New York State Court of Claims

New York State Court of Claims

ARCONE v. THE STATE OF NEW YORK, #2007-030-032, Claim No. 109509


Synopsis


Claim dismissed. Claimant failed to establish that the State liable for this accident, involving the collision of two cars at the intersection of the southbound Taconic State Parkway and Rossway Road. No significant design issues presented related to the actual mechanics of accident. No showing that the State was on notice as to any particular hazard at this intersection associated with snow and ice - although intersection one of many at-grade intersections targeted for closure. Intersection successfully maintained without a significant or relevant accident history. Reasonable highway maintenance plan in place, plowing and salting continually in the face of a significant storm event over a series of three days; DOT performed its duty to maintain the roadway in a reasonably safe condition to prevent foreseeable injury.

Case Information

UID:
2007-030-032
Claimant(s):
AMANDA J. ARCONE
Claimant short name:
ARCONE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109509
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
GOLDSTEIN & METZGER, LLP BY: PAUL J. GOLDSTEIN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 6, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Amanda Arcone alleges in her claim that on January 5, 2003 she was injured in an automobile accident as a result of the Defendant’s negligence. That day, at approximately 4:45 p.m., Claimant was driving northbound on the Taconic State Parkway (hereafter TSP or Taconic) in her 1988 Ford Escort automobile. When she reached its at-grade intersection with Rossway Road, she turned left in order to cross the Taconic and proceed west on Rossway, and alleges she stopped at the stop sign controlling the intersection before proceeding across the southbound lanes of the Taconic. Snow accumulation at the stop sign impaired visibility. As she moved to cross the southbound lanes of the Taconic, she was struck by a southbound vehicle driven by Joseph Kelleher. Trial of this bifurcated action was held on March 27, 28 and 29, 2007. This decision relates only to the issue of liability.

FINDINGS OF FACT
On Sunday, January 5, 2003, Ms. Arcone and her boyfriend, Scott Lowe, were returning to her home in Pleasant Valley from a relative’s birthday party. She was driving her 1988 Ford Escort EXP, which she described as a small sports car, “a two-seater”[1], that was low to the ground, “reaching her shoulder”. She described herself as between 5 foot 2 or 3 inches tall. The car was in good operating condition. She did not have any alcoholic beverages or drugs while at the party. When they left the party, the roads were “clear.” Leaving the party is her last memory before waking up in the hospital. She testified that she intended to reverse the route she had taken earlier that day when going to the party, that is, she intended to proceed northbound on the Taconic, turn left at its intersection with Rossway Road on the west side, and proceed westbound on Rossway Road to her home. On the basis of her familiarity with the route, she testified that in the median area between the north and southbound directions of the Taconic there is a stop sign controlling the intersection, just before the two southbound lanes of the Taconic.

She agreed that any recollection she had of what snow conditions were on the median crossway of Rossway Raod and the Taconic at the time of her accident, was based on a general recollection of her earlier trip to the party. She had no recollection of traffic conditions, no recollection of her speed and no recollection of speaking to anybody in the car while driving from the party. She knew it had “snowed quite a bit” during the days prior to Sunday, January 5, 2003, and recalled what might have been an 18-inch snowfall.

At trial, Scott Lowe remembered a bit more about the day of the accident. He recalled leaving his uncle’s birthday party at the firehouse “at 4:30 p.m. or so.” He was sitting in the passenger seat of Amanda’s two-passenger car. The weather was sunny when they left and the roads were dry and clear. They proceeded northbound on the TSP and then made the left-hand turn onto westbound Rossway Road. When Amanda stopped at the stop sign on the median - “five feet before the stop sign” - she “inched forward, stopped again, and then pulled out.” Mr. Lowe said that at “five foot (sic) [before the stop sign] you could not see southbound traffic because the snowbank in the median was higher than the car.” He said: “when she had inched forward, she stopped a little bit past the stop sign” but he was “not sure” of the exact distance. He could not see around the snow from his vantage point in the passenger seat, nor could he see anything directly in front at all “because the snow was higher than the car.” After claimant pulled out onto the TSP, they were “hit by a truck coming southbound.”

Mr. Lowe remembered that there had been snow on the ground over the preceding days and recalled “mounds of snow,” and that there had been a “decent” amount of snow between Saturday night and Sunday as well. As they drove, he had his eyes open, and was facing mostly to the left because he had turned his body and was leaning back against the door facing Claimant and chatting with her as they drove. He did not recall conditions as the car turned left onto Rossway from the northbound TSP. He turned his head to the right, looked out, and saw snow as he looked at the southbound TSP. He saw claimant turn to the right also.

While they were on Rossway Road, he became “more focused.” When the car stopped both claimant and Mr. Lowe looked to the right. When he looked “all he saw was snow from about 5 feet back from the stop sign;” there was snow immediately to the right when they stopped. They “crept forward maybe 7 or 8 feet because they stopped the second time a little bit past the stop sign.” He said he “saw the stop sign passing” and was looking to the right at that point, but did not look continuously to the right as the vehicle “crept forward”, agreeing that “it was Amanda’s job to look.” She was looking to the right and forward as he observed, and did not recall any conversation between them, or any exhortation on his part to “be careful.” As the car moved after the second stop, he had a better view than just snow. Claimant was accelerating at a “a normal acceleration for pulling away from a stop sign,” and the speed was steadily increasing. He did not remember feeling brakes being applied, or her stopping the car or hesitating within the southbound lanes of the TSP.

Snow was above the roof of the car when he glanced to the right on Rossway Road - “a couple of feet higher than the car.” He explained that the “car came up to his chest,” so if he had been standing, the car would have been at his head level of 5 feet high or higher. He said he is 5 feet 10 inches tall. He testified that he had “no idea” if the snow was the same height as at other locations.

On cross-examination he admitted that he brought a lawsuit as a result of the accident, alleging that claimant had “done something wrong,” and recovered damages. He did not recall saying anything at the scene to the trooper who arrived thereafter. Notably, in later testimony during the trial, State Trooper Martin Campos - who was investigating the accident at the scene - testified that Mr. Lowe had responded to the trooper’s inquiries as to what happened by saying he did not know because he was sleeping when the accident occurred. The trooper testified: “Mr. Lowe did not even tell me Amanda’s name.”

Joseph Kelleher, the driver of the Ford F250 pickup truck that struck Ms. Arcone, indicated that on that afternoon he was driving south on the Taconic having entered the parkway at Lake Taghanick Road in Columbia County. He and his wife Janet had been visiting friends for a few hours up in Elizaville, and were heading home to Warwick, New York. The route they took would be the “Taconic to I-84 to the thruway” depending on the traffic. He said his truck was a “six-seater pickup truck with a cap on it.” Road conditions were clear, as was the weather, but there had been a heavy snow either the day before or two days before. It was just getting dark, and he “probably” had his lights on.

He had been traveling at 50 mph, having observed “lots of speed traps” as he drove. As he approached the intersection with Rossway Road, he saw a black SUV pulling from the northbound lane onto the median area. When he got “very close to the intersection a car [- the claimant’s car - ] pulled out in front of me right at the last second.” He first saw the claimant’s car from “less than 100 feet” away. He then struck the car. The left front of his truck hit the right side of the other vehicle from behind the front wheel back.

When queried further, he said that he first saw the claimant’s car when it entered the southbound lanes of the Taconic, having not seen it when it was at the intersection. He surmised that he could not see the car at the intersection because the snowbank was “piled so high,” but did not know what the height of the snow was. When he “saw the black SUV, [he] only saw the top of that - halfway up the windows.” After reviewing several photographs, Mr. Kelleher agreed that they showed how the snow was “piled up” on the day of the accident. [See Exhibits 21, 26, 28]. He speculated that the snowbank at the highest point would be higher than the claimant’s car, but he did not know what the height of claimant’s car was. East of the stop sign on the Rossway Road median, for example, the snow was higher than the car, for a longer area than the length of the car, he thought, as he reviewed the photographs.

