New York State Court of Claims

New York State Court of Claims

DAHL v. THE STATE OF NEW YORK, #2006-036-006, Claim No. 108480


Synopsis


Claimants failed to prove that a guiderail was required to separate bicycle path from State parkway.

Case Information

UID:
2006-036-006
Claimant(s):
ALEXANDRA DAHL, an infant by her mother and natural guardian, SANDRA DAHL and SANDRA DAHL, individually
Claimant short name:
DAHL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108480
Motion number(s):

Cross-motion number(s):

Judge:
MELVIN L. SCHWEITZER
Claimant’s attorney:
BORNSTEIN & EMANUEL, P.C.By: Anthony J. Emanuel, Esq.
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2006-036-014


Decision

These claims arise from a July 30, 2002 accident in which William Dahl and his seven-year-old daughter, Alexandra Dahl, were struck by a motorcycle that had been proceeding northbound on the Wantagh State Parkway (WSP) while they were riding bicycles on a bicycle path adjacent to the parkway. Claim No. 108481 was brought by William Dahl and Sandra Dahl, his wife. Claim No. 108480 was brought by Sandra Dahl on behalf of her minor child. The gravamen of the claims is that the accident was the result of negligence on the part of the State of New York in failing to install a guide rail to separate the parkway from the bicycle path.
William Dahl (hereinafter “claimant”) testified that he and his daughter had gone to Cedar Creek Park to ride on the bicycle path and rode south about three miles – to “just before the third bridge or third Wantagh bridge” (Trial Transcript, 20) – before turning around, heading back to the park. The bicycle path runs along the east side of the parkway, to claimant’s left as he and his daughter proceeded northbound. He stated that they passed two to three dozen people riding, walking or rollerblading on the path as they rode southbound.
Claimant estimated that there was about eight or nine feet between the edge of the parkway and the bicycle path. He noted that, other than at bridges and at the southern end of the path where it enters Jones Beach at a “very sharp curve into the parking lot (id., 21),” there were no guide rails separating the bicycle path from the parkway. The path was paved blacktop and the area between the path and the parkway was grass and gravel. He described the area where the accident occurred – both the parkway and the bicycle path – as a “moderate curve” leading to a bridge.
As claimant and his daughter approached the bridge, they were struck by the errant motorcycle – which he stated he did not see or hear approaching – and knocked to the ground. Claimant was dragged several feet but did not lose consciousness. His daughter landed farther to the east in a wooded area.
Claimant testified that he was very familiar with the bicycle path because he had jogged on it several times a week for the previous 1½ years.
Alexandra Dahl also testified. She remembered going riding with her father on the date in question on a new bicycle that she had just received as a birthday present. She stated that they were riding back to the park when she got hit and beyond that, she did not know what happened.
Claimants called three Department of Transportation (DOT) employees, and an expert witness, in support of their claim. David Glass, who has been with the DOT for 22 years, testified that he has been a supervisor in the DOT’s planning unit for six years and has been the Bicycle and Pedestrian Planning Coordinator for over ten years. He advised that counts of users of the WSP bicycle path were done in 1995 and “a couple of years after that” (id., 36) and that no changes to the path were recommended after those counts were done. He did not know when the bicycle path was constructed or what studies were done prior to its construction. Asked by claimant’s counsel if he was aware of any data showing how frequently the path was used, he responded that data collected by the State Park Commission showed that usage varied from zero in harsh winter weather to over a thousand users a day in the summer.
On cross-examination, Mr. Glass was referred to a July 15, 1994, DOT memorandum stating that “[a]ccidents along the WSP Bikepath has [sic] prompted calls from the public to several Regional staff regarding the safety of this facility to accommodate large numbers of bicycles, pedestrians, rollerbladers and other non-motorized travel” (Ex. N–1). Craig Siracusa, the author of the memorandum, recommended the placement of a centerline strip on the path and the posting of “Keep Right” and “Speed Limit 15 MPH” signs along the path. This memorandum only addressed traffic on the bicycle path itself, not on the parkway.
Mr. Glass was also referred to a September 30, 1997, letter from Mr. Siracusa to State Senator Norman Levy, which did address the proximity of the bicycle path to the vehicular traffic on the parkway, and the lack of a barrier:
“This is in response to your constituent’s concerns regarding bicycle safety on the Wantagh Parkway bicycle path. We conducted a study to determine if guide rail along the bicycle path is warranted. The study revealed that the bicycle path was designed in accordance with current American Association of State Highway and Transportation Officials (AASHTO) guidelines for bicycle facilities. Sufficient distance separates bicyclists from the adjacent roadway. In sections where this separation can not be maintained, such as on bridges, guide rail has been erected.

