New York State Court of Claims

New York State Court of Claims

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.

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 17, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 up”,[1] 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?

A: Correct.”
She remembered the following question and answer taken the same day at page 14, line 18:

“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 something else?

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 move forward?

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 big.”

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 troopers.

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?

A: Yes.

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.
Vehicle and Traffic Law §1103(b) provides in pertinent part that the rules of the road[2] and statutes governing motorists generally
“...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 others.”[3]

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, N.Y., 13 AD3d 331 (2d Dept 2004); see also Marvin v Town of Middlesex, 2002 WL 58928, affd 300 AD2d 1112 (4th Dept 2002)[4].

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[5] simply 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 standards.[6]

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
White Plains, New York

Judge of the Court of Claims

[1].All quotations are to trial notes or audio recordings unless otherwise indicated.
[2]. Vehicle and Traffic Law, Title VII - Rules of the Road.
[3]. 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).
[4]. 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.
[5]. “. . . [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).
[6]. 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).