New York State Court of Claims

New York State Court of Claims

SANCHEZ v. STATE OF NEW YORK, #2008-036-401, Claim No. 107867


Synopsis



Case Information

UID:
2008-036-401
Claimant(s):
DIEGO SANCHEZ
Claimant short name:
SANCHEZ
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107867
Motion number(s):

Cross-motion number(s):

Judge:
MELVIN L. SCHWEITZER
Claimant’s attorney:
MANOUSSOS & ASSOCIATES, P.C.By: Robert Middleman, Esq., Of Counsel
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERAL
By: John M. Shields, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 26, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This is the court’s decision after a two-day trial conducted on May 11, 2007 and September 6, 2007 of a negligence claim against the State on the issue of liability pertaining to a motor vehicle accident.

On April 25, 2002 at approximately 2:00 a.m., claimant Diego Sanchez was driving a motor vehicle northbound on the Sagtikos Parkway (“the Parkway”) when he was struck by a southbound vehicle driven by David Hanon, Jr., that crossed over the median island, the grassy strip separating the Parkway’s southbound and northbound lanes.

Claimant alleges the State’s negligence was the proximate cause of the accident because the median island at the accident site did not have a guide rail or other physical barrier which would have prevented Mr. Hanon’s car from crossing over to the northbound side of the Parkway. Defendant counters that nothing about the dimensions, configuration, accident history or other circumstances pertaining to the Parkway at the location of the accident equated with a dangerous condition there of which defendant should have known; and Mr. Hanon, who was intoxicated at the wheel, was the sole cause of the accident.

A summary of the testimony insofar as it bears on the court’s findings follows.

Mr. Sanchez testified he was returning home alone in a borrowed car after playing in an indoor soccer game with friends which began after midnight and lasted until about 1:15 a.m. He entered the Parkway northbound from the Southern State Parkway (“SSP”) westbound, traveling about one-quarter of a mile on the Parkway before the accident took place. Trans. 31:3-6. He saw the adverse vehicle coming across the road momentarily before the collision and then found himself being transported by helicopter for medical care.

Claimant called Vincent Taormina, a New York State Police officer, who testified he patrolled the area of the accident for over seven years. He arrived on the scene soon after the accident and spent most of his time interviewing Mr. Hanon, who admitted to him that he crossed over from the southbound lanes to the northbound lanes and hit Mr. Sanchez’s vehicle. Officer Taormina filled in the boxes of a Police Accident Report (“Accident Report”), Ex. 1, but another officer, trained as an accident reconstructionist, wrote a five-page Accident Reconstructionist Report (“Reconstruction Report”) actually describing and analyzing the accident, Ex. 1A.

Officer Taormina’s entry on the Accident Report located the accident site at or near mile marker 1001, but also noted on the report that the location was one-quarter mile north of the SSP. He testified that several weeks before the trial he revisited the location accompanied by defendant’s counsel and observed the site to be between mile markers 1002 and 1003, closer to mile marker 1003.[1] Trans. 48:2-49:3. He said the roadway was straight, flat and lit at that location, and on the night of the accident there was no rain. He testified that, in his personal experience, other crossover accidents had occurred to the south of the accident site as cars entering the Parkway northbound from the SSP westbound lost traction in rainy weather and crossed the median island to end up in the southbound lanes or into the woods beyond. He personally was not aware of any such accidents occurring at or between mile markers 1002 and 1003.

Robert Hintersteiner, an experienced traffic engineer, testified for claimant as an expert witness. He said he visited and photographed the accident site on March 12, 2006. Additionally, he testified he reviewed reports of the accident and investigative photographs taken by the State Police, as well as records of accident history and Department of Transportation (“DOT”) materials, such as internal studies and contract proposals. From his personal observations and review of materials, he acknowledged the roadway at the accident site was straight and level on both sides with lights running alongside. Mr. Hintersteiner located the accident site at 100-200 yards north of a sign gantry over the Parkway’s southbound lanes. Trans. 66:18-67:8. Based on his on-site observations and measurements derived from his and State Police photographs, he testified that mile marker 1002 was “just off to the side” of the sign gantry. Trans. 69:17-21. He did not measure the width of the median island, but accepted a measurement of 49 feet, as stated in the Reconstruction Report.

