New York State Court of Claims

New York State Court of Claims

BEAUMONT v. STATE OF NEW YORK, #2008-018-643, Claim No. 105155


The obstructive foliage most likely reflects many months of unattended growth. 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. The Court finds the driver of the FedEx van 80 percent liable and the State 20 percent liable for this unfortunate accident.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
ALEXANDER & CATALANO LLPBy: James L. Alexander, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Roger B. Williams, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 9, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 badly injured.

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 photographs[1] with a friend, James Goss, who videotaped the area.[2] 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 filming.

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.[3] Deputy Latzkowski also prepared a report[4] 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 scene.[5] 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 Road;[6] 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 being prepared.

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 evidence,[7] 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 this accident.

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 issues.

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 Road.

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 placement.
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).
a. The “Stop Ahead” Sign
There was no evidence presented regarding how the decision to place this “stop ahead” sign evolved or when the decision was made. There was no work done in the recent past on Connors Road. The evidence did establish that the (MUTCD; 17 NYCRR ch V) sets forth in § 232.4, reference to a chart (§ 230.2, Table 230-1) to determine the distance in advance of the stop sign that the “stop ahead” sign should be placed. Critical to determining the proper distance under the MUTCD is the 85th percentile speed on the roadway but no speed study was performed at any time on this roadway. Mr. Napoleon, Claimant’s expert, used the speed limit as the 85th percentile speed in the absence of a speed study. Based upon the MUTCD and using the speed limit, the “stop ahead” sign should have been placed 664 feet before the stop sign (830 feet based upon the MUTCD chart minus a 20 percent reduction for the significant uphill grade to the location of the stop sign[8]). The sign was actually 525 feet before the stop sign.

Mr. McDougall agreed the placement of the “stop ahead” sign should be based upon the 85th percentile speed of approaching traffic and the sign should be placed in a site with good visibility. Mr. McDougall opined that although not ideal, this “stop ahead” sign was appropriately placed. To support his opinion, Mr. McDougall relied upon his post-accident experience traveling Connors Road approximately one-to-two months after the accident. He testified he was comfortable driving the roadway between 30 and 40 miles per hour which, in his opinion, was the 85th percentile speed of that roadway. He speculated that it was unlikely “that any car on Connors Road would ever be able to get up to fifty-five miles an hour.”[9]

Without any evidence that placement of the “stop ahead” sign was based upon a study, engineering expertise, or compliance with the MUTCD, and absent any explanation for its location, other than Mr. McDougall’s post-accident ad hoc subjective conjecture, the Court finds Defendant is not entitled to qualified immunity for placement of the sign. Nonetheless, Claimant still bears the burden of establishing that Defendant’s placement of the sign was negligent. To make such a finding there must be evidence that the State had notice, actual or constructive, that placement of the sign created a dangerous condition. Yet, the record is devoid of any evidence of such notice. Despite the complete obscurity of the stop sign, there were no other accidents at that intersection. There were no complaints. This lightly traveled road had no noted problems. Although the sign was, by all accounts, not in the best location, a review of the persuasive evidence1[0] shows the “stop ahead” sign is readily apparent and visible and should have been seen by Mr. Smyth.
The Stop Sign
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 the intersection.

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 priorities.

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 accident.

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.

December 9, 2008
Syracuse, New York

Judge of the Court of Claims

[1].Exhibits 16-31.
[2].Exhibit 15.
[3].Exhibits 2 - 14.
[4].Exhibit 1.
[5]. Exhibits 39-55 and 37 respectively.
[6].Exhibit 69.
[7].Exhibits A and B, 35 and 36, and 12 - 14.
[8].17 NYCRR § 230.2(b)(3)(i).
[9].Trial Transcript, p. 125, lines 20-22.
1[0].Exhibits 15 and 45.