LONGERETTA v. STATE OF NEW YORK, #2009-018-003, Claim No. 102995 and
Based upon the evidence presented, the Court is restrained to find the claims
must be DISMISSED. Accidents can be attributed to any number of reasons, and
the Court cannot presume that they are the result of the State’s faulty
design or inattention to a safety problem without a relevant accident history.
Vague generalities are not sufficient.
ESTATE OF RAYMOND J. LONGERETTA, by and through his Executor and Executrix, JOHN A. LONGERETTA and LORI SAVINO
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
102995 and 102995-A
DIANE L. FITZPATRICK
LONGERETTA LAW FIRMBy: David Longeretta, Esquire
ANDREW M. CUOMO
Attorney General of the State of
By: Joel L. Marmelstein,
EsquireAssistant Attorney General
February 9, 2009
See also (multicaptioned
Claimants bring a wrongful death action for the deaths of Raymond J. Longeretta
and Mary J. Longeretta as a result of the alleged negligence of the State in
designing, constructing, and maintaining Route 5, west of Smalls Bush Road in
the Town of Herkimer. This claim
involves a tragic accident in which three people were killed on the afternoon of
May 30, 2000,
on Route 5 in Little Falls, New York. The trial of this claim is bifurcated and
this Decision relates to liability only.
Ralph E. Reed and his wife were driving on State Route 5, eastbound from Ilion
to Little Falls on the afternoon of May 30, 2000. Route 5 is a two-lane,
two-way road running east and west with a double yellow center line identifying
a no-passing zone. The speed limit in the area is 55 miles per hour (mph). Mr.
Reed testified he was driving approximately 40 mph which is consistent with the
finding of the State Police investigation.
The weather was clear and sunny and the road was dry. The roadway in this area
curves to the right with a small knoll. As Mr. Reed crested the small knoll,
Donna’s Diner was on the right, or the south side of the road. The road
then became flat and straight. At that point, Mr. Reed saw a vehicle (the
Longeretta vehicle) facing north, partially in his travel lane, apparently
attempting to make a U-turn in front of Massaro’s Flower Shop, also on the
south side of the road.
Massaro’s Flower Shop encompasses a parking area for approximately six
vehicles, just west of a two-story, red-roofed building. Beyond the red-roofed
building proceeding east are four greenhouses. The first greenhouse is along
side and parallel to the red-roofed building, perpendicular to Route 5. The
next greenhouse is smaller and parallel to Route 5. There is a small gravel
area in front of this greenhouse that is used for parking. Two additional large
greenhouses sit further back and are parallel to the roadway.
The Longeretta vehicle, a 1997 four-door Oldsmobile Cutlass Supreme SL, was
approximately 15 to 20 feet away when Mr. Reed first saw
Mr. Reed thought he recalled other
vehicles parked along the south side of the road. Mr. Reed testified that he
applied his brakes but could not stop in time to avoid the collision, and his
car struck the driver’s door of the Longeretta vehicle. He saw the
vehicle only four or five seconds before impact and estimated his speed at the
time of impact to be 35 mph. The collision occurred approximately 250 feet
before the Smalls Bush Road intersection. The three people in the Longeretta
vehicle were killed.
Mr. Charles Herbster was in a vehicle two cars behind Mr. Reed, and he
witnessed the collision. Mr. Herbster testified that Mr. Reed had no time to
stop when the Longeretta vehicle pulled out - the collision was inevitable. He
estimated the speed of each of the eastbound vehicles at 40 - 45 mph. The
driver in front of him just drove around the accident scene and didn’t
Ms. Margaret DeCarr, the owner of Massaro’s Flower Shop, testified. She
described the area and recalled seeing Mr. and Mrs. Longeretta in her shop just
before the accident. She testified that customers of the shop routinely park
between her building and the fog line on the south side of Route 5; although,
there is additional parking along the west side of the building. She also
recalled having to dismantle part of one of the greenhouses when the State
widened Route 5 before this accident.
Sgt. Bernard W. Kennett of the New York State Police testified about the
accident reconstruction he performed. He had been a New York State Trooper for
almost 12 years at the time of the accident. In addition to his training to
become a State Trooper, he also received specialized training in collision
reconstruction and is a Certified Accident Reconstructionist. In his report,
Sgt. Kennett described Route 5, in the area of the accident, as a two-lane road
with a no passing zone and a speed limit of 55 mph. It is 24 feet wide with a
south shoulder of 8½ - 9 feet which extends into a parking area for
Massaro’s Flower Shop. The north shoulder is approximately 8½ feet
wide. Traveling eastbound, the road has a slight righthand curve and a
downgrade of .06 - .09% which Sgt. Kennett said would not affect visibility.
