New York State Court of Claims

New York State Court of Claims

SHIM v. THE STATE OF NEW YORK, #2007-030-027, Claim No. 107827


Claimants failed to establish that the State of New York should be held liable for the claimants’ accident and resulting injury under the two primary theories of liability in this case. First, failed to establish any defect in the design of this area of Northern Boulevard in accordance with the engineering standards of the day, or any failure to upgrade the area in accordance with more modern standards, triggered by an appropriate reconstruction project specific to the area, or any actual or constructive notice of dangerous conditions as shown by, for example, a relevant accident history at this location. Second, failed to show that the State of New York had any control or role whatsoever in designing or constructing the access road used by the vehicle which struck claimants or in installing or maintaining the signs placed thereon. Sole proximate cause of the accident was not any defect of design on the State’s part, but the violation of Vehicle and Traffic Law provisions by the driver of the other vehicle in failing to yield the right of way to Claimants’ van

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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
July 5, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimants[1] seek recovery for personal injuries sustained in a motor vehicle accident occurring on October 6, 2002 at approximately 5:20 a.m. on the westbound section of Northern Boulevard near 126th Place in the County of Queens. Sarah Byun was a passenger in a van driven by Myung G. Shim, that collided with a vehicle driven by Danish Malhotra. The force of the collision, it is alleged, caused the van to strike an unguarded cement pole positioned close to the roadway. A joint trial of the matter was held on September 26 and 28, and November 27, 2006. This decision relates solely to the issue of liability.

Defendant’s liability is premised upon the alleged negligence on the part of its agents in the ownership, operation, maintenance control, design, construction and repair of the aforementioned roadway and traffic plan thereon. More specifically, Claimants contend that the State was negligent in that it allowed the dangerous condition of an unprotected large cement pillar supporting a viaduct to exist on a state arterial highway - Northern Boulevard - without installing protective guide rails, and further failed to post adequate warning signs or other traffic devices to prevent unauthorized vehicles from entering an access road onto Northern Boulevard.

Defendant argues that the State of New York is entitled to the qualified immunity that arises out of its highway planning in this case, because the design of Northern Boulevard in the area of the subject accident was evolved after adequate study, has a reasonable basis, and conformed with acceptable engineering practice at the time it was originally constructed. Additionally, no compelling evidence, such as an accident history demonstrating that this was a particularly dangerous location, or a major reconstruction project relevant to this location, imposed an additional duty to rebuild the area in conformance with new standards. Moreover, the state is not the insurer of the safety of its roads. Rather, its duty is to construct and maintain its highways in a reasonably safe condition. Since what is alleged in part is that the absence of a guide rail enhanced the injuries, claimants failed to establish the requisite element of such a cause of action in that they did not prove that the injuries sustained in the accident were more severe than they would have been if not for defendant’s negligence. Finally, Defendant argues, the sole proximate cause of the accident was not any defect of design on the State’s part, but the violation of Vehicle and Traffic Law provisions by the driver of the other vehicle in failing to yield the right of way to Claimants’ van.

After carefully considering all the evidence submitted, hearing all the testimony from the witnesses and observing their demeanor as they did so, the Court makes the following findings of fact:
The actual mechanics of the accident are by and large not in dispute. On October 6, 2002, Myung G. Shim was driving a van owned by his Church on the westbound side of Northern Boulevard, in the right hand lane. That area of Northern Boulevard has two lanes of traffic in the westbound direction. The eastbound direction is separated at that point from the westbound direction by a wide median. Along the median are three-across pillar supports constructed for supporting a raised highway, namely the Whitestone Expressway where it intersects with the Van Wyck Expressway. Moveable Jersey barriers containing orange and white striping were placed on the median as well, running parallel with the highway above and centered along the center pillar support of the viaduct. The speed limit for Northern Boulevard is 40 mph.

Reverend Shim and his ten (10) passengers - all church members of the Korean Church of Queens - were headed toward church for a morning service. He had been driving for approximately 15 minutes prior to the accident having entered Northern Boulevard from Union Street, a side street. The weather was good, and “there was hardly any traffic.” [T-23].[2] He had stopped for two or more traffic signals, slowing down and stopping for same. Northern Boulevard contains pedestrian traffic in parts, some on-street parking, and some retail commercial establishments. On the median itself, parking for patrons of Shea Stadium is tolerated on occasion. [T2-35].

The accident occurred - as Reverend Shim recalled - shortly before what he described as the intersection of Northern Boulevard and 126th Place. Approximately 200 to 300 feet further west of the accident site there is a traffic signal. He estimated his speed at the time as 30 to 35 miles per hour, and asserted that he did not see the other vehicle involved in the accident prior to the impact, nor did he hear a horn. He had the impression at the time, and later concluded, that the Malhotra vehicle came from an area to the right of his van. At impact, the van lost control and careened to the left and came into contact with the pillar supporting the highway overhead, located on a median separating the eastbound and westbound Northern Boulevard traffic. The impact of the Malhotra vehicle was to the front right side of Shim’s van. [T-29]. The church van suffered a frontal impact

James Rogers, a member of the Accident Investigation Squad [AIS] of the New York City Police Department [NYPD] since 1999, responded to the accident at approximately 6:00 a.m. He took photographs, took various measurements, and inspected the vehicles and interviewed the vehicle occupants.

Detective Frank J. Sinacori was the lead investigator, while Officer Rogers functioned as the technician to assist him. Detective Sinacori reviewed the material Officer Rogers prepared. Among other things, Officer Rogers drew an accident sketch that was part of the AIS file. [Exhibit 21]. Detective Sinacori was charged with determining the cause of the accident, and determining to whom a summons would be issued if any.

