New York State Court of Claims

New York State Court of Claims

McGRATH v. THE STATE OF NEW YORK, #2007-028-013, Claim No. 109427


Where there was no evidence presented at trial that the State’s highway design, signage choices or selection of a guidrail was negligent or created an unreasonable danger, and where Claimant’s vehicle was traveling four times the posted speed, the Court concludes that Claimant’s own negligence was the sole proximate cause of the accident.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
PROSKIN LAW FIRMBY: Marc D. Greenwald, Esq.
Defendant’s attorney:
BY: Frederick H. McGown, III, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 20, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose from a single vehicle accident that occurred on September 5, 2002, at approximately 9:00 p.m., on State Route 23A in the Town of Hunter, Greene County. Claimant Michael J. McGrath was the driver of the vehicle, a full-sized tractor of a tractor-trailer rig to which no trailer was attached at the time. The passenger in the vehicle, Michael McCarthy, was ejected from the tractor and pronounced dead at the scene. It is Claimant’s position that his accident was caused by the State’s negligence in the design of the roadway, making it inadequate and unsafe particularly for trucks, by improper signage, by the absence of a pull-off spot, and/or by use of an inadequate guide rail.

Claimant, who was 32 at the time of the accident, testified that he was employed by R. Freedman & Son, Inc. when he was injured and that he had no independent recollection of any events of the day of the accident and, in fact, could recall only bits and pieces of the weeks and months prior to that day. He stated that he suffered a traumatic brain injury in the crash and was in a coma for some time. He is also unable to remember the six months that he spent in the hospital or the several months of rehabilitation afterwards.[1]

Robert L. Winans, Jr., an employee of the New York State Department of Transportation (DOT) for more than 30 years, testified on Claimant’s direct case. He stated that he has held several engineering positions within DOT and currently serves as the Maintenance Engineer for Greene County. The area in which Claimant’s accident occurred is known as “Horsehoe Bend,” and he stated that it is routinely maintained. When asked, he stated that the most recent maintenance involved signage, guide rail repair and other routine tasks occurring during the period between 1999 and 2002. He could not recall when the last guide rail maintenance had been performed before that time.

With respect to guide rails, Winans stated that there are different height requirements for all sorts of guide rail systems. The system in place at the accident site consisted of a two-rail box beam culvert railing transitioning to a single box beam post railing. The culvert railing is attached to a bridge or culvert, while the latter type of guide rail is attached to posts that are stuck in the ground. This configuration of guide rail type was typical for terrain and features such as those encountered at this location, and he saw no reason to question the appropriateness of its use. The normal maintenance routine calls for such guide rails to be inspected for visible damage according to need, or as required by events relating to it, but not on a fixed, regular schedule. He acknowledged that the research performed in developing guide rail systems uses passenger automobiles and stated that he was not aware of any studies on which New York DOT relied that had used trucks as part of the research.

The roadway at the location of the accident is a fairly steep grade from west to east. There are signs recommending that drivers of trucks shift to a lower gear, but he could not recall if there was one advising truck drivers to check their brakes. When asked if there had been any consideration to closing this portion of Route 23A to trucks altogether, Winans stated that he was not aware of any that had ever been discussed. He also said that there were no signs directing truck traffic to use any alternate routes.

Defendant also called Winans as its own witness and questioned him about the inspection he conducted of the area shortly after Claimant’s accident. He identified photographs that he had taken on September 11, 2002 (Exhibit F), which showed several signs as one drove toward the accident site. There were two three-sign panels with the first (top) panel showing the diagram of a truck going down a hill, the second stating “hill 4 MI[LES]” and the third indicating USE LOW GEAR.” These panels were located approximately 4/10 of a mile before the accident site. Beyond the second three-sign panel, there was a reverse curve sign (the first to the left and the second to the right, from the driver’s point of view) with reduced speed (10 mph) posted. Further along, there was a left-hand arrow near a parking area, followed by a second arrow approximately midway through the curve. There were then two right-direction arrow signs on the second half of the reverse curve. He stated that all of these signs were in place on the date of the accident. On cross-examination, Winans acknowledged that there was no sign telling truck drivers to check their brakes and no sign to indicate that there would not be a pull-off area on this hill.

Defendant also called Sgt. Donald J. Baker of the New York State Police, who had reported to the accident scene on the night of September 5.[2] He stated that he learned of the accident at approximately 9:50 p.m., while he was at home. As he was an accident reconstructionist, he was dispatched to the scene but did not travel straight there, which would have been less than 10 minutes from his home, stating he had to go to the Kingston station to get a vehicle and his equipment (measuring tapes, camera, notepads, clipboard, calculator, hammer and nails, string, level and a weighted tire). He arranged to have another piece of equipment, a measuring device, brought to the location. Upon arrival, at approximately 10:45 p.m., Baker observed other State Police officers and several members of the local fire department already there. The officer in charge of the scene, to whom he reported, was Sgt. Patrick Cullen.

