New York State Court of Claims

New York State Court of Claims
BELL v. THE STATE OF NEW YORK, # 2008-040-025, Claim No. 112107


Bifurcated Trial. Automobile accident. State vehicle lost control and crossed over into Claimant's lane of travel. Court finds State negligent. Liability only.

Case information

UID: 2008-040-025
Claimant(s): LAURA BELL and RICHARD BELL, her husband
Claimant short name: BELL
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112107
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Kevin A. Moss, Esq.
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
Michael C. Rizzo, Esq., AAG
Third-party defendant's attorney:
Signature date: May 6, 2008
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimants, Laura Bell and Richard Bell(1)

, have established by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries Ms. Bell sustained in a January 23, 2006 motor vehicle accident with a State-owned vehicle. The accident occurred on New York State Route 5, also known as Central Avenue ("Central Avenue"), in the Town of Colonie, Albany County, New York, near its intersection with Grounds Place to the north. A bifurcated trial, addressing liability issues only, was held on February 11, 2008 at the Court of Claims in Albany. There were four witnesses: Ms. Bell; Mr. Bell; Robert A. Dawson, Defendant's employee and the operator of the State's vehicle; and Town of Colonie Police Officer Edward Weber, who investigated the accident. Thereafter, the parties requested and were granted additional time to submit post-trial memoranda.


The essential facts in this Claim are easily recounted. Ms. Bell testified that she was driving to work on the morning of January 23, 2006, traveling eastbound on Central Avenue in the passing lane. Mr. Dawson testified that he was already working, driving consumers from his job site at a State-operated residential facility for developmentally disabled adults in Schenectady to and from their day program in Albany. Mr. Dawson was traveling in the opposite direction, going westbound on Central Avenue, transporting his consumers back to Schenectady because their program had been cancelled on account of inclement weather. Mr. Dawson testified that he had permission to drive Defendant's twelve-seat van in connection with his work as a State employee.

Ms. Bell testified that traffic was heavy and the morning was sunny, though it had snowed the previous night. The witnesses disagreed about whether it was still snowing at the time of the accident. Ms. Bell believed there was snow on the pavement, however, and Mr. Dawson agreed, describing road conditions as "slushy" and "icy and slippery." He testified that the westbound lanes were more icy on his trip back to Schenectady than the conditions he encountered earlier that morning when he was heading east towards Albany. In fact, Mr. Dawson testified that neither the pavement, nor any lane markings, were visible in the westbound roadway "because of the ice and the slush." Moreover, he thought that the width of the driving lane had been reduced, by as much as two to three feet, because the snowbanks had not been pushed completely up onto the curbs. Officer Weber's personal observations, included in the police report, also confirm the existence of snowy and icy conditions (Ex. 1(2) , boxes 6 and 7). Mr. Dawson testified that he was in the westbound driving lane, driving below the posted speed limit at 20 to 25 miles per hour ("mph") because of the poor conditions. Mr. Dawson reported that he was in no hurry and under no compulsion to be back in Schenectady at a particular time. As he testified, "caution was the order"(3) of the day.

At a certain point, however, he observed a black compact car in front of him in the westbound driving lane. The car drifted or swerved to the right several times, nearly touching snowbanks each time, before drifting back again into the driving lane. Mr. Dawson testified that he was concerned about the car's erratic movements and feared that, if the car were to stop, his van might "slide and impact" with the car. Mr. Dawson hoped the car would turn off Central Avenue, or that he would have an opportunity to pass it. He maintained a distance of about three car lengths from the black car and, after traveling about two and a half long blocks in that fashion, the car slowed down. Mr. Dawson "felt this was the opportunity for me to go around him." As he signaled to change lanes, he accelerated to about 25 mph. The van began to slide. Mr. Dawson testified that he applied the brakes, but it was futile. He was "horrified" because he realized he was going to have an accident, but could not do anything about it. Mr. Dawson testified that the progress of his van ultimately was stopped, not by his application of the brakes, but by the impact with Ms. Bell's car.

Ms. Bell testified that she first noticed Defendant's van traveling in the opposing, westbound, driving lane. She said that it was "ahead of the other vehicles" in the westbound traffic. She remembered seeing the van "fishtail" as it moved from the westbound driving lane into the westbound passing lane. She testified that she stopped her car in response. Mr. Dawson also believed that the Bell vehicle came to a halt. They both agreed that Defendant's vehicle continued across the westbound passing lane and into the opposing traffic on Central Avenue. Thus, it is undisputed that the collision occurred in the eastbound passing lane. Ms. Bell and Mr. Dawson further agreed that Defendant's van struck Ms. Bell's car head-on, with Ms. Bell explaining that the point of impact was slightly off-center. Officer Weber testified that the right front of Defendant's van appeared to have hit the left front of Ms. Bell's car. Both cars were towed from the scene (see Ex. 1). Mr. Bell, who came to collect his wife after the accident and saw the vehicles at the accident scene, testified that each incurred significant front end damage and that the wheel on the front passenger side of the Bell car was bent. Both Bells testified that their vehicle was a total loss. They also both testified that Mr. Dawson was very apologetic and accepted complete responsibility for the collision. Mr. Dawson also testified that he apologized to let Ms. Bell know that the accident was not intentional, and asked if Ms. Bell was injured.


To establish a prima facie case of negligence, Claimants must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Ms. Bell a duty of care; (2) a breach of that duty; and (3) Defendant's breach of that duty was a substantial factor in the events that caused the injury suffered by Ms. Bell (see Derdiarian v Felix Contr. Co., 51 NY2d 308, 315 [1980]; Kampff v Ulster Sanitation, 280 AD2d 797 [3d Dept 2001]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10, 2:70).

Drivers of motor vehicles have a duty to operate their automobiles with reasonable care in light of the actual and potential risks that may exist as a result of weather, road, traffic and other conditions. Such duty of care imposes upon drivers obligations to: maintain a safe rate of speed, keep their vehicle under reasonable control; be on a proper lookout under the conditions then prevailing to see and be aware of what is in their view; and use reasonable care to avoid accidents (National Interstate v A.J. Murphy Co., Inc., 9 AD3d 714, 716 [3d Dept 2004]; Woolley v Coppola, 179 AD2d 991, 992 [3d Dept 1992]; Oberman v Alexander's Rent-A-Car, 56 AD2 814, 815 [1st Dept 1977]; lv denied 42 NY2d 806 [1977]; see PJI 2:77; Vehicle and Traffic Law ["VTL"] 1126 [a], 1163[a], [e], 1180[a], 1212).

Evidence that a vehicle skidded in inclement weather and crossed over into an opposing lane of traffic, resulting in injury, is sufficient, alone, to permit a finding of negligence, though such a finding is not required (Pfaffenbach v White Plains Express Corp., 17 NY2d 132, 135 [1966]; Feeley v St. Lawrence Univ., 13 AD3d 782, 783 [3d Dept 2004], quoting Jump v Jump, 69 AD2d 947, 948 [3d Dept 1979], affd 49 NY2d 783 [1980]; Monahan v Devaul, 271 AD2d 895, 896 [3d Dept 2000]; PJI 2:84).

Upon such showing, the burden shifts to Defendant to provide a non-negligent explanation for its actions (Simpson v Eastman, 300 AD2d 647, 648 [2d Dept 2002]; Forbes v Plume, 202 AD2d 821, 822 [3d Dept 1994]). Conduct by Defendant that was reasonable under the circumstances may excuse a violation of statute (Arricale v Leo, 295 AD2d 920, 921 [4th Dept 2002]; Espinal v Sureau, 262 AD2d 523, 524 [2d Dept 1999]. Of course, it also may be evidence that the duty of reasonable care has not been breached.

Defendant's actions also may be excused if the common-law emergency doctrine applies. That doctrine provides that an actor may not be negligent when he or she takes "reasonable and prudent" action in response to "a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration" (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]; see Caristo v Sanzone, 96 NY2d 172, 174 [2001]). The doctrine does not apply, however, if the emergency was of the actor's own making (Gage v Raffensperger, 234 AD2d 751, 752 [3d Dept 1996]).


Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimants have met their burden and established by a preponderance of the credible evidence that Defendant was negligent in connection with Ms. Bell's accident.

The witnesses offered generally sincere and straightforward testimony. The Court credits Mr. Dawson's evident remorse over the accident that occurred on January 23, 2006. His heartfelt regret, however, does not absolve Defendant of liability in this Claim.

The Court determines that Claimants made out a prima facie case of negligence against the State. Indeed, it is uncontested that Defendant's van crossed into the opposing lanes of traffic and hit Ms. Bell's car.

The Court finds, further, that Defendant failed to offer a sufficient explanation that would excuse that action. Mr. Dawson knew about the hazards that existed. He testified that road conditions were poor, travel lanes constricted, and road markings obscured. Conditions had deteriorated to the extent they were more icy than when he set out from Schenectady. In fact, he was concerned that he might lose control of his vehicle and "slide" into the black car if it were to stop. Thus, the Court concludes that it was not reasonable and prudent, under such "slushy", "icy and slippery" conditions, for Mr. Dawson to accelerate and attempt to pass the black car. He was obligated to operate his vehicle "in such a manner of control as was commensurate with the known dangers" (Tenczar v Milligan, 47 AD2d 773, 774 [3d Dept 1975], lv denied 36 NY2d 645 [1975]). The Court finds that he failed to do so.

Moreover, given Mr. Dawson's admitted knowledge of the "slushy", "icy and slippery" conditions that day, those factors cannot be deemed to have posed a sudden and unexpected emergency. Thus, the Court concludes that the emergency doctrine is not applicable on account of those weather conditions (Caristo v Sanzone, 96 NY2d 172, supra at 175; Marsicano v Dealer Stor. Corp., 8 AD3d 451, 452 [2d Dept 2004]; Bellantone v Toddy Taxi, 307 AD2d 979, 980 [2d Dept 2003]; Gadon v Oliva, 294 AD2d 397, 398 [2d Dept 2002]). Indeed, Defense counsel said as much during his oral summation at trial.

Likewise, the Court determines that the movements of the black car did not pose "a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration," or time to weigh "alternative courses of conduct" (Rivera v New York City Tr. Auth., 77 NY2d 322, supra at 327) that would invoke the emergency doctrine. To the contrary, Mr. Dawson's testimony is that he had time to observe the black car over the course of driving several blocks. He considered the possibility that his van could "slide" into the black car if it stopped abruptly. He agreed that nothing prevented him from maintaining, or increasing, his distance of three car lengths. Mr. Dawson said he rejected the option of pulling onto a side street for fear of becoming stuck because of the ice and slush (more evidence that he was aware of the poor conditions). In short, the Court finds nothing "sudden or unexpected" about the black car's wobbly traction under poor road conditions. Nothing in the black car's operation precipitated an emergency situation that required Mr. Dawson's immediate, instinctive, reaction. Rather, the crisis was provoked by Mr. Dawson's conscious decision to try to pass the black car. The course of action chosen was entirely within Mr. Dawson's control and not the result of exigent circumstances. Thus, the Court concludes that the emergency doctrine does not apply.


The Court finds that Mr. Dawson owed Ms. Bell a duty to operate Defendant's vehicle with reasonable care under the circumstances, that duty was breached, and that breach of duty was the sole factor in the accident that resulted in Ms. Bell's injuries. It may well be the case that Mr. Dawson drove with care during much of the day on January 23, 2006. Unfortunately for all involved, his momentary lapse in judgment in electing to attempt to pass the black car was unreasonable and imprudent given the slushy, icy and slippery conditions that morning. Thus, the Court finds Defendant 100% liable for the accident.

All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.

The Chief Clerk is directed to enter interlocutory judgment accordingly. The Claim will be scheduled for trial on the issue of damages as soon as practicable.

May 6, 2008

Albany, New York


Judge of the Court of Claims

1. The claim of Richard Bell is derivative in nature.

2. At trial, Defendant objected to the introduction of portions of the report under the captions "Accident Description/Officer's Notes," "Ticket/Arrest Number(s)" (as they relate to both Ms. Bell and Mr. Dawson), and in boxes 19 and 20 (apparent contributing factors) on hearsay grounds. The Court reserved and now sustains that objection. The exhibit is admitted in evidence with those portions redacted.

3. All quotations are taken from the audiotape recording of the trial and/or the Court's trial notes.