New York State Court of Claims

New York State Court of Claims

SHON v. THE STATE OF NEW YORK, #2009-015-515, Claim No. 109241


Synopsis


Court found in favor of the claimant following trial on issue of liability. Claimant established defendant had notice of defective condition which was the cause of an automobile accident and that it failed to ameliorate the condition within a reasonable time thereafter. Defendant not immune from liability. Liability apportioned 50/50.

Case Information

UID:
2009-015-515
Claimant(s):
GO E. SHON a/k/a ANNIE SHON
Claimant short name:
SHON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109241
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
O'Connell and Aronowitz, P.C.By: Kevin P. Hickey, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Frederick H. McGown, III, Esquire, and
Kent Sprotbery, EsquireAssistant Attorneys General
Third-party defendant’s attorney:

Signature date:
May 22, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks to recover damages for injuries sustained in a head-on collision with a police vehicle allegedly due to the defendant's failure to properly maintain the roadway where the accident occurred and erect proper signage warning of the danger. The trial of this matter was bifurcated and the liability phase commenced on October 21, 2008.


Claimant Go E. Shon, also known as Annie Shon, testified that on the date of the accident she was a 24-year-old freshman at Williams College in Williamstown, Massachusetts. Ms. Shon testified that on April 24, 2003 she left Williams College and traveled to Albany, New York via Route 2 to visit her boyfriend who was a student at the State University of New York at Albany (SUNY Albany). In Albany the claimant and her boyfriend had dinner with friends at a Middle Eastern restaurant and then returned to the SUNY Albany campus. Ms. Shon denied that she consumed any alcohol on the evening of April 24, 2003. She testified that she left Albany at approximately 2:00 a.m. and returned to Williamstown on Route 7 (East) because Route 2 was, according to the claimant, "very windy and steep" (Tr. 1, p. 16)[1]. As described by the claimant:
"I was rounding a curve, driving - - - I was almost back 40 minutes into the drive, I noticed on a curve there was a big bump and then a dip in the road and when I rolled over it, I lost control of my car . . . I was thrown into the other lane and at that exact moment a State Trooper car was speeding by and we crashed, collided head on" (Tr. 1, p. 19).
Ms. Shon denied she was tired at the time of the incident described above and estimated that her speed in the period five to ten seconds prior to the collision was between 50 mph and 55 mph. Although the claimant had borrowed the vehicle she was operating at the time of her accident from a friend, she related that she had no difficulty in controlling the vehicle prior to the accident. Several photographs were identified by the witness as depicting the area of the roadway where she lost control of her vehicle. Photographs 1 and 2 of Exhibit 3 depict the area as viewed by a vehicle traveling in a westbound direction on Route 7. Photographs 3 and 11 of Exhibit 3 depict the roadway from the perspective of an eastbound driver. In addition, a videotape containing local news coverage of the claimant's accident was received in evidence as Exhibit 1.

The claimant testified that immediately after the accident she attempted to open the driver- side door of her vehicle. Neither the driver nor the passenger side doors would open so the claimant remained in the vehicle, turned on the light, and for the first time observed injuries to her lower extremities. A State Trooper then walked up to the vehicle and asked the claimant if she was all right. Claimant responded that she believed she had broken her foot, after which the trooper simply walked away. Approximately 15 minutes later an ambulance arrived and the claimant was removed from her vehicle by paramedics using the jaws of life. Claimant described herself at the time as cold and "shaking pretty badly" (Tr. 1, p. 41). She denied telling anyone at the accident scene that she was tired or that she had fallen asleep while driving.

One month following the accident claimant was contacted by a New York State Trooper who advised her that she would be issued two tickets in relation to the incident described above. The first cited the claimant for excessive speed (63 mph in a 55 mph zone) and the second for failure to keep right. Sometime thereafter the claimant pled guilty to failure to keep right and disobeying a traffic control device. She explained that she pled guilty to the tickets because she lived in New Jersey and it would be time consuming and expensive to contest them, stating "because I' m out of state, there's no points on my license so I just saved money and time basically" (Tr. 1, p. 44).

On cross-examination the claimant testified that she had borrowed the vehicle she was driving on the date of the accident from a friend and that she had never operated the vehicle prior to that date. She had traveled on Route 7 two or three times prior to the morning of April 25, 2003 but only as a passenger and only while traveling in a westbound direction. With regard to the happening of the accident, she testified that she was proceeding in an easterly direction on Route 7 at approximately 55 mph as she entered a right-hand curve. According to the claimant the accident occurred "right after I rolled over the rough patch and then the dip and then I just completely lost control and my car swerved into the other lane, probably right at or after the dip" (Tr. 1, p. 51). Claimant placed an "X" on Exhibit 3, photograph 3, to indicate the point at which she lost control of her vehicle and crossed the center line.

When asked whether she observed any signs or warnings along the roadway as she approached the area where the accident occurred, the claimant responded "I vaguely recall seeing the sign at the dip, but it just - - I mean, it happened so quickly I think I, I definitely - - I must have seen it because I definitely reacted to it. I started slowing down. But, I really only had a split second to react to it because it was so close to the part of the road" (Tr. 1, p. 56).

The claimant was asked whether she recalled observing a sign depicting a truck in a downhill position to which she responded "I think vaguely" (Tr. 1, p. 57). When asked whether she recalled seeing a sign indicating "bump ¼ mile ahead" claimant responded "I might have seen it" (Tr. 1, p. 58). Claimant testified that she vaguely recalled a sign indicating a right-hand turn and a posted advisory speed of 45 mph. When asked whether she slowed her vehicle to 45 mph in response to the sign claimant stated "I slowed down. I didn't look at my speedometer" (Tr. 1, p. 58). Claimant vaguely recalled observing a sign inscribed with the word "DIP" and was unsure whether she had observed an object marker located on the side of the road immediately preceding what was generally referred to at trial as the "dip" or "bump" in the roadway where the claimant lost control of her vehicle. Claimant was then asked whether she had searched for the bump and dip which the signs had warned of. Claimant responded:
"I didn't - I mean it was - I guess I knew it was coming but it was at that moment when I realized it was coming like right before my car rolled over it" (Tr. 1, p. 61).
On redirect examination the claimant was asked by counsel whether she specifically recalled observing any of the signs about which she was questioned on cross-examination. Claimant responded, "More so the dip sign than any other sign" which she estimated was "probably not more than a hundred feet . . . from the patch on the road, the dip in the road" (Tr. 1, p. 67). Ms. Shon was then asked, "And, other than that dip sign, do you recall any of the others as to what they specifically said?" to which she responded "No" (Tr. 1, p. 68).

Claimant next called New York State Trooper Daniel P. Cenicola. Trooper Cenicola testified that he began his shift at 7:00 p.m. on the evening of April 24, 2003. In the early morning hours of April 25, 2003 he and his partner, Trooper Michael Lewis, were traveling in a westbound direction on Route 7, returning to the State Police barracks in Loudonville, New York from the Village of Hoosick Falls where they had been involved in activity relating to an investigation they were conducting. As they proceeded west on Route 7 they noticed a lone vehicle traveling in an eastbound direction which was approaching at a speed which the witness visually estimated was in excess of the speed limit. Trooper Cenicola testified that he first observed the eastbound vehicle when it was between 250 and 300 feet from his patrol vehicle. It appeared to the trooper that the eastbound vehicle was traveling in close proximity to the center line of the roadway although it was still within the eastbound lane of traffic. Trooper Lewis testified that he activated the the Stalker dual radar located on the State Police vehicle's front dashboard after visually observing the vehicle for approximately 2 - 2½ seconds. The radar display indicated the eastbound vehicle was traveling at 63 mph in a 55 mph zone. Trooper Cenicola testified that the trooper vehicle was traveling between 55 mph and 65 mph.

The witness estimated the total time between first observing claimant's vehicle proceeding eastbound on Route 7 and the collision at "no more than 6 seconds" (Tr. 1, p. 80). He estimated that he observed the claimant's vehicle for approximately 2 - 2½ seconds in order to visually estimate its speed. The radar was activated 2½ - 3 seconds after first observing the vehicle which, ultimately, crossed the center lane and collided with the State Police vehicle.

Trooper Cenicola acknowledged that a vehicle traveling 55 mph was traveling at approximately 80 feet per second and that a vehicle proceeding at 65 mph was traveling at approximately 95 feet per second. He further acknowledged that two vehicles approaching each other from opposite directions at a speed of approximately 85 feet per second will close the distance between them at a speed of 170 feet per second. Trooper Cenicola agreed that two such vehicles 250 - 350 feet apart, the distance he estimated between his patrol vehicle and the claimant's vehicle when he first observed it, would close on each other in less than two seconds. In response, the witness admitted that his initial estimate of either the distance between the vehicles or the period between his first observation of the claimant's vehicle and the time of collision may have been inaccurate. He stated that it is likely he first observed the claimant's vehicle at a greater distance than he initially estimated and that "as far as any estimations are made, and when the radar is activated and when the collision happens, it's probably all within a few seconds" (Tr. 1, p. 85).

Trooper Cenicola testified that on May 22, 2003 Trooper Michael Lewis issued the claimant two tickets as a result of the events of April 25, 2003. With regard to his testimony that the radar determined the claimant was proceeding at 63 mph, the trooper admitted that he did not at any time write down the radar reading nor was there a printout reflecting the speed determined by the radar. The witness was asked to review Exhibit 9, a document containing four photographs of the trooper vehicle in which Troopers Cenicola and Lewis were traveling on April 24 - 25, 2003. The witness testified that the photograph of the front windshield area of the vehicle located in the upper lefthand corner of Exhibit 9 does not depict a radar unit attached to the dashboard. The trooper could not recall whether the radar unit was displaced from the dashboard as a result of the collision with the claimant's vehicle and stated that he did not have the opportunity to review the radar equipment following the accident. The witness testified that in his opinion it was generally safe to travel between 55 and 65 mph in the area where the accident occurred and that, in fact, he was traveling at a similar speed.

Trooper Cenicola testified that following the accident he went to the claimant's vehicle and spoke with Ms. Shon. "I distinctly remember her saying she was sorry and that she fell asleep. That phrase in particular" (Tr. 1, p. 97). He stated that "she did not appear to be asleep. She was conscious and awake and she was obviously injured" (Tr. 1, p. 98). Finally, the trooper testified that there was a "minor bump" (Tr. 1, p. 99) in the eastbound lane of travel on Route 7 at the point where the accident occurred.

On cross-examination the witness stated that the closing distances and time frames to which he testified on direct examination were merely estimates. He stated that Trooper Lewis activated the Stalker radar unit after the officers visually observed the claimant's vehicle and estimated that its speed was in excess of the posted 55 mph speed limit. According to the witness the radar unit mounted on the dashboard of the trooper vehicle makes a distinct audible sound when activated. Trooper Cenicola testified that he was seated in the front passenger seat of the vehicle and that he recalled hearing the audible tone and observing the number 63 appear on the unit's target window.

The witness did not prepare a report of the accident. Instead, accidents involving state police vehicles are investigated by supervisors who then prepare an official accident report. The witness did, however, prepare an interoffice memorandum to the Commander of Troop G as required by standard State Police procedures (see Exhibit K). The report was created on May 4, 2003 and states that the claimant was operating her vehicle at 63 mph.

The witness testified that following the accident he exited his vehicle and approached the Shon vehicle. He spoke to the claimant through the open passenger side window[2]. According to Trooper Cenicola the claimant stated several times that she was sorry for what had occurred and that she had fallen asleep. He then returned to the State Police vehicle to confirm that Trooper Lewis was unhurt and radioed for emergency vehicles. Trooper Lewis then exited the vehicle and he and the witness approached the Shon vehicle where they spoke to the claimant.

