Claimant bicyclist failed to show that insufficient illumination along a bikeway was the proximate cause of his collision into a sign.
|Claimant(s):||WALLACE DANIEL WATSON, II|
|Claimant short name:||WATSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Altier & Vogt, LLC
by: Philip P. Vogt, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
by: Victor J. D'Angelo, AAG
|Third-party defendant's attorney:|
|Signature date:||May 7, 2007|
|See also (multicaptioned case)|
This is the decision following the liability trial of the claim of Wallace D. Watson, II, that the defendant State of New York was negligently responsible for his accident while bicycling on State property. On the night of November 20, 2001, Mr. Watson left his home on Barrow Street in Manhattan and rode his bike west toward the Hudson River, and then eventually south along a temporary path that was for the use of bicyclists, walkers, joggers and rollerbladers etc. (cl exh 3).
Just south of Pier 40, which was the extension of West Houston Street, claimant collided with a sign and was thrown off his bike:
Q. What happened after you pedaled past the southern end of the Pier 40 building structure?
A. Something struck my face and I was knocked off balance, and came in contact with the sign that I fell on top of.
It was, Watson recalls, about 10 p.m. Claimant was riding alone, and there were no witnesses; no accident report was filed with the authorities.
Mr. Watson does not ground his case on the condition of the surface of the bikeway, or on the existence and placement of the sign or any pavement markings or lack thereof. What claimant does put at issue is the amount of artificial illumination cast onto the bikeway.(1)
Claimant testified that he hit the sign because it was dark, and that he was unaware of the sign until he struck it. However, he did not offer expert testimony as to what strength light at what distance it would take to supply proper illumination and the recognized or applicable standards or regulations that obtain.
Mr. Watson described the sign as a metal placard about three feet high and two feet wide, attached to a metal pole with a weighted base, elevated several feet above the ground, and with a "reflective coating." Claimant's exhibit 4, taken by Watson or his roommate a few days after the accident, is a nighttime photograph looking south toward the sign. Claimant's 4 was not a close-up shot, and yet the sign is visible. Defendant offered exhibit A, a photograph in which the sign is crisper and more visible, and which was taken by claimant or his roommate at the same time.
Claimant's accident occurred during the construction work that was known as the Route 9A/Westside Highway Project, which extended from West 57th Street to the southern tip of Manhattan. The State's engineer-in-charge for a portion thereof, namely segment three, was Craig Ruyle, who on the stand explained that this was a project to reconstruct the north and southbound roadways, install new utilities and construct a bikeway/walkway.
The project was broken into six segments physically, and was built over time in four stages. Segment three began north of Houston Street at Clarkson Street and ran south for about three-quarters of a mile, encompassing the area of Watson's accident (cl exh 5). The general contractor for segment three was the Perini Corporation.(2) Perini's senior project manager on the job was Slavko Pudar who testified at trial. Mr. Pudar explained the work done in each stage.
The first stage involved the construction of the temporary southbound roadway just west of the existing highway. During stage two, southbound traffic was switched onto the temporary southbound roadway and the existing southbound roadway was rebuilt. "Stage three," Pudar stated was, "the flipping of traffic that was going northbound onto the new southbound lanes, and the reconstruction of the northbound roadway," with presumably the southbound traffic remaining, as it was in stage two, shunted onto the temporary southbound roadway. "And stage four was putting of the traffic onto the new permanent lanes, and the construction of the new bikeway/walkway, and some work on the center median between the northbound and southbound lanes."
Pudar indicated that stage four began in May of 2001 and was substantially completed by early September of that year "with some punch list and completion work going on until final acceptance in August of '02." In addition, Pudar recalled that soon after the September 11 attacks, a temporary haul road was established at the request of the State Department of Transportation (DOT).
At the time and place of the accident, the configuration going west to east, or left to right in the panoramic photograph that is claimant's exhibit 1, was as follows:
- The Hudson River.
- The temporary bikeway/walkway path, bounded on its eastern edge by a concrete Jersey barrier with chain-link fencing on top.
- The contractor's storage area running parallel to the temporary bikeway. Its eastern edge was also bounded by a Jersey barrier topped by chain-link fencing.
- The temporary haul road, within which can be seen a red dumpster in the lower right corner of the photograph.
Continuing to the east is the roadway, north and southbound. The permanent bikeway is not clearly visible in the photographs (cl exhs 1-3). Note that Pudar's testimony about the lighting does reference the permanent bikeway (see below).
The Route 9A reconstruction project did not reach the strip of land traversed by the temporary bikeway; the western boundary of the project was the concrete barrier and fence between the temporary bikeway and the contractor storage area. No work, including lighting, was planned or built at the temporary bikeway. Nor had there been any preexisting lighting directly located in the relevant area of the temporary bikeway.
In any event, testimony was elicited on the ambient lighting, beginning with the Pier 40 building, pictured at the left of claimant's exhibit 1. Kevin Collins, an executive with Pier 40 LLC that held the master operating lease for the building (which he believed was owned by the State), described the Pier 40 structure as "a square donut of a building. Two stories tall with a large open center court parking area, approximately 15 acres in total." There were also commercial and industrial tenants that maintained warehouse space, and a soccer field on the roof. Mr. Collins had his office in the building, as did Messrs. Pudar and Ruyle.
The front or east face of the Pier 40 Building had a half dozen lights running north-south down to about the southern end of the building (cl exh 1), which claimant testified were lit on the night in question. In addition, Watson recalled that "lights [were] coming off of the soccer field" that night.
By November of 2001, strings or lines of poles of permanent lighting were in place on the Route 9A corridor, as Mr. Pudar detailed:
If we start from the east, there would be one line of lights on the east side of the project that would be running along the buildings of the sidewalk that is adjacent, obviously, to the northbound traffic. Then there would be another string of lights . . . in the median portion between the southern and northern traffic. There was another string of lights that was on the westside of southbound traffic. And there was another string of lights just west of the new permanent bikeway.
These lights were operable by the "end of September, but more probably during the month of October of '01." Pudar said it was at least 60 feet from the western line of these lights to the temporary bikeway that Watson was traversing on November 20.
But central to claimant's case were lights that had been turned off by the time of Watson's accident. In exhibit 1, a line of double-headed lights on the top of a pole ("double cobras") can be seen running along the east edge of the contractor storage area. These were temporary lights that were not illuminated in late November of 2001. As to the effect of these temporary lights which were closer to the temporary bikeway than any line of the permanent lights, Pudar said he was sure that there was "some residual" light that illuminated the temporary bikeway.
Ruyle testified that the Route 9A project plans provided that once the permanent lighting was in place and energized, the temporary lighting would be shut down (cl exh 12). Pudar concurred and explained the incentive for doing so expeditiously: "it's a revenue generating thing for the contractor . . . we get paid for putting it up and taking it down." However, in connection with DOT's post-9/11 directive for laying down a temporary asphalt haul road, the Department requested that the temporary lights be turned back on. Neither Ruyle nor Pudar challenged Watson's testimony that these lights were off by the time of his accident in late November.***
The State, like any premises owner, will be held liable in ordinary negligence if it can be proven that there was sufficient notice of a dangerous condition that proximately caused claimant's accident. Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976).
Watson insisted he was traveling at five miles per hour; he had time to see the reflective sign and avoid it. That the temporary lighting was not illuminated, because of a determination made by the State, or its contractor, was not the proximate cause of Watson's collision with the sign. Rather, to this trier of fact, it was claimant's inattention and/or the fact that he may have been cycling faster than he has contended; moreover, Watson conceded that his bike did not have a headlight as required by Vehicle and Traffic Law §1236(a).
That a witness' testimony is not seamless can be a sign of authenticity, but to this trier of fact Mr. Watson's testimony(3) came across as too hedging and cautious to be persuasive as a forthcoming account of what happened that night. For example, he said he had not previously been on the temporary bikeway, then on cross-examination stated that he meant on a bicycle, admitting that he had been through the area more than once within the year. Claimant's testimony was inconsistent on whether he maintained a constant speed toward the sign, whether and how the lighting changed as he biked south of Pier 40, and the extent of his visibility.
The sign was not a defect or danger; it directed the various users - cyclists, rollerbladers and pedestrians either left or right (see cl exh 3). Claimant testified that he was not sure where he was on the path when he came in contact with the sign - - whether to the left of the white line that runs down the middle of the pathway, to the right of the line (or on it).
In view of the foregoing, it is unnecessary to reach the argument that claimant's bicycling was within the purview of the assumption of risk standard of Morgan v State of New York, 90 NY2d 471, 662 NYS2d 421 (1997). Nor is it necessary to consider the possibility that a qualified immunity shielded the State for its design and planning of the Route 9A project or for the construction of the temporary bikeway. Weiss v Fote, 7 NY2d 579, 200 NYS2d 409 (1960).***
In sum, Wallace D. Watson, II, has failed to prove his case and claim no.110668 is dismissed.LET JUDGMENT BE ENTERED ACCORDINGLY.
May 7, 2007
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. As for notice of inadequate lighting, claimant pointed to the entry in the Engineer's Daily Log of November 5, 2001 (cl exh 14) on an inquiry "regarding lighting within segment 3" from the office of a Member of the State Assembly. This broad inquiry did not go to the causal issues in this case.
2. The transcript spells the corporate name, incorrectly, as "Parini."
3. This includes those portions of claimant's depositions of December 24, 2003 and March 18, 2005 that were read at trial.