New York State Court of Claims

New York State Court of Claims

LEVINE v. THE NEW YORK STATE THRUWAY AUTHORITY, #2006-028-016, Claim No. 102954


Synopsis


The Thruway Authority is liable to a motorist injured when a tractor-trailer involved in a construction project made an unanticipated and unathorized U-turn into the path of his vehicle.

Case Information

UID:
2006-028-016
Claimant(s):
STEPHEN LEVINE and ANN LEVINE
Claimant short name:
LEVINE
Footnote (claimant name) :

Defendant(s):
THE NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102954
Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
SILVERSTEIN & STERN, LLPBY: Clifford J. Stern, Esq. and Adam M. Hurwitz, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: DANIEL J. SWEENEY & ASSOCIATES, PLLCBY: Brian M. Hussey, Esq.
Third-party defendant’s attorney:

Signature date:
October 31, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This action arose on October 14, 1999, at approximately 8:30 p.m., on the New York State Thruway (I-87) just south of the New Paltz/Poughkeepsie exit (Exit 18). Claimant Stephen Levine
[1]
was traveling on the northbound side of the Thruway when a southbound tractor-trailer made a U-turn at a break in the dividing median and pulled in front of Claimant’s vehicle, causing a collision. Trial of this action was bifurcated, and this decision relates only to the issue of liability.
The tractor-trailer, owned by GBE Contracting (hereinafter “GBE”) and driven by a GBE employee, Juarez Berger, was engaged in work on a New York State Thruway Authority (hereinafter “the Authority”) highway rehabilitation project. This project consisted of sandblasting and painting seventeen bridges along the length of the Thruway, and GBE was the prime contractor (I, 151).
[2]

On the night of the accident, work was being performed on the New Paltz Bridge (also referred to as Bridge No. 10), which is located at mile marker 76.01. The location where Berger made the U-turn, adjacent to the accident site, was a break in the Thruway dividing median at mile marker 75.06, slightly less than one mile south of the bridge.
Accident and Accident Scene
At the time of the accident, Claimant was driving his personal automobile, a 1996 Oldsmobile sedan, equipped with antilock brakes. Earlier in the day, he had attended a business meeting at a hotel in White Plains, which included a buffet lunch where he had two or three glasses of wine (V, 85-86). Claimant left the meeting about 2:45 p.m. and subsequently visited customers in Purchase, New York; looked at some possible business sites along the way; and did some shopping in Fishkill, New York.
All that Claimant could recall of the accident was seeing something looming up in front of him and slamming on the brakes (V, 89). His next memory was waking up in the hospital.
[3]
The driver of the tractor-trailer, Berger, testified
[4]
that a State inspector was stationed at the bridge when he was given permission to leave the “yard.” He was told to drive to the bridge from the yard by making a U-turn about a mile and a half to the south
[5]
(II, 11, 32-33). The area around the median break was very dark (II, 9).
Berger described the tractor-trailer rig as being between 45 and 48 feet in length and weighing in excess of 20 tons. At the time of the accident, it was carrying a full sandblasting pot, which made it unusually heavy (II, 14). The tractor had manual transmission, carried no communication equipment, and had a yellow rotating light on the top of the tractor. He could not recall if there were any reflectors on the tractor, the trailer, or any of the equipment it carried (II, 9-10). As he left the yard, Berger stated, he was driving very slowly because of the extra weight on the trailer. He estimated that his speed when he first drove from the yard into the southbound portion of the Thruway was 12 to 15 miles per hour and that he may have accelerated to 35 miles per hour once he got going (II, 14).
[6]

He started to make the U-turn by turning from the southbound lanes into the break in the median and coming to a full stop perpendicular to the Thruway’s travel lanes. He then looked to the south for any oncoming traffic. Berger testified that the only vehicle he saw traveling northbound was another large tractor-trailer about half a mile to a mile away. The driver of that truck flashed its lights, which Berger interpreted as a sign “to [show everything] was clear”(II, 18). Berger said that he never saw Claimant’s vehicle before it collided with the tractor-trailer (II, 22).
There was conflicting testimony about where the vehicles came to rest on the northbound lanes. Berger said that his vehicle wound up in the left lane (the passing lane), with the trailer angled onto the left shoulder (II, 21-22), and he indicated in an accident report that he completed, read, and signed (Exhibit 20) that the “entire tractor-trailer was in the left-hand lane of I-87 [northbound].” Shortly after the accident, he stated, the large tractor-trailer that had previously flashed its lights went past him, driving in the right-hand lane of the highway. A very different description of the position of the vehicles following the crash was given by two witnesses who arrived at the scene shortly afterwards, and by the State Police officer who filled out the accident report.