New York State Trooper Michael K. Lewis was next called to the stand. Trooper Lewis testified that he began his career in law enforcement with the Rensselaer County Sheriff's Department in 1998 and graduated from the State Police Academy in July, 2002.

Trooper Lewis stated that he began his shift at 7:00 p.m. on the evening of April 24, 2003. He and Trooper Cenicola "paired up" (Tr. 1, p. 126) shortly after midnight and traveled to the Village of Hoosick Falls as part of an investigation of a burglary in the Town of Hoosick. Later, he and Trooper Cenicola left the Village of Hoosick Falls, traveled southbound on Route 22 and then turned west on Route 7. Trooper Lewis, who was operating the vehicle, estimated that he first observed the claimant's vehicle approximately one mile west of the intersection of Route 22 and Route 7. He testified that at that time the Shon vehicle was approximately 150 yards from his vehicle and 50 to 75 yards behind another vehicle traveling in an eastbound direction on Route 7.[3] The patrol vehicle radar unit was in standby mode. Trooper Lewis reached up and activated the transmit button which, in turn, activated the radar which displayed both the target speed of the oncoming vehicle (the first eastbound vehicle) and the State Police vehicle's patrol speed. The first eastbound vehicle passed the troopers as Trooper Lewis observed the second vehicle approaching. At this point, the witness testified that the Shon vehicle was between 100 and 150 yards behind the first eastbound vehicle rather than the 75-yard distance he had previously testified to. He estimated the speed of his trooper vehicle at 55 mph, which he acknowledged equates to approximately 80 feet per second. He further acknowledged that the closing speed of two vehicles proceeding in opposite directions at 55 mph is approximately 160 feet per second. At such speeds two vehicles 100 to 150 yards apart (300 - 450 feet) would meet in approximately two seconds. Trooper Lewis stated that he could not recall the exact amount of time he was able to observe the claimant's vehicle but suggested that to his "best recollection [it] was under 10 seconds" (Tr. 1, p. 134). During this period Trooper Lewis visually estimated the speed of the Shon vehicle and activated the transmit button on the radar.

Trooper Lewis testified that the driver's-side door of the State Police vehicle would not open following the accident and he therefore directed Trooper Cenicola to exit the vehicle. He did not recall looking at the radar unit following the accident but testified that he did observe the number 63 appear on the radar following activation. As Trooper Cenicola exited the vehicle, Trooper Lewis contacted Rensselaer County dispatch to request emergency medical service at the scene and advised the State Police that the accident had occurred. Trooper Cenicola returned to the State Police vehicle and Trooper Lewis exited the vehicle through the passenger side. Both officers went to the Shon vehicle and spoke to the occupant. Trooper Lewis testified that he approached the driver's side of the vehicle where he observed the claimant resting her head on the steering wheel. When he asked the claimant whether she was okay she responded "I'm sorry, I'm sorry, I'm sorry" (Tr. 1, p. 140). According to the witness "I asked her if she was okay and she stated in some sort of - she had fallen asleep" (Tr. 1, p. 141). The witness reviewed Exhibit 5, the police accident report prepared in connection with the accident, and confirmed that the accident description/officer's notes section of the report relates the following two contributing factors to the accident:
"1. driver fatigue, drowsy - op veh 2 stated she was tired while driving prior to collision. 2. pavement defective - veh 2 encountered a dip and crack in pavement of eastbound lane just prior to collision w/veh 1."
Trooper Lewis agreed that the condition of the pavement in the eastbound lane of Route 7 may have been a contributing factor to the happening of the accident.

On cross-examination Trooper Lewis testified that he did not prepare the police accident report received as Exhibit 5 but that he was interviewed at the scene by Sergeant James Doyle as part of the accident investigation. He stated that on the evening of April 24 - 25, 2003 he was operating his regularly assigned State Police vehicle. Prior to taking the vehicle on patrol, Trooper Lewis undertook a visual inspection of the exterior of the vehicle and executed a list of procedures to ensure that the vehicle's radar unit was operating properly. He attached the power cord to the radar unit and switched it on, at which point the unit performed a series of internal tests, including checking the voltage and temperature of the unit. He then performed a tuning fork test in which a metal tuning fork was struck against a hard object and held in front of the radar antenna to confirm patrol speeds and target speeds. All tests of the radar unit indicated it was functioning properly prior to the time Trooper Lewis began his patrol at 7:00 p.m. on April 24, 2003. The witness testified that while on patrol he performed an additional test in which he activated the radar unit's transmit button to ensure that the patrol speed indicated was correct.

Trooper Lewis then discussed events occurring as his vehicle proceeded westbound on Route 7. He described the area where the accident occurred as a "series of S turns" (Tr. 1, p. 154) and stated that he undertook a visual estimate of the speed of the claimant's vehicle as it approached. Although he could not recall the speed he visually estimated the claimant's vehicle was traveling, when he activated the radar unit's transmit button it displayed a target speed of 63 mph. As described by Trooper Lewis:
"At that point, I'd reached up, I'd touched the transmit button to turn it on, I saw the 63, I turned it off and then I noticed the headlights coming straight at us" (Tr. 1, p. 156).
The witness reviewed Exhibit 9, photographs depicting the State Police vehicle following the accident, and agreed that the radar unit which would normally be positioned on the vehicle's dashboard is not present in the upper left-hand photograph. Normally the radar unit antenna would be positioned on a Velcro pad immediately in front of the steering wheel in the left corner of the dashboard. The actual radar unit is positioned on a second Velcro pad located in the center of the dashboard. The Velcro pads are clearly visible in the photograph but neither the radar unit nor the antenna can be seen.

Following the accident Trooper Lewis radioed Rensselaer County dispatch to request fire and EMS personnel to the scene and then contacted the State Police to advise them of the accident and request a supervisor. He climbed over the center console of the State Police vehicle and exited through the passenger- side door. He approached the claimant's vehicle and observed Ms. Shon who, according to the witness, "had her head on the steering wheel" (Tr. 1, p. 160). He asked the claimant several times whether she was all right to which she responded "I'm sorry, I'm sorry, I'm sorry" (Tr. 1, p. 160). The trooper testified that Ms. Shon appeared to him to be very drowsy. When he then inquired whether the claimant had been drinking she responded that she had not consumed alcohol and that she was returning to Williams College from SUNY Albany. It is at that point Ms. Shon allegedly stated she was tired.

The witness testified that on May 3, 2003 he authored a memorandum in which he related that radar indicated the speed of the claimant's vehicle prior to the accident was 63 mph. The memorandum also relates that the claimant stated "that she was tired and hit a bump in the road" (Tr. 1, p. 167). Trooper Lewis testified that he informed Sergeant Doyle during his interview at the scene that claimant's speed prior to the accident was determined by radar to be 63 mph and that the claimant had stated to him that she was tired.

On redirect examination the witness testified that he did not prepare the police accident report received as Exhibit 5 and confirmed that he informed Sergeant Doyle during his interview that the claimant stated she was "tired" as indicated in the accident description/officer's notes section of the report. When asked by the Court whether the claimant had stated that she fell asleep or was tired the witness responded:
"I know for sure that she had stated she was tired. As far as the falling asleep part, I believe she said . . . I'm sorry, I fell asleep. I don't know what portion where she meant by that. Or, what point of time that she had stated that she had fell [sic] asleep. If it was prior to the accident or if it was between the time that she was interviewed by Trooper Cenicola and I" (Tr. 1, p. 177).
On further questioning by counsel, Trooper Lewis indicated that he attempted to secure additional information from the claimant regarding her statement that she had fallen asleep but that she was unresponsive. According to Trooper Lewis:
"I had asked that, she didn't respond to that particular question. She kept saying, I'm sorry, I'm sorry and kept implying that she was tired, saying that she was tired" (Tr. 1, p. 179).
Trooper Lewis did not recall the claimant stating that she fell asleep while driving.

The claimant next called Jan Meilhede. Mr. Meilhede testified that he received a Bachelor of Science degree from Rensselaer Polytechnic Institute in 1973 and began his employment with the State of New York in January, 1974. In 1995 the witness was an Assistant Regional Traffic Engineer in Department of Transportation (DOT), Region 1. He became the Resident Engineer in Rensselaer County in August,1997 and served in that capacity until September, 2007 when he was appointed Regional Director of Operations in Region 1. He described his duties as Rensselaer County Resident Engineer in 2003 as including the maintenance and operation of State highways within the county.

Mr. Meilhede testified that he was familiar with the area on Route 7 where the subject accident occurred and that he had "driven the road many times" (Tr. 1, p.185). He stated that there was an unstable slope in that area which caused the asphalt pavement to crack. In preparing to testify for trial he became aware of a contract completed in 1997 which installed "under drain and surface drainage" (Tr. 1, p. 187) in order to control the water runoff from the hill on the north side of Route 7 "so that it did not go through the subgrade of the highway" (Tr. 1, p. 187). He acknowledged that the repairs to this area of Route 7 in 1997 were an effort to address drainage problems affecting the subsurface of the road and that the 1997 repairs were "unsuccessful" (Tr. 1, p. 188). He went on to relate that subsurface problems such as that at the accident scene on Route 7 can result in cracks or other movement of the pavement. He stated that following the 1997 repairs additional cracks reappeared in 1999. On October 5, 1999 the road surface was repaired by application of a grader patch which he described as "you dump a load of hot asphalt in front of the grader and spread it out with the grader and then roll it" (Tr. 1, p. 192). He stated that the grader patch was required because the riding surface of Route 7 was uneven. The October, 1999 repair addressed only the uneven riding surface and was not intended to address the underlying subsurface issues arising from the slope on the north side of the highway.

At some point thereafter, Mr. Meilhede requested that DOT Geotechnical Engineering personnel review conditions at the site and recommend a remedial plan with regard to drainage and subsurface conditions of the roadway. Problems with the riding surface of Route 7 where the subject accident occurred continued following the application of the grader patch in October 1999 and a paver patch which was applied in the same area in July, 2000. According to the witness a paver patch is similar to a grader patch except a paver was used to apply the asphalt and "generally a paver patch will put an inch of asphalt over the entire width of the pavement. Where a grader patch you can vary from zero to an inch over that width" (Tr. 1, p. 199). The witness testified that the paver patch in July, 2000 was necessary because "the road was raw, was rough" (Tr. 1, p. 201). A second grader patch was applied to the same area of Route 7 in November, 2001.

The witness testified that the addition of pavement overlays in the form of paver and grader patches exacerbated problems at the site by adding additional weight to a base which was unstable. He related that a hand patch, which he described as a "low key small patch using a shovel out of the back of a dump truck" (Tr. 1, p. 207), was applied in the area in June, 2002, and a paver patch was applied at the same location in September, 2002. According to Mr. Meilhede the number and type of repairs performed at the site in 1999, 2000, 2001 and 2002 "[i]ndicates we have a continuing problem that we're addressing" (Tr. 1, p. 208). In addition to the above, a paver patch was applied in the area where the subject accident occurred on April 30, 2003.