Our review of the recent accident history for the subject section of the Wantagh Parkway does not reveal any accidents involving motor vehicles and bicyclists. Considering the parkway’s high traffic volumes and the intensity of the bike path use, the safety record speaks well for the design of both the parkway and the bicycle path.”
(Exhibit N-6).
Harold Tarry has been employed by the DOT for 28 years, the last 15 years as a design unit supervisor. In that capacity, he supervises a unit responsible for the design of highway construction and reconstruction projects and any changes to highways, including the construction of new bicycle paths or bicycle lanes. Mr. Tarry testified that the WSP bicycle path was constructed in 1975 and that the only places where guide rail was installed along the path were where it passed over bridges. He indicated that the location of the subject accident was about five hundred feet south of the Seaman’s Island Creek Bridge, which was the northernmost of the three bridges between Jones Beach, to the south, and Cedar Creek Park, to the north. He estimated the distance between the parkway and the bicycle path at that location as being ten to twelve feet.
Mr. Tarry stated that the parkway and the bicycle path in the subject area both proceeded on a curve with a radius of 1800 feet, which he stated was not a sharp curve. He agreed with claimants’ counsel that a motor vehicle whose driver lost control would be more likely to go off the roadway on a curve than on a straight section. Asked his opinion as to where barriers should be placed “with respect to bicycle paths in relation to a roadway” (id., 88), he responded:
“[W]here I would look would be if you had – if there was a sharp curve where you had a history of accidents and you had a very high usage on it, I guess that would have to be more – well, more that I’ve seen here in this span. . . . I would have to have seen a large number of run off the road accidents at the times where pedestrians are out there and even then, I would have to consider what is the effect of putting the guiderail [sic] up there . . . If I’m going to put the motorist, all of the people that drive along there at serious risk of injury, I have to know that there is also a serious risk of many other people being injured (id., 88-90).”
Referring generally to the “actual design guide for bicycles,” Mr. Tarry stated that where a bicycle path was “closer than five feet to a traveled roadway . . . you might want to consider a barrier,” (id., 92) but there was no distance that would require a barrier.
Mr. Tarry testified that the average number of vehicles using the Wantagh State Parkway was 16,000 per day, higher in the summer and lower in the winter. Referring to a 2001 study of the WSP bicycle path, Mr. Tarry stated that the highest usage was on a Sunday in July where there were about 2,000 people who used the path.
Mr. Tarry was not aware whether any study had been done when the path was constructed as to the need for a barrier between the parkway and the bicycle path at the subject location. He was aware that a warrant study had been done at some time prior to 2002, but only generally. He stated that he believed the warrants for installation of a guide rail had not been met. He could not recall when he had seen the results of that study. He thought that the sole question informing that study was whether there was a need for guide rails from the point of view of the safety of drivers and passengers in motor vehicles.
On cross-examination, Mr. Tarry was referred to the as-built plans for the reconstruction of the WSP bridge over Island Creek (Exhibits “8A” - “8C”). These 1993 plans show the area of claimants’ accident, south of the bridge where work was being done, and indicate that the bicycle path is ten feet wide and is ten feet from the roadway.
Mr. Tarry testified that the items considered when installation of a guide rail was contemplated were whether there were fixed objects or other roadside hazards with which an errant vehicle could collide absent a rail. He noted that any time a guide rail is installed, it creates risks to vehicular traffic. He was asked if he thought that a barrier consisting of shrubbery could be appropriate adjacent to a bicycle path and he indicated that, in certain circumstances it would be, but the purpose of a shrub barrier would not be to contain errant vehicles but to delineate the roadway and the bicycle path. He stated the guidelines provided that if a roadway and a bicycle path were less than five feet apart, a shrub barrier could be considered to prevent cars from intentionally driving on the bicycle path and to prevent bicycles from riding on the road.