Discussing where the vehicles came to rest and the mechanics of the accident, Detective Sinacori said that the church van came to rest on the south side of westbound Northern Boulevard against one of the right-most pillars holding up the Whitestone Expressway. The pillar was located within 15 feet of the traveled portion of westbound Northern Boulevard. No guide rail is installed between the traveled portion of the roadway and the pillar. The detective said that the Chevy Blazer driven by Mr. Malhotra entered Northern Boulevard after exiting the southbound Whitestone Expressway, via an unmarked entrance ramp or access road, that immediately emptied out into the right lane of traffic on westbound Northern Boulevard. No signs are on this access road to mark it by name, nor are there any traffic control devices, such as a stop, or a yield sign, at the entrance to Northern Boulevard at this location. The access road intersects with Northern Boulevard at an almost 90-degree angle.

Detective Sinacori concluded that Mr. Malhotra failed to yield to the oncoming traffic when he entered Northern Boulevard. He was issued a summons for this violation of the vehicle and traffic law, and was convicted of the offense. [Exhibit D]. Detective Sinacori also concluded that regardless of the lack of any traffic signs at this location, it would not have mattered, since the cause of the accident in his view was the Malhotra vehicle’s failure to yield as required by law based upon his examination of the site, his investigation including interviews of the participants and his experience with regard to signage.

After the accident, Detective Sinacori completed a “possible hazardous condition” form, directed to the City of New York. [See Exhibit A]. He notified them that a fatal accident had occurred at that location, that there were no traffic-control devices, and that perhaps a site survey should be initiated to determine if such devices were necessary. He also notified the highway safety officer for that command. No New York State agencies were notified.

Robert T. Hintersteiner, a self described transportation forensic engineer, testified as claimants’ expert. His primary related experience appeared to be his work with the City of New York Traffic Department in both the highway traffic and city street traffic parts, specifically the sign unit, although he had worked for the NYSDOT for three (3) years starting in 1962, in a region encompassing New York City and Long Island. He worked as a construction inspector on the Alexander Hamilton Bridge, and had worked as an engineering aide on some of the arterial roadways within New York City, but never worked on the preparation of any highway drawings nor did he work as an engineer in charge on a construction job. He asserted that he was familiar with the appropriate engineering standards such as those contained in AASHTO (American Association of State Highway and Transportation Officials), and the New York State Highway Design Manual (hereafter HDM). He acknowledged that he had never been certified in accident reconstruction nor had he taken any specific course or training leading to such certification.

When he made his on-site inspection on October 16, 2003, he observed that the access road used by the Malhotra vehicle was clearly not intended as a general entranceway for the public, but was, rather, intended for use by construction vehicles and the like under the auspices of either the NYSDOT or the NYCDOT. He said that he saw a cherry picker and other construction trucks and what might have been a city truck parked in what he ultimately marked as a “work and storage area” to the left side of the access road on a diagram that he drew of the location. [See Exhibit 41]. He presumed it was a staging area for contractors, but acknowledged that generally State drawn plans will not include a staging area thereon, and that it is simply selected by whatever contractor is working the job. Notably since he did not review any work documents for the contractor, where the staging area would be noted and then filed to advise the State of the contractor’s intention, he had no information to indicate that the storage area was used or controlled by the State of New York.

As he examined the area further, he noted the right angle approach from the access road, and the presence of a designed merge entrance only a couple of hundred feet up from the access road. He also saw that as one entered Northern Boulevard from underneath the Van Wyck Expressway until the access road cut in, there were guide rails on the right hand side of westbound Northern Boulevard, but none on the left hand side. Moving further west – in the actual area of the accident – there were no guardrails on the left or right sides until after the designed merged onto westbound Northern Boulevard.

A guide rail is utilized to protect vehicles that may go off the roadway from striking obstructions as they enter a clear area containing same, he said. The vehicle is deflected by the guide rail. A pillar such as the one struck by claimants’ vehicle is a fixed object that presents a fixed roadside hazard that, in his opinion, required the protection of a guide rail based on the rate of speed of the highway.

He opined that the current standards required that when a highway has a speed of 40 miles per hour – as does Northern Boulevard – there should be no obstructions within 25 feet of the travel way. Since the pillars of the viaduct were within 15 feet of the travel way, a guide rail should have been installed to protect the errant vehicle.

Mr. Hintersteiner discussed the original construction plans dated June 22, 1961. [See Exhibit 26]. Notably, what portions of the plan were submitted in evidence had been selected and copied by him during consent discovery, and did not contain the entire project. The entire design had included the location of the accident, and also the Van Wyck Expressway, the Whitestone Expressway and the Grand Central Parkway as part of the preparation for the World’s Fair. He focused on Sheet 130 – a detail plan – and opined based on this sheet that guide rails had originally been called for in the highway design at this location. Sheet 130 showed that a guide rail was to be placed adjacent to columns to protect the columns and to protect wandering vehicles. Although Mr. Hintersteiner acknowledged that there was no detail on which column or columns was or were referred to, he viewed it as a standard detail referable to all columns as they related to a certain distance from the traveled way.

Had there been a guide rail present on the south side of westbound Northern Boulevard, he said, the Shim van would have been deflected back onto the road, never hitting the column. Rather than an impact to the full front of the van, the left side of the vehicle would have been impacted. The crush damage to the front of the van, as it was, intruded into the driver compartment. Because guide rail is designed to absorb the energy of the impact, there would not have been the direct impact that occurred to the van.