Mr. Hintersteiner named the 1995 New York State Highway Design Manual (“HDM”), the Manual of Uniform Traffic Control Devices (“MUTCD”) and the AASHTO manual (issued by the American Association of State Highway and Transportation Officials) as the prevailing standard references for New York highway and traffic engineers. He testified the 1995 HDM and the AASHTO manual both provide guidance for new construction and major reconstruction projects, with the 1995 HDM being the main guideline and AASHTO as a source of additional information. He said the 1995 HDM requires a barrier for median islands less than 36 feet wide, but it also recommends a site review and examination of accident activity at or near median islands of less than 55.1 feet wide. Mr. Hintersteiner stated the 1995 HDM “changed the dimensions on the island extremely” from 36 feet in the previous version of the HDM to 55.1 feet. He opined that soon after the 1995 HDM was released the State should have initiated a study of the Parkway and taken appropriate action in places without barriers where median islands were less than 55.1 feet wide. He observed that defendant did not conduct such a study of any section of the lower portion of the Parkway until 2001 when it was requested to do so by the State Police. He knew of no earlier request for such a study from any source.

Mr. Hintersteiner testified about his review of official DOT records of accidents on the Parkway for ten years up to the day of the accident from mile marker 1000 to mile marker 1009 (Ex. 4) from which he derived summary data for mile markers 1001, 1002 and 1003 (Ex. 13). He said he found there had been 106 accidents from mile marker 1001 to mile marker 1003 and 63 of these were what he termed “crossovers” (Trans. 98:8-9, 99:3).[2] Though he never defined this word precisely he testified the accidents it encompassed were “ones that are related to crossing over the median, hitting fixed objects in the median, and items like this.”[3] Of the 63 accidents he characterized as “crossovers,” three were identified by him as “Head-on,” that is, a vehicle actually coming in contact with another vehicle from the opposite direction. These occurred on June 29, 1999 (mile marker 1001), January 3, 2000 (mile marker 1001) and June 6, 2000 (mile marker 1002).[4]

Mr. Hintersteiner explained that typical guide rails are designed to redirect the path of an errant vehicle striking them at an angle of twenty-five degrees at speeds up to 60 MPH. Based on calculations of the speed of Mr. Hanon’s vehicle made by the State Police, he opined that a guide rail would have prevented this accident.

Anna Elias, a DOT Regional Claims Engineer, testified for defendant that DOT engineers use the 1995 HDM and the AASHTO manual as recommendations and guidelines for highway design projects, with the 1995 HDM being used more often than the AASHTO manual. She clarified that the MUTCD manual is specific to traffic control devices, such as signs. Ms. Elias confirmed Mr. Hintersteiner’s testimony that the Parkway was built around 1950 before any of the current manuals were written and no equivalents then were in use.

Ms. Elias said the 1995 HDM required a median barrier in new construction or reconstruction where a median was less than 11 meters or about 36 feet wide. She testified that regardless of the width of the median, a high-speed, high-volume roadway like the Parkway might require a median barrier if there is a significant difference in elevation between each side of the median. This differential, she explained, is referred to as an uneven slope or an uneven median. Where there is an uneven median, she stated, the 1995 HDM recommends, but does not require, installation of median barriers in medians of less than 55.1 feet wide (1.5 times 11.25 meters as the manual expressed it).[5] She testified the median was not uneven at mile markers 1002 and 1003,[6] and she asserted that because the median was 49 feet wide at that location it complied with prevailing standards. She said there had been no major reconstruction of the Parkway in the area of mile markers 1002 and 1003 since it opened.

Ms. Elias said she participated in a roadside inspection of the northbound Parkway off the SSP at mile markers 1000 and 1001, “one-eighth mile North of Southern State Parkway,” conducted in March 2001 to address vehicles making the transition from the SSP to the Parkway and going off the roadway in wet weather.[7] She stated that as a result of DOT’s investigation, several changes were made to the northbound roadway, particularly combining two lanes of the ramp into one, roughening the pavement surface for better traction, changing signs and painted stripes, and installing guide rail on the median island. When the court referred to these changes as “reconstruction of the ramp,” Ms. Elias responded that DOT “didn’t reconstruct the ramp. We did some modification to the ramp.”[8]