Mr. Tarry’s opinion was that the subject area of the parkway was safe, the curve was in compliance with existing standards, there was no need for any additional signs and there was no need for a guide rail. He was asked about a 1980 accident that had been referred to by claimant’s counsel, apparently involving a bicyclist being struck by an automobile, and he stated that, in addition to it being twenty years earlier than the subject accident, it occurred five miles north, in an area where he estimated that traffic volumes were five times greater. He testified no guide rails were installed at that location in response to that accident.
According to Mr. Tarry, only about 0.6 percent of accidents involving a motor vehicle and a bicycle result from the motorist losing control. He contended that most such accidents are the result of the bicyclist intruding into the motorist’s space or the motorist intruding, intentionally, into the bicyclist’s space.
Mr. Tarry described three types of bicycle routes that are referenced in the Highway Design Manual (a portion of which was received as Exhibit “D”). The first is a “bicycle route” (Trial Transcript, 143), where bicycles are allowed use of the State’s roads and highways simply by the posting of signs (Highway Law § 316; see Gerwitz v State of New York [Ct Cl, Corbett, J., Claim No. 100439, UID No. 2002-2005-025, June 3, 2003]). The second is a “bicycle lane” which, if space allows, involves using a portion of the road’s shoulder for bicycle traffic and marking it with a sign of a bicycle symbol and an arrow showing the direction of travel. Exhibit “D” showed various configurations of bicycle lanes. The third type is a “bicycle path” which, unlike a bicycle lane, is separated from the road itself “by an open space or barrier” (VTL § 102-b [emphasis added]).
Mr. Tarry also described a number of examples of bicycle lanes of which he was aware, somewhat proximate to the WSP bicycle path. Three specific examples were along Veterans Highway in Hauppauge, on Route 25 going towards Orient Point and along Montauk Highway. He stated that bicycle lanes that are adjacent to vehicular traffic, without separation, are common throughout the county, on roads “that have speed limits of thirty miles an hour to fifty-five miles per hour and they range in traffic volumes to roads that have as little as this road [referring to the Wantagh State Parkway in the area in question] and much more than this road” (id., 151-152).
Chapter 10 of the Highway Design Manual addressed the installation of guide rails (Exhibit “I”). The purpose of guide rails is stated as being to reduce accident severity by preventing errant vehicles from entering dangerous areas and redirecting errant vehicles parallel to the highway in the direction of travel while holding the deceleration rate to a tolerable level. The Manual provides that the primary warrants for the installation of guide rails are the degree of the embankment slope adjacent to the roadway and the presence of fixed objects or roadside hazards along the highway (id.). Mr. Tarry identified roadside hazards as something like a utility pole, tree or bridge abutment, or a deep body of water. He testified that the only hazards of this kind along the WSP in the area in question were bridge abutments, and these are the only areas where guide rails were placed.
Mr. Tarry indicated that guide rails themselves are considered roadside hazards because they could increase the severity of accidents, and that DOT policy is first to see if the roadside can be made safe without the use of guide rails, and if that is not the case, they consider the placement of guide rails, starting with the most flexible systems and moving towards guide rails composed of stiffer materials.
Mr. Tarry was asked about an AASHTO
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publication relating to the development of bicycle facilities (Exhibit “14”) and he stated it was the primary reference that he used in designing bicycle lanes and paths. He testified that when a two-way bicycle path is located adjacent to a roadway, AASHTO suggests it be kept as far as possible from the roadway, but if it is not possible to keep the path five or more feet from the roadway, AASHTO suggests that some sort of barrier to “signify that they’re two separate facilities” be installed (Trial Transcript, 158). This is not a guide rail, a crash-worthy barrier intended to redirect vehicles, but rather a visual barrier, such a shrubbery, intended to demarcate the road and the path and prevent intended movement of bicycles and pedestrians onto the road and motor vehicles onto the path.
According to Mr. Tarry, the Design Manual indicates that guide rails could be especially hazardous to motorcycles – that an automobile normally will just bounce off a guide rail but with a motorcycle, the impact is generally severe and often fatal.