Paul and Gloria Hamilton, who arrived at the accident scene behind several other vehicles, testified that their vehicle, and the others, all moved to the left (passing) lane to get around Claimant’s automobile. When she realized that there was still someone in the driver’s seat of the automobile, Gloria Hamilton told her husband to pull over so they could help. She is an aide at the Ulster County Department of Corrections and her husband has EMT training. They pulled their van off to the right, north of Claimant’s vehicle (I, 36).
She estimated that they reached the accident about five minutes before any police or other officials arrived, and thought that they stayed at the scene for about an hour and a half until the ambulance took Claimant away. Both Hamiltons testified that the passenger car, with Claimant still inside, was in the right lane of the highway, with its front angled toward the median so that the left front wheel protruded slightly into the left lane. The large tractor-trailer, they said, was off on the right-hand shoulder, north of the passenger car (I, 18, 37; III, 120-121). The distance from the Thruway break (U-turn area) to Claimant’s vehicle was estimated to be 10 feet, with the tractor-trailer approximately 20 to 25 feet from the break. Brian Tormey, the New York State Police trooper who was called to the scene and arrived after the Hamiltons, also testified that he observed the passenger car in the right-hand northbound lane, extending slightly into the left lane, with the tractor-trailer up ahead on the right shoulder (I, 91). This is consistent with his depiction of the vehicle location on the diagram that he drew of the scene (Exhibit 16A).
With respect to the vehicles themselves, Mrs. Hamilton testified that the passenger vehicle was as depicted in the photographs placed in evidence as Exhibits 6, 7, and 8. She added that although it couldn’t be seen in the photographs, the corner of the hood of the passenger vehicle had gone through its windshield on the passenger side. When she and her husband, using a flashlight, walked ahead to look at the tractor-trailer, they observed that its engine was still running, but there were no lights flashing. They were unable to tell if there were any markings or company names on the tractor or the trailer because it was dark and the rig was very dirty. Mrs. Hamilton described the vehicle as “a very old truck” and said that it had fresh scratches on the right side of the trailer, close to the rear wheel (I, 27, 68). Her husband agreed that the vehicle was very dark in color. He also said that there was no reflector tape on the truck, trailer or cargo and there were no lights of any kind except the normal brake lights located down near the axle (III, 155). Berger testified that when he got out of the truck immediately after the accident, its flashing yellow light was on, but he could not recall whether or when he might have turned it off (II, 22-23). Trooper Tormey observed what he described as a “big dent” on the right rear portion of the trailer (I, 99, 124). He described Claimant’s vehicle as having sustained “severe, front-end damage” (I, 93).
All of the witnesses who spoke to him confirmed that Claimant’s seat belt was engaged. Mrs. Hamilton reported that when they arrived at the car, Claimant was conscious and moving but unable to speak. Eventually, however, he was able to give Mr. Hamilton his telephone number. Trooper Tormey testified that, while they were at the scene, Claimant told him “the truck pulled out in front of me”.
[7]
After being extracted from his vehicle by the “jaws of life,” Claimant was taken to St. Francis Hospital in Poughkeepsie.
At the hospital, Claimant acknowledged to Trooper Tormey that he had had a couple of drinks earlier in the day and voluntarily consented to taking a breathalyzer test (I, 101-102). Tormey was satisfied that the alcohol-sensor test was properly administered and saw no reason to perform a retest (I, 100-102, 107-109). The result of that test showed a blood alcohol level of .02%.
[8]
In contrast, the toxicology report on blood drawn at approximately 10:00 p.m., in preparation for emergency surgery, showed a blood alcohol level of .08%.
[9]
Mrs. Hamilton stated that she did not smell any alcohol on Claimant’s breath when she spoke with him at the scene, but Mr. Hamilton testified that he had smelled some.
Regarding the portion of the highway leading to the accident site (i.e., south of the site), Claimant testified that, to the best of his memory, as he drove northward before the accident, he did not see any signs, lights or anything else that would have indicated to him a construction area was ahead (V, 90-91). When asked, Berger stated that when he was stopped in the median and looking toward the south, he did not see any signs or other structures indicating that a portion of the northbound lane was closed or was going to be closed. He believed, however, that there was a sign in that direction that he was simply unable to see it because he was “behind” it (II, 24-26).
Both Gloria and Paul Hamilton testified that, in their approach to the accident site, they saw no signs or other indications that there was construction ahead or that a construction vehicle might be making a U-turn ahead. Specifically, Mr. Hamilton stated, there were no lights, cones or signs directing a reduction of speed. Roughly 40 minutes after the accident, Mrs. Hamilton saw another construction vehicle, with a flashing yellow light on top, come along on the southbound lanes, make a U-turn just below the accident site, and proceed north setting out cones onto the left shoulder. Trooper Tormey also could not recall seeing any construction signs, lights, cones or advance signs of a U-turn as he drove northward toward the accident site (I, 109-110), although he did observe cones closing off the right lane at a location north of the accident scene (I, 126).