Michael Ufko, a DOT civil engineer whose safety evaluation unit responded to Sergeant Petronzio’s request, testified for defendant and essentially repeated the information provided by Ms. Elias. He said the study his group conducted addressed the “concern . . . that vehicles traveling Westbound on Southern Parkway taking the ramp to Northbound Sagtikos Parkway were losing control because . . . of wet weather conditions there.”[9] He explained it was customary for DOT to do a three-year accident analysis of a site under examination, including a one mile marker before and one after the specific referenced location. Mr. Ufko stated that at some later date after the study had been conducted, he visited and photographed the accident site and determined the accident, in fact, occurred between mile marker 1002 and 1003, closer to 1003. He also referred to a photo log of 133 pictures taken at 50-foot intervals on October 26, 2000 (Ex. Q) in order to place the site of the accident. This photo log recorded approximately 1.2 miles of the Parkway southbound concluding just before the merge with the SSP either eastbound or westbound.

Mr. Ufko was questioned on the ten-year accident history prepared by Mr. Hintersteiner and, in light of the Parkway’s traffic volume,1[0] he opined that the data did not suggest the need for a guide rail at mile markers 1002 and 1003.1[1] He distinguished this straight section of uninterrupted road from mile markers 1000 and 1001 where there is a curved ramp with the intersection of the SSP.1[2] He characterized the accidents represented on the accident summary (Ex. 13) as run-off-the-road accidents and noted they seemed to occur typically during wet weather.

The court’s findings of fact and conclusions of law follow.
* * *
The State has the duty to design, construct and maintain its roads so that they are reasonably safe. Annino v City of Utica, 276 NY 192 (1937). Decisions of State highway planners are entitled to qualified immunity unless they are arrived at without adequate study or they lack a reasonable basis. Weiss v Fote, 7 NY2d 579 (1960); Schwartz v New York State Thruway Auth., 95 AD2d 928 (3d Dept 1983); Russell v State of New York and New York State Thruway Auth., UID #2005-037-012, Claim No. 095683, Motion No. M-70202, Moriarity, J. [November 23, 2005]. Friedman v State of New York, 67 NY2d 271 (1986). Although the State is not the insurer of the safety of those who use its roadways (Atkinson v County of Oneida, 77 AD2d 257 [4th Dept 1980]; Boyce Motor Lines, Inc. v State of New York, 280 App Div 693 [3d Dept 1952], affd 306 NY 801 [1954]), the State’s duty of reasonable care includes the duty to install a guide rail when it is on notice of a dangerous condition that could have been addressed by the installation of one and where the failure to have done so was a proximate cause of injury (McDonald v State of New York, 307 AD2d 687 [3d Dept 2003]).

The New York Highway Design Manual applies to new construction or major reconstruction only. Preston v State of New York, 6 AD3d 835 (3d Dept 2004), lv denied 3 NY3d 601 (2004); Guan v State of New York, UID #2007-016-019, Claim No. 105083, Marin, J. [May 24, 2007]. Reliance upon the New York Highway Design Manual or other standard reference works is not mandatory. Dahl v State of New York, UID #2006-036-006, Claim No. 108480, Schweitzer, J. [June 30, 2006]; Cave v Town of Galen, 23 AD3d 1108 (4th Dept 2005). Absent a major reconstruction, or an accident history indicating the existence of a dangerous condition, the State has no duty to bring existing roads and highways up to standards applicable to new construction. Pinos v State of New York, UID #2007-029-008, Claim No. 108478, Mignano, J. [February 21, 2007].

Applying these legal principles, the court finds claimant has failed to prove by a fair preponderance of the evidence that defendant was negligent by not installing a guide rail or other barrier on the median island where the accident occurred. Claimant has not demonstrated the 1995 HDM guidance for median barriers, that is, median widths and slopes, required defendant to initiate a study or take any other action pertaining to the Parkway location where the accident occurred; nor has claimant demonstrated that the location posed a dangerous condition of which defendant should have been aware which required or otherwise suggested the need for a guide rail or other median barrier to prevent crossover accidents.

The collision here occurred between mile markers 1002 and 1003, nearer mile marker 1003;1[3] this section of the roadway was straight and flat; the median at the location measured 49 feet in width; the median was not of uneven slope (that is, not beyond a ten percent difference in elevation between opposite lanes of traffic according to the 1995 HDM).1[4]

With regard to the1995 HDM, claimant did not prove the 1995 version of the manual, which revised certain standards for the installation of guide rails1[5] required the defendant to initiate a study of, or otherwise take action at, the location where the accident occurred, in that: no evidence was introduced of any reconstruction of the lower section of the Parkway since it opened in 1950; even in instances of reconstruction, the 1995 HDM recommends consideration of median barriers only where a median, level in slope, is less than 11 meters or approximately 36 feet wide or where a median of uneven slope is less than 55.1 feet wide; and the court has found the median at issue here to be level and 49 feet wide.