When asked if sometimes there are circumstances when the installation of guide rails are considered for the protection of pedestrians, Mr. Tarry identified such a situation as follows: “If you had an area that was on the outside of a sharp curve where you expected that people were going to be running off the road and you had a playground or a bus stop, something that continually had large groups of people there for a significant portion of the day . . . or another example would be across from a T intersection . . . where somebody might try to make the light and not make the turn and run off – again if there was something over there where a lot of pedestrians might congregate” (Trial Transcript, 172-173). He stated that the evaluation in such a situation would take into account whether there was a history of accidents in the area and whether there was evidence of things such as scarred trees, skid marks or signs getting knocked over. He described the area in question herein as not being on a sharp curve, not containing a bus stop or playground or other location where large numbers of people congregate and not having any history of accidents other than the one involving the claimants herein.
Frank Pearson, the director of the traffic, engineering and safety office of the DOT’s Long Island Region, testified that it was his responsibility to address any safety issues identified on State highways on Long Island. Claimant’s counsel asked him if, in determining whether a guide rail should be installed along a bicycle path, he would require a certain number of off-road accidents before deciding to install guide rails. He replied: “What we would look for is a pattern of run off the road accidents and not necessarily a [guide rail] would be what we would install immediately. We would look to see why the vehicles [were] leaving the roadway. Is it a delineation problem? Is it ice on the road? Are the pavement markings worn?” (id., 246-247).
Mr. Pearson also was asked about the count of users of the bicycle path that was conducted on various dates in April, July and August, 2001 (Exhibit “6A”), and he agreed that the highest number of users was on Sunday, July 29, when there were a total of 2076 users.
Mr. Pearson testified that the average daily traffic on this section of the parkway was about 11,000 cars, in both directions, which he stated was the lowest volume section of the parkway. He estimated that, north of Merrick Road, volume on the WSP increased to about 20,000 cars daily, and north of the Southern State Parkway, volume on the WSP was about 70,000 cars daily. He also estimated that daily traffic volume on the Veterans Memorial Highway, which has bicycle lanes adjacent to the highway without separation from vehicular traffic, was about 35,000 to 40,000 and that volume on the Cross Island Parkway in Queens, which was identified as containing a bicycle path that is separated from traffic by a barrier, was well over 100,000 daily.
Mr. Pearson was asked about the warrant investigation procedure with respect to guide rails. He stated they would look to see if there were fixed objects along the roadway, steep embankments, bodies of water or outcroppings of rock. An accident analysis would be done, which generally would involve collecting three years of accident data as well as looking for evidence of vehicles leaving the roadway that did not necessarily result in an accident, such as damaged trees or shrubs, tire tracks or debris such as headlight glass. He was aware of an accident study of a section of the WSP between Cedar Creek Park and Jones Beach, including the subject location, for the period from July 1997 through July 2002, and which resulted in the conclusion that there was no pattern of accidents that indicated the need for any attention.
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Specifically, he stated that other than the accident involving the claimants and the accident which occurred in 1980 three or four miles away, he was not aware of any accident involving a collision between a motor vehicle and a pedestrian or bicyclist. Over the five-year period, there were no reported accidents of any kind at the specific location of the subject accident (Exhibit “O”).
Mr. Pearson indicated that except where the existence of a fixed object dictated installation of a guide rail, the presence of the rail generally led to an increase in the number of accidents in an area: “if there is no object being shielded, they’re going to strike the [guide rail]. It would certainly be much more severe than running off the road and recovering” (Trial Transcript, 283).
Mr. Pearson was referred to an AASHTO publication entitled “Roadside Design Guide” (Exhibit “10”) which, in section 5.2.3 (“Bystanders, Pedestrians, and Cyclists”) identified an area of concern to highway planners, the “innocent bystander” problem:
“In most such cases, the conventional criteria presented in the previous sections cannot be used to establish barrier needs. For example, a major street, highway, or freeway may adjoin a school yard, but the boundaries are beyond the clear distance. There are no criteria that would require that a barrier be installed. If, however, a barrier is installed it could be placed near the school boundary to minimize the hazard to the motorist. . . .