Mr. Kelleher recalled the impact occurring in the right lane of southbound traffic where he had been traveling. After the impact his truck “went down into the snowbank on the right-hand side,” traveling 100 feet. He did not recall any other vehicular traffic immediately behind or in front, and confirmed that the pavement was visible in the immediate area of the accident. When he went to check on the vehicle that claimant was in, he noticed that she was “unconscious.”

Although Mr. Kelleher had not been in the local area the day before, he thought it had snowed the day before, but did not remember how much. As he drove south, he saw windrows or plow crests along the road because snow had been pushed aside. He did not remember any particular snow crests, as he traveled the 30 miles along the Taconic he traveled prior to the accident, but said that generally there was snow along the road. At intersections, he agreed that some snow crests were probably taller and that some were smaller.

As he traveled in the right lane of the two southbound lanes of the Taconic, he estimated that he first saw the intersection from about 400 yards, or 1200 feet away. He explained that by “seeing” the intersection, he meant that he could see there was an intersection and there was a crossing along the median between the two directions of the TSP. After some indecision, he finally concluded that he first saw the black SUV from about 50 to 100 yards (150 - 300 feet) away. He said that when he saw the SUV making the turn onto Rossway, he could see part of the windshield - “about halfway up the windows.” The next thing he saw was the white car in the Taconic roadway, accelerating, and then it seemed to slow down right when it got about to the middle of the roadway. He distinctly remembered an increase in speed, and then a decrease. He estimated that “it was less than a second to cross the left lane, less than a second to the right lane when the truck hit the white car.” The car probably “didn’t get up to 10 mph.” Mr. Kelleher saw the white car lift in front as it accelerated, then lower its nose as it decelerated.

Mr. Kelleher testified that a series of photographs fairly and accurately depicted the height of the snow as it appeared in the area of the accident on January 5, 2003. [Exhibits 21, 22, 23, 26, 27, and 28]. A State Police Ford Tahoe, as well as the stop sign and one-way sign posted on the same signpost, were used as a reference point to gage the height of the snow shown in the photographs. In Exhibit 21, for example, the state police vehicle is shown parked on westbound Rossway Road at an unspecified distance before the stop sign, photographed from the perspective of a driver traveling on the Taconic southbound. The round, State Police logo, the reflective striping across the vehicle intersecting with the round logo and the full front and side windows of the Tahoe can be seen above the crest of snow. In Exhibit 23, another photo from the perspective of the southbound TSP viewing the intersection of Rossway Road, the round logo and the entire reflective stripe can be seen above the snow line. These graphics are all well below the windows of the State Police vehicle.

He “guessed” that the length of Rossway Road along the median is “a couple of hundred feet.” He said he did not see more of the black SUV as it got closer, that is, as it moved west on Rossway, and saw it only a “moment” before the sight and impact with claimant’s car. He agreed he would have been looking at the SUV at an angle across mounds of snow.

In Exhibit 28, another photograph of the stop sign - and the one-way sign below it - is shown from the perspective of someone standing on Rossway Road looking north at the southbound traffic on the Taconic. Below the one-way sign there is snow of some indeterminate height. The State Police vehicle is parked on the southbound Taconic in the photograph, with the headlights of the parked vehicle and the reflective striping visible.

In Exhibit 23, which is taken from the edge of the left southbound lane of the Taconic looking toward the intersection, a portion of Rossway Road can be seen where the yellow edge line to the left lane of the southbound Taconic would continue were it to have been drawn. One can see the front right wheel area of the vehicle parked at the signpost containing the stop sign and the one-way sign on Rossway. Using that photograph, Mr. Kelleher said that when he first saw claimant’s vehicle, it was accelerating from the left of the edge line - he “just saw her come from behind the snowbank.”

Notably, the snow between the stop/one-way sign and the yellow edge line becomes markedly lower before the traveled portion of the roadway, and would provide refuge for a westbound car to ascertain if it was safe to proceed. [Exhibit 23].

Exhibit 22, Mr. Kelleher agreed, also fairly and accurately showed the height of the snow and the position of the claimant’s car. The yellow edge line is clearly visible in both photographs, as is the refuge area. Mr. Kelleher thought that Exhibit 28 showed how much of a snow mound covered the signpost. The snow is clearly lower at the signpost itself, appears to rise on either side, but is tapered downward toward the travel way of the southbound Taconic. [See ibid]. The headlights of the State Police Ford Tahoe parked on the southbound Taconic, and all the areas above the headlights, are clearly visible. [Ibid.].

When the claimant pulled out of the snowbank Mr. Kelleher could see the windshield of her car, but did not see her, and thus could not say what direction she was looking. Indeed, he said he was spending time trying to avoid her. He again estimated that between first seeing her car and the impact was “about one second.”

Janet Kelleher essentially testified to the same effect as her husband. She said she did not see the claimant’s car until it pulled out from behind a snowbank, that she could not see the car behind the snowbank because it was hidden, and she first saw claimant’s car when it was in between the right and left lanes of the southbound TSP. The impact occurred when one third of claimant’s vehicle was in the right lane. None of the pictures she viewed showed her specific perspective as a passenger driving in the right lane of the southbound TSP, but they did show how the snow looked generally. [See Exhibits 22, 26, 27, 28].

On cross-examination Mrs. Kelleher confirmed that as the Taconic proceeds south toward Rossway Road, it slopes downhill. She did not recall seeing the pavement of Rossway or any other cars including a dark SUV as they approached the intersection. When she first saw claimant’s car it was “very close, there was no way to avoid it.” It was “accelerating out, then slowed down.” Mrs. Kelleher never saw it stopped at the intersection or along Rossway Road. After reviewing the same series of photographs shown to her husband, she said that she first saw claimant’s car past the edge line in the left southbound lane of the Taconic, moving “very fast”, then it appeared to slow down.

State Trooper Martin Campos arrived at the scene at approximately 4:50 p.m. He found claimant’s vehicle partially obstructing the left lane, approximately 110 feet south of the intersection, and Mr. Kelleher’s vehicle completely off the right-hand lane in the shoulder, approximately 130 to 140 feet south of the intersection. Claimant was unconscious. When he examined the cars, he was able to see that the claimant’s car was struck just forward of the passenger compartment, by the front of Mr. Kelleher’s truck, and there were gouge marks in the roadway. The first half of claimant’s car was in the right-hand lane. He concluded that the impact occurred in the right lane of the southbound TSP, which accorded with the narrative given by Mr. and Mrs. Kelleher, and completed the accident investigation and report. [See Exhibit A].

Given that he approached the intersection from the same direction as did Mr. Kelleher, Trooper Campos noted that he had no difficulty seeing the intersection or the roadway surface despite the substantial snow around the area. He had been assigned patrol of the roadway that day in any event, and had crossed the intersection at least six (6) times in the course of the day, starting at 7:00 a.m. when he reported for his tour of duty. On none of those occasions had he noted that the snow was piled so high at the northeast corner of the Rossway median that it would prevent motorists from seeing southbound Taconic traffic, although he did not specifically turn through the intersection itself. Additionally, he had patrolled the Taconic for four (4) years at the time of the accident, in all kinds of weather, and was generally familiar with the intersections.

Trooper Campos measured the height of the striping on the State Police Ford Tahoe vehicle as 39 inches or 3 1/4 feet from the ground. In almost all the photographs shown to the witnesses, this striping is visible above the snow mounds. Based on the photographs and his independent recollection, he also said that at its highest point along Rossway and the Taconic, the snow could be at 4 feet. More generally, however, it was his observation along the parkway that the piles of snow pushed to the side were generally 3 ½ feet or 42 inches high. All the roadway portions were clear, and the snow was piled neatly. Every intersection he passed looked essentially the same in terms of piled-up snow. All the signs controlling the motorists were fully visible, and all the edge lines of the TSP were fully visible. He did not ever perceive that there was an obstruction at Rossway Road that would create a hazard, and he confirmed that it is his duty to report any such dangerous condition.

