In these claims consolidated for trial, claimant contends that the State failed to take appropriate measures to remedy a known dangerous intersection prior to a motorcycle-truck collision involving claimant and her late husband. Although the Court found that the State failed to implement a safety plan within a reasonable period of time after it had initiated a study, claimant failed to establish that a four-way stop would have necessarily been installed following the study and prior to the vehicular accident and the claims were dismissed.
|Claimant(s):||LINDA M. BROWN as Administratrix of the Estate of WAYNE BROWN|
|Claimant short name:||BROWN|
|Footnote (claimant name) :||The Court, sua sponte, has amended the caption of each claim to reflect the correct middle initial of claimant, Linda Brown.|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||LADUCA LAW FIRM, LLP
BY: Anthony J. LaDuca, Esq.,
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Edward F. McArdle, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 30, 2008|
|Appellate results:||Modified and remitted by the Appellate Division, 4th Dept., 79 AD3d 1579.|
|See also (multicaptioned case)||2008-009-183|
These two claims arise out of a motorcycle-truck accident, which occurred on April 27, 2003 at the intersection of New York State Route 350 and Paddy Lane in the Town of Ontario, Wayne County. Wayne Brown was the operator of the motorcycle involved in this accident, and his wife, claimant Linda Brown, was a passenger on that motorcycle. Mrs. Brown suffered personal injuries, and Mr. Brown died from the injuries he received in this accident. In separate claims filed against the State, Linda Brown, as Administratrix of the Estate of Wayne Brown, seeks damages for the wrongful death of her husband (Claim No. 108961), and also seeks damages for the personal injuries suffered by her in this accident (Claim No. 110037).
In a prior order, this Court consolidated these two claims for purposes of discovery and trial, and also ordered that the trial be bifurcated. Accordingly, this decision is limited to the issue of liability.
Claimant Linda Brown had no recollection of the accident, but did testify that the motorcycle on which she was riding was in excellent condition, and that her husband had owned several other motorcycles before purchasing the motorcycle involved in this accident. She also testified that at the time of the accident, she and her husband lived approximately five miles from the intersection of Route 350 and Paddy Lane, and that her husband had traveled Route 350 on a daily basis for many years.
Henry Friend, who was the operator of the pickup truck involved in this accident, also testified at trial. Mr. Friend testified that he was proceeding eastbound on Paddy Lane and that he pulled up to the stop sign at the intersection of Paddy Lane and Route 350 and came to a full and complete stop. After stopping, Mr. Friend testified that he looked north, then south, then north again before entering the intersection. He testified that he did not see the northbound motorcycle operated by Wayne Brown, at anytime before the accident. Mr. Friend testified that he was issued a traffic ticket following this accident, and that he pled guilty to the charge of failure to yield the right-of-way. Mr. Friend also testified that it was a sunny day and there were no adverse weather conditions on that day. He also testified that he was very familiar with the intersection, having proceeded through it on many prior occasions.
Stephen Sklenar, a Sergeant with the Wayne County Sheriff's Department, was called to the scene of this accident, and testified that he conducted an accident reconstruction, and prepared the police accident report for this accident. Based on his investigation, he concluded that the pickup truck operated by Mr. Friend failed to yield the right-of-way, and that the Brown motorcycle was not speeding and did not contribute in any way to this accident. He also determined that there were no obstructions of view that would have prevented Mr. Friend from seeing the oncoming motorcycle.
The above testimony was unrefuted, and taken together paints a clear picture of how this accident occurred. Mr. Friend was driving his pickup truck on Paddy Lane, and when he approached the intersection of Paddy Lane with Route 350, he was well aware of the stop sign for his line of traffic, and he in fact came to a complete stop at the intersection. After looking both ways, he proceeded into the intersection where he collided with the motorcycle operated by Mr. Brown (with Mrs. Brown as a passenger) which was proceeding northbound on Route 350.
It is the contention of the claimant in these two related claims that the State was aware that this was a dangerous intersection, prior to the accident, and that although the State was responsible for maintaining this intersection, it failed to take appropriate measures to remedy its dangerous highway condition.
Larry Sherman, the Regional Traffic Engineer for the Department of Transportation ("DOT") at all times relevant herein, testified at trial. Mr. Sherman acknowledged that the intersection of State Route 350 and Paddy Lane is under the control of the State DOT. He also testified that a resolution from the Town Board of the Town of Ontario was received by DOT on January 29, 1999 (Exhibit 30), in which the Board requested the placement of a blinking caution light at this intersection, and also requested a lower maximum speed limit over a different section of Route 350. In response to the resolution, Mr. Sherman testified that two studies were initiated by the State. A "speed study" was conducted, which examined the speed of vehicles traveling on Route 350, and an "intersection study" was commenced specifically to address safety concerns related to the intersection.
By correspondence dated February 3, 1999 (Exhibit 33), Mr. Sherman acknowledged receipt of the resolution, and advised the Town Board that the two traffic studies would be opened to address their concerns. In connection with the "intersection study", the Department of Transportation apparently requested accident reports from 1995 through 1997, and received those reports in March, 1999 (Exhibit 36). By further correspondence dated June 4, 1999 (Exhibit 40), Mr. Sherman advised the Board that DOT had completed the "speed study" for the portion of Route 350 between the Ontario/Walworth town boundary and Wayne Central School. In that correspondence, Mr. Sherman also advised the Board that the intersection study for Route 350 with Paddy Lane was not yet completed. In that correspondence, Mr. Sherman stated "[w]e are still in the process of gathering data. We anticipate finishing this investigation soon and we will notify you of our findings upon its completion." (Exhibit 40).
According to his testimony at trial, Mr. Sherman stated that between the date of the aforementioned letter (June 4, 1999) and the date of the accident forming the basis of this claim (April 27, 2003), no additional data was requested or collected, nor was any additional work performed with regard to the intersection study. Mr. Sherman was unable to provide any rationale or explanation at trial as to why the intersection study had not been completed.
Nevertheless, Mr. Sherman acknowledged in his testimony that a pattern of accidents existed involving vehicles that were stopping first on Paddy Lane, and then entering the intersection causing an accident. He noted, however, that since this was a rural intersection with relatively low traffic, the number of such accidents fluctuated greatly from year to year.
Mr. Sherman also testified that any corrective measures taken to address the pattern of accidents at this intersection would be made through an incremental process, in which the State would first implement and then assess certain ameliorative measures to determine if those measures were adequate.
Specifically, Mr. Sherman testified that DOT would first consider possible use of the dual posting of stop signs on Paddy Lane, the installation of intersection warning signs on Route 350, and other actions such as removing brush and relocating a telephone pole to improve visibility. According to Mr. Sherman, after assessing the effectiveness of such actions, DOT would then consider placing flashers on existing stop signs and the intersection warning signs.
Mr. Sherman testified that these options would be considered and assessed prior to any consideration as to the placement of four-way stop signs at this intersection. He testified that four-way stop signs are rarely used, especially in rural areas, and then are used only as a last resort, when other types of traffic control improvements have been proven unsuccessful. He also noted that a "three color signal" at this intersection would not be warranted under any circumstances, due to the low traffic volume.
Edward G. Parrone, P.E., qualified as an expert in engineering, and testified on behalf of the claimant. With regard to the "intersection study", Mr. Parrone testified that he had previously worked on similar rural studies, and that he was not aware of any rural study lasting longer than two years. He also testified that based upon the data available in 1999, DOT had enough information in order to complete its study at that time. He testified that based upon the data available to DOT in 1999, there certainly existed a pattern of right angle accidents, and that he considered the number of these accidents to be "enormous"(2) , based upon the volume of vehicles traveling through this rural intersection.
Mr. Parrone testified that the State should have proceeded immediately with the installation of four-way stop signs at this intersection, and that the other mitigating options available to the State, as testified to by Mr. Sherman, were not appropriate for this intersection. Mr. Parrone testified at length, based upon personal inspection of the intersection, that a "vertical curve" was present on Route 350, south of the Paddy Lane intersection, and that the "vertical curve" should have been a component of any DOT study, as it affected the ability of an operator of a vehicle stopped at the intersection on Paddy Lane to observe a vehicle proceeding northbound, south of the intersection. Specifically, Mr. Parrone testified that at a sight distance of approximately 900 feet, a vehicle stopped at the intersection would only be able to see the top one-third of a vehicle from the Paddy Lane intersection. He concluded that this vertical curve was a relevant factor in assessing the pattern of accidents, in relation to the mitigating options available to the State.
In sum, Mr. Parrone testified on direct that the "intersection study" was left open for too long a time, that the four year lapse in this study was not justified, and that the State, if it had timely and properly completed its study after a consideration of all relative factors, including the "vertical curve" of Route 350, would have and should have proceeded directly to the installation of a four-way stop sign at this intersection.
Under cross-examination, however, Mr. Parrone acknowledged that the incremental approach, as testified to by Mr. Sherman, was an acceptable method of addressing safety issues at this intersection. He further acknowledged that DOT could have initially replaced the standard intersection warning signs, removed brush near the intersection, and investigated the possibility of relocating the telephone pole located near the intersection. He further agreed that if a pattern of accidents continued at the intersection, the State could have then proceeded with adding flashers to the intersection warning signs, and if there then continued to be a pattern of accidents, the State could have then proceeded with the installation of four-way stop signs.
He further conceded under cross-examination that based upon the accident histories in 2000 and 2001 (Exhibits 47 and 48, respectively), in which there were significantly fewer accidents than in the years 1998 and 1999 (Exhibits 45 and 46, respectively) the installation of the four-way stop signs at this intersection might not have been justified.
There is no question that the State has a non-delegable duty to adequately design, construct, and maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271). The State, however, is not an insurer of the traveling public, and the mere occurrence of an accident does not make the State liable (Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892).
In this particular case, Larry Sherman, the Regional Traffic Engineer, acknowledged that the intersection of Route 350 and Paddy Lane is under the control of the State Department of Transportation. It is therefore undisputed that the State had a duty to adequately design, construct and maintain this intersection in a reasonably safe condition.
