MELKUN v. THE STATE OF NEW YORK, #2007-030-031, Claim No. 106432
Claimant failed to establish by preponderance that the State is responsible for
fatal accident because he did not show that Defendant deviated from accepted
engineering standards and that such departure was a proximate cause of
decedent’s death, and other factors alone were the contributing causes of
this accident. Qualified immunity generally granted for highway planning
decisions does not apply in that the State has not established that the permit
was granted after adequate study, but under ordinary negligence principles State
not liable. Decedent bicyclist failed to yield to oncoming vehicular traffic.
Placement of the crosswalk was reasonably safe, and not a substantial
contributing factor in this accident. What caused accident was the respective
failures of driver and bicyclist, to perceive what should have been readily
observable by the proper use of their senses.
BENJAMIN F. MELKUN, JR., as Executor of the Estate of MARILYN R. MELKUN, Deceased
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
FINKELSTEIN & PARTNERS, LLPBY: GEORGE M. LEVY, ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
O’CONNOR, SMITH & CATALINOTTO, LLP, OF COUNSEL
BY: MICHAEL E. CATALINOTTO, JR., ESQ.
June 27, 2007
See also (multicaptioned
This is a claim for the wrongful death and conscious pain and suffering of
Marilyn R. Melkun, brought by her representative Benjamin F. Melkun, Jr.,
Claimant. Mr. Melkun alleges that on September 29, 2001, at approximately 3:10
p.m., on State Route 343 in the area of the Harlem Valley Rail Trail and TR
Mygatt Road in Amenia, New York a motor vehicle driven westbound on Route 343 by
Margaret Lang collided with Marilyn R. Melkun, who was bicycling northeast along
the trail, because of various alleged negligent acts or omissions by the
Defendant’s agents, in allowing a dangerous condition to exist at the
location. Trial of the matter was held on November 28, 29 and 30, and December
1, 2006. This decision relates solely to the issue of liability.
The theory of claimant’s case is that the defendant, through its agent
the New York State Department of Transportation (hereafter DOT) negligently
failed to undertake an adequate study of the design and plan of the rail trail
as well as its final construction in the area where it crosses the State
highway, and that as the result of this inadequate study, the rail trail at this
crossing was designed and constructed contrary to proper engineering, traffic
and safety practices. Specifically, the trail crosses Route 343 at an angle,
rather than perpendicularly, exposing the crossing bicyclist to traffic
traveling at a highway speed of 55 mph for too long a period of time.
Additionally, the sight distance for both the crossing bicyclist and the traffic
on Route 343 is compromised, given a vertical dip in the road that prevents
appropriate sight distance for the given speed of travel. These defects, it is
alleged, were a proximate cause of the accident and resulting death of Marilyn
Melkun. Any defects in the design of the crossing - although actually performed
and constructed by the County of Dutchess as a permittee - is the Defendant
State’s responsibility nonetheless because of the highway permit
Defendant argues that the State is entitled to immunity for its highway
permitting decision made with respect to the intersection of the rail trail and
Route 343 after adequate study in conformance with the standards of the day.
Additionally, because there is no accident history for the relevant area
Defendant contends that there is no notice of any dangerous condition. Finally,
Defendant argues that even if this intersection presents a dangerous condition,
there is no nexus between any alleged defects or conditions and the happening
of the accident sufficient to impose liability on the State of New York.
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:
On September 29, 2001 Marilyn Melkun was a bicyclist traveling upon the Harlem
Valley Rail Trail in a northeasterly direction, who was struck by a motor
vehicle operated by an elderly woman (86), Margaret Lang, who was traveling in a
westbound direction on State Route 343. State Route 343 has one lane of travel
in each direction, containing solid double yellow lines at the center, and white
fog lines on both sides. Although not posted, the speed limit for the area is 55
mph. Ms. Lang was familiar with the road, and was returning from her volunteer
job in Sharon, Connecticut. [Exhibit F].
Ms. Melkun had already crossed the eastbound lane of Route 343 - a blacktopped
road - and was in the westbound lane when she was struck by Ms. Lang’s
car. It was a partly cloudy day and the roads were dry. Ms. Melkun was 55 years
old on the date of the accident. [Exhibit 1]. She suffered from hearing loss -
that had worsened as time had passed - and wore hearing aids in both ears. If
she were not wearing hearing aids at home, claimant said, “she could hear
sounds”, however if she was spoken to while she was not wearing her
hearing aids she could understand what was being said “by reading
lips.” [T-420]. Claimant did not know whether decedent was wearing her
hearing aids at the time of the accident.
Alexandra von Bieberstein, a bicyclist traveling behind Ms. Melkun with her
grandparents, testified concerning her observations during a videotaped
deposition held on November 24, 2006. [Exhibit P]. At the time of the accident,
she was 13 years old and was bicycling slightly ahead of her grandparents in a
northward direction on the trail. She had been on the trail herself on other
occasions and said that at the intersection with Route 343 there were three
wooden posts and two white plastic posts and a stop sign to mark it. As she
neared the trail’s intersection with Route 343 - from approximately 10
feet away - she saw a woman - decedent - stopped at the intersection. Ms.
Melkun was off the bike, “after the stop sign and before the road.
There’s a pull-off there.”
[T-146]. Ms. Von Bieberstein said the woman remained stopped as she approached
and was bending down, “possibly tying her shoe” or that sort of
thing in the gravel area depicted in the bottom of the photograph on Exhibit 11.
[T-145]. She was wearing a bicycle helmet. Ms. Melkun waited approximately 30
seconds to a minute or so before she started up again, riding on her bike. When
she got back on her bicycle she was past the stop sign and the post, by
approximately 10 feet. Ms. Melkun’s movement was in line with the
direction of the crosswalk.
