The claimant seeks damages for injuries he sustained on Friday afternoon, July
20, 2001, when the motorcycle he was riding collided with a Federal Express
(FedEx) van on State Route 31. The trial was bifurcated and this Decision
addresses liability only.
Claimant has no memory of the accident; he recalls waking up in the hospital
six days later. The driver of the FedEx van, Michael Smyth, testified about the
events that day. Mr. Smyth had been employed as a driver for FedEx since 1994.
He had a commercial license and had received training from FedEx in safe-driving
as well as being a hazardous materials vehicle operator. On the day of the
accident, he had been making deliveries since 6:00 a.m. He stopped for lunch
before his last stop of the day, then checked a map to determine his route for
this last delivery because he was unfamiliar with the area. His route took him
to Dead Creek Road in the Town of Van Buren. He initially turned west onto
Connors Road but realized he needed to head east so he turned around and drove
east on Connors Road. The road had a downhill grade and Mr. Smyth said he saw a
bridge in front of him. He concentrated on avoiding the bridge parapets,
keeping the van in the center of the roadway and watching for oncoming traffic.
From the bridge, the road sloped uphill. At the top of the hill, Mr. Smyth
could see sunlight. He testified that there were a lot of trees and foliage but
no houses along that stretch of Connors Road.
As he drove up the hill at approximately 50 mph, the speed limit being 55, Mr.
Smyth saw a flash of red to his right, applied his brakes, and skidded into an
intersection that he didn’t know was there. He testified that the
intersection was not visible from the bridge and that the foliage made the road
look like a tunnel. He didn’t see Claimant on his motorcycle when he
entered the intersection where he and Claimant collided. Mr. Smyth called for
help on his FedEx radio then got out of the van and attended to Claimant who was
Although there was a “stop ahead” sign near the bridge, Mr. Smyth
didn’t see it. He said he saw the bridge warning signs which either
distracted him from the “stop ahead” sign or obscured it. The stop
sign he glimpsed from his right was obscured by foliage. He returned to the
scene approximately four hours later and took still
with a friend, James Goss, who
videotaped the area.
Some of the still
photographs (16-20) were taken in a series as one approached the intersection of
Connors Road and Route 31. Mr. Smyth was walking on the right side of the road
when taking the photographs, so they don’t accurately reflect what Mr.
Smyth saw when he was in the van on the day of the accident. The other
photographs were taken of the skid marks and gouges caused during the accident.
The video taken by Mr. Goss was from the passenger’s side of Mr.
Smyth’s car, so it is 3-4 feet lower and further to the right than a
driver in the FedEx van. The car was traveling about 45 mph during
Retired Deputy Sheriff David A. Latzkowski was called to testify. On the day
of the accident, he was assigned to road patrol and was told of the accident by
a passerby. He sent an ambulance and the fire department to the scene and then
drove there immediately. Upon his arrival, the deputy saw a FedEx van and a
motorcycle in the road. He began an investigation and another deputy, J. Murray
took photographs of the scene.
Latzkowski also prepared a report
in which he
noted that the stop sign was obscured by foliage, although the “stop
ahead” sign was visible. He ticketed Mr. Smyth for failing to stop at a
stop sign. He also called the Onondaga County Highway Department to notify them
of the obstructed stop sign.
Because Deputy Latzkowski left the scene with the ambulance on July 20, he went
back the next day to complete his investigation. He drove the same route as Mr.
Smyth. The bridge signs and the “stop ahead” sign were visible that
day. The stop sign was still partially obstructed. He said, however, he knew
that the intersection was there because he knew the area. He was traveling
slower than normal because he was looking for the various road signs. In the
photographs he was shown, Deputy Latzkowski noted some tree limbs and leaves
close to the “stop ahead” sign. He did acknowledge that the foliage
at the stop sign was a contributing factor in causing the accident.
Claimant also called Edward L. Parks, an employee of the Town of Van Buren
Highway Department. His department handles road maintenance, plowing, and
sanding. Occasionally they will assist Onondaga County with similar jobs. He
testified that Connors Road is the town’s responsibility, the intersection
and signage for the intersection are the responsibility of the State.