“ Pedestrians and cyclists are another area of concern to highway engineers. The most desirable solution to this problem is to separate them from vehicular traffic. . . . As in the case of bystander warrants, there are no objective criteria to draw on for pedestrian and cyclist barrier warrants. . . . [W]hen sidewalks or bicycle paths are adjacent to the traveled way of high speed facilities, some provision might be made for the safety of pedestrians and cyclists” (id.).
Asked his opinion of the safety record of the subject section of the WSP, Mr. Pearson stated:
“This section of roadway is a safe section of roadway. It does not – has not demonstrated any serious or significant accident problem. It’s one of our lower volume roadways, lower accident rates. It’s certainly not what I would consider a serious safety concern. It’s a very safe section of roadway.”
(Trial Transcript, 293).
On redirect examination by claimant’s counsel, Mr. Pearson conceded, with respect to the absence of prior accidents at the subject location, that if a vehicle left the roadway and crossed over the bicycle path, but did not strike anything, no accident report would be generated. He acknowledged that the WSP bicycle path is within the highway’s clear zone – the area adjacent to the roadway within which errant vehicles may recover from a loss of control – but stated that there are no specific standards that govern bicycle paths within clear zones. He advised that when considering whether to install a guide rail on a highway, the consideration is “what’s worse? Is it to hit that object off the side of the road or is it to hit the [guide rail] [?]” (id., 303). He stated that the distance between a roadway and an adjacent bicycle path was one of a number of factors that would go into a safety evaluation, others being the volume of vehicular traffic and the safety record. Asked if there were any circumstances where a bicycle path would not be constructed because it would be too close to a roadway, he gave the example of the Long Island Expressway, due to its high traffic volume, and the Cross Island Parkway (where a bicycle path is separated from the roadway by guide rail), which also has very high traffic volumes as well as curves that exceed current design standards. He noted that on the Cross Island Parkway, there no longer is an area for a car to pull off the road, so if a car breaks down, it necessarily remains in the right travel lane. He stated that each particular situation was a matter of balancing the relative hazards – those addressed by the installation of guide rail and those created by it.
Lance Robson, a licensed civil engineer, testified as claimants’ expert witness. He stated that his initial experience was in the design of hydroelectric facilities, that he took some graduate-level courses in highway engineering and that since 1987, he has been engaged almost exclusively in forensic engineering. He indicated that, within the context of his forensic engineering responsibilities, his focus is mainly on highway engineering and crash reconstruction, although his experience with the design of roads was solely in connection with the construction of water resource and hydroelectric facilities and he has never worked with a highway department or been involved with road or highway design or construction in New York State. He stated he has investigated ten to twenty cases involving bicycles or bicycle paths and this was the first case in which he testified concerning bicycle paths.
Mr. Robson was retained by claimants in October 2002, and was provided with the police accident report, photographs of the site and transcripts of the depositions of Mr. Tarry and Mr. Pearson. He went to the site on November 2, 2002, and took photographs (Exhibit “1”) and measurements. He measured the distance between the edge of the roadway and the edge of the bicycle path in the subject area as nine feet six inches, and the width of the path as ten feet nine inches. The edge of the right travel lane is separated from the path by grass, and there is no curb between the travel lane and the adjoining grassy area.
Mr. Robson referred to a 1995 revision of the Highway Design Manual (Engineering Instruction 95-013, revising Chapter 10 of the Manual – “Roadside Design, Guide Rail and Appurtenances” [Exhibit “9”]) that discusses the “Developed Area and Large Volume Exceptions” (id.). The revision states that it applies to “[p]rojects initiated after April 3, 1995 or with a design approval date after January 1, 1996” (id.). Asked how this revision related to his analysis of the WSP and the bicycle path, Mr. Robson noted the second paragraph, which states: “Finally, while in rural areas attention may be focused primarily on protecting the motorist from the roadside, in populated areas, consideration must also be given to protecting pedestrians and bicyclists from motorists” (id.). He stated that this was the first time that this subject was addressed in the Manual. The revision also states: “Barriers should be considered where areas of assembly, particularly playgrounds, schools and parks, are across “T” intersections, outside of sharp curves, and at locations with a history of run-off-road accidents” (id.).
After referring to this 1996 revision of the Highway Design Manual, and the 1989 AASHTO Roadside Design Guide quoted above (Exhibit “10”), Mr. Robson was asked whether the separation between the parkway and the bicycle path was adequate. He replied that it was not adequate because the “clear zone” in this location should have been more than 28 feet and thus the bicycle path was “squarely within the clear zone” (Trial Transcript, 367). His opinion was that the presence of the bicycle path in this location, 9½ feet from the parkway, without a barrier, constituted a dangerous condition, “because of the numbers of people using it” (id., 368-369), referring to the 2076 daily users shown on Exhibit “6A” on July 29, 2001. He acknowledged that such was the highest daily usage shown on the count, and stated that “during the winter, this would not be a dangerous location” (id., 370), but contended that “if you have that danger for a month’s period or a two or three [months’] period, you have to deal with the danger” (id., 371).