Mr. Hintersteiner acknowledged that in 1961 and 1962 there were no published standards for guide rails and fixed barriers on urban roadways in the State of New York., and that the HDM – specifically Chapter 10 concerning guide rails – did not exist. [See Exhibit 40]. Additionally, he agreed that there is usually a specific contract sheet for a specific location for placing guide rail or other improvements. When he reviewed the contract drawing sheet for the south side of westbound Northern Boulevard – by the center median – there was absolutely no indication that the State of New York planned guide rail there in 1961, although guide rails were planned for the north and west sides. He agreed that it was an engineering decision to determine whether a guide rail was required on the basis of looking at each location, and that the plan he reviewed evidences that no guide rail was deemed required in 1961 or 1962.

Additionally, the access road does not appear anywhere on the original or even subsequent plans. He opined that since it did not appear on plans, it should have been removed.

Two subsequent construction projects performed near the area of the accident after 1961 required that the area be brought in line with modern standards by placing guide rails he opined. In 1990, the State rebuilt the Van Wyck Expressway and the Whitestone Expressway westbound. The 1990 plans show that there was to be rehabilitation of the Van Wyck Expressway and the Whitestone Expressway viaduct. [Exhibit 38]. It involved tearing down sections of pavement on the Whitestone Expressway and replacing it. He acknowledged, however, that the existing structure was not changed or realigned or repositioned, nor was there any indication on the plan that showed that the grade was altered on Northern Boulevard westbound or that its alignment was changed in any fashion. He also acknowledged that the project was on the north side of westbound Northern Boulevard.

In 1992 there was another rehabilitation contract for work on the eastbound side, to make sure that the viaduct structure did not collapse. [Exhibit 39]. Any work done on grade was exclusively related to the structure. No structural changes to the condition of Northern Boulevard are provided for in the contract.

Nonetheless, Mr. Hintersteiner opined that in 1990 and 1992 guide rail should have been placed in the area of the accident to conform with the engineering standards of the day. He said that the HDM came out in the early 1970s, and had been revised since.

In discussing what category of roadway Northern Boulevard is for the purposes of the HDM, Mr. Hintersteiner indicated that he characterized it as a freeway in this location, in that it had limited access with no traffic signals and access only by entrance or exit ramps. He would disagree with characterizing Northern Boulevard as an urban collector based on the design criteria for the State of New York. Chapter 10 regarding the criteria for installing guide rails should have been implemented during the later reconstruction in his opinion. He opined within a reasonable degree of engineering certainty that when the viaducts were rebuilt in 1990 and 1992 these rules were not followed with regard to clear zones and the column, and that the failure to place a guide rail before the column was a deviation from good accepted practice.

Mr. Hintersteiner indicated that he was familiar with the statutory City/State Arterial maintenance agreement for the City of New York [see Highway Law §349]. As he understood it, the State of New York builds the highways that traverse the city, the City of New York accepts the highways and then takes over the maintenance of placing signs and certain items on the highway. If a major reconstruction is involved, then the State performs it.

With regard to what entity set the speed limit on Northern Boulevard, Mr. Hintersteiner thought it was a joint responsibility, but then agreed that it was most likely the City of New York that had set the 40 mph speed limit for the area, and that the City could change the speed at will. He saw no indication, other than some initial proposed speeds in the State plans, that the State of New York had any involvement in the selection of the speed limit of the road. Moveable Jersey barriers placed on the center median along the central pillar of the viaduct were placed by the City of New York, he thought, since the State of New York did not use that type of barrier.

It was also conceded that the State of New York had no role in placing whatever signs had been placed or removed on the access road. His research had revealed that in June 1986 signs were installed at the entrance off the ramp coming from the Van Wyck Expressway, as well as Northern Boulevard with a “do not enter sign” and “one way” signs and a “stop” sign. The signs were replaced in November 2002. Between June 1986 and November 2002 no other work orders for signs were generated. Additionally, the signs placed in November 2002 were of the same type and in exactly the same location as those placed by New York City in 1986. Work orders for signage on the access road were generated exclusively by the NYCDOT. [See Exhibit B]. The witness had no knowledge as to when – between their installation in 1986 and the date of the accident when the testimony showed there were no signs – the signs were first missing or removed.

Nonetheless, Mr. Hintersteiner opined that because this should have been a restricted access road, and despite the road not appearing on any State plans or having ever (apparently) been brought to the State’s notice, the State should have placed signs to restrict access which was the accepted practice as it existed on the day of the accident. Further, he maintained that although the State of New York had included guide rails in its design – still on the basis of Sheet 130 – same were not installed for 41 years: a defective condition pursuant to State guidelines in his view.

Finally, he acknowledged that the lack of a guide rail did not cause this accident, and he further agreed that on the “operational” but “not the design end of it”, New York City was responsible for not protecting the motoring public by not putting a guide rail on the south side of westbound Northern Boulevard and for not restricting the illegal usage of the access road. [T2-85]. He did not have any knowledge as to who installed guide rails in any other areas of Northern Boulevard.

He was unaware of any safety studies done in the area between 1961 and 2002 when the accident occurred, was unaware of any notification to the State that this was a dangerous location, nor had he seen any documents indicating that this was an accident prone location, prior to October 2002.

After Claimants rested at this point, the Defendant called two witnesses: Richard Stempel, Design Supervisor of the NYSDOT for Region 11, encompassing the New York City area, and Bruce Savik, Defendant’s engineering expert.