Sgt. Kennett testified that he found that Mr. Reed’s vehicle essentially
“T-boned” the Longeretta vehicle which was either crossing Route 5
or making a U-turn from some point on the east side of Massaro’s Flower
Shop. His estimate of Mr. Reed’s speed at the time of impact was 40 mph
and the Longeretta vehicle was moving at approximately 10 mph. The sight
distance between the Reed and Longeretta vehicles was determined to be 530 feet
or 1/10 of a mile, if there were no vehicles parked on the south side of the
roadway. Parked vehicles on the south shoulder could reduce the sight distance,
but how much it was affected would be dependent upon the type and size of those
vehicles as well as the height of the oncoming vehicle and driver. Sgt. Kennett
could not determine whether or not there were vehicles parked on the south side
of Route 5 at the time of this accident.
The point of impact was marked with an orange “x” on Exhibit 3F,
and was in the westbound lane of Route 5. The Longeretta vehicle had partially
crossed the eastbound lane. Sgt. Kennett concluded that the primary cause of
the accident was the failure of the Longeretta vehicle to yield the right of way
to oncoming traffic while entering the roadway. A potential contributing cause
may have been a limited sight distance.
State Police Investigator, Donna B. Wassall,
completed the police accident report (MV-104) for this accident. Along with the
preparation of the MV-104 report, she also completed a
A TB-40 is a traffic hazard report
which is presented to a particular highway department when an officer believes a
situation exists which needs to be reviewed or addressed. She marked two boxes
on the form, “high accident location” and under “other”
she noted “reduced speed zone.” In Investigator Wassall’s
11-year tenure at the time of the accident as a trooper in Herkimer, she knew of
several other accidents in the area. In this report, Investigator Wassall made
a remedial suggestion that the speed limit be reduced from Gros Boulevard
(County Route 258) to east of Smalls Bush Road (County Route 231) because of
limited sight distance for vehicles entering Route 5 from the homes and
businesses in this area, primarily on the north side. Both Gros Boulevard and
Smalls Bush Road intersect Route 5 from the north. Massaro’s Flower Shop
is on the south side between these two intersections.
John A. Serth, a Professional Civil Engineer, currently working as a consultant
in the field was called as an expert on Claimants’ case. He has also
worked as an engineer for the New York State Department of Transportation, as an
adjunct professor at Union College, teaching transportation classes, and as an
accident reconstructionist. Mr. Serth went to the scene of this accident in
October 2000 and again in the summer of 2001. He reviewed the New York State
Department of Transportation (hereinafter DOT)
for the widening and repaving of Route
5, which was effectuated (Project D253549) in 1991. The project included adding
a lane on the south side of the road to provide eastbound traffic a way around
vehicles turning left onto Smalls Bush Road. In addition, a portion of the road
was repaved. The repaving area included the section of Route 5 partially in
front of Massaro’s Flower Shop. Mr. Serth noted that the plans for the
project included the following statement:
Driveways shall be constructed in accordance with the State of New York
Department of Transportation ‘Policy and Standards for Entrances to State
dated August 1, 1983 (Exhibit
6C, note 1).
Part of that general policy states
Whenever a state highway is reconstructed or resurfaced, existing
entrances to the highway shall be altered by the Department at its
expense to conform to the spirit and intent of the policy and standards
set forth in this part (Exhibit 8, page 4).
There were no notes on the plans indicating any approved deviations from these
regulations. According to Mr. Serth, the area in front of Massaro’s
Flower Shop failed to comply with the 1983 standards because it is a
“minor commercial driveway” without any access control, and sight
distance from that driveway was insufficient. He referenced the tables,
specifically Table 3,
for sight distances at
entrances in the 1983 DOT Policy and Standards.
At the time of the accident,
the speed limit in the area on Route 5 was
55 mph. The table
reflects that the sight
distance for a vehicle turning left onto a 50 mph, two-lane road was 740 feet,
and for 60 mph, it was 950 feet. These distances are meant to be guidelines.
The sight distance at the location that the Longeretta vehicle entered Route 5,
as measured by Trooper Kennett, on the roadway was 530 feet. This was supported
by the photo logs
which are pictures taken
every 52.8 feet. Mr. Serth opined that the actual sight distance for a driver
sitting in a vehicle was much less than 530 feet and closer to 106 feet.
