New York State Court of Claims

New York State Court of Claims



Highway design not shown to be a cause of claimant’s automobile accident.

Case Information

1 1.The Court has, sua sponte, amended the caption to reflect only the proper party defendants.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect only the proper party defendants.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
By: Harriton & Furrer, LLP, Of Counsel
Urs Furrer, Esq.Kimberly A. Einzig, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 21, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 accident.

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 radius.[2]

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 compliance.

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 superelevation.

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.[3] 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.[4] Levine 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).[5] 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 standards.

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 (T:947).

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 as-built conditions.
It is well settled that the State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579, 584). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on its roadway does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892; Carlo v State of New York, ___ AD3d ___, 2008 NY Slip Op 04305 [2d Dept 2008]). In the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (see Friedman v State of New York, 67 NY2d 271, supra; Weiss v Fote, 7 NY2d 579, supra; Levi v Kratovac, 35 AD3d 548).

Here, the evidence established that defendants adequately considered the design and updating of the curve and defendants’ decisions did not lack a reasonable basis and were not plainly inadequate (see Smythe v Woods, 41 AD3d 1130; Spanbock v Trzaska, 287 AD2d 496 [court rejected argument that traffic study was plainly inadequate or without reasonable basis]). Absent proof of a dangerous condition, the State is not required to upgrade any roadway to conform to new standards which evolved subsequent to the original construction (see Merino v New York City Tr. Auth., 218 AD2d 451, affd 89 NY2d 824; Trautman v State of New York, 179 AD2d 635). Significantly, there was not a high rate of car accidents in the area in issue and this was a factor in determining whether a nonstandard feature needed remediation, along with other factors considered including cost considerations. While proof of prior accidents at the same location and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice, in this case, the proof established that there was not a significant number of similar car accidents in the area of claimant’s accident to warrant a change in the roadway (see Martin v State of New York, 305 AD2d 784 [prior accident history was insufficient to put defendant on notice of a dangerous condition or impose a duty to take remedial action]). Indeed, the one prior similar accident presented by claimant was insufficient to put the State on notice of a potentially dangerous condition. Claimant also argued that defendants were on notice of a dangerous condition based upon a letter from a concerned citizen, dated July 12, 1998, complaining that the ramp’s design has made it a common crash location resulting in multiple accidents, particularly those involving truck rollovers. Notably the letter focused on truck rollovers and the testimony of both Officer Buchalski and Vincent Lu established that cars and trucks respond differently to the same conditions and there are too many variables between accidents involving cars and those involving trucks to establish an accident pattern including both types of vehicles. Thus, the letter was of limited value in establishing notice of potential danger to cars.

The State “is not obligated to employ a constant vigilance over its highway network, but only to pursue reasonably plausible measures” (see Freund v State of New York, 137 AD2d 908, 910-11). Claimant has failed to show that defendants were negligent in failing to reconstruct the curve in the roadway to meet current design standards or that the roadway design or signage was a contributing cause of claimant’s accident (see Martinez v County of Suffolk, 17 AD3d 643 [driver’s conduct was sole proximate cause of accident; therefore County’s purported negligence cannot be deemed a proximate cause]; Sellitto v State of New York, 250 AD2d 754 [claimant failed to prove that the State either caused a dangerous condition or had notice of a recurrent dangerous condition existing in a specific area]).

It is well established that:
“[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury”

(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 GRANTED.

All other motions not previously ruled upon are DENIED.


May 21, 2008
White Plains, New York

Judge of the Court of Claims

[2]. I-84 was built in 1962 when the standard for a curved radius was 230 feet. In 1994, the standard was 310 feet. DOT considered bringing the entire ramp up to current standards; however it was determined that the costs were prohibitive.
[3]. While exhibit 230 was received into evidence as a diagram prepared by Levine reflecting his conclusions, it was not to scale and did not include measurements of the sightlines and was inaccurate in its depiction of the guide rails. Accordingly, the Court accorded the exhibit no weight.
[4].He noted that the middle curve could have been safely negotiated at a higher speed.
[5]. All references to the trial transcript are proceeded by the letter “T.”