With regard to whether a dangerous condition existed at that location, claimant did not prove the 13 accidents at mileposts 1002 and 1003, characterized by Mr. Hintersteiner as “crossovers,” in fact, did involve vehicles crossing over the median, as opposed to Mr. Ufko’s characterization of them as run-off-the-road accidents, in that: the underlying ten-year DOT accident data (Ex. 4) ostensibly supporting Mr. Hintersteiner’s summary and analysis of mile markers 1002 and 1003 (Ex. 13) show that 11 of the 13 accidents involved a vehicle hitting a fixed object after leaving the road (7 collisions with a tree, 2 with a curb, 1 with “other barrier” and 1 with “building/wall”) without any description of where these off-road objects were located (that is, to the right or to the left of traffic lanes, on the left edge of the median, or across the median into or beyond the lanes of opposing traffic); and only 2 accidents identified over the ten-year period (both at mile post 1002, none at 1003 closer to where this accident has been found by the court to have occurred) support a finding of a vehicle actually having crossed the median because, in both instances, DOT accident data reports indicate that a northbound vehicle collided with a southbound vehicle.1[6]

These findings pertaining to both the 1995 HDM and the accident history at mile markers 1002 and 1003 demonstrate that claimant has not proved there is a basis to charge defendant with actual or constructive knowledge of a condition at the location of the accident which warranted defendant’s attention, either by way of study or corrective action.

The findings also dispose of claimant’s argument that defendant’s study at mile markers 1000 and 1001, which was conducted in response to Sergeant Petronzio’s letter to DOT dated February 8, 2001 regarding crossover accidents, was negligently performed because it should have extended to mile markers 1002 and 1003. The study, consisting of a roadside inspection and a study of a three-year accident history, intentionally focused on mile markers 1000 and 1001. Defendant’s choice of parameters for its study, as well as its conclusions, are entitled to qualified immunity here. Sergeant Petronzio’s letter, which called to defendant’s attention a potentially dangerous situation, specifically referenced road conditions “approximately 1/8th of a mile North of the Southern State Pky at mile post marker 1001.” The physical road conditions at that location, a curving ramp carrying merging traffic from the SSP, are substantially distinguished from the flat, straight and uninterrupted section immediately to the north at mile markers 1002 and 1003. Claimant failed to offer any evidence which identified this more northerly section as a crossover trouble zone. This is in contrast with the written comments of State troopers pertaining to the more southerly section (n 6, supra) and with the accident statistics pertaining to the crossover dangers at that section when compared with the section to the north. Without such proof, DOT’s decision to confine its study to mile markers 1000 and 1001 has been shown to be a reasonable one.1[7]

All motions and objections upon which the court previously had reserved or which remain undecided are hereby denied.

The claim is hereby dismissed in its entirety. The Clerk of the Court of Claims is directed to enter judgment accordingly.