The only testimony indicating that lights and signs were in place in the northbound lanes south of the accident site came from Charles Stilwell, an employee of CorPro, the company that was employed as Resident Engineer for the project. It was Stilwell’s job, among other things, to inspect safety features related to the construction (see discussion of Maintenance and Protection of Traffic [MPT], below) and he stated that going north toward the accident scene, he recalled a flashing arrow board, cones being used to close the left-hand lane, barrels with lights on top, and a “Left Lane Closed” sign with a flashing light above it(V, 182, 190-191). In a diagram that Stilwell made of the accident scene, however, he included only a speed sign and a “Left Lane Closed” sign (V, 181-183; Exhibit O).
Construction Project & MPT
Several employees of both the Thruway Authority and CorPro had specific responsibilities for seeing that the work was carried out according to contract and ensuring the safety of both workers and motorists. The Thruway official with chief responsibility for assuring that all traffic safety measures were implemented was the Engineer-in-Charge, Ken Connelly.
1[0]
Among other duties, his job required him to be present whenever there was work that might interfere with traffic (II, 134). Robert Romeo, an Thruway engineer, served as Connelly’s assistant on this project and frequently made site visits with him, making sure that the work conformed to contract specifications and to applicable rules and regulations. Connelly’s supervisor was Charles Johnson, the Authority’s Construction Supervisor for this project, and the person to whom Johnson reported was Nicholas Cavaluzzi, the Construction Manager. It was Cavaluzzi’s principal task to administer the contract and make certain that there was compliance with all of its terms. In addition to Johnson, Cavaluzzi also oversaw the work of John Perlaki, a CorPro employee who was the Resident Engineer for the project. Charles Stilwell,
1[1]
mentioned above, was the CorPro employee whose primary job was to inspect, among other things, the project’s MPT plan, which GBE was responsible for setting up.
MPT plans are derived from the Thruway Authority’s Manual of Uniform Traffic Control Devices (MUTCD). According to Johnson, the purpose of the MPT is to prevent accidents by making motorists aware of both known and hidden dangers when they drive through a construction site (II, 83-85). According to Robert Romeo, it was the responsibility of Thruway officials, specifically the Engineer-in-Charge (Connelly), to inspect each MPT layout and make any needed adjustment. Particular emphasis was placed, he said, on the first time an MPT procedure was put into place (“marked out”) at a given site, because once that pattern was in place and approved, the contractors could simply replicate it each night (IV, 213). In late June 1999, Cavaluzzi had prepared a memorandum entitled “100 Days of Summer,” outlining procedures to be used at construction sites on this project. The MPT called for a lighted arrow board to be in place and operating, and all other parts requirements to be in effect, before any work commenced (I, 196 [Perlaki]; III, 225, 252-253 [Cavaluzzi]).
Specific MPT diagrams, or “plates,” taken from the Authority’s Traffic Safety Manual, governed the configuration and the signs and devices that were to be used in different situations. One of these plates (Exhibit 14 [Plate No. 2]) established what was to be done when there was going to be a left-lane closure, such as that planned for the northbound portion of the Thruway on the night of Claimant’s accident. A series of warning signs, including one warning of road work a mile ahead and two warnings of a left-lane closure at different distances (1/2 mile, 1000 feet) were required. An area south of the bridge that was being worked upon was designated for U-turns, but this MPT did not incorporate that feature, and thus did not require that advance signs be posted to notify motorists that the crossover area would be used for such purposes (I, 192).
Whenever a traffic lane was to be closed, the Authority was to be notified, typically by the Resident Engineer. Such notification would include information about the closure (beginning time, duration, mile markers affected) (I, 190) that would then be recorded in the Authority’s Dispatch Logs (III, 35-38). This notification was necessary so that the Authority could inform the State Police and the traveling public of the closure. In addition, with each lane closure, the Thruway’s Engineer-in-Charge was expected to be on the scene to assure that there was compliance with all MPT requirements. If there was lack of compliance, penalties could include a stop work order and/or a fine (III, 94-95).
1[2]

On the project in question, GBE was responsible for actually putting out (i.e., setting up) the MPT. October 14, when Claimant’s accident occurred, was the fifth night that work was performed on the New Paltz Bridge, but it was the first night that there was going to be a northbound left lane closure at that location (IV, 218). The Authority’s Radio Log for the night of Claimant’s accident (Exhibit 25) does not contain any information about a lane closure at the site, although it does contain a notation about the personal injury accident at mile marker 75.6. On the other hand, the Inspector’s Daily Report (Exhibit 15), which was maintained by Charles Stilwell, references a left-lane closure from 7:30 p.m. to 12:00 midnight.
Stilwell testified that on the night of the accident, as on all other nights, he did everything “by the book.” This included checking GBE’s trucks to make sure that their lights were in order and turned on, and verifying that all required signs, cones and arrow boards were working and correctly positioned (V, 151, 154-155). That night Stilwell had arrived at work at 6:30 p.m. He testified that he accompanied the GBE crew that set up the lights, signs, arrow boards and other features of the MPT. According to his records, the northbound passing lane was closed at 7:30 p.m. and he learned of the accident approximately one hour later (V, 155-156). He was with Connelly at the work site when they heard about the accident, and they travelled together to the site (V, 176). Later, Stilwell went to his office and prepared an accident report, which included a diagram that showed only a few of the signs and other features that he later testified had been in place south of the accident site (V, 165-166; Exhibit O).
U-Turn Authorization
The project’s contract specifications (Exhibit 10: NYSTA Contract No.: TANY 98-11-BP) contained the following provision regarding U-Turns:
U-TURNS: U-Turns are prohibited on the Thruway with the following exception. Drivers with non-revenue pass plates and possessing a U-Turn Authorization permit may U-turn construction vehicles and equipment at official crossovers listed in this Proposal. Vehicle operation shall be in accordance with the conditions of the individual permit Authorization.
(Exhibit 10, p 56.)
1[3]
Condition No. 8 on the U-Turn Authorization Letter (Exhibit 13) stated, without equivocation, that “U-turns will not be permitted by a tractor trailer.” The median break at which Berger made the U-turn immediately before the accident was one of the “official crossovers” listed in the contract, which provided that at any “official crossover” used by authorized vehicles, two advance warning signs, both black on fluorescent orange, had to be installed in each direction on both shoulder and mall side of the roadway, 1000 feet ahead of the U-turn location (Exhibit 10, p 56, § E [2]). This requirement was separate from and in addition to the MPT.
The GBE vehicle involved in this accident possessed a U-turn permit that had been issued sometime around November 1998 (I, 165-175, 236). It had been physically issued by John Perlaki, the CorPro Resident Engineer, in the presence of Ken Connelly, the Authority’s Engineer-in-Charge (I, 166). Berger, the driver, testified that the only thing he had been told about U-turns was that the tractor-trailer he was driving had a permit to make them (II, 35). According to all witnesses in a position to know, however, U-turn authorizations were never supposed to be issued to full-sized tractor-trailers (18-wheelers) (I, 164-165, 234-236 [Perlaki]; II, 129 [Johnson]; III, 215 [Cavaluzzi]). U-turn permits were, according to Perlaki, sometimes issued to tractors because when those vehicles did not have a trailer attached – when the tractors “drove by themselves” – they were short enough to safely make a U-turn (I, 166). Permits issued to tractors still carried the provision prohibiting U-turns by tractor-trailers. The longer vehicles, such as 18-wheelers had to use either a wider “lay down” area (I, 181-182) or the normal off and on ramps, like normal traffic did, to reverse direction (I, 180).
During the duration of the project, the Authority required that weekly progress meetings be held. These meetings, which were attended by the Authority, CorPro, and other contractors such as GBE, would be a review of MPT issues, vehicle safety, lane closures, any infractions by contractors and other matters (III, 65, 70-71; I, 204). Perlaki, who ran the progress meetings, testified that he could recall no complaints about GBE setting up the MPT improperly until the night of Claimant’s accident, nor could he recall any complaints about large tractor-trailers making inappropriate U-turns (I, 235, 243). The minutes of these meetings were supposed to be submitted to the Authority (III, 73, 75, 78). Despite this requirement, minutes of only one weekly progress meeting prior to October 14, 1999 were provided by Defendant’s counsel during discovery. Accordingly, the Court granted Claimants’ request for an adverse inference to be taken, to the effect that the records, if produced, would have provided additional evidence that the Authority was on notice that tractor-trailers were making U-turns prior to Claimant’s accident (III, 85).
Expert Testimony
Nicholas Bellizzi, a traffic and highway engineer, testified as Claimant’s expert. He stated that according to his reading of the Authority’s project proposal (Exhibit 10, p 56, § E[3]), U-turns were prohibited from 1.5 miles before to 1 mile after any work zone, if the work zone involved a lane closure on a two-lane roadway. Consequently, according to him, it would have been illegal for any construction vehicle, even one with a valid permit, to make a U-turn at the location where the Berger vehicle turned on the night in question, because it was within 1.5 miles before a work zone that included a lane closure on the northbound side of the Thruway.
