BARBOSA v. THE STATE OF NEW YORK, #2007-030-029, Claim No. 111539
State of New York not liable for injuries from collision with DOT truck
operated during course of driver’s employment, claim dismissed. Conduct
measured by ordinary negligence rather than statutory reckless standard under V
& T Law §1103(b), since driver not actually engaged in highway work at
the time of accident, but performing routine task of moving snow plow from a
storage facility. Claimant’s version of events not credible. More in
keeping with common experience that claimant failed to complete an effective
pass and mis-negotiated the size of the plow attached to the front of the
slow-moving truck, and was “clipped” by the plow.
JEANINE T. BARBOSA
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
RICHARD A. BERNSLEY, ESQ.BY: DAVID F. EVERETT, ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
July 17, 2007
See also (multicaptioned
Jeanine T. Barbosa alleges in her claim that the State of New York should be
held vicariously liable for the negligent operation of one of its vehicles
driven by an employee during the course of his employment with the New York
State Department of Transportation (hereafter DOT). Due to such negligent
operation, she alleges, the DOT vehicle collided with the vehicle driven by
claimant, causing her to suffer serious injury. Trial of the matter was held on
April 26, 2007. This decision relates solely to the issue of liability.
Ms. Barbosa said that on Thursday, November 4, 2004 at approximately 1:45 p.m.
she was driving her 1998 Audi motor vehicle on State Route 6 in a westbound
direction in Wawayanda, New York. It was her day off from her work as a
correction officer with the Orange County Sheriff’s Department, and she
was on her way home from Walmart. There is one lane of traffic going in each
direction on Route 6, separated by a double yellow line, and the speed limit is
55 mph. She was traveling 45 mph herself, because “a sharp curve comes
and one cannot see any oncoming
traffic. There is a sign indicating “Curve Ahead” posted on the
road. As she drove west from the overpass intersection of I-84 and Route 6, she
approached a large DOT facility and yard on the right-hand side, just before the
curved area of the road. In the yard there were plow trucks and dump trucks as
well as buildings.
Ms. Barbosa said she first observed a large DOT truck with a plow in the exit
driveway of the far end of the yard, from “about two football fields or
600 feet” away as she proceeded on Route 6. The white fog line breaks at
the point of the actual driveway, although it continues past the driveway. The
front of the plow was perhaps four to five feet from where the fog line would
have been drawn when she first saw it, and was fully stopped. There were no
obstructions between her and the driver of the plow from 600 feet away. The
traffic was “light” but there were two other cars traveling
westbound in front of her. The car closest to her was “green, and was
approximately two or more car lengths” ahead of her. As she approached
the exit driveway from the DOT yard, she saw a person in the driver’s seat
in the DOT vehicle from approximately “one-half a football field
away”. She noticed that “the driver was looking at the green
car” in front of her. Ms. Barbosa said she saw the green car pass the
front of the truck, the truck remained at a full stop, and she was two or more
car lengths behind. “The next thing that happened was that [she] was
struck by the truck.” The impact occurred on the rear right side of her
car, from the rear door to the back. She said she did not see the truck move
before the impact. The back rear of her car was “put in the eastbound
lane by the impact,” the car did not go forward, and the car was not hit
by oncoming eastbound traffic. She testified she never saw the truck moving.
After the impact, she pulled over to the right side of road by the DOT
entrance. The DOT truck pulled up behind her. As they “walked toward
each other, the driver said: ‘I am sorry ma’m I didn’t see
you.’ ” Ms. Barbosa said she called 911. She saw Brian Sweitzer -
the driver of the truck - “go inside the DOT building for about 5
minutes.” Thereafter, State Trooper Bodisch arrived, and Mr. Sweitzer
came back out. Each gave his account of the accident to the Trooper, who
recorded same and drew a diagram. [See Exhibit 1]. Photos of the car she
was driving show damage to the right rear portion of her car, just beginning at
the rearmost portion of the rear driver’s side door. [Exhibits A and B].