Finally, he indicated that he was unable to obtain any information from Mr. Lowe because he informed the trooper that he was sleeping at the time of the accident, and thus had nothing to contribute.

William Baker, a highway maintenance worker employed by the DOT for 18 years, was stationed at Clinton Corners in January 2003. His duties as a highway maintenance worker II - a title held for 10 years at the time of trial - included “operating equipment” essentially, such as trucks, loaders, and backhoes. Part of the job was snow and ice maintenance and removal. “Removal means remove it from the highway.” He used a truck with a sander, and a plow with a wing. “The truck has a sander in the bed of it - it is like a dump truck. That way you can regulate how much sand is delivered.” There is a plow on the front of the truck, and there are either one or two wings. When the truck has two wings, “you can plow both lanes . . . that was how the Taconic was done generally.”

“Maintenance” as he defined it, would be if there was snow on the ground, you remove it from the “main line”. There would be no plowing at intersections while a storm was on; he would be proceeding down the main line, check for traffic when an intersection came up, and then move on.

Mr. Baker’s beat in January 2003 was from the Clinton Corners garage south to Route 55, where he then turned around and came back up to Clinton Corners: a distance of 10 miles. It included the Rossway Road intersection along the Taconic. He would fill out a maintenance report when his work was completed, called the highway maintenance operator’s daily report for snow and ice operations. [See Exhibit 32].

It was his understanding that the State did not plow Rossway Road: “we go past it.” In terms of instructions on how to “deal with intersections” other than plowing the main road he said he himself did not do any maintenance or plowing at any intersections, and certainly not when there was “a storm on.”

His regular working hours in January 2003 were “winter hours.” He would come in at noon and leave at 8:30 p.m. If it was snowing while he was still on the job, he would stay on until midnight clocking overtime. From Friday, January 3 at 8:30 p.m. to midnight on Friday night - which he worked in this case - would be overtime. If he worked on a Saturday, as he did for 4.5 hours on Saturday, January, 4, 2003, it would be overtime.

Looking at his January 3, 2003 operator’s report, he could see he had been using a double plow, had started work at 12:20 p.m. and returned at approximately midnight: a 12-hour shift. [See Exhibit 32]. He had dropped 24.72 tons of salt. He made seven round-trip runs on Friday from noon to midnight.

Looking at his report from Saturday, January 4, 2003 he could see he had been driving a large dump truck with a wing on both sides. [Exhibit 32]. His shift that day started at noon, and ended at approximately 4:30 p.m. He passed Rossway Road at approximately 2:20 p.m., but did not particularly note the road or notice whether snow was piled up. If he had seen “something out of the ordinary” in terms of snow he would have reported it. He was never made aware that there might be a problem at this intersection, and assumed that it “probably was Pleasant Valley’s” responsibility to clean up that intersection.

On cross-examination, he explained that his job - as he understood the priorities - was when there was snow he was to clear the main line. He did not ever turn left or right and plow side roads. He agreed that if he saw a side intersection filled with deep snow - “the truck is too large to go off the road and do it” - he could radio the information or could wait until he got back to the Clinton garage. If he saw a tree down, for example, he would “call it in.” If he saw a big mound of snow on Rossway, he would “call it in.” Mr. Baker did not, however, see any such mounds on January 4, 2003.

Another employee - Wagner - plowed the morning of January 4, 2003, having worked from midnight on January 3, 2003 until noon when Mr. Baker came in. From the reports, it appears that Wagner made six (6) runs, and dropped 15 tons of salt. From the salt volume dropped, Mr. Baker could presume that Wagner was plowing also. When Baker returned at noon on January 4, he did two (2) runs on the same section of the Taconic, dropping 7.04 tons of salt.

Mr. Baker said that after a storm there is “a cleanup - you would do shoulders; at certain places you would be asked to do crossovers.” On Saturday, January 4, 2003, however, they had not begun the clean-up part of the job yet. He explained that “when you plow snow on the Taconic, it goes to the shoulders, until we get a chance to clean it up. We get it far enough off the shoulder, so that if there is another snowfall there is room for moving the new snow off the highway.” To get mounded snow off the shoulder of the highway, “we put the wing of the plow on the shoulder of the highway, then you go down with the wing taking the snow off the shoulder of the road. We cannot do it at the intersections with signs because you might knock the signs down. You have to go around the signs. You go past the signs, then back on the highway to the shoulder of the road again. Areas around signs get cleaned up later, not during the storm.” The clean-up work is done with a loader, he explained, and there is one loader at the Clinton Corners facility that is usually first used to load trucks with salt. It is a front-end loader with a loader - or big bucket - in front. Mr. Baker said that between Clinton Corners to Route 55, there are “half a dozen at least” intersecting roads. A loader needs to be driven down the highway and “does not travel more than 6 or 7 mph. You cannot unload it onto a truck and usually travel with a back-up truck to protect the loader as a ‘slow moving vehicle.’ You need more people to do the cleanup, at least one person in the truck, and one or two in the loader.” The shoulders are cleaned up by putting the wings down. When an intersecting road comes up, he said “the best I can do is get up to, and past the stop sign, along the Taconic roadway” but he would not make a left turn, for example, to go on the intersecting road. During the two years he was assigned this beat, Mr. Baker said “as far as I remember I cleaned up maybe once or twice on Rossway Road . . . Rossway is one of the roads that gets cleaned up, but all the roads get done” in the manner described.

When he left the job on Saturday, January 4, 2003 at about 4:30 p.m., and after 4.5 hours of overtime work, it would have been because his supervisor determined that the work was done.

James Younghanse, Mr. Baker’s supervisor, and a 16-year employee of the DOT testified. In January 2003 he was a “highway maintenance supervisor I, which was more of a field supervisor, actually doing the work,” as opposed to the job he had at the time of trial as highway maintenance supervisor II. The position he had in January 2003 was one he had held from 1998 to 2003, “working out of the shop at Clinton Corners and on the road.” This included the portions of the Taconic from Clinton Corners to Route 55 and inclusive of Rossway Road. Snow removal was one of the jobs he and his crew performed.

Mr. Younghanse was familiar with the NYSDOT highway maintenance guidelines for snow and ice control, saying it is “not the bible, because every situation is different” but it contains the suggestions for how snow and ice should be controlled on New York State highways. [Exhibit 29]. Mr. Younghanse was also shown a document entitled Taconic State Parkway Task Force Report, but had not seen the document before. [Exhibit 30]. He had heard generally - “never a direct association” - that the DOT had commissioned a study of intersections covering his area of the Taconic, but did not know that there was a study concerning at-grade crossings specifically, although he was aware that some had been closed. He did not know when any such at-grade crossings had been closed in relation to the accident.

On January 3, 2003 to January 4, 2003 his general job duties would have been to make sure that “the guys were maintaining their plow beats”, helping them however he could, handling phone calls from the State Police and loading trucks. He was in charge of the noon to midnight shift on Friday, January 3, 2003. Mike Kovach took over supervisory duties after midnight on Friday until about noon on Saturday January 4, 2003.

Mr. Younghanse completed the supervisors time and attendance report for January 4, 2003, for the period from noon on Saturday to approximately 5:00 p.m. [Exhibit 32]. The work they were doing on January 4, 2003 was “spot treatments - the road needed some attention - clean-up type treatment.” He said “before letting everybody go home I would go on the highway and check the roads, look for problem areas.” He would be looking for any “hard-packed snow, drifting, areas too tight.” If he saw drifting, for example, he would “call back to the base station and require the gentleman” whose beat it was to come back out. There were six (6) snow and ice vehicles or trucks at their disposal. The station had “three (3) double wingers, and three (3) single winger” plow trucks. All the trucks had sanders. If “something jumps out at you” at an intersection, including “something that might impair visibility”, he would “call the guy” whose beat it was to see if he could do something with the equipment available. Essentially, the loader was the equipment available. He might send someone down with the dump truck to see what could be done.