In the meantime, and “just as . . . [the woman] decided to cross the
road,” Ms. Von Bieberstein looked back to her grandparents, waiting for
them to catch up. [T-156]. She did not see the impact, but heard a sound -
“a large bang” - as she turned. [T-158]. She did not hear any sound
of a car or a horn prior to the sound of the impact. When she turned back to the
road after the sound, she saw her “ . . . get hit and thrown into the air,
and then she wound up on the fence on the other side of the road like laying
next to the fence . . . ” [T-160-161]. Ms. Melkun had already crossed
the eastbound lane; but the witness “had no idea” how far into the
westbound lane she had proceeded. [T-159].
Ms. Von Bieberstein agreed that as the end of the trail nears, it is fairly
obvious that there is a roadway ahead and that it intersects. After the bike
hit the car and the sound of the impact, the witness saw the red car driven by
Margaret Lang continue for “some distance.” [T-163-164]. The
bicyclist came to rest somewhere between where the trail intersects and the
stopped red car, between the driveway behind the red car and trail shown on
Exhibit 15. [T- 164-165].
Sandra Sherrard, who was driving behind Margaret Lang on Route 343 at the time
of the accident testified at trial concerning her observations that day. On
September 29, 2001 she resided on Leadsville Road in Amenia, New York, and was
driving her car on Route 343 westbound at about 3:00 p.m. She had been driving
on Route 343 for about three (3) or four (4) minutes, when she saw a red vehicle
traveling in front of her, that she later learned was operated by Margaret Lang.
She herself was driving at 55 mph - “the speed limit” - and said
that as she
“came up on the slight rise, or knoll, that precedes the trough that the
rail trail lies in, and I did not see her until I reached that point. And almost
immediately began braking because I could see that the speed that I was
traveling was going to bring me close to Mrs. Lang. Anyway it was necessary for
me to begin applying my brakes almost immediately.” [T-177].
She estimated Ms. Lang’s speed as “somewhere” between 35 to
40 mph. [T-178]. As the Lang vehicle approached the crosswalk for the rail
trail, traveling slowly, Ms. Sherrard saw a bicyclist on the side of the road in
the paved area. She saw the cyclist was off the bicycle, and then saw her mount
the bicycle and begin moving forward. Ms. Sherrard saw the cyclist
“enter the trail moving forward across the road. The car was still
moving but so slowly, . . . and the cyclist disappeared from view momentarily
and the next thing I saw was the cyclist and the bicycle catapulted into the
She estimated the time from when the cyclist started to move to the time she saw
the cyclist in the air as four (4) seconds. The momentary disappearance of the
bicycle from view was when it went in front of the Lang vehicle.
Ms. Sherrard observed that there were bike trail signs on both directions of
travel on Route 343; and went back and looked on the rail trail to see that
there were stop signs on the trail also. [T- 181].
When she was interviewed by the investigating detective, Ms. Sherrard recalled
telling him that she did not see brake lights on the Lang vehicle. She herself
had her foot on the brake because the Lang vehicle was traveling
“considerably slower than I was traveling and I had already braked, so
it’s less than the speed limit allowed, and less than that because, as I
said, I was braking [after traveling at 55 mph] in order not to come up directly
behind the car . . . I was trying to maintain a safe distance because I thought
the car was going to [stop].” [T-191].
Ms. Sherrard said that although she stopped her car almost immediately past the
point of impact, by a telephone pole, she saw the Lang vehicle continue moving
up the road.
Deputy Sheriff Thomas Cuddeback, employed by the Dutchess County
Sheriff’s Office, responded to the scene within 15 minutes of the
accident, and was the first police officer on the scene. He saw that a nurse was
attending to Ms. Melkun, assured himself that the road was safe, and started the
investigation of the accident. Using a photograph taken shortly after his
arrival, Deputy Cuddeback identified where the Lang vehicle had come to rest to
the far right side of the westbound lane of Route 343, approximately 400 feet
beyond its intersection with the rail trail, and straddling the white fog line
of the westbound lane. [Exhibit 15]. The photograph - depicting a view of Route
343 facing traffic that would be proceeding westbound - shows a slight
“dip” in the distance beyond the trail, the trail itself, several
telephone poles beyond the trail, a driveway, and the Lang vehicle.
[Ibid.]. When he arrived at the scene, Ms. Melkun was by a white fence
that runs parallel to Route 343 adjacent to a grassy area. [Exhibit 7]. A
photograph showing the direction Ms. Melkun was traveling on the rail trail was
identified by the witness, and depicts a diagonal crosswalk marked across a two
lane highway containing the white fog lines at the sides, and double yellow
lines at the center. [Exhibit 11].
He said he did not do any sight distance measurements when he was writing up
the accident report, and drew his diagram. [See Exhibit F]. As the
result of his investigation, he concluded that the bicyclist had failed to yield
the right of way to the Lang vehicle. Asked to describe the “topography of
the roadway” as one stood on the south side of Route 343 looking toward
traffic coming westbound - where Ms. Melkun would have been looking - Deputy
Cuddeback said: “It’s fairly straight, and there’s a dip in
the road. I don’t know the distance down.” [T-42]. When asked if
he thought that the dip in the road “would obstruct the view of someone on
the south side of the trail down that roadway”, Deputy Cuddeback
responded: “There would be an obstruction. I’m not sure to what
degree and how far down . . . ” [T-42-43].
Deputy Cuddeback testified that there was damage to the Lang car at the right
front and right side of the vehicle, i.e.; the passenger side. As shown in a
photograph taken at the time, there is noticeable damage to the windshield on
the right, passenger side of the car. [Exhibit 25]. Based in part on the damage
location on the car, Deputy Cuddeback and Deputy Strid determined the point of
impact as in the westbound lane of Route 343. The bicycle was destroyed.
[see Exhibit 14].
By the time Deputy Strid from the Dutchess County Sheriff’s department
arrived at approximately 3:30 p.m., Ms. Melkun had been removed from the scene,
though her bicycle was still lying by the white fence where it had been moved.