Furthermore, based upon the resolution of the Town Board of the Town of Ontario, received by DOT in January, 1999, the State also had received actual notice, prior to this accident which occurred in April, 2003, that this intersection was potentially dangerous. In response to the resolution, the State even commenced an "intersection study" to address the safety concerns raised by the Town Board.
The first issue to be resolved, therefore, is whether the State is entitled to a "qualified immunity" that is afforded to decisions of governmental planners in the area of highway safety (Weiss v Fote, 7 NY2d 579). As the Court of Appeals stated in Weiss, "liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis." (Weiss v Fote, supra at 589).
In this particular matter, there is no dispute that the State initiated two studies in response to the request from the Town Board of the Town of Ontario, and that one of the studies (the speed study) had been completed prior to the accident herein, even though the "intersection study" remained open at that time.
Testimony established, however, that the "speed study", although completed, was in response to traffic concerns on an unrelated portion of Route 350, and that it did not address safety concerns at the intersection of Route 350 with Paddy Lane. The Court finds, therefore, that this speed study was not responsive to the safety issue raised by the Ontario Town Board with respect to the Paddy Lane/Route 350 intersection, and the State can therefore not claim any immunity from liability based upon this study (Ernest v Red Cr. Cent. School Dist., 93 NY2d 664).
Testimony also established, without dispute, that the "intersection study", commenced by DOT in February, 1999 to specifically address safety issues at the Route 350/Paddy Lane intersection, had not been completed at the time of the accident involving claimant and her husband on April 27, 2003. Defendant contends, therefore, that the State is entitled to the qualified immunity provided by Weiss, since it was in the midst of this intersection safety study at the time of the accident.
Testimony has established, however, that although the study was begun in 1999, and certain data was collected at that time, there was no evidence or testimony to indicate that any action whatsoever, such as the collection of additional data or analysis of any existing data, had been taken by the State since June, 1999 up to the accident forming the basis of this claim. It appears to this Court, from such testimony, that the intersection study simply had been abandoned prior to completion. No evidence was introduced to indicate, at the time of the accident, that this was an ongoing study to any degree.
Accordingly, this Court finds and determines that the State is not entitled to rely on the qualified immunity defense provided by Weiss, as the State had failed to complete its safety study of this intersection, after it had been requested to do so and after advising the requesting party (the Town of Ontario) that such a study had been commenced and would be completed within a reasonable time.
Having made such a determination, however, the Court's inquiry does not end at this point. Even though the qualified immunity provided by Weiss is unavailable to the State, the Court must still determine whether the State's failure to complete this intersection safety study was a proximate cause of the accident forming the basis of this claim.
Based upon his review of the accident summaries, claimant's expert, Mr. Parrone, testified that the only safety option available to the State was the installation of four-way stop signs. It was Mr. Parrone's opinion, based upon his review of these summaries, that the vast majority of the accidents occurring at this intersection were "right angle" accidents, occurring after a motor vehicle on Paddy Lane had initially come to a stop at the stop sign, rather than the motorist failing to heed the existing stop sign at this intersection. In Mr. Parrone's opinion, there was sufficient data available that, if properly and timely examined by the State, would not only have established this pattern of right angle accidents, but also would have resulted in the inevitable determination that the only option available to the State was the installation of a four-way stop.
To the contrary, Mr. Sherman, the DOT Regional Traffic Engineer, discussed many mitigation options available to the State in intersection studies, and that the State normally applies an "incremental approach" to address safety concerns. Mr. Sherman also testified that installation of a four-way stop, especially in rural areas such as the Route 350/Paddy Lane intersection, is a last resort, since it requires traffic to come to a complete stop in all directions.
Significantly, Mr. Parrone, under cross-examination, agreed with Mr. Sherman that the State could have applied this "incremental approach" in taking corrective action, and that these corrective measures were available to the State. Even though these different options were available, Mr. Parrone testified that, for safety reasons, a four-way stop should have been installed in this intersection, based upon the pattern of accidents occurring therein.
Although this Court determined that the State failed to implement a safety plan within a reasonable period of time after it had initiated such study, the Court must also take into consideration the different mitigating options available to the State had it implemented a safety plan after such study. Both Mr. Sherman and Mr. Parrone agreed that there were other mitigating options available (such as improved signage, or the installation of flashers on intersection warning signs) in addition to the installation of a four-way stop. The Court accepts Mr. Sherman's testimony that the installation of a four-way stop is a remedy of last resort, used only when all other options have been exhausted. Significantly, even claimant's expert conceded, when pressed, that these other options were available to the State, and could have been implemented by the State prior to proceeding with a four-way stop. As a result, the Court does not credit Mr. Parrone's opinion that had the State completed its study, a four-way stop would necessarily have been installed at this intersection prior to the accident herein. The Court finds that such a conclusion is entirely too speculative, based upon the other options available to the State.
Accordingly, after carefully considering all of the evidence and testimony, the Court finds and determines that claimant has failed to establish her claims by a preponderance of the evidence, and the claims must be, and hereby are, dismissed.
LET JUDGMENTS BE ENTERED ACCORDINGLY.
June 30, 2008
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
2. Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.