a State roadway does not confer liability since this duty does not have the effect of making the State an insurer of the safety of its roadways (
Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Claimants have the burden of establishing that the State was negligent and that such negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020). Additionally, before liability will attach, the State must have 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).
Furthermore, in the field of traffic design engineering, the Defendant is accorded a qualified immunity from liability arising out of a highway planning decision (
see Friedman v State of New York, supra; Weiss v Fote, supra). Under this doctrine of qualified immunity, the Defendant can only be found liable for injuries "arising out of the operation of a duly executed highway safety plan," when there is "proof that the plan either was evolved without adequate study or lacked reasonable basis" (Weiss v Fote, supra, p 589; see Friedman v State of New York, supra; Redcross v State of New York, 241 AD2d 787, lv denied 91 NY2d 801). Claimants contend that this qualified immunity is not available because the State's plan evolved without adequate study.
Claimants' expert engineer, Brian M. O'Rourke, testified that the State was negligent in accepting the 1979 Traffic Study Report regarding the Ames Plaza and prepared by Clough Associates (Exhibit 2). It was Mr. O'Rourke's opinion that the study was inadequate because it did not address the issue of safely entering and exiting the Stewart's driveway. He also asserted that the traffic plan was inadequate for the same reason. Mr. O'Rourke further stated that a vehicle making a left turn into Stewart's at the subject intersection has only 120 to 150 feet of sight distance when there is a vehicle located in the eastbound left lane of Columbia Turnpike. The witness stated that Exhibit 65, Table 4 of the Policy and Standards for Entrances to State Highways, requires that a vehicle making a left turn from a State highway into a commercial driveway have a sight distance of 390 feet. The witness opined that since the minimum sight distance was not met, a hazard existed for vehicles turning left into Stewart's. It is the opinion of this witness that the subject intersection constituted a trap in November, 1997. It is his opinion that the sight distance at the intersection was inadequate and was a substantial factor in causing the accident because the eastbound vehicle did not have time to stop and the westbound claimant did not have time to abort his left turn when he saw the eastbound car.
Mr. O'Rourke also testified that the State's 1992 investigation (Exhibit 22A) of accidents at the subject intersection was inadequate. The accident diagram (Exhibit A) indicates there were 2 accidents involving vehicles making a left into Stewart's from the westbound left lane of Columbia Turnpike being struck by an eastbound vehicle in the three-year period from January 1, 1989 to December 31, 1991. He asserted that the investigation was inadequate because no accident rates were collected and no site distance calculation was made. The witness testified that the State could have prohibited left turns into Stewart's or allowed such a turn only into the eastern driveway (see Exhibits E, F, O & P).
Mr. O'Rourke did admit on cross-examination that if there were no vehicles located in the left lane of eastbound Columbia Turnpike the sight distance for a westbound vehicle at the subject intersection was greater than 500 feet, which exceeds the standards set forth in Exhibit 65. He also admitted that if there is a vehicle in the road blocking a driver's view of approaching traffic, the safest thing for that driver to do is to wait until the obstruction moves.
William E. Logan, a New York State Department of Transportation (hereinafter DOT) employee from June, 1970 to July, 2005 was called as a witness by both parties. At the time of the subject accident in 1997, Mr. Logan was the Regional Traffic Engineer for Region 1, which includes the accident location. Mr. Logan testified that he disagrees with Mr. O'Rourke regarding the adequacy of the 1979 Traffic Study (Exhibit 2). It was Mr. Logan's opinion that the study was adequate and did address the issue of access to Stewart's. He stated that the study included the turning volume for traffic into Stewart's. He also stated that the study was not deficient regarding sight distance. He said that obstructions are fixed objects, not transient objects like motor vehicles. Thus, he disagreed with Mr. O'Rourke's opinion that the sight distance for vehicles traveling westbound on Columbia Turnpike was inadequate. He concluded that the Traffic Study evaluated traffic conditions and made adequate recommendations regarding traffic volumes at the subject intersection.
Mr. Logan further testified that the 1992 field study (Exhibit 22 A) was performed following receipt of a May, 1992 letter regarding this intersection from East Greenbush Police Chief Lavin (see Exhibit 22). He stated that accident reports regarding the subject intersection for the three- year period January 1, 1989 to December 31, 1991 were collected, reviewed and an accident diagram was prepared (see Exhibit A). He testified that a three-year period is a generally accepted period for conducting highway accident analyses in order to identify patterns of accidents and to draw conclusions from those patterns. The three-year period is a DOT standard contained in DOT's Safety Investigation Procedures Manual. He stated that two accidents involving vehicles turning left into Stewart's western driveway in a three-year period is not significant. The study showed there were no safety problems or significant accident pattern at the subject intersection requiring any mitigation for traffic turning left into Stewart's. Based upon this study, no modifications were necessary to the traffic signal and there was no reason to prohibit left turns into Stewart's. He also opined that the study was conducted in accordance with good and accepted engineering practices. The witness stated that sight distance was not reviewed as part of this study because upon evaluation of the data there was no indication of a safety problem indicative of a sight distance obstruction.
"[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, 7 NY2d 579, supra at 588). Merely because Claimants' expert opined that a left-turn prohibition would improve the intersection does not establish that Defendant breached its duty (see Schwartz v New York State Thruway Auth., 61 NY2d 955). In the absence of either: (1) a violation of a regulatory mandate; or (2) a clear abuse of discretion, DOT is entitled to the benefit of qualified immunity (Friedman v State of New York, 67 NY2d 271, supra; Weiss v Fote, supra). The Court finds that Claimants failed to establish by a preponderance of the credible evidence that the State failed to perform an adequate study regarding this intersection.
The evidence adduced at trial from the witnesses present at the accident scene establishes that Claimant was traveling westbound on a motorcycle in the left lane of Columbia Turnpike. Carol G. Meade witnessed the subject accident. Mrs. Meade was the operator of a vehicle traveling east on Columbia Turnpike in the left lane. As she approached the subject intersection the traffic light turned from green to red. She was prepared to make a left turn into Ames Plaza. She stated that her vehicle was the first in line to make the left. She stated that there was a vehicle in the left lane of westbound Columbia Turnpike waiting to take a left into Stewart's; that she saw the motorcycle in the left lane of westbound traffic approach the intersection. She stated that he appeared to slow his vehicle as he approached the intersection, then gunned the engine and turned left as the traffic light turned green. She stated that the vehicle in front of the motorcycle did not move; the motorcycle cut out and attempted to make an arc turn into Stewart's (Mrs. Meade drew a line on Exhibit F to indicate the motorcycle's path). The witness stated that a car in the right lane of eastbound Columbia Turnpike struck the motorcycle in that lane of travel.

Mrs. Meade's testimony was corroborated by the testimony of Debbie Gonyea. Ms. Gonyea testified that she was in her vehicle waiting to exit the Stewart's driveway at the time of the accident. She stated that it did not appear that the motorcycle was slowing down as it approached the intersection, as all the other traffic on Columbia Turnpike was; that the motorcycle just cut across Columbia Turnpike and appeared to be heading right for her vehicle, so she closed her eyes. She then heard the crash but did not see it. Both Mrs. Meade and Ms. Gonyea gave statements to the police at the scene.
Claimants called Lisa Marie Denue-Forquer and her husband, Donald Denue, as witnesses. Mr. Denue was operating a pickup truck in the left lane of eastbound Columbia Turnpike. His wife was in the passenger seat next to him. He was going to make a left turn into Ames Plaza. He stated that as he approached the intersection the traffic light was red and his was the first vehicle at the intersection. He stated that he never saw the motorcycle prior to the accident. A vehicle to his right went past him and he heard a crash. He said that the traffic light over his lane of traffic was still red when the accident occurred.
Ms. Denue-Forquer stated that when the pickup truck was about 100 feet from the subject intersection the traffic light turned from yellow to red. She also stated that the light was red at the time of the accident. She did not see the motorcycle prior to the accident. She saw a car go by her in the right eastbound lane of Columbia Turnpike and heard a crash. Neither Mr. Denue nor Ms. Denue-Forquer gave a statement to the police after the accident.
As the trier of the law and facts, the resolution of the credibility of the respective witnesses is within the province of this Court (Ogle v State of New York, 191 AD2d 878; De Luke v State of New York, 169 AD2d 916; Raynor v State of New York, 98 AD2d 865). The Court finds the testimony of Ms. Meade to be more credible than the testimony of Mr. Denue and Ms. Denue-Forquer regarding which vehicle was first in line to make the left into the Ames Plaza and the color of the traffic light for traffic proceeding eastbound on Columbia Turnpike at the time of the accident.
This was a horrendous accident which resulted in Claimant Marc Salzer suffering horrific injuries. While I am most sympathetic to the harm done to Marc and, as a parent myself, can only imagine the pain and heartache endured by his parents each and every day since the happening of this accident and going forward, I must follow the law and not my heart. Upon this record, the Court concludes that Claimants have failed to establish by a preponderance of the credible evidence that the State was negligent in the design, operation, control or maintenance of the subject intersection. Rather, it is apparent to me that on November 4, 1997, Claimant, a 16- year-old motorcyclist, took an ill-advised, calculated risk as he accelerated his motorcycle as he passed a stopped vehicle in the lane ahead of him while making a left turn into the Stewart's driveway as he attempted to beat oncoming traffic. Most unfortunately, Marc Salzer's poor judgment was the proximate cause of this accident.
This Claim is hereby dismissed. All motions made at trial, upon which the Court reserved decision and have not been ruled on herein, are now denied.
The Chief Clerk is directed to enter judgment accordingly.

February 22, 2006
Albany, New York

Judge of the Court of Claims

[1] As the claims of Thomas and Marilyn Salzer, Marc's parents, are derivative in nature, all references to claimant will be to Marc Salzer, unless otherwise indicated.