This claim arises from the alleged wrongful death of Dr. Robert Rubino,
(hereinafter “decedent”), and was filed by Debra Guzov,
individually, and as Administrator of the Estate of Robert Rubino, deceased,
(hereinafter “claimant”) as the result of an accident on August 5,
2001. On January 18 and 20, 2006, a bifurcated trial was held on the issue of
Decedent was involved in a one car motor vehicle accident while
traveling westbound on Montauk Highway (State Highway Route 27A) in front of 715
Montauk Highway, Bay Shore, New York. For an unknown reason, decedent’s
vehicle left the roadway and came into contact with large decorative rocks which
had been placed adjacent and parallel to Montauk Highway at that address. It
was stipulated at trial that the rocks were located in the State’s
right-of-way. According to claimant, the defendant, the State of New York
(hereinafter “State”), was negligent in its ownership, operation,
and maintenance of the accident site. The action is for the wrongful death of
decedent. The police accident report (claimant’s Exhibit 15) indicates
that the speed limit on that portion of Montauk Highway is 50 m.p.h. However,
it is clear from the evidence that this entry in the report is in error and the
speed limit for westbound
traffic on Montauk Highway is 40 m.p.h. and
that eastbound traffic and westbound traffic at this location each have a
different designated speed limit. Directly across the street from the accident
location, facing traffic heading eastbound, is a speed limit sign indicating 50
m.p.h. as the speed limit (defendant’s Exhibit K). However, at the
intersection just east of the accident site, there is a 40 m.p.h. speed limit
sign for westbound traffic (defendant’s Exhibits A and L). The Court
finds therefore that the speed limit westbound at the accident site is 40 m.p.h.
Joyce Stracuzza testified on behalf of claimant. Stracuzza was the owner
of the property at the accident location for approximately twenty years until
October, 2000. In 1985, Stracuzza placed the rocks in the location where they
remained on the date of decedent’s accident. She was under the impression
that the property was hers and placed the rocks there for aesthetic purposes (T.
During the time the witness owned the property, she maintained the area. After
putting the rocks there, the witness recalls two accidents in front of her
property. Neither accident caused significant personal injury and the witness
was unable to give dates for the accidents.
Steve Coulon, an accident
reconstructionist, testified next for claimant. He identified photo logs from
1986 which showed the rocks in front of 715 Montauk Highway (claimant’s
Exhibits 14A - 14 H). In comparing Exhibit 14 to the police photographs of the
accident (claimant’s Exhibit 16), the witness described the difference in
the road markings from 1986 to the date of the accident. In 1986 Montauk
Highway was a four lane highway with two lanes in each direction. By the date
of the accident, Montauk Highway was configured with one lane in each direction
and a turning lane in the middle. Coulon stated that the frontage of 715
Montauk Highway was 369 feet along the highway. According to the witness, the
distance between the edge of the roadway to the fence is 20 feet (T. pp. 49
-50). Approximately 10 feet of the area is a paved shoulder and the other half
a gravel area in front of the fence (T. p. 50). Within the gravel area, there
were 25 large rocks along the fence. He gave no measurement from the edge of
the roadway to the rocks.
The witness testified a “clear zone”
is needed alongside a roadway
. Further, he testified that a clear zone for an area with a 50 m.p.h. zone
would be 20 feet.
On his direct examination, the witness gave his opinion as to the events
leading to the accident. The witness testified that there were no skid marks or
“yaw” marks on the road surface.
According to the witness, decedent’s vehicle left the roadway and came
into contact with a rock which caused the car to tumble westward. The vehicle
stayed in this “clear zone” while coming into contact with two other
rocks and the fence (T. p. 69). The vehicle then struck a telephone pole which
it broke, and continued westward another 20 feet. From beginning to end, it was
estimated that the vehicle traveled 160 feet.
The expert opined decedent
was doing a minimum of 50 m.p.h. at the beginning of his tumble (T. p. 67). He
stated that if the speed was “much, much higher” than 60 m.p.h. then
decedent would have ended up much further down the road. The estimate of speed
was based on the distance traveled and the velocity of approximately 40 m.p.h.
necessary on impact with the pole in order to break it (T. p. 67). However, on
cross-examination, Coulon stated that the 40 m.p.h. was basically a supposition
for purposes of trying to identify the initial speed of the vehicle leaving the
roadway. Additionally, on cross-examination, Coulon admitted that when a tire
goes from a hard surface to a softer surface, such as gravel, the tires could
cause the vehicle to roll over (T. pp. 82-83), but not if the wheels are pointed
Claimant also called Paul Streb, an engineer, to testify.
According to Streb, Montauk Highway was repaved and restriped at some point
during the 90's. The witness referred to this as a reconstruction of the
roadway which would require engineers and surveyors to inspect the roadway and
remove any hazardous objects within the clear zone of the road. This witness
also testified that the speed limit in this area was 50 m.p.h. and, thus
required a 20 foot clear zone.
The witness stated that the rocks would have created a hazardous condition in
the clear zone. The witness opined that these rocks, in the clear zone, caused
decedent’s accident (T. p. 194).
On cross-examination, the witness
stated the rocks were approximately 5 feet from the edge of the shoulder or 15
feet from the roadway (T. p. 203). The witness admitted that he was not
familiar with the highway’s history. He was unaware when the road was
constructed or if the width of the road was changed during the repavement. Upon
reviewing the highway design manual, Streb testified that a roadway with a speed
limit of 40 m.p.h. needed a clear zone of 14 to 16 feet. In addition to the
foregoing, the witness testified that the average annual daily traffic count for
this location was 6,000 vehicles per day. He was not aware of any accidents in
this location, other than the subject accident.