March 26, 2008
New York, New York

HON. MELVIN L. SCHWEITZER
Judge of the Court of Claims




[1].According to the undisputed testimony of claimant’s expert witness, Robert Hintersteiner, the last digit on the mile marker represents tenths of a mile. The first mile marker on the Parkway is denominated 1000. Mile marker 1002, therefore, is two-tenths of a mile beyond the first mile marker of the Parkway. Trans. 65:21-66:5.
[2].No exhibit provides a summary by year of these accidents, but Mr. Hintersteiner testified their annual rate increased over time, that is, 5 in 1998 (3 at mile marker 1001, 2 at 1003), 10 in 1999 (8 at 1001, 2 at 1002) and 24 in 2000 (19 at 1001, 3 at 1002, 2 at 1003). He did not note the drop to 13 in 2001 as shown on Ex. 13 (11 at 1001, 1 at 1002, 1 at 1003).
[3].Except when the fixed object is a median barrier, the location of fixed objects, such as trees which were hit by vehicles, is not provided in the underlying accident report, Ex. 4.
[4].Examining the detail of Ex. 4, a 109-page DOT computer printout of all 270 accidents on the Parkway from mile marker 1000 to mile marker 1009 in the ten years immediately preceding the accident, there are apparent discrepancies between it and Mr. Hintersteiner’s summary, Ex. 13. The June 29, 1999 collision is listed twice on the summary, once as a head-on at mile marker 1001 and again at mile marker 1002 as a collision with a tree. Four other accidents were omitted from his summary, but seem no different from the other 62 in that they involved collisions with a tree (mile marker 1001, October 10, 1993), or median barrier (mile marker 1001, July 2, 1992 and August 1, 1993) and, in one instance, other vehicles in a head-on accident with a vehicle traveling in the other direction (mile marker 1001, March 18, 2002). Exhibit 13 thus actually should show 66 accidents: 4 head-ons; 55 collisions with a fixed object, typically a guide rail or tree and 7 vehicles apparently running off the road without hitting either a vehicle or a fixed object. Counting the June 29, 1999 head-on as only at mile marker 1002 (which is consistent with the underlying DOT accident report), these 66 accidents took place as follows over the ten-year period: 53 at mile marker 1001, 7 at mile marker 1002 and 6 at mile marker 1003. Mr. Hintersteiner also chose, without explanation, to omit summary data on purported crossover accidents at mile marker 1000, part of the area of the Parkway identified by the State Police as a problem, although the detail is found in Ex. 4 which also has its own computer-generated, one-page summary of the 270 accidents by mile marker.
[5].Her testimony does not indicate whether 55.1 feet represents a change in width from the previous HDM.

[6].Mr. Hintersteiner responded affirmatively when the court asked whether DOT “had to have concluded then, according to you, that this was an uneven median?” Trans. 198:12-15. His answers to earlier questions about the slope of the median island at the accident site were ambiguous, however:
Q. And, the median on Sagtikos Parkway at this location would be, would not be an uneven median. Correct?
A. Yeah. It would be – There was a slight slope for drainage into the center which the stuff was growing in the center.
Q. But, this wouldn’t, according to these criteria, that wouldn’t fit into the uneven median as described here [in the 1995 HDM]?
A. I don’t know what the exact design of the median is. I didn’t go into that depth. He went across the median. That’s all I was concerned about.
Trans. 147:11-20.
[7].Documents in evidence show the study emanated from a request, dated February 8, 2001, made by Technical Sergeant Michael A. Petronzio, a State Police Traffic Supervisor, to Thomas Oelerich, DOT Regional Traffic Engineer, pertaining to the road conditions “approximately 1/8th of a mile North of the Southern State Pky at mile post marker 1001,” where, on January 25, 2001, another trooper had reported “several crossover accidents . . . occur[ring] when vehicles westbound on the Southern State travel northbound onto the Sagtikos and cross over the mall into southbound traffic.” Sergeant Petronzio suggested a “barrier at this location may be warranted.” As a result of this communication, on March 20, 2001, DOT conducted a roadside inspection of the northbound Parkway “1/8 mile from the exit ramp of the Southern State Parkway (W[est]/B[ound]).” Additionally, DOT examined accident data for the locale. On July 17, 2001, Mr. Oelerich informed Sergeant Petronzio that, as a result of his request, DOT planned to install guide rails between the northbound and southbound lanes, resurface the northbound lanes, extend the northbound acceleration lane and modify signage. Sergeant Petronzio received another report from a trooper on May 25, 2001, after DOT began its investigation, on the danger where the parkways intersected. A memo from one DOT staff member to another, dated still later on March 25, 2002, noted “an increase of crossover accidents” at the intersection of the parkways.
[8]. She indicated the new guide rail extended past mile marker 1001 “even though the analysis did only for 1000 and 1001” because a police turnaround at or below mile marker 1001 had to be relocated north beyond the terminus of the guide rail to allow police vehicles to use the turnaround without being blocked by the guide rail.
[9]. He explained further why the new median guide rail, determined to be necessary to contain vehicles losing traction on the curving ramp at the start of the northbound Parkway, extended beyond mile marker 1001. The planned changes for mile markers 1000 and 1001 also included extending the acceleration lane onto the Parkway from the SSP by approximately 600-700 feet. It was this increase in distance and installation of the guide rail which necessitated moving the police turnaround north. Mr. Ufko said extending the terminus and relocating the police turnaround resulted from increasing the length of the acceleration lane, while Ms. Elias’s testimony seemed to indicate the guide rail terminus followed the movement of the police turnaround.
1[0].He testified that, as of March 2002, the average daily traffic count on the lower section of the Parkway in both directions was 86,500 vehicles. This annualizes to over 30 million vehicles. However, he did not provide data for earlier periods.