Baker was informed upon arriving at the scene that one occupant of the vehicle had died and the other had been removed from the scene. He observed a tractor in “Bob Cat mode” (i.e., without an attached trailer) that had gone off the roadway and down into the adjacent creek bed. He walked the scene, took some pictures, and created a diagram. The photographs, diagram, and his report were contained in the file of the incident, introduced as Exhibit “E”. The photographs were of features significant to the investigation: tire marks going from the eastbound lane to the westbound lane; damage to the guide rail consisting of gouge marks and paint transfer from the motor vehicle; the vehicle lying on the rocks; and the position of the deceased occupant who had been ejected from the vehicle. The diagram included depiction of the layout of the roadway and location of evidence on the roadway and in the streambed.

In reconstructing an accident of this nature, Baker stated that he used a “fall formula” based on the horizontal and vertical distance traveled by the vehicle. From that formula, it is possible to determine the speed at which the vehicle left an embankment. In this instance, the vertical distance from the edge of the embankment to the final resting place was 11.97 feet, and the horizontal distance traveled by the vehicle from the embankment to the point where it first struck a fixed feature was 29.07 feet. Also included in the calculation would be a 27.8 percent downward slope from the guide rail to the earthen embankment. The fall formula calculation, with a grade adjustment, indicated that the truck had been traveling at 41 miles per hour when it left the embankment.

Also on the night of the accident, Baker observed and measured a single visible set of dual wheel skidmarks, which would have been from the right rear of the vehicle and were 68 feet in length (Photograph 5). This, he stated, would indicate that the brakes were engaged while the vehicle traveled that 68-foot distance toward the embankment. At a later time, he applied a speed loss calculation formula based on the calculated speed at the edge of the embankment, the coefficient of friction of the road service, and the braking efficiency factor of the vehicle. From this he concluded that the vehicle had a beginning speed of at least 48 miles per hour before the brakes were applied. There was also a single scuff mark, created when a tire is being pushed sideways while still turning. This mark was attributed to the vehicle’s left front wheel and was 95 feet long (Photograph 7). Baker also returned to the location on September 12 so that he could see it again in the daylight and get photographs of the tire marks and other features. He subsequently examined the vehicle, which had been taken to a garage. He described the vehicle as an older truck that had seen a lot of usage but it wasn’t possible to tell, from its condition, whether any parts of it were in poor operating condition.

When asked on cross-examination if he considered the hill encompassing Horseshoe Bend to be a dangerous roadway, Baker stated that he did not believe it was so long as the driver traveled at the advised speed limit. He also acknowledged that there are a number of factors that will result in the absence of skid marks, even when brakes are in use, and agreed that it was possible Claimant had applied the brakes even before reaching the point 68 feet before the embankment.

Defendant also called as its expert William David Fitzpatrick, a Licensed Professional Engineer and a former employee of the New York State Department of Transportation, working there for over 35 years. His final assignment was as Director of Traffic Safety and Engineering for Region 8, the Hudson Valley area. In that capacity he supervised 150 individuals who reviewed roadway compliance with the Manual of Uniform Traffic Control Devices, investigated and made recommendations regarding safety of the roads within the region, designed incident responses, planned the design and maintenance of traffic signals, issued work permits for the region, reviewed all contracts let in the region, and conducted daily inspections of trucks weighing over 2,000 pounds. In evaluating the incident giving rise to this claim, Fitzpatrick reviewed all pleadings and documentary evidence, conducted a personal inspection of the site, and interviewed Sgt. Baker about his reconstruction of the accident.

He described the portion of Route 23A involved as a curvilinear road through a mountainous area, with a steep slope and limited clearance. In examining the posted signs, he observed the signs outlined above during Winans’ testimony and also noted that there were a number of other curve and lower-speed signs leading up to that portion of the roadway at Horseshoe Bend. At the top of the rise, above where Winans’ pictures had been taken, there were a series of signs advising of a steep slope ahead and recommending that truckers check their brakes, as well as a number of other signs that clearly gave notice of the need for caution ahead. In reviewing the reconstruction by Sgt. Baker, he concurred with his use of the fall factor equation and said that it was he, Fitzpatrick, who suggested using the 68 feet of skid marks to arrive at an initial speed. It was his opinion, in fact, that the estimated initial speed (48 miles per hour) was extremely conservative, because it did not incorporate the loss of momentum that would have resulted when the tractor struck and crashed through the guide rail.

He stated that the guide rail on the edge of the road between the embankment and the westbound lane of the highway was not designed to stop a vehicle running into it from the opposite, eastbound, lane of travel. Guide rails are designed to retain and redirect vehicles that, among other things, strike it from an impact angle no greater than 25 degrees and weigh no more than 4,500 pounds.[3] In other words, the guide rail that was struck was intended to contain westbound vehicles traveling up the hill, not vehicles coming from the opposite side of the highway on a downgrade. Those vehicles would have the opposite lane in which to recover and, in any event, there is no railing that is intended to, or can, stop such vehicles: the angle of impact would be a minimum of 39 degrees, meaning that a vehicle of any weight would break through anything other than a brick wall. Fitzpatrick noted that colliding with a brick wall would have such a severe impact on a fixed structure of that nature that there would rarely be any survivors.

In carrying out an accident reconstruction, Fitzpatrick stated, the three critical factors to consider are the vehicle, the roadway environment, and the human factor. According to him, inspection of the tractor involved here revealed that all mechanical systems were functioning properly. The roadway environment was also appropriate in that a driver adhering to the posted signs and directions would be able to safely negotiate this portion of the highway under the conditions present on the evening in question. His conclusion, therefore, was that the human factor – specifically, the speed at which the vehicle was being driven – was the sole contributing circumstance of the accident. Even if the brakes had not been applied and the guide rail not been present to slow the momentum of the tractor, the tractor would have been traveling at 41 miles per hour as it left the embankment. As noted, Fitzpatrick felt that the calculation of an initial speed of 48 miles per hour was unrealistically conservative, but even if no account is taken of those factors, the vehicle was traveling much faster than the posted speed limit for that portion of the highway.

On cross-examination, Fitzpatrick stated that it would simply have been impossible to put a pull-off area or deceleration ramp at this location. There would be no way to add to the roadway an abutting lane long enough to serve as a deceleration ramp, or to create an area made up of such material that would be large enough for a vehicle the size of the one at issue here to “sink” and thus stop as a result of a coefficient of friction.

As a governmental entity, the State of New York, has a nondelegable duty to maintain its roads in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271, 283 [1986]; Carroll v State of New York, 157 AD2d 697, 698 [2d Dept 1990]). It is not, however, an insurer of the safety of its roadways, and the mere happening of an accident does not render it liable (Tomassi v Town of Union, 46 NY2d 91 [1978]) or allow for the inference of negligence (Koester v State of New York, 90 AD2d 357 [1982]). Liability will attach only where it is established that planning decisions were made without due care or are inherently unreasonable (Weiss v Fote, 7 NY2d 579 [1960]; Schuls v State of New York, 92 AD2d 721 [4th Dept 1983]); or where the owner of the roadway created the dangerous condition (Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]; Valentino v State of New York, 62 AD2d 1086 [3d Dept 1978]); or where it had actual or constructive notice of a dangerous condition (Harris v Village of East Hills, 41 NY2d 446 [1977]; Rinaldi v State of New York, 49 AD2d 361 [3d Dept 1975]). In those situations, failure to timely correct or to warn motorists of known hazards may constitute a breach of the duty owed to motorists. Liability will attach against the State only if the accident was a natural and probable consequence of the State's negligence (see Dunn v State of New York, 29 NY2d 313 [1971]).

At the conclusion of Claimant’s proof, counsel for Defendant moved for dismissal of the Claim on the ground that Claimant failed to prove a prima facie case entitling him to recover damages from Defendant. At the time the Court reserved, but now grants the motion.

Claimant failed to meet his burden of establishing that the design of this portion of Route 23A was unreasonably dangerous or that the signage or design, selection, or placement of the guide rail was defective or created a dangerous condition. Without evidence demonstrating an unreasonably high number of similar accidents or expert opinion that additional steps should have been taken for a roadway on this terrain, Claimant’s contentions that trucks should have been prohibited from traveling on this portion of the road or that a pull-off ramp should have (or could have) been constructed as an additional safety feature are no more than conclusions based upon mere speculation or conjecture which are without probative value (Mueller v Hannaford Bros. Co., 276 AD2d 819 [3d Dept 2000], quoting Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699 [3d Dept 1995]). Furthermore, the conclusions of Defendant’s witnesses regarding the speed at which the vehicle was traveling were unchallenged, and consequently the Court concludes that that speed, at least four times the posted speed limit, was the sole proximate cause of the accident (see Sprague v State of New York, 35 AD3d 843 [2d Dept 2006]; Fabiano v New York State Thruway Auth., 187 AD2d 1021 [4th Dept 1992]).

The Chief Clerk is directed to enter judgment in favor of Defendant, dismissing Claim No. 109427.

July 20, 2007
Albany, New York

Judge of the Court of Claims

[1]. The Court accepts that Claimant’s amnesia regarding the accident itself is genuine and that it was caused by the accident. Consequently, regarding the happening of the accident, he is entitled to the diminished capacity inference under the Noseworthy doctrine (Noseworthy v City of New York, 298 NY 76 [1948]).
[2]. Sgt. Baker’s curriculum vitae was admitted as Exhibit D.
[3]. The tractor involved in this accident was estimated to weigh 13,000 pounds.