Before letting the men go on the afternoon of January 4, 2003, he drove by Rossway Road, but did not note that there was snow piled up at the intersection, nor did he observe any condition of snow piled on at the spot where someone would stop on Rossway Road to cross the southbound lanes of the Taconic. He said “it takes about two (2) hours to check the roads. So if they let out at 5:00 p.m., the likelihood is that I went out on the road to check at 3 to 3:30 p.m. or so.” He did not know “the sight distance someone would have at that spot.” It would be “difficult to tell what was worse on any given intersection” on January 4, 2003. His understanding of the DOT’s job was to “do the main line from fog line to fog line.” His understanding was that the Town of Pleasant Valley would plow Rossway, although he was not aware of any specific agreement with the Town to the effect that the Town would plow the cross street, or that the Town would clean up around the stop sign.

When Mr. Younghanse was shown the photographs reviewed by other witnesses, he agreed that he could see “snow piled up around the stop sign.” [Exhibits 26, 28]. He said that “all the intersections looked like that on January 4, 2003 because we had received upwards of two [feet] of snow.” The storm started on Thursday, January 2, 2003, with rain, changing to snow on Friday. The “main storm” - as he remembered it - was on Friday, January 3, 2003. “Just by looking at these two pictures” [referring to Exhibits 26 and 28], had he seen snow piled up like that on January 4, 2003 it “would not have warranted a call back to base station.” He said he would strictly “be speculating if he were to say that the height of the snow did or did not impair the sight distance of someone stopped at Rossway Road,” although he agreed that sight distance is a concern when clearing a road and it is part of his job.

To clear such a spot, one would need to “shelf it back with a wing or when the opportunity came we would bring out a loader and remove the snow from the intersection.” Shelfing back with a wing is what they accomplished prior to leaving on January 4, 2003, however. The entire TSP - including the area intersecting with Rossway Road - was “wung back.” Thus instead of clearing just fog line to fog line, “you open the road an additional 2 to 3 feet by using your wing on an unstable shoulder, to provide that much more sight distance.” Depending on how far over the operator could get through safely, a snowy area would be cleared - or at least lowered - 2 to 4 feet from the fog line, as it was on that day as shown in the photographs.

When Mr. Younghanse looked at the photographs of the intersection, he noted that you could see that “snow was still touching the fog line, and there was some roll back down, the same as plowing a driveway. It’s not perfect,” [see Exhibits 27 and 28], but that the shoulders had been “wung back” in that area.

The cresting created by the winging back is shown in the other photographs as well, [see Exhibits 22, 23], otherwise there would be “fresh snow sprayed on top.” He said “2 to 3 feet of pushed back snow moving back from the edge line of the main line - as opposed to sitting just directly on the edge or fog line - is shown.” A truck traveling down the TSP with two wings out will cover only out to 6 inches from the fog line. Thus, one pass of a truck with two wings out cannot totally clear the two lanes of traffic; “it is just under.”

At intersections with traffic controls like a stop sign, there is a limitation as to how far the truck can wing back, because one can only wing back as far as the sign, and one needs to avoid hitting the sign. It is the winging back that creates piling, Mr. Younghanse explained, but it also increases sight distance by widening the area along the main line in which vehicles can be viewed.

On January 4, 2003, Mr. Younghanse was overseeing seven (7) workers. Six (6) were driving plows. Each would take a plow out by himself, and be responsible for a certain beat. Mr. Baker did not call in concerning any obstructions, nor did Mr. Younghanse observe any obstructions during his patrol. Snow again started falling on the night of January 5, 2003 as he recalled. Given a series of snowstorms such as those presented between January 2, 2003 and January 5, 2003, cleanup is attempted when the storm is finished during regular work hours. It is not usual to call in a crew for overtime to do the clean-up operation. Workers would have just been working consecutive 12-hour shifts for days. Cleanup - which requires managed protection of traffic, flaggers, shadow vehicle for the men, loaders and shovels - involves two to three weeks of work depending on the storm. In addition to intersections, workers also work on “points and triangles of ramps, and any paved area melting.”

When Mr. Younghanse reviewed the TSP as shown in the photographs submitted in evidence, there was nothing unusual about this intersection that he noticed. [See Exhibits 21-28]. It was the “same as every other intersection along the parkway.”

During snowstorm operations, when between one to three inches an hour of snow is falling as an example, trucks maintain the front plow down, with two wings out, and continuous salting. Once a storm subsides, individual lanes plus shoulder clearing can be accomplished. If a worker hugs the right side, during the initial pass through during a storm, he is “within 6 to 8 inches before the fog line. When doing an individual lane, you can then go 2 to 4 feet past the fog line depending on the operator, in the winging back operation.” When Mr. Younghanse did his patrol on January 4, 2003 and then released the men, the main line had been “wung back”, and Rossway Road had been plowed, presumably by the Town. Any snow shown on Rossway Road itself would not have been piled by the DOT; the snow manipulated by the DOT is only on the main line. In his years of experience, there had never been problems with this intersection, and there was no special consideration for the intersection at Rossway Road in terms of planning for snow and ice removal.

Michael Kovach was the Highway Maintenance Supervisor II who was supervising the 12-hour shift from midnight on Friday, January 3, 2003 until noon, on January 4, 2003. His regular shift would have been from 3:30 a.m. until noon. His daily time and attendance report for January 4, 2003 showed that the whole crew did 12 hours of plowing and material application. [Exhibit 32]. His supervisors daily report for the same day shows “plowing and spreading” for 949 miles. In the “remarks” section, it is noted “heavy snow continued until 06:30; light flurries until 14:30 [2:30 p.m.]; temperatures ranged from 28 to 32 degrees. Repaired pothole on TSP, NB, before Hibernia Rd. at 0100.”

Al Wagner, who plowed the area of the TSP by Rossway Road, made six (6) round trip passes south and north on the TSP, starting at 12:30 a.m. on Saturday, January 4, 2003, and ending at noon on January 4, 2003. Mr. Kovach inspected the roadway too, with the primary concern being “keeping the main line clear.” He did not recall or identify any problem with intersections along the TSP that needed attention, nor did he recall specifically seeing snow piled up at the Rossway Road intersection. When he left at noon on January 4, he would have spoken with Jim Younghanse for 30 to 45 minutes to talk about the main line area and any side roads the DOT was in charge of, but did not recall any specifics. Rossway Road was not a DOT responsibility. The Town of Pleasant Valley was responsible. He said: “I am sure there is an agreement of some sort; but I don’t know the details.” He had never seen an agreement, nor had anyone ever shared it with him. He presumed it would be in writing.

His explanation of the procedures was essentially the same as Mr. Younghanse’s, and he recalled his team had performed the winging back operation on the main line. The main purposes of the pushing back and winging back would be to have a place to put more snow in the event of another storm system, and also to allow greater sight distance. In his experience, when the snow is “wung back, it has always been adequate enough sight distance.”

Mr. Kovach went to the accident site on January 6, 2003, where he apparently cleared snow around the stop sign on Rossway Road. [Exhibit 35]. He also cleaned up some median areas intersecting elsewhere on the TSP. He said that from Saturday, January 4, 2003 at about 4:45 p.m. until Monday, January 6, 2003 at around 1:00 a.m. there was additional snowfall of approximately one-half (½) inch, although 2 inches or more had been forecasted. [See Exhibits 33 and 36].

When he cleaned the snow at four (4) of the seven (7) intersections between Clinton Corners and Route 55 on January 6, 2003, it was because these four had “more snow” than the others. [see Exhibit 35]. He used a loader by himself. He took the loader to these locations, and pushed snow out of the way to prepare for the event of a future storm.

