Claimant seeks damages for the injuries he sustained on November 25, 1999, at
approximately 8:05 a.m. on Thanksgiving Day. Claimant, who was 19 years old and
unfamiliar with the route he was traveling in Orange County, drove westbound on
Route 17 and exited at 121W to proceed onto I-84 westbound. Claimant lost
control of his car on the wet pavement as he approached the end of the exit
ramp. The exit ramp is a continuous gradual down sloping right curve with an
advisory speed of 25 mph. I-84 is a four-lane divided highway with two
eastbound and two westbound lanes and a posted speed limit of 65 mph.
Claimant’s car spun clockwise on the wet pavement and traveled backwards
off the left side of the ramp and into the right lane of I-84, perpendicular to
the flow of traffic. Claimant’s car was facing northwesterly when a
tractor-trailer traveling westbound on I-84 struck claimant’s car on its
right side. Claimant has no recollection of the events preceding his accident
nor the details surrounding the accident.
Claimant contends that the cause of his accident was the altered
superelevation of the ramp after a 1994 repaving project which was completed in
1996. Claimant also alleges improper layout and signage of the ramp and
striping of the final curve of the ramp. Claimant argues that, after the
repaving project, defendant was on notice that the ramp now posed a risk to
motorists. Specifically, claimant notes that the New York State Department of
Transportation (DOT) received a letter dated July 12, 1998 from a concerned
citizen complaining that the ramp’s design was dangerous and that there
had been numerous truck rollover accidents on the ramp. Claimant also noted
that on August 27, 1999, there was an accident similar to claimant’s where
a car had failed to safely negotiate the curve of the ramp. Defendants maintain
that the ramp was appropriately signed for safe travel at 25 mph and there was
no significant history of car accidents on the ramp. Defendants argue that
claimant’s speed on the wet pavement was excessive through the curve and
that claimant’s inexperience as a driver was the proximate cause of his
New York State Trooper Jay Buchalski, who has been a trooper since 1983 and is
a certified accident reconstructionist assigned to investigate accidents
involving fatalities and serious physical injuries, testified that, in his
experience, trucks and cars respond differently to the same roadway conditions.
For example, a heavily loaded truck is more likely to roll over in a curve due
to a shifting load, whereas an automobile skidding through a curve is more
likely to have resulted from wet pavement.
Buchalski arrived at claimant’s accident scene at 9:15 a.m. Claimant
had already been transported to the hospital. Buchalski spoke with the truck
driver and State Trooper Darrell Wise. Buchalski noted that it was overcast and
the pavement was wet from an earlier rain. He measured the road so that he
could feed the information into a computer program (auto sketch) and plot the
accident sequence. He examined the tire marks and walked the ramp, where, as
depicted on exhibit 25, he observed five chevron signs, two black arrows and a
25-mph advisory sign. Buchalski inspected claimant’s car and noted that
the tires were very good. Photographs were taken at the scene (Exs. 21-51).
Based upon Buchalski’s investigation, he concluded that claimant’s
car had spun in a clockwise rotation on the ramp and then slid across the gore
into the right lane of I-84, landing perpendicular to I-84, where the car was
struck on its passenger side by a truck.
Buchalski prepared an accident report in which he concluded that the cause of
the accident was claimant’s speed and driver inexperience (Ex. 180). He
deduced that claimant’s speed was excessive because the car was spinning
on wet pavement. He explained that a driver should proceed slowly through a wet
curve. Based upon claimant’s age of 19 years, Buchalski assumed that
claimant had been driving for only three years and was therefore inexperienced.
In Buchalski’s opinion, the guide rail did not play a role in
claimant’s accident and would not have stopped claimant’s car from
spinning into a rotation. Prior to claimant’s accident, Buchalski had
responded to several accidents at this site, but they had involved
tractor-trailers and other types of trucks.
Vincent Lu, who was employed at DOT from 1973 until his retirement in 2006,
had been a Civil Engineer III and a Design Manager for Rehabilitation and
Preservation of the roads in Region 8, which covered the area in issue. He
testified that the responsibility for maintenance of I-84, including the ramp,
was transferred from DOT to the New York State Thruway Authority (Thruway
Authority) in 1994 (Ex. 1). Lu oversaw the preparation of the 1994 Final Design
Report for the Reconditioning and Preservation Project for I-84. The work to be
performed addressed the cracking and seating of the existing cement pavement and
the resurfacing of the roadway with five inches of asphalt. In the report, the
ramp was identified as having three curves. There were two nonstandard,
horizontal curves with a radius of 230 feet, which was below the current
310-foot minimum, separated by a longer curve with a 459-foot
Lu testified that the project called for matching the existing superelevation
on the ramps. He explained that superelevation is the banking or cross-slope on
a roadway that allows vehicles to stay grounded. In 1994, the design speed on
the ramp was 35 mph and the posted advisory speed was 25 mph. Lu testified that
the advisory speed is determined by surveying the superelevation or performing a
ball bank indicator test. The curve is then signed with the appropriate speed
to negotiate the turn.