[1]1.The 13 accidents at mile markers 1002 and 1003 on Ex. 13:
Date Dir/Loc Description (derived from Ex. 4)
10/30/93 SB 1002 Collision with tree; unsafe speed, pavement slippery
06/29/99 NB 1002 Vehicle 1 NB collided with tree then Vehicle 2 SB, then Vehicle 2 collided with
tree; unsafe speed, Vehicle 1 driver arrested
10/21/99 SB 1002 Collision with other barrier; steering failure
04/09/00 NB 1002 Collision with building/wall; unsafe speed, pavement slippery
06/06/00 NB 1002 Vehicle 1 NB collided with Vehicle 2 SB; unsafe speed, pavement slippery
11/11/00 NB 1002 Collision with curb, tree; unsafe speed, pavement slippery
06/02/01 NB 1002 Collision with tree; alcohol involvement, unsafe speed
08/20/97 NB 1003 Collision with tree; unsafe speed, pavement slippery
04/26/98 NB 1003 Collision with tree, sign post; pavement slippery
10/10/98 NB 1003 Collision with tree; unsafe speed, pavement slippery
07/26/00 NB 1003 Collision with curb, tree; unsafe speed, slippery
11/27/00 NB 1003 Collision with tree; unsafe speed
11/29/01 NB 1003 Collision with tree; unsafe speed, pavement slippery
1[2].The one-page computer-generated summary on Ex. 4 shows that 144 of the 270 accidents of all types in the ten-year period for the entire mile (mile markers 1000-1009) occurred at mile marker 1001, while mile marker 1000 had 36 accidents of all types. By contrast, mile marker 1002 had 12 accidents of all types and mile marker 1003 had 17.
1[3].Evidence from all sources points to a location between mile markers 1002 and 1003, closer to 1003. Claimant estimated he traveled one-quarter mile on the Parkway before the accident. Officer Taormina, when he placed the accident at mile marker 1001 on the Accident Report, also wrote the location as one-quarter mile north of the SSP. The 5-page Reconstruction Report (Ex. 1A) exclusively referred to the location as one-quarter mile north of the SSP. One-quarter mile is the same as two-and-a-half tenths of a mile onto the Parkway, which translates to a position between mile markers 1002 and 1003. Mr. Hintersteiner placed the site at 100-200 yards north of a sign gantry over the Parkway’s southbound lanes. He testified that mile marker 1002 was “just off to the side” of the sign gantry. In other words, the accident site was 300 to 600 feet north of mile marker 1002, putting it at least half the way to mile marker 1003 (mile marker 1002 plus 528 feet) or even past it. Mr. Ufko, defendant’s witness, determined that the accident took place between mile marker 1002 and 1003, closer to 1003. Upon revisiting the site, Officer Taormina, accompanied by defendant’s counsel, observed it was between mile markers 1002 and 1003, probably closer to 1003.
1[4].The court credits Ms. Elias’s testimony on this question. Although Mr. Hintersteiner testified at one point that the median was uneven, he also admitted that “I didn’t go into that depth. He went across the median. That’s all I was concerned about.” See n 5 supra. Also, the photographs introduced by defendant (Ex. B1, B2, B3, Q) amply illustrate the accident site and show the northbound and southbound roadways to be flat and at the same level, that is, without an uneven median.
1[5].Mr. Hintersteiner testified that the 1995 HDM actually changed the previous manual’s advice regarding the minimum width of a median where guide rails were recommended. No previous version of the HDM was introduced in evidence and defendant’s witnesses did not address the subject.
1[6].Ex. 13, the summary, actually misidentifies one of these two accidents, the accident of June 29, 1999 at mile marker 1002, as involving solely a northbound vehicle colliding with a tree, when, according to the DOT detail of Ex. 4, a northbound vehicle at or near mile marker 1002 collided with a tree and then hit a southbound vehicle.
1[7].Even had DOT undertaken a study at mile markers 1002 and 1003, the low number of recorded crossover and runoff accidents there when compared to the adjacent segment to the south over the ten-year time period (see nn 4, 11 supra) evidenced no need for guide rail installations at that location and offers no basis to conclude such a study would have dictated that DOT decide otherwise.