Michael Hartman, employed for over thirty years by the DOT with fifteen (15) years experience in the Traffic and Safety part of the Poughkeepsie Regional Office, testified as claimant’s engineering expert. His primary experience appeared to be with traffic signalization, and he had never worked on highway maintenance, or consulted with highway maintenance concerning snow and ice removal during his tenure.

He set great store by a Taconic State Parkway Task Force Report issued in December, 2001, discussing the various at-grade intersections along the TSP. [See Exhibit 30]. Included among the intersections discussed is that of Rossway Road and the Taconic. The report does not distinguish, when reporting any accident history, those accidents occurring in the north or southbound lanes, nor are any weather distinctions noted. Recommendations from the task force for this intersection included removing a rock embankment to the north and west of the intersection to increase the sight distance by June 2002, and the long term recommendation was to close this intersection. The report acknowledges that prior to closure being accomplished, alternate access would need to be provided. [See Exhibit 30].

Mr. Hartman thought that given this report, special attention should have been paid in terms of snow and ice control at the intersection of Rossway Road and the TSP - particularly since the recommendations therein had not been implemented - beyond the generalized maintenance guidelines contained in the DOT Highway Maintenance Guidelines for Snow and Ice Control dated December, 1993. [See Exhibit 29]. Additionally, he opined that the DOT had failed to abide by the maintenance guidelines in any event, when they failed to prioritize clearing the intersection of Rossway Road for the safety of the public. It was his ultimate opinion that the failure to remove the rock outcrop on the western side of the southbound TSP, north of the Rossway Road intersection, coupled with the purported failure to expeditiously and adequately clear the area of the intersection, was a significant contributing factor to the accident of January 5, 2003.

Mr. Hartman said that the sight distance for someone stopped on westbound Rossway Road, looking north to view southbound traffic, was 740 feet on a clear day. He said that what that means is that “from a height of 3 ½ feet the driver can see to a 6-inch high object from 740 feet. That is the distance they have in order to see a car approaching and to decide if they should cross.” The sight distance the southbound TSP driver has to see the car in Rossway Road is called “stopping sight distance,” and would be slightly less than the 740 feet. “Decision sight distance” assumes more decisions have to be made, such as, changing lanes, making a turn - not just stopping a car to avoid an impact. The task force said, as recalled by Mr. Hartman, that any distance less than 1,100 feet was limited. [See Exhibit 30]. With regard to snow and ice control, sight distance “makes one more thing they have to take into account” when maintaining a road. Since the report in December 2001 when there were seven (7) open at-grade intersections between Clinton Corners and Route 55, three (3) had been either closed physically or closed by the use of signs. In 2003 there were four (4) at-grade intersections within the same area.

Mr. Hartman said he made himself familiar with the highway maintenance guidelines [see Exhibit 29] for the purposes of trial approximately two months before he testified. From his review, he opined that the DOT violated the guidelines by the manner in which they maintained the area of Rossway Road and the TSP. Specifically, he thought that section 5.1303, entitled “Locations that require special consideration”, clearly indicated that intersections should receive special consideration. He agreed that engineering judgment and experience informs how the guidelines are utilized and that they are not mandatory. He agreed that maintenance forces and other regional groups knew the configuration of the TSP through their travels and maintenance work, and would thus be aware of the geometry of the parkway, the curvature (vertical and horizontal), the speeds on the main line, and the maneuvers necessary to gain entrance onto TSP or cross it, and opined that Rossway Road and others are the types of intersections that should have been provided with a standard of snow and ice removal above the normal as provided in the guidelines. They should have had a specific snow and ice removal program that gave the intersection greater consideration and clearance on a faster schedule than that provided. He opined that since they should have been removing the snow at and in the intersection as quickly as they could, such clean-up work should have been done Saturday afternoon or Sunday morning. The clean-up work should have been done when workers were finished with the main line plowing and winging, because of the vertical and horizontal curvature approaching in the southbound parkway and the reduced sight distance, the natural increase in speed of southbound traffic because of the downhill grade; and the obstructing rock: all inherent dangers in the intersection even without snow and ice. It was his opinion that the failure to have special consideration given to the intersection was a departure from accepted engineering practices. If there had been a heightened plan, they would have pushed back the snowbanks so that the sight distance was at least back to what it was.

When Mr. Hartman reviewed the photographs he concluded that there were areas of snow both in the median section of Rossway Road on the north side and on the east side of southbound TSP that were at “4 feet or a little bit more.” Using various presumptions concerning claimant’s height, her eye level while seated, and its relationship to the dimensions of her stopped car, Mr. Hartman opined “ . . . It would have been very, very difficult to see southbound traffic” while stopped at the stop sign on Rossway Road.

The fact that Mr. Kelleher said he did not see claimant’s car at all, and that the snow was higher than her car also reinforced Mr. Hartman’s opinion. Mr. Kelleher, he explained, would have been coming down the parkway at a higher elevation than hers, in a pickup truck; both of which give him a higher visibility. “If he couldn’t see her, she couldn’t see him.”

Mr. Younghanse’s testimony that before he let his men go, he made sure the TSP was “wung back” meant to Mr. Hartman that the supervisor made sure it was pushed back away from the edge of the parkway to the shoulders; but this “did nothing for the intersections and might have made the mounds higher decreasing sight distance.” In his view, DOT personnel would be able to assess the sight distance as they drove by intersections with their plows based on the signpost height standards: “you could see that snow was high up to the bottom of the sign and that’s pretty substantial. Seeing snow that high under the one-way sign should have triggered something.” Failure to act violated the DOT’s responsibility for assuring adequate sight distance at the intersection in his opinion.

On cross-examination, Mr. Hartman again acknowledged that the first time he saw the DOT guidelines was two months prior to trial, and that he had never had occasion to use them or interpret them during his thirty-year career with the DOT. He said there are “engineers who do that: highway maintenance engineers,” and he agreed that he is not one of those. He also confirmed again that the guidelines are not mandatory, and that how much salt should be dropped, for example, is determined by the people in maintenance for a particular job. Many times such judgments would be made in the field, and in terms of intersections, whether more needed to be done at an intersection might be assessed by the county or the town, in addition to the DOT. Indeed, he had never seen a specific plan for any intersection, and acknowledged that the guideline indicates that there should be special consideration for every intersection, and other particular locations such as steep grades, sharp curves, bridges, approaches, signs, and ditches and culverts. [See Exhibit 29, page 3]. Mr. Hartman would not say that “all intersections” were to be given special consideration, but insisted that those mentioned in the task force report would clearly need special consideration. He conceded that the task force report does not make any mention of maintenance considerations, nor are there records therein in terms of the study having considered maintenance issues. The suggestion was closure when a replacement was available. There are also six generic suggestions concerning all the intersections in the task force report, regarding monitoring traffic, for example.

All the sight distances of the intersections discussed in the task force report were less than ideal, and many had sight distances far inferior to that at Rossway Road, such as Tyrell Road, with 400-550 feet, Mountain Road with 600 feet, or Hosner Mountain Road with 350 to 550 feet. Mr. Hartman acknowledged that none of these were noted as requiring additional attention for snow and ice removal either.

Viewing the photographs taken at the scene, since the stripe on the State Police Ford Tahoe is visible, Mr. Hartman concurred that the snow would be less than 4 feet, because the stripe was measured as 39 inches from the ground. [See Exhibit 22]. Moreover, he agreed that the headlight of the same vehicle is beneath the stripe in some photographs, and the headlight appears to be equivalent to the height of the snow. [See Exhibit 26]. Mr. Hartman also agreed that the stop sign would be 5 feet off the parkway and the edge line of the pavement, and that the photographic evidence appeared to demonstrate that there was a space between the left of the edge line and the edge of the pavement on the TSP, and thought that the space was 4 to 6 inches of pavement. [Exhibit 27]. Indeed the mound of snow at the stop sign is on grass or dirt, and snow has been cleared so that grass can be seen in an area in front of the stop sign toward the Taconic southbound. [Exhibit 26]. The winging back along the TSP, Mr. Hartman agreed, is shown at a point that the car would have stopped at the stop sign, and would have allowed better visibility.