Deputy Strid explained that he is called in when there is an accident to take
measurements. The crosswalk for the rail trail crossing is painted on the
roadway with the standard white, crosswalk markings, including two parallel
lines bisecting the markings for Route 343, that then contain diagonal hatching
lines. He confirmed that there were stop signs on both sides of the rail trail,
and that there are yellow and black bike crossing ahead signs on Route 343 in
From fog line to fog line the width of the traveled portion of Route 343 was
21.2 feet, Deputy Strid said. [See Exhibit 18]. From the edge of the
blacktop to the other edge of the blacktop the road measured 25.2 feet. He used
a telephone pole embedded in a concrete island near the trail on the south
shoulder of Route 343 as a reference point for measuring across Route 343.
[See Exhibit 13]. He measured a single lane as 11 feet wide, although he
did not remember whether he measured the eastbound or westbound lane. He
determined the point of impact of the car and the bicycle to have been in the
“westbound lane approximately towards the middle of the lane.”
[T-65]. Using bike tread marks, he found that the impact was 5.9 feet south of
the north edge of the roadway. [See Exhibit 18].
For a vehicle traveling in the westbound lane of Route 343, the sight distance
to the vicinity of the rail trail would be “438 feet” according to
Deputy Strid. [T-67]. He measured sight distance by driving in the westbound
lane and stopping when he could see the crosswalk, but conceded that he did not
use an object four and one-half feet off the ground in the crosswalk as a
reference point. He also said he did not take a statement from Margaret Lang.
Exhibit 19 is a scale diagram Deputy Strid drew, showing the various locations
Francine DiGrandi, holding the title of Junior Civil Engineer for Dutchess
County since 1987, and a 32 year Dutchess County employee, testified concerning
her role in the construction of the rail trail. She indicated that she did not
have a degree in engineering. She recalled that preliminary design of the rail
trail began sometime before she took a role, “in the early
‘90's”, because “it was in the hands of the planning people
before it was on my desk.” [T-84]. Ms.
DiGrandi described the project as “a federally funded project administered
by the State of New York to modify the Harlem Valley Train corridor into a bike
. . . [and] pedestrian path.” The rail trail crossed not just State roads,
but other local roads as well.
In 1996, Ms. DiGrandi became involved in the construction of the area of the
rail trail that would cross Route 343. As a recreational path, she said, it was
to be used by pedestrians, bicyclists, skateboarders, roller skaters, and
skiers, for example, but not horses or motorized vehicles. In order to cross the
State road - or right of way - the County was “required to take out a
permit.” [T-88]. Ms. DiGrandi completed a permit application, signed it
on April 9, 1996, and submitted it to the State. [See Exhibit 3]. The
form itself allows several options for the “type of operation” to be
checked, including residential and commercial driveways, and tree work, as well
as a “miscellaneous” option selected on the form submitted herein.
[See id.]. The proposed work is described as: “Bicycle Trail
Crossings - paved to limit of state road then painted cross-hatching across
state route with appropriate warnings (sic) signs at approaches.”
[Id.]. Attached to this highway permit application was a Phase I
blueprint plan for the crossing. [Exhibit E]. Also attached to the application
was an overall plan for the entire rail trail and its two phases, to be
constructed at some time in the future. [Exhibit 26]. After submitting the
permit application, she received back “the approval with their
notations” indicating what the State of New York wanted included in the
Thereafter, she received a work permit containing the State notations. [Exhibit
4]. The notations, made in red ink, called for “no parking signs in all
four corners of the intersection, as well as placing the bollards 20 feet back
from their white line on both sides.” [T-98]. A bollard, she explained,
is an object used to slow down users of the bike trail or to warn of something
ahead. [T-99] Ms. DiGrandi identified an example of the pavement markings or
crosshatching that would be on the rail trail, [Exhibit D]; as well as the
assembly for the bollards to be installed. [Exhibit C].
On the Phase I plan [Exhibit E], that had been marked up by State employees,
Ms. DiGrandi agreed that the trail crossing is shown intersecting with the
highway on a 90-degree angle. Ms. DiGrandi said that the County survey crew did
not go out and do a topographical survey, as far as she knew, and added that
“most of the trail was not surveyed. We used original railroad
plans.” [T-103]. The actual crossing for the trail across Route 343 was
approved by the State of New York at something other than a 90-degree angle,
that is, in the configuration it had at the time of the subject accident. When
the crossing was put in, she recalled that the speed limit on Route 343 was 55
After she signed the highway permit work “completed” on November
12, 1996, she returned the permit to the State of New York. [Exhibit 4].
Between November 12, 1996 and September 29, 2001 Ms. DiGrandi was not aware of
whether anyone from the State of New York contacted her about the crossing. For
the same time period, she herself had become aware of safety concerns at this
crossing, but did not communicate them to the State, although she also indicated
she would not be the person to communicate same. She did not recall whether she
was ever present during any meetings with State of New York employees
concerning the safety of this crossing after it was completed. No one on behalf
of the State of New York ever asked her to make any change concerning the
angular nature of the crosswalk prior to completion of this project. She did not
recall ever submitting to the State of New York any topographical views of the
area of Route 343 where this crossing was going to be placed. Once she received
the Phase I plan back with handwritten notes [Exhibit E], the plans were revised
in accordance with the State directives. Signage requirements are shown on
Ms. DiGrandi confirmed that the plan was always to have a diagonal crossing
across route 343 for this bike trail. Within the parallel lines of the crosswalk
itself, the State of New York had required that the hatching should be like a
ladder with lines straight across, as opposed to on a diagonal. There were stop
ahead, and stop signs on the bike trail; and bollards further obstructing
immediate entry onto the State road. On Route 343, bicycle trail crossing ahead
signs and bicycle trail signs were placed in each direction.
Although an inspector was not there from the State of New York “every
day”, Ms. DiGrandi confirmed that there was a DOT inspector that would
inspect the work. [T-117]. As she recalled it, the sight distance for someone
crossing Route 343 looking to their right in an easterly direction was “in
excess of 500 feet.” [T-122]. Up until the date of this accident there was
no accident history for this crosswalk area, or at least “none that was
brought to . . . [her] attention.” [T-122].
Ms. DiGrandi later conceded that the basis for her testimony concerning the
sight distance was the County practice of taking such measurements in the
planning stage, and the fact that the sight distance had not changed from the
date of the accident based upon an examination of the site in 2002 after the
accident, not an actual recollection of taking sight distance prior to the
accident. [T-124]. She also admitted that no survey crews from the County with
instruments actually went and surveyed the intersection to her knowledge. After
reviewing an additional document with measurements, Ms. DiGrandi said that sight
distance from the standpoint of someone standing at the trail was not in excess
of 500 feet but is, rather, at 500 feet. [See Exhibit 27]. The
measurements - not taken by Ms. DiGrandi - do not make any reference to height
reference points in any event. [See ibid.].
Glenn Boucher, a 14 year employee of the DOT was the Region 8 Highway Work
Permit Coordinator on September 29, 2001, but had not been involved in the
project concerning the development of the rail trail as it crossed Route 343.
His job duties in Region 8 - which includes Amenia - is to “supervise the
day-to-day operations of the Highway Work Permit Unit and the Special Hauling
Permit Unit of region 8 of the DOT”. He agreed that generally it is good
practice that if some action is taken by a DOT employee that it be recorded in
some way so that others may review it later.
Nonetheless, Mr. Boucher did not find any record of site inspections in the
file concerning this project, except for the “permit inspector signing the
application as recommending approval” on the permit application
[see Exhibit 3] on April 17, 1996. [T-209]. Michael Talay, the resident
engineer recommended approval of the permit, and William FitzPatrick, the
Regional Traffic Engineer, stamped and approved the permit. [Exhibits 3 and 4].
“There’s no records written of site visitations or things like
that” in the file. [T-210]. On the highway work permit, Mr. Boucher
agreed that the back of the form contains a location for keeping track of
inspections that are done, and that this one was blank. [See Exhibit 4].
Later, Mr. Boucher was able to explain that the permit submitted appeared to be
a copy of the County’s permit, because it was signed by Ms. DiGrandi, and
he thought that this version was not the version in the DOT file.
He also agreed, when asked pointedly by claimant’s counsel, that if the
State did not do a site inspection before the permit was issued that would be
inadequate with regard to issuing a work permit on a roadway with a speed of 55
mph and the expectation that pedestrians and bicyclists were going to have to
cross it. Mr. Boucher added, however, that “the State would have done
their site inspection before the permit was issued,” based on the
information contained on the plan and on the permit. [T-212]. He thought that
they would have had to go out to the site at some point, and could not have
based the suggestions made just on the submission of Exhibit E, on where to
put, for example, the bollards or the location for no parking signs. He said:
“. . . [T]his [meaning the crosswalk design] is a ‘typical’.
. . Everything is site specific. Without going out to the site, I don’t
know what’s in the vicinity of this crosswalk at all. I mean, it’s
a typical - . . . What I’m saying is there’s not enough detail on
this typical to decide [about parking or bollards].” [T- 213-214].
He would not adopt counsel for claimant’s suggestion in this line of
questioning to the effect that the changes marked could have been done while
sitting at a desk.
Mr. Boucher also interpreted the Phase I blueprint plan [Exhibit E] as showing
that an angular or diagonal crossing was always intended, and circled a detail
within the Phase I blueprint [Exhibit E], showing the proposed crossing clearly
as a diagonal crossing. He said the crosswalk hatching is ladderlike within the
two parallel lines delineating the crosswalk - typical for Region 8 - as shown
on a diagram for same which was an attachment sent back to the county when the
application was submitted. [see Exhibit B]. The notations made to the Phase I
blueprint [Exhibit E] for the parking signs and the placement of the bollards -
that they have to be 20 feet back - would have to have been made from field
observations. [T-229-230]. Signs on Route 343, such as the bike crossing ahead
sign and the bike crossing sign itself, as well as the signs on rail trail would
only be located after such inspection. Mr. Boucher said:
“. . . I’m looking at this document again [Exhibit E]. The
bicycle warning sign, which would be sign ID Number 1, is not included in that
typical highway crossing [labeled] I-5. That’s not depicted anywhere on
that drawing. So in order for those signs to have been located, somebody would
have had to gone out and told the County where to put those signs . . . [the
signs are] in the photo log photos.” [T-231].
From Mr. Boucher’s review of the information on Exhibit E,
“someone” from the State of New York went there to inspect the
project prior to the work permit being issued. [T- 232].
Sight distance would not typically be documented if it was sufficient in a
project like this, he said. “Only if there’s a deficiency would we
note that and then try to remediate the condition.” [T-233]. In terms of
documenting site inspections, Mr. Boucher said, “There’s not going
to be a note to the file that said I went out in the field and looked at
this.” [T-233]. The types of things that would be documented would be
“something that was of a concern, some sort of deficiency.” In
contrast, revisions to be made would be noted. He said this type of permit is
most analogous to a permit sought by a residential owner to have an entrance
onto a State highway - as it is work within the State right-of-way. Thus, an
“entrance type right-of-way.” [T-234].
The DOT log photographs are taken at intervals of every 52.8 feet. Exhibit 17
shows the view of the westbound traffic on Route 343 in a series of frames.
“Frame 20," [of Exhibit 17] Mr. Boucher thought, showed “pretty
clearly” the “bicycle warning” sign. [T-244]. He estimated
that the sign appears “between 8 and 9 frames [of 52.8 feet each] of the
bike crossing itself.”
Although the “bicycle crossing ahead” sign does not appear in the
work permit, it is referenced in the chart, and shown as having been placed on
Robert Genna, claimant’s expert in the field of accident reconstruction
and traffic safety, opined that the construction of the crosswalk on an angle
across Route 343 violated proper traffic safety procedures and was a substantial
contributing factor to this accident. Mr. Genna is not a licensed engineer and
has had no training in highway design and planning. He is currently director of
the Suffolk County Crime Laboratory and also has a “forensic consulting
firm that specializes in the area of motor vehicle accidents.” [T-254].
In order to form his opinion, Mr. Genna reviewed photographs [Exhibits 6 - 15;
25]; the State photo logs showing the eastbound direction of Route 343 [Exhibit
16] and the westbound direction of Route 343 [Exhibit 17], the various
measurements and drawings made by the Dutchess County Sheriff’s
department, [Exhibits 18 and 19], the work permit documents [Exhibits A,B,C,D
and E], and also made a field visit in December 2004. Based upon his field
visit, he found that the scale diagram drawn by Deputy Strid [Exhibit 19] was
Mr. Genna measured the crosswalk on Route 343 as 47 feet from fog line to fog
line. Using the pedestrian crossing rate of four (4) feet per second provided
for in the Manual of Uniform Traffic Control Devices [hereafter MUTCD], Mr.
Genna said it would take approximately 11.75 seconds to cross. In contrast, the
distance for a perpendicular walkway would be approximately 21 feet, and would
require that the pedestrian be in the walkway for about 5.3 seconds at the same
rate. During that time difference - an additional 6.5 seconds - Mr. Genna opined
that a vehicle proceeding at 55 mph would travel a “distance of
approximately 524 feet.” [T-284]. He testified that the sight distance
from the crosswalk looking in the direction Ms. Melkun would have been looking
was a “range between 450 and 500 feet.” [Ibid.]. He did not
specify what reference points he used, if any, in terms of height or position in
the crosswalk, to further refine the sight distance from the crosswalk. By way
of explanation he said “. . . I took into consideration the . . . various
heights and just a general range of 450 to 500 feet.” [T-285].
“There is . . . an appearance of a hidden dip in the roadway, which is
basically defined as a false perception of not seeing a vehicle immediately near
the dip in the roadway, but seeing a vehicle beyond that which would in turn
give the false premise to an individual crossing that they, in fact, see a
vehicle way beyond approaching, but, in fact, there could be one nearer, but
because of the vertical dip, they’re prevented from seeing that.”
Additionally, Mr. Genna surmised that a bicyclist accelerating from a stopped
position, would have been within the crosswalk for between 5.2 and 7.5 seconds,
not allowing decedent time to see the car which struck her as she entered the
crosswalk. This was explained by Mr. Genna in the following fashion:
“If the vehicle approached at 55 miles an hour, it’s traveling at
80.6 feet per second, and the bicyclist was accelerating at the low rate of 1.5
feet per second squared, the vehicle would have been a distance of approximately
604 feet to the east of the bicyclist when she entered the roadway, and in my
opinion, the bicyclist would not have seen the vehicle.”[T-289].
At a slower rate described as “at 5.2 seconds times the velocity of
- “. . . the bicyclist
would have been approximately 420 feet away: just at the potential area for a
line of sight.” [T-290]. Thus under both circumstances - traveling at the
speed limit, or traveling at a slower acceleration rate (not exactly specified
by the witness by the calculation referred to above) - “the car would not
have been visible when the bicyclist began to cross . . . ”
Mr. Genna stated that “the distance that the cyclist was thrown from the
area of impact to a final rest is about 90 to 91 feet. The damage sustained to
the [Lang] vehicle is considerable, and I think those two factors alone suggest
a rate of speed [for the Lang vehicle] higher than 35 to 40 miles an hour of the
striking vehicle.” [T-297]. He opined “a range of between 45 to
50" mph for the Lang vehicle. [Ibid.].
He concluded that had this been a perpendicular crossing, the accident would
not have occurred, because the cyclist would have completed her crossing. He
based this conclusion on the location of the cyclist at the time of impact, as
compared with the time differentials with regard to an angular versus a
Finally, Mr. Genna opined that the issues concerning the angle of the
crosswalk, the time rates for pedestrian or bicyclist crossing, the vertical
curve in the road, and the sight distance were not considered - or at any rate
not documented - thus there was no reasonable basis to approve the plan. He
“Because they didn’t conduct the studies, and ...it appears to me
that they didn’t do a site inspection where they would have noted these
indications, they would have noted that limited sight distance. If they factored
in the times it takes pedestrians of all sorts and bicyclists of all ages to
cross, they would have been able to determine that there could be problems with
individuals crossing this highway, and they would have taken the necessary
Advisory speed signs of 35 mph and a crosswalk placed at a 90-degree angle were
the primary precautions he envisioned.
Mr. Genna had to agree that the policy expressed generally in the MUTCD is that
speed limits - and the signs therefore - have little effect on overall traffic
speed. He agreed that there is no prohibition against the use of a diagonal
crossing. He also conceded that one desired plan for the placement of a
crosswalk connecting two trail heads would be to place it so that the
pedestrians or bicyclists would likely use it, that is, by connecting the trail
heads rather than creating a circuitous route across the road. Mr. Genna
acknowledged all the signage on the rail trail as well as the bollards, and also
acknowledged that there were the bicycle path warning signs on Route 343. He
also conceded that the Phase I plan [Exhibit E] does indeed indicate that the
crossing would be on a diagonal, and contains markings for the bollards and the
signs, all specific to Route 343 versus a generic plan.
The desired response to a bicycle crossing ahead sign placed 500 feet before
the crossing is that the traffic slow down, Mr. Genna agreed, and then conceded
that the calculations he made primarily maintained the speed of the vehicle
approaching at 55 mph. He acknowledged that there was no accident history for
this location. He agreed that it is obvious that there is a road ahead when the
trail user approaches Route 343, and that the bicyclist’s obligation is to
yield the right-of-way to oncoming vehicles. He also agreed that there are no
mandates or specific requirements for sight distances in the State of New York
for entrances onto State highways, that they are generally measured from a
reference point of 4.25 feet above the ground, to equate same to the vantage
point that a driver sitting in a vehicle would have, and that a bicyclist would
have a better visualization point than a car driver.
Additionally, the witness had to agree that the desired response to a bicycle
crossing ahead sign is essentially the same as an advisory speed sign, in that
it is hoped that the motorist slows down. He agreed that if a driver is
traveling at 40 mph in a 55 mph zone the driver has slowed down, and further
agreed that if an oncoming vehicle were visible, and the bicyclist were in the
road, then the bicyclist would have failed to yield. He concurred that
“there is no indication that . . . [Ms. Lang] conducted an emergency
stopping.” [T-320]. He conceded that a cracked windshield on the front
passenger side would “possibly” result if the driver were traveling
at 20 to 25 miles per hour, but that such damage would be
“expect[ed]” were the driver traveling at 35 miles per hour.