Compounding the problem is the placement of a maple tree in the yard of the
property west of Massaro’s Flower Shop. Because the road curves to the
right the tree blocks the view of the area where it is believed the Longeretta
vehicle exited from oncoming drivers like Mr. Reed. Vehicles parked along Route
5 directly in front of the flower shop also contribute to the problem of sight
distance. It was Mr. Serth’s opinion that Mr. Longeretta pulled onto
Route 5 before he could see the Reed vehicle. At 106 feet of sight distance, it
would take a vehicle traveling at 40 mph only two seconds to cover that
distance. Mr. Reed’s reaction time was longer than the time it took his
vehicle to reach the Longeretta vehicle.
According to Claimants, the State failed to reconfigure the driveways accessing
Route 5 when it repaved and reconstructed the road in 1991, as it was obligated
to do by its 1983 Policy and Standards. The road, Claimants argue, was not
reasonably safe for a driver to enter from the Massaro’s Flower
Shop’s driveways. The insufficient sight distance was the cause of the
accident according to Mr. Serth.
The State called Robert White, a Traffic and Safety Engineer with the New York
State Department of Transportation, overseeing the regulatory process for the
New York State Highway System. Mr. White had previously been the Resident
Engineer in Herkimer County from 1987 through September 2000, and was familiar
with the relevant area of Route 5. As Resident Engineer, Mr. White was
responsible for the maintenance on the State Highway System in Herkimer County
and interaction of the Department of Transportation with other municipalities.
He identified the road history documents for this section of Route 5 and the
history of work performed on that area of the road. Mr. White noted the road
widening project (D253549) that was done in 1991.
The purpose of this project, according to the plans, was the improvement of the
Route 5 intersection with Smalls Bush Road with a widening of the roadway to
permit eastbound vehicles on Route 5 to pass by vehicles turning left on Smalls
Bush Road. Exhibit 6A identifies where the contract project begins, which is
just west of Massaro’s Flower Shop which is the two-story, red-roofed
building. The actual work, however, began close to the Flower Shop’s
eastern corner. No improvements were made to the existing driveway connection.
Mr. White agreed that the plans for the 1991 project required that all driveways
be constructed in accordance with the August 1, 1983, “Policy and
Standards for Entrances to State Highways,” and there were no exceptions
to following these regulations noted on the plans. The entire plans, evidenced
as Exhibits 6 and 6A-6C, reflect the engineering decisions made on this project,
and five engineers signed off on the plans. Mr. White opined that it would have
been a hardship on the owners of the flower shop to comply with the regulations
regarding entrances to State highways.
The State called as their expert, Russell M. Lewis, Ph.D., P.E. Dr. Lewis is a
licensed Physical Engineer in New York and Virginia and received his Doctorate
in Traffic Engineering and Transportation from Purdue University. Dr. Lewis has
taught at Rensselaer Polytechnical Institute, and was the Superintendent of
Public Works in New York, the Chief Engineer with the New York State Thruway
Authority, and a Federal Highway Administrator. He was also a partner in a
private engineering firm and moved to Virginia in 1971. He was a private
engineer in Virginia from 1972 until 1980, focusing on traffic safety and
training. He also consulted as a Principal Investigator for the Federal Highway
Administration. Since 1980, Dr. Lewis, has been self-employed, teaching
courses, doing research studies, and working as an expert witness.
Dr. Lewis defined “stopping sight
as the distance which the
driver of a vehicle needs to stop if an obstruction is seen in the driving lane.
It is a function of the speed the vehicle is traveling and is measured from the
“height of eye”1
which is the
elevation above the pavement at the general sight level of the driver in the
driving lane. In 1998, the height of eye was 3.5 feet. The “height of
object” is the height of an object on the pavement that a driver should be
able to see, which in 1998 was six inches, according to Dr. Lewis. It is a
fundamental design criteria that there be adequate stopping sight distance along
a roadway. It was Dr. Lewis’s opinion that there was adequate stopping
sight distance along this section of roadway, according to the 1998 Roadway
Driveway Manual and based upon the sight distance found by Trooper Kennett in
At 55 mph, according to Dr.
Lewis, the manual required a minimum of 450 feet of stopping sight distance.
This does not take into account anything on the shoulder or beyond the shoulder
of the highway.