Defendant presented two
witnesses, Robert Seyfried, an accident reconstructionist, and Dianne Delgado,
an engineer with the New York State Department of Transportation.
testified that when the vehicle left the roadway it went into a side slip, so
that there was no head-on collision with the rocks. Rather, the front tire, as
it hit the gravel, would have slipped and caused the vehicle to tumble. In
Seyfried’s opinion, the tumbling done by the vehicle was mostly done on
the sides of the vehicle, basing his opinion on the damage to the vehicle. In
this scenario, he stated, it is also likely that no yaw marks would have been
Seyfried opined that decedent’s vehicle was traveling
somewhere between 54 to 66 m.p.h. when it hit the rocks. He estimates the
vehicle was traveling at a faster rate of speed on the roadway and it lost some
speed as it went to the side (T. p. 112).
The cross-examination of
Seyfried is best described as a sparring match with counsel trying to discredit
the witness’s testimony based upon what seemed to be the generally
accepted speed limit of 50 m.p.h. in this area and the lack of yaw marks.
Indeed, after his testimony, claimant moved to strike the testimony as being
against the weight of the evidence.
The motion to strike the testimony is
denied. Defendant’s expert, as previously found by the Court, correctly
identified the speed limit as 40 m.p.h. in the direction decedent’s
vehicle was traveling. In addition, the Court finds this expert’s theory
to be as credible as claimant’s theory as to the initial tumbling of the
vehicle. Claimant’s expert envisions the vehicle leaving the roadway by
drifting off the road, almost parallel to the travel portion. Defendant’s
expert envisions the vehicle taking a steeper angle toward the fence line and
when the left front tire hit the gravel, the vehicle was caused to tumble.
In reviewing photographs which showed the different configurations and
pavements on the road, Delgado classified the project as a simple project that
would not be classified as reconstruction in the Highway Design Manual (T. p.
251). For such project, a review of clear zones along the roadway is not
required according to Delgado. The witness testified that in the five years
prior to this accident there was one accident to the west of this location and
one accident to the east, but none at this location. Neither of the other
accidents was similar to this accident, according to the witness. Delgado
supported the proposition that the speed limit was 40 m.p.h. in the westbound
area of decedent’s accident.
The State has a non-delegable duty to
maintain its roads and highways in a reasonably safe condition. However, the
State is not the insurer of the roads’ safety (Tomassi v Town of
, 46 NY2d 91). “In maintaining older highways, the State is not
obliged to undertake expensive reconstruction simply because highway safety
design standards have changed since the original construction” (Van De
Bogart v State of New York
, 133 AD2d 974, 976). This “vintage highway
rule” is not complete relief of liability on defendant’s behalf.
In Gerwitz v State of New York
, Ct Cl, Corbett, J., Claim No. 100439, the
This Court does not agree with claimant’s expert
that the work done on the roadway was a reconstruction of the highway. The
Court accepts Delgado’s testimony that the work was merely repaving and
relining, and not reconstruction. The width of the roadway did not change and
the repositioning of the road markings, albeit a reconfiguration, is incidental
and necessary to the repaving of the roadway.
The Court notes that the
rocks were not in the roadway or on the shoulder of the road but in the
State’s right of way. The question is whether the State’s duty to
maintain the roadway even extends to the right-of-way area. In Young v New
York Thruway Authority
, 76 AD2d 834, 835, the Court held, “[u]nder
well-settled law, the defendant has no duty to maintain its entire right- of-way
in a condition safe for travel by either motorists or pedestrians (Kinne v
State of New York
, 8 AD2d 903, affd
8 NY2d 1068; accord Ellis v
State of New York
, 16 AD2d 727, affd
12 NY2d 770; Tomassi v Town
, 46 NY2d 91).”
Further, the Court finds that claimant
has failed to prove that the rocks constituted a dangerous condition. Claimant
showed that the rocks were in front of the accident location for approximately
sixteen years prior to the accident. According to claimant’s expert, the
location had an average annual daily traffic count of 6,000 vehicles. During
that time claimant has shown no accident history but for two uncorroborated
accidents which were not caused by the rocks, nor did the rocks aggravate the
Even if this Court were to find that the repaving was a
reconstruction project, defendant would still be within the guidelines of the
New York State Manual for Highway Design. According to defendant’s
expert, the manual recommends a clear zone from the edge of the roadway of 14 to
16 feet in a 40 m.p.h. zone. In the instant situation, there was 15 feet from
the edge of the roadway to the rocks, according to claimant’s expert.
As to the accident itself, claimant’s vehicle left the roadway
through no negligence of defendant. The autopsy revealed no intoxicants or
other medical condition with respect to the decedent, and a safety inspection
revealed nothing wrong with the vehicle. There are only two possibilities left
which would explain the car leaving the road. Either decedent purposely left
the road in this manner, which the Court discounts completely, or the accident
was caused by driver error/inattention.
As previously detailed, the expert reconstructionists differ as to the
exact happening of the initial tumbling of the vehicle. To hold defendant
liable, the Court would have to hold that the rocks constituted a dangerous
condition and claimant proved that its version of the accident was the only
credible version of the event. However, the accident is just as likely to have
been caused in the manner described by defendant’s expert, depending on
the angle the vehicle left the roadway. With the lack of physical evidence
prior to the initial tumble, it is impossible to determine the angle of the
If it is likely that an accident occurred from causes other than
the State’s negligence, then the inference defendant’s negligence
caused the accident may not be drawn (Johnson v State of New York
Based on the foregoing, the Court finds for defendant and
dismisses the Claim. All motions not specifically ruled upon are denied.
Let judgment be entered accordingly.