Specifically, both the stop sign and “stop ahead” sign belong to and
are maintained by the State. The bridge warning signs are the responsibility of
the town. Mr. Parks estimated that the bridge warning signs have been in place
since the new bridge was installed close to 20 years ago.
On July 20, 2001, Mr. Parks received a message from the county about
Claimant’s accident and that the stop sign was partially obscured by
foliage. He called the State Department of Transportation and was asked if the
town employees could remove the overgrown foliage because the State could not
get to the problem immediately. The town employees cut back the foliage the
following Monday. No work was done on the “stop ahead” sign.
On cross-examination, Mr. Parks testified he frequently traveled on Connors
Road and never observed overgrown foliage obscuring the stop sign. Mr. Parks
testified he thought the foliage in front of the stop sign was a fast-growing
vine. He had not received any complaints about the stop sign being partially
obscured, and there were no accidents at Connors Road and Route 31 that involved
passing that stop sign. He also said he had no trouble seeing the “stop
ahead” sign. On re-direct, when shown Exhibit 11, one of the
Sheriff’s Department’s photographs, Mr. Parks acknowledged that the
foliage included tree branches and leaves.
Christopher Chamberlain, a senior manager at FedEx, investigated the accident
for the company. He testified that at the time of the accident, he was an
operations manager and would oversee 15-20 people. He drove to the scene of the
accident that day after receiving notification. He took photographs with a
Polaroid camera from the driver’s seat of a FedEx van, like the one Mr.
Smyth was driving. Mr. Chamberlain also diagramed the
He numbered the photographs and then
located where he was when he took the photos on the diagram.
Finally, Claimant called an expert, James Napoleon, a civil engineer who has
experience as a City Traffic Engineer and has taught traffic transportation
classes in the Department of Civil Engineering at Syracuse University. Mr.
Napoleon also has training as an accident reconstructionist. He was initially
hired to investigate the accident for FedEx. When that case was resolved, he
was asked to testify on behalf of Claimant.
He went to the scene within two weeks of the accident and could still observe
the skid marks and the gouge in the pavement. He prepared a survey of Connors
the lower portion shows the vertical
line and the upper portion shows the pavement edges, the bridge signs and the
“stop ahead” sign. The dotted lines on the upper portion represent
the skid marks shown in the police report which were no longer visible at the
time of Mr. Napoleon’s first visit. The solid line that continues from
the dotted lines are the skid marks that were still visible when the survey was
Mr. Napoleon did some testing to determine the speed of Mr. Smyth’s
vehicle by driving the same make and model truck toward the intersection and
applying the brakes where the skid marks started. Mr. Napoleon performed this
testing at least six times. At 55 mph, he skidded across the intersection and
stopped each time at almost the exact spot as the FedEx van. From this, Mr.
Napoleon comfortably concluded that Mr. Smyth was traveling about 55 mph or
maybe a little slower - clearly within the speed limit. At 50 mph, Mr. Napoleon
opined that it would take the FedEx van 200 feet to stop.
Based upon Mr. Smyth’s description of his approach to the intersection in
his deposition and some photographs taken by the Sheriff’s Department just
after the accident, Mr. Napoleon
opined that the stop sign was obstructed by branches, and when Mr. Smyth caught
a glimpse of red, he reacted to it. Mr. Napoleon also said that because of the
obstruction, Mr. Smyth did not have adequate time to stop at the intersection.
If the stop sign was visible 60 feet sooner, then the van could have stopped
before entering the intersection. The removal of the foliage increased
visibility of the sign by more than 60 feet.
When asked about the “stop ahead” sign, Mr. Napoleon opined that it
was located in a terrible place. He said that the hazard markings at the bridge
are designed to draw a driver’s attention to the parapet walls which are
roadside hazards. The “stop ahead” sign was placed just east of the
bridge in close proximity to the bridge hazard markings which, in Mr.
Napoleon’s opinion, did not afford drivers a reasonable time to observe
the “stop ahead” sign. If the sign was placed further west, where
there were only a few small trees, there would be less chance of it being
obstructed. Mr. Napoleon saw some branches and leaves partially blocking the
sign. He referred to Exhibits 32 - 34 to demonstrate the effect that the hazard
markers and foliage had on the “stop ahead” sign.
The Manual of Uniform Traffic Control Devices (MUTCD) sets forth a formula to
determine what distance a “stop ahead” sign should precede a stop
sign. The formula is based upon the 85th percentile speed; which means the
speed at or below which 85 percent of the drivers travel on the roadway. No
speed studies were performed on Connors Road, so Mr. Napoleon used the speed
limit, 55 mph, to calculate the distance between the signs. Using the MUTCD
formula with a speed of 55 mph, Mr. Napoleon arrived at a required distance of
664 feet. Here the “stop ahead” sign preceded the intersection by
only 525 feet. Mr. Napoleon believed that even if a driver saw the “stop
ahead” sign, he would anticipate the stop sign being further away than it
was. At 50 mph it would take approximately 7.5 seconds to traverse the 525 feet
to the intersection.
When shown Exhibits 35 and 36, Mr. Napoleon observed that these photos were
taken from about 4 - 4½ feet above ground level, not the 6.9 feet Mr. Smyth
was above the ground in the driver’s seat of the FedEx truck. Mr.
Napoleon said that the height difference would affect the visibility of the
“stop ahead” sign, and further opined that with the “stop
ahead” sign in such close proximity to the bridge hazard signs, a driver
would not have sufficient time to comprehend and react to both. At the speed he
was traveling, it would take Mr. Smyth one second or less to pass these signs;
Mr. Napoleon felt the signage presented overload for the driver. The purpose of
a “stop ahead” sign is to alert drivers when there is insufficient
distance to see the stop sign. Here, the Route 31 intersection was not visible
until a driver almost reached the top of the steep hill, with approximately a 17
percent grade. When shown various photos in
Mr. Napoleon could not identify
where Route 31 crossed Connors Road. The image is of a continuing roadway.
Even without seeing the “stop ahead” sign, Mr. Napoleon opined that
if the stop sign had not been partially obscured by foliage, it would have been
visible several hundred feet before the intersection and it would have allotted
a driver such as Mr. Smyth an additional 60 feet or more of stopping distance:
sufficient time to stop before entering the intersection. It was Mr.
Napoleon’s position that the obstruction of the stop sign was a cause of
Mr. Napoleon was asked, on cross-examination, if his investigation had
uncovered any prior accidents at that intersection. He found two in the prior
three years but there were no facts available. He acknowledged that there were
no complaints to the State or Town regarding the intersection; nor did the State
have actual notice of the obstruction. Mr. Napoleon testified that notice was
not always necessary and sometimes a proactive approach is needed.
The State called two witnesses: Larry Hasard and Raymond McDougall, both
experienced professional engineers employed by the New York State Department of
Transportation (hereinafter NYSDOT) at the time of the accident. Mr. Hasard was
the regional bridge engineer at the time of this accident. He now works in
Highway Maintenance assigned to the Onondaga West Residency in Camillus, and the
intersection of Connors Road and Route 31 is within his jurisdiction. There is
a dedicated sign maintenance crew as part of this residency, although the crew
had been reduced to only two people. NYSDOT employees patrol the highways to
check for potential hazards to the traveling public including pavement
conditions, downed signs, foliage, and dead or dying trees or shoulder
Mr. Hasard said NYSDOT takes calls from the public as well as other
municipalities regarding safety issues. The State tries to be proactive and
address issues before they become problematic, however, Mr. Hasard acknowledged
that unfortunately it is primarily a reactive organization taking reports of
problems or potential problems. When DOT obtains notice of a problem, they try
to address the highest risk problems first. An obstructed or damaged stop sign
is a high priority; in fact, staff can be called in on weekends or after hours
to replace or repair a stop sign.
However, Mr. Hasard also noted that in just his residency there are over 3,000
roads that intersect with State highways which have signs for which the State is
responsible. These signs are checked on an annual basis and this intersection
was not known for any problems. The State had no records of any complaints or
concerns about this intersection. Other than the initial placement of signs, no
sign work had been done or requested on Connors Road before this accident.
On cross-examination, Mr. Hasard testified that the reason a “stop
ahead” sign is used is to alert drivers to an upcoming stop sign when the
stop sign is not otherwise visible, and he concluded this was the reason a
“stop ahead” sign was placed at this location. He agreed that a
systematic, proactive approach to monitor sign conditions would be superior but
is not feasible with current manpower.
Mr. McDougall, now retired, testified that he worked in the Traffic and Safety
Department in Syracuse. This department was responsible for traffic control
devices on the 1,500 miles of roads in six counties, including the intersection
at issue. If any concerns or complaints were made to NYSDOT regarding this
intersection, Mr. McDougall testified he would have seen it and would have had
an engineer review it. A location file is kept for each section of State
highway within any specific town. The file includes any speed studies, accident
reports, or sign requests for a ten-year period. Only four accidents occurred
in seven years in this vicinity and none involved vehicles on Connors
No speed studies were done on Connors Road, although Mr. McDougall agreed with
Mr. Napoleon that placement of a “stop ahead” sign is usually
determined by using the 85th percentile speed, the formula in the MUTCD. The
“stop ahead” sign here was placed about 500 feet from the
intersection. Mr. McDougall drove Connors Road several times, and he was most
comfortable driving it between 35 - 40 mph, he used his comfort level speed as
the basis for determining the 85th percentile speed. Mr. McDougall believed,
based upon his experience, the 85th percentile speed would be between 30 and 40
mph given that this roadway was only a quarter of a mile long, had narrow
driving lanes, and a steep grade. Based on his opinion, the sign was properly
placed in accordance with the MUTCD. Mr. McDougall testified the bridge markers
were too close to the “stop ahead” sign but he was able to see the
sign without difficulty. Connors Road was described by Mr. McDougall as a
rural road with low traffic volume. The “stop ahead” sign was used
because of the lack of visibility of the stop sign due to the foliage from the
trees lining this roadway. Although Mr. McDougall acknowledged that the sign
was not placed in the best location, he felt it was an appropriate
It is Claimant’s position that Defendant bears liability for
Claimant’s injuries as a result of this accident based upon its negligence
in (1) placing the “stop ahead” sign, and (2) in failing to remove
the tree branches and foliage from in front of the stop sign at the intersection
of Connors Road and Route 31.
The State’s duty to adequately design, construct and maintain its
roadways in a reasonably safe condition is non-delegable (Friedman v State of
New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). This duty includes
the obligation to install, operate, and maintain traffic control devices upon
all State highways or, on any highway intersecting a State highway, on the
approach to such intersection (Vehicle & Traffic Law, § 1681[a]). The
State had the duty at the intersection of Connors Road with Route 31 to properly
post, maintain and position signs to warn motorists of conditions and hazards
that may lie ahead.
Warning signs must be erected wherever necessary and be “reasonably
adequate for the intended purpose.” (McDevitt v State of New York,
1 NY2d 540, 544). This also includes the duty to trim the growth of foliage
within a roadway’s right-of-way to make sure stop signs are visible to
traveling motorists (see D’Onofrio-Ruden v Town of Hempstead, 29
AD3d 512; Hamilton v State of New York, 277 AD2d 982). Yet, the State is
not an insurer of the safety of the roadways over which it bears responsibility,
and no liability will attach unless the evidence establishes the State’s
negligence as the proximate cause of Claimant’s injuries (see Tomassi v
Town of Union, 46 NY2d 91, 97; Zecca v State of New York, 247 AD2d
776, 777; Marchetto v State of New York, 179 AD2d 947, lv denied 80 NY2d
751). The State must have actual or constructive notice of a dangerous
condition and then fail to take reasonable measures to correct the condition
(Rinaldi v State of New York, 49 AD2d 361).
In the field of traffic design engineering, the State is accorded a qualified
immunity which can only be overcome by evidence showing that a highway planning
decision evolved without adequate study or lacked a reasonable basis
(Friedman, 67 NY2d 271; Zecca, 247 AD2d at 776, 777).
The State had the duty to install and maintain the stop sign at the
intersection of Connors Road and Route 31 (see Vehicle and Traffic Law
§1681; D’Onofrio-Ruden, 29 AD3d 512; Hamilton,
277 AD2d at 983). From the photographs in evidence, specifically Exhibits
12, 13, 20, 30, 49, 50, 51, and 52, it is readily apparent that foliage
completely obscured the visibility of this stop sign until a driver was less
than 115 feet from the intersection. A deeply tree-lined roadway with a 17
percent grade up to the intersection with Route 31, a driver unfamiliar with the
roadway, having neglected to heed the “stop ahead” sign would have
no other indication an intersection was forthcoming until perilously close to
Defendant argues, despite the extensive vegetation in front of this stop sign,
that the State had no actual or constructive notice of this danger, a critical
component of any negligence finding. It is clear that the State did not have
actual notice. The question is whether the State had constructive notice.
Constructive notice requires the existence of facts and circumstances which
evidence an apparent potentially hazardous condition for a sufficient period of
time that the condition could have and should have been discovered and remedied
(see Harris v Village of East Hills, 41 NY2d 446; Guido v State of New
York, 248 AD2d 592; Sherry v North Colonie Central School Dist., 39
AD3d 986; Rinaldi v State of New York, 49 AD2d 361; Edgett v State of
New York, 7 AD2d 570).
Claimant’s expert testified that he went to the scene of the accident two
weeks later to find that the foliage in front of the stop sign had been trimmed.
He saw the area that had been cut and observed the remnant branches from a
number of trees as thick as eight to ten inches in diameter, well beyond
short-term growth. Mr. Edward Parks, Highway Superintendent for the Town of Van
Buren, the town where this intersection is located testified that he traveled
the roadway frequently and never noticed the stop sign was obstructed by the
growth of foliage. His familiarity with the roadway, awareness of the
intersection with Route 31, and the need to stop must have impeded a critical
view of the stop sign’s visibility. Reviewing the photographs, Exhibits
11, 12, 13, and 22, although at least some of the growth could be from vines,
significant growth is from branches from an adjacent tree covering the stop
sign. The extent of foliage growth is not just a slight obstruction; the leaves
and branches completely obscure a view of the stop sign from as close as 115
feet from the stop sign. In reviewing the photographs in evidence, the Court
gave the most weight and found particularly persuasive, the pictures taken by
Mr. Chamberlain from the driver’s seat of a FedEx van similar to the one
driven by Mr. Smyth the day of the accident. Although no evidence was
introduced reflecting specifically the type of foliage or the rate of typical
growth, the extent of foliage in front of this stop sign reflects more than a
few months of growth. The State has an obligation to inspect its roadways and
signs for potential hazards to the traveling public by trees and foliage
adjacent to the highway and correct the potential problem by trimming or removal
(see Edgett v State of New York, 7 AD2d at 574; Rinaldi v State of New
York, 49 AD2d 361, 363). Annual inspections of each roadway and
intersecting roadway are done according to Mr. Hasard. No evidence was
introduced to reflect when this particular intersection and Connors Road was
last inspected. No work orders for any maintenance work were located for
Connors Road west of Route 31 for any time. Trimming vegetation from around
signs is a priority task for the DOT staff during the growing season, according
to Mr. Hasard. Stop sign maintenance, in particular, is one of the highest
Both Mr. Hasard and Mr. McDougall acknowledged that placement of the
“stop ahead” sign on Connors Road was due to the limited sight
distance of the stop sign from the trees lining this roadway. Here, this stop
sign was completely obstructed by foliage. By the time a driver was close
enough to see any portion of the stop sign there was insufficient time to stop
if traveling at or close to the speed limit. The obstructive foliage most
likely reflects many months of unattended growth - if not longer. Although
Defendant clearly has many intersections which require attention, stop sign
maintenance is of paramount concern, and the extent of foliage growth on this
known, tree-lined roadway, leads the Court to find the State was negligent in
the maintenance of this stop sign.
Yet, Mr. Smyth must bear the majority of liability in this instance as he
traveled down this unfamiliar, narrow roadway with a significant grade at 50 to
55 mph, and failed to heed the fully visible “stop ahead” sign
placed 525 feet before the stop sign. Even before the stop sign for eastbound
traffic was visible, the back of the stop sign for westbound traffic was visible
and would have given a driver alert to the stop sign warning an indication the
intersection was close.
As a result, the Court finds the State 20 percent liable for this unfortunate
The Court will schedule a trial to determine damages at a conference to be held
at a later date. All motions not heretofore decided are now denied. LET
INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.