Lu addressed the ramp’s accident history and noted that trucks and cars
have different centers of gravity. He also drew a distinction between rollover
accidents, where trucks experience shifting loads, and accidents where vehicles
spin and rotate on a horizontal axis. Lu testified that there were too many
variables between accidents involving cars and those involving trucks to
establish an accident pattern including both types of vehicles.
Lu examined the photo logs of I-84 taken on March 26, 1991 (Ex. 212) and
September 6, 1995 (Ex. 213) and determined that a chevron sign, located at the
termination of the guide rail on the day of the accident, had been added since
the photo logs had been taken.
Kenneth Forness, who has been employed by DOT since 1984 as a Project Engineer
Designer of Highways, testified that he was the author of the 1994 Final Design
Report for the Reconditioning and Preservation Project for I-84 (Ex. 3). This
report noted that nonstandard ramp radii were retained in the project. It had
been determined that a full reconstruction was not required and could not be
justified from an operational or cost perspective.
In preparation for the report, Forness reviewed the original record plans for
I-84, an accident analysis, the American State Highway Transportation Official
(ASHTO) guidelines, the New York State Highway Design Manual and a cost
analysis. The project called for the contractor to match the existing
superelevation on the ramps. It was the responsibility of the
engineer-in-charge to insure compliance. Forness assumed that the existing
superelevation was consistent with the original record plans (Ex. 162). The
project also included: paving the ramp; replacing the guide rail; and painting
new roadway stripes. No new signage was to be added. Forness did not determine
whether the proposed ramp improvements were completed consistent with the plans
and stated that it was the responsibility of the engineer-in-charge to insure
Looking at the original record plans for the ramp, Forness testified that the
superelevation was supposed to be three-quarter inch per foot. The width of the
ramp was 15 feet. The right shoulder was paved for ten feet and the left
shoulder, where there was a guide rail, was paved for six feet. Prior to the
project, the banking of the right shoulder was the same as the travel lane. The
left shoulder followed the same banking as the road for two feet and then, in
the remaining four feet, banked three-quarter inch per foot in the other
direction. Forness conceded that after the repaving, there had been a change in
the superelevation of the shoulder.
After the project was completed, the travel lane matched the existing
superelevation, but the left shoulder banked one-quarter inch per foot the other
way for the entire six feet. He maintained that they were following the ASHTO
standard of limiting the algebraic differential between the travel lane and the
shoulder to one inch per foot. Cost was a factor, but only part of the overall
consideration. The left shoulder superelevation, Forness explained, was done to
avoid laying more asphalt and met current standards. As the ramp curves into
the acceleration lane, it transitions from the three-quarter inch superelevation
to the flat main line. The transition is made gradually and begins near the end
of the guide rail. Forness explained that the superelevation assists a driver
to stay within the lane and the gradual loss of superelevation gives the driver
the sense of leaving the curve. Forness assumed that the engineer-in-charge,
who signed the typical ramp sheet plan, would have checked the
H. Peter Gustafson, who was employed by DOT from 1970 to 1981 and was employed
by the Thruway Authority since 1981, testified that in 1999, he was the Director
of Traffic Engineering from 1987 until he retired in 2006. In this position,
Gustafson was responsible for all traffic devices and signage on the Thruway.
It was his duty to establish that all traffic control devices were in compliance
and that safety studies were performed.
A concerned citizen wrote a letter to the Regional Director of DOT dated July
12, 1998, complaining that the ramp’s design had made it a common crash
location resulting in multiple accidents, particularly those involving truck
rollovers. The letter suggested that, in the absence of rebuilding the ramp,
clear signage should be installed indicating a slower speed limit and warning
trucks to take special care in navigating the curve (Ex. 216). By letter dated
August 21, 1998, DOT Civil Engineer Randy Harwood advised the complainant that
the letter had been forwarded to the Thruway Authority’s Director of
Traffic Engineering, Mr. H. Peter Gustafson (Ex. 216), and Gustafson was copied
on the letter. When shown the letters at trial, Gustafson did not recall
reading them, but he acknowledged receiving similar letters from Harwood.
Gustafson did not remember taking any particular steps in response to the
letters, but indicated that he may have.
On June 17, 1997, Gustafson completed a work order to install five chevron
signs, 50 feet apart, along the final curve of the ramp (Ex. 224). While
Gustafson did not know exactly why these signs were added, he theorized that it
was probably related to the ramp’s accident history. On April 16, 1999,
Gustafson authorized an additional chevron sign. He thought that this last sign
might have been in response to the complaint letter, but he was not certain. It
was Gustafson’s standard practice to review accident history before
directing new signage.
Gustafson testified that, historically, trucks, rather than passenger cars,
have been a greater concern in studies of ramp accidents because trucks are more
likely to overturn due to their shifting loads. Gustafson explained that, in
areas where there had been many accidents, ball bank tests were conducted to
assess whether the superelevation was a factor in the cause of the accidents,
given the posted speed. Then, depending on the results of the ball bank test,
chevron signs advising motorists of a curve ahead could be installed. Between
1995 and 1999, there was no sign used to warn trucks of a rollover danger.
Gustafson also distinguished between dry and wet pavement accidents. If there
had been a large number of wet weather accidents, then Gustafson would contact
DOT and request that they test the friction on the roadway.
On March 26, 1996, Gustafson received an e-mail from Richard Newhouse, a
Traffic Systems Manager for the Thruway, reporting on a review of truck rollover
accidents. Recommendations were made for safety improvements on several ramps
at various interchanges. There were no changes addressed to the ramp in issue.
Gustafson interpreted this to mean that there had been more accidents at the
other locations. Gustafson further explained that the focus was on trucks
because cars rarely rollover.
Richard Newhouse testified that he has been employed by the Thruway Authority
since 1993. In 1999, he was the Traffic Systems Manager responsible for traffic
engineering and accident analysis studies for all of the Thruway Authority
roads. It was his duty to review accidents and recommend signage. In 1996 and
1997, he was personally involved in evaluating interchanges and considering
actions to reduce the number of accidents. According to the report he prepared
covering October 1, 1995 to February 31, 1997, no work was directed for the
interchange in issue (Ex. 93).
Lawrence M. Levine, a licensed professional engineer, with a Master’s
Degree in Transportation and Civil Engineering, offered expert testimony on
behalf of claimant.
Levine visited the site,
took measurements of the road, and performed a ball bank test on the ramp. He
also took photographs and a video of the scene. Based upon his ball bank test,
and the speed indicated in the Highway Design Manual (Section 239.1), Levine
opined that the final curve on the ramp could be driven safely only at a speed
of less than 25 mph and therefore, the advisory speed should have been 20 mph
and not the posted speed of 25 mph.
insisted that the speed limit should always be rounded down. Yet on
cross-examination, he conceded that the manual recommended rounding to the
nearest multiple of 5 mph (T:1010).
Nonetheless, he maintained that other factors, such as the recommended speed,
indicated that the speed limit should be rounded down (T:1143-45). He could
not, however, point to any supporting documentation in the manual consistent
with his opinion.
Levine also testified that the straight arrow sign above each 25 mph advisory
sign was not in conformity with the Manual of Uniform Traffic Control Devices
(MUTCD). He stated that the signage depicted in exhibit 25 violates MUTCD
because it was not a permitted combination of signs and the curve-warning sign
should have been posted a minimum of 200 feet before the curve and not within
the curve (T:869-74). He opined that having the signs within the curve sent the
wrong message. Additionally, he maintained that the curve-warning sign should
have specifically warned of a sharp right curve. Levine also noted that while
the ramp was supposed to lead drivers into the acceleration/deceleration lane;
instead, the curvature of the lines encouraged drivers to move directly into
traffic. Additionally, he stated that the pavement lines at the end of the
curve changed from yellow to solid white just past the end of the guide rail and
that this usually indicates something has changed and that a vehicle can cross
over if necessary. Here, if a vehicle crosses over, the two-foot superelevation
does not exist and there is a steep decline and no recovery. He maintained
that, instead of helping, the shoulder hinders drivers and encourages them to
move directly into traffic instead of into the acceleration/deceleration lane.
Levine also opined that changing the guide rail from a box beam to a W beam
diminished a driver’s sightline.
Levine testified that the point at which the road is flat is defined as the
zero point. The distance from where the maximum banking of six percent
gradually lowers until it meets the negative three-percent banking of I-84 is
called the transition. According to Levine, the end of the transition, or zero
point, occurs on the ramp about 50 feet earlier than expected, and the 1994
ASHTO standards required that the zero point occur after the ramp, not on it.
Levine noted that the 1994 design plans indicated that the superelevation was
at zero after the curve had ended. In contrast, the current field measurements
revealed that the zero point was 50 feet prior to the end of the ramp. Levine
maintained that this eliminated an element of control for the driver because a
driver cannot see this loss of superelevation and, as soon as the brakes are
engaged, there is a loss of side friction and it increases the likelihood that a
car will fishtail and spin out of control. Reviewing Buchalski’s report,
Levine noted that it appeared that claimant had left the road just before the
zero point was reached. On cross-examination, Levine conceded that he did not
know exactly where the zero superelevation began or ended (T:1227).
Levine did not see any evidence that a ball bank test was performed in 1994 in
connection with the resurfacing. According to Levine, ball bank studies should
also have been conducted before the 1999 addition of the new chevron signs and
there was no evidence that they had been performed. Levine also did not see any
written study regarding the change of the slope of the shoulder in 1996. Levine
felt that the change from two feet to negative banking had eliminated a safety
factor if drivers crossed the left fog line. Levine also testified that the
change from Portland concrete to asphalt led drivers to incorrectly assume that
they could proceed at a higher speed. He also maintained that this change
required a justification letter to advise other agencies, such as the Federal
Highway, of the items in the 1994 project that would not meet current
Levine plotted the site where claimant left the road. He conceded that he
could not determine precisely where claimant had started to sideslip in the
curve (T:1051). Levine assumed it was near the end of the guardrail based upon
the Police Accident Report and its indications of tire marks (id.).
Levine also could not determine the speed at which a car would sideslip on wet
pavement. He estimated claimant’s speed to be “30 to 35 plus or
minus a few miles per hour” and then equivocated that claimant may have
been traveling 25 mph and at the most 35 mph (T:942). Levine explained that he
“could not come up with a definite answer” because the speed could
have been lower depending upon the steering and the braking of the driver
Levine calculated the superelevation by kicking a four-foot carpenter’s
level onto the road and observing the bubble after it had stabilized.(T:1173).
Levine did not stop traffic; he just waited until there was a break in the flow
(T:1169). He also did not do a survey because that would have required closing
the ramp. Levine began his measurements at the bottom of the ramp, but he could
not specify the exact location. He also took measurements at three points along
200 feet of the main line (T:1170). Levine could not identify precisely where
he had calculated the superelevation.
Nicholas Pucino, a licensed professional engineer with DOT and its predecessor
agencies for over 30 years before retiring in 1991, offered expert testimony on
behalf of defendants. During his employment, Pucino was responsible for
establishing the State’s system for identifying road deficiencies through
accident analysis. From 1989 to 1991, he was DOT’s regional construction
engineer and supervised all of the highway construction within the seven
counties of Region 8, including Orange County.
Pucino went to the accident location four times and took field measurements of
the cross-sloping on the ramp. Pucino explained that it is necessary to select
a defined physical feature from which to measure distances so that a comparison
of the sight measurements can be made to the original design plan. Pucino
selected a catch basin located at the end of the ramp as the physical feature to
correlate to the original design plan. Rather than utilizing a liquid bubble
from a level as Levine had, Pucino used a smart level with a six-foot extension,
which digitally reads the slope. Pucino maintained that Levine’s manner
of obtaining measurements, i.e. kicking a level along a road to determine the
road’s superelevation, is not an accepted and appropriate practice in the
industry. Moreover, Pucino had never seen or heard of such method being
utilized. Despite the accepted accuracy of the smart level, Pucino also
requested a survey from DOT (Ex. X).
Pucino conducted ball bank runs 17 times on two different dates with two
different observers. He also took a video traversing the ramp in the rain. At
the worse location of the curve, the 10-degree reading was 24 mph, which Pucino
opined would translate into a recommended speed of 25 mph for the curve. Pucino
maintained that MUTCD used 10 degrees as a basis for determining the recommended
speed and eventually the advisory speed required for posting. Contrary to
Levine’s position, Pucino maintained that the advisory speed should be
rounded, either up or down, to the nearest 5 mph and that there was no mandate
to always round down.
Pucino evaluated the signage on the ramp. He determined that they were beyond
the minimum requirements and provided motorists with more than the required
warnings. For example, there were two 25 mph curve signs, while only one was
required. Further, according to Pucino, the three curves of the ramp should be
signed as a single curve and therefore, the signing was appropriate. He further
maintained that a sign was not required for the flatter curve.
Pucino testified that the standards for the superelevation were in accordance
with the standards set forth in the New York State Manual of Highway Design and
the ASHTO charts. He explained that it is necessary to transition by meeting
the cross-slope on the main line and that the acceleration lane must match the
main line. The transition should be one-third on the curve and two-thirds on
the tangent. Pucino conceded that as-built, the transition did not meet the one
third, two third ratio. However, the transition was lengthened to 300 feet,
which enhanced safety.
Pucino noted that, in actuality, the end of the curve had a negative
one-percent slope, rather than the negative three percent shown on the original
design plans. In effect, this created a condition for motorists that was safer
than what was mandated. Using the curve speed chart (Ex. W), Pucino calculated
the recommended speed at the worst points and concluded that the nearest
approximate posting was 25 mph. Pucino opined that the signage,
superelevation, and curvature met the applicable standards.
In terms of the resurfacing, Pucino explained that the main line was banked
two feet into the shoulder to address rollover issues. In contrast to Levine,
Pucino stated that in 1995, written justification was not required to retain
(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also
Bernstein v City of New York, 69 NY2d 1020). Additionally,
“[s]omething more than a mere choice between conflicting opinions of
experts is required before the State or one of its subdivisions may be charged
with a failure to discharge its duty to plan highways for the safety of the
traveling public”(Weiss v Fote, 7 NY2d 579, supra at 588).
In this matter, the expert testimony presented by the parties was vastly
divergent on the issues impacting the safety of the roadway and, ultimately, the
causes contributing to claimant’s accident. Thus, in addition to weighing
all of the other evidence presented, the Court’s assessment of the
credibility of the expert witnesses weighed heavily in the Court’s
determination of defendants’ liability (see Scariati v St.
John’s Queens Hosp., 172 AD2d 817 [trier of fact was free to reject
conflicting testimony regarding causation]). In a non-jury trial, evaluating
the credibility of witnesses is a matter committed to the Court’s
discretion (see Anastasio v Bartone, 22 AD3d 617) and the
Court’s findings are entitled to some deference (see Vizzini v
State of New York, 278 AD2d 562, 564) because it “had the advantage of
observing the witnesses firsthand and was in a better position to assess the
evidence and weigh credibility” (Newland v State of New York, 205
AD2d 1015, 1016). Defendants’ expert was forthright and credible in his
testimony and had significant experience in evaluating roadway safety. When
weighed against the lack of credibility and probative force of claimant’s
expert, the evidence presented by defendants was indeed more convincing.
Claimant was obligated to operate his car at a rate of speed and in such a
manner of control as to avoid an accident (see Stanford v State of New
York, 167 AD2d 381 [claimant had adequate warning that it was necessary to
reduce his speed as he prepared to enter the curve; alleged negligence of the
State in permitting warning sign to become obscured was not a proximate cause of
accident]). The evidence established that claimant was traveling in excess of
the posted advisory speed (see Haughey v Noone, 262 AD2d 284
[driver traveling at 25 mph exceeded the 20 mph posted speed limit; summary
judgment was awarded finding driver liable for accident]) and that claimant
should have reduced his speed on the wet pavement before entering the curve
(see Perry v Kazolias, 302 AD2d 575 [driver’s excessive rate
of speed and failure to keep a proper lookout during a turn severed any
connection between Town’s alleged negligence and the happening of the
accident]). Thus, it appears that the sole proximate cause of the accident was
claimant’s inability to maintain control of his car on the wet pavement as
he attempted to negotiate the curve on a roadway with which he was not familiar
(see Wang v County of Rockland, 179 AD2d 977 [claimant was
unfamiliar with the road and despite the posted curve warning sign and 25 mph
speed advisory sign, claimant testified that he did not see any signs, he did
not know how fast he was traveling, the curve was unexpected and he lost control
of his car, and had an accident. The Court concluded that, under the
circumstances presented, the manner in which claimant operated his vehicle was
the sole proximate cause of his accident]).
In sum, the Court finds that claimant has failed to meet his burden of
establishing that defendants were negligent and that such negligence was a
proximate cause of his accident (see Bernstein v City of New York,
69 NY2d 1020, 1021-22, supra; Vega v State of New York, 37 AD3d
825 [liability will not attach unless State’s alleged negligence was a
proximate cause of the accident]; Clark v State of New York, 250 AD2d 569
[claimant failed to prove that State’s action or inaction was a proximate
cause of his accident]).
Defendants’ motion to dismiss, upon which decision was reserved, is now
All other motions not previously ruled upon are DENIED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 104891.