New York State Court of Claims

New York State Court of Claims

HAMZAVI v. STATE OF NEW YORK, #2009-018-032, Claim No. 106918


Case Information

In the Matter of the Claim of the Estate of SIAMAK HAMZAVI by its ADMINISTRATOR, TIMOTHY P. FARRELL
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
CAHILL & BEEHMBy: Robert S. Beehm, Esquire
Defendant’s attorney:
SASSANI & SCHENCK, P.C.By: Mitchell P. Lenczewski, Esquire
Third-party defendant’s attorney:

Signature date:
July 6, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brought this claim for the conscious pain and suffering and wrongful death of Siamak Hamzavi, M.D., as the result of a one-vehicle accident on northbound Route 81, near the Route 481 interchange, south of the City of Syracuse on December 14, 2000. Dr. Hamzavi died in the hospital on December 28, 2000. Letters of Administration were issued to Claimant on March 13, 2001. Defendant was granted partial summary judgment on January 16, 2006.[1] This Decision addresses only the issue of liability on Claimant’s cause of action for the State’s negligent design of the roadway.

At the time of the accident, Dr. Hamzavi had been a practicing cardiovascular surgeon since 1969, residing and working in Scranton, Pennsylvania, with his wife of 36 years. The couple had four grown children. On the morning of December 14, 2000, Dr. Hamzavi left Scranton and was traveling northbound on Route 81 to Syracuse, New York. It had snowed earlier that morning and there was a band of light snow or snow flurry activity that moved through the relevant area around the time of the accident. The exact time of the accident is not known as it was unwitnessed.

Stacey Whitney and his wife were also driving north on Route 81 the morning of the accident when they saw that a car had crashed into a concrete bridge pillar. At the time, the roads were slush covered; although, Mr. Whitney testified he had no trouble driving. He drove past the accident and pulled over just beyond the bridge piers. Mr. Whitney walked back a few hundred feet to the car to see if anyone was still in the vehicle while his wife called 9-1-1. The Onondaga County 9-1-1 Center received a telephone call about the accident and dispatched police, ambulance, fire and rescue at 9:24 a.m. Soon after Mr. Whitney stopped, he could hear the sound of sirens approaching the scene.

Mr. Whitney recalled standing on something, maybe the guide rail, and looking down into the car from the opening that had been the sunroof. It was snowing at the time and the car had a coating of fresh snow. Dr. Hamzavi was in the vehicle, still in his seat, bent over and leaning to the right toward the middle of the vehicle, with blood coming out of his nose. Mr. Whitney placed Dr. Hamzavi’s coat around him and kept speaking to him. Dr. Hamzavi never gave a verbal response, he just made noises and moaning. Mr. Whitney testified that Dr. Hamzavi was definitely wearing his seatbelt at that time, although the police report notes that he was not wearing his seatbelt, which was in a locked, recoiled position.[2] Mr. Whitney recalled speaking to someone in uniform at the scene, but could not remember the name of the person with whom he spoke. Another man, Daniel J. Olsson, D.O., also stopped and provided some assistance.

Rural Metro Ambulance Service arrived at the scene at 9:30 a.m. The Syracuse Fire Department Rescue Company also responded to the scene along with Engine 8. The rescue company has two teams, the first team stabilizes the vehicle and extricates any passengers, while the second team provides medical treatment and prepares the patient for removal to the ambulance. When the rescue company arrived at the scene, the engine company had already stabilized the vehicle and was providing manual stabilization to Dr. Hamzavi’s head and spine. According to Joseph Galloway,[3] a paramedic with the rescue company, based upon the condition of the vehicle and Dr. Hamzavi’s “combative” behavior, there was concern of a possible head injury, so he was rapidly extracted from the vehicle using manual stabilization of his head and spine. The paramedics then took over Dr. Hamzavi’s care. It was noted that his presenting problems at the scene were pain to the upper right chest, head injury, spinal injury, major trauma, and an altered level of consciousness. He also had a bloody nose and a laceration to the posterior right head, behind his right ear. The paramedics’ report reflects that it was unknown whether or not Dr. Hamzavi was seatbelted. The ambulance delivered Dr. Hamzavi to the Emergency Department at the State University of New York, University Hospital (hereinafter University Hospital).

Dr. Hamzavi was conscious in the emergency room, scoring a 12 out of a possible 15 on the Glasgow Coma Scale.[4] Dr. Deborah Mann, the emergency room physician still recalled how articulate he was at that time and that he refused pain medication. He had multiple rib fractures, a large parietal laceration, a right parietal contusion, a right frontal contusion, and a right subarachnoid hemorrhage. Spinal fractures and a liver laceration were revealed after further tests, and a repeat CT scan showed multiple parenchymal hemorrhagic contusions. After presentation in the emergency room, Dr. Hamzavi’s mental state declined. He became unconscious and never regained consciousness, ultimately suffering major organ failure which caused his death on December 28, 2000.