Consideration of the change in slope of the southbound TSP - that is, the change in grade within 100 feet of the intersection looking north of 7%, whereby the roadway rises 7 feet for every 100 feet - also made Mr. Hartman acknowledge that a vehicle coming around the curve at the top of the hill, that is 740 feet away from the intersection, would be “30 to 40 feet higher” than a vehicle stopped at the intersection of Rossway Road. [Exhibit C-1]. Assuming no impediments, he agreed that a westbound motorist on Rossway could be seen by a motorist traveling south at 740 feet. Although the task force report indicated that 740 feet is below the 1,100 feet that is already considered “less than desirable, ” other than saying that the 1,100 feet is “consistent with several engineering sources” Mr. Hartman did not know where the figure came from for this report. Indeed, the only published standard that talks about “less than desirable” or “critically limited” is the standard for advance posting of intersection warning signs of various types contained in section 232.1 of the Uniform Traffic Manual. In that provision, 1,100 feet is the suggested distance for posting an intersection warning sign. In this case, there is such a sign before the rock outcropping. Moreover, these drivers knew the road, and Mr. Kelleher was driving at 50 mph - well below the speed limit, as opposed to the 85 percent of drivers who exceed the limit.

When asked about what constituted “clean-up activity” for ice and snow, Mr. Hartman agreed that because of the posted signs, workers could not use the big plows, and that the guidelines for when cleanup should be done generally provide that it should occur after the storm is over. Indeed, the provision (5.3305) states: “Crossovers, turnarounds and gore areas should be plowed after the storm is over and other elements of the highway have been cleared. These should be done when visibility is good and traffic volume is low . . . ” [Exhibit 29].

Mr. Hartman agreed that 42 inches (3 ½ feet) is the standard for sightline used to represent a seated driver’s height in engineering practice. Thus if the snow were at 39 inches, it would not interfere with a sightline of 42 inches and would be adequate sight distance from the crossing looking to the north (740 feet) measured from a vehicle stopped at the stop bar. A vehicle is expected to stop 5 feet back from the stop bar, and it is from there that such measurements are made. He also agreed that any motorist would be expected to adjust for conditions on the roadway. Thus, as a driver approached the stop position on Rossway, the driver could see the level of snow and banking, and should be able to see where the sight was better or worse and adjust accordingly. Prior to where the vehicle would stop at the stop bar or sign, the snowbanks were concededly lower along Rossway Road, but Mr. Hartman could not say “exactly how far back” except that it was “considerably more than 5 or 6 feet” he thought more like “10 or 15 feet back” from the intersection. Along the southbound TSP there were areas where the snow was lower. As a driver approached the stop bar along Rossway, the clear sight area would of necessity be passed as well, Mr. Hartman agreed.

The winging back shown on the TSP in the photographs moved the snow further away from the traveled way. Mr. Hartman agreed that in addition to providing storage for new snow, widening the area between snowbanks improves the sightlines along the traveled way, and agreed that the snow will have been shifted a couple of feet so that the area to view is widened “somewhat” but he insisted that the snowbank was not any lower.

If claimant had started crossing the southbound TSP at any point within the first 5 seconds that the Kelleher vehicle proceeded down from 740 feet, Mr. Hartman said “she would have made it.” He conceded that 740 feet from the stop sign is adequate sight distance if unobstructed. Any “need” to cut back the rock outcropping was from the other approach - for drivers stopped eastbound looking north. [Exhibit 30]. Mr. Hartman agreed that the task force report did not mention any accidents with a westbound car and a southbound car at this intersection. Any accidents mentioned were northbound; some were southbound with an eastbound car, but none was westbound for the period studied [from 10-96 to 9-99] that led to the recommendation that the intersection be closed.

Mr. Hartman was not personally familiar with the management requirements for manning snow and ice removal, or the routines for snow and ice control except as testified to by DOT employees. He acknowledged that in this case, the night crew had started 12-hour shifts from Thursday into Friday morning, the day crew followed with another 12-hour shift during the day Friday, and then the night crew came in with another 12-hour shift from Friday into Saturday. On Saturday the daytime crew worked an additional 4 hours. He acknowledged that this kind of work presumably requires that attention be paid to the operator’s own safety and the safety of others including the motoring public. He accepted that 2 wings on the trucks were used, and agreed that this showed some forethought for plowing on a parkway, versus other roads that would only accommodate one wing because of oncoming traffic. He insisted, however, that it did not show the planning he thought necessary in his opinion.

He admitted that the DOT guidelines are used for all State highways, and that it is a document created by engineers who use terminology in an engineering sense. Thus, an “intersection” - in engineering terms - is the “box” that is created by extension of the edge line of the road. It is a physical description. Put that way, Mr. Hartman agreed that the intersection was cleared of snow on January 4, 2003.

Mr. Hartman agreed that the guidelines suggest that plowing back and benching should occur after the main pass to get the roadway clear and that it should occur after a storm is over. The immediate northwest corner of the median could only be winged back a little because of the sign constraints. Indeed there is indication in the photographs that the snow ridge on the main line and on Rossway to the west of the sign on the TSP shows that workers were avoiding the signs. He agreed there might be a twofold reason for indicating that benching operations be performed during regular hours, namely, fiscal considerations, given budgetary constraints of using people on overtime; and practical considerations, in that workers need a break; they get tired.

Mr. Hartman was not aware of any prior accidents at this location following a snowfall, was not aware of any complaints concerning this location following a snowfall, nor did he make any inquiries.

Mr. Hartman conceded that there was no particular mention of snow- or ice-related accidents in the task force report, and that what accidents were reported were not seasonally distinguished between winter and summer. [Exhibit 30]. He agreed that, statistically, there was no difference. Mr Hartman could not say that there was anything in the guidelines to the effect that snow clean-up operations, such as the removal of snow around signs, should take place within a particular time period and then conceded that what the guidelines suggest is that after the main line operations, the push back and the benching should be completed, within a “regular time basis to the extent possible.” [Exhibit 29]. He admitted that the judgment of the resident engineer or his superintendent, or those directly involved in the road, is implied as to the timing for such cleanup on a “regular time basis to the extent possible.”

Nicholas Pucino testified as the State’s engineering expert based upon his substantial experience. He has a significant history of employment with the DOT as a civil engineer with hands-on experience in all phases of highway design and construction, and then served as a liaison to the East Hudson Parkway Authority, which was responsible for the design and construction of all major parkways in the entire mid-Hudson region including the Taconic. As chief engineer he was responsible for overseeing the safety needs of the parkway system, and developed a computer-assisted program and methodology for analyzing accident history as a basis for planning, prioritizing, and scheduling needed improvements, and was a technical advisor to parkway maintenance, including snow and ice removal operations. Although the maintenance aspects of his position were “not day-to-day” - there was dedicated parkway staff for maintenance - he gave some direction concerning ice buildup and snowmelt and “his car had a radio with a maintenance frequency.” He was very familiar with the at-grade intersections on the TSP. He had an overall responsibility for safety on the TSP, and monitored accidents annually; established the monitoring and analysis program to highlight problem areas. As a result of these studies, design changes were made and prioritized. There was a good deal of emphasis on at-grade, unsignalized intersections in his work, and he did “all . . . [he] could to recommend grade closings; or to create interchanges. [He] wanted to do it system-wide rather than at individual intersections, but there was not much push to close them” given the competing interest of convenient access to the parkways for local motorists and municipalities.

He expressed himself as “familiar” with the task force report, and said it contained “the same recommendations to close intersections made [by him] in the 1970s.” He thought that now the municipalities were finally receptive to the idea, but for the State it had always been an area of concern. Significantly, the report, in his view, did not have an effect on snow and ice maintenance at all. He said “they’ve been maintaining the intersection for 50 years - since 1948,” successfully.