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Mr. Robson next referred to a document entitled “Design and Safety of Pedestrian Facilities,” a “Proposed Recommended Practice of the Institute of Transportation Engineers” (Exhibit “11”). He testified that the proposed recommendation provides “a list of places that should be evaluated for possible barrier installations,” including areas of “heavily concentrated and vulnerable foot traffic . . . [or] on the outside of horizontal curves on higher speed facilities with consistent and substantial pedestrian presence” (Trial Transcript, 382).
Section 10.2.1 of the Highway Design Manual (Exhibit “13”) discusses the concept of the “clear zone,” which Mr. Robson testified became part of highway engineering practice in the late 1960’s, based on the recognition that vehicles will run off the road from time to time. The Manual states that the purpose of this section is to “provide guidance for the design of roadside features on new construction or reconstruction projects” (id.). Making reference to this section, Mr. Robson stated that the appropriate clear zone for the area of the WSP in question herein is 23 feet, thus the bicycle path is within the clear zone. Mr. Robson also noted that the Highway Design Manual considers a shoulder to be part of the roadway (see Exhibit “15”). Asked what was the significance of that concept to the issues in this case, he referred to the AASHTO Guide for the Development of Bicycle Facilities that Mr. Tarry had been asked about (Exhibit “14”), which states that where the separation between a bicycle path and an adjacent highway is less than five feet, a “suitable physical barrier may be considered” in order to “prevent bicyclists from making unwanted movements between the path and the highway shoulder and to reinforce the concept that the bicycle path is an independent facility” (id.). He asserted that shoulders are usually eight to ten feet wide and, therefore, that the appropriate measurement in this case, for purposes of considering the AASHTO guideline, should have started eight to ten feet from the edge of the roadway and that the “edge of this bicycle path is either in the shoulder or only two feet from the shoulder” (Trial Transcript, 397). He was asked if the AASHTO guideline had been misapplied, and he replied:
“[Y]es, they’re taking it from the traveled lane and in this particular situation, there is no shoulder which is a refuge area and there isn’t any shoulder along this roadway. So the five feet should be . . . taken from the edge of the shoulder” (id., 398).
On cross-examination, Mr. Robson conceded that the Highway Design Manual does not prohibit a bicycle path or a pedestrian path from being within a highway’s clear zone. He also conceded that a guide rail is itself considered a fixed object and a roadside hazard that increases the risks to motorists and passengers and that accidents involving motorcycles leaving a roadway and striking a guide rail typically involve severe and often fatal injuries.
Mr. Robson stated he was not aware whether the parkway was in compliance with relevant standards when it was first constructed in 1928 or when it was reconstructed over the years, but he had no reason to think that it was not in compliance. He agreed the subject location did not meet any of the applicable warrants for the installation of a guide rail, a guide rail itself is a roadside hazard, and whether or not to install a guide rail should be the product of careful study because it involves a safety trade-off. Referring to the AASHTO Guide for the Development of Bicycle Facilities (Exhibit “14”), he conceded that the problem addressed therein arising from a bicycle path close to a roadway was the perception problem that arises in such situations, and the barriers referred to therein are the delineation barriers – fencing or shrubbery – that are recommended when a bicycle path is less than five feet from a roadway. He acknowledged “there’s nothing in this guide” referring to barriers intended to keep errant vehicles from a bicycle path (Trial Transcript, 431).
Defendant re-called Mr. Tarry as its sole witness. He was asked if there was anything in the Highway Design Manual that prohibits pedestrians, bicycles, bicycle paths or bicycle routes from being within a highway’s clear zone and he responded by stating that while it would be “great” if you could always have 30 or more feet of separation, it is “often” the case that areas intended for pedestrians and bicycles are within the clear zone (id., 451).
Mr. Tarry also noted there is no requirement that highways have shoulders, and on highways without shoulders, ascertaining the distance from the roadway involves measuring from the edge of the roadway, or perhaps from a wide stripe or curb if such exists, and not adding some distance for a hypothetical shoulder that is not present. He testified there is “no direct guidance in the literature on [guide rail] between a path and a roadway” (id., 471) – a statement that is uncontradicted by any of the evidence produced at this trial; and that when designing a new bicycle path, “what we end up doing is looking at each case on the merits and I would look at AASHTO, . . . look at the design manual, look at other publications . . . the traffic volumes, the path, proposed path usage volumes . . . and then I’d come up with a recommendation” (id., 471-472).