On cross-examination, she confirmed that she saw the driver of the truck from
approximately 50 yards away. The truck “sits up pretty high with the plow
in front”; she recalled that the window of the truck was rolled down. She
repeated that she had been traveling behind the green car about two or more car
lengths at 45 mph and had been following that car the whole time she had been on
Route 6 - “so yes, the green car was probably traveling about 45
mph.” She denied saying that she could see the “driver’s
eyes”, she said what she saw was “the driver of the plow looking -
turned - to the left toward the green car. The plow was three to five feet
behind the fog line, at a complete stop. I felt him hit me; I did not see him
hit me.” She said the first time she realized something was wrong was when
she was hit, having never seen the truck move.
Ms. Barbosa did not recall the following question asked and answered at her
deposition taken on July 29, 2006 at page 14, line 15:
“Q: At some point you saw the yellow dump truck moving forward, correct?
She remembered the following question and answer taken the same day at page 14,
“Q: When he was moving forward would you be able to describe how quickly
he moved forward like a jackrabbit start or did he move forward slowly or
A: No, he just pulled out.”
On redirect examination, she was asked whether the following question refreshed
her recollection as to whether she saw the truck move when it hit her, but she
said that it “did not.”
“Q: How far were you from that yellow dump truck when you saw it start
A: I was right close ; I don’t know how many feet; I couldn’t . .
. a car length I can’t explain it I can show you.”
State Trooper James Bodisch said that he arrived at the scene of the accident
shortly after it occurred, and prepared the accident report after speaking with
Mr. Sweitzer and Ms. Barbosa and viewing the scene. [Exhibit 1]. The diagram
that he prepared was also based on the statements given by both drivers.
[Ibid.] Trooper Bodisch reported during voir dire that Ms. Barbosa had
indicated to him at the time that the DOT truck pulled out in front of her,
striking the rear of her car. Mr. Sweitzer said that Ms. Barbosa was attempting
to pass him, and hit the corner of the plow when passing. The diagram is a
“general description of the accident based upon what the witnesses
told” him, but he reiterated that he himself did not witness the accident
and that both the truck and the car had been moved by the time he got there. He
saw no skid marks. The Trooper noted that on the accident report he had circled
the wrong “right turn” arrow diagram, depicting the vehicles’
directions incorrectly. He repeated that he “got two stories” and
could only generally note the respective versions.
The foregoing was all the evidence presented on Claimant’s direct case.
Brian Sweitzer had a completely different recollection of the accident. He
testified that on November 4, 2004 he was working in his capacity as an
equipment operator for the DOT. That day he went to the Middletown yard from his
reporting point at Port Jervis to pick up a snow plow in anticipation of the
winter season. The dump truck he was operating was yellow and blue. The plow
was put on. Thereafter, he successfully made his right-hand turn from the yard
onto westbound Route 6 and was heading back to Port Jervis. The truck had
lights on - “the beacon lights - the yellow lights on the top” -
which were revolving. The lights were on “because you need to tell the
public that you are transporting something like that because it is so
Mr. Sweitzer “had gotten approximately 600 feet up the road when a car
passed, not allowing for the plow,” cut in too sharply and “caught
the plow.” In order to make the pass, he agreed, the driver crossed the
double yellow line. After the impact, he stopped, got out and called the
On cross-examination he agreed that when the impact occurred he was 600 feet
west of the driveway exit from the DOT, but not as far west as the intersection
of Route 56 and Route 6. He reiterated that he came to a full stop prior to
pulling out onto Route 6. He said that the front of plow was about three to
five feet from the fog line when he stopped his truck. “When you first
make the right it’s pretty straight for a ways, and then it turns up
ahead,” he said. He said he “stayed stopped just long enough to see
if any cars were coming, [but did not] recall exactly how long . . . [He] looked
to the left . . . [He] could see to the bridge [the I-84 overpass].” He
agreed that there is an unobstructed view of approximately two football fields
in that direction. He looked in both directions, and had views of 600 feet in
both directions. Eastbound he “saw no cars.” Westbound, there also
were no cars. He said he looked east long enough; he thought it was “ a
couple of seconds.”
He did not remember the following question and answer from his deposition taken
on July 28, 2006 at page 41, line 12:
“Q: For about how long did you look to the left?
A: I would say probably about a second.”