Dr. Lewis testified that Trooper Kennett’s finding in the police accident
that the westbound
sight distance from the scene of the accident was 530
was referring to “intersection
which assesses the
visibility of seeing another vehicle at 3.5 feet off the roadway. Stated
another way, it is the distance between a vehicle on an intersecting road, or in
a driveway to a vehicle on the main road. The measurement is taken diagonally
across the edge of the roadway. Dr. Lewis agreed that the 1998 manual requires
950 feet of intersection sight distance for someone entering the highway from a
driveway entrance when the speed is 60 mph. At 50 mph, 740 feet of intersection
sight distance is recommended. Dr. Lewis testified that from the point where
Exhibit 4A was taken, there is between 700 to 800 feet to the red-roofed
building, less than the recommended intersection sight distance for vehicles
traveling at 55 mph. From Exhibit 4A, the greenhouses on the east side of the
flower shop behind where the Longeretta vehicle was believed to have pulled out,
are not visible.
Dr. Lewis also reviewed the plans for the work performed by DOT in 1991, which
he described as a “spot safety
to the Route 5
intersection with Smalls Bush Road. The contract states that the beginning of
the project is just on the west side of the flower shop building of
Massaro’s. Dr. Lewis testified that the contract work would have started
50 feet east of the beginning point, according to the plans, which is near where
a plastic covered greenhouse is located just east of the flower shop itself.
Dr. Lewis acknowledged that the plans required all driveways to be constructed
in accordance with New York State DOT Policy and Standards for Entrances to
State Highways dated August 1, 1983, and based upon the DOT definition of a
driveway, it is any entrance or exit used by vehicular traffic to or from land
or an abutting building to a State highway. Using this definition, the paved
area for parking to the west of the red-roofed building would be a driveway.
Dr. Lewis agreed that there was no access control, curbing, or ditches, to the
paved area on the west or east side of the red-roofed building.
The State bears a non-delegable duty to maintain its roadways in a reasonably
safe condition for the traveling public (Weiss v Fote, 7 NY2d 579,
Friedman v State of New York, 67 NY2d 271). Yet, the State is not an
insurer of the safety of its roads and its duty is met when a roadway is
reasonably safe under the circumstances (Tomassi v Town of Union, 46 NY2d
Boulos v State of New York,
82 AD2d 930, 931 affd 56 NY2d 714), despite the reality that almost any road
could be made safer (Tomassi, 46 NY2d at 97).
The State will only be found liable where the evidence shows it was negligent,
that a dangerous condition existed which it created or had actual or
constructive notice of but failed to take remedial action to correct (Edwards
v State of New York, 269 AD2d 863; Fowle v State of New York, 187
AD2d 698; Brooks v New York State Thruway Auth., 73 AD2d 767, affd
51 NY2d 892). The State’s negligence must be also shown to have
proximately caused Claimants’ injuries (Bernstein v City of New York,
69 NY2d 1020, 1021-22).
In the field of traffic design engineering, the State is accorded a qualified
immunity from liability unless the evidence shows the design evolved without
adequate study or lacks a reasonable basis (Weiss, 7 NY2d at 579;
Friedman, 67 NY2d at 271).
From the history in evidence, this portion of Route 5 has been in existence
since 1908 and resurfaced several times throughout the years. It is the work
performed in 1991 that Claimants’ argue obligated the State to make the
areas adjacent to Route 5 in front of Massaro’s Flower Shop comply with
the 1983 DOT Policy and Standards for Entrances to State Highways. Claimants
rely upon the plans for the 1991 improvement of the Route 5 intersection with
Smalls Bush Road to support their position that the State was obligated to
assess sight distance from the Route 5 access areas of the flower shop and
construct access control, via curbs, medians and/or traffic control devices to
insure proper intersection sight distance. The State undisputedly made no
modification to the Massaro’s property’s access to Route 5 at the
time the 1991 project was implemented. It is Claimants’ position that
this evidences the State’s failure to comply with its own plans for the
project and the 1983 Policy and Standards for State highway access, establishing
the State’s negligence in failing to address a known dangerous condition
which resulted in the unfortunate death of Decedents.
Under the “vintage engineering rule” the State is under no
obligation to rebuild its older existing highways to conform to newer current
standards, unless the State undertakes to reconstruct the roadway or it has
notice of a dangerous condition (see Gerwitz v State of New York, Ct Cl,
Corbett, J., signed June 2, 2003, Claim No. 100439, UID # 2002-005-025). Under
either of these circumstances, the State must bring an older roadway into
compliance with current standards. Here, Claimants effectively argue that both
circumstances existed requiring the State to bring the entrances to Route 5 from
Massaro’s Flower Shop into compliance with the 1983 standards.
Exhibits 6 - 6C are the DOT “as built” revised plans for the 1991
Improvement Project. The plans explicitly make the 1983 Policy and Standards
for Entrances to State Highways applicable to the project, and the Court agrees.