1[4]

Bellizzi also stated that, as noted above, U-turns by tractor-trailers were expressly prohibited by the language on the permit that was issued to the Berger vehicle. Issuance of a permit to this vehicle, therefore, was purposeless, misleading, and encouraged the improper use of U-turns (IV, 135-143). The dangers associated with tractor-trailers making U-turns are widely recognized, including by AASHTO (American Association of State Highway and Transportation Officials). According to Bellizzi, these vehicles are able to make such turns only slowly and then must go over into the driving lane because of their lengths. This procedure is even more dangerous at night and should not be attempted unless the vehicle has a significant number of reflectors on it (IV, 131-133).
1[5]
In areas where U-turns were permitted, the project contract required advance warning signs on both the shoulder and mall sides of the roadway 1,000 feet before the U-turn location (IV, 124-129), and such signs should have been in place even though the MPT schematic plate used on the night of the accident did not require them (IV, 119, 122-123). There was no need for the MPT to require such a warning because the contract already contained its own requirement.
On the night of the accident, the applicable MPT would have called for an extended series of reflective signs, with flags on top for greater emphasis, leading toward flashing amber lights and other signs, and eventually to cones used to move traffic for the lane closure. At night, in fact, barrels with flashing lights atop them should be used instead of cones because they have greater visibility than cones (IV, 114-115). The contract also specified that there were supposed to be flashing arrow boards, visible at least one mile away, for lane closures. In Bellizzi’s opinion, failure to have these warnings in place created a situation dangerous to motorists.
COLLATERAL ESTOPPEL
In a Supreme Court action commenced by Claimant against GBE, summary judgment in favor of the defendant was granted, and that ruling affirmed, on the ground that Claimant (plaintiff in that action) “failed to raise a triable issue of fact as to whether the truck ‘was being operated in reckless disregard of others resulting in a risk so great as to make it highly probable that harm would follow’ ” (Levine v GBE Contr. Corp., 2 AD3d 596 [2d Dept 2003]). The reckless disregard standard was applied to the actions of GBE because its tractor-trailer, driven by Berger, was “actually engaged in work on a highway” and thus entitled to the conditional immunity afforded by Vehicle and Traffic Law § 1103(b) (see Riley v County of Broome, 95 NY2d 455, 461 [2000]).
1[6]

Prior to trial of the instant action, this Court denied Defendant’s motion for summary judgment based on the argument that the higher, “reckless disregard” standard of care was applicable. While the decision of the Second Department established the limit of the duty owed by GBE to Claimant, it did not address any separate and distinctive duties that may have been owed by the Authority to Claimant (Levine v State of New York and the New York State Thruway Auth., unpublished decision, Claim No. 102954, Motion No. M-68621 [Ct Cl July 6, 2004], Sise, P.J.).
Whether a duty existed in this claim and whether that duty extends to the Thruway Authority and this particular Claimant cannot be resolved on summary judgment. In this Court’s view, the moving papers make clear that there are unresolved questions such as, inter alia, whether and to what extent the U-turn permit issued to and utilized by the GBE tractor trailer – notwithstanding the permit’s apparent proscription against tractor trailers making such turns . . . – may have played a role in Claimant’s accident.
(Id.) Defendant’s current argument, presented in its post-trial brief, that the decision in the Supreme Court proceeding precludes recovery in this action by application of the doctrine of collateral estoppel fails for the same reason. The issue in the Supreme Court action was whether the actions and movements of the GBE tractor-trailer were entitled to the immunity conferred by V&TL 1103. The issue presented here is whether any other act on the part of the Thruway Authority or an authorized agent breached a duty owed to Claimant (i.e., was negligent) and, if so, whether that negligence caused Claimant’s injuries.
APPLICABLE LAW
As a governmental entity, the New York State Thruway Authority, has a nondelegable duty to maintain its roads in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271, 283 [1986]; Carroll v State of New York, 157 AD2d 697, 698 [2d Dept 1990]). It is not, however, an insurer of the safety of its roadways, and the mere happening of an accident does not render it liable (Tomassi v Town of Union, 46 NY2d 91 [1978]) or allow for the inference of negligence (Koester v State of New York, 90 AD2d 357 [1982]). Liability will attach only where it is established that planning decisions were made without due care or are inherently unreasonable (Weiss v Fote, 7 NY2d 579 [1960]; Schuls v State of New York, 92 AD2d 721 [4th Dept 1983]); where the owner of the roadway created the dangerous condition (Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]; Valentino v State of New York, 62 AD2d 1086 [3d Dept 1978]); or where it had actual or constructive notice of a dangerous condition (Harris v Village of East Hills, 41 NY2d 446 [1977]; Rinaldi v State of New York, 49 AD2d 361 [3d Dept 1975]). In those situations, failure to timely correct or to warn motorists of known hazards may constitute a breach of the duty owed to motorists. Because the duty is nondelegable, acts and omissions on the part of contractors performing work for the Authority are imputed to the owner (Boylhart v DiMarco & Reimann, Inc., 270 N.Y. 217 [1936]; Rothstein v State of New York, 284 AD2d 130 [1st Dept 2001]).