Mr. Sweitzer said he became aware of the contact with the other vehicle as
“she came around . . . [him] and hit the plow. She came alongside - it
happened during the course of her passing . . . [him] - [he] first saw her car
when she pulled alongside.” Mr. Sweitzer further explained that he
“saw her in the driver’s side mirror - saw her all the way back to
the bridge.” He said he was “not going fast - he had traveled about
5 to 10 mph - and gone 600 feet.” He said you “couldn’t go
that fast because you had to shift.” She was “going every bit of 45
mph.” She “was gaining on . . . [him].”
He did not remember the following questions and answers from his deposition on
July 28, 2006 at page 63, line 18:
“Q: Was her car completely beyond the front of your truck before she
began to turn back into the right hand lane?
Q: And was she, as she began turning into the right hand lane did she appear
to be accelerating still or maintaining constant speed?
A: She was picking up speed.”
He conceded that he received a letter of reprimand from his supervisor,
indicating that the accident was “his fault.”
Mr. Sweizter explained, however, on redirect that he was “never
interviewed” and the writer “never even checked the scene of the
accident before issuing the letter of reprimand.” No other employees were
interviewed either, and Mr. Sweitzer said “he [meaning the supervisor]
just went by the police report.”
No other witnesses testified and no other evidence was submitted.
DISCUSSION AND CONCLUSION
Vehicle and Traffic Law §1103(b) provides in pertinent part that the rules
of the road
and statutes governing motorists
“...shall not apply to persons, teams, motor vehicles , and other
equipment while actually engaged in work on a highway . . . The foregoing
provisions of this subdivision shall not relieve any person, or team or any
operator of a motor vehicle or other equipment while actually engaged in work on
a highway from the duty to proceed at all times during all phases of such work
with due regard for the safety of all persons nor shall the foregoing provisions
protect such persons or teams or such operators of motor vehicles or other
equipment from the consequences of their reckless disregard for the safety of
Ordinary negligence will not render a municipality or the State liable under
this statute, assuming the State’s agents were actually engaged in highway
work as defined therein and as interpreted in the case law. Thus when a county
employee was operating a street sweeper as part of maintenance work on a public
highway the county would be liable for injuries sustained by a motorist who
collided with the sweeper only if the employee was acting with reckless
disregard for the safety of others. Riley v County of Broome, 95 NY2d 455
(2000). The companion case to Riley v County of Broome, supra,
involved a collision with a snowplow. See Wilson v State of New
York, 95 NY2d 455 (2000). In both cases, while the operators’ acts
could likely have been viewed as ordinary negligence, they were found not to
have acted with reckless disregard for the safety of others. Recklessness
“. . . requires evidence that ‘the actor has intentionally done an
act of an unreasonable character in disregard of a known or obvious risk that
was so great as to make it highly probable that harm would follow’ and has
done so with conscious indifference to the outcome . . . (citation
omitted).” Saarinen v Kerr, 84 NY2d 494, 501 (1994).
The threshold issues to determine whether the statute applies are whether the
actor is actually engaged in highway work and, if so, whether such conduct is
done with reckless disregard for the safety of others. Thus, a town street
sweeper who crossed a double yellow line separating two directions of traffic
striking the plaintiff’s car, who was traveling from one work site to
another, was not actually engaged in highway work, and therefore ordinary
negligence principles applied. Davis v Incorporated Vil. of Babylon,
, 13 AD3d 331 (2d Dept 2004); see also Marvin v Town of
, 2002 WL 58928, affd
300 AD2d 1112 (4th Dept
In this case, under either factual scenario presented, it is apparent that Mr.
Sweitzer was not “actually engaged in highway work” as the statute
provides, but was, rather, performing a purely routine task of moving a snowplow
from a storage facility to where it would be put to use for work on the highway.
Accordingly, the recklessness standard
does not apply. Thus if claimant’s story is credited, the entry of a slow
moving DOT plow truck onto Route 6, and whatever evasive maneuvers she might or
could have ventured, are measured by ordinary negligence
More significantly, however, and after carefully considering the evidence
submitted and after having the unique opportunity to listen to the
witnesses’ testimony and observe their demeanor as they did so, and in
considering the claimant’s burden of proof, the Court finds that
claimant’s version of events is simply not credible, and the State of New
York is in no way responsible for this accident and any resulting injuries.