Mr. Genna did not cross the crosswalk either on foot or on a bicycle during his
field visit, nor did he measure his view from the crosswalk from other than a
Speaking of the reaction time for a “reasonably alert driver” as
1.5 seconds, Mr. Genna agreed that such a reaction time decreases the amount of
distance required to stop. It was noted that 1.5 seconds is the reaction time
used to gauge behavior in criminal cases, not the two to three second reaction
time he used generally in civil cases. No viable explanation was offered for
why the witness changed the reaction time when the stopping analysis involved a
criminal prosecution versus a civil case.
Then using a 1.6 second reaction time on dry road, Mr. Genna agreed that Ms.
Lang should have been able to stop with 263 feet while traveling at 55 mph:
“within the sight distance.” [T-334]. On wet pavement at 55 mph with
a two second reaction time, Ms.Lang should stop at approximately 500 feet.
[T-341]. He then agreed that if she were traveling at slower than 55 mph, using
a two second reaction time, she should have stopped at approximately 300 or 400
feet from the intersection.
Mr. Genna again insisted that Ms. Lang could not have been traveling at 35 mph
“based on the throw distance and the damage [to the Lang car].”
[T-345]. He opined that it would be a violation of good engineering and traffic
safety practice to provide for the design of the crosswalk at an angle when
there was limited sight distance and highway speed of 55 mph. [T-347].
Significantly, when questioned further, Mr. Genna again conceded that given the
sight distance at the location, and even assuming a speed by Ms. Lang of 55 mph,
with the cyclist already in the crossing, and using the reaction times he
already afforded, Ms. Lang should have been able to stop within the sight
distance. Moreover, he agreed that Ms. Lang should have been able to timely
stop at 45 mph and 40 mph, and that to some degree not specified, the Lang
vehicle was a contributing factor in this accident.
John A. Serth, Jr., defendant’s engineering expert, was the final
witness. Unlike Mr. Genna, Mr. Serth is a licensed engineer with significant
experience working for the DOT, and in designing and planning highways, and has
performed preliminary design on bike paths as well. He expressed familiarity
with the applicable standards contained in the MUTCD, and readily conceded that
under present standards under AASHTO
guide that he himself participated in completing drawings for - the stopping
are not current at this
location. He opined, however, within a reasonable degree of engineering
certainty, that based on his review of the documents and his own field
inspection, there was a reasonable basis for the State of New York to accept the
plan proffered by the County to convert the old railroad trail into a
recreational path, and to allow the crossing across the State highway.
His on-site investigation revealed that there was over 500 feet of sight
distance along the road - “for a bicyclist and a car to look back and
forth at each other” - and “. . . approximately 240 feet of stopping
sight distance just a little bit east of this location for normal stopping sight
design, which is nowhere near what we would normally do for stopping sight
design, but you’re not going to go and bring all the old State highways up
to current standards.” [T-363-364]. It was adequate, in his experience,
in terms of approving this type of permit application - likened to a driveway
permit process - to examine the plans drawn up by the County, review them, pass
them around for comment, change them if necessary, and pass them back to the
County. Mr. Serth said, “So they did look at the situation out there and
they determined that it was reasonable to have a crossing at this
location.” [T-364]. He said:
“You don’t expect a major design study for each of the driveway
permits that’s handed out there. Every road - - or every driveway leading
into the State roads is supposed to have a driveway permit, and they’re
supposed to get another permit every time they resurface . . . you don’t
do a $20,000 engineering study every time you hand out a driveway permit. You
look and see if the sight distance is reasonable out there. In the permit
process, it says that they won’t always be able to achieve stopping sight
distance out there, but they still hand out the driveway permits if it’s
Based on his experience with the DOT, measurement of sight distance would not
likely have been documented. He said:
“Somebody would have looked at it. It’s an existing road.
Somebody would look at it . . . in the permit process there, they would want to
put the access that the adjacent property owner has to the State highway at a
location where you have the best view if there was any concern about the sight
distance so they could slide it back within the person’s edges of their
property lines, although there’s very little property out there because
there’s an old railroad right-of- way. This isn’t a 300-foot long
piece of property that you can really slide a driveway. There’s already a
driveway there . . . it doesn’t make sense to go back out there and cut
down the State highway to make it come up to current stopping sight standards
out there . . . ” [T-366].
In terms of the diagonal crossing, Mr. Serth, without wanting to “second
guess” what is essentially an engineering decision, thought it was the
“logical” place to position the crossing. [T-367]. He said:
“You could talk about painting a perpendicular stripe out there going
straight across the road. There is kind of the question whether it would fall
in the property that the railroad owned on both sides, but more than that,
it’s just paint. If you paint it straight across, the bicyclists are still
going down that bike path. They’re starting from the bike path,
they’re going to the other side, you’re going to go diagonal.”
He agreed that a crosswalk tends to hold its users within its parameters, but
also alerts them to the notion that there is “something going on
here”: there is a road being crossed. It also alerts drivers on the road
of something to watch out for. Given the desired response from stop signs on
the rail trail, and the desired response from the warning signs on the highway,
everyone should be slowing down and being extra alert. Indeed, general Vehicle
and Traffic Law guidelines require drivers to slow down when taking “into
account [the] crest of hills.” [T-369]. Mr. Serth reiterated that posted
speed signs have little effect on the overall speed of traffic.
Assuming that the Lang car slowed to 35 or 40 mph, and that Ms. Melkun stopped
her bicycle before entering the roadway, the intended purpose of the signs
posted on the day of the accident had been fulfilled, Mr. Serth opined. In terms
of stopping sight distance, in Mr. Serth’s field investigation he further
refined his measurements - as he would for design purposes - by using
appropriate measurement for a bicyclist.