The witness testified that he was at the site of the dip on Route 7 at various times during the month of April, 2003. He also stated that during that period he was considering utilizing an emergency contract to repair the site as a result of his concern as to "[w]hether the amount of movement that was evident at that time required immediate emergency action" (Tr. 1, p. 211). Mr. Meilhede reviewed Exhibit 7 and testified that he recognized certain email messages contained within the Exhibit, which he had either authored or received. He identified the memorandum on page "5" of Exhibit 7 as correspondence dated May 13, 2002 addressed to J. DiFabio, DOT Regional Transportation Maintenance Engineer, Region 1. The memo forwards a copy of a plan prepared by the Geotechnical Engineering staff to repair the slope-related issues affecting the pavement in the eastbound lane of Route 7. Mr. Meilhede identified these plans as the result of his initial request in 1999 for a Geotechnical Engineering proposal to address drainage problems at the site of the accident. The witness confirmed that page "8" of Exhibit 7 contains an email authored by the witness on March 31, 2003 and addressed to Joseph DiFabio which states, in part:
"Route 7 slope failure by Man Of Kent: today I was out looking over the roads as part of my annual spring review and see that this area is moving significantly as the frost is leaving. Right now a large (12' by 50') segment has moved out (about 1") and down (about ½ to ¾"). Pat tells me the design and estimate for this work was done as a separate package so it should be easy to put it together should we need it under the repair or emergency contracts" (Exhibit 7, p. 8).
Mr. Meilhede confirmed that he observed significant movement in the pavement at the site and that this movement caused him concern. Although he reviewed the warning signs in place in the area he took no other action. He could not specifically identify at trial which signs were installed along the eastbound lane of Route 7 in the area. According to the witness, warning signs had been placed in the area sometime beginning in 1999 in response to the deterioration of the pavement resulting from the slope and drainage issues at the site. The conditions he observed on March 31, 2003 did not cause him to consider the posting of additional signage.

The witness next reviewed the email communication dated April 3, 2003 contained on page "9" of Exhibit 7. The first email is from Kevin Farley, the DOT Foreman whose area of responsibility included the accident site, in which Mr. Farley advised Mr. Meilhede that he had driven through the area that morning (April 3, 2003) and "it felt as if it has sunk and the cracks appear to be opening up" (id.). Mr. Farley inquired as to when repairs to the area would be made and suggested certain steps to gauge the amount of erosion occurring at the site. Mr. Meilhede's response, also contained on page 9 and dated April 3, 2003, indicates that the slope repair work on Route 7 would likely be delayed until 2004 and that he had warned Joseph DiFabio that an emergency contract might have to be invoked. Mr. Meilhede goes on to state "If it gets to be too bad a bump, you should go in and take the curse out with hot mix" (Tr. 1, p. 232). Mr. Meilhede testified that it was "impossible" (Tr. 1, p. 233) to obtain asphalt during the months of March and April, and that the ability to lay asphalt is also dependent upon the availability of a paver or grader. Regarding Exhibit B, the witness testified that the 2005 Highway Sufficiency Manual indicates a two-day average annual daily traffic of 7,800 vehicles on Route 7.

In an email to John Remmers dated April 11, 2003, Mr. Meilhede related that "This spring, as the frost has left the ground, an approximately 75' long, one lane wide segment of pavement has settled about an inch and moved out (south) about the same" (Exhibit 7, p. 10). Mr. Meilhede stated that the area had been paved twice and that the only alternative to the formal slope repair was to apply additional asphalt which, in turn, would add weight to an already unstable slope. Mr. Meilhede questioned whether repairs to this section of Route 7 could wait until 2004 and noted that repairs might have to be accomplished pursuant to an emergency repair contract sometime during 2003. The witness confirmed that page "11" of Exhibit 7 includes an email from Patrick Barnes, a DOT designer involved in the slope failure repair project on Route 7. In the email Mr. Barnes advises the witness that he drove through the site on Sunday April 13, 2003 and "the condition has worsened". Mr. Barnes notes that the Route 7 slope failure repair project would not be let until September 11, 2003, which meant the work could not actually be performed until the spring of 2004. On April 16, 2003 Mr. Meilhede authored an email to Kevin Farley (Exhibit 7, p. 12) in which he relates the following:
"I met with Region and MO Soils today to look over this area. Based on history, soil boring info, and field observations, it was decided that it is not necessary to invoke the emergency or repair contracts to install a permanent fix during this construction season. When we get this year's allocation, plan on overlaying the area to take the curse off the bump. It will be necessary to continue to monitor the area for signs of more significant movement until the 2004 contract fix is installed" (Exhibit 7, p. 12).
To this point no steps had been taken to repair the roadway surface at the accident site since application of the paver patch in September, 2002.

On April 16, 2003 Mr. Meilhede also received an email from John Remmers (Exhibit 7, p. 13) in which Mr. Remmers indicates that "the site should be stable enough to shim the area to maintain traffic and monitor the site . . . If any substantial movement occurs, other immediate solutions will be needed before the scheduled repair" (Exhibit 7, p. 13). Page 14 of Exhibit 7 contains two emails, the first from Mr. Meilhede to Joseph DiFabio and the second relating Mr. DiFabio's response. In his initial email the witness advised Mr. DiFabio that a citizen, Lester Goodermote, had called Kevin Farley "to complain that vehicles are bottoming out on Route 7 near Man of Kent". The witness's email to Mr. DiFabio also indicates that he would take steps to secure a paver and hot mix to install a paver patch in the area once both the equipment and asphalt were available. At trial Mr. Meilhede stated that he did not observe cars "bottoming out" at the accident site on Route 7 during his last visit there. When asked whether cars bottoming out on the roadway indicated that perhaps the signage in place was inadequate Mr. Meilhede responded "It's telling me that possibly cars aren't paying attention to the signs" (Tr. 1, p. 251).

Mr. Meilhede testified that during the reconstruction of the area of Route 7 where the accident occurred, presumably occurring in 2004, he observed that the total thickness of the roadway at that time was 18-24 inches. He stated that the normal thickness of asphalt is in the 9-10-inch range and estimated that between 1997 and 2002 an additional 4-5 inches of asphalt was overlaid in the area as a result of two grader patches, two paver patches and a hand patch. The witness agreed that he had testified at an examination before trial that he observed an overall thickness of "over two feet" during reconstruction of the area. He attributed the additional pavement thickness above the 13-14 inches constituting the original base and overlays occurring between 1997 and 2002 to resurfacing work performed between the original reconstruction date in 1985 and the beginning of the witnesses' involvement with the roadway in 1997.

The witness confirmed that he authored an email to Joseph DiFabio dated April 29, 2003, four days following claimant's accident, which read in part:
"FYI - Ted Conlan of AG's Investigation Unit called again this morning. He said he went out to Route 7 and observed traffic. Said of about 25 vehicles going by, it appeared that 5 had problems staying in lane after going over bump. He said it appeared to be those that hugged the centerline and did not slow down" (Exhibit 10).[4]

The witness testified that he considered 20% of cars having trouble staying in their lane a "dangerous condition". With regard to signage, Mr. Meilhede testified that a "bump" sign at the accident site, which had fallen down or disappeared, was replaced sometime prior to the accident date. Although it was supposed to be replaced with another "bump" sign, a "dip" sign was installed instead. The witness described the distinction between a "bump" and a "dip" as "an age-old debate" which is not adequately resolved by reference to the Manual of Uniform Traffic Control Devices (MUTCD) (Tr. 2, p. 12). According to the MUTCD, both signs are, in part, intended to warn of isolated bumps or dips in the pavement which could deflect a vehicle from its intended path of travel at prevailing driving speeds (Exhibit 11). The MUTCD establishes minimum distances for placement of such signs in advance of the condition against which they warn. In the case of the accident at issue here, the 45 mph advisory speed required placement of a "dip" or "bump" warning sign at a minimum distance of 255 feet from the condition (Exhibit 12). The witness testified that the "dip" sign depicted in Exhibit 3, photograph 10, was located 125 - 150 feet in advance of the dip or bump in the pavement of the eastbound lane of Route 7 traffic. Using standard conversions, he estimated that a vehicle traveling 60 mph (80 feet per second) would encounter the eastbound dip or bump a maximum of two seconds after passing the "dip" sign depicted in Exhibit 3, photograph 10. Mr. Meilhede agreed that a sign reading "bump ¼ mile" was placed approximately one-quarter mile in advance of the bump or dip in eastbound Route 7.
After providing additional information regarding his background and experience, the witness testified on cross-examination that Rensselaer County contains approximately 875 lane miles of State-maintained roadways.[5] He identified Exhibit I as various documents relating to the subject area of Route 7 which he assembled at the request of defense counsel. The Exhibit is divided into individually tabbed copies of supervisors' daily reports relating to repairs carried out at the accident site on Route 7 (Exhibit I, RR1 - RR7) and emails and other written communications relating to the site (Exhibit I, RC1 - RC22). The supervisors' reports for each of the seven repairs undertaken between 1999 and 2003 relate the nature of the repair, the total metric tons of asphalt applied, the location of the repair, the number of hours worked by each employee involved and, finally, identified equipment utilized in completing the task. According to the witness, what is commonly known as the highway construction season generally begins in late April and continues until "the ground is frozen or the air temperatures are below a certain point" (Tr. 2, p. 42).

With regard to the correspondence, emails and other documents contained within the correspondence section of Exhibit I, the witness testified that RC1 is an email he received from Wayne Johnson on February 26, 2002. RC1 transmits to the witness an email received by Mr. Johnson from the DOT main office containing an initial copy of the Route 7 slope repair plan. The witness forwarded the repair plan to Joseph DiFabio, the Regional Maintenance Engineer at the time. Mr. DiFabio responded to the witness by email dated February 27, 2002 in which he states that the Route 7 slope repair was too expensive to be considered that year and should be resubmitted "after a few months . . . Say June . . . but I gotta say I don't think I'll have the $" (Exhibit I, RC3).

Mr. Meilhede explained that each residency is able to undertake small projects such as asphalt resurfacing or installing culvert and drainage systems but that residencies do not have independent funds available for larger capital projects. Some larger projects can be performed by independent contractors through the issuance of a highway work order. Generally these projects are too large to be performed by residency personnel and too small to be included as stand-alone capital projects. Maintenance repair contracts are paid for by capital project funds maintained in each region. All eight residencies within Region 1 compete to fund projects through the regional capital project fund. RC4 of Exhibit I includes an email dated April 5, 2002 from the witness to Joseph DiFabio relating to his proposal, a month earlier, that the Route 7 slope repair project be undertaken as a maintenance repair contract. In this email Mr. Meilhede relates that the condition of the pavement had continued to worsen, stating the following:
"I went out there last week and the paver patch we put on last year no longer hides the cracks and settlement in the road. There is an area about 110 feet long and one lane wide that has settled and shifted. It has a ½ inch wide transverse crack at the west end (full width of lane) and a series of ¼ to ½ inch wide cracks throughout its length that run parallel to the centerline. I would like to get this added to a job as soon as possible or we will have to add more weight to the bad soil in order to maintain a somewhat decent riding surface (it is marked with a ‛permanent' BUMP sign)" (Exhibit I, RC4).
RC5 is a memorandum dated May 13, 2002 in which Mr. Meilhede recommends to Joseph DiFabio that the Route 7 slope repair project be included as a Capital Program Request (Exhibit I, RC5). The next piece of correspondence included within Exhibit I is an email from the witness to Joseph DiFabio dated March 31, 2003 in which he notes that the Route 7 slope repair project would be incorporated into other projects and that a contract would not be let until September 11, 2003 (Exhibit I, RC6). Mr. Meilhede related that letting of the contract in September, 2003 rendered it highly likely that no work would be performed until sometime in 2004. In addition, he testified at trial that the area where the work on Route 7 would be performed was adjacent to a trout stream which would prevent the start of work until sometime in July, 2004. RC7 of Exhibit I is an email from Kevin Farley dated April 3, 2003 advising the witness that the pavement in the area of Route 7 where the slope repair work would be performed had sunk and cracks appeared to be opening. Mr. Farley inquires as to the timeline for repairs to the area. In RC8 of Exhibit I Mr. Meilhede responds to Kevin Farley and agrees that the area is "sinking and moving out". Mr. Meilhede advises "At this point, all we can do is watch it. If it gets to be too bad a bump, you should go in and take the curse out with hot mix" (Exhibit I, RC8). In RC9 dated April 11, 2003 Mr. Meilhede asks John Remmers, the Region 1 Geotechnical Engineer, whether the slope repair work on Route 7 can wait until 2004. If in Mr. Remmers' opinion the work should not be delayed, Mr. Meilhede expressed his intention to undertake the work pursuant to an emergency repair contract (Exhibit I, RC9). In his response dated April 16, 2003 (Exhibit I, RC13) Mr. Remmers indicates that after visiting the site with the witness and Jim Reinhold it was decided that the area was stable enough to be shimmed and monitored. He stated "If any substantial movement occurs, other immediate solutions will be needed before the scheduled repair". According to the witness an emergency repair contract requires an on-call contractor to be on site within 24 hours.

RC10 is an email dated April 14, 2003 in which Patrick Barnes informs the witness that he had driven past the slope repair project area on Route 7 and "the condition has worsened" (Exhibit I, RC10). Mr. Meilhede responded by email dated April 14, 2003 advising Mr. Barnes that he had already requested an assessment of whether work on the slope repair project could wait until 2004 (Exhibit I, RC11). On April 16, 2003 the witness advised Kevin Farley that it had been determined that the slope repair project on Route 7 would not be performed during the 2003 construction season. The witness suggests to Mr. Farley that the area should be monitored for signs of movement until work could begin sometime in 2004 (Exhibit I, RC12). In RC14, an email dated April 21, 2003, Mr. Meilhede advises Joseph DiFabio that Lester Goodermote had complained of vehicles bottoming out on Route 7 and that additional funds may be necessary to obtain hot mix for use in applying a paver patch once the appropriate equipment was available (Exhibit I, RC14). Mr. DiFabio responded by correspondence, also dated April 21, 2003, in which he advises the witness to "Make plans to fix it" (Exhibit I, RC15).

On April 23, 2003 the witness requested that Mike Robert secure a paver in order to perform asphalt repair work at the subject area on Route 7 (Exhibit I, RC16). Mr. Meilhede testified at trial that the residencies which comprise Region 1 share two pavers. According to the witness a paver was obtained and a paver patch was applied on April 30, 2003 (Tr. 1, pp. 209-210).

Mr. Meilhede testified that on the morning of April 25, 2003 he went to the scene of the claimant's accident to document conditions at the site pursuant to standard Region 1 practices following serious automobile accidents. While at the site Mr. Meilhede prepared drawings and sketches of site conditions and took measurements and photographs. In this regard he first established a base reference mark "approximately a hundred feet from the pavement, the start of the pavement patches" (Tr. 2, p. 72). He noted four signs located along the eastbound lane of Route 7 traffic from a point beginning 1,200 feet west of the reference mark. The first sign was a graphic hill sign located 1,160 feet west of the reference marker which included a "next one mile" supplemental panel. Proceeding in an eastbound direction the next sign was a thirty-inch by thirty- inch "bump" warning sign containing a "¼ mile ahead" supplemental panel located 975 feet west of the reference marker. The next sign encountered by eastbound travelers was a right curve warning sign with a "45 mph" supplemental speed panel that was located 385 feet west of the reference marker established by the witness. Seventy-one feet east of the marker was a thirty-inch by thirty- inch "dip" warning sign (Tr. 2, pp. 76, 77). Finally, an eighteen-inch by eighteen-inch yellow diamond-shaped "object marker" was located 191 feet east of the reference marker (Tr. 2, p. 80). Mr. Meilhede also created a sketch depicting pavement conditions as well as a graphic cross-section of the roadway at a point 252 feet east of the originally established reference marker. In addition, he took a series of 21 photographs, at 100-foot intervals, from a point beginning 1,500 feet west of the reference marker and continuing to a point 500 feet east of the marker.

According to the witness DOT residencies do not have the funding, expertise or equipment to perform slope failure repairs such as that required at the accident site on Route 7. Instead, the Route 7 slope repair was included with other projects and let as part of a single contract. The slope repair project was completed on October 29, 2004.

On redirect examination the witness testified that he periodically checked the status of his 1999 request that the Geotechnical Engineering staff at DOT prepare a slope repair plan for the accident site on Route 7. He described his interaction with geotechnical personnel involved in developing plans for the Route 7 slope repair as informal and including "a phone call or a meeting in the hall or whatever" (Tr. 2, p. 106). He agreed that difficulties in funding such projects require that a corrective plan be in place as soon as possible so that funding may be obtained and the work may be performed in a timely manner.

Mr. Meilhede acknowledged that it is likely problems with the slope at or near the accident site on Route 7 were experienced prior to 1999 in light of the fact that a contract to perform "drain and ditch work" (Tr. 2, p. 108) was completed on November 7, 1997. He agreed that his observation, that the thickness of the roadway at the time of the 2004 slope repair was between 18 and 24 inches, indicates it is likely that asphalt overlays were applied to the area prior to the beginning of the claimant's experience with the roadway in 1999.

Mr. Meilhede reiterated his prior testimony that pavers available to Region 1 are shared by the residencies. He also testified that the availability of asphalt is dependent upon the time of year and that "we can't get asphalt in the middle of winter" (Tr. 2, p. 112). He confirmed that he began inquiring with regard to the use of an emergency contract to perform the slope repair work on Route 7 in late March or early April, 2003. At that time, the decision as to whether or not a project could be undertaken pursuant to emergency contract procedures was the responsibility of Joseph DiFabio, the Regional Maintenance Engineer. Although work performed pursuant to an emergency contract is more costly, he acknowledged that an emergency contract could have been used, depending upon the availability of asphalt, to perform a short-term repair such as applying an asphalt overlay to the roadway pending execution of a long-term slope repair plan.

The last pavement repair performed at the accident site prior to April 25, 2003 was a paver patch completed in September, 2002. Mr. Meilhede related that as the frost left the ground in March, 2003 the pavement began to move, raising a concern that the highway subbase was deteriorating. Mr. Meilhede stated that he evaluated signage in the area upon observing the sinking and shifting of Route 7, and determined that no changes were required. He acknowledged that a second "bump" sign was intended to be installed at the point on Route 7 where the "dip" sign was located. Although he described placement of the "dip" sign instead of a "bump" sign at that location as "not correct" (Tr. 2, p. 124), he previously testified on cross-examination that the MUTCD Devices make no distinction between the use of "bump" and "dip" signs.

The claimant's next witness was Ernest Gailor. Mr. Gailor testified that he is a Licensed Engineer and related his background and experience in the area of highway construction, engineering and maintenance.

After reviewing photographic Exhibits 3-1 and 3-2, Mr. Gailor described the scenes depicted as evidencing a subbase failure which caused the asphalt pavement to "sink and pull or break open" (Tr. 3, p. 167). He stated that such conditions could impact the trackability of vehicles transiting the area and that the scenes depicted in the photographic exhibits are a cause for concern given "that the speed is 55 on this road" (Tr. 3, p. 168). Although there is a 45 mph advisory speed applicable to the curved portions of the subject roadway, Mr. Gailor testified that eastbound vehicles would only encounter the road conditions depicted in Exhibits 3-1 and 3-2 while exiting a curve. While he acknowledged that repair of the slope and reconstruction of the roadway is in all likelihood a "capital project" due to the substantial funding levels required (Tr. 3, p. 171), it was his view that the conditions evident in Exhibits 3-1 and 3-2 could be remedied by application of a pavement patch until funds were available to address the underlying causes of the condition. Mr. Gailor testified that the number and frequency of repairs to the pavement at the accident site on Route 7 between October, 1999 and the date of claimant's accident on April 25, 2003 indicate an ongoing problem with the road surface. In his opinion, the conditions depicted in the Exhibits 3-1 and 3-2 interrupted the tracking of the wheels of the claimant's vehicle as she proceeded through a downhill curve to the right, causing her vehicle to enter the westbound lane of Route 7 traffic. Mr. Gailor testified that 63 mph would not be an unsafe speed for negotiating the curve at the accident site "in a newer vehicle where the suspensions are better today, the tires are better today" (Tr. 3, p. 184). The witness noted that the claimant had maintained control of her vehicle while negotiating prior curves on the downhill slope approaching the accident site until encountering the deteriorated pavement "mid-curve" (Tr. 3, p. 185). He also testified that had the claimant fallen asleep while entering the curve "she would have been farther off the curve" (Tr. 3, p. 187).

Mr. Gailor testified that at a prevailing speed of 45 mph the "dip" sign was required to be placed 255 feet from the hazard against which it warned. At 55 mph the sign was required to be posted at least 200 feet from the hazard. Placement of the sign at a location closer to the hazard than the distances described above would not adequately consider a vehicle operator's reaction time of 1 - 2½ seconds. Mr. Gailor acknowledged upon questioning by the Court that reaction time should be judged from the point at which the driver first observes the warning sign. In his view, the combination of the sign indicating "bump ¼ mile", the "dip" sign and the object marker were inadequate to warn a driver of the approaching condition. In this regard the witness testified:
"People tend to ignore signs after they have traveled a couple of seconds and they don't see whatever they were warning against. And a perception of a bump might be different than a perception of what a dip is" (Tr. 3, p. 199).
He concluded his direct testimony by stating that it is possible to post a warning sign at too great a distance from the hazard to which it relates in that it may confuse the driver seeking to identify the hazard.

On cross-examination the witness cited section 200.1 (c) of the MUTCD in support of his view that inappropriate placement of warning signs may prove harmful. That section of the MUTCD states, in part, "A standard device used where inappropriate may be as harmful as a nonstandard device, because misuse may result in disrespect of the control devices" (Tr. 3, p. 202). He agreed that section 200.1 (c) does not specifically address placement of a sign one-quarter of a mile from the condition it warns against. Mr. Gailor acknowledged that he did not visit the accident site prior to its reconstruction in 2004 and that his opinion regarding the condition of the roadway is primarily a result of his review of the photographic evidence.

The witness testified that a capital project such as that planned at the accident site would require extensive soil testing and removal of the roadbed. Removal of the roadbed would require lane closures. He acknowledged that capital projects in many instances take a number of years to develop and implement. In the interim, short-term repairs and the posting of additional warning signs would be appropriate. He acknowledged that he had not reviewed the geological study conducted at the accident site on Route 7 and that a substantial slope failure occurred in Delmar, New York in early 2000. He described the slope failure in Delmar as "much more dynamic" (Tr. 3, p. 213) than that at the accident site and recognized that the scope of the Delmar slope failure required a substantial investment of DOT personnel and equipment to remedy.

When asked about his statement on direct that an individual familiar with the vehicle he or she was operating could safely negotiate the curve where the accident occurred at a speed of 60 mph, Mr. Gailor stated that he had "very little knowledge" (Tr. 3, p. 214) concerning the vehicle Ms. Shon was operating and that lack of familiarity with the vehicle is a factor to be considered in determining the cause of the accident. With regard to signage, Mr. Gailor agreed that the hill warning signs located west of the accident site are intended as warnings to both truckers and other motorists that they should "slow down and be prepared" (Tr. 3, p. 217). He described the "bump ¼ mile ahead", the "dip" and object markers posted along the eastbound lane of Route 7 as warning signs providing a driver "information" as to how they should approach the highway (Tr. 3, p. 218).