On his site inspection of the intersection, he found the same approximate sight distance available for westbound vehicles of 740 to 750 feet. He also “scaled it from the profile”, meaning he “checked to see whether the crest of the hill interfered” with the sightlines. He said the 1948 plans show the grading for the rock cut, and opined that “interference” for the westbound motorist would be at 1000 feet. A car driving southbound at 50 mph would take 13 or 14 seconds to travel 1000 feet at the rate of 75 feet a second. The main purpose for removing the rock outcropping was to improve sightlines for the approach to the intersection along the southbound TSP, and for an eastbound driver trying to cross the southbound lanes. He opined it had no significance with regard to this accident because the existing sightline was adequate at 740 feet irrespective of the rock outcrop, and claimant’s car entered the intersection when Mr. Kelleher’s truck would have been well within view to the careful driver. “If a snow pile is what caused the accident”, he said, “removing the rock doesn’t relate” to the accident.

Mr. Pucino opined that while the sightlines for the intersection might be less than optimally desirable because of the high rates of speed utilized by cars traveling on the through lanes, when the highway was constructed the sightline and distance available to a car positioned as claimant’s was met engineering standards of the day and is sufficient in any event for vehicles to safely cross or enter the southbound TSP. There was no known significant accident history to suggest that there was an unusual danger to motorists attempting to cross the southbound lanes. Mr. Pucino thought that the operational concerns applicable to all at-grade crossings on the parkway, primarily related to speeding vehicles on the TSP, was only incidentally related to highway maintenance, and certainly did not call for a special plan for snow and ice removal at this intersection.

In his view, the maintenance procedures described by the witnesses in the wake of what had been a significant storm event over two days was sufficient in terms of the priorities given to assuring that the main line was cleared, and that the shoulders were winged back where they were able to do so. Judging by the photographs, and the eyewitness identification of the snow conditions, a careful driver should and would have been able to adequately view southbound traffic as that driver proceeded along the median, and then again after stopping at the stop sign, and adjusting for the conditions by inching forward from the stop sign to the southbound traveled way.

Mr. Pucino thought that the time it would take claimant’s car accelerating at a normal acceleration rate of 4 ½ feet per second to clear the distance from 10 feet back from the edge of the road - usually the edge of the stop bar - to clear the full width of both travel lanes including the rear of the car would be between 5 and 7 seconds, or approximately 6.6 seconds.

When Mr. Pucino estimated the height of the snow along the Rossway Road median using the photographs and the testimony, he opined that at its highest it was at 3 ½ feet. The line of sight of a vehicle for design height purposes is 3 ½ feet to a 4 ½-foot object. Asked if he heard Mr. Hartman say that claimant had an eye height of 3 ½ feet, Mr. Pucino opined that a 3 ½-foot pile of snow would not interfere or obstruct her view because she should have been able to see the southbound traffic given the roadway grade increase of 11 feet in 100 yards. A pickup truck was “higher than her car - it is a big vehicle - higher than most sedans. The higher it is, the easier it is to discern, but a regular vehicle would be visible” as well.

In order for the snow pile to have completely obscured claimant’s vehicle from Kelleher’s view, it would have had to be 4 ½ to 5 feet high. Claimant’s car was 4.25 feet high. Given that the bottom of the one-way sign is at 5 feet, and there is no indication in any of the photos that the height of the snow furrow reaches to within 6 inches of the bottom of the one-way sign, the snow pile should not have completely obscured claimant’s vehicle to the southbound driver. [See Exhibits 22, 23, 26, 28].

Mr. Pucino was very familiar with the snow and ice control guidelines, and maintenance procedures and prioritizing. He was also familiar with snow and ice removal practices on the TSP in addition to the guidelines published in 1999 because he had used them on other accident cases after he retired from public service. He opined that their purpose was to set forth general policy for sequence and planning for how maintenance units should use their equipment. “It helps to set priorities; start with the main line then go from there. They provide a plan of action. You plow the main line, intersections, winging back. Clear gore areas and total shoulders, then crossovers; then special areas that need specialized equipment.”

After hearing Mr. Younghanse testify as to the procedures followed, Mr. Pucino opined that the priority given to the main line, the winging back, and then the shoulder-clearing back to the full 8 feet was appropriate. Not only did such clearing perform the function of providing for additional snowfall storage, but the significant issue of avoiding the dangers of the snowmelt from the pile to avoid a potential icing issue across the travel way is addressed by the winging back. “The idea is to get the snow out of there as soon as you can.”

As to the areas around the signs, Mr. Pucino agreed that is a “clean-up type operation after the main line, shoulders, and gore areas (ramps) are cleared.” He emphasized that “it is not just plowing the snow on the main line, but salting, and removing the icing area potential. That is the primary focus for some time.” In his experience, the clean-up activities would not occur on weekends, when the traffic volume is high, and particularly not on a Sunday on the TSP, when the volume of traffic is southbound. With heavy maintenance equipment on the TSP, it is not just traffic volume and movement that is of concern but the safety issues “get worse with slow moving vehicles.”

Mr. Pucino said he heard the testimony from the workers describing three (3) days of snowfall, with between 18 to 24 inches of snow on the ground and further describing three (3) days of 12-hour shifts up until Saturday afternoon. He opined that he would not have expected them to clean up from Saturday afternoon to Sunday evening, nor was it a departure from highway guidelines and good practice and maintenance procedures on the TSP to proceed as they did. From Saturday afternoon into Sunday evening, “is not a good time to be out on the parkway in the first place. Plus, you can’t wear workers out totally. There are safety issues too. Priorities and reasonable limits on what someone can do should be set.”

Mr. Pucino opined that what caused this accident was claimant’s failure to see what could have been seen had she been looking. He said she failed to adjust for the conditions and proceed cautiously and slowly out of the intersection, as there was adequate sight distance available to see over and around the snow pile. Kelleher said that he saw her for a second or less, from 100 or so feet, before the impact. That information indicates that claimant “was going pretty fast” he opined. “The ‘crept out’ testimony doesn’t make sense because if she had, it would take longer than 3 seconds to the point of impact, and Kelleher certainly did not have 3 seconds, so I have to assume that she proceeded out pretty quickly and either failed to stop, or just didn’t proceed cautiously enough to see what was there.”
DISCUSSION AND CONCLUSION
The State has a non-delegable duty to maintain its roads and highways in a reasonably safe condition to prevent foreseeable injury, but it is not an insurer of the safety of its roads. See Friedman v State of New York, 67 NY2d 271 (1986).[2] The ascribed negligence in maintaining the roadway must be shown to be a proximate cause of the accident. Hearn v State of New York, 157 AD2d 883 (3d Dept 1990), lv denied 75 NY2d 710 (1990). In fulfilling its obligation the State may assume that those using the roads will use reasonable care and obey the law governing the operation of motor vehicles. See Tomassi v Town of Union, 46 NY2d 91, 97 (1978).[3]

No liability may attach, however, unless Claimant establishes that the State had actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct the condition. Brooks v New York State Thruway Auth., 73 AD2d 767, 768 (3d Dept 1979), affd 51 NY2d 892 (1980), see also Heffler v State of New York, 96 AD2d 926 (2d Dept 1983).[4]

The State’s negligence is not established by the mere presence of ice, snow or water on a highway. Timcoe v State of New York, 267 AD2d 375 (2d Dept 1999); Fiege v State of New York, 189 AD2d 748 (2d Dept 1993); Freund v State of New York, 137 AD2d 908 (3d Dept 1988), lv denied 72 NY2d 802 (1988). Claimant must establish that any icing condition in a particular area was a recurrent condition of which Defendant should have been aware, and further that maintenance procedures followed were not adequate under the circumstances. Freund v State of New York, supra at 909-910.