“For bicyclists, we use a . . . [4.5] foot tall high eye height. So
when I did my analysis out there, I assumed [the] bicyclist’s eye at . .
. [4.5] feet, and I assumed . . . needed to see like the center of the
windshield [of the car] to be able to say he could really see the car, so I used
the driver’s eye height of . . . [3.5] feet, so basically, I looked and
said, when can the two eyes see each other.” [T-373].
The curvature of the road is included when the measurements are plotted. He
found that there was between 525 and 530 feet of sight distance at the
location, from both the vantage point of the driver, and that of the bicyclist.
[See Exhibit R]. He continued:
“For design purposes, we assume a slow reaction, that is, an unalerted
driver . . . slippery pavement . . . [and] they use . . . [1 to 1.5] seconds
to prosecute people and put them in jail. Their manuals, I brought one in today,
are saying 1.6 seconds. So if you’re traveling 40 miles an hour for 1.6
seconds, you’ve traveled 94 feet, that’s your reaction time from
when you first perceived that there’s going to be a problem until you can
get your foot on the brake . . . assuming 7.5 for the coefficient of friction .
. . it would take an additional 71 feet . . . [I]t would take 165 feet for the
driver to react with the 1.6 seconds, and bring the vehicle to a stop by
applying the brakes hard.” [T-374-375].
Based upon the underlying facts of this case, Mr. Serth opined that had Mrs.
Lang been traveling at 40 mph, she required 165 feet to stop, yet had more than
500 feet available. Moreover, “[t]here basically was no reaction before
there was a thump, and then it still took her to 400 feet after the thump [to
Mr. Serth opined that the diagonal crossing was not a substantial factor in
causing this accident. He stated:
“The bicyclist had the opportunity to avoid this accident . . . [T]he
driver behind the one that struck this bicyclist saw the bicyclist on the side
of the road, so when [Ms. Sherrard, the driver behind Ms. Lang] saw the
bicyclist . . . the bicyclist could have seen [Ms. Sherrard] . . . And even
before that, could have seen the car in front of the witness. So the bicyclist
left . . . the safety of the edge of the road when there were two cars coming
down the road, . . . the bicyclist could have stopped before crossing the center
line . . . Between the vehicle and the bicyclist, there was a failure . .
In terms of the testimony of claimant’s expert, Mr. Serth said that the
four (4) feet per second for designing a crosswalk is strictly a pedestrian time
frame, not exactly applicable when designing a crosswalk in a rural location
intended primarily as a bicycle path. It would not be expected that especially
slow people would be using the area. Moreover, bicycles have more options and
requirements for travel, in that they have all the rights and responsibilities
of any driver on a highway. A bicycle could make a turn and continue biking on
the highway. The eleven second crossing described by claimant’s expert,
he thought, assumes exclusively a pedestrian is crossing, and further assumes
that the person “doesn’t have the ability to react to the oncoming
car and stop.” [T-384].
Mr. Serth further criticized Mr. Genna’s analysis concerning the use of
the location where the bicyclist was thrown, and the damage to the car to assess
the speed at which Ms. Lang was traveling. He said, while engineers assess
damage to vehicles as a means of calculating speed when it is two vehicles that
are involved, using it with regard to a pedestrian is not done.
“There’s a dent in . . . [the car] Did it hit her hip, or did it hit
a fleshy portion? Did it hit her ribs? What caused the dent? I don’t see
how you can start to be discussing what it is . . .” [T-387-388].
Additionally, he stated that use of pedestrian throw calculations is
inappropriate for a situation such as this one, because such calculations assume
“. . . that the pedestrian gets hit by the vehicle and is thrown off the
front of the vehicle because the driver of the vehicle is braking. Now if the
driver of the vehicle isn’t braking, you really can’t use these
throw calculations . . . [it] violate[s] physics.” [T-397].
It is an engineering decision, he said, to design such a recreational crosswalk
in this rural location and Mr. Serth found that it was reasonably safe to cross
DISCUSSION AND CONCLUSION
In the field of highway safety planning, a municipality is immune from
liability for negligence for acts involving discretion unless its plan or design
was adopted without adequate study or lacked a reasonable basis. See
Tomassi v Town of Union, 46 NY2d 91, 97 (1978); Weiss v Fote, 7
NY2d 579, 589 (1960), rearg denied 8 NY2d 934 (1960); James v
New York State Bridge Auth., 295 AD2d 316 (2d Dept 2002). A governmental
body may be held liable only when its study of a traffic condition is plainly
inadequate or there is no reasonable basis for its traffic plan. Friedman v
State of New York, 67 NY2d 271, 284 (1986). Assuming that immunity does not
apply, Claimant would nonetheless need to show that it was the State’s
omissions or acts that were a proximate cause of the decedent’s accident.
The underlying factual showing of how the accident occurred in this case
precludes any finding of liability on the part of the State of New York.
A history of prior similar accidents may establish that a given location is
dangerous, but it is the Claimant’s burden to establish such history and
similarity. Lack of such proof suggests that the highway is reasonably safe for
use by those exercising reasonable care. See Dahl v State of New
York, Claim No. 108480, UID # 2006-036-006 (Schweitzer, J., June 30, 2006),
comparing, Kang-Kim v City of New York, 29 AD3d 57 (1st Dept
2006); Mc Donald v State of New York, 307 AD2d 687 (3d Dept 2003). There
was absolutely no evidence of prior relevant accident history at this
intersection, or any other evidence presented allowing the court to infer that
the State had any notice that this was a dangerous intersection.
Whatever kind or degree of negligence is asserted, it is always the
Claimant’s burden to show that the State was negligent in the first
instance, and that the negligence claimed is a proximate cause of a
claimant’s injuries. Jordan v State of New York, 249 AD2d 279 (2d
Dept 1998); Hearn v State of New York, 157 AD2d, 883. While Claimant is
not obligated “. . . to rule out all plausible variables and factors that
could have caused or contributed to the accident . . . [or] positively exclude
every other possible cause of the accident . . . the proof must render those
other causes sufficiently ‘remote’ or ‘technical’ to
enable the . . . [fact finder] to reach its verdict based not upon speculation,
but upon logical inferences to be drawn from the evidence (citation
omitted).” Gayle v City of New York, 92 NY2d 936 (1998); see
also Burton v State of New York, 283 AD2d 875 (3d Dept 2001).