Defendant maintains that in the instant case, there is no evidence suggesting the Authority had constructive or actual notice that tractor-trailers involved in the rehabilitation project were making U-turns at the location of this accident, the median break approximately one mile south of the New Paltz Bridge. That criteria is unnecessarily narrow. It would be sufficient to establish that the Authority had notice that tractor-trailer rigs were improperly making U-turns at designated crossovers in connection with the rehabilitation project. While liability cannot be based on the actual operation of the tractor-trailer on the night in question, it may, and Claimants argue should, be based on other acts or omissions: allowing tractor-trailers to make U-turns; allowing any U-turns to be made at the time and location in question; failure to erect signs warning of an official crossover where U-turns might be made; failure to equip the tractor-trailer in a proper manner; and/or failure to erect necessary signs and warning required for a lane closure.
DISCUSSION
There were two critical factual disputes raised by the testimony of various witnesses, which must be resolved before the actions, or omissions, of the parties can be assessed. With respect to the location of the vehicles after the collision, the Court finds that Claimant’s automobile was, for the most part, in the right-hand, driving lane of the northbound portion of the Thruway and that the tractor-trailer was pulled off on the shoulder of that right-hand, driving lane. The testimony of Juarez Berger must be discounted to this extent, because there were too many other, credible witnesses who testified that the vehicles were in or beside the right lane, not the left-hand, passing lane. In addition, if it had been possible for the tractor-trailer to make such a sharp turn so that it was immediately in the left lane, it is probable that there would have been no accident at all: the tractor-trailer would not have passed over into the driving lane to collide with Claimant’s car. The Court does not find Berger to lack credibility in any other respect, and thus accepts the balance of his testimony. It is possible, in fact, that a language problem led to some confusion as to directions and descriptions of the two lanes.
On the other hand, in order to determine whether there were signs, lights, and other warnings given to northbound motorists as they approached the accident site, it is necessary to discredit either the testimony of Charles Stilwell or the testimony of the Hamiltons and Trooper Tormey. Claimant’s failure to recall any warnings could possibly be attributed to the amnesia that prevents recall of the events immediately afterward, but there is no such reason to dismiss the unequivocal testimony of Gloria and Paul Hamilton or of Trooper Tormey. The officer’s testimony is particularly persuasive since he is a trained observer and passed along that portion of the highway knowing that he was going to the scene of an accident and was logically alert to anything that might have played a role in its happening. In contrast, because of the responsibilities of his job, Stilwell’s testimony could be considered self-serving, or at least self-protective. In addition, having had the opportunity to observe his demeanor and the spontaneity of the account he gave, the Court must doubt the accuracy of several parts of his testimony. Other than Stilwell’s testimony, there was nothing to suggest that a northbound driver would have seen any signs of construction ahead or warnings that construction vehicles might be making U-turns at the median break.
1[7]
Defense counsel’s failure to ask the other officials who traveled to the site with Stilwell about what signs or warnings they saw is noteworthy. In contrast, the Hamiltons and Trooper Tormey had no reason to shape their testimony in any particular direction, and they were unequivocal in stating that they saw no such warnings.
If there were no signs, lights or other warnings to be seen by a northbound driver on that part of the New York State Thruway on the night in question, then the Authority must be held liable for Claimant’s accident. The contract expressly required that advance warning signs be placed on both the shoulder and mall sides of the roadway, 1000 feet ahead of any “authorized crossover” where construction vehicles would be making U-turns. If those warnings are not in place, motorists have no reason to be on the alert for any vehicles, other than easily recognized emergency vehicles, to be turning into their path from the median.
1[8]
In the situation presented here, Claimant was injured by just the sort of danger that the requisite warning signs were designed to prevent. Even if the vehicle making the U-turn had been a properly authorized one, shorter and able to make the turn more safely, it could reasonably be argued that failure to post the signs was negligence and a proximate cause of injury to a motorist whose vehicle was struck by someone making the U-turn. In the Court’s view, this alone is sufficient for the Defendant to be held liable for this accident.
