In this claim, claimants seek damages for personal injuries sustained by
claimant Lewis Kipp
in a motor vehicle
accident which occurred on August 15, 2002 on New York State Route 17C in the
Town of Tioga, Tioga County. The trial of this claim was bifurcated, and this
decision addresses only the issue of liability.
As mentioned at the outset, the accident which forms the basis of this claim
occurred on August 15, 2002 at approximately 8:25 a.m. on State Route 17C in the
Town of Tioga. In the vicinity of the accident, State Route 17C is a two-lane,
two-way roadway with a posted speed limit of 55 miles per hour (mph). The
roadway proceeds generally in an east/west direction, and the lanes are
separated by double yellow solid lines, prohibiting any passing for both east
and westbound motorists. The roadway is essentially flat and level, although
there is a slight curve to the left for those drivers proceeding in an easterly
The accident occurred when claimant, proceeding in an easterly direction at
approximately 50 to 55 mph, collided with a New York State Department of
Transportation dump truck operated by one Randy W. Bennett, who was proceeding
in a westerly direction at a speed of approximately 25 to 35 mph, at or near the
centerline of Route 17C.
The essential issue to be resolved herein is determining the location of these
two vehicles when the collision occurred. It is claimants’ position that
at the time of impact, the front of the State dump truck was at or near the
centerline of the road, and that a plow frame or mast, which was attached to the
front of the vehicle, extended into claimant’s lane of travel. It is the
State’s position that as claimant approached the State dump truck, he
veered to the right and collided with the State vehicle in the State’s
lane of travel.
Lewis Kipp testified that on the date of the accident, he was proceeding
easterly on Route 17C on his way to work in Owego. He testified that he
was very familiar with this road as he often drove it to and from work. He
testified that he was alert and was not affected by any medical condition that
would affect his ability to drive. He also testified that he had owned his car
for approximately two years prior to the accident, and that the vehicle was in
proper working order at the time of the accident. Mr. Kipp, however, had no
specific recollection of the accident.
As mentioned previously, Randy Bennett was the operator of the State dump truck
that was involved in this accident. Mr. Bennett testified that he had been
employed for approximately two years by the State Department of Transportation
(DOT), and that he was certified by the DOT as a truck driver. Mr. Bennett
testified that he was proceeding westbound on State Route 17C, heading toward
Smithboro, and that he had just traveled through Tioga Center. Ahead of him, he
had observed a wagon carrying bales of hay and that there were several cars
between the hay wagon and his truck. Directly behind him, a coworker, James
Hines, was also driving a DOT dump truck.
Mr. Bennett testified that he personally knew the operator of the hay wagon,
and that he knew that the hay wagon was going to turn left onto Route 282, which
was just ahead on Route 17C. He testified that even though the speed limit was
55 mph, he was only going approximately 30 to 35 mph because of the slower rate
of speed of the hay wagon ahead of him.
Mr. Bennett testified that he observed a vehicle (the Kipp vehicle) proceeding
easterly and that he saw the driver bend down to the right as if he was either
reaching for something or had possibly fallen asleep, and that when the driver
sat back up, he veered into the westerly lane and caused the accident.
As mentioned by Mr. Bennett, James Hines, a coworker of Mr. Bennett, was
immediately behind him in another truck. Mr. Hines had also observed the hay
wagon ahead of him, and testified that he was driving approximately 25 mph at
the time of the accident. Mr. Hines did not actually see the two vehicles
collide, but heard the crash and observed Mr. Kipp’s vehicle becoming
airborne as a result of the impact.
Robert Singer also testified at trial. Mr. Singer was also proceeding west on
Route 17C and was directly behind the two Department of Transportation trucks
operated by Mr. Bennett and Mr. Hines when the accident occurred. As was the
case with Mr. Hines, Mr. Singer heard the crash but did not actually see the two
vehicles collide. He did testify that he saw the brakelights on the Department
of Transportation truck come on immediately before he heard the collision. He
also testified that the State truck never deviated from its lane of travel, that
it was proceeding at a slow rate of speed immediately before the crash, and that
it did not move after the crash occurred.