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The State has the duty to design, construct and maintain its roads so that they are reasonably safe (Friedman v State of New York, 67 NY2d 271 [1986]) and this duty applies as well to the design, construction and maintenance of guide rails (Lattanzi v State of New York, 53 NY2d 1045 {1981]). Although the State is not the insurer of the safety of those who use its roadways (Atkinson v County of Oneida, 77 AD2d 257; Boyce Motor Lines v State of New York, 280 App Div 693, affd 306 NY 801), the State’s duty of reasonable care does include the duty to install a guide rail when it is on notice of a dangerous condition that could have been addressed by the installation of a guide rail and where the failure to have done so was a proximate cause of injury (McDonald v State of New York, 307 AD2d 687 [3d Dept 2003]).
Cases addressing whether the State, or a municipality, is liable for alleged negligence in the design or construction of highways, including those addressing whether the State breached its duty to alleviate a known hazardous highway condition, generally revolve around the concept of “qualified immunity”(see Friedman v State of New York, supra; Alexander v Eldred, 63 NY2d 460; Weiss v Fote, 7 NY2d 579). Pursuant to this doctrine, a decision made by State highway planners may be successfully challenged in a negligence action only where it is shown that the decision was made without adequate study or lacked a reasonable basis (id.), where there was an unreasonable delay in implementing the decision (Carroll v State of New York, 157 AD2d 697), or where the State failed in its duty to review and monitor the results and consequences of its decision (Friedman, supra, 67 NY2d 271, 284; Atkinson v County of Oneida, supra, 77 AD2d 257, 261).
Claimants argued strenuously, both at trial and in their post-trial submission, that the State was not entitled to rely on the qualified immunity defense because it failed to produce, either at trial or during disclosure, the studies that led to its decision not to install a guide rail at the subject location. Although various items or correspondence referred to warrant studies having been performed, the records of such studies could not be located and all the court was presented with were statements, both in the letters and at trial, that the warrants for the installation of guide rails had not been met. Claimant is correct in contending that such is insufficient to support a finding of qualified immunity (see e.g. Cordero v City of New York, 112 AD2d 914, 915 [2d Dept 1985]: “The city cannot rely on the doctrine of Weiss v Fote [7 NY2d 579] merely by submitting conclusory declarations that surveys were made without at least producing written copies or testimony by those who made the surveys”). However, the doctrine of qualified immunity is inapplicable herein for another, more basic, reason: claimants failed to prove a prima facie case of negligence, rendering defendant’s failure to establish a basis for qualified immunity irrelevant.
Although claimant’s expert opined that defendant “should have installed [a] barrier at the crash site to protect bicyclists and pedestrians from the foreseeable consequences of a vehicle leaving the outside of the curve (Trial Transcript, 400), the record at this trial did not support this conclusion. The record also did not support claimants’ references, in their post-trial submission, to the State’s “violation of the AASHTO standards” (Claimants’ Post-Trial Brief, 58), since no such violation was demonstrated.
The 1991 AASHTO Guide for the Development of Bicycle Facilities (Exhibit “14”) referred to the visual problem that sometimes results when a bicycle path is too close to a roadway and suggests that when the separation is less than five feet, “a suitable physical divider may be considered . . . both to prevent bicyclists from making unwanted movements between the path and the highway shoulder and to reinforce the concept that the bicycle path is an independent facility” (id., 24). Mr. Robson conceded that what is contemplated by this suggestion is not a crash-worthy barrier intended to redirect errant vehicles, but rather something like a row of shrubs or a fence, intended solely for delineation purposes. His testimony that the State somehow misinterpreted this guideline because “there isn’t any shoulder along this roadway . . . [s]o the five feet should be taken from the edge of the shoulder” (Trial Transcript, 398) was not only self-contradictory, but also irrelevant to the issue herein, which is whether it was negligence not to have a crash-worthy barrier (i.e., a guide rail) at this location. Indeed, the very existence of a guideline intended to address a visual problem that sometimes occurs when a bicycle path is within five feet of a roadway assumes there is no guide rail in place, because a guide rail would obviate any need for a delineation barrier.
The 1989 AASHTO Roadside Design Guide (Exhibit “10”), addressed the situation where protection of “innocent bystanders” might be necessary under circumstances where the conventional criteria did not warrant a guide rail. After noting “there are no objective criteria to draw on for pedestrian and cyclist barrier warrants,” AASHTO merely states that “when sidewalks or bicycle paths are adjacent to the traveled way of high speed facilities, some provision might be made for the safety of pedestrians and cyclists” (id., 5-5). A statement that in certain situations, some provision might be made for something does not, in the absence of something more, create a standard that is violated, as claimants contend. On the same page of the excerpt relied on by claimants, AASHTO notes, with respect to traditional barrier warrants, that “[m]arginal situations, with respect to placement or omission of a barrier, will usually be decided by accident experience, either at the site or at a comparable site” (id.).