Mr. Gailor stated that he was not aware of the point in the roadway at which the claimant's vehicle left the eastbound lane and entered the westbound lane of travel or how long it remained in the westbound lane prior to coming into contact with the State Police vehicle. Upon reviewing Exhibit N, a diagram prepared by the New York State Police Reconstruction Unit (Troop G), the witness agreed that the location of the tire mark attributed to vehicle number two appears to indicate that the claimant successfully exited the dip in the eastbound lane of Route 7 and continued in that lane of travel for some distance before crossing the center line and entering the westbound lane.

On redirect examination the witness testified that the Department of Transportation was aware of subsoil problems at or near the accident site beginning in the early 1990s. On re-cross-examination he acknowledged that a contract for slope repairs performed at the accident site was accepted on November 7, 1997.

The claimant rested her case at the conclusion of Mr. Gailor's testimony.

The defendant called Donald Dwyer to the stand. Mr. Dwyer testified that he is a Professional Engineer and has been employed by the New York State Department of Transportation since 1981. He is currently an Associate Soils Engineer in the Highway Design and Construction Section, which acts as a liaison between geotechnical engineers based in each of the eleven DOT regions and the main Geotechnical Engineering Bureau based in Albany, New York. Referencing Exhibit G-2, the witness testified that the Geotechnical Engineering Bureau first became involved with the subject area of Route 7 through an April 11, 1999 memorandum from Jan Meilhede to Wayne Johnson, Region 1 Geotechnical Engineer, requesting that a field review be conducted of four specific areas within Rensselaer County. A memorandum prepared by Mr. Johnson (Exhibit G-3) indicates that he and Ken Murray, a Geotechnical Engineering Bureau liaison, inspected each of the four sites listed in Mr. Meilhede's April 1999 memo. With regard to the area of Route 7 between reference markers 2185 and 2186, the memorandum dated June 3, 1999 recommended that the pavement be milled and resurfaced and that a slope indicator be installed to monitor movement of the slope at that location. According to the witness a slope indicator was, in fact, installed at the site in April, 2000 and monitored on a monthly basis thereafter. The slope indicator ceased to function between March and April, 2001 (Tr. 2, p. 147). He described a major slope failure on Delaware Avenue in Delmar, New York which occurred in the spring of 2000 and required substantial personnel to remedy. He estimated the total cost of the Delaware Avenue slope repair project at approximately $15,000,000.

Mr. Dwyer testified that the Geotechnical Engineering Bureau produced design recommendations relative to the slope repair work at reference marker 2185 on Route 7 in Rensselaer County. The final site inspection was conducted on February 4, 2002 and a formal design recommendation, elevations, cost estimates and plans for the repair project were provided to the witness via a memorandum from Gary Douglas of the DOT Roadway Foundations Section on February 21, 2002. Mr. Dwyer forwarded the proposal to Wayne Johnson, the Region 1 Geotechnical Engineer, by memorandum dated February 22, 2002. Geotechnical Engineering personnel had no further involvement with the Route 7 project during calendar year 2002. In April, 2003 Geotechnical Engineering staff visited the site in response to an April 11, 2003 memorandum from Jan Meilhede remarking that letting of the Route 7 project had been delayed until September, noting that the condition of the roadway had worsened and inquiring "whether this segment can wait until 2004 to be fixed" (Exhibit G-9). As a result of the site inspection conducted by Jim Reinhold and John Remmers on April 16, 2003 it was determined that the movement of the roadway was the result of settling due to frost heave and that the full depth repair of the roadway could await execution of the general repair contract sometime during the 2004 construction season. A report of the inspection concludes by relating "The residency will continue to monitor the distressed area and will ease the vertical deformation with an asphalt layer when funds for asphalt become available" (Exhibit G-12).

On cross-examination Mr. Dwyer testified that there was "some indication" (Tr. 2, p. 158) that the subsurface of Route 7 at the accident site was failing as early as 1990. A shallow boring was taken in the area in 1996. A deeper boring was taken and a slope indicator was installed in 2000. The slope indicator ceased operation in April, 2001 when the movement of the soil made it impossible to reinstall the indicator because "the tube that the slope indicator was in had deformed to a sufficient amount where the machine could no longer be lowered into the hold all the way" (Tr. 2, p. 166). Mr. Dwyer agreed that movement and deterioration of the roadway was attributable to both subsurface conditions at the site as well as frost heaves in the spring. He testified that he was familiar with the 2004 repair project carried out at the site and that the area was excavated to a depth of approximately 18 feet, which he acknowledged was "a substantial excavation" (Tr. 2, p. 162).

The next witness called by the defendant was Robert Hansen. He testified that he became employed by the Department of Transportation in May, 1973 and has managed capital programs within DOT, Region 1, since 1984.

Mr. Hansen relates that he has substantial experience in the area of funding DOT maintenance and construction projects and that he was involved in securing capital funds

for a slope stabilization project on Route 7 near reference marker 2185. He identified Exhibit J as containing documents relating to the Route 7 project prepared or created in the Office of Planning and Program Management. Mr. Hansen was the Region 1 Capital Program Coordinator in the spring of 2003. The witness testified that "hundreds of projects" (Tr. 2, p. 186) are at some stage of construction or development at any one time within Region 1. He related that the various DOT Regions compete for capital program funds to develop and complete proposed regional projects.

Mr. Hansen first became involved with a program to replace a bridge over Taborton Creek in Rensselaer County in August, 2000 (Exhibit J-Plan 1). On September 19, 2002 the Regional Capital Program Committee determined to add the slope repair project on Route 7 as a part of the Taborton Creek Bridge repair project (Exhibit J - Plan 2). Project plans were submitted to the main DOT office in December, 2002 and a contract award was expected in the spring of 2003. Mr. Hansen testified that as a result of diversion of funds to other more immediate projects, he was informed that only two projects could be let during the first six months of State fiscal year 2003 - 2004. Given this restriction on the letting of projects within the region, the witness determined to utilize available funds to address a resurfacing project near Exit 15 of the Northway and a separate bridge project, which he viewed as higher priorities than the Taborton Bridge/Route 7 slope repair project. He estimated that ten projects were postponed or rescheduled as a result of the limited funding available during the early months of fiscal year 2003 - 2004. Letting of the Taborton Bridge contract, originally scheduled for March 20, 2003, was delayed and the project was designated as a priority project to be let between April 1 and October 1, 2003.

Minutes of a Regular Program Update Meeting on April 21, 2003 indicate that the Taborton Bridge/Route 7 slope repair project was scheduled to be let on September 11, 2003 (Exhibit J-Plan 6). Mr. Hansen concluded his direct testimony by stating that the delays which occurred in implementing the slope repair project at Route 7 were the result of funding restrictions and the need to establish priorities among projects within Region 1.

On cross-examination Mr. Hansen testified that winter mix can be used during winter months to temporarily fill potholes.

Bernard Davock was called to the stand by the defendant and testified that he is a part-time police officer in the Village of Hoosick Falls, New York. He is employed by the Rensselaer County Bureau of Emergency Services on a full-time basis.

Officer Davock testified that he was on duty as a member of the Hoosick Falls Police Department on April 25, 2003. On that date, in the early morning hours, he met with New York State Troopers Lewis and Cenicola who were inquiring as to the address of a burglary suspect. Officer Davock provided the state troopers the information requested and the troopers then left intending to go to the suspect's address to see if he was at home. Officer Davock continued his patrol until he overheard a radio call from one of the troopers relating the traffic accident on Route 7. Officer Davock notified his dispatcher and responded to the scene of the accident.

Upon arriving at the scene Officer Davock first went to the State Police vehicle and then proceeded to the claimant's vehicle where he observed Ms. Shon sitting in the driver seat. She was leaning forward with her head down and he observed what he believed was a compound fracture of her left leg. Officer Davock noticed that the driver side door was locked and knocked on the window but elicited no response from the claimant. He then went around to the passenger side and entered the vehicle through the passenger side front door (Tr. 2, p. 214). The witness asked the claimant whether she had consumed any alcohol or drugs that evening. The claimant denied any alcohol or drug use and the witness then entered the vehicle's backseat where he positioned himself behind Ms. Shon and held her head in an attempt to stabilize it. Officer Davock, who was an EMT with a local ambulance squad in April, 2003, testified that he observed no injuries to the claimant's head. According to the witness, while he was in the front seat questioning the claimant she would, in between questions, "put her head back down and went back to sleep, closed her eyes and appeared to be unresponsive again" (Tr. 2, p. 217). While the claimant did provide appropriate responses to questions regarding her name, where she was going, etc., he remained concerned regarding the possibility of a head injury because the claimant appeared to be falling asleep between questions. As a result, he moved to the backseat and stabilized her head. He did not from this vantage point notice any head injuries but expressed his concern to the claimant regarding her level of consciousness. According to the witness the claimant responded by saying "she was sorry, she was tired, was very tired" (Tr. 2, p. 221). Officer Davock testified "I just asked her if she was, you know, tired before the accident, and she said, yes, she was tired before the accident" (Tr. 2, p. 221). The witness exited the backseat of claimant's vehicle following the arrival of emergency crews. He did not investigate the accident nor did he create any reports in connection therewith.

On cross-examination Officer Davock testified that he recalled seeing blood in the claimant's vehicle but could not recall at the time of trial whether there was blood on the air bag, which had deployed. He observed no evidence that the claimant had consumed alcohol that evening and testified that the claimant was generally responsive to his questions. When asked to elaborate on his testimony on direct examination that the claimant "kept on going back to sleep or putting her head down" between questions (Tr. 2, p. 219) the officer stated "She had her head down on her chest and she had, was making a snoring noise, like hard to breath[e] her head down like that" (Tr. 2, p. 227). The witness agreed that he had no information to indicate the claimant fell asleep while driving her vehicle prior to her accident.

On redirect examination Officer Davock testified that he clearly recalled the events which took place at the accident site on April 25, 2003.

Reed G. Sholtes testified that he has been employed by the New York State Department of Transportation since April, 1990. Mr. Sholtes has supervised the Region 1 Traffic Operations Section since 1994. His duties include monitoring signage along state highways within Region 1, truck access issues and accident studies.

Mr. Sholtes identified Exhibit A as a collection of correspondence and accident data maintained by the Department of Transportation relative to that portion of Route 7 at reference marker 2185. The claimant's accident occurred between reference markers 2185 and 2186.

Exhibit A-1 concerns a study of Route 7 conducted by the Department of Transportation as a result of correspondence received from the Chairperson of the Rensselaer County Legislature dated April 22, 1993. In her correspondence Ms. Marilyn Douglas requests a study to determine whether warning signs and advisory speed limits posted in the area were appropriate. Mr. Sholtes related that as part of a traffic engineering and safety investigation, DOT personnel reviewed signage and performed a ball bank test which is used to determine appropriate speeds for curves on a roadway. Mr. Sholtes testified and Exhibit A-1 relates that no remedial action was taken with regard to either signage or posted speeds as a result of the investigation conducted at the request of Ms. Douglas.

A second study conducted in 1995 (Exhibit A-2) examined advisory speeds in an area of Route 7 which included reference markers 2185 and 2186. Ball bank tests were conducted on curves between reference markers 2180 and 2188 and curve warning signs were reviewed. As a result of the study the advisory speed limit on four curves were reduced from 50 mph to 45 mph, including curves in the area between reference markers 2185 and 2186.

A third study of the area of Route 7 including the accident site was conducted in 1998 (Exhibit A-3) pursuant to a request received from a Rensselaer County Legislator noting recent accidents involving eastbound trucks on Route 7 and requesting an examination of a two-mile stretch of Route 7 between Fox Hollow Road and the junction of Route 22, including reference markers 2185 and 2186. In response to the request, curve warning signs were reviewed, ball bank tests were conducted on all curves and an accident history for the portion of Route 7 between reference markers 2180 and 2198 was prepared. The accident history reveals that in a four-year period there were a total of 40 accidents within the two-mile span of Route 7 studied. Only two of these accidents involved head-on collisions, neither of which occurred in the area of Route 7 between reference markers 2185 and 2186. As a result of the traffic engineering study, arrow panels and chevrons were installed in the area between reference markers 2191 and 2192. No action was taken with regard to the area of Route7 between reference markers 2185 and 2186.

In June, 1998 Margaret Crucetti wrote to express her concern regarding a series of tractor trailer accidents on Route 7 (Exhibit A-4). In response to Ms. Crucetti's concerns, a ball bank test and a review of accident data were conducted by department personnel and four thirty-inch by thirty- inch reflectorized hill warning signs were installed along the eastbound lane of Route 7. Three of the signs were posted in advance of reference marker 2185 at reference markers 2173, 2178 and 2183. The fourth hill warning sign was posted at reference marker 2188. Mr. Sholtes testified that an eastbound vehicle approaching reference marker 2185 on Route 7 would encounter three hill warning signs, a "bump ¼ mile" sign, a curve warning sign, a supplemental 45 mph advisory speed sign, a "dip" sign and a yellow diamond shaped object marker. He stated that the "dip" and "bump ¼ mile" signs were properly placed pursuant to the MUTCD. Finally, the witness testified that at the request of the defendant's counsel he prepared an accident history for a
3/10
-mile-long section of Route 7 between reference markers 2185 and 2187 covering the period January 1, 2000 to April 30, 2003 (Exhibit A-5). The accident history revealed only one reported accident, that of the claimant, on April 25, 2003.

On cross-examination Mr. Sholtes acknowledged that the road history which was prepared at defense counsel's request provides no insight with regard to the condition of the roadway surface on the date of claimant's accident. He reviewed Exhibit 10, a memorandum dated April 29, 2003 in which the witness advises Joseph DiFabio that Ted Conlan of the Attorney General's Office reported observing five of twenty-five vehicles experiencing "problems staying in lane after going over bump" in the eastbound lane of Route 7 (Tr. 3, p. 53). Mr. Sholtes stated that twenty percent of vehicles experiencing difficulty in negotiating the bump was a high percentage. He also acknowledged that vehicles bottoming out on Route 7 in the area of claimant's accident as related by Lester Goodermote (see Exhibit 7) was not a normal circumstance and one which would likely be investigated by DOT maintenance personnel.

When asked whether a bump or dip in a "curvy" portion of a roadway would make the area more dangerous, Mr. Sholtes responded "it depends on the nature of the bump or dip" (Tr. 3, p. 62). Mr. Sholtes did not actually observe the bump or dip at issue in this case.

The witness testified that the most recent ball bank test performed on Route 7 prior to the claimant's accident indicated a reading of eight degrees for eastbound traffic at reference markers 2184 - 2185. The ball bank test was performed at a speed of 45 mph in an attempt to determine whether the existing 45 mph supplemental speed panel was appropriate. A reading which exceeds 10% on the ball bank test would demonstrate the need for a lower advisory speed.

Using the diagram prepared by Jan Meilhede, the witness testified that the "dip" sign on the eastbound lane of Route 7 was placed approximately 141 feet from the point at which the crack noted by Mr. Meilhede entered the eastbound travel lane. He acknowledged that the MUTCD requires that where the prevailing speed limit is 55 mph such a sign be posted a minimum of 200 ft. in advance of the condition against which the sign warns. The minimum posting distance for the "dip" sign at a prevailing speed limit of 45 mph is 255 feet. In both instances the "dip" sign immediately preceding the "bump" or "dip" at the subject area on Route 7 failed to meet the required minimum distances established by the MUTCD. He testified, however, that the "bump ¼ mile" sign posted before the "dip" sign on Route 7 met the MUTCD minimum posting requirements and served the same function as the "dip" sign in providing warning of the upcoming road condition.

On redirect examination Mr. Sholtes acknowledged that the combination of the "bump ¼ mile" and "dip" signs could possibly result in confusion for motorists.

New York State Trooper Michael Macintosh was called to the stand as a witness for the defendant. Mr. Macintosh graduated from the New York State Police Academy in 1989 and became a Collision Reconstruction Officer in December, 1990 following completion of a three-week training course. Between 1990 and 2002 Trooper Macintosh divided his time between normal patrol duties and collision reconstruction. He became a full time collision reconstructionist for the New York State Police in 2002.

Trooper Macintosh related that he is trained in and operates a device known as an Electronic Total Work Station (ETWS), which he described as a piece of equipment which sits on a tripod and measures distances as well as horizontal and vertical angles at an accident site. Information garnered utilizing the ETWS is combined and sorted using an on-board computer which is later used to create a scale drawing. The system is normally operated by two officers. The first operates the ETWS and the second officer utilizes a "present pole" (Tr. 3, p. 96) at particular points around the accident location.

Trooper Macintosh and Trooper Rocco Oppedisano responded to the claimant's accident on the morning of April 25, 2003. Upon his arrival at the scene, Trooper Macintosh and Trooper Oppedisano set up the ETWS and, after performing the required preliminary steps, compiled data relative to various points around the accident scene. He explained that data collected by the ETWS is confirmed by comparing the distance computed by the system relative to a selected reference marker with measurements taken using a manual tape measure. He identified Exhibit N as a copy of the collision diagram prepared at the scene using the ETWS (see also Exhibit K).

Trooper Macintosh testified that using the ETWS, he located the beginning and end of the "depression and imperfection of the roadway" (Tr. 3, p. 108), the final resting place of both vehicles involved in claimant's accident and a pre-impact skid mark within the eastbound lane of Route 7 traffic which he attributed to the right front tire of the claimant's vehicle. The skid mark shown on Exhibit N is also depicted in Exhibit 3-9. According to the Officer, gouges in the roadway caused by the suspension of the claimant's vehicle indicated that the point of maximum engagement between the vehicles involved occurred in the westbound lane of Route 7 traffic. The witness testified that he determined, using the ETWS software, that the distance between the eastern edge of the depression in the roadway to the point of maximum engagement was approximately 218 feet, a distance a vehicle traveling 60 mph (88 feet per second) would cover in approximately 2 ½ seconds (Tr. 3, p. 116).

Trooper Macintosh testified that the Collision Reconstruction Report he prepared following the accident cited three contributing factors to the accident, which were listed in descending order of importance. The report states that "The cause of this collision was the failure of V-2 [claimant's vehicle] to keep right and remain in its own lane of travel" (Exhibit 5, p. 7). Listed as contributing factors are (1) "excessive speed" (id.), (2) "that operator of V-2 appears to have been driving while in a tired or fatigued condition" and (3) "that there was a dip in the roadway which caused the vehicle to drop, and the suspension to sway and adjust" (Exhibit 5, p. 8). The witness testified that excessive speed of the claimant's vehicle was a primary contributing factor to her failure to keep right.

On cross-examination the witness agreed his analysis determined that the claimant remained in the eastbound lane of traffic until the point where she applied her brakes as indicated by the pre-impact skid mark noted on the the collision reconstruction diagram. He agreed that claimant's speed was, apparently, therefore, not so excessive that she was unable to maintain her track while negotiating the right-hand curve where the accident occurred. He agreed that claimant's speed was "safe for the road" (Tr. 3, p. 127) and that her speed only became unsafe when she encountered the dip or bump in the eastbound lane of Route 7.

Trooper Macintosh admitted that he had no evidence the claimant had fallen asleep while operating her vehicle and that such a circumstance is unlikely given that claimant had successfully negotiated the early portions of the curve. Trooper Macintosh testified that he did not measure the distance between the eastern edge of the dip and the point at which the claimant activated her brakes.

The witness agreed that Exhibit 3-1 depicts "several erratic formations in that road" (Tr. 3, p. 134). He believed the condition of the roadway was a contributing factor to the claimant's accident although he was unable to identify which specific roadway defect contributed to the loss of control of the claimant's vehicle.

On redirect examination Trooper Macintosh testified that a safe speed for negotiating a curve may not be the same as the maximum speed at which a vehicle can drive through the curve while remaining in its lane of traffic. A vehicle's reaction to imperfections in the road surface would likely be affected by the speed of the vehicle. Utilizing the schematic prepared as part of his reconstruction analysis, the witness estimated the distance from the eastern edge of the dip to the beginning of the pre-impact skid mark in the eastbound lane of traffic at approximately 130 feet. He stated that the claimant was reacting to the effects of the roadway surface upon her vehicle as it traveled the 130- foot distance prior to application of the brakes. He described the claimant's application of the brakes as an inappropriate reaction to her encounter with the dip, which caused her vehicle to leave the eastbound lane of traffic and enter the westbound lane where it came in contact with the westbound State Police vehicle (Tr. 3, pp. 144-145).

On re-cross-examination Trooper Macintosh agreed that the claimant's vehicle traveling at approximately 60 mph would cover the 130-foot distance between the eastern edge of the dip and the beginning of the pre-impact skid mark in approximately 1.5 seconds and that such a reaction period is well within recognized human reaction times. He testified to his belief that the claimant's vehicle was equipped with antilock brakes which he stated should "not leave heavy skid marks" under normal conditions (Tr. 3, p. 153). This factor led the witness to conclude "I would have to say she could have put them (brakes) on at any point and time during that event" (Tr. 3, p. 154).

The defendant called Alden P. Gaudreau to the stand. Mr. Gaudreau testified that he is both self-employed and a member of the Hudson Valley Community College Department of Mechanical Engineering Technology. Mr. Gaudreau, who estimated that he has been involved in approximately 1,000 accident reconstruction investigations, testified that he replaced the civil engineer originally in charge of investigating the claimant's accident following that individual's death in August, 2007. In addition to reviewing photographs and police accident reports the witness collected data relative to the 2001 four-door Honda Civic vehicle the claimant was operating on April 25, 2003. Specifically, the witness obtained information from the Honda Corporation website regarding the suspension characteristics of a 2001 Honda Civic. He stated that vehicles of that year and type are equipped with a four-wheel independent suspension and were tested at the Honda Corporation's Tochigi proving ground in Japan. As part of the testing, vehicles were driven on a track containing four-inch bumps followed by four-inch dips spaced 30 inches apart.

Based upon his knowledge of the characteristics of a 2001 Honda Civic the witness testified, with a reasonable degree of engineering certainty, that the claimant's vehicle should have been able to safely negotiate the depression in the roadway without being deflected into the westbound lane. He agreed with the prior testimony of Ernest Gailor that the application of a patch to the roadway was an appropriate short-term solution to maintaining a safe riding surface.

On cross-examination the witness agreed that a short-term pavement patch should be monitored following application to ensure against subsequent changes which would require additional work.

The defendant rested its case at the conclusion of Mr. Gaudreau's testimony and defense counsel moved to dismiss for claimant's failure to establish a prima facie case of negligence.