As previously mentioned, liability in this case essentially revolves around one
central issue, and that is determining exactly where the collision between the
Kipp vehicle and the DOT vehicle occurred. The “eyewitnesses” to
this accident either were interested witnesses (Randy Bennett, James Hines) or
they did not actually see the collision occur (James Hines, Robert Singer). As
a result, this Court must carefully consider the physical evidence and expert
testimony presented at trial in its consideration and determination of this
Crash scene photographs, taken shortly after the accident and admitted into
evidence (Exhibits 33, 81, G, H, I and J), clearly show that the State truck is
angled to the left and that part of the truck is well into the Kipp lane of
travel. These photographs also indicate that the vast majority of the debris
from the crash is situated in the Kipp lane of travel. However, since these
photographs are necessarily post-impact photographs, they are not conclusive as
to exactly where in the roadway the impact occurred. It is therefore necessary
to rely upon and evaluate the expert testimony that was presented at trial.
Lawrence Levine, a professional engineer, was qualified as an expert and
testified on behalf of claimants. Mr. Levine testified that, a short time after
the accident, he examined the roadway where the accident occurred, and that he
returned to the scene on several occasions thereafter. He testified that he
observed various marks in the road resulting from the crash, and that he took
measurements of these marks, marked their respective positions in the road, and
measured the width of the road. Mr. Levine also examined the Kipp vehicle and
the State truck which were involved in this collision.
Mr. Levine testified that the State’s dump truck was approximately 8 feet
wide, and each lane at the scene of the accident was approximately 11 feet in
width. At the time of the accident, the State dump truck was equipped with a
plow mast and frame which was attached to the front of the vehicle. The plow
frame added approximately two to three feet to the overall length of the truck.
Additionally, Mr. Levine testified that based upon his measurements, there was
approximately two feet in length from the left front tire of the truck to the
front grill and headlamps of the truck.
Mr. Levine examined tire marks which were left by the State dump truck on the
road. He testified that these tire marks were angled to the left, and were in a
smooth, continuous line, without any interruption with one exception. Since
these tire marks were smooth and continuous, without any “jolt” or
in their markings, Mr.
Levine concluded that these marks were “pre-impact” marks.
Based on his determination that these were “pre-impact” marks, and
since they were angled to the left, Mr. Levine concluded that the State dump
truck was angled to the left at the time of impact.
Mr. Levine also examined a photograph (Exhibit 152) of the tire marks made by
the right front tire of the State dump truck, and observed striations in the
mark perpendicular to the turning angle of the tire. Mr. Levine concluded that
the striations are additional proof that the front tires of the State truck were
turned to the left at the time of impact.
Mr. Levine testified that his inspection of the damage to the vehicles also
indicated that this was not a head-on collision but, rather, a collision in
which the vehicles collided at an angle. Specifically, Mr. Levine testified
that damage to the left front edge and quarter panel of the Kipp vehicle was
caused by impact with the left plow mast of the State truck, representing
evidence that the impact occurred at an angle.
Mr. Levine also examined the marks and physical evidence to determine where the
impact occurred with relation to the road. First of all, Mr. Levine testified
that he observed a bend or jolt in the left front tire mark of the State truck
at the very end of the otherwise smooth, continuous tire mark. Mr. Levine
concluded that this disruption in the mark indicated where the initial impact
occurred. He also testified that there was a darkening of this mark near the
end, which he attributed to a backward movement of the State truck resulting
from impact with the Kipp vehicle.
Additionally, Mr. Levine identified a straight line of soot on the crash scene
photograph (Exhibit G). Mr. Levine testified that this straight line
of soot would have dropped off the back of the truck due to the sudden impact
with the Kipp vehicle. He testified that this line of soot can be used to both
determine the point of impact and establish the position of the back of the
truck at the time of impact. Mr. Levine testified that this line of soot was
angled to the left, another indication that the truck was angled to the left at
the time of impact.