In his current position as a design supervisor of Region 11, Richard Stempel’s specialty is consulting for guide rail design. Whenever there is a question on guide rails or barriers he is the person consulted and has been so since 2001 in the New York City region. He performed the same function in the Albany region for 15 years as well. As long as he has been with the NYSDOT there has been a Highway Design Manual, and that is the document he consults when his advice is sought.

Chapter 10 of the HDM, entitled Roadside Design, Guide Rail and Appurtenances, sets forth design standards for guide rails. [Exhibit G]. Although the HDM - including this chapter - was not in existence in 1961 as far as he knew, it was extant when this accident occurred in 2002. Chapter 2, dealing with the classification of roadways, was in existence in its present form as far back as 1980. [Exhibit F]. What is most significant is that roadways within the arterial system for the State of New York are classified therein.

He noted that the definitions for roadways are the same ones he heard in college - before 1977 - and they come from AASHTO. Within New York City, the functional classifications of roadways “go from highest to lowest” and start with interstates, then arterials, then collectors and then local roads and streets. [T2-128]. “Interstate highways are freeways on the interstate highway system. Generally they are inter-regional high speed, high volume, divided facilities with complete control of access.”[T2-131]. An “urban arterial” is defined as “generally carry[ing] large traffic volumes within and through urban areas. They vary from multilane, divided controlled access facilities, to two-lane streets.” [T2-135]. “Urban collector streets link neighborhoods or areas of homogeneous land use with arterial streets. They serve the dual function of land access and traffic circulation.” [T2-135].

Mr. Stempel said that the roadways are classified as to their use in order to have different practical design criteria for each classification. Most importantly, there is different criteria within the manual for placing guide rails “indirectly” related to the classification of the roadway, Mr. Stempel said, in the sense that what the clear zone requirements are changes depending on the type of roadway. “[B]y defining clear zone differently, it indirectly defines where you need guide rail.” [T2-136-137].

These criteria based on functional classification of roadways for clear zone in Chapter 2, and taken from AASHTO, were in effect in 2002, in effect in 1990, and in effect even further back, though not in effect in 1961 or 1962.

“The NYSDOT,” he said:
“. . . defines clear zone[3] as that portion of the roadside border width starting at the edge of the travel way that the department commits to maintaining in a cleared condition for safe use by errant vehicles. The width of the clear zone will be as last documented in the design approval documents, the project files or in the contract document.” [T2-138].

Stempel testified - indeed, he read from the HDM at counsel for claimants’ insistence - that the term “clear zone” for interstates and other freeways is defined in the HDM

“on the right side the minimum and desirable are both 3 meters empty . . . [On the] left side the minimum and desirable are 1.2 meters, which is 4 feet” empty. [T2-139-140].

With regard to urban arterials, there is one standard for the left and the right:
“. . . [F]or divided arterials, [the] minimum is zero. The desirable .3 to .6 meters, which is one to two feet.” [T2-140].
With regard to urban collectors the design criteria for the clear zone on the

“left shoulder [is] zero to .3 to .6 . . . one to two feet. And on the right [the] same thing . . . Just one to two feet.” [T2-140].
Different clear zone criteria are used if one is designing an urban collector versus a freeway. That is the guideline - what clear zone criteria is required for what type of roadway - to determine the necessity or the desirability of guide rails in a particular location. Most of Northern Boulevard, Mr. Stempel said, would be an “urban collector.” At most, any other part of Northern Boulevard would fall under an “urban arterial” designation. No part of it, however, would be designated as a freeway, because it does not meet the freeway criteria as described in the HDM.

Mr. Stempel said that the part of Chapter 10 of the HDM concerning the relationship of the speed of certain roadways to the distance to fixed barriers simply does not apply to urban collectors, because the clear zone that is required for a freeway is not required for a roadway classified as an urban collector. [T2-142]. As an urban arterial, also, lower clear zone requirements apply.

The HDM, he stressed, is where you look for guidance on placement of guide rails, and that is where Mr. Stempel looks when asked to consult about same. Although he has been consulted for over 15 years concerning guide rails in New York City and beyond, he has never been consulted about guide rails for urban collector roadways and, more specifically, for Northern Boulevard.

On cross-examination, Mr. Stempel agreed that the HDM states that when there is a fixed object in the clear zone, you should strive to protect it with a barrier or shield of some kind. He also agreed that there is nothing “directly” stated in the manual that precludes the placing of guide rails on roads that are designated as collector streets. “Not directly, but indirectly,” he said. [T2-152].

Finally, Bruce Savik, Defendant’s engineering expert, testified. He is a licensed civil engineer working as a partner in a firm which does work designing highways among other things, and has worked on highway design since he started in the field of engineering. Mr. Savik has reviewed design documents for the construction of roadways extensively, as well as testified concerning such documents. He is familiar with the guidelines and types of standards that apply in the area of highway design, such as AASHTO and the HDM. He explained that AASHTO is a national publication that tries to standardize designs throughout the entire country. It started with the rural highways and progressed ultimately into urban highways. AASHTO is treated as a guideline. They are used as a reference book by designers, in the sense that if a particular issue comes up while designing, such as the degree for a curve, one goes to AASHTO looks up a particular topic and then reads it and extracts from it. [T3-10]. They are not mandatory standards. HDM functions almost in the same way as AASHTO publications except that it is more specifically attuned to what New York State wants to see in its designs within the State. [T3-10-11].

Mr. Savik has testified between 3 and 5 times, he said, concerning the design of roadways within the City of New York as it relates to fixed barriers and guide rail placement.

As part of his investigation, he reviewed 5 different sets of drawings including the original drawings from 1961, one from 1963, one for the Whitestone Expressway, and the rehabilitation contract designs for 1990 [D25370]; 1991 [D252941]; and 1992 [D254549]. He relied on these drawings, the documents and photographs of this case, and his expertise as an engineer to evolve his opinions.

Describing Northern Boulevard generally, he said that eastbound lanes in this area have several stores and business entrances, while on the westbound side the various entrances to the roadway abound. The City bus runs in the westbound direction, making stops. New York City set the 40 mph speed limit in this area. After the traffic light ahead of the accident site on the westbound side, the road gets elevated eventually and goes over the Grand Central Parkway and continues on into Queens. [T3-15]. Just before the accident site, on the westbound side there is a service road similar to an on-ramp onto Northern Boulevard. It comes from off the Whitestone Expressway, and is designated as “ramp A on the plans.” [T3-17]. It is joined by a service road coming onto Northern Boulevard. [T3-17]. The Malhotra vehicle was not entering along the designed service/ ramp entrance onto Northern Boulevard, however.

The original design scheme was a “very large project.” [T3-18]. The State was “designing the elevated portions of the Whitestone Expressway, Grand Central Parkway and the Van Wyck, where they all came together.” [Ibid]. Mr. Savik agreed with Hintersteiner’s statements to the effect that at the time this project was designed, there were no written guidelines or protocols for urban roadways as to the issue of barrier placement and guide rails. There was no New York State guideline within any design manual on that issue. Indeed, he agreed that the HDM only came into effect in the early 1970s.

Mr. Savik disagreed, however, with Mr. Hintersteiner’s interpretation of the original plan documents. Sheet 130, he said, had the limited function of being a “detail sheet which gives you the specifications [on] how to install certain improvements.” [T3-21]. It does not indicate where the guide rails (or other improvements) were to be installed on a given job, because that information is found at another location on the plans. Such information is found generally at two locations on New York State plans. On these 1961 documents it was called a “plan of roadway items”. [T3-22]. Additionally, there is also a “table that is done for all the improvements. They do a table for sidewalks, curbs, guide rail [and] pole relocations. A series of tables.” [T3-22].

Mr. Savik said that Sheet 55 on Exhibit 26 contains the plan of roadway items he referred to. If guide rails were to be placed at the location where this accident took place in the original design that information would appear on Sheet 55, not on Sheet 130. Indeed, guide rails for other locations are shown on Sheet 55, “but not in the location we’re talking about here on westbound Northern Boulevard.” [T3-22-23]. As an engineer, Mr. Savik agreed that if something is not shown on the plans at that location, it means that you are not going to construct them there; they were not intended to be there by the designers who created the plan.

The other place you would see a plan for locating guide rails would be a table sheet. Mr. Savik said that in Exhibit 26, there is no table sheet for this location. Mr. Savik referred to another copy of the contract – more complete – that had a Sheet 22 which contains the table sheet for guide rails. [See Exhibit E]. The witness correlated the tables for the “whole entire length of the construction on Northern Boulevard.” [T3-26]. There were no listings for guide rails to be placed at the stations which correlate specifically to where this accident took place. From this information, one can infer as an experienced engineer used to reviewing New York State design documents that the designers came to a conclusion that guide rails were not necessary at that location.

Mr. Savik noted that the access road used by the Malhotra vehicle does not appear anywhere on the State’s designs in 1961 or 1962. [Exhibits 26 and E]. The 1990 and 1992 plans do not have any indication that the access road the Malhotra vehicle took was constructed or designed by the State of New York either. [Exhibits 38 and 39].

Mr. Savik opined to a reasonable degree of engineering principles that Northern Boulevard was designed and constructed by the State of New York with good and accepted engineering practices as they existed at the time, and also opined that as constructed it met all State design criteria at the time. In the early 1960s, he said, it was only AASHTO in terms of design criteria, and perhaps some internal memoranda circulated in the NYSDOT. All the approvals cited on the cover page attest to the plans having conformed with the design standards of the day. Together with his own knowledge of such standards, and his review of the plans, he opined that the design met all the design criteria that the State had in mind at the time of its design and construction.

Mr. Savik also reviewed the other post-design and construction contracts for the rehabilitation work done in the 1990s. [See Exhibits 38 and 39]. There were no geographic changes to the roadway where the accident took place. Nothing in the rehabilitation work represented by the contracts addresses the westbound side of Northern Boulevard in any event. While the work was done in the general geographical area, it was not done on this part of Northern Boulevard.

A “rehabilitation” is when “an item that had deteriorated and the state saw a reason to rehab the items, whether it was concrete decks falling or whatever . . . it [meaning the contracts] wasn’t in the accident location.” [T3-31]. There is a difference between rehabilitation and reconstruction. A rehabilitation addresses certain very specific items. Both Mr. Hintersteiner and Mr. Savik agreed that the 1990s contracts were rehabilitation contracts.

While Mr. Savik agreed that “sometimes” when a rehabilitation contract is involved, when the work is done new standards might be implemented” he said that it occurred infrequently, because “most rehab jobs are very specific to a particular construction item.” [T3-38].

He expressed himself as familiar with documents used in engineering design to make determinations as to what roadways are and what roadways are not urban collectors or arterial highways – saying that “[t]here are descriptions and definitions of each of those, and sometimes there are little gray areas they overlap.” [T3-39]. He said Northern Boulevard is an urban collector in his opinion.

The renovations in 1990 were to the roadway above. “One of those was a superstructure replacement”, in the general area above Northern Boulevard. [T3-48]. The footings are on Northern Boulevard. He said:
“The footings weren’t changed . . . You have a concrete footing . . . supporting a column going up that holds up the superstructure up above, which is the girders, the steel and the concrete pavement. So when they did the structural rehab of the upper part of the roadway, the column remained, the footing remained.” [T3-49].
Mr. Savik agreed that in the 1990s HDM chapter 10 spoke of obstructions next to the roadway such as the pillars involved in this case.[T3-49]. He also agreed that for certain types of roadways barriers were suggested, and, again, depending on the type of roadway, there might be a need for guarding or shielding of a fixed object on a 40 mph road. On Northern Boulevard, however, this was not the case, and was not the standard in his opinion. [T3-53-54].

Photographs and NYSDOT photo logs reviewed by the two experts, and by the Court, depicted the scene of the accident and surrounding areas. [See Exhibits 1-20; 25, 27, 37].

No other witnesses testified.
It is well-settled that the State has a non-delegable duty to design, construct and maintain its highways in a reasonably safe condition for the traveling public. Friedman v State of New York, 67 NY2d 271 (1986). The State is not an insurer of the safety of its highways, and in fulfilling its obligation to the public the State may assume that those using the roads will use reasonable care and obey the law governing the operation of motor vehicles. See, Tomassi v Town of Union, 46 NY2d 91, 97 (1978).[4] A “highway may be said to be reasonably safe when people who exercise ordinary care travel over it in safety.” Boulos v State of New York, 82 AD2d 930, 931 (3d Dept 1981), affd, 56 NY2d 714 (1982).

Where a claim is based upon negligent design, the State’s planning and decision making function enjoys qualified immunity. Alexander v Eldred, 63 NY2d 460 (1984); Weiss v Fote, 7 NY2d 579 (1960)[5], rearg. denied 8 NY2d 934 (1960). Liability attaches only when the design was evolved without an adequate study or lacks reasonable basis, or when the governmental entity fails to timely implement its own design plans. It is the standards of the day that apply with respect to a design. Failing to correct a known hazardous design could render the State liable based upon that continuing duty to review plans in light of actual operation. See Atkinson v County of Oneida, 77 AD2d 257, 261 (4th Dept 1980)[6], appeal after remand, 89 AD2d 826, affd 59 NY2d 840 (1983); see also Van Son v State of New York, 116 AD2d 1013 (4th Dept 1986); Segnit v State of New York, 148 AD2d 519 (2d Dept 1989), appeal denied, 75 NY2d 702 (1989); Zalewski v State of New York, 53 AD2d 781(3d Dept 1976).[7] There is no duty to rebuild roads to current standards for new construction, new design or new manufacture, unless there is compelling evidence of an unreasonably dangerous condition. Trautman v State of New York, 179 AD2d 635 (2d Dept 1992); Schwartz v NYS Thruway Authority, 95 AD2d 928 (3d Dept 1983), affd 61 NY2d 955 (1984); Puliatti v State of New York, 91 AD2d 1192 (4th Dept 1983), appeal denied, 59 NY2d 603(1983); Stuart-Bullock v State of New York, 38 AD2d 626 (3d Dept 1971), affd 33 NY2d 418 (1974); Rittenhouse v State of New York, 134 AD2d 774 (3d Dept 1987); Hagen v State of New York, 53 AD2d 802 (3d Dept 1976). New guidelines alone do not trigger a duty to reconstruct in the State of New York. See Preston v State of New York, 6 AD3d 835, 836 (3d Dept 2004), lv denied, 3 NY3d 601 (2004). Making limited improvements to an area does not then require an upgrade to current standards of the entire infrastructure of the surrounding area. See Benjamin v State of New York, 203 AD2d 629 (3d Dept 1994).

Perhaps most importantly, whatever kind or degree of negligence is asserted it is a claimant’s burden to show that the negligence claimed is a proximate cause of his injuries. Jordan v State of New York, 249 AD2d 279 (2d Dept 1998); Hearn v State of New York, 157 AD2d 883,885 (3d Dept 1990), appeal denied, 75 NY2d 710 (1990).

Although not the insurer of the safety of its highways, the State is nonetheless responsible for properly posting, maintaining and positioning signs along a State highway designed to warn motorists of hazards that may lie ahead, and in installing and maintaining appropriate traffic control devices where warranted. See e.g. Cianciola v State of New York, 2002 WL 1969257 (Ct Cl 2002),[8] affd sub nom 38 AD3d 1296 (4th Dept 2007). The mere happening of an accident at a particular location on a State highway does not necessarily render the State liable, however. A claimant must establish either that the state created or had actual or constructive notice of the existence of an unsafe or dangerous condition and then failed to take reasonable measures to remedy that condition. Fowle v State of New York, 187 AD2d 698 (2d Dept 1992). The conditions must be of such a nature and degree so as to put the State on notice to make closer inspection. See e.g. Edwards v State of New York, 269 AD2d 863, 864 (4th Dept 2000).[9] Finally, having shown that there was a breach of duty by Defendant’s failure to remedy the dangerous condition, a claimant must establish that the breach proximately caused the accident and the resulting injuries. Donaghy v Bilotti, 159 AD2d 478 (2d Dept 1990), appeal denied, 76 NY2d 702 (1990);1[0] see also Shaw v State of New York, 196 Misc 792 (Ct Cl 1949).

Every motorist is bound to use his senses to see what is before him. Robinson v State of New York, 38 Misc 2d 229, 234 (Ct Cl 1962), affd, 19 AD2d 946 (3d dept 1963), appeal denied, 14 NY2d 484 (1964). Thus, even where the defendant had failed to replace a stop sign that had been knocked down by a sanitation truck almost one month earlier, when the driver failed to yield at the intersection the stop sign should have controlled to the vehicle approaching on its right, the First Department still found that the driver was obligated to correctly judge when the other vehicle would reach the intersection - making allowances for his own physical disabilities - and that the lack of a stop sign was not the proximate cause of the accident. Sherman v City of New York, 206 AD2d 272 (1st Dept 1994), lv denied, 85 NY2d 802 (1995).

Under the two primary theories of liability in this case, Claimants have failed to establish that the State of New York should be held liable for the claimants’ accident and resulting injury. First, they have failed to establish any defect in the design of this area of Northern Boulevard in accordance with the engineering standards of the day, or any failure to upgrade the area in accordance with more modern standards, triggered by an appropriate reconstruction project specific to the area, or any actual or constructive notice of dangerous conditions as shown by, for example, a relevant accident history at this location. Second, they have failed to show that the State of New York had any control or role whatsoever in designing or constructing the access road used by the Malhotra vehicle, or in installing or maintaining the signs placed thereon. With regard to both theories in any event, Claimants have not established that any duty owed was breached, and that such breach was a proximate cause of Claimants’ unfortunate accident and resulting injuries.

Claimants’ own expert acknowledged that at the time this roadway was designed and constructed, there were no strict standards concerning guide rail placement requiring State compliance, but rather standards were in development. The design conformed to acceptable engineering practices of the day. The State’s expert, too, attested to the fluidity of standards in the early 1960s, and opined that the project was in conformance with what engineering practices there were, and that the specific configuration of Northern Boulevard was in conformance with same.

Most persuasively, the State’s expert more comprehensively examined the contract documents for the original design, and convinced the court that the Claimants’ expert misread the plans when he concluded that guide rails were called for in the 1960s plans for Northern Boulevard. Mr. Hintersteiner’s exclusive reliance on an isolated detail sheet in a voluminous set of papers was misplaced, given the more detailed explanation offered by Mr. Savik as to how the plans are to be interpreted. Instead of, essentially, proving a negative: Mr. Hintersteiner’s approach; Mr. Savik showed where in the complete contract the provision for installing guard rails - if any such installation was determined as a design necessity by the designers - would have been located. Thus this is not a situation where a planned design was not followed.

No accident history was presented. The 1990s rehabilitation contracts submitted and discussed are clearly specific to the projects stated therein, are not pertinent to the location of this accident, and do not impose an obligation upon the State to revisit its earlier design or upgrade it to conform with new standards, absent some showing of danger or other compelling circumstance. It is axiomatic that any roadway can be made safer. Nonetheless, there is no duty to reconstruct an area to meet new standards, if all that has occurred is that design ideas have evolved or been harnessed into a code or a manual - such as the HDM - unless there has been some notice to the State that the roadway is not reasonably safe for travelers exercising reasonable care. See generally Trautman v State of New York, supra; Rittenhouse v State of New York, supra; Hagen v State of New York, supra.

In this case, both experts acknowledged that the construction contracts from the 1990s were not reconstructions of the subject roadway, but were in the nature of improvements. One dealt only with the roadway above supported by the viaduct; the other involved only the eastbound side of Northern Boulevard. As stated, these types of jobs did not require that the entire roadway be brought up to current standards. See Preston v State of New York, supra; Benjamin v State of New York, supra. No competent or compelling evidence that somehow this part of the roadway, and more particularly the fact that a supporting column existed approximately 15 feet from the traveled portion of the roadway, rendered this part of Northern Boulevard more dangerous than any other part of the highway system. See Ames v City of New York, 177 AD2d 528 (2d Dept 1991).1[1] The only notice provided - and that was to the City of New York - arises after this terrible accident, and pertains only to signage on the access road.

Finally, the Claimants failed to relate the fact that Northern Boulevard may be part of the arterial highway system [see Highway Law §349-f] to any corresponding obligations as between the City of New York and the State of New York. [see Highway Law §349-c]. The statutory obligations rest on the issue of control, as well as notice of dangerous conditions. See Gregorio v City of New York, 246 AD2d 275 (1st Dept 1998), lv dismissed 93 NY2d 917 (1998); Nowlin v Cilty of New York, 81 NY2d 81 (1993). Based upon the showing made in this case, Claimants have not provided a necessary nexus between any State action (or inaction) and the happening of this accident. In this connection, it again bears repeating that the State design of the highway was in keeping with the standards of the day, the subsequent rehabilitation contracts did not require an upgrade of this area of Northern Boulevard, and there is absolutely no showing of control by the State at this location, and no relevant accident history or other evidence of danger about which the State had notice and an opportunity to correct same.

Accordingly, Claimants have failed to establish by a fair preponderance of the credible evidence that the State should be held responsible for this tragic accident. There was no showing that Defendant deviated from accepted engineering standards and that such departure was a proximate cause of the accident, and other factors alone - primarily the failure of the other driver to yield to oncoming traffic - were the contributing causes of this accident.

Claim numbers 107827 and 109119 are hereby dismissed in their entirety.

Let judgment be entered accordingly.