The State of New York is not an insurer of the safety of its highways and liability will not be presumed from the mere happening of an accident (Stuart-Bullock v State of New York, 38 AD2d 626, 628 [1971], affd 33 NY2d 418 [1974]). Rather, the State is subject to a nondelegable duty to design, construct and maintain its highways in a reasonably safe condition (Lopes v Rostad, 45 NY2d 617, 623 [1978]; Tomassi v Town of Union, 46 NY2d 91 [1978]). This duty is satisfied "so long as a highway may be said to be reasonably safe for people who obey the rules of the road" considering "the traffic conditions apprehended, the terrain encountered, fiscal practicality and a host of other criteria" (Tomassi, 46 NY2d at 97). In Friedman v State of New York (67 NY2d 271 [1986]) the Court of Appeals explained application of the general rule related above where matters of traffic design and engineering are at issue:
"While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality's planning and decision-making functions. Thus, in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision (Alexander v Eldred, 63 NY2d 460, 465-466; Weiss v Fote, 7 NY2d 579, 585-586, supra). In the seminal Weiss case, we recognized that ‛[t]o accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts' (7 NY2d, at pp 585-586, supra). The Weiss court examined a municipality's decision to design a traffic light with a four-second interval between changing signals, and concluded that there was no indication that ‛due care was not exercised in the preparation of the design or that no reasonable official could have adopted it' (id., at p 586). We went on to note that ‛something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public' (id., at p 588).

Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan (Alexander v Eldred, 63 NY2d 460, 466, supra [municipality's traffic engineer's mistaken belief that the city had no authority to place a stop sign on a private road]). Once the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger (Heffler v State of New York, 96 AD2d 926, 927; Sanford v State of New York, 94 AD2d 857, 859; Atkinson v City of Oneida, 77 AD2d 257). Moreover, after the State implements a traffic plan it is ‛under a continuing duty to review its plan in the light of its actual operation' (Weiss v Fote, 7 NY2d 579, 587 supra; Atkinson v City of Oneida, 77 AD2d 257, 261, supra)" (id. at 283-284).
An unreasonable delay in implementing remedial plans to address a known dangerous condition will defeat the immunity provided the State in the area of traffic safety design and engineering. In this regard delay or inaction may be actionable unless the proof establishes that the failure to timely act "was necessary in order to study and formulate a reasonable safety plan, that the delay was itself part of a considered plan of action taken on the advice of experts, or that the delay stemmed from a legitimate ordering of priorities with other projects based on the availability of funding" (id. at 287); (see also Palloni v Town of Attica, 278 AD2d 788 [2000]; Edouard v Bonner, 224 AD2d 575 [1996], lv denied 88 NY2d 811 [1996]; Trautman v State of New York, 179 AD2d 635 [1992], lv denied 79 NY2d 758 [1992]; cf. Gregorio v City of New York, 246 AD2d 275 [1998], appeal dismissed 93 NY2d 917 [1999] [defendant failed to show that it legitimately prioritized its safety projects]; Colegrove v County of Steuben, 216 AD2d 888 [1995] [County failed to show precise budgetary limitations necessary to establish its defense of qualified immunity with respect to its delay in installing guardrails]). Thus, absent an unreasonable delay in the implementation of a highway safety plan, reasoned discretionary determinations which are the product of a "deliberate decision-making process" may not form the basis for a finding of liability against the State of New York (Evans v Stranger, 307 AD2d 439, 441 [2003]; Norton v Village of Endicott, 280 AD2d 853, 854 [2001]; Applebaum v County of Sullivan, 222 AD2d 987, 989 [1995]). Here, claimant seeks to predicate liability on the State's alleged long-term failure to stabilize the slope adjacent to the eastbound lane of Route 7 near Man of Kent. Claimant asserts the defendant's negligent delay in stabilizing the slope gave rise to ongoing deterioration of the riding surface of the pavement between reference markers 2185 and 2186 where the claimant's accident occurred. In addition, claimant alleges the State negligently failed to maintain the roadway in a reasonably safe condition pending stabilization of the slope and to adequately warn drivers of defects in the pavement.

It is true, as the claimant contends, that the slope failure on Route 7 at or near the accident site was identified in 1990. A determination was then made that slope stabilization work should be performed in the 1995 - 1996 fiscal year (Exhibit G-1) and a capital project to stabilize the slope was completed in 1997 (see Exhibit H; Tr. 1, pp. 196-197). The work consisted of installing drainage structures which, as it turned out, did not completely rectify the problem. Further repairs to the pavement due to both seasonal changes and subsurface movement attributable to instability of the slope were required in 1999, 2000, 2001, 2002 and 2003 (Tr. 1, pp. 197-208; Exhibit 6). The State recognized that additional stabilization work was required and in 1999 Mr. Meilhede requested that the Geotechnical Engineering Bureau formulate a further plan to stabilize the slope (Tr. 1, p. 203; Tr. 2, pp. 108-109). The site was inspected by a Geotechnical Engineer and a recommendation was made to install a slope indicator to monitor the movement of the slope (Tr. 2, pp. 142-143). The slope indicator was installed in April 2000 and monitored monthly until it became inoperable in April of 2001 due to movement of the slope (Tr. 2, pp. 147,164). A formal plan for the remediation of the slope was thereafter provided by the Geotechnical Engineering Bureau in February of 2002 (Tr. 1, p. 203; Tr. 2, p. 150). As explained by Donald Dwyer, Associate Soils Engineer, the preparation of this plan was delayed due to a major slope failure in the spring of 2000 on Delaware Avenue between Delmar and Albany, New York (Tr. 2, pp. 147-148). Due to the size and extent of the slope failure, a substantial amount of funding and personnel were diverted to effectuate repairs to the Delaware Avenue site.

According to the testimony of Robert Hansen of the Capital Programs section of the DOT, voter disapproval of a bond initiative in 1999 resulted in delays and the elimination of some capital projects throughout the State (Tr. 2, p. 196). On September 19, 2002 a decision was made to include the Route 7 project with the Taborton Creek Bridge project, which was to be performed the following year (Tr. 2, p. 188; Exhibit E). According to Mr. Hansen, bridge projects take priority over other projects (Tr. 2, p. 179). Although the Taborton Creek/Route 7 slope failure project was to be let in the spring of 2003, it was delayed due to the diversion of funds to other projects (Tr. 2, pp. 194-197). Mr. Hansen testified that only two capital projects could be let in the first six months of the 2003-2004 fiscal year. The two projects chosen were remedial work near Exit 15 of Northway to correct a skid problem and a bridge project of high priority (Tr. 2, p. 196; see also Exhibit J). As a result, the Taborton Creek/Route 7 project, originally planned to be let in the spring of 2003 was delayed to a September 2003 letting resulting in the performance of the work the following spring (Tr. 2, pp. 197-204). As evidenced by numerous email communications contained within Exhibit I, the DOT planned to monitor the area and maintain the surface of the roadway until the stabilization work could be performed (Exhibit J, plan 6; Tr. 2, p. 154).

In the Court's view the delay in formulating and implementing the Route 7 slope stabilization plan was adequately explained by the the legitimate ordering of priorities with other projects based on the availability of funding. The testimony of both Mr. Dwyer and Mr. Hansen, in addition to the documents received in evidence (Exhibit J), sufficiently establish that the delay in carrying out the project was reasonable. Moreover, the use of an emergency contract to stabilize the slope was explored, and a discretionary determination made that the slope would remain sufficiently stable pending the performance of the stabilization work in 2004 (Tr. 2, p. 153). The evidence received at trial sufficiently establishes that the determination to perform the work in the spring of 2004 was reasonably based both on discretionary application of expert judgment and the ordering of funding priorities thereby immunizing the defendant from liability for its alleged failure to stabilize the slope sooner.

The Court reaches a different conclusion, however, with respect to the defendant's failure to maintain the roadway surface in a safe condition pending completion of the stabilization work. As noted by the Court of Appeals in Weiss v Fote (supra), while lawfully authorized planning decisions may be deserving of immunity, "[i]t is proper and necessary to hold municipalities and the State liable for injuries arising out of the day-by-day operations of government - - for instance, the garden variety injury resulting from the negligent maintenance of a highway . . ." (Weiss v Fote, 7 NY2d at 585; Vasquez v Figueroa, 262 AD2d 179, 180-181 [1999] [immunity defense is not applicable to claims based on negligent maintenance of a highway]). The State's duty to maintain its highways in a reasonably safe condition is measured by reference to the terrain encountered and the traffic conditions to be reasonably apprehended (Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [1979], affd 51 NY2d 892 [1980]). Where the State has actual or constructive notice of a dangerous condition and fails to take reasonable measures to correct it, liability may be imposed for injuries sustained as a result thereof (id.; Hynes v State of New York, 301 AD2d 628 [2003]; Martin v State of New York, 305 AD2d 784 [2003]; Schichler v State of New York, 110 AD2d 959 [1985], affd 66 NY2d 954 [1985]; Bradley v State of New York, 132 AD2d 816 [1987]).

Here, the evidence is undisputed that the State had actual notice of the defects in the highway. DOT personnel were aware since at least 1999 that the instability of the slope adjacent to the eastbound lane of Route 7 between reference markers 2185 and 2186 affected the subsurface of the roadway, causing it to sink and crack. Repairs to address defects in the road surface arising from the effects of the subsurface instability as well as seasonal changes were undertaken, at least once each year, between 1999 and 2003. Indeed, the State not only knew that defects in the road surface appeared yearly in the spring and fall, but also that this condition was deteriorating rapidly in the weeks preceding the accident. On March 31, 2003 Jan Meilhede informed Joseph DiFabio via email that "this area is moving significantly as the frost is leaving. Right now a large (12' by 50') segment has moved out (about 1") and down (about ½ to ¾")." ( Exhibit 7, p. 8; Exhibit I - RC6). Another email dated April 3, 2003 from Kevin Farley, the area foreman, states "I went over [the roadway] this morning and it felt as if it has sunk and the cracks appear to be opening up" (Exhibit 7, p. 9; Exhibit I - RC7). That same day Jan Meilhede instructed Mr. Farley that "[i]f it gets to be too bad a bump, you should go in and take the curse out with hot mix" (Exhibit I - RC8; Exhibit 7, p. 9). In an email to John Remmers dated April 11, 2003 Mr. Meilhede describes the extent of the area affected as "an approximately 75' long, one lane wide segment of pavement" (Exhibit 7, p. 10; Exhibit I - RC9). Thereafter an email from Patrick Barnes dated April 14, 2003 indicates that the "condition has worsened" (Exhibit I - RC11) and yet another email dated April 21, 2003, just four days before the accident, indicates that a complaint had been made by a resident, Lester Goodermote, that vehicles were "bottoming out" in this same area (Exhibit 7, p.14; Exhibit I - RC14). While the tenor of the emails which followed evince obvious concern regarding whether or not the area was stable enough to await the slope stabilization project, which had been delayed to 2004 (see Exhibit I - RC9, RC10, RC11), nothing was done to "take the curse out" of the bump in the three-week period preceding the date of the accident.

While Mr. Meilhede testified that no money had yet been allocated for asphalt and that

"we can't get asphalt in the middle of winter" (Tr. 2, p. 112), he admitted on cross-examination that he often obtained asphalt on a promise of future payment and that there are ways to obtain the necessary goods and services without a specific allocation (Tr. 2, pp. 112-113). In addition, Mr. Meilhede's email of April 21, 2003 states with respect to the availability of the paver and hot mix that a paver would be pursued the following week and that "[h]opefully we will have some hot mix left on our spring non-PO to do this work when the paver gets here" (Exhibit I - RC14). Mr. Meilhede's testimony that asphalt was unavailable is further undermined by his own correspondence dated April 3, 2003 and April 11, 2003 in which he stated that if the bump continues to worsen, "hot mix" should be used to ameliorate the condition (Exhibit I - RC8, RC9).