Significantly, Mr. Levine took measurements from both the line of soot, as well
as the jolt in the left front tire marks, and concluded that the left front tire
of the State truck was, at a minimum, right next to the center line of the road
at the time of impact, and possibly even over the center line into the Kipp lane
As a result, based upon his analysis of the physical evidence, photographs, and
his measurements, Mr. Levine concluded that the left front tire of the State
dump truck was at or near the center line of the road at the time of impact. As
previously indicated, Mr. Levine had also concluded that the accident occurred
at an angle, and that the front tires of the State truck were angled to the left
at the time of impact. Since the truck was angled to the left, and taking into
consideration the distance between the left front tire and the grill and
headlamps, and adding these to the two- to three-foot length of the plow frame,
Mr. Levine concluded that the front of the truck was well over the center line
and that the impact occurred in the Kipp (or eastbound) lane of traffic.
Richard C. Berry, an Investigator with the New York State Police, testified as
a fact witness. Mr. Berry testified that he responded to the scene of the
accident and assisted the State Police Accident Reconstructionist (Investigator
John Dineen, now retired) with taking photographs and measurements. Mr. Berry
testified that there were distinct markings in the roadway (gouges, scrapes and
fluids) that allowed him to trace the path of the Kipp vehicle after impact. In
other words, Investigator Berry testified that he and Investigator Dineen were
able to begin at the final resting place of the Kipp vehicle and, following the
markings on the road (scrapes, gouges and fluids) trace the trail of the vehicle
all the way back to the initial area of impact. Based primarily on these
markings and their reconstruction, Investigator Berry and Investigator Dineen
concluded that the Kipp vehicle had entered the westbound lane of travel and
initially made contact with the State dump truck in that lane. Investigator
Berry concluded that the initial impact occurred near the driver side rear tires
of the State truck at its final resting place, as shown on the crash scene
photographs, which was in the westbound lane of travel (Exhibit H).
Robert E. Bennett, an Investigator with the Division of State Police Collision
Reconstruction Unit, was qualified as an expert and also testified on
defendant’s behalf. Although he did not take part in the accident
reconstruction of this incident, Investigator Bennett’s testimony was
based upon his review and examination of the Accident Reconstruction Report and
crash scene photographs. Investigator Bennett presented a substantially
different opinion from that presented by Mr. Levine, claimants’ expert.
First of all, Investigator Bennett concluded that the tire marks made on the
road were post-impact marks, and not pre-impact marks as testified to by Mr.
Levine. Investigator Bennett then utilized these tire marks to determine where
the initial area of impact occurred.
Secondly, and consistent with his opinion that the tire marks were post-impact
marks, Investigator Bennett identified a liquid debris field as well as certain
gouges and other pavement markings (photographs received into evidence as
Exhibits B, G and J) to determine that the initial area of impact occurred at
the area where the driver side rear double tires of the State truck are shown on
the photographs at final rest. This initial area of impact, as determined by
Investigator Bennett, is in the westbound lane of travel.
Thirdly, Investigator Bennett investigated the damage to the Kipp vehicle and
observed a uniform crumpling running down the front hood of the vehicle, which
damage was consistent with the vertical plane of the plow frame on the State
truck (Exhibit B). Based on this damage to claimant’s vehicle,
Investigator Bennett concluded that this collision was an “in-line frontal
strike”. He concluded that the Kipp vehicle struck the State truck on the
front end of the truck, and the force of the collision pulled the State truck to
the left, as the truck is depicted in the crash scene photographs.
Based on his determination that the tire marks on the roadway were post-impact
marks, and further determining that the vehicles were involved in an in-line
frontal collision, Investigator Bennett then measured the distance from the
north fog line of the roadway to a tire mark made by the right front tire (at
what he determined to be the mark made at the point of impact). He then added
the width of the truck to the distance from the north fog line, and concluded
that the State truck was entirely within the westbound lane of travel at the
time of impact.