The parties had three well-qualified accident reconstructionists testify. Claimant called William Fischer, and Defendant called Thomas Onions and Terrance Fischer. From their testimony, it is undisputed that Dr. Hamzavi was not speeding at the time his vehicle left the roadway, and there were also no skid marks or signs of braking before the accident. Dr. Hamzavi steered his vehicle to the left, and as the vehicle lost traction, it began to yaw.[5] Once a vehicle goes beyond 12 degrees of yaw, it is out of control and unrecoverable. The vehicle lost speed as it rotated counterclockwise, sliding over the end terminal of the guide rail and more than 150 feet to the pier. At the time the vehicle impacted the pier, it was traveling at approximately 41 miles per hour (mph).

It was the opinion of William Fischer, based upon his field measurements and analysis, that the roadway at this location is like a “chute” and very close to the middle of the chute is the vertical support pillar supporting the Route 481 flyover bridge. The roadway itself has a curve and cross slope which descends down toward the support pillar. On the backside of the pillar is a back slope. This back slope converges with the cross sloped roadway to form a “V” shape, the subject pillar stands just north and to the left of the “V” by eight feet. Although the guide rail was intended to prevent errant vehicles from contacting the pillar, William Fischer opined that because it was terminated in the ground, instead of in the back slope, it provided a ramp which Dr. Hamzavi’s vehicle mounted and rode along directly toward the support pillar. Mr. Fischer opined that this accident was inevitable given the configuration of the roadway and the placement of the guide rail end treatment. He created a computer generated representation of the accident and progression of the vehicle toward the pillar (see Exhibit 248), and he also made a representative diagram based upon his calculations of the initial impact of the vehicle with the pillar and the point of maximum or peak engagement.[6] Mr. Fischer opined that if the guide rail had not been in place, the trajectory of the vehicle would have brought it up the hill. If the guide rail had been anchored into the back slope the vehicle, according to Mr. Fischer, would have been deflected back toward the shoulder of the road.

On cross-examination, Mr. Fischer stated that although the confluence of the back slope with the foreslope creates a chute, this is not necessarily a defect in the roadway. However, this chute, in combination with the location of the vertical pillar so close to the paved roadway and a guide rail that is not terminated into the back slope, created a defect which inevitably led to this accident. It was William Fischer’s opinion that other vehicles had made contact with this concrete pier, based upon other vehicle debris he found, along with tire tracks leading to it. Yet, there were no other reports of accidents at this location, he found this debris 3½ years after this accident, and it could have come from plowing the elevated Route 481 highway above. The Court finds his conclusion that there have been similar accidents at this location speculative.

James Pugh, Ph.D., also testified on behalf of Claimant as a biomedical science engineer, licensed as an engineer in the State of New York. He had a great deal of experience analyzing accidents and injuries, and he teaches continuing education courses to engineers in mechanics, bioengineering and material science. In consulting for this case, he reviewed the medical image films, X-rays, CT films, MRI films, medical records, deposition testimony, police reports, and roadway design documents. Dr. Pugh testified that although the Mercedes that Dr. Hamzavi was driving has good safety performance for a frontal crash at 30 mph or a side impact crash at 20 mph, this accident was outside the designed safety parameters. All of the testing done on fixed barrier collisions are with flat barriers. Here, the vehicle was traveling faster and crashed into an angled barrier. The result is the extensive intrusion and damage to the occupant compartment. The full extent of the damage is not evident from the pictures in evidence, according to Dr. Pugh, because the car is photographed in its resting condition. At the time of maximum engagement with the pillar the bend to the vehicle or the intrusion into the occupant compartment could have been as much as 35 percent greater. There is an “elastic recovery” which is the point you see the vehicle in the pictures. The actual impact would have been even more severe.

Dr. Pugh testified that given that this was a rear and side impact collision, the seat, not the seatbelt, would have played the primary role in keeping Dr. Hamzavi in his seat. The seatbelts are defeated in their function when the force comes from the rear of the vehicle. The shoulder strap would not have restrained Dr. Hamzavi, because the impact to the side of the vehicle would have caused him to move to the right for which the seatbelt provides no restraint. Dr. Pugh opined that as the vehicle made contact with the pillar, Dr. Hamzavi would have been moving toward the right rear passenger side door, until he was stopped by the seat and intruding structures into the vehicle. He would then be moved in the opposite direction of the intruding force, although, this would be offset slightly by the counterclockwise spin. Dr. Pugh opined that Dr. Hamzavi’s hip and pelvic fractures probably resulted from his contact with the vehicle’s center console or the seatbelt “stalk” whether or not he was wearing the seatbelt. Terrance Fischer, however, persuasively testified that this model of vehicle had a center console that was below seat level, and it wouldn’t have held Dr. Hamzavi in his seat. Although the vehicle did have a folding arm rest, Terrance Fischer also did not feel that it would have withstood the force of this accident to hold Dr. Hamzavi in place without a seatbelt.

Dr. Pugh referred to the CT films to explain what he called a “contra coup injury,” that is bleeding or injury almost opposite from the site of impact. These injuries, along with the fracture of his left shoulder blade, his scapula, and the laceration of his liver, Dr. Pugh opined would have been the same regardless of whether or not Dr. Hamzavi was wearing his seatbelt, as it was actually the intruding structures that kept Dr. Hamzavi in his seat.

It was Terrance Fischer’s opinion that Dr. Hamzavi was not restrained by a seatbelt at the time of this accident, and if he had been he would not have contacted the roof. According to Terrance Fischer, seatbelts, even in side and rear impact accidents, help to keep the occupant from sliding sideways, and helps the seat to provide its intended protection.

Both parties also called professional civil engineers with extensive New York State Department of Transportation (DOT) experience. Claimant called John Serth, Jr., who is licensed in New York and Vermont, with a temporary license in the Province of Ontario. Mr. Serth began his career with DOT, conducting surveys for road projects, as a construction inspector on a construction site, and a research assistant. He also worked in the Project Development Bureau and the Design Bureau designing highway projects for the State. His last promotion was to the Consultant Management Bureau, where he worked with project consultants on design projects for the State. He is now in private practice as a consulting engineer, and he teaches civil engineering and transportation courses at Union College. He reviewed the DOT record plans from the original 1963 construction of Route 81 and the 1974 Route 481 flyover bridge project at the site of the accident as well as the Highway Design Manual, in existence at the time of the project, as stipulated by the parties.

Mr. Serth testified that in building roads, you either have to fill the area to create a road that is above the natural grade, or if the area is hilly, you might need to cut away the existing ground level where the road is planned to create a relatively level surface. In a cut area, the road and shoulder would be sloped away from the center of the road, and at least two feet off the roadway, a small depression or ditch will be created that runs along the roadside to collect water. Beyond this ditch the ground will slope back up to the pre-existing ground level; the foreslope goes down to the ditch and the back slope rises back up. The 1963 plans for Route 81 show that, here, the foreslope had a one-on-four foreslope and the back slope had a one-on-two slope. The plans also show a “type A” ditch alongside the roadway in the area of the accident. Mr. Serth indicated that usually a type A ditch has a one-on-four pitch[7] on the standard sheets. No guide rails were needed at this location in the original plans. The purpose of using guide rails is to redirect vehicles away from fixed objects and other hazards, and there were none at this location prior to the construction of Route 481.

The Route 481 overpass was constructed in 1974. The placement of the bridge pier within the “clear zone”[8] required placement of a guide rail on the west side of Route 81N. The design plans reflect that a “W” beam section guide rail was to be installed which Mr. Serth thought was a good choice. Mr. Serth indicated that the New York State Highway Design Manual,[9] § 10.01.04, entitled “Guide Rail Installation” provides: “[w]here guide rail terminates near a normal longitudinal drainage ditch in cut, extend the rail into the cut slope and anchor if required for the type of rail.” The record plans for Route 4811[0] reflect a “two-inch ditch” running along the west side of the northbound lane at the location of this accident. Mr. Serth testified that this was a longitudinal drainage ditch, although he and all the engineers who testified agreed that the reference to the ditch being “two inches” was incorrect. According to Mr. Serth, the as-built plans, Plans 117-R1,1[1] indicate that in the field the bridge piers were placed where the existing type A drainage ditch was, so the pitch of the slope was changed to a one-on-four back slope by adding fill. Rather than a four foot wide ditch, what was done is an eight foot wide rounded transition from the foreslope to the back slope. According to Mr. Serth, this moved the ditch closer to the roadway and in front of the concrete pier. Mr. Serth testified that despite the change in the configuration of the ditch, the Design Manual still required that the end treatment for the guide rail run into the back slope, as this guide rail terminates “near” the longitudinal drainage ditch.

On cross-examination, Mr. Serth testified that a normal longitudinal drainage ditch would have a foreslope and a back slope and, typically, be four feet deep measured from the edge of the pavement to the flow line, although the depth can vary. It would have a minimum width of four feet. Generally speaking, it is a ditch that runs parallel to the center of the roadway. After the construction of Route 481, the existing type A ditch was filled in roughly to the end of the

guide rail, so now there is a foreslope and a back slope and an eight feet transition area. There is no longer any four feet wide ditch; however, Mr. Serth indicated that at the point of the guide rail termination it is outside of the fill area, a ditch depression still exists. As far as defining what is meant by the word “near,” he indicated that when you end the guide rail into the bottom of the ditch, you have hit the center of it and “you’ve hit near.”1[2] He maintained that the Design Manual requires ending the guide rail in the back slope at this location and failure to do so was an unacceptable hazard. On redirect, Mr. Serth, looking at pictures in evidence as Exhibits 130 and 131, testified that the ditch is located close to the end of the guide rail.

Claimant also introduced the deposition testimony of John Fietze and Raymond McDougall, both licensed engineers with the State DOT. Mr. Fietze has been employed with the DOT since June 1970. He worked in the Construction Division, highway design, which included placement of guide rails, and as a Civil Engineer II, working in regional oil spills. Later he ran the Highway Design Squad, was a transportation maintenance engineer, and an in-house design engineer, until he became regional design engineer. Mr. Fietze testified that a standard ditch was four feet on the bottom, four feet deep from the edge of the pavement with either a one-on-four foreslope or a one-on-six foreslope from the highway to the ditch and generally a one-on-four slope for the back slope for at least the first 10 horizontal feet. Any modification from the standard ditch would be what he called a special ditch.

James Bryden, a professional licensed Civil Engineer II, currently a self-employed highway engineering consultant, was called by the defense. For most of his career, Mr. Bryden was employed by New York State DOT in various capacities: working in the Bridge Design Division, roadway surveying, Planning Division, Engineering and Research Development Bureau, later becoming Section Director for the appurtenances and operation section of the Research and Development Bureau. As Section Director, his focus was on developing and conducting research projects, generally in the area of highway safety and highway safety features, including performance studies of traffic barriers. Guide rails are traffic barriers. His team reviewed approximately 10,000 traffic accidents in New York State involving traffic barriers and analyzed performance. He also supervised the crash test program, including tests on guide rail barriers, terminals, and a number of other roadside safety features. Thereafter, he worked in the Construction Division, focusing on work zone construction safety and review and development of standards until his retirement from DOT in 2000. He remains involved on various committees for roadside safety design.

Mr. Bryden described how Route 81 was constructed in a cut-section, meaning that the roadway surface was below the pre-existing ground; as a result, excess material was removed and the back slope was banked to a one-on-two slope to meet existing ground level. At the bottom of the fill slope a type “A” ditch was constructed, where the shoulder and the foreslope angled down to meet the back slope. The ditch was at the point of intersection between the one-on-two back slope with the one-on-four foreslope. The center of the ditch was approximately 21 feet west of the left edge of the travel lane.1[3] The pier for the Route 481 flyover bridge was placed just over 14 feet from the edge of the pavement just in front of the existing “A” ditch. By putting the bridge pier in this location some means had to be to be devised to move the water north to a drainage outlet which ties into a subsurface drainage system. There were, according to Mr. Bryden, two ways of moving the water around the pier, a subsurface drainage system or, the method selected, to add fill at a one-on-four slope to bring the intersection of the back slope out to the edge of the shoulder from the bridge pier to the end of the traffic barrier or guide rail. As Mr. Serth testified, the existing one-on-two back slope was basically transitioned into a one-on-four foreslope with fill. Although not shown on the plans, Mr. Bryden testified that based upon his inspection of the area in 2003, and some of the pictures in evidence from the date of the accident the fill actually extended well beyond the end of the guide rail. The plans do not accurately depict the fill that was added to this area.

In looking more closely at the guide rail, Mr. Bryden testified that the end treatment which was turned down and anchored by a concrete anchor block was installed in conformance with the New York State DOT design standards and procedures at that time and with national standards as well. Mr. Bryden disagreed with Mr. Serth’s position that this end treatment should have been terminated into the back slope and that, as designed, the end treatment was unsafe. Mr. Bryden also disputed Mr. Serth’s opinion that anchoring the end treatment into the back slope would have been safer or a feasible option.

Section 10.01.04 of the Highway Design Manual was written, according to Mr. Bryden, who was involved in the development of the Highway Design Manual, not for safety purposes but based upon consideration of the drainage and performance of the barrier. Mr. Bryden testified that it is good engineering practice not to anchor a guide rail in a ditch where the accumulation of water could undermine the securing of the concrete anchor and complicate the maintenance of the ditch. In such a case, where a back slope is nearby, and there is no need for excessive additional guide rail, the preferred treatment is to anchor the guide rail into the back slope. However, this doesn’t necessarily preclude a vehicle from riding up on the barrier, especially if there is a one-on-four slope. A vehicle can still proceed up the slope and get its wheels on each side of the barrier just as Dr. Hamzavi’s vehicle did. The real improvement in anchoring it into the back slope is removing it further from the roadway.

Mr. Bryden agreed with Mr. Fischer that there is a slightly rounded “V” configuration which could be referred to as a ditch, closer to the bridge pier, but he said it was not a normal longitudinal ditch as referred to in DOT documents. The area where the guide rail ends has been filled is much flatter than before the Route 481 construction. The guide rail was positioned on what is the foreslope, where the existing roadway slopes down. This area then rounds up to become the one-on-four back slope.

The Highway Design Manual sets forth the guideline for determining the amount of guide rail that should be installed. The same section that Mr. Serth relied upon, provides in another paragraph that for a fixed object of limited dimensions, such as a bridge pier, “an angle of 15 degrees from the line of guide rail to the back of the object is an accepted way to determine the start of a run of guide rail...The terminal section of rail is in addition upstream from this point.”1[4] Mr. Bryden explained that in planning for a guide rail you extend a 15 degree line from the back of the fixed hazard to the point where that would intersect the line of the guide rail. That is the “point of need” according to Mr. Bryden. In addition to that, you would add a guide rail end which is what was done here. Fifteen degrees from the south edge of the pier to the end of the guide rail (not including the terminal end) is just under 60 feet. The plans for the roadway reflect this as do the police report and Mr. Bryden’s measurements. This portion of guide rail is in conformance with the Highway Design Manual and exceeds national policies. South of this part of the guide rail are two 12½ feet W beam sections and a flat plate that goes on the end. To terminate the guide rail, there are two choices: turning the W-beam down into a buried concrete anchor block or extending it into the back slope. To terminate the guide rail at the “point of need,” Mr. Bryden said “there was no back slope available in which we could terminate it at the same height” within 10 - 15 feet. Since a guide rail cannot be turned 90 degrees to anchor it into the back slope, there has to be a flare rate of one-in-thirteen for this speed zone, so that the guide rail is moved back one foot for every 13 lateral feet. Mr. Bryden calculated it would have to be turned back at least 13 feet. This would require 169 feet of additional guide rail to the center of the existing ditch. To intercept the two-on-one back slope,1[5] as Mr. Bryden explained, “the top of the guardrail is still two and a half feet above the ground...[s]o, to gain this extra two and a half feet a one on two slope, means we need to go another 5 feet...”1[6] plus 26 additional feet to go the rest of the width of the ditch into the back slope. Thus, according to Mr. Bryden, in this situation to end the terminal in the back slope would have required an additional 200 feet of guide rail. Mr. Bryden testified that since a guide rail by itself is a hazard for errant vehicles, the goal is to install guide rail only where necessary and to minimize the length to what is actually needed to determine if the railing should be extended into the back slope. Extending the guide rail four times beyond the “point of need” was, according to Mr. Bryden, clearly not what was intended by the guide rail terminating “near a normal longitudinal drainage ditch.” The flare rate cannot be reduced because it substantially increases the potential impact angle of errant vehicles with the guide rail.

Mr. Bryden was involved in a number of crash tests while he was employed with DOT. He testified that this accident did not involve the most common involvement of a vehicle with the guide rail - which is typically contact with the front of the vehicle. This accident was outside the design parameters for the guide rail. Here, the vehicle was significantly in yaw and impacted the guide rail on the passenger side. Guide rails do not guarantee a harmless result, rather they provide a window of protection with a high degree of assurance that the guide rail will provide a less harmful event than a collision with the fixed object or other hazard.

Mr. Bryden also did not agree with Mr. Fischer’s position that the roadway presented a chute that caused the vehicle to go toward the guide rail, and that the guide rail directed the vehicle into the bridge pier. It was Mr. Bryden’s position that Mr. Fischer’s theory did not comport with engineering principles. If a vehicle lost control entering this left curve the trajectory of the vehicle would be to go to the outside of the curve unless some external force was applied to the vehicle to direct it to the inside. Mr. Bryden opined that for Dr. Hamzavi’s vehicle to have turned to the left side of this roadway and go into a counterclockwise yaw mode, it had to be steered to the left for some reason. The rate of steer exceeded the available roadway friction, causing the vehicle to go into critical speed turn,1[7] and a counterclockwise yaw.

The contact with the guide rail, at the terminal end, was at a location beyond the “point of need” or beyond the location that the guide rail is expected to perform as designed. In this accident there was controlled penetration of the vehicle behind the traffic barrier. The guide rail performance in this accident does not reflect a failure of the barrier system, according to Mr. Bryden.

The State also submitted by video deposition the testimony of Stephen M. Factor, M.D., a Board Certified Clinical and Anatomical Pathologist. He reviewed Dr. Hamzavi’s medical records and proposed three potential medical causes for the accident: suicidal action; a cardiovascular event, specifically, a sudden cardiac arrhythmia, leading to unconsciousness, or a stroke. He ruled out a suicide and a cardiac event based upon the medical history. After reviewing all of the records carefully, Dr. Factor opines that the medical cause of the accident was an intracerebral hemorrhage or cerebral vascular accident (CVA), also called a stroke. Dr. Factor opined that the evidence of hemorrhage in the brain was the initiating cause of sudden unconsciousness causing the accident. He based this on his finding of deeper brain hemorrhaging which he felt would not have been trauma-induced in the absence of a skull fracture.

Dr. Factor opined that hemorrhagic stroke is a dynamic event that progresses over time, and can be consistent with the fact that Dr. Hamzavi was fully conscious upon arrival at the Emergency Room. Dr. Factor opined that the parietal laceration down to the galea does not occur in the absence of significant skull fracture. He acknowledged on cross-examination, however, that he reviewed the CT films without the expertise of a radiologist and no autopsy was performed. Dr. Factor opined that, unlike Dr. Pugh, he did not find that Dr. Hamzavi had a contra coup injury.
Legal Discussion
The State owes to the traveling public a nondelegable duty to design, construct, and maintain its roadways in a reasonably safe condition under the circumstances (Friedman v State of New York, 67 NY2d 271, 283). This duty includes an obligation to provide adequate and proper traffic barriers, such as guide rails (McDonald v State of New York, 307 AD2d 687; Lattanzi v State of New York, 74 AD2d 378, affd 53 NY2d 1045; see generally Bottalico v State of New York, 59 NY2d 302). Yet, the State is not an insurer, and an accident, even a tragic accident, does not permit an inference of negligence (see Tomassi v Town of Union, 46 NY2d 91, 97; Boulos v State of New York, 82 AD2d 930, 931, affd 56 NY2d 714). Any roadway can be made safer but the State’s duty has generally been met when users of the highway exercising due care can travel over the roadway safely (id.). It is Claimant’s burden to show that Defendant was negligent and that its negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020; 1021-22; Hamilton v State of New York, 277 AD2d 982, lv denied 96 NY2d 704; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519). To establish the State’s negligence, Claimant must show that the State either created a dangerous condition, or had actual or constructive notice of it and failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767; Rinaldi v State of New York, 49 AD2d 361).
In the field of highway design and planning, the State is accorded qualified immunity for its discretionary decisions relating to highway planning (Weiss v Fote, 7 NY2d 579, 584-588; Friedman, 67 NY2d at 271; Alexander v Eldred, 63 NY2d 460, 466). No liability will be found against the State arising from a design and planning decision unless the evidence shows that the State’s plan evolved without adequate study, or the design or plan lacked a reasonable basis (Weiss, 7 NY2d at 586; Friedman, 67 NY2d at 284). This immunity sounds in a public policy determination, a value judgment, that a fact-finder - judge or jury- should not, with the benefit of hindsight, be allowed to second guess the decision of governmental experts in the field where the original design decisions and plan were given thorough and careful consideration and based upon a reasonable basis (Weiss, 7 NY2d at 586; Friedman, 67 NY2d at 284). “[M]ore than a mere choice between [the] 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.” (Weiss, 7 NY2d at 588). Thus, where experts in the field have opposing opinions about whether a planning decision was appropriate, this is usually sufficient to establish that the decision was in fact reasonable (Schwartz v New York State Thruway Auth., 95 AD2d 928, 929; Trautman v State of New York, 179 AD2d 635).
In determining this claim, the Court notes initially that there was a lot of evidence trying to establish why Dr. Hamzavi’s vehicle left the roadway in the first instance, whether it was his negligence, some type of emergency reaction, or some type of medical emergency. Regardless of the reason, Dr. Hamzavi’s vehicle left the travel lanes. The State is not relieved from liability in this case, for its duty to the traveling public extends to provide adequate traffic barriers (see Bottalico, 59 NY2d at 302; Martin v State of New York, Ct Cl, Midey, J., dated December 28, 2001, Claim No. 97952, [UID # 2001-009-109]). It is clear that the fact that Dr. Hamzavi’s vehicle rode up on the barrier and proceeded to contact the concrete pier was a cause of the injuries leading to his death. The question is whether the State’s design of the end treatment of this guide rail at this location was negligent (see Gutelle v City of New York, 55 NY2d 794; Gomez v New York State Thruway Auth., 73 NY2d 724, 725).
It is Claimant’s contention that the State in constructing the Route 481 bridge over Route 81 northbound installed a clear hazard, a bridge pier, only 14 feet from the left edge of the pavement. Dr. Hamzavi’s vehicle went off the left shoulder of the roadway, and although the State installed a guide rail to protect errant vehicles from striking the bridge pier, it failed to properly terminate the guide rail into the back slope in accordance with the Highway Design Manual § 10.01.04. The improper end terminal installation, Claimant argues, allowed Dr. Hamzavi’s vehicle to get partially behind the guide rail and caused it to be directed toward the pier. It is Claimant’s contention that the end treatment of this guide rail should not have been sloped down and buried, but instead should have remained level and anchored in the back slope.
It is Claimant’s position that the failure to comply with § 10.01.04 of the Highway Design Manual breached the State’s duty of care and caused Dr. Hamzavi’s vehicle to impact the bridge pier, ultimately causing his death. Claimant further argues that the State has failed to come forward with proof entitling it to immunity.
Section 10.01.04 entitled “Guide Rail Installation” of the Highway Design Manual states,
“[w]here guide rail terminates near a normal longitudinal drainage ditch in cut, extend the rail into the cut slope and anchor if required for the type of rail. A sloped terminal section would not be required for this condition.” (Exhibits 83 and 95).
The applicability of this section is a critical issue in this case, and much of the evidence presented by both sides was devoted to whether there was a “normal longitudinal drainage ditch” in this area after the construction of the Route 481 exchange bypass and, if so, whether the guide rail terminal ended “near” the ditch. If it did, then the turned down terminal end of the guide rail was not installed in conformance with the Highway Design Manual. Not surprisingly, the engineering experts for each side had opposing opinions on these issues.
In the 1963 original construction of the Route 81 highway at the location of this accident, there were two lanes proceeding in a northerly direction built in a “cut” section. At this location the roadway curves to the left with an intermediate downgrade and a cross-slope. Because the road was built as a cut section, the back slope rose to meet the existing ground surface at a one-on-two slope. A “type A” ditch existed parallel to the roadway at the location where the one-on-four foreslope graduated down from the middle of the roadway to meet the back slope. The center of that ditch was approximately 22 feet west of the edge of the pavement. In 1963, no guide rail was installed at this location because it was unnecessary. As part of the design of the Route 481 flyover, bypass guide rails were installed because bridge piers were placed within the clear zone for this type of highway.1[8] The State installed “W” beam-type guide rails, which all agree was the correct choice. To determine how much guide rail is necessary, or the “point of need” the Highway Design Manual provides that for a fixed object of limited duration the start of the guide rail should be 15 degrees as measured from the back of the fixed object to the line of guide rail, not including end treatments (Exhibit 83, Highway Design Manual § 10.01.04). In this case, this required 60 feet of guide rail, before the fixed object, excluding the end treatment, and this length was installed. Attached to this was a standard guide rail and slope down terminal consisting of two 12 ½ feet sections of “W” beam guide rail with an attached flat plate on the end, or an additional length of guide rail until the end of approximately 27 feet. The guide rail end treatment was then bolted into a concrete anchor, roughly one cubic foot, that was buried into the ground. There was no evidence of how the State reached the determination of how to terminate the guide rail at the time it was installed.1[9] Mr. Bryden testified to the different options available to terminate a guide rail, however, despite his extensive knowledge he was not privy to the decision-making process for this project. The as-built plans in evidence do not accurately reflect the location or dimensions of the drainage area in issue here or the actual area of fill. The State has not established its entitlement to immunity for its design decisions (see Matter of Estate of Hamzavi v State of New York, 43 AD3d 1430; Appelbaum v County of Sullivan, 222 AD2d 987, 989). Yet, it is still Claimant’s burden to establish that the State was negligent.
The evidence establishes that DOT has no written definition of a “normal longitudinal drainage ditch.” An engineer apparently is supposed to know one when he sees one, although none of the engineers who testified could agree on whether one existed at this location. Before the Route 481 flyover bridge was built there was a “type A” ditch on the plans which ran longitudinally along the roadway. Because of the location of the bridge pier, however, the ditch had to be moved. The experts also disagree on whether the pier was placed in front of the existing ditch or actually in it. Mr. Bryden’s testimony and Exhibit 10 show measurements, that the “as-built” design of the bridge pier placed it on the foreslope just in front of the lowest point of the previously existing ditch. Fill was added to the area reducing the pitch of the slope and bringing the area where the back slope and the foreslope meet closer to the roadway and in front of the bridge pier. Fill was added according to the plans (Exhibits 3 and 4) almost to the end of the guide rail, although from the pictures, the flatter slope seems to continue beyond the end of the guide rail more consistently with Mr. Bryden’s testimony. The addition of the fill eliminated the “type A” ditch in this area and created an 8 feet wide transitional area between the foreslope and the back slope. Mr. Serth opined that this transitional area was a longitudinal ditch, while Mr. Bryden opined that the blended transitioning between the foreslope and the back slope created a “dish” at this location. Mr Bryden testified that the fill added to the area actually extended beyond the end of the guide rail terminal 50 to 75 feet, transitioning the one-on-four back slope into the one-on-two back slope that existed prior to the Route 481 construction and south of the accident location. Mr. Serth opined that beyond the end of the guide rail, no change was made to the type A ditch, which he said was a longitudinal drainage ditch just as it existed before the Route 481 flyover was built.
Whether we refer to the area where this guide rail terminal is located as a ditch or dish, there is a low area where water is expected to drain and be moved away from the roadway. From the testimony, the Court has garnered that a normal longitudinal drainage ditch is typically four feet wide with a one-on-four slope. Mr. Serth, and even Mr. Bryden, although more vaguely, agreed that such a configuration is typically a “normal longitudinal drainage ditch.”2[0] Although, clearly, the as-built plans for the construction of the Route 481 flyover contemplated a ditch running longitudinally on the west side along Route 81 northbound, the Court does not find that this modified ditch was a normal longitudinal ditch at the location of the guide rail terminal. It clearly did not have the typical configuration and was not even identifiable at this location from the pictures in evidence. Mr. Serth’s testimony indicated that this drainage area was a longitudinal ditch, but it was clearly not the normal dimensions.2[1] Mr. Serth’s position that basically any ditch running longitudinally, that is parallel to the center of the roadway is a longitudinal drainage ditch, was not persuasive on the applicability of § 10.01.04 of the Highway Design Manual. The word “normal” was specifically used in the section, and some meaning must have been intended.
The other critical term to the applicability of § 10.01.04 of the Highway Design Manual, is the word “near” in relation to the end of the guide rail to the ditch. From the pictures in evidence, it appears that the back slope is more in line with Mr. Bryden’s testimony and well beyond the guide rail end (Exhibits 130, 150, 153, 154, 238, and 239). This is particularly evident in Exhibits 130, 150, and 154, and even more apparent if this is assessed from the end of the “point of need” which is roughly 27 feet from the end of the guide rail, further north; at a point, both experts agree, was an area of gradual transitioning between the foreslope and the back slope. Mr. Bryden persuasively testified, which seems consistent with the pictures in evidence, that at that location there is no back slope within 10 to 15 feet behind where the guide rail ends. Mr. Bryden testified in detail, set forth above, to reach the back slope, 200 feet of additional guide rail would be necessary or almost a four-fold increase beyond what the Highway Design Manual would consider the point of need. Mr. Bryden who had extensive expertise, persuasively testified, that adding this length of additional guide rail beyond the point of need would contravene the objective to use only the amount of guide rail necessary to protect vehicles from the fixed hazard so as to limit the obstruction from the guide rail itself, as well as to minimize cost. Although Claimant argues that cost should not be a decisive factor, both safety and cost are factors repeatedly mentioned for consideration in the Highway Design Manual sections in evidence. Even Mr. Serth testified that the guide rail should be run into the back slope not turned down “when we can, for the same price basically, run it into the back slope.”2[2] Mr. Serth’s drawing on Exhibit 153, which admittedly is only a rough estimate of how the guide rail would be anchored into the back slope, does not take into account the extent of additional guide rail that would be needed to comply with the necessary flare rate. Although Mr. Bryden’ s measurements of the amount of additional guide rail needed is only an estimation, it is very clear that the guide rail was not placed where the foreslope met the back slope, and to reach the back slope, the necessary flare rate would have required significant additional guide rail. This would not have even met Mr. Serth’s description of what is “near” a longitudinal drainage ditch.2[3] With the evidence before it, the Court finds that the State’s decision to use a turn down termination end for this guide rail complied with the existing standards at the time and § 10.01.04 of the Highway Design Manual was not applicable to this location. Thus, Claimant has not established that the State’s end-treatment installation at this location was negligent.
Nor was the State placed on notice after the installation that this turned down end terminal was a hazardous condition at this location. Even coupled with the other conditions presented at this location on the roadway, as Mr. William Fischer and Mr. Serth pointed out, i.e, the concrete barrier only 14 feet off of the roadway, and the cross-slope creating a “V” like configuration with the back slope, there was no evidence of other accidents here for the 26 years this end treatment had been in place. Without notice that a dangerous condition existed, the State did not breach its duty to the traveling public by failing to terminate the guide rail into the back slope.
Despite the horrifically tragic circumstances here, based upon the evidence presented, the Court does not find that Claimant has established the State negligently caused Dr. Hamzavi’s injuries and wrongful death.
All motions not previously decided are hereby denied.
July 6, 2009
Syracuse, New York
Judge of the Court of Claims

[1]. Hamzavi v State of New York, Ct Cl, Fitzpatrick J., dated January 16, 2006, Claim No. 106918, Motion No. M-70297 [UID # 2006-018-498], affd 43 AD3d 1430.
[2]. Exhibit 118, continuation sheet page 1, paragraphs 3 and 7.
[3]. Mr. Galloway is now a Lieutenant with the Fire Department in the Fire Investigations Bureau.
[4]. The Glasgow Coma Scale is an assessment of a patient’s general level of consciousness, it has three parts with a possible classification for each part of four, five and six or 15 total (Transcript, March 3, 2008, page 69, lines 9 - 25).
[5]. Yaw was defined as the rotation of a vehicle around a vertical axis. It is depicted by a change in the tire tracks from two paths, as the vehicle travels straight down the roadway, to three paths as the vehicle begins to turn on its vertical axis, until it continues to rotate sideways and the paths cross over to become two wider paths, as the path is then the width of the wheel base of the vehicle (Transcript, March 4, 2008, pages 25 - 30).
[6].Maximum or peak engagement is the point at which the vehicle contacts the pier, and the kinetic energy of the vehicle causes it to wrap around the angled pier to some degree. It is after this point that the vehicle has some elastic recovery back toward its original shape as it moves away from the pier (Transcript, March 4, 2008, page 98, lines 15 - 25, page 99, lines 1 - 7). See Exhibits 245 - 247.
[7]. Which according to Mr. Serth means that for every four feet you go horizontally, the foreslope will go down or the back slope will go up one foot (Transcript, March 5, 2008, page 19, lines 2 - 5).
[8]. According to Mr. Serth, the American Association of State Highway Transportation Officials (AASHTO) recommend a clear zone of 30 feet for any roadside hazard on interstate highways (Transcript, March 5, 2008, page 22).
[9]. Exhibit 95, the parties stipulated to the relevant Highway Design Manual as it has been subsequently modified.
1[0]. Exhibit 3.
[1]1. Exhibit 4.
1[2]. Transcript, March 5, 2008, page 79, lines 1 - 5.
1[3]. Exhibit 14, Typical Sections II of the design plans for the Interstate Route 81 roadway show a distance of 22 feet ⅝ inches from the edge of the pavement to the center line of the ditch.
1[4]. Exhibit 95, § 10.01.04, page 10 - 13.
1[5].At a point 169 feet upstream or south of the bridge pier, the existing one-on-two back slope exists as no modification to the existing slope, at this point, was part of the Route 481 construction.
1[6].Transcript, March 5, 2008, page 143, lines 16 - 25.
1[7]. Critical speed turn is when the vehicle speed exceeds the radius of curve that the available roadway friction can sustain between the roadway surface and the vehicle tires and at that point the vehicle cannot turn any steeper and it goes into a skid, partially sideways (see Transcript, March 6, 2008, page 54, lines 17 - 24).
1[8]. There was no evidence presented that the placement of the bridge piers at this location was a negligent design decision, although raised in the claim (Verified claim ¶ 4).
1[9]. The Route 481 project was designed by private design engineers, Dewberry, Goodkind, Inc.; however, they were not responsible for the physical design of the guide rail or the end terminal (see Exhibit KKKKK). In any event the State’s duty is nondelegable.
2[0]. Transcript, March 5, 2008, page 68, lines 6 - 10; Transcript March 6, 2008, page 74, lines 7 - 24.
2[1].Transcript, March 5, 2008, page 34, lines 22 - 25; see also page 68, lines 4 - 10.
[2]2. Transcript March 5, 2008, page 42, lines 18 - 22.
2[3]. See Transcript March 5, 2008, page 79, lines 1 - 5.