Moreover, even if it could be concluded that asphalt was difficult to obtain prior to the accident, the defendant's own exhibits reflect instances in which a "winter mix" was used on this same area during the months of January and March (Exhibit G-15, G-17, G-21). Indeed, defendant's own witness, Robert Hansen, readily agreed on cross-examination that temporary work to avoid the high cost of invoking an emergency repair contract was possible and that winter mix, a type of asphalt, could be used to fill defects in the roadway surface (Tr. 2, p. 206). The feasibility of patching the area in the weeks preceding the accident is therefore clear. Also clear is that the size of the area was increasing and the condition of the roadway worsened steadily during the same period.

Based on the foregoing, the Court finds that the defendant had actual notice of the defects in the surface of Route 7 in the area where the accident occurred and failed to correct the condition within a reasonable period of time. Considering the location of the defective pavement, on a curve at the bottom of a long downhill slope on a heavily traveled road, the Court finds that the State was negligent in failing to ameliorate the danger posed to motorists such as the claimant in the nearly one-month period of time prior to the accident.

Notwithstanding the defendant's contrary argument, the Court does not find the State exempt from liability pursuant to Highway Law § 58. This section states, as pertinent here, that "[t]he state shall not be liable for damages suffered by any person from defects in state highways, except between the first day of May and the fifteenth day of November on such highways as are maintained by the state . . . but the liability for such damages shall otherwise remain as now provided by law . . ." Judge Corbett traced the history of this statute in Millis v State of New York (2001 WL 856465 [Ct Cl 2001]), noting that as originally enacted in 1908 the statute was no more than a restatement of the fact that the State is insulated from liability by the doctrine of sovereign immunity. The statute was amended several times thereafter and in 1922 language was added to preclude liability for damages suffered by any person from defects in State highways " 'except between the first day of May and the fifteenth day of November' " (Wolf v State of New York, 122 Misc 381, 384 [1924], affd 210 AD 827 [1924], quoting Highway Law § 176, the predecessor statute to Highway Law § 58). As noted in Millis, the situation changed significantly in 1929 when the Legislature enacted § 12-a (now § 8) of the Court of Claims Act waiving its immunity from liability "in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations . . ." Cases decided subsequent to the enactment of § 12-a (now § 8) of the Court of Claims Act note the fact that Highway Law § 176 (now § 58) was at least partially superseded by the enactment of the more general waiver of immunity contained in Court of Claims Act § 8, requiring that these two statutory provisions be read together in determining the extent of the State's liability (see e.g. Miller v State of New York, 231 AD 363 [1931]). Reading these two sections together, Courts have consistently held that Highway Law § 58 does not insulate the State from liability, at least where it had notice of a recurring dangerous condition and failed to remedy it within a reasonable period of time. For example in Wasnick v State of New York (183 Misc 1073 [1944], affd 269 App Div 1001 [1945], affd 295 NY 902 [1946]) the Court found the State liable for its failure to properly maintain its roadways and warn of the danger created by bumps in the roadway surface because the defects appeared annually and the State should have anticipated the danger (see also Karl v State of New York, 279 NY 555 [1939] [State was not immune from liability for injuries sustained in accident on November 20th because it had written notice of the allegedly defective condition on November 10th but nothing was done to protect the public from danger]). Thus, whatever vestiges of sovereign immunity remain by virtue of Highway Law § 58, one thing is clear - the State is not immune from liability where it had notice of a recurring defective condition on a State highway but failed to correct the condition within a reasonable period of time.

Here, there is no dispute that the defects on Route 7 between reference markers 2185 and 2186 recurred annually due both to seasonal changes and the underlying instability of the roadway subsurface, and that the State had actual notice of the defects in the nearly one-month period prior to the date of the claimant's accident. Like the facts in Wasnick (supra), the State should have anticipated the danger and taken steps to correct it. Accordingly, the State is not immune from liability by virtue of Highway Law § 58.

The Court also concludes that the defects in the subject roadway were a substantial factor in causing claimant's injuries. According to the claimant's testimony, which the Court finds credible, when her vehicle came in contact with the defects in the road it "went up and down pretty violently and then [she] was thrown into the other lane" (Tr. 1, pp. 21-22). Claimant's description of her experience is similar to the "bottoming out"of cars in the same area of Route 7 related by Lester Goodermote prior to the claimant's accident. In addition, both Troopers Lewis and Cenicola stated when interviewed during the course of the investigation that claimant's vehicle "suddenly" crossed into the westbound lane of travel, and Investigator Macintosh agreed that the claimant suddenly entered the opposing lane of travel after encountering the dip or bump in the eastbound lane of Route 7 (see Exhibit K, interviews of Troopers Lewis and Cenicola; Tr. 3, p. 129). The fact that defendant's investigator Mr. Conlan observed, subsequent to the subject accident, five out of twenty-five vehicles having "problems staying in their lane" after going over the bump (Exhibit 10) adds further support to the Court's conclusion that the defect in issue was dangerous.[6] Accordingly, the Court finds that the defects in the roadway surface proximately caused the sudden loss of control which resulted in the claimant's vehicle veering into the opposing lane of travel where it came in contact with the State Troopers' vehicle (see Exhibit 10).

Although Troopers Lewis and Cenicola testified the claimant stated following the accident that she was tired, Investigator Macintosh agreed on cross-examination that there was no evidence that she fell asleep behind the wheel (Tr. 3, p. 127). To the contrary, all of the evidence indicates that the claimant successfully navigated the curves preceding the accident site and that the claimant was exiting the subject curve when she struck the roadway defect and entered the opposing lane of travel (see e.g. Tr. 3, pp. 126, 186). Moreover, Investigator Macintosh admitted on re-cross-examination that the claimant's speed became unsafe only when she struck the dip in the road, as evidenced by her successful navigation of the curve up to that point (Tr. 3, pp. 126-127).

Lastly claimant's expert, Ernest Gailor, testified based upon his review of the police investigation, depositions, pleadings, photographs and a site inspection that the defect in the road interrupted the tracking of the wheels of claimant's vehicle, throwing the car into the opposing lane of travel (Tr. 3, p. 180). To the extent defendant's expert testified to the contrary, the Court finds his opinion, which was based primarily upon his review of the suspension of other vehicles of the same year and model, unpersuasive and of little probative value (see Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]). Based on the foregoing, the Court finds that the defendant's negligence in failing to repair the defective condition of the roadway surface was a proximate cause of the claimant's injures.

The claimant contends that the signs warning of the "bump" and "dip" in the roadway were improperly placed and confusing. Her testimony in this regard, however, was that she "vaguely" recalls seeing the sign warning of a hill (Tr. 1, p. 57), she "might" have seen the sign warning of a "bump 1/4 mile ahead" (Tr. 1, pp. 57-58), she "vaguely" remembers a sign warning of a right turn, apparently referring to the curve (Tr. 1, pp. 58-59), and she "vaguely" recalls seeing the "dip" sign (Tr. 1, p. 59). When pressed for a more definitive answer, claimant explained, "I don't specifically remember those signs but at the time I see them, so, therefore, I vaguely remember seeing it" (Tr. 1, p. 59). This testimony is insufficient to enable the Court to conclude that the claimant observed the signs and that the alleged insufficiency of the signage was a proximate cause of the accident (see Hearn v State of New York, 157 AD2d 883 [1990], lv denied 75 NY2d 710 [1990]; Bova v County of Saratoga, 258 AD2d 748 [1999]). Absent proof that the existing signs were either obscured or otherwise not appropriately visible to approaching motorists (sight distances, etc.) or that any additional or different signing would have been any more effective than the warnings claimant apparently largely ignored, it would be entirely speculative to conclude that any deviation from the standards set forth in the MUTCD was a proximate cause of the accident (see Donato v County of Schenectady, 156 AD2d 859, 861 [1989]). As a result, the Court finds that the alleged insufficiency and improper placement of the signs did not cause or contribute to the happening of claimant's accident.

As to the issue of the claimant's comparative negligence, there is evidence that the claimant was fatigued, ignored the signs warning of the dip and curve in the road and was exceeding the actual and advisory speed limits when the accident occurred. [7] Considering the hour of the accident (approximately 3:00 a.m.), and the claimant's admissions to the State Troopers afterward that she was tired, the Court finds that the claimant was operating her vehicle in a fatigued condition and without heeding the existing traffic control devices warning of the defects and curve in the roadway ahead. Moreover, the Court credits the testimony of Troopers Cenicola and Lewis that claimant's speed was determined by radar to be 63 mph just prior to the collision (Tr. 1, pp. 74, 155). This speed was 18 mph more than the advisory speed for the curve where the accident occurred and eight mph over the posted speed limit. In the Court's view, claimant was traveling at a rate of speed that was too fast for the terrain.

Based on the foregoing, the Court apportions liability 50% to the defendant and 50% to claimant.

Defendant's motion for a directed verdict is denied. Any and all motions heretofore raised and not decided are denied.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. The matter will be scheduled for trial on the issue of damages as soon as practicable after entry of the judgment.

Let interlocutory judgment be entered in accord with this decision.



May 22, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1].Page numbers preceded by the denominations "Tr. 1", "Tr. 2" or "Tr. 3" refer to the page numbers of the first, second or third trial transcript.
[2].The witness could not recall whether the passenger side window was broken or rolled down.
[3].Trooper Cenicola testified that the first eastbound vehicle passed the troopers one-quarter mile prior to the time the Shon vehicle came into view.
[4].References in the email regarding Mr. Conlan's hearsay conversations with State Police and accident reconstruction personnel were not considered by the Court. Nor was that portion of the document which related to plans to pave the area and the posting of additional advance warning signs which related to subsequent remedial measures undertaken by the defendant (Niemann v Luca, 214 AD2d 658 [1995]; Kaplan v Einy, 209 AD2d 248 [1994]; Klatz v Armor El. Co., 93 AD2d 633 [1983]).
[5].The term "lane mile" was defined as "a mile of lane in one direction. So, a two-lane road which is a mile long would be two lanes miles" (Tr. 2, p. 36).
[6]. The law is well-settled that records of subsequent accidents occurring under similar conditions are relevant to establishing whether or not a dangerous condition existed (Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339 [2007]; Dudley v County of Saratoga, 145 AD2d 689 [1988], lv denied 73 NY2d 710 [1989]; Klatz v Armor El. Co., 93 AD2d 633 [1983]). Based upon this principle the Court finds the investigator's post-accident observation probative on the issue of whether or not the defects in the roadway constituted a dangerous condition.
[7]. While the claimant was charged with speeding and failing to keep right, she pled guilty to disobeying a traffic control device and failing to keep right in violation of VTL §§ 1110 [a] and 1120 [a] (see Exhibit M). The law is settled that a defendant's plea of guilty to a traffic offense may be introduced as evidence of his or her carelessness in a civil action for damages (Ando v Woodberry, 8 NY2d 165 [1960]; Marotta v Hoy, 55 AD3d 1194 [2008]; Lohraseb v Miranda, 46 AD3d 1266 [2007]; McGraw v Ranieri, 202 AD2d 725 [1994]). Such evidence is not conclusive on the issue, however, and a defendant is generally given the opportunity to explain the circumstances surrounding the plea (Lohraseb v Miranda, supra; Madden v Dake, 30 AD3d 932, 938 [2006]; Kelley v Kronenberg, 2 AD3d 1406 [2003]). Here, claimant explained that she pled guilty in order to save money because she lived out- of- State (Tr. 1, pp. 43-45). However, at the time of the pleas in October 2004, the instant action had already been commenced and claimant had ample incentive to litigate the matter fully.