Perhaps most importantly, whatever kind or degree of negligence is asserted, it is the Claimant’s burden to show that the negligence claimed is a proximate cause of her injuries, by a preponderance of the credible evidence. Jordan v State of New York, 249 AD2d 279 (2d Dept 1998); Hearn v State of New York, supra at 885. Although claimant contends that a lesser burden of proof is applicable because she does not remember the happening of the accident, the Court disagrees. Under the so-called Noseworthy doctrine, a relaxed burden of persuasion is allowed when a victim cannot provide his account of how the accident occurred. See Noseworthy v City of New York, 298 NY 76 (1948); Schechter v Klanfer, 28 NY2d 228 (1971); see also Phelan v State of New York, UID # 2005-032-503, Claim No. 105128 (Hard, J., June 29, 2005). It does not apply when the parties have equal access to the facts surrounding the accident. Here, neither claimant herself nor the defendant can describe the underlying facts of the accident, and both have equal access to whatever witnesses and direct evidence is available to establish the underlying facts of the accident.

Claimant has asserted several related theories of liability. First, she argues that the State was negligent in failing to remove or level the snow at the intersection of the Taconic State Parkway and Rossway Road, and that such failure was a substantial contributing factor to the collision. Second, she argues the State was negligent in failing to implement the task force recommendations that the intersection be closed and the rock outcropping be eliminated, and in having so failed, to implement the task force recommendations, further failing to prioritize assuring the safe operation of this intersection by having a specific plan for snow and ice removal for this intersection. Finally, she argues the State was negligent because it did not follow its own guidelines for snow and ice control in any event. Defendant argues that the claimant’s proof at trial was insufficient to establish that this intersection was unusually dangerous or that the State failed in its duty to maintain the safety of the highway and the specific intersection, or that any failure to implement the task force recommendations was causally related to the happening of this accident. Defendant further argues that the snow and ice removal guidelines were an appropriate plan for maintenance and that their application was followed reasonably during and after a significant storm event.

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to establish that defendant was negligent and that such alleged negligence was a proximate cause of this accident and her resulting injuries.

Throughout the three days preceding the accident of Sunday, January 5, 2003, DOT highway maintenance crews dealt with a significant storm event and its aftermath, and worked several 12-hour overtime shifts. The testimony established that at the time of the accident, the main line of the Taconic was cleared and the shoulders were cleared as well. More snow was anticipated. Claimant was familiar with the route she was taking and the conditions thereon, having traveled the same route many times previously, as well as more recently on the morning before the accident as she drove to the party. All eyewitnesses to the accident who could testify as to the conditions present identified the photographs submitted in evidence - if not every photograph, at least the most telling photographs - as fairly and accurately depicting the snow conditions as they were at the time and place of the accident. The State Trooper performed measurements at the scene. Both experts gauged the height of the snow based upon the measurements made by the trooper, and the relative heights of fixed objects depicted in the photographs, such as the State Police vehicles and the signpost containing the stop sign, and the one-way sign, at the applicable intersection.

Regardless of whether the snow was at 39 inches or 42 inches, or at the less supported 5 feet[5] argued in claimant’s brief, it is apparent from a review of these photographs and the testimony that the height of the snow varied along the Rossway Road median, allowing both southbound Taconic drivers to observe vehicles in the median, and westbound Rossway Road drivers to observe Taconic traffic intermittently, and that the snow was leveled down to the pavement and grass in an area beyond the stop sign and before the traveled way of the southbound Taconic, sufficiently to allow a careful driver to proceed slowly forward within such refuge area to a point where visibility would be assured. From the other eyewitness testimony provided by the Kellehers, and the credible calculations of Mr. Pucino, claimant did not proceed with such caution but rather sped out.

Mr. Lowe’s “trial version” of the happening of the accident is not credited. It flies in the face of the direct evidence of the physical layout of the intersection, the testimony by the Kellehers attesting to the preliminary acceleration of claimant’s car as shown by its nose “lifting”, and the slowing down that occurred, likely when she recognized the danger she was in, and the credible calculations made by Mr. Pucino as to the relative time each driver would have taken to advance to the point of impact. Had Ms. Arcone “crept out,” the photographs show she would have been able to see, would have had some refuge before the traveled way to ascertain whether she could indeed cross, and would also have been seen by southbound traffic. Indeed Claimant’s own expert would only opine that it would have been difficult to see, not impossible.

The guidelines for snow and ice removal provide a comprehensive plan for maintaining the safety of the Taconic during winter conditions, and were reasonably applied throughout the deep snow conditions prevalent over all the highways during the weekend of January 3, 2003. It is reasonable to allow crews to rest up and continue the clean-up operations after the snow was removed from the main line and the shoulders were pushed back to allow for the new snowfall expected on January 5, 2003, to allow for a greater refuge area and sight distance, and to prevent potential icing conditions that might be caused by temperature fluctuations first melting, then again freezing such snow. As just one sign that Mr. Hartman’s opinions as to the priority of maintenance operations, and the meaning of the task force report, are somewhat uninformed and speculative, he did not even mention icing as a factor to consider.

Accordingly, claimant has failed to establish that the State of New York should be held liable for the happening of this accident. There are no significant design issues presented. The rock outcropping on the western side of the southbound Taconic is not significant in terms of the mechanics of this accident. There was no showing that the State was on notice as to any particular hazard at this intersection associated with snow and ice, and, indeed, it had been successfully maintained without a significant and relevant accident history. By having a reasonable highway maintenance plan in place, by plowing and salting continually in the face of a significant storm event, and by winging back the shoulders, the DOT performed its duty to maintain the roadway in a reasonably safe condition to prevent foreseeable injury. While it is distressing that an error of judgment resulted in injuries to claimant, the State is nonetheless not liable for this unfortunate accident. To hold otherwise would render the State an insurer.

All trial motions not otherwise disposed of are hereby denied and Claim Number 109509 is hereby dismissed.

Let judgment be entered accordingly.


August 6, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].All quotations are to trial notes or audio recordings unless otherwise noted.
[2]. These four cases decided concurrently all involved so-called ‘crossover’ accidents occurring on State- constructed and maintained highways in which the alleged negligence is the State’s failure to install median barriers.
[3]. “. . . So long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied . . . ” (id. at 97).

[4].In Heffler v State of New York, 96 AD2d 926 (2d Dept 1983), the Claimant was injured in an intersection accident, partly because median barriers installed 10 years earlier by the DOT obstructed views of oncoming traffic in both directions on the Taconic State Parkway, and those crossing the Taconic were expected to cross 4 lanes of highway speed traffic. Despite two years' notice of increased accidents at the location, the DOT failed to take reasonable steps to modify the intersection. The Court found that the driving errors of the car that struck Claimant were not intervening acts sufficient to relieve defendant of all liability. Such collisions, the Court said, are clearly a “normal and foreseeable consequence of the situation created by the defendant's negligence . . . (citations omitted).” Heffler v State of New York, supra at 927. Similarly, the Claimant's own driving judgment error rendered her comparatively negligent. Not without dissent, the Second Department found the State 50% liable: a decrease from the original 75% liability found by the trial court. The dissent would have dismissed the claim. The Court approved of the trial court's reasoning to the effect that the basis for the State's liability was its failure - after the barriers were installed rendering other parts of the highway safer, but significantly increasing the risk at this intersection - “ . . . to take reasonable steps to modify the intersection once they knew of the dangerous condition created by the median barrier and lack of refuge [from oncoming traffic]; a danger that the State's ‘safety experts' knew the flashing }softlineindicator had failed to correct.” Heffler v State of New York, supra at 927. This is significantly different from the facts established here, where there is no showing that the State created a dangerous condition, had notice of increased causally similar accidents, and failed to take reasonable steps to correct it.
[5]. Indeed, the only witness who got near that figure was Scott Lowe, whose contribution to evidence was somewhat suspect given the likelihood that he may not even have been awake at the time of the accident.