New York State Court of Claims

New York State Court of Claims

BLANCHARD v. STATE OF NEW YORK, #2007-018-572, Claim No. 108182


Synopsis


Defendant is 100 percent liable for the conscious pain and suffering and wrongful death of Sara Wellmon.

Case Information

UID:
2007-018-572
Claimant(s):
ANDREW CHARLES BLANCHARD, as Parent and Natural Guardian of MAKAYLA DIANA BLANCHARD, an Infant, and ANDREW CHARLES BLANCHARD, as Administrator of the Estate of SARA LYNETTE WELLMON
Claimant short name:
BLANCHARD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108182
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
SUGARMAN LAW FIRM, LLP
By: George DeMore, Esquire Sam A. Elbadawi, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Edward F. McArdle, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 19, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim is for the conscious pain and suffering and wrongful death of Sara Wellmon brought by Andrew Charles Blanchard, as Administrator of her estate and as the parent and natural guardian of their infant daughter, Makayla Blanchard.[1] This Decision addresses liability only.

In late 2001 or early 2002, the Onondaga East Maintenance Facility of the New York State Department of Transportation (DOT) requested assistance from the Bridge Maintenance section regarding concerns with the structural integrity of a culvert over the Erie Canal on North Kirkville Road. North Kirkville Road is a county-owned and maintained road, however, the culvert is owned and maintained by the State of New York. North Kirkville Road runs generally in a north-south direction. The culvert over the canal had concrete parapet walls on the east and west sides of the roadway which were in disrepair. The culvert was scheduled to be replaced but it would be a couple of years before it would be completed.

In response to the request for assistance from Jeffrey Church of the Onondaga East Residency, Leslie Parker, an engineer with Regional Bridge Maintenance, went to the site, inspected the parapet walls, took measurements, and tested their viability. He found that the parapets were cracked through and the concrete below the parapets was also in bad shape. He didn’t believe the walls would provide much resistance to an impact.

Mr. Parker reported this to Larry Hasard, his supervisor and a Region 3 Bridge Maintenance Engineer, who suggested two solutions: Either reduce traffic to a single lane and erect temporary concrete barriers across the canal or tear off the parapets and install culvert style rail bolted to a backer plate at the deck end. The second option was contingent upon the deck end being capable of withstanding the bolting process.

On December 19, 2001, Mr. Parker returned to the culvert and inspected the underside of the deck. He determined that the deck deterioration would preclude the implementation of the second option. He recommended use of a temporary concrete barrier system as an emergency repair. On January 17, 2002, Mr. Parker notified Roger Hall of DOT Traffic Engineering and Safety, that two 10' sections of jersey barrier with a 20' tapered end section at each approach would be placed along the existing parapet walls. Mr. Parker was questioned at length at trial about how he arrived at the remedial design and how it was implemented. Mr. Parker testified that he referenced the Highway Design Manual (HDM) p.10-55 and Standard Sheet M606-21[2] as guides in determining how to remedy the crumbling parapets, although these standards are for final designs and not usually used for maintenance. Richard Church, Defendant’s expert, testified that the HDM and other such references are often used for guidance when taking remedial steps in contemplation of future replacement; although in his opinion, the HDM did not strictly apply in this situation.

Mr. Parker testified that the remedial design was intended to replace the function of the deteriorating parapet walls and to protect against blunt-end impact, a recognized roadside hazard. To avoid having a blunt end on the temporary concrete barrier, Mr. Parker decided to use a 20' tapered end barrier with a 1:10 taper or flare rate as indicated in Table 10-5 of HDM § 10.2.5 on page 10-55. In the HDM on page 10-55, is a table labeled “Recommended Barrier Flare Rates for Permanent Installations.” For a concrete barrier in an area where anticipated operating speeds would be 60 km/h the flare rate is one in ten. Sixty kilometers per hour would be about 37 mph and the speed limit at this location is 30 mph. This flare rate means that for every 10 feet of tapered end barrier, it should be flared at the rate of one foot from the edge of the travel lane. Here the end pieces were flared two feet off of the travel lane but were still on the paved shoulder of the roadway, not off the road. It is recommended in the HDM to flare a tapered end piece away from the road, which includes the paved shoulder, whenever possible. Mr. Parker was aware that a tapered end piece could be a roadside hazard because it can produce rollover accidents. HDM § 10.2.5 states:

Barrier Terminals

While a barrier that is impacted on the side will usually redirect a vehicle,

the result of running into the end could be much more severe. Some early

end sections, or terminals, had exposed rail ends which could penetrate

into the passenger compartment. These “spearing” accidents were

sometimes fatal. Additional problems occurred with end treatments that

were so strong as to be fixed hazards in themselves. Other end treatments

tended to lift the vehicle and often produced roll-over accidents. Roll-overs

tend to produce more severe injuries.[3]


Mr. Parker agreed that this remedial design changed the roadside hazard from a blunt end impact to a rollover possibility. He reasoned that the canal trail and parking lot restricted where the end piece could go. He never considered an impact attenuator which the HDM recommends for permanent installations when it’s not possible to flare the tapered end sections away from traffic, and despite the HDM stating tapered end pieces should be given special consideration,[4] he did not do so. The HDM also forbids the use of tapered end sections in the clear zone for permanent installations regardless of the operating speed, and Mr. Parker was aware of this. Yet, this was not a permanent installation. He also referenced standard sheet M606-21, Note 8,[5] to justify his use of the tapered end pieces. Note 8 on that standard sheet reads:

On reduced speed facilities, (operating or design speed 〈 80 km/hr, at

signal controlled intersections, and at the stop conditions) Concrete

Median Barrier may be terminated with a tapered end section.

It was Mr. Parker’s position that if any of these three condition clauses were met, a tapered end section could be used. Mr. Parker did acknowledge that the concrete barrier in question was not a median barrier in his remedial design.

Roger Hall of Traffic Engineering and Safety agreed with Mr. Parker’s recommendations for the remedial repair as did Mr. Hasard.[6] Mr. Hall added additional pavement markings and sign recommendations; specifically, to remove the yellow centerline, re-mark with edge lines, remove the narrow bridge sign and add a “One Lane Bridge” sign with flashers. On April 11, 2002, the temporary concrete barrier was placed on the culvert supervised by Mr. Parker.

On May 6, 2002, the Chief of the Kirkville Fire Department, Ed Visser, and other fire department members met with DOT Engineer Dave Mellen and expressed concerns about the concrete barrier. They were concerned that the tapered end piece was too close to the road and that a vehicle could ride up the barrier and flip onto its roof in the roadway. There was no evidence that any action was taken regarding Mr. Visser’s concerns.

On December 15, 2002, Stephen Clifford was driving southbound on North Kirkville Road in a pickup truck with an attached snowplow. At trial, Mr. Clifford testified that he yawned with his eyes closed, although the police accident report [7] said he “dozed off,” when his snowplow caught the concrete barrier and his truck rode up the barrier and flipped over into the canal. He testified that the left side of his truck came up, the wheels came off the ground and the truck rolled over. He wasn’t hurt and later received an invoice from the State for replacement of a bridge hazard sign.

DOT employees were made aware of this accident. William Raesky, one of the DOT Bridge Maintenance Supervisors for Region 3, was walking along the towpath that Sunday morning, December 15, and saw Mr. Clifford’s pickup truck in the canal. He didn’t see any tire tracks going up to the canal but he did see scuff marks on the top of the concrete barrier. Mr. Raesky spoke with Mr. Parker and asked if something could be done about the concrete barrier. Based upon Mr. Raesky’s description of the accident to Mr. Parker, it appeared that the Clifford vehicle had ridden up the tapered end piece, became airborne, hit the opposite bank of the canal, and then fell into the water. Mr. Parker wanted to reconsider his remedial design. He notified Raymond McDougall of Traffic Engineering and Safety. Mr. McDougall wrote back three days later, “Since no one was hurt and there are no alleged defects in our system, no investigation will be necessary.”[8] Mr. Parker did not go to the site after the Clifford accident and nothing was done.[9] Mr. Parker acknowledged that the determination that the original design was acceptable was affected by the police report indicating Mr. Clifford “dozed off.”

Mr. Parker testified that the temporary concrete barrier kept vehicles on the culvert within the limits of the original parapets. In remedial situations such as this, his purpose was to try to replace the function of the current concrete parapet within the existing maintenance standards, not within new design standards. His objective was not to improve the safety of the site, but to maintain existing conditions. By placing the tapered end piece a different hazard was created, but Mr. Parker considered the tapered end piece less hazardous than a blunt end impact despite the HDM stating that rollover accidents cause more serious injuries. He stood by his belief even in light of Ms. Wellmon’s accident. Mr. Parker testified that the design of the barricades over the culvert was based upon his professional judgment. Mr. Parker also testified that the tapered end piece was given the appropriate 1:10 taper, but there was not much room to do something else because of the canal trail and parking lot. The trail and parking lot are controlled by another State agency, the State Historic Preservation Office.

Mr. Visser of the Kirkville Fire Department testified that after the Clifford accident, he again asked DOT about the design and safety of the concrete barrier placed over the culvert. He saw what happened to the Clifford vehicle and was concerned. He voiced his concerns to an unidentified DOT employee who was at the Clifford accident scene, and he also met with Mr. Mellen again on January 22, 2003.

On February 5, 2003, between 11:30 a.m. and 1:30 p.m., Sara Wellmon was driving southbound on North Kirkville Road, a road she had traveled many times, when, for unknown reasons, she went off the right side of the driving lane, drove up the concrete barrier on the tapered end piece, overturned in the canal, and drowned. The roads were snow covered, with a thin layer of ice on top, when the police arrived. Two women out for a walk observed tire tracks ending near the concrete barrier. When they returned, they saw a vehicle upside down in the water and called 911.1[0]

The Town of Manlius Police Department investigated the accident. The investigator arrived at the following conclusions:
For a fact the vehicle involved was traveling southbound when the accident occurred. For a fact the vehicle did impact with the northwest corner interior Jersey barrier and “rode it” until it came into contact with the second outside barrier. The vehicle then traveled approximately 2/3 of the way across the bridge tilted slightly to the west due to the barrier height differences. The vehicle was just off center enough (towards the west) that the weight of the vehicle caused it to fall towards the canal while it rotated clockwise ½ times [sic] in the air. Upon impacting with the ice the vehicle broke through and became partially submerged in the water. The front compartment of the vehicle eventually filled with water, this may have been expedited by the fact that the passenger side front window was broken out. The loss of this window most likely occurred as a result of the vehicles [sic] impact with the ice based upon how the vehicle impacted after rolling off of the bridge although this is not conclusive.1[1]


The likely time frame of the accident was between 1:00 and 1:45 p.m., and the road probably had a thin layer of snow, but the police could not rule out a layer of ice.

Claimant seeks application of the Noseworthy Doctrine (Noseworthy v City of New York, 298 NY 76). The doctrine permits the fact-finder greater latitude in considering circumstantial evidence of negligence in a case where the person in the best position to describe what happened has died, potentially as a result of Defendant’s wrongdoing (id.; Rivenburgh v Viking Boat Co., 55 NY2d 850; Bulman v P & R Enter., 17 AD3d 1139; Holiday v Huntington Hosp., 164 AD2d 424, 427). The purpose of the rule is to prevent the tortfeasor who inflicts personal injury from being insulated from liability simply by staying quiet about the facts because the decedent is unable to testify (Noseworthy, 298 NY 76, supra; Boulos v State of New York, 56 NY2d, 716, [Fuchsberg, J., dissenting]). Here, however, the doctrine has no application. Ms. Wellmon’s accident was not witnessed and Defendant has no more knowledge than Claimant of the facts surrounding her accident (Walsh v Murphy, 267 AD2d 172; Lynn v Lynn, 216 AD2d 194, 195; Wright v New York City Hous. Auth., 208 AD2d 327).

Both parties had expert witnesses testify and address the applicability of the HDM in a remedial situation. James Napolean, a Professional Engineer in private practice, specializing in accident reconstruction and impact studies for various development projects, was called by Claimant. It was his opinion that the State was required to comply with the HDM because the concrete barriers reconfigured the roadway to such an extent that it was the equivalent of new construction.

Mr. Napolean referenced specifically HDM 10.2.5.4 which provides that “[r]amped end sections are no longer approved for permanent installation within clear zones regardless of the operating speed. If ends cannot be moved away from traffic, consideration should be given to either shielding with appropriate guide rail or preceding them with some form of crash cushion [i.e. impact attenuator].”1[2]

Richard Church, also a Professional Engineer, recently retired as Regional Director of NYSDOT for Region 9, was Defendant’s expert and said the HDM was a guideline which was appropriate to be referenced in a maintenance situation. He compared the DOT action on North Kirkville Road to a work zone because of its temporary nature and referred to the HDM section regarding construction zones.1[3] HDM 10.4 is entitled “Construction Zone Guidance” and discusses the use of temporary concrete barriers being similar to the use of “concrete median barriers” “[with] the main differences relat[ing] to the need to make the installation temporary”1[4] This section makes reference to Table 10.8 for the Recommended Minimum Flare Rates for Temporary Concrete Barriers. This section also indicates that if the approach ends of the barrier cannot be imbedded or placed beyond the clear zone if anticipated operating speeds are less than 70 km, a tapered end section may be used. Mr. Church felt this was the appropriate section of the HDM. Mr. Parker did not rely upon that section of the HDM in his remedial design.

Both experts agreed that use of the HDM was appropriate. Mr. Napoleon believes compliance was mandatory while Mr. Church said it was a guideline. Mr. Church testified that the temporary concrete barrier is a maintenance activity designed to maintain, to the extent possible, the roadway facilities as originally constructed. Mr. Church opined placement of this temporary concrete barrier was in compliance with standard engineering practice. In Mr. Napolean’s opinion, the work done by DOT was more than maintenance and, therefore, needed to be in accordance with current design standards in the HDM. The testimony indicated the design of this remedial work was not in compliance with current design standards for permanent installation and, according to Mr. Napoleon, deviated from sound engineering practice. Mr. Napolean did agree, however, that there are times when the physical layout prevents compliance with the HDM, although in his opinion this location did not prevent compliance, or even if it did, impact attenuators could have been installed as provided in HDM 10.2.5.4, an option Mr. Parker did not consider.
LAW
Undisputedly, the State owes to the traveling public a nondelegable duty to maintain its roadways in a reasonably safe condition under the circumstances (Friedman v State of New York, 67 NY2d 271, 283). This duty applies to the road surface, road shoulders, and conditions adjacent to the highway which could reasonably be expected to cause injury to the persons using the highway (Chalk v State of New York, 147 AD2d 810, 811; Rinaldi v State of New York, 49 AD2d 361, 363). Yet, the State is not an insurer and an accident, even a tragic accident, does not permit an inference of negligence (see Tomassi v Town of Union, 46 NY2d 91, 97; Boulos v State of New York, 82 AD2d 930, 931, affd 56 NY2d 714). Any roadway can be made safer but the State’s duty has been met when users of the highway exercising due care can travel over the roadway safely (id.)

The State is accorded a qualified immunity in the field of highway design and planning for its discretionary decisions for highway planning (Weiss v Fote, 7 NY2d 579, 584-588; Friedman, 67 NY2d 271, supra; Alexander v Eldred, 63 NY2d 460, 466). “[M]ore than a mere choice between [the] conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public.” (Weiss, 7 NY2d at 588). A fact-finder, judge, or jury cannot second guess the judgment of the governmental body which originally considered and developed a plan for its highways in the absence of evidence showing that due care was not exercised in reaching the determination or the plan had no reasonable basis (Weiss, 7 NY2d at 586; Friedman, 67 NY2d at 284).

Yet, the State cannot rest upon a highway plan reasonably developed as a shield from liability where implementation uncovers the existence of a hazardous condition. Once decisions for a highway have been reached, the State has a continuing duty to review its plan to assess its functionality as executed (see Friedman, 67 NY2d at 284; Atkinson v City of Oneida, 77 AD2d 257). If the State becomes aware of a dangerous traffic condition, it must undertake to study the problem and work to alleviate the danger (id.).
DISCUSSION
(A.) The decision to use temporary concrete barriers with a tapered end piece.

The State’s decision to install temporary concrete barriers with tapered end pieces placed at roughly a 1:10 taper is exactly the type of decision cloaked by qualified immunity. The evidence establishes that recognizing the deteriorating condition of the parapet walls of this culvert, the employees of the Onondaga East Residency requested the assistance of Bridge Maintenance to determine how to address the problem pending reconstruction. Mr. Hasard and Mr. Parker investigated the condition of the culvert, considered options, and developed a plan. The plan was reviewed by Mr. Hall and others. The plan as implemented did not meet the standards set forth in the HDM. Some alternative options, such as the use of impact attenuators were not even considered.

Claimant’s expert, well qualified to render an opinion, opined that the modification of the roadway at this location equaled as significant a change as new construction and demanded compliance with the HDM - an opinion exactly opposite Defendant’s expert. Mr. Napolean’s position that safer alternatives should have been employed does not establish that the State’s decision to use the tapered end pieces lacked any reasonable basis or was the result of inadequate study. The State engineers, in arriving at their decision, assessed the problem, evaluated some options and weighed the risks, as they were clearly aware of the vaulting risk posed by the tapered end barriers. This risk was balanced against the risk of a blunt end impact. A review of the sections of the HDM admitted into evidence evinces that the work performed at this location did not fit neatly into section 10.2.5 or 10.4. What Claimant seeks is to have the Court “examine the criteria considered by the State’s professional staff, emphasize the factors claimed to have been overlooked and, with the benefit of hindsight, hold that those studies were inadequate.” (Joyce v State of New York, 152 AD2d 306, 311). This would involve exactly the type of review prohibited by Weiss v Fote, 7 NY2d 579, supra, and this Court declines to do so.
(B.) The absence of warning devices at the northwest corner of this culvert.

Testimony and exhibits suggest that at the time of Ms. Wellmon’s accident, there was no yellow and black diagonal hazard sign at the northwest corner of the culvert to warn of a narrow bridge, nor was there an orange reflective barrel at the end of the tapered end piece. Mr. Napolean also testified that the HDM requires reflector tags to be mounted at the joints of each concrete barrier, but none were attached prior to Ms. Wellmon’s accident. There were signs posted in the direction Ms. Wellmon was traveling for the speed limit, warning of an upcoming curve and a one lane bridge.

Clearly, the State has a duty to warn motorists of hazards on the highway (McDevitt v State of New York, 1 NY2d 540). Warning signs must be erected where necessary and must be reasonably adequate for the intended purpose (id. at 544). “ ‘Generally, the absence of a warning sign cannot be excluded as a cause of an ensuing accident unless it is found that the accident would nevertheless have happened. This finding can only be made if the driver’s awareness of the physical conditions prescribed the same course of action as the warning sign would have, if the driver, by reason of his recollection of prior trips over the same road, “actually had the danger in mind” as he approached it on the highway or if other signs gave adequate warning of the danger.’ ” (Cianciola v State of New York, 38 AD3d 1296, quoting Koester v State of New York, 90 AD2d 357, 362).

Here, we will never know what danger Ms. Wellmon had in mind as she traveled toward this culvert. We do know that she traveled this roadway frequently as she commuted to and from school, and the modifications to this roadway had been in place for almost 10 months prior to her accident. We also know that the three signs that were present warned that the speed limit was 30 mph, warned of an upcoming curve right before the culvert and warned of a one-lane bridge. Given the presence of these signs, specifically the one-lane-bridge sign, the Court does not find that the absence of the yellow and black hazard sign was a proximate cause of Ms. Wellmon’s accident, even if the State’s negligence in failing to maintain the sign is presumed.

Yet, no evidence presented established that the State was negligent for the missing warning sign or orange reflective barrel. To find the State negligent, evidence that it had notice, actual or constructive, of the missing warning devices and failed to replace them is required. The hazard sign was knocked down at the time of Mr. Clifford’s accident and he was billed for its replacement. There is some indication that the sign was replaced before February 5, 2003, yet the physical evidence from the Wellmon vehicle didn’t show her vehicle struck the sign, nor was there evidence of the anchor point for the sign at that location. The sign may have been missing prior to Ms. Wellmon’s accident; but the proof didn’t show how long the sign had been missing or whether the State was notified. Several signs were retrieved from the canal, indicating these signs had been missing and replaced several times before Ms. Wellmon’s accident.

There was even less evidence to support a finding that the State was negligent for the absence of the orange reflective barrel at the time of Mrs. Wellmon’s accident. There was no proof it was missing or present at the time of the Clifford accident. Mr. Raesky testified, as part of his deposition,1[5] that the barrels, similar to the signs, would periodically turn up missing, or in the canal, and require replacement. Mr. Raesky had replaced the barrel on more than one occasion. Yet, no evidence established when it was moved or how long it had been missing before Ms. Wellmon’s accident, precluding a finding that the State was negligent for its absence (cf. Herrera v Moran, 272 AD2d 374; Vasquez v Figueroa, 262 AD2d 179).

Claimant also points to the absence of reflective delineators on the connector joints of each concrete barrier, as required by HDM § 10.4.1, as evidence of the State’s negligence in failing to warn Ms. Wellmon of the location of these temporary concrete barriers. The Court is not persuaded that the HDM requires reflective delineators on temporary concrete barrier joints as used in this circumstance, as this was not a “construction zone” as Mr. Napolean, himself, indicated by his testimony. Even accepting this, given the conflicting testimony of the experts, the Court is not persuaded compliance with the HDM was mandatory for the remedial placement of these temporary concrete barriers. Assuming these delineators should have been installed, the Court does not find the absence of these delineators a proximate cause of Ms. Wellmon’s accident. As stated above, Ms. Wellmon traveled this roadway frequently, these modifications had been in place for months, and the one-lane-bridge sign alerted her to the fact this bridge was narrowed due to these added concrete barriers (see Atkinson v County of Oneida, 59 NY2d 840, 841). Moreover, the delineators are placed only at the joints of the barriers and, thus, the first delineator would have been placed 10 feet from the end of the tapered end piece at a point where her vehicle was already on top of the barrier. The delineators would not have provided Ms. Wellmon with any more warning of the location of the beginning of the tapered end. It is this end piece which may have been obscured by the snow at the time of her accident, as suggested by the pictures in evidence. Since her accident occurred in the afternoon, the reflective capacity of the delineators would not have been a factor.
(C.) After the Clifford accident.

One month and twenty days before Ms. Wellmon’s accident, Mr. Clifford’s truck rode up on the concrete barrier and overturned into the canal. He left the travel lane due to his inattention to the roadway, and weather was not a factor, which may be different than the Wellmon accident. Nonetheless, once Mr. Clifford’s vehicle left the travel lane, his vehicle rode up the tapered end piece, rode atop the barrier, and then overturned in the Erie Canal just as Sara Wellmon’s car did. The potential for rollover accidents with the use of the tapered end piece was a known risk to Mr. Parker in designing this remedial plan. HDM § 10.2.5, which he testified he relied upon in planning for the placement of the temporary concrete barriers, describes the risk for rollovers associated with the use of the tapered end piece and the potential for more severe injuries as a result.

Mr. Parker testified that by installing the tapered end piece he was aware that a new roadside hazard was created; however, he felt it presented less of a hazard then the risk of blunt-end impact. The question is whether the known risks of this new roadside hazard, by the introduction of the tapered end piece, in light of Mr. Clifford’s accident, demanded a reevaluation. A well-reasoned highway planning decision cannot stand insulated from review in light of notice that a hazard exists.

The issue turns to whether the State had notice that these tapered end pieces created a hazardous condition at this location as installed. Here, the Court finds the State had adequate notice that these temporary barriers, as placed, created a hazardous condition. First, the State was aware, experientially, from the information in the HDM of the potential risk for rollover accidents with the use of a tapered end barrier. This general knowledge alone, however, is not sufficient to find the State negligent. Yet, this general knowledge coupled with the repeated complaints and concerns of the Kirkville Fire Department and the similar accident involving Mr. Clifford less than two months before Ms. Wellmon’s accident at a location where no prior history of vehicles vaulting into the canal existed, should have alerted the State to the dangerous condition created by the placement of these tapered end pieces. Courts have repeatedly found that there is no “quota” or requirement for a certain number of accidents before the State will be found to have had notice of a dangerous condition (Gregorio v City of New York, 246 AD2d 275, 280). In fact, the Court of Appeals in Friedman indicated even a single accident could be sufficient to warrant the State to take some action (Friedman, 67 NY2d at 285). In Pensabene v State of New York, Collins, J., dated September 29, 2004, Claim No. 105396, UID #2004-015-601, found that an investigation was prompted by the DOT’s Regional Traffic Engineer for Region 1 into whether a left-turn arrow signal was necessary at the intersection for northbound traffic on Route 9 turning onto Malta Avenue, after a letter was received voicing safety concerns

after witnessing a serious accident. Both Mr. Parker and Mr. Raesky testified that Mr. Clifford’s accident raised their concern regarding the remedial barriers.

Mr. Parker made an effort to suggest that after Mr. Clifford’s accident, he and Mr. Hasard and Traffic and Safety reviewed the situation and made a determination that Mr. Parker’s original remedial design was appropriate. This testimony, which the Court finds incredible, was defied by Mr. Hasard’s testimony and the documentary evidence. Mr. Hasard testified he was not involved in any review of this location after the Clifford accident. No email correspondence was produced evidencing any discussions regarding this location after the Clifford accident. The sole document from Traffic and Safety belies any review of the plan was undertaken. Rather, the note from Mr. McDougall explicitly reflects no investigation was done. A problem with the placement of the temporary concrete barriers was not considered once Mr. Clifford’s inattention was uncovered. Both Mr. Raesky’s testimony and the Clifford police report reflect that Mr. Clifford’s vehicle rode up the tapered end piece and flipped over into the canal. There is no indication Mr. Clifford left the paved roadway, he merely went beyond the travel lane, certainly not an unforeseen possibility. The reason he left the travel lane, having nothing to do with the maintenance or design of the roadway, is not decisive (see Gutelle v City of New York, 55 NY2d 794, 796). Where notice is given that a minor deviation from the travel lane exposes drivers to a ramping hazard and the potential overturning into an adjacent body of water, a serious hazard is exposed and requires at least some investigation. Even a review to insure that the accident did not change the original placement of the barriers should have been performed. Instead, nothing was done. Just as with the travel lane, the State has the duty to maintain the shoulder of the roadway in a reasonably safe condition for uses which are foreseeable (Bottalico v State of New York, 59 NY2d 302). Here, this tapered end barrier was placed on the shoulder of the roadway creating a ramp up to the canal, the State knew the risk and had notice of a similar prior accident and the repeated voiced concern of local emergency personnel.

The police report sufficiently establishes that Ms. Wellmon was traveling at a reasonable rate of speed when she, too, went outside the travel lane. The evidence reveals her vehicle rode up the temporary concrete barrier. There is no indication she left the paved roadway before encountering the tapered end piece. A slight variation from the travel lane at a curve, particularly in poor weather, which may have contributed to this accident, is not unexpected. Even Defendant’s expert acknowledged that without the tapered end barrier, Ms. Wellmon’s vehicle would not have overturned into the canal. As her cause of death was drowning, the placement of the temporary end barrier is directly attributable to her death. A review of the photographs taken within a few hours of the accident reflect, even to the untrained eye, the hazard created by the placement of the tapered end piece. The tapered end of the barrier is barely observable against the snow less than two feet from the travel lane and provides a perfect ramp up.

Despite the State’s insistence that no other options were available for placement of the tapered end concrete barriers, because any other option required approval from the State Parks and Recreation and the State Historic Preservation Office in order to do work on the Erie Canal or the trails along it, after Ms. Wellmon’s accident such measures were taken. The post-accident evidence was admitted to show the feasibility and control of the parking lot and towpath affected by these revisions (Matter of Hayes v Peru Cent. School Dist., 281 AD2d 794; Cover v Cohen, 61 NY2d 261).

The allegations that Ms. Wellmon contributed to her own demise must also fail. The police report indicates her speed was about 19 mph. Her vehicle was slightly off the travel lane but still on the paved shoulder when she encountered the tapered end piece. There is no evidence in the record that Sara Wellmon was, in any way, negligent.

The State is 100 percent liable for Sara Wellmon’s accident and wrongful death, and a trial on the issue of damages will be held as soon as practicable.

All motions not previously decided are herein DENIED.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.



June 19, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1].Prior to trial, the State moved to dismiss the claim against all Defendants other than the State of New York and to dismiss Mr. Blanchard’s individual cause of action on the basis that he and Ms. Wellmon were not married (Motion No. M- 70915). Claimant did not oppose the motion and it was granted.
[2].Exhibit 21 (HDM under the section entitled “HDM”, and Standard Sheet M606-21 under the section entitled “Exhibit 16”).
[3].Exhibit 21, section “HDM” p. 10-55.
[4].Exhibit 21, section “HDM” p 10-59.
[5].Exhibit 16.
[6].See Exhibit 21, section “Exhibit 1”.
[7].Exhibit 21, “Clifford Accident Report.”
[8].Exhibit 15.
[9].Mr. Parker testified that he, Mr. Hasard, and Traffic Safety reviewed their installation, considered other things that might be done and thought what they had done was appropriate. The Court does not find his testimony persuasive on this point, and it is in contradiction to Mr. Hasard’s testimony (t. p. 463, l. 24, p. 464, l. 1-3) and Exhibit 15.
1[0].Exhibit A.
[1]1. Exhibit A, page 9 of 11.
1[2].Exhibit 21, section “HDM” p. 10-59.
1[3].Exhibit 21, HDM 10.4.
1[4].Exhibit 21, HDM 10.4.1.
1[5].Exhibit 5.