It is the claimant’s burden to establish the elements of his claim, but
it is the defendant’s burden to establish an immunity defense. It appears
unlikely to this Court that the DOT - an agency remarkable for its documentation
of its activities - would not maintain a record of visits to the site or
inspections made, nonetheless the witnesses uniformly maintained that the design
revisions to the plan all would have required an on-site visit to the location
to suggest such changes, and that unless the sight distance were remarkable such
would not be noted. Ms.
DiGrandi could not say specifically when State inspectors inspected the job, but
did testify without any documented basis that they did inspect. Mr. Boucher,
familiar with DOT permitting procedures generally, insisted that the DOT would
have to have inspected the site in order to direct, as they did, placement of
signs and bollards on the plan, and such directions would not have been
performed simply by sitting at a desk.
Nonetheless, no witness with actual direct knowledge of this particular project
and the depth of any study of same, however, other than Ms. DiGrandi, testified.
A series of documents have been presented, apparently encompassing what study
there was of the location in the few months in 1996 between the initial,
laudable, proposal to inaugurate the rail trail and its final construction, and
the attestation that it was “complete” by Ms. DiGrandi in November
1996. There was no direct evidence that any witness could point to - beyond Ms.
DiGrandi’s remark that a State inspector was there at some nebulous time -
to establish that a “study” of any kind was made or adopted by the
State of New York.
Accordingly, the Court finds that the qualified immunity generally granted for
highway planning decisions does not apply in that the State has not established
that the permit was granted after adequate study. Clearly, the permitting
process practiced herein was not thorough in terms of the study undertaken prior
to sanctioning the work. Approving the project - at a minimum - should have
involved an on-site visit to confirm the contents of the County’s
proposal, and to simply “eye-ball” the site. Notably, it may well be
that had such minimal activity taken place, the same decision would have
resulted, and thus would have been immunized. The Defendant has not convinced
the Court, however, that such minimal study occurred.
In the absence of the application of qualified immunity, however, the
State’s duty is still measured by ordinary negligence principles.
[See Meyer v State of New York, UID #2004-009-136, Claim No. 99381
(Midey, J., December 20, 2004)]. Despite the somewhat slapdash approach taken
in the permit process, the Court credits Mr. Serth’s analysis that the
placement of the crosswalk was nonetheless reasonably safe, and finds most
significantly that it was not a substantial contributing factor in this
accident. What caused this tragic accident was the respective failures of Ms.
Lang and Ms. Melkun to perceive what should have been readily observable by the
proper use of their senses.
As shown in the numerous photographs, the area involved is rolling farmland,
largely unobstructed, where there is, obviously, intermittent loss of
unobstructed sight lines along the highway. Where the crossing of Route 343 is
placed is reasonably safe, given the sight distances of anywhere from 450 to
530 feet attested to by the various witnesses, and the cautionary signs placed
on both the trail and the State highway. Certainly, it does not take an expert
to surmise that a diagonal crosswalk - if used - takes longer to traverse than
one painted at a 90-degree angle. Ultimately however, it is the people who use
the recreational path and the State highway who are responsible for paying
attention to what is going on around them. Given the underlying mechanics of
this accident, placement of signs and the contents of the signs simply had no
Claimant’s primary theory that a 90-degree crosswalk would have saved Ms.
Melkun is also not borne out by the facts, and is the result of flawed analysis
by claimant’s expert. He speculated without any factual foundation that
Ms. Melkun would have completed crossing of the road at the time of the impact
had the crosswalk been at 90-degrees. The Court finds that Mr. Serth’s
analysis - as a qualified engineer - more accurately explains the mechanical
aspects of the accident in terms of stopping and sight distance, and more
responsibly addresses the actual facts of the case. Ms. Sherrard saw Ms. Melkun
in the crosswalk, she saw Ms. Lang slowing down, yet somehow Ms. Melkun did not
see either Ms. Sherrard or Ms. Lang, nor did she react when Ms. Lang would most
certainly have been visible well prior to the impact, somewhere between the side
of the road where she began to cross and the middle of the road. Similarly, Ms.
Lang - even as an unalert driver with a 2.5 second reaction time - would have
sufficient distance and time to stop within the more conservative sight
distances. Ms. Lang was familiar with the road, thus the signage was
irrelevant, and the various crests and knolls were anticipated, just as they
were by the other driver familiar with the road, Ms. Sherrard. Ms. Lang never
even braked or swerved to avoid Ms. Melkun. The investigating police agency
concluded that the bicyclist failed to yield.
While it is tragic that errors of judgment resulted in Ms. Melkun’s
untimely death, the State of New York was simply not liable for this
The Claimant has failed to establish by a fair preponderance of the credible
evidence that the State is responsible for this fatal accident because he did
not show that Defendant deviated from accepted engineering standards and that
such departure was a proximate cause of decedent’s death, and other
factors alone were the contributing causes of this accident. Claim number 106432
is hereby dismissed in its entirety.
Let Judgment be entered accordingly.
June 27, 2007
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
.References to the transcript of the trial are
indicated as “T-” with the page number.
. Between 422.4 and 475.2 feet. The Court
notes that frame 31 of Exhibit 17 - right at the crossing - is 580.8 feet from
Frame 20 where the crossing ahead sign is seen “pretty
. Approximately 42 mph perhaps.
. American Association of State Highway and
. The term stopping sight distance was later
described by the witness as “measured from a driver’s eye
that’s three and a half feet above the pavement, to an object beyond the
crest of a hill that’s six inches above the pavement” when an
intersection is not involved. [T-372]. With an intersection, rather than the top
of a six-inch tall object, what is used is a 4.2 foot tall object, like the top
of a car. [T-373].