July 5, 2007
White Plains, New York

Judge of the Court of Claims

[1].The claims of Myung G. Shim and Kyung Ho Shim (Claim Number 107827) and Sarah Byun and Young M. Byun (Claim Number 109119) were tried jointly. The claims of Kyung Ho Shim and Young M. Byun are derivative only.
[2]. References to Volume I of the trial transcript are indicated as “T” with the page number. References to Volumes II and III of the trial transcript contain a volume number and page number as well, indicated as “T2” and “T3” respectively.
[3].Clear zone defined in the HDM at “ . . . [T]hat portion of the roadside border width starting at the edge of the travel way that the department commits to maintaining in a cleared condition for safe use by errant vehicles. The width of the clear zone will be as last documented in the design approval documents, the project files or in the contract document. If warranted by special conditions, the clear zone may include occasional unshielded fixed objects, provided a reasonable rationale is documented.” [Exhibit G].
[4]. “. . . So long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied . . . ”, at 97.
[5].“In the area of highway safety, at least, it has long been the settled view, and an eminently justifiable one, that courts should not be permitted toreview determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits; something more than a mere choice between 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. No such evidence was offered here.” Weiss v Fote, infra at 588.
[6]. “Plaintiffs do not question the propriety of the county's actions in 1969 when it surveyed its roads and erected signs thereon. Instead, plaintiffs contend that the county failed in its duty in subsequent years to review its plan and actions of 1969. Plaintiffs are correct in asserting that the county ‘was under a continuing duty to review its plan in the light of its actual operation’ (Weiss v Fote, 7 NY2d 579, 587, supra; Eastman v State of New York, 303 NY 691; Niagara Frontier Tr. System v State of New York, 57 AD2d 59, 62, supra). Evidence that physical conditions at the intersection had changed, that the 1969 ‘signing’ was proving inadequate, and that an inordinate number of accidents has occurred at the intersection are factually sufficient to demonstrate a violation by the county of its ‘continuing obligation to maintain the safety of the highways’ (Weiss v Fote, supra, p 587).” Atkinson v County of Oneida,77 AD2d at 261.
[7]. Zalewski, supra, Van Son, supra, and Segnit, supra all involve the failure to either upgrade or appropriately replace guard rails. With respect to the first two cases, notice of a dangerous condition was well established. In Zalewski, supra, the State contended that the correctness of their design could not be reviewed by the courts
because the structure in question complied with good engineering practices in effect at the time it was built. In rejecting this argument, the Court held that the State was liable if the design lacked a reasonable basis and subsequent events demonstrated the presence of a dangerous condition.
With regard to Segnit, however, no notice was established.
[8]. State’s failure to post precautionary speed advisory sign negligent; such negligence proximate cause of motorcyclist’s injuries.
[9]. Claimant failed to establish that prior accident history at intersection warranted investigation of the conditions at the intersection where Claimant alleged failure to post “stop ahead” sign in advance of intersection, and failure to maintain the stop sign at a certain height, caused the accident. Claimant had alleged she did not see the stop sign before proceeding into the intersection and striking another vehicle.
1[0]. City’s failure to maintain yield sign on expressway exit ramp not proximate cause of plaintiff’s injuries. Driver’s car went out of control and was sole cause of accident.

[1]1. “ ‘Under . . . [the] doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan . . . Once the [governmental entity] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger . . . Moreover, after the [governmental entity] implements a traffic plan it is under a continuing duty to review its plan in the light of its actual operation' (Weiss v Fote, 7 NY2d 579, 587 . . .) When, however . . . analysis of a hazardous condition by the municipality results in the formulation of a remedial plan, an unjustifiable delay in implementing the plan constitutes a breach of the municipality's duty to the public just as surely as if it had totally failed to study the known condition in the first instance’ (Friedman v State of New York, supra at 284-286).

In this case, a proliferation of accidents on the Interborough Parkway prompted a study of the roadway by the City's Department of Transportation, Office of Arterial Highway Planning, which ultimately concluded in January of 1972. The report described the Interborough Parkway as ‘one of the more dangerous highways in the City’ a characterization confirmed by City employees at trial, one of whom admitted that it was ‘probably the worst road we had’. The report detailed the many hazards of the roadway, including the frequency of ‘sideswipe’ and ‘crossover’ accidents. Recognizing that the imperative major reconstruction of the Interborough Parkway was financially prohibitive in the absence of State and Federal funding, the study proposed that interim safety measures be implemented. While the report set forth four specific measures to ‘be done as soon as possible’, these measures were not deemed exclusive, for the report continued: ‘This work, and any other that is deemed necessary to improve safety, should be implemented as soon as possible to serve in the interim period before reconstruction’. The author of the study testified at trial that the installation of Jersey barriers along the entire length of the roadway was a needed safety measure . . . In light of this evidence, the conclusion is inescapable that the City's qualified immunity defense was properly rejected as a matter of law. The City failed to demonstrate, at trial, that the nine-year delay between its recognition of the hazardous condition of the Interborough Parkway and the accident ‘stemmed from a legitimate ordering of priorities with other projects based on the availability of funding’(Friedman v State of New York, supra, at 287). Nor did it even attempt to adduce evidence tending to establish that it could not legitimately afford the cost of installing Jersey barriers or, alternatively, repainting the roadway. Hence, the delay remained ‘unjustified’ and as such, it ‘constitute[d] a breach of the municipality's duty to the public just as surely as if it had totally failed to study the known condition in the first instance’ (Friedman v State of New York, supra; . . . [ balance of citations omitted]).” Ames v City of New York, infra at 531-532.