There are even more compelling reasons for such a holding, however. The negligence of such failure to warn is far greater, and the causal connection inescapable, when one considers that in this instance the vehicle making the U-turn was one that was both unauthorized and unable to carry out the maneuver safely, that the vehicle was by all accounts poorly lighted and had few, if any, reflectors, and that the U-turn was being made at night. The Thruway can reasonably be charged with knowledge of all of these facts. The construction work was intended to be carried out at night, and the condition of the tractor-trailer was something of which those in charge of the construction had actual knowledge. It is also reasonable to conclude that only a tractor (not attached to a trailer) was authorized to make a U-turn at the authorized location and that unauthorized U-turns by tractor-trailer rigs were being made. In addition to the negative inference drawn from the missing minutes, there is no reason to doubt Berger’s testimony that he was, in fact, directed to make the U-turn in the vehicle he was driving at the location where he turned.
As a result of Claimant’s amnesia and Berger’s failure to see Claimant’s vehicle prior to the crash, there are no established facts from which conclusions can be drawn about whether Claimant’s own actions were also a proximate cause of this accident. There is only negative proof: the absence of anything to indicate that he was traveling at an unreasonable speed or in an erratic manner. A very similar situation was presented in a case that reached the Court of Appeals, Wartels v County Asphalt (29 NY2d 372 [1972]). There, a motorist was injured when his car collided with a flatbed trailer that was positioned, by a contractor, across both westbound lanes of the New York State Thruway. As in the instant claim, there were “no warning signs, cones or flares . . . placed as a warning to oncoming traffic of the construction work in progress” (id. at 377), and thus negligence on the part of the defendant contractor was virtually conceded, leaving the issue of contributory negligence as the only issue in dispute. The injured motorist, like Claimant, suffered from amnesia caused by the accident and thus was entitled to recover “upon a lower degree of proof than that required of a plaintiff competent to testify to the facts, that is, to succeed upon sustaining ‘a lighter burden of persuasion’ ” (id. at 380, quoting Schechter v Klanfer, 28 NY2d 228, 231, and citing Noseworthy v City of New York, 298 NY 76, supra).
In that situation, the Court of Appeals held that “the highly dangerous condition created by negligence in an excessive degree and posing a sudden, not to be anticipated peril, reduced plaintiff's burden of proof close to the vanishing point” (id. at 380).
It is sometimes helpful to recall fundamental doctrine, however trite the reiteration, and in this case the evaluation of the claim of contributory negligence quite naturally evokes the Palsgraf homily: “The risk reasonably to be perceived defines the duty to be obeyed”. ([Palsgraf v Long Island R.R. Co.,] 248 N.Y. 339, 344.) The comparison of the stopped flatbed to a massive barricade suddenly lowered in plaintiff's path seems not unfair. Plaintiff's contributory negligence in such a case must be measured by his opportunity to react, and there was little or no possibility of defensive action or avoidance, or so the jury could have found.
(Id.) The accident in Wartels occurred in daylight. Consequently, there is even more reason to conclude that Claimant, who was driving at night on an unlighted portion of the highway, was deprived of any meaningful opportunity to react and avoid a collision with the unexpected intrusion of a massive, poorly-lighted tractor-trailer as it moved into the path of his vehicle. It is perhaps particularly telling that the one established, physical fact about the accident was, as in Wartels, “that the collision occurred in the right, outside lane, where [the plaintiff/claimant] was supposed to be” (id. at 381).
Consequently, the Court holds that the negligence of Defendant New York State Thruway Authority was the sole cause of the collision and therefore that the Authority is liable for Claimant’s resultant injuries. The Chief Clerk is directed to enter an interlocutory judgment to
this effect, and the matter will be set down for trial on the issue of damages as soon as practicable.
Let judgment be entered accordingly.

October 31, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1]. The claim of Ann Levine is derivative in nature and, unless otherwise indicated or required by context, the term “Claimant” shall refer to Stephen Levine.
[2]. The trial transcript is contained in five volumes, each representing one day of testimony. Citations to the transcript will consist of the volume number followed by the page number.
[3]. Dr. Jason W. Brown, a neurologist and one of Claimant’s treating physicians, testified that Claimant sustained a traumatic brain injury as a result of the accident which, among other things, resulted in both retrograde and antrograde amnesia with respect to the period immediately before and after the accident (V, 50-51). This diagnosis is not affected by the fact that Claimant was apparently able to speak to others at the accident scene (V, 76). The Court accepts that Claimant’s amnesia regarding the accident itself is genuine and that it was caused by the accident. Consequently, he is entitled to the benefit of the Noseworthy doctrine (Noseworthy v City of New York, 298 NY 76 [1948]) with respect to the events immediately before and after the moment of collision.