Similarly, the 1995 revision to Chapter 10 of the Highway Design Manual (Exhibit”9”), which applies to projects initiated after April 1995, and which Mr. Robson acknowledged as reflecting for the first time the subject of protecting pedestrians in the Manual, stated that “[b]arriers should be considered where areas of assembly, particularly playgrounds, schools and parks, are across “T” intersections, outside of sharp curves, and at locations with a history of run-off-road accidents (id.). Leaving aside that this instruction applies to new construction, not to existing facilities (see e.g. Stuart-Bullock v State of New York, 38 AD2d 626 [3rd Dept 1971] affd 33 NY2d 418 [1974]), and that it, like the AASHTO guidelines, does not contain any mandatory direction to install a barrier but merely to consider it in certain situations, the parkway and bicycle path at issue herein do not fall into any of the categories referenced in the revision. This was not an area of assembly across from a “T” intersection or outside of a sharp curve
[4]
and, most significant, there was no history of accidents involving vehicles running off the parkway at any portion along the bicycle path, a distance of more than four miles.
As has been noted in many decisions involving allegations of negligent highway design, construction or maintenance, the lack of any proof of prior similar accidents “is some indication at least that the highway was reasonably safe for those who exercised reasonable care” (Stapleton v State of New York, 285 App Div 984, 985 [3d Dept 1955]; see also e.g. Light v State of New York, 250 AD2d 988 [3d Dept 1998]; Galvin v State of New York, 245 AD2d 418 [2d Dept 1997]; Hough v State of New York , 203 AD2d 736 [3d Dept 1994]; Whiter v State of New York, 148 AD2d 825 [3d Dept 1989]; Boyce Motor Lines v State of New York, 280 App Div 693 [3d Dept 1952]).
Claimants’ effort to negate their own failure to produce any evidence of prior similar accidents by asserting that defendant’s failure to produce evidence that there were no prior similar accidents is somehow equivalent – arguably leaving the issue in some neutral status – is without merit. It was claimants’ burden to demonstrate that defendant was negligent with respect to its responsibility to protect the public at the subject location. The State is under no affirmative obligation to prove that its operation of the parkway and the bicycle path was proper, in the absence of any proof to the contrary. Had there been any evidence of prior accidents involving vehicles driving off the parkway and striking a pedestrian or bicyclist, the court assumes claimants would have submitted those reports.
Moreover, claimants’ contention that the absence of reports of prior accidents did not necessarily indicate the area was safe because this does not account for the possibility that vehicles may have gone off the road and made a successful recovery in the clear zone (perhaps passing over the bicycle path at a time when there were no bicyclists or pedestrians there and thus not resulting in an accident), actually lent support to defendant’s decision that no guide rail was required. Had a guide rail been in place, all such incidents, if there were any, necessarily would have resulted in collisions with the barrier, collisions that did not happen only because a barrier was not present. Claimants’ expert recognized that installation of guide rails necessarily involved a balancing of relative hazards, a balancing that, on this record, was appropriate.
Comparison of the decisions in McDonald v State of New York (307 AD2d 687 [3d Dept 2003]) and Kang-Kim v City of New York ( 29 AD3d 57 [1st Dept 2006]) is instructive. In McDonald, a “T” intersection case, the Third Department held there was ample support for the Court of Claims’ finding that the State “failed to maintain this stretch of guide rail in a reasonably safe condition for at least two months prior to the accident and that, based on the numerous accidents that occurred in this area through the years . . . defendant had actual or constructive notice of this dangerous condition and failed to take reasonable measure to remedy it” (307 AD2d 687, 688). In Kang-Kim, where plaintiff alleged the City was negligent for failing to erect a barrier to protect pedestrians at an allegedly dangerous intersection, the First Department, citing Hough v State of New York, supra, noted that it was “incumbent” on the plaintiff to establish notice of a dangerous condition by producing evidence of prior similar accidents, and stated: “This case differs from those cases relied upon by plaintiff in which a failure by the State or municipality to install [guardrails] or barriers was found to constitute negligence. In all of those cases the need for such safety devices was necessitated by a known dangerous condition or a prior history of accidents at the site” (810 NYS2d 147, 150). This language is equally applicable herein, as is the court’s observation that the expert’s conclusions were not supported by reference to any standard requiring a barrier at the scene of the accident.
While the court certainly is sympathetic to what happened to the claimants herein, court decisions are not made on this basis and must be guided by the law, which is clear here. Claimants failed to sustain their burden of proving that any negligence on the part of the State of New York contributed to the causation of this accident. Accordingly, the Clerk of the Court is directed to enter judgment dismissing these claims.

June 30, 2006
New York, New York

HON. MELVIN L. SCHWEITZER
Judge of the Court of Claims




[1].American Association of State Highway and Transportation Officials.
[2].This study was undertaken in 2005, in preparation for the trial of this claim.
[3].Other than the count of 2076 on Sunday, July 29, 2001, Mr. Robson did not address the actual counts for each date in the week from Wednesday, July 25, 2001 through Wednesday, August, 1, 2001: 587, 231, 1171, 1071, 2076, 637, 1296 and 647.
[4].Notwithstanding claimants’ irrelevant and inaccurate attempt to characterize the bicycle path as a “park.”