However, the Court does not find that the plans required the modification of the
Massaro’s Flower Shop entrances to Route 5. In fact, the plans reflect
just the opposite. The only modification to the Massaro’s Flower Shop
property detailed on the plans is the removal of a portion of one of the
greenhouses adjacent to Route 5 which encroached upon the State’s
right-of-way acquired as part of the project. No other modifications to the
property are set forth. As repeatedly noted on direct and cross-examination,
these plans reflect the culmination of an engineering study and the engineering
determination of at least five DOT engineers. In this case these engineers
determined that no changes would be made to the entrances to Route 5 from
Massaro’s Flower Shop property. No evidence was presented to explain the
basis for that determination. No insight was given into the process that lead
to the plans. Yet, even without the cloak of immunity described in Weiss v
Fote, the Court does not find the State was obligated to bring these
entrances up to the 1983 standards.
The 1983 Policy and Standards sets forth specific design criteria for minor
commercial driveways and directs access control into the designated driveways to
provide a “well-defined flow”1
and to “separate traffic movements on the private property from the
In this case, the
project involved only a limited portion of the Massaro’s Flower Shop
roadway frontage. Work on the project began at Station Seventy-Five plus Zero,
Zero, or adjacent to the west edge of the first Massaro’s greenhouse. The
policy and standards do not reflect any intention or purpose to effectuate a
partial modification of a commercial property. Claimants’ expert’s
testimony indicates the need for an overall restriction of the access to Route 5
from Massaro’s to a single driveway. This would require work outside of
the contract work area for the 1991 project, in effect expanding the project
beyond the work required to effectuate the project’s purpose: the
improvement of the Route 5 intersection with Smalls Bush Road. There is no
authority for the State to have a duty to expand the scope of a project solely
to bring a portion of a roadway up to current standards, absent proof of notice
of a dangerous condition (see Trautman v State of New York,
179 AD2d 635;
Segnit v State of New York,
148 AD2d 519). “The State’s duty
is measured, not by current design standards but by reasonableness.”
(Kerns v State of New York,
226 AD2d 1046, 1047, dissent appeal
91 NY2d 829). The minimum standard for permitting driveway
access, stopping sight distance, was adequate even under the updated standards
according to Dr. Lewis and supported by the pictures in
Although Claimant presented some evidence of other accidents in the general
area, through Investigator Wassall and Ms. DeCarr’s testimony, the
information failed to provide the dates and circumstances of these other
accidents. Without the specific information of the time frame and details
surrounding these accidents, the Court cannot find that the State had notice
that accessing Route 5 from Massaro’s Flower Shop was a dangerous
condition requiring remedial action. In fact, Investigator Wassall, although
noting sight distance was an issue in this area, related the problem at trial
primarily to access from the north side of Route 5, opposite the side of
Massaro’s Flower Shop. Accidents can be attributed to any number of
reasons, and the Court cannot presume they are the result of the State’s
faulty design or inattention to a safety problem without a relevant accident
history. Vague generalities are not sufficient. In the absence of proof that
the flower shop entrances to Route 5 were unsafe, the fact that access control
may have made the area safer is not sufficient to establish the State’s
negligence (see Puliatti v State of New York, 91 AD2d 1192, lv denied 59
Whenever such a tragic case is presented it is always difficult to separate the
desire to place blame for the accident and somehow compensate for the loss by
the only means left available, from the obligation to solely evaluate the
evidence and apply the law; yet, the Court is charged with just that duty. It
must set aside its sympathy for the abhorrent circumstances and make a decision
only upon the evidence presented. Based upon that evidence the Court is
constrained to find the claims must be DISMISSED.
LET JUDGMENTS BE ENTERED ACCORDINGLY.
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the
Court of Claims
.Exhibit 5, page of Collision Reconstruction
. Mr. Reed marked Exhibit 4K with an orange
“x” for the middle of the decedents’ car when Mr. Reed first
.Investigator Wassall was not an investigator
at the time of the accident and was known as Donna Dorozynski.
.Exhibit 7; 17 NYCRR Part 125.
.Exhibit H, p. 29, lines 17 - 25.
1.Exhibit H, p. 30, lines 1 -9, p. 31, lines
1 - 18.
.The question posed to Dr. Lewis reflects
that Trooper Kennett found 350 feet of westbound sight distance but it was
actually 530 feet based upon Exhibit 5, page 5.
.Exhibit H, p. 40, lines 19 - 25.
.Exhibit H, p. 56, lines 24 - 25.