[4]. Berger’s testimony was given at a deposition held in another State and was read into the record from the transcript (Court Exhibit 1).
[5]. In fact, as noted above, the break in the median which he used to make the U-turn was slightly less than a mile south of the bridge.
[6]. Berger also testified that because he was going so slow, there was a truck behind him with a flashing light (II, 12). No other witness reported seeing a second vehicle, and Berger himself had no idea where it went after he began making the U-turn.
[7]. This statement was not included in the Trooper’s accident report, nor did he refer to it in his earlier deposition testimony.
[8]. Pursuant to the version of Vehicle and Traffic Law (V&TL) § 1192(2) that was in effect in October 1999, a person was guilty of driving under the influence of alcohol if his or her blood alcohol level was10% or more (V&TL § 1192[2], prior to amendment by L.2002, c. 3, § 1).
[9]. Although Dr. Louis Roh, a forensic pathologist, testified that this result was shown on Claimant’s records from St. Francis Hospital and suggested that the reading would have been even higher if Claimant had not received an intravenous infusion at the accident scene, there was no reasonable explanation for the difference between this result and the .02% reading obtained by Trooper Tormey. It was noted that there was a considerable lapse of time between the drawing of blood and its being tested, possibly raising questions as to the chain of custody of the blood sample or contamination (V, 20-32). Consequently, particularly in light of the quite different breathalyzer reading obtained by Trooper Tormey and the absence of any testimony suggesting that Claimant exhibited signs of intoxication, the Court declines to accept the hospital test result as evidence suggesting that Claimant was intoxicated (see Rodriguez v Triborough Bridge and Tunnel Auth., 276 AD2d 769 [2d Dept 2000]).
1[0]. Mr. Connelly passed away prior to trial of this action.
[1]1. Stilwell is William Perlaki’s nephew, but he said that that fact played no part in his being hired four or five months before the accident by CorPro (V, 184-186).
1[2]. There was unrebutted testimony that on at least five occasions, GBE had failed to comply with MPT procedures. On one occasion, the company was put “on probation” and scrutinized more closely following an accident related to a northbound lane closure (I, 200-201). On another, liquidated damages were assessed against GBE because they did not remove lane closures as required (III, 94-95).
1[3]. Construction vehicles other than those possessing a U-turn authorization permit received a general permit authorization that, among other things, absolutely prohibited them from making U-turns anywhere on the Thruway.
1[4]. The contract (Exhibit 10, p 56, §E[3]) prohibits U-turns from being made between 1½ miles before and 1 mile after a work zone that includes closure of a driving lane of a two lane roadway. U-turns may be allowed, however, where it was the left (passing) lane that was being closed.
1[5]. According to Bellizzi, the Federal motor safety standards would require a tractor-trailer such as the GBE vehicle to have reflective tape on the right and left sides and on the back above the taillights, in addition to amber marker lamps on each side and a rotating amber light on the top of the cab (IV, 143-149).
1[6]. While the vast majority of situations in which this immunity has been applied involve accidents caused by government-owned vehicles – such as Department of Transportation trucks, snowplows, or municipal mowing machines – it is possible for a privately-owned vehicle to qualify for the immunity as well (see e.g. Green v Covington, 299 AD2d 636 [3d Dept 2002] [telephone service provider’s areal truck]). V&TL §1103 provides that the rules of the road do not apply to “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” (subd. [b]), nor does stopping, standing and parking apply to “hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway” (subd [b]). Hazard vehicles, defined by V&TL §117-a, are “[e]very vehicle owned and operated or leased by a utility, whether public or private, used in the construction, maintenance and repair of its facilities, every vehicle specially equipped or designed for the towing or pushing of disabled vehicles, every vehicle engaged in highway maintenance, or in ice and snow removal where such operation involves the use of a public highway and vehicles driven by rural letter carriers while in the performance of their official duties” (emphasis supplied).
1[7]. Berger’s “belief” that there were signs further south from the place at which he made the U-turn must be discounted because he was simply in no position to see whether they were present.
1[8]. Pursuant to the Rules and Regulations for the New York State Thruway Authority, U-turns and “[d]riving a vehicle on or across, or parking, standing or stopping a vehicle on the median strip” is prohibited with the following exceptions: 1) police, maintenance or official Thruway Authority vehicles; (2) emergency service vehicles operated by oil companies under contract with the Thruway Authority; (3) towing trucks and emergency service vehicles operated by garages authorized by the Thruway Authority; (4) certified tandem maintenance vehicles provided in the provisions governing tandem trailer operations; (5) fire vehicles or ambulances when operated in the performance of their official duties; (6) independent contractors' and consultants' vehicles when issued a U-turn authorization letter from the Thruway Authority (21 NYCRR §103.4).