Claimant was familiar with the road, familiar with the configuration of the DOT
yard as it related to the road, and there were no physical obstructions in any
directions. She claimed there were two cars in front of her, that she maintained
a two-car-length distance (at least) as she traveled a modest 45 mph in
anticipation of the curve in the road, and that this was the speed she traveled
from the intersection of I-84 and Route 6. She claimed she could see the
direction the driver of the truck’s body was positioned from 50 yards away
to ascertain that he was “looking at the green car”: an unlikely
event in this court’s view. She claimed she never saw the truck move from
his fully stopped position, with the plow three to five feet behind the fog
line, until she felt the truck hit her.
In contrast to the insignificant discrepancies between Mr. Sweitzer’s
trial testimony, (i.e. “Two seconds”) and testimony given during his
deposition, (“one second”) the discrepancies between Ms.
Barbosa’s trial testimony, and the testimony given during her deposition
were meaningful. In that connection, her trial testimony about never seeing the
truck move versus her deposition testimony describing the truck moving forward
and quantifying its pace could be viewed as more “helpful” to
establishing her claim, and renders both versions she gave somewhat suspect.
Additionally, the damage to the right rear end of her car is consistent with
either version, and does little to establish the claim which remains, as always,
a claimant’s burden. [Exhibits A and B]. The police accident report, too,
is not probative. [Exhibit 1]. It is not based upon any personal observations
by the trooper but, rather, contains his notation of the two versions of the
story, and then his random utilization of one version to create a drawing.
[See id.]. Finally, it is not credible that Ms. Barbosa could
“see” what direction the driver was “positioned” in,
much less what he was looking at.
An individual failing to complete an effective pass and mis-negotiating the
size of the plow attached to the front of a slow-moving truck, and getting
clipped by the plow as Mr. Sweitzer described it, is far more in keeping with
common experience than Ms. Barbosa’s description to the effect that a
driver of a slow-moving vehicle advanced into a lane of traffic containing not
just her car, but two others, after remaining at a full stop at a spot that had
clear visibility in both directions.
Ms. Barbosa described the driver as apologizing as he got out of his truck, yet
the person who supposedly made such a declaration, Mr. Sweitzer, was not asked
anything at trial about these supposed comments.
Mr. Sweitzer’s very apparent indignation over his receiving a reprimand
for the incident also lends credence to his tale.
Accordingly, the Court finds that claimant has failed in her burden of
establishing by a preponderance of the credible evidence that the State of New
York should be held liable for the accident and any resulting injuries. Claim
Number 111539 is in all respects dismissed.
Let judgment be entered accordingly.
July 17, 2007
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
.All quotations are to trial notes or audio
recordings unless otherwise indicated.
. Vehicle and Traffic Law, Title VII - Rules
of the Road.
. See also
Vehicle and Traffic Law
§1104 exempting police and other authorized emergency vehicles during
emergency operations; and Vehicle and Traffic Law §1202(a) regulating
stopping standing and parking from which hazard vehicles - such as street
sweepers and snow plows - are exempted under 1103(b) also. “Thus, we
conclude that section 1103(b) exempts from the rules of the road all vehicles
actually engaged in work on a highway, including the ‘hazard
vehicles’ in the cases before us.” Riley v County of Broome
Wilson v State of New York
, 95 NY2d 455, 465 (2000).
. Defendant municipality held to ordinary
negligence standard when a pedestrian walking by a parked car was struck by the
car that was itself struck by snowplow backing up. Trial court said truck not
actually engaged in highway work. When accident occurred, the plow was hauling
gravel from town storage to the work site four miles away from accident site.
. “. . . [W]hether defendants' actions
were so reckless as to make it probable that harm would result . . . ”
Leonard v New York State Thruway Authority
, #2004-032-123, Claim No.
107659, Motion No. M-68824 (Hard, J., December 14, 2004).
. Such negligence could be measured, as
suggested by claimant’s counsel, by Vehicle and Traffic Law §1143
concerning entry of vehicles onto roadways. See Ferrara v Castro
283 AD2d 392 (2d Dept 2001).