In sum, after examining the tire marks left by the State truck, the liquid
debris field, gouge marks in the pavement, and the damage to the Kipp vehicle,
Investigator Bennett concluded that the area of impact was in the westbound lane
of travel, at or near the point where the left rear tires of the State truck
were situated at final rest, as shown on the crash scene photographs.
As stated at the outset of this decision, it is readily apparent from the trial
testimony that the issue of liability hinges upon the resolution of a sole
factual issue - requiring the Court to determine the precise location of the
initial impact between claimants’ vehicle and the State dump truck. As
can be seen from the foregoing discussion, however, such a determination is not
a simple task.
First of all, and as previously noted, there were no impartial eyewitnesses to
this accident. The Court found that Randy Bennett, the operator of the State
truck, was less than credible in his testimony. As a result, the Court places
no weight whatsoever on his testimony as to his description of the accident or
his testimony as to the location of his vehicle and the Kipp vehicle at the time
of impact. Furthermore, the Court simply does not believe Mr. Bennett’s
testimony that he observed Mr. Kipp bend down to the right and then rise back up
immediately before the collision. Additionally, neither Mr. Hines (the driver
of the State truck directly behind Mr. Bennett) nor Mr. Singer (who was
operating his vehicle behind Mr. Hines) saw the actual collision. They both
testified that they heard the collision before they saw anything happen.
Furthermore, Mr. Kipp has no recollection whatsoever of the accident.
As a result, the Court must rely upon the expert testimony and the physical
evidence (consisting of crash scene photographs) presented at trial. In this
case, the expert witnesses presented markedly different opinions as to how and
where the accident occurred. Mr. Levine, claimants’ expert, determined
that the impact between the two vehicles occurred at an angle in the
claimants’ lane of travel (eastbound). Investigator Bennett, the
State’s expert, determined that the collision occurred in Randy
Bennett’s lane of travel (westbound), and that it was an in-line frontal
collision. In cases where the opinions of the expert witnesses diverge, this
Court, as the finder of fact, is both entitled and obligated to determine which
of the experts were more persuasive, based upon the record, the qualifications
of the experts, and the Court’s observations of their testimony (Raynor
v State of New York, 98 AD2d 865; Flaherty v Fromberg, 46 AD3d
743; Texter v Middletown Dialysis Center, Inc., 22 AD3d 831).
In this matter, after carefully reviewing the physical evidence, and taking
into consideration the testimony presented by both experts, the Court finds that
Mr. Levine was more persuasive in his testimony and in his reconstruction of the
accident than was Investigator Bennett. The Court agrees with Mr. Levine that
the tire marks on the roadway were pre-impact marks, based on his description
that these marks were smooth and continuous, until the “jolt” of
impact. The Court also agrees with Mr. Levine’s determination that these
marks, which are angled to the left, support the conclusion that the collision
occurred at an angle, between the left front portion of Mr. Kipp’s vehicle
and the plow mast from the State truck.
Based on these findings, it is the Court’s determination that the State
truck, operated by Randy Bennett, was angled or turned to the left, for whatever
reason, at the time of impact. Furthermore, the Court finds that a portion of
the State vehicle, at least the plow mast and plow frame, extended over the
double solid line into Mr. Kipp’s lane of traffic at the time of the
Since the Court has herein found that the portion of the State truck, operated
by Mr. Bennett, protruded over the double solid line, the Court finds that Mr.
Bennett was operating his truck in a negligent manner at the time of this
accident. The State, therefore, as Mr. Bennett’s employer and under the
doctrine of respondeat superior, is therefore liable for Mr. Bennett’s
negligent conduct and must respond in damages.
Since the Court has found that the accident occurred in Mr. Kipp’s lane
of travel, due to a portion of the State truck extending into his lane of
travel, the Court does not attribute any comparative negligence to Mr. Kipp.
Accordingly, it is the finding and determination of this Court that the State
is solely liable for this accident.
Any motions not heretofore ruled upon are hereby denied.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on
the issue of liability in accordance with this decision. The Court will set
this matter down for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY