New York State Court of Claims

New York State Court of Claims

DENARDO v. THE STATE OF NEW YORK, #2009-010-001, Claim No. 111445


Synopsis


Drop-off was not significant nor a proximate cause of the accident.

Case Information

UID:
2009-010-001
Claimant(s):
JAMES DeNARDO, a Person Under a Disability, by DIANE DeNARDO, His Court Appointed Guardian
Claimant short name:
DENARDO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111445
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
KEEGAN, KEEGAN, KEEGAN & STRUTT, LLP
By: John W. Keegan, Jr., Esq. Barry R. Strutt, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney GeneralJ. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 22, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant seeks damages for injuries he sustained in an automobile accident on July 16, 2004 when he was a rear seat passenger in a car driven by Eric Cueva on Route 115 in Dutchess County. Claimant contends that the accident was caused by defendant’s failure to properly maintain the area adjacent to the roadway resulting in an unsafe drop-off from the pavement at the shoulder. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.


Route 115, also known as Salt Point Turnpike, is a two lane road with lanes running in opposite directions.[1] In the vicinity of its intersection with Van Wagner Road, Route 115 curves so that a vehicle traveling southwest would bear to the right. The general speed limit on the road is 45 mph. However, the curve is posted with a 25 mph advisory speed, curve warning signs and chevrons along the outside bank of the curve. The roadway in the area of the accident was repaved in November 2003.

Claimant testified that he has no recollection of the events of July 16, 2004. Eric Cueva died as a result of the accident. The details of the accident were recounted by Jason Weiner who was the front seat passenger in the automobile driven by Cueva. Weiner testified that after dinner on July 16, 2004, he and Cueva picked up claimant at his apartment and proceeded onto Route 115. The weather was clear and the road was dry. After traveling one quarter to one half mile, as they entered the curve, Weiner advised Cueva to slow down from his speed of 45 to 50 mph. Instead, the car went off the road to the right and Weiner felt a “dip,” the car “kick off . . . bump back”[2] into the opposite lane facing oncoming traffic. Weiner observed Cueva struggling to gain control over the car and he swerved to the right, back into “our lane.” The car fishtailed and eventually hit a tree on the right side of the road. The car came to rest at milemarker 2047.

Dutchess County Deputy Sheriff Mark Catuzza was the first to respond to the scene. He testified that Weiner was out of the vehicle. Catuzza spoke to Weiner about the events preceding the accident. Catuzza observed that Cueva appeared deceased and that claimant was unrestrained in the rear seat and was incoherent. A second deputy sheriff and Sheriff’s Department Lieutenant Wayne Wohr also responded to the scene. Catuzza prepared the Police Accident Report in connection with the incident (Ex.11).

Dutchess County Deputy Sheriffs Jonathan Begor and Kurt Twaddell, crash reconstructionists who responded to the scene, also testified. According to their testimony, they began their investigation at the point the vehicle came to rest. They walked north along the roadway to a location near Van Wagner Road or slightly beyond, examining both the roadway and shoulder area. Using laser instruments, they documented the location, relative to a point of origin, of tire marks, debris and other material of evidentiary value. Begor indicated that the item of evidentiary value farthest from the collision site was the beginning of tire marks approximately 120 feet from the vehicle, west of mile marker 2048. He did not observe any debris or tire marks between mile marker 2049 and 2048. Twaddell likewise testified that he and Begor “looked for indications of the car leaving the pavement, but more importantly, any indication of tire marks to show how that car actually or exactly behaved prior to full loss of control and we found nothing there” (T:534). Twaddell took several photographs documenting his observations (Exs. V-SS). The photographs depict gravel and debris scattered across the roadway adjacent to the collision site (Exs. HH, MM). They also show a pattern of curved tire marks on the road surface from the point the vehicle left the pavement surface northeast along Route 115 (Exs. W-AA CC, LL, NN, OO, QQ). Begor and Twaddell measured the coefficient of friction of the roadway at the point of the tire or “yaw” marks and calculated critical curve speed (T:524).

Twaddell testified that the data collected was entered into a computer assisted diagraming program (T:529-31). He explained that the resulting diagram or situation map is “a prediction of * * * how the car may have behaved based on the evidence found at the scene” (T:532). The raw data, diagram and a written narrative prepared by Twaddell are included in the police accident report. The narrative states in part:
“THE LOCATION OF THE YAW MARKS RELATIVE TO A SHARP CURVE/GRADE EAST OF THE CRASH LOCATION SUGGESTS THAT A FULL SLIDESLIP WAS INITIATED DURING AN ‘OVER-CORRECTION’ FOLLOWING THE NEGOTIATION OF THE CURVE.


* * *


USING THE CRITICAL CURVE SPEED FORMULA THE SPEED OF THE CAR AT THE BEGINNING OF THE L/R YAW MARK WAS APPROXIMATELY 48 MPH PRIOR TO IMPACT.


* * *


THE SHARP CURVE EAST OF THE YAW MARKS EXAMINED AND MEASURED FOR A CRITICAL CURVE SPEED ANALYSIS. * * * THE CRITICAL CURVE SPEED CALCULATED AT APPROXIMATELY 50 MPH. THIS WOULD BE THE MAXIMUM SPEED THAT THE AVERAGE VEHICLE WOULD BE ABLE TO NEGOTIATE THIS CURVE. AT SPEEDS ABOVE 50 MPH, THE AVERAGE VEHICLE WOULD ENTER A SIDESLIP AND LOSS OF CONTROL WOULD BEGIN.


THE FINDINGS OF THE INSPECTION CONCLUDE THAT THE VEHICLE WAS IN EXCESS OF 50 MPH AT THE CURVE, CAUSING THE DRIVER TO LOSE CONTROL. THE VEHICLE WAS TRAVELING AT A SPEED ABOVE THE POSTED LIMIT OF 45 MPH AND DOUBLE THE POSTED RECOMMENDED SPEED FOR THE CURVE OF 25 MPH.


THERE IS NO INDICATION OF MECHANICAL FAILURE FROM VEHICLE AND ROADWAY EVIDENCE INSPECTION. THERE IS NO INDICATION OF A ROADWAY DEFECT, ENVIRONMENTAL FACTOR, TRAFFIC CONTROL MALFUNCTION OR ADDITIONAL VEHICLE INVOLVEMENT.


CAUSE OF CRASH DEEMED EXCESSIVE SPEED.”

(Ex. 11, pp 6-7). Twaddell conceded he and Begor were not aware of the alleged cause of the accident at the time they conducted their investigation.

Duff Smith testified that he has lived on Route 115 since 1984 and owns property on both sides of the road in the vicinity of the accident, which he referred to as Dead Man’s Turn. He lives in a house on the side of the road adjacent to the lane where the Cueva vehicle was traveling. Smith raises and trains horses on both sides of the road and frequently crosses Route 115 between the two parcels. Throughout the years, he has observed accidents with cars landing in his field on the side of the road opposite his house and the accident location. On July 27, 2000, Smith wrote a letter to DOT warning:

“I live on a bend in Salt Point Turnpike commonly referred to as ‘Dead Man’s Turn.’ I have lived here for over 15 years and I have watched cars crash, fly and flip on this turn and also watched several people die in front of my eyes. When we first bought the house the kids sat on the porch and cheered for the cars as they maneuvered the turn and hit the signs. That sounds morose but it isn’t; they could differentiate between the sound of the warning signs and the telephone pole. A difference of life and death.
* * *
Cars in the north bound [sic] lane keep skidding off the road in exactly the same place, between the signs. In most cases this is not even reported to the police, because they just drive across our lawn and out the other side. They don’t leave a note, just tire tracks. In the last month they have flown off the road even worse and started hitting our fence.
* * *
PLEASE PUT A GUARD RAIL FROM MY FARM ACCESS DRIVEWAY (856 SALT POINT TURNPIKE), ON THE SOUTH/EASTSIDE OF THE ROAD, PAST THE SIGNS, TO THE TELEPHONE POLE AND A FEW FEET BEYOND, IMMEDIATELY.”


(Ex. 19). In his letter, Smith refers to cars traveling in the northbound lane but then requests that a guardrail be erected on the south/east side of the road. At trial, Smith explained that his concern was with the eastbound traffic and that he wanted the guardrail erected on the side of the road opposite his house and the accident location.

In the fall of 2003, Smith observed new paving being applied along the intersection of Route 115, but not in front of his house. Prior to 2003, he had inspected the shoulders of the road. He noted a low spot, five and one half inches deep, in the “kink” of the curb; this was marked on exhibits 6 and 7. According to Smith, if cars went off the road, their tires got caught in the low spot. In the spring of 2004, Smith observed roadwork around the turn in front of his property. According to Smith, the work, which started at the end of May, raised the level of the road to a height of five to five and one half inches above the ground. He never saw any fill placed in the area to make the shoulder flush with the ground. During the construction, Smith telephoned the Chief Engineer at the Poughkeepsie DOT Office to complain that the wrong paving material was being used and to discuss what he described as the holes in the shoulder.

