New York State Court of Claims

New York State Court of Claims

Gardner v. STATE OF NEW YORK, #2009-018-047, Claim No. 109520


The law requires an assessment of Defendant’s conduct in light of what is reasonable under the circumstances. Based upon weather conditions, DOT’s 24-hour snow and ice removal efforts, and available resources and manpower required to remove the accumulated snow, the Court finds that the State could not have reasonably removed the accumulated snow before Decedent’s accident.

Case Information

Brandon William Gardner, Individually and as Administrator with Will Annexed of the Estate of William G. Gardner, Cynthia Ann Gardner and Ryan J. Gardner
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:
Defendant’s attorney:
Attorney General of the State of New York
By: Roger B. Williams, Esquire
Michele M. Walls, EsquireAssistant Attorneys General
Third-party defendant’s attorney:

Signature date:
October 2, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants bring a claim for the wrongful death of William G. Gardner as a result of a one-car accident on an elevated portion of New York State Route 81 northbound over Park Street in the City of Syracuse. Mr. Gardner lost control of his rental vehicle in the farthest left passing lane, struck the left concrete median barrier and proceeded to cross all lanes of traffic, riding up and vaulting over the snow-covered concrete barrier on the far right side of the highway. Mr. Gardner’s vehicle fell approximately 49 feet, landing on its roof on Park Street. The claim asserts the State’s failure to properly maintain[1] the Park Street Bridge location on Route 81 northbound for proper snow and ice removal, failure to properly warn of the dangerous icy condition on the Park Street Bridge, or the propensity of the bridge to become icy or the risk of vaulting. It also asserts that the State had notice of the dangerous condition of the bridge for ice and snow buildup and the potential for vaulting, yet, failed to take any reasonable measures to warn, close the highway, or remedy the problem, even after a prior fatal vaulting accident on the bridge on January 23, 2004. This Decision addresses only the issue of the State’s liability.

The Gardner Accident
William Gardner was born on December 19, 1953, in Lyons, New York. At the time of the accident, Mr. Gardner was a resident of California and worked as the Director of Space Technology at the Jet Propulsion Laboratory with NASA in Los Angeles. On January 20, 2004, Mr. Gardner rented a Kia Sportage, a sport utility vehicle (SUV) in Philadelphia, Pennsylvania. On January 25, 2004, he was driving the Kia on Route 81 northbound from Vestal (near Binghamton), New York; the Kia was scheduled to be returned to Syracuse Hancock International Airport that day.[0]

On that Sunday morning at approximately 8:54 a.m., Mr. Gardner lost control of his vehicle. Daniel Manns and his passengers, Lori and Michael Kennedy, witnessed Mr. Gardner’s vehicle in the left passing lane hit the snowbank alongside the median jersey barrier, cross the three lanes of traffic and the Hiawatha Boulevard on-ramp lane, and go over the far right jersey barrier. Mr. Manns testified that as he was driving 47 miles per hour (mph), Mr. Gardner’s vehicle had passed him earlier, and he estimated that Mr. Gardner was traveling at 55 mph. When Mr. Manns witnessed Mr. Gardner’s vehicle lose control, he placed the Kia 10 car lengths in front of him. Mr. Gardner’s brake lights blinked on and off, and the tires on each side of the vehicle successively came up off the road as the vehicle slid northbound almost perpendicular to the jersey barrier. Mr. Manns testified that he could see the vehicle’s front wheels turning to the left and then to the right and then to the left again. The Kia was, according to Mr. Manns, perpendicular to the right jersey barrier when it went over, falling onto Park Street. Mr. Gardner was pronounced dead at the scene. He died as a result of the multiple blunt force injuries he incurred from the accident.[0]

Mr. Manns testified that when he got out of his vehicle the roadway was slippery. He also testified that he saw another SUV lose control in the same area. It struck the right side jersey barrier and traveled up the snowbank a little but did not go over.
The Syracuse City Police Department was called to the scene of Mr. Gardner’s accident and conducted an investigation. Upon arrival on Park Street, Officer Gary N. Bulinski observed that the overturned Kia was facing southbound in the northbound left-turn-only lane. Mr. Gardner was seatbelted and the sole occupant of the vehicle. Officer Bulinski, who testified and prepared the accident report,[0] thereafter went to the Route 81 northbound Park Street Bridge area. He described the road as a concrete surface comprising four northbound lanes. The driving lanes were each 12 feet wide with 10-foot-wide shoulders. Officer Bulinski found the roadway was icy, as the temperature at that time was -9°F. Concrete barriers on the left divide the north and southbound lanes of Route 81 (the median barrier) and also run along the right side of the roadway (the fascia barrier). These barriers, referred to as jersey or concrete barriers, or parapet walls during the trial are 3 feet high, made of concrete, and are wider at the bottom than at the top. The barrier design is intended to redirect errant vehicles back onto the highway.

On the Park Street Bridge, Officer Bulinski observed tire marks in the snowbank along the median barrier; the tire marks led to the top of the barrier then continued back into the driving lanes in a northeasterly direction. Strictly measuring the distance from the point the vehicle re-entered the left driving lane until it entered the right snowbank, it was approximately 304.3 feet.[0] All four tires made tracks in the snow indicating the vehicle moved up the compressed snowbank and proceeded over the top of the barrier. The vehicle then fell 48.8 feet vertically and 62 feet horizontally onto its roof in the northbound left-turn-only lane on Park Street. The vehicle struck the compressed snow on the right side of the roadway at a 45-degree angle.

Officer Bulinski concluded, after investigating the accident scene, that road conditions and speed initially caused Mr. Gardner to lose control of the vehicle, although Mr. Gardner was not speeding, his speed was not prudent for the road conditions at the time.

It was Officer Bulinski’s opinion that Mr. Gardner never regained control of the vehicle after it struck the median barrier. Using the “minimum initial velocity formula,”[0] Officer Bulinski calculated that the vehicle was traveling at approximately 38 mph when it struck the snowbank in front of the median concrete barrier and 33 mph when it exited that snowbank. The vehicle traveled at 26 mph as it slid up the snowbank in front of the right fascia barrier. Officer Bulinski testified that the snowbank, at the location where the vehicle exited Route 81, was hard and compressed, “almost like concrete”[0] and it formed a 35-degree angle, which he found caused the vehicle to ramp or vault over the barrier. The compressed snowbank in front of the right fascia barrier had a 5-foot base and a hypotenuse of 6 feet. The accumulated snow was the cause of the vehicle exiting the highway according to Officer Bulinski. The snow was 6 inches higher than the top of the barrier.

Officer Bulinski calculated that Mr. Gardner was traveling at 24 mph when his vehicle left the highway using the “Fall Formula.”[0]
Officer Bulinski opined that if the snowbank in front of the right fascia barrier had been below the top of the barrier, the barrier would have redirected the vehicle onto the highway. The actual speed of Mr. Gardner’s vehicle may have been faster than calculated, as the coefficient of friction Officer Bulinski used reflected a very slippery consistent surface. Officer Bulinski also assumed Mr. Gardner was continually braking during the skid, although Mr. Manns testified the vehicle’s brake lights came on and off, suggesting Mr. Gardner may have been pumping his brakes. The Kia was equipped with antilock brakes, which, for proper usage, required constant pressure on the brake pedal. Bruce Clark, the leader of the automotive mechanic crew for the Syracuse Police Department, inspected the Gardner vehicle and testified that the vehicle would have met New York State safety standards for purposes of passing a New York State inspection.
The Rhoades’ Accident
Almost 37 hours before Mr. Gardner’s accident, Jason M. Rhoades was traveling northbound on Route 81 at approximately 8:05 p.m. on Friday evening, January 23, 2004, when he lost control of his vehicle, a 2002 GMC Envoy with a trailer and snowmobile in tow. Christopher Cassoni was also driving the same route on his way home that evening. Mr. Cassoni passed Mr. Rhoades and saw, from his rearview mirror, Mr. Rhoades’ vehicle and the trailer cross all three lanes of traffic, swaying with brake lights flashing. Mr. Rhoades’ vehicle moved toward the right shoulder, rode up a compressed snowbank and went over the fascia barrier. Mr. Rhoades’ vehicle fell 36.3 feet into a ravine below.[0] Mr. Rhoades was pronounced dead at the scene. The trailer which he had been towing broke off from the vehicle and came to rest 22 feet north of where his vehicle went over the barrier.

Officer Bulinski also took measurements for Mr. Rhoades’ accident and testified that Mr. Rhoades’ vehicle went over the right concrete barrier approximately 100 yards from where Mr. Gardner’s vehicle left the roadway. The two police reports, in evidence for each accident, reflect identical reference point information for the location of the accidents: .10 miles north of the intersection with Hiawatha Boulevard, by mile marker 81133032166.[0] The compressed snow along the fascia barrier at the time of Mr. Rhoades’ accident measured the exact same height, depth, and grade as the snowbank at the time of Mr. Gardner’s accident.

Officer Lonnie Dotson, Jr., investigated Mr. Rhoades’ accident that night and testified that tire marks led directly to the snowbank in front of the right barrier, and then the tire tracks could be seen at the top of the snowbank where Mr. Rhoades’ vehicle left the roadway. Officer Dotson calculated that Mr. Rhoades was traveling 25 mph when his vehicle left the roadway. At the time, the roadway was icy and snow-covered. It was lightly snowing that night and the temperature was 10°F.

After a complete investigation of Mr. Rhoades’ accident, Officer Dotson filed a report on February 2, 2004.[0] Officer Dotson found several factors involving Mr. Rhoades’ vehicle contributed to the accident, but he also found that a direct cause was the vehicle riding up the compressed snowbank and falling into the ravine below.
Minutes after Mr. Rhoades’ accident that Friday evening on Route 81 northbound, another driver, Mr. Diem Nguyen, lost control of his vehicle, which slid to the right and hit the concrete barrier at about a foot from the top. His vehicle became stuck in the snow and had to be towed. The tow truck driver, Charles Campbell, testified that his tow truck started to slip sideways as he tried to pull out the Nguyen vehicle with a winch. Mr. Campbell recalled it was very cold, icy, and snowing the night of Mr. Rhoades’ accident.

The weather at the time of Mr. Gardner’s accident was clear and sunny, although it was exceptionally cold at -9°F. The weather had been particularly harsh for the month; records for the past 83 years showed that January 2004 in Syracuse was, on the whole, the fourth snowiest and sixth coldest month. By January 25, 47.9 inches of snow had fallen with an average snow depth on the ground of 19 inches.[0] Starting on January 22, 5.8 inches of snow fell with freezing fog and blowing snow with winds averaging 19.5 mph. On January 23, 5.6 inches of snow fell with freezing fog, mist, and blowing snow with wind speeds averaging 14.4 mph. On January 24, 1.9 inches of snow fell with freezing fog, mist, and blowing snow with wind speeds averaging 7.9 mph, with gusts as high as 23 mph. On the day of the accident there had been .2 inches of snow but it had stopped snowing by 2:43 a.m. There was some mist that day but the winds had died down considerably with the average wind speed on January 25 being 2.8 mph. A low record temperature was set for that day of -15°F.[0] Although the majority of weather data in evidence originates primarily from Hancock International Airport, which is 4 miles northeast of the accident site, there is no evidence to suggest the data was not representative of the weather at the site of the accident.[0] The local “Accuweather” forecast and the forecast from WIXT [0] are provided to the local Onondaga East Residency of the New York State Department of Transportation (hereinafter DOT) and accurately predicted the actual weather for Friday, January 23, 2004, through Sunday January 25, 2004.

DOT Ice and Snow Procedures
Maintenance of the Route 81 Park Street Bridge at the site of the accident was the responsibility of the Onondaga East Residency of DOT. The Onondaga East Residency is in DOT Region 3 and includes Route 11 or Interstate Route 81 at its western border, to Oswego County as the northern border, Cortland County to the south, and Madison County to the east. Douglas Hill was the Resident Engineer there at the time of this accident. There were two assistant resident engineers under him, two level two supervisors (HMS-2 positions), and six level one supervisors (HMS-1 positions). The residency for the winter of 2004 had approximately 70-80 employees basically working two shifts: the A-shift, from midnight until 8:30 a.m., if there wasn’t any snow, and until noon if there was snow; the B-shift from noon until 8:30 p.m. if there wasn’t any snow, and until midnight otherwise. Each of the two shifts would usually have an HMS-2 supervisor and two HMS-1 supervisors patrolling the roads, checking conditions and resources. The priority in the winter months is snow and ice removal with all other work secondary - only to replacement of regulatory signs.

Interstate highways, including Route 81, are given the highest priority for wintertime maintenance. This is because Route 81 northbound in the vicinity of the Park Street Bridge exceeds 70,000 vehicles passing on the roadway per day. Within the area covered by a residency, each maintenance truck is responsible for a particular “beat” or route within the area. There are 15 beats within the Onondaga East Residency and 9 of those beats involve Interstate 81.[0] Five of those 9 beats cover the Park Street Bridge roadway northbound.1[7] This priority for Route 81 means that each truck travels less lane miles than trucks on lesser class highways, and the result is a shorter cycle time between repeat runs of each beat. In 2004, the residency followed the December 1993 New York State DOT Highway Maintenance Guidelines Snow and Ice Control (hereinafter Guidelines).[0] In conducting its plowing priorities during a snow event, the Onondaga East Residency would first clear all of the travel lanes. Once snow has slowed or stopped falling, snow removal would continue for all crossovers and “gore” areas.[0]

The snow and ice directory for DOT Region 3 specifically notes that DOT does not have the authority under the Highway Law to close any highways. If a roadway is impassible, the information must be relayed to the news and media outlets that no travel is advised. Only police agencies have the authority to close highways. Mr. Hill testified that he was called by the dispatcher of the residency on the day of the Gardner accident at approximately 9:30-9:45 a.m. He went to the accident site with the HMS-2 supervisor, Randy Durate, although the Syracuse Police prevented their access to the accident scene. By the time of their arrival, all traffic had been diverted off of Route 81 northbound by the police. Mr. Hill estimated the distance between the location where Mr. Gardner’s vehicle had displaced the snow on the left-hand side of the roadway to where his vehicle went over the barrier on the right to be 360 feet, based upon his knowledge of the distance between the roadway markings. According to Mr. Hill, the roadway markings and the edge stripes on both sides of the roadway were visible at the time he was there. Mr. Hill also testified that he stepped onto the snowbank approximately 10 to 15 feet south of the location where Mr. Gardner’s vehicle made contact, and his foot went into the snow up to his knee. He stepped into the snowbank at another location with the same result.

Mr. Hill was advised of Mr. Rhoades’ accident and death on Friday night by Alexander Ryan, the HMS2 Onondaga East Residency Supervisor on duty that night, who went to the scene of the accident. Mr. Hill did not go to the scene. He testified DOT did not investigate Mr. Rhoades’ accident that night, nor was any effort made to remove the snow from in front of the parapet walls on the Park Street Bridge or post warning signs. Mr. Hill, as the Resident Engineer, in conjunction with the shift supervisor, would normally have the ultimate responsibility for determining when the snow on the shoulder of a roadway must be removed.

In this case, after Mr. Gardner’s accident, the Syracuse Police Department closed Route 81 and directed all of the snow be removed from in front of the parapet walls before the road would be reopened. Normally “echelon plowing”[0] would be required to remove the snow from the median side of the roadway to the right shoulder. Several plows would be staggered from left to right moving the snow across the roadway. This usually requires police assistance to slow traffic. Often echelon plowing leaves some snow in the road, to which deicing material is applied. On this occasion, because of the road closing, a few plows were used to move the snow over the roadway with each pass. Once the snow was moved over to the right-hand shoulder, a large snowblower was used to blow the snow to the ground below the highway.

The Onondaga East Residency did not have a snowblower large enough for this task, so it borrowed a snowblower from another residency. The region has a total of five large snowblowers which are mostly concentrated in Oswego County. The large snowblower is a self-contained unit that travels slowly, requires two operators, and must be transported on a flatbed truck  to the location where it will be used. If the snow cannot be blown safely off the roadway, DOT would contract for the use of dump trucks. Snow would be blown into the dump trucks and trucked off site. The snow removal process on January 25, 2004, took approximately six hours to accomplish with the highway closed. After the snow was removed from in front of the parapet walls, the Syracuse Police Department reopened the roadway.

Mr. Hill testified that except for construction and maintenance activities, the engineers and staff of the Onondaga East Residency would not have placed warning signs or modified the speed limit; authorization for such actions would have had to come from the Traffic Engineering and Safety Group. After Mr. Rhoades’ accident, the Onondaga East Residency continued with regular snow and ice removal operations.

The day after Mr. Rhoades’ accident, and the day before Mr. Gardner’s accident on January 24, Carl Ford, the DOT Regional Transportation Maintenance Engineer for Region 3, responsible for snow and ice management and highway and bridge maintenance for the entire region, drove to the scene of Mr. Rhoades’ accident at 4:00 a.m. to take a “look at the bridge.”[0] Mr. Ford drove over the bridge but never stopped or exited his vehicle. He then spoke to Mr. Randy Durate, the Onondaga East Residency Supervisor on duty that day about the accident. Mr. Ford learned that Mr. Rhoades’ accident was a fatality and that the residency was continuing snow and ice removal operations as there was still precipitation in the travel lanes. In response to a question about why the snow was not removed from in front of the concrete barrier on the Park Street Bridge after Mr. Rhoades’ accident, Mr. Ford testified that the residency lacked the resources because the plow truck operators were engaged in ongoing snow and ice removal operations.

After Mr. Gardner’s accident, again on January 25, 2004, Mr. Ford went to the scene. He testified that he did not find the snowbank in front of the right barrier to be “like concrete,” as others had said. Mr. Ford maintained his opinion that following Mr. Rhoades’ accident, there was no opportunity or ability for the residency to remove the snow along these parapet walls because of the lack of resources, as ongoing snow and ice removal operations were engaged prior to Mr. Gardner’s accident. Mr. Ford acknowledged that accumulated snow in front of concrete barriers can create a ramping situation which would render the barriers ineffective.

Raymond McDougall was the Assistant Regional Traffic Engineer in the Traffic Engineering and Safety Group at the time of these accidents. His department was responsible for all of the traffic engineering devices (i.e., signs, signals, markings) for the 1,500 miles of State Highways in Region 3. Traffic engineering studies are conducted by this office. His office also maintained a “location file,” which is a folder containing any studies, complaints, or other information about a particular segment of the highway system. Records are maintained in the location file for at least 10 years. Mr. McDougall reviewed the location file for the Park Street Bridge location of Route 81 north and found no complaints regarding this section of highway, and the only accidents referenced were that of Mr. Rhoades on January 23, 2004, and Mr. Gardner’s accident on January 25, 2004.

Mr. McDougall’s department determines the appropriate speed limit on any stretch of highway within the region. Only one roadway in the region has a temporary speed limit change, a seasonal reduction, implemented after two studies of the roadway were conducted. Although studies are not required to make a speed limit change on an interstate highway, a study would be required to make a temporary speed limit reduction, and that would typically take at least a month to complete. A temporary or seasonal change in the speed limit takes into account developments along the roadway, characteristics of the roadway, and usually a study of the 85th percentile speed [0] traveled - which, in Mr. McDougall’s estimation, is the best indicator of what the speed limit should be at a particular location. Any proposed reduction would also have to be approved by Mr. McDougall or his supervisor, and his office is not staffed on weekends.

Mr. McDougall testified that, in his opinion, based upon the regulations in the Manual of Uniform Traffic Control Devices (MUTCD)2[3] (17B NYCRR § 212.2), it was not appropriate to temporarily change the speed limit at the Park Street Bridge location after Mr. Rhoades’ accident - a history of accidents would be required. Mr. McDougall was aware of a prior vaulting accident during the winter of 1994 by Mrs. Anne Vislosky.2[4] Mrs. Vislosky testified that she vaulted over the Route 81 southbound right fascia barrier with plowed snow in front of it and, fortunately, survived but with significant injuries.

Portable variable message signs also fall under Mr. McDougall’s department’s jurisdiction. Such signs are large message boards which must be towed to the site and are limited to three lines of eight letters per line. The use of these signs is discretionary under the MUTCD (17B NYCRR § 201.3). Mr. McDougall testified that the signs are difficult to place in an urban setting and they can be a potential hazard to the traveling public. The signs are typically used to notify the public of major events, i.e., graduation at Syracuse University, the New York State Fair, or to introduce a new signal device. In Mr. McDougall’s opinion, a variable message sign would not have been appropriate after Mr. Rhoades’ accident to advise additional caution on the bridge or to warn of the winter driving conditions. Mr. McDougall’s department would not have investigated Mr. Rhoades’ accident unless requested, but the police investigation reports of accidents are reviewed for purposes of traffic safety. In this case, Mr. McDougall’s office did not receive copies of the police reports until two weeks after the accident.

Mr. McDougall also did not feel that a warning sign was appropriate for this location after Mr. Rhoades’ accident. First, placement of a warning sign under the applicable regulations for a 55 mph speed zone would require placement 830 feet before the Park Street Bridge

(17B NYCRR table 230-1 and 230-2). The “icy pavement zone” sign (17B NYCRR § 234.9) would not be appropriate, as the sign is not intended to warn motorists of typical winter driving conditions. An advisory speed limit sign is not intended as a use-alone sign but is intended to be used with another warning advisory sign like the “curve ahead” sign (17B NYCRR § 239.1). According to Mr. McDougall, flashing beacons or warning flags on a warning sign are used only as a secondary attention signal if a warning sign alone does not get the desired result. Reducing the number of lanes at the Park Street Bridge location of Route 81 north also would not have been appropriate, according to Mr. McDougall, and he was unfamiliar with any such option being utilized during his 40 years with DOT.

The Onondaga East Residency is responsible for addressing the highway situation, such as what developed over the weekend of January 23-25, 2004, because there would be insufficient time for Mr. McDougall’s department to conduct a study of the situation. It was Mr. McDougall’s opinion that a warning sign was not necessary, and flashing beacons, which he opined could not be used alone, could not be used after Mr. Rhoades’ accident to give guidance to the traveling public of the risk of vaulting or ramping over the parapets. Mr. McDougall indicated the cause of Mr. Rhoades’ accident was “the fault of the driver.”[0] Although Mr. McDougall agreed that snow and ice plowed over the top of the concrete barrier presents a hazard, or as he defined it, a condition which could cause an accident to other drivers.[0]
Expert Testimony
The Claimants called Thomas Fries, a mechanical engineer with specialities in Automotive and Structural Engineering licensed in Oregon, Washington, and Idaho. Mr. Fries also has his master’s degree in business administration. He is an accredited traffic accident reconstructionist from the Accreditation Commission for Traffic Accident Reconstruction (ACTAR). He estimated that he had handled approximately 3,000 accident reconstruction cases during his career. He maintains an office in Portland, Oregon.

Based upon the information Mr. Fries reviewed in this case, he arrived at several opinions within a reasonable degree of engineering certainty:

Mr. Fries based his opinions on the photos in evidence showing the displaced snow in front of the concrete barrier and roadway. