New York State Court of Claims

New York State Court of Claims

Sarullo v. STATE OF NEW YORK, #2007-018-584, Claim No. 106296


Synopsis


Court finds State had constructive notice, if not actual notice of the foliage that had grown over stop sign at the intersection of State and County Roads. State 85% liable, Claimant had 15% comparative fault.

Case Information

UID:
2007-018-584
Claimant(s):
JOSEPH SARULLO, As Administrator of the Estate of KEVIN SARULLO, Deceased
Claimant short name:
Sarullo
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106296
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
FINKELSTEIN & PARTNERSBy: MICHAEL T. McGARRY, ESQUIRE
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 24, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant’s son (hereinafter decedent) was killed when his motorcycle collided with a truck at the intersection of State Route 30A and Ingersol Road in the Town of Glen, Montgomery County on August 31, 2001. Claimant argued that the State was negligent by failing to remove foliage which blocked decedent’s view of the stop sign for westbound traffic on Ingersol Road[1] and for failure to have warning signs posted. The trial was bifurcated and this decision relates to liability only.



The underlying facts are not in issue. Decedent, twenty-one years old, Kevin Sarullo, was riding his newly acquired Yamaha motorcycle westbound on Ingersol Road on August 31, 2001, at approximately 4:20 p.m. When decedent entered the intersection, his motorcycle was hit by a pickup truck driven by Billy Jo Liddle. A resident on Ingersol Road, Michael P. Davis, saw decedent drive past his home heading west just minutes before the accident and estimated his speed at 25 - 30 mph. Mr. Davis’s house is approximately ½ to ¾ miles from the intersection where the accident occurred. There was no posted speed limit on Ingersol Road, so the default speed limit would be 55 mph (Vehicle and Traffic Law § 1180[b]). Defendant’s Investigator Michael MacIntosh of the New York State Police, who completed a collision reconstruction report,[2] estimated decedent was traveling 29.27 mph before impact. Ingersol Road, proceeding west after Mr. Davis’s house, had a small knoll, a right curve, and then a left curve before it became straight through the intersection. There were stop signs for east and westbound traffic on Ingersol Road. Mr. Davis testified that there were no warning signs of the upcoming intersection or stop signs on Ingersol Road.

Although Ingersol Road is not a State roadway, because it intersects with State Route 30A, the State has the authority and obligation to regulate the traffic through the intersection. The State acknowledges its responsibility to erect and maintain the stop signs on Ingersol Road, and to inspect the location of the stop signs for overgrown foliage.[3] The State asserts a lack of notice of a dangerous condition and alleges that decedent’s negligence was the proximate cause of the accident.

Two New York State Department of Transportation (hereinafter DOT) employees testified via deposition.[4] At the time of the accident, Kathryn Bradt was a sign crew supervisor, covering portions of Montgomery and Fulton Counties. Every three months she checks all the signs in her territory to be sure they are still erect and not in need of repair. Once a year, in July, she makes a list (a “Tree Trim”[5] list) of any signs that are obstructed by vegetation. She would then submit the list to the responsible DOT office, in this case Montgomery County, and workers there would then be responsible for trimming the vegetation so the signs are visible. Ms. Bradt compiles the list and distributes the information but she does not retain a copy. Ms. Bradt was familiar with Ingersol Road as it intersects with State Route 30A, and recalled inspecting it. She could not recall whether it was on her “Tree Trim” list for vegetation trimming in July 2001. She testified, after seeing the photographs of the westbound stop sign on Ingersol Road, that trimming would be ordered. She testified that if she had listed this stop sign for tree trimming in her July 2001 report; she could not be sure when the work would be done or if it should have been completed before August 31, 2001. Ms. Bradt felt the foliage obscuring the stop sign was a safety hazard.

Dale Erhardt was also a sign crew supervisor for DOT in 2001. His territory was in Montgomery County. He testified that the State is responsible for maintaining signs on roadways not owned by the State but which intersect State highways. Mr. Erhardt was directed to trim the trees around the westbound stop sign after this accident.

Ernest Sammons, a Montgomery County Deputy Sheriff, testified for Claimant. He had accident reconstruction training and was called to investigate this accident scene. He said the stop sign was obstructed heading westbound. There were no stop signs for travelers on Route 30A at this intersection. He took photographs[6] of the scene the day of the accident at different distances from the intersection from the same direction as the motorcycle was traveling. Exhibit C is a picture closest to the intersection, (the exact footage was not indicated) and from this vantage point the stop sign is more visible as only the “s” and “t” are obscured. Exhibit D was taken further than 147 feet from the intersection,[7] and the stop sign is almost completely obscured.

The parties stipulated that Kevin Sarullo died at the scene and that Billie Jo Liddle, the driver of the vehicle with which Mr. Sarullo collided, did not see him before the impact. No charges were filed against anyone, and there is no contention that Mr. Liddle was at fault in any way.

The State’s accident reconstructionist, Trooper MacIntosh, determined that the stop sign governing decedent’s travel was partially visible from a distance of 147 feet. He calculated the stopping distances given decedent’s speed and estimated reaction time. At the speed decedent was traveling, it was possible for him to stop within 105.72 feet, 41.28 feet before reaching the intersection, had he observed the stop sign at that time. The Trooper relied on certain measurements and photographs of the investigating Montgomery County Sheriff’s deputy in reaching his conclusions; although, he went to the accident scene four times to supplement that information.

Trooper MacIntosh testified that the intersection itself was visible at 1000 feet and the back of the eastbound stop sign was visible 450 feet before the intersection. The Trooper noted that there was no indication decedent even applied the brakes to slow down in view of the upcoming intersection. The Trooper’s report indicated it was decedent’s failure to observe the stop sign that caused the accident. On cross-examination, Trooper MacIntosh said the blockage of the stop sign was also a cause but he did not include it in his report because everyone knew that. No other factors contributed to the accident.

The State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). This includes a duty to trim the growth of foliage within a roadway’s right-of-way to make sure stop signs are visible to traveling motorists (see D’Onofrio-Ruden v Town of Hempstead, 29 AD3d 512; Hamilton v State of New York, 277 AD2d 982). However, the mere happening of an accident, even one causing death, does not create a presumption of liability as the State is not an insurer of the safety of its roadways (Tomassi v Town of Union, 46 NY2d 91, 97; Brooks v New York State Thruway Auth., 73 AD2d 767, 768, affd 51 NY2d 892). It is Claimant’s burden to prove that the State was negligent and that its negligence was a proximate cause of the accident (Travalino v State of New York, 203 AD2d 276; Clark v State of New York, 250 AD2d 569). Negligence will be found where the State had actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct the condition (Brooks, 73 AD2d at 767).

The testimony of Ms. Bradt, a DOT employee established that she had the duty to inspect the State roadways for overgrown foliage including Ingersol Road. Ms. Bradt recalled previously inspecting Ingersol Road as it intersects with State Route 30A, but wasn’t sure whether she had noted this location on her “Tree Trim” list that July 2001, although after viewing the photographs in evidence of the accident scene that day, she acknowledged such trimming was in order as the overgrown vegetation was a hazard.

Views of the pictures in evidence[8] depict the extent that foliage had grown over the stop sign at this location. Although an additional month had passed since Ms. Bradt had conducted her inspections, the degree of overgrowth leads this Court to find this hazard existed for such a period of time that Defendant had constructive notice of it (Matter of Fasano v State of New York, 113 AD2d 885; Gaines v Long Is. State Park Commn. of State of New York, 60 AD2d 724).

The State’s own expert, Trooper MacIntosh, testified the obstructed sign was one of the causes of this accident. Claimant testified that he didn’t think his son had previously traveled this roadway and was, thus, unfamiliar with the area. No warning signs were posted. From Exhibit D, it is clear to see how difficult it was to observe the stop sign more than 147 feet from the intersection and how easily it could have been overlooked until decedent was very close to the intersection. The Court finds the overgrown foliage was a proximate cause of this accident.

Decedent, however, also could have been more prudent in approaching the 1000 feet toward this highly visible intersection. Moreover, as Defendant argues, the back of the stop sign for eastbound traffic on Ingersol Road was apparent at 450 feet. Given the distances at which these factors were visible, coupled with the visibility of the westbound stop sign closer to the intersection at a point when decedent could have still stopped his motorcycle before entering the intersection, Decedent’s negligence was also a cause of this accident.

Accordingly, the Court finds the State 85% liable and the Decedent 15% liable for this accident, and it is

ORDERED, that the Court will schedule a trial to hear the damages portion of this claim as soon as practicable. All motions hereinbefore not decided are denied.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY



October 24, 2007
Syracuse, New York

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




[1].Ingersol Road generally runs in an east-west direction and Route 30A generally runs in a north-south direction.
[2].Exhibit A.
[3].See Vehicle and Traffic Law §§ 1621 and 1681.
[4].Exhibits 3 and 4.
[5].Exhibit 3, page 11, lines 13 - 14.
[6].Exhibits C and D.
[7].Testimony of Mr. MacIntosh.
[8].Exhibits C and D.