In response to Smith’s July 2000 letter, Jean T. Gunsch, then a civil engineer with DOT, conducted a traffic investigation regarding the need for a guide rail along Route 115. In her report dated September 30, 2002, Gunsch concluded that a guide rail was unwarranted (Ex. 12). Gunsch’s focus was the outside of the curve, since the request for a guardrail was on the “non-house” side of the road (Ex. 12, pp 20-21). She photographed the area and reviewed DOT photo logs. She also prepared a sketch of the geometry of the road and the existing signage for northbound traffic (Ex. 12). She reviewed the accident history for the three years prior to September 1996 regarding the traffic traveling in both directions from mile marker 2047 to 2050. “Of the 20 accident reports obtained by Motor Vehicles for a .3 mile section including this location, only 2 occurred in the vicinity of the curve.” According to Gunsch, neither of those two accidents involved roll-overs nor were there any other indications that a guide rail was warranted or that the accidents were attributed to a low shoulder. She acknowledged that incidents involving a vehicle leaving the roadway would not necessarily result in an accident report. She did not look for tracks in the field or interview Duff Smith.

The examination before trial of Michael Temple, the current Resident Engineer for Dutchess County, was received into evidence (Ex. 22). Temple explained that after paving, any resulting drop-off from the pavement to the ground of greater than two inches is supposed to be backed up to effectuate a smooth transition from the pavement to the ground (id. at 27). On the Route 115 repaving project in the fall of 2003, the shoulder back-up work was done by a private contractor, A. Colarusso & Sons (id. at 13). According to the project diary entries prepared by DOT’s engineer-in-charge and the inspection reports, the shoulder back-up work was inspected on a daily basis by DOT’s employee John Orlandi (Exs. 17, 18; Ex. 22, pp 19, 20, 21-22, 27). Temple testified that the final inspection would have been performed by the resident engineer, who, at that time, was Peter Teliska (Ex. 22, pp 29-30). Following the inspection, a final acceptance letter to the contractor should be prepared indicating that the job was completed and inspected (id. at 31-32).

Temple testified that after repaving was completed, inspections would occur “[o]ccasionally. Not on a regular basis. Just as part of the overall riding the roadway” (id. at 32) or if someone made a complaint about a certain roadway (id. at 37). If an inspection revealed a differential of more than two inches, maintenance forces would be directed to fill in the gap (id.).

Peter Teliska, the Regional Transportation System Maintenance Engineer for DOT, testified that he is responsible for maintenance of Route 115. At the time of the accident, he was the Resident Engineer for the Dutchess County Residency and was familiar with Route 115 professionally and in his personal travels.

Teliska testified that he and assistant resident engineer John Cummings visited the accident scene on July 20 or 21, 2004. They drove along the roadway and checked signs, striping and the condition of the pavement. Teliska acknowledged that, at that time, he was not aware of the alleged cause of the accident and that he focused primarily on signage. He testified that he did examine the general condition of the highway and shoulders and found “[n]othing * * * of any concern” to him (T:471). He did not notice any conditions requiring backfilling. At trial, Teliska did not recall the height of the drop-off in issue. However, on cross-examination, he explained that he would have been concerned about any differential over four or five inches and that therefore the drop-off must have been four inches or less (T:472). Relying on his former testimony to refresh his recollection, he estimated the drop-off at three to four inches (T:478).

Teliska also testified as to the contracts for the November 2003 repaving project. He explained that the “prep and finish” contract provided for the preparation of the roadway for repaving and for the post-paving finish work, such as backing up shoulders (Exs. 25, B). The proposal called for the placement of backfill material to create an angled surface from the level of the shoulder to the ground (Ex. B). Teliska explained that, as part of a paving project, the shoulders should be backed up so that they are flush with the ground. In between resurfacing projects, backfilling would take place as part of patch repairs or if DOT employees observed a drop-off that needed to be fixed. Teliska noted that the paving work included rolling “superpave asphalt,” a process that pushed out the material so that a vertical edge would not be created. Teliska testified that he spoke to Duff Smith during the repaving project about the material being used and that Smith did not complain about the drop-off from the pavement to the shoulder.

Nicholas Bellizzi, a professional engineer with considerable private and public sector experience, offered expert testimony on behalf of claimant. He visited the site on November 29, 2004 accompanied by, among others, claimant’s attorney and Jason Weiner. Weiner showed Bellizzi the location where the Cueva vehicle had left the pavement, a point across the road from and slightly east of mile marker 2048. Bellizzi measured the drop-off from the top of the pavement to the adjacent ground at that location. He observed the drop-off to be three inches (T:311; Exs. 6, 7, 8, CCCCC, DDDDD). He indicated that all his measurements were taken “within ten, twelve feet” of one another (T:364).

On cross-examination, Bellizzi was questioned as to the accuracy of his measurements. He testified that he placed an axis on the road, resting on the white line and extending horizontally beyond the paved surface, to a point where the axis intersected with a vertical ruler at the 3-inch mark. Bellizzi denied there was any downward slope to the pavement from the white line to the edge of the asphalt in the area in which he took his measurements. Instead, he characterized the edge of the pavement as “right on the white line” (T:364) and stated that the area immediately beyond the white line was the drop-off itself (T:370, 379-80).

Bellizzi reviewed the New York State Highway Maintenance Guidelines regarding shoulder drop-offs (Ex. 14, p 3). The primary concern posed by a drop-off is the scuffing hazard for drivers who tend to overcorrect their steering as they attempt to return to the road. The acceptability of the height of the drop-off is based on the shape of the edge. Section 2.110 of the guidelines charts the relative safety of three types of edge conditions. Shape A is characterized as a vertical drop-off with a 90° or slightly rounded top edge, Shape B is a continuing radius curve from the top edge to the shoulder level, and Shape C is a 45° ramp-like face. The drop-off of a Shape A pavement edge goes from “reasonably safe” to “marginally safe,” at a maximum height of three inches. By contrast, a Shape B drop-off of nearly four inches, is considered “reasonably safe.”

Bellizzi characterized the pavement edge in the area he inspected as a Shape A edge. Based upon the height of the drop-off and the contour of the edge, he concluded that the shoulder of Route 115 in the area of the accident was not maintained in a reasonably safe condition (T:335) because anything greater than a two-inch drop-off would be unsafe (T:336).

Nicholas Pucino, a professional engineer with DOT and its predecessor agencies for over 30 years before retiring in 1991, offered expert testimony on behalf of defendant. In August 2006, he investigated the scene and took a series of photographs (Exs. YY-MMM). He measured the shoulder drop-off at 25-foot intervals for 225 feet along the inside of the curve where the Cueva vehicle was alleged to have left and reentered the roadway (Exs. GGGGG; UUU, Photographs 12-20). He testified that the pavement depth at those ten points varied from ⅜ inch to 1¾ inches (T:608). With the exception of a single point where some loose gravel remained (Ex. UUU, Photo 12), the backup material placed as part of the 2003 repaving contract had been displaced. The remaining measurements were down to the firm surface of the old shoulder (T:589, 626; Ex. UUU, Photograph 12). Pucino acknowledged that a pothole or depression may have existed in between his measurements but, he indicated, he did not observe any linear stretches of a significant drop-off, “[c]ertainly nothing of the magnitude of 3¾ inches” (T:625-26). When questioned about the potential for scrubbing, Pucino explained that a localized area of exposed edge would not cause a scrubbing action because once the vehicle traveled beyond that point, the vehicle would have no difficulty re-entering the roadway. At 50 mph “it certainly had to be more than 25 feet or so before you’re going to really experience * * * that difficulty” (T:624).

Pucino reviewed the specifications for the 2003 repaving contract. He noted that the contract provided for an asphalt surface with a compacted depth of 1.6 inches. He explained that, as asphalt is rolled out, it naturally forms a “classic rounded asphalt edge” (T:616). Pucino described the roadway edge condition as “the natural slope for asphalt” and characterized by “Shape B” in the Highway Maintenance Guidelines (T:619; Ex. UUU, Photograph 12). He noted that Shape A is consistent with concrete pavement and that “[y]ou can’t get Shape A out of asphalt” (T:619). He also noted that Shape C, which is characterized by a 45° angle, would not be present in asphalt absent a compacting of the slope. Pucino indicated that when new paving occurs, backing up a 1¾-inch drop-off would be appropriate, but between pavings a certain amount of exposure is allowed to develop before additional backfilling is necessary (T:622). He opined that the point at which an edge becomes marginally safe is between 3½ and 3¾ inches.
ANALYSIS
The State has a duty to use reasonable care in maintaining its highways and the adjacent areas in a reasonably safe condition to prevent the occurrence of foreseeable injuries (see Friedman v State of New York, 67 NY2d 271; Basso v Miller, 40 NY2d 233, 241). This duty extends to conditions adjacent to the highway and once the State undertakes to provide a shoulder alongside the roadway, it must maintain that shoulder in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver's negligence or an emergency (Stiuso v City of New York , 87 NY2d 889; Bottalico v State of New York, 59 NY2d 302, 305). Defendant, however, is not the insurer of the safety of its roadways and the mere happening of an accident on a State roadway does not render defendant liable (see Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Claimant has the burden of establishing that defendants were negligent and that such negligence was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-22; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519).

Upon review of all the trial evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to establish that defendant was negligent. The Court is not convinced that a three-inch drop-off existed at any point in the vicinity of the accident. The testimony of claimant’s expert, Nicholas Bellizzi, that a vertical drop-off existed “right at the white line” is belied by numerous photographs in evidence, including those taken by Bellizzi, which depict a band of asphalt of varying width between the white line and the edge of pavement. The photographs depicting the measurements taken by defendant’s expert, Nicholas Pucino, further evidence that the asphalt slopes downward from the white line to the edge of the pavement. To the extent that Bellizzi failed to take the slope into account, his measurements are unreliable. The effect of the slope over a few inches may have been slight. However, given that a height differential of three inches is the precise point at which a Shape A edge described as “reasonably safe” becomes “marginally safe” according to the Highway Maintenance Guidelines, even a minor deduction from Bellizzi’s measurement would defeat claimant’s theory of liability.

Having reviewed the photographs in evidence, the Court rejects Bellizzi’s description of the edge profile as “Shape A” characterized by a vertical face and finds that the edge of pavement is more akin to “Shape B” as illustrated in the highway maintenance guidelines. Moreover, Pucino’s testimony and photographs establish that, even after all backup material from the 2003 repaving had been displaced, the drop-off throughout the subject area was well within the parameters considered reasonably safe for any edge profile.

Further, if Bellizzi indeed took an accurate measurement of a three-inch vertical drop-off at a place where no paved shoulder existed, that point clearly was not representative of the entire shoulder area and merely established that a three-inch drop-off existed at an isolated point or for a short distance along the shoulder in the area where the Cueva vehicle purportedly left the roadway. The Court also credits Pucino’s testimony that a vehicle traveling at 50 mph would have to encounter a drop-off over a significant distance for a scrubbing condition to have hampered its ability to safely reenter the roadway. The existence of a single depression would not be sufficient to cause a scrubbing condition. Thus, the Court finds that claimant failed to establish that there was a drop-off of a significant depth which continued for a sufficient distance which posed a dangerous condition to motorists (cf. Sevilla v State of New York, 111 AD2d 1046 [four-to eight-inch drop-off between roadway and shoulder was excessive and represented a dangerous condition which was a proximate cause of claimant’s accident]; Bottalico v State of New York, 87 AD2d 807, affd 59 NY2d 302 [four-to six-inch drop-off from roadway to shoulder was a substantial hazard]).

Even if the Court were to credit Weiner’s testimony that he felt the vehicle “kick off” and “bump back” onto the paved roadway, his account does not compel a contrary conclusion. Claimant presented no physical evidence that the vehicle encountered a scrubbing hazard. Further, the crash investigation team observed no debris or other evidence on the roadway in the area in which the vehicle purportedly left the pavement. By all accounts, Cueva was traveling in excess of the posted speed limit for the road and more than twice the recommended speed for the curve. In all probability, if the vehicle did leave the travel lane, Cueva simply overcorrected his steering and lost control of the vehicle in the manner suggested by the crash reconstruction analysis. Absent convincing proof that a drop-off played a role in causing Cueva to lose control of the vehicle, claimant has not established a basis for liability (see Van De Bogart v State of New York, 133 AD2d 974 [claimant did not establish that drop-off or culvert played any role in causing the vehicle to go out of control or in preventing it from reentering the roadway]; Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 ["Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury"]).

In sum, there is no basis for finding that defendant was negligent or that any negligence attributable to defendant was a proximate cause of claimant's accident. Accordingly, the claim is dismissed and all motions not previously ruled upon are hereby DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.


January 22, 2009
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1].Throughout the trial, the witnesses differed in their description of the roadway as either east/west or north/south. Michael Temple, the resident engineer for the region, testified in his examination before trial that “[i]t runs east/west, but the alignment tends to go more north/south” (Ex. 22, p 8). Dutchess County Deputy Sheriff Jonathan Begor testified that the road “predominantly runs north/south but there are sections of it that bend and run east/west.” Jean T. Gunsch, Senior Transportation Analyst for the New York State Department of Transportation (DOT), when asked what compass direction the State believes that Route 115 travels, thought it was north/south, but was uncertain (Ex. 21, p 27). The parties stipulated that the witnesses’ description of the roadway as south and west are equivalent and north and east are equivalent.
[2]. References to the trial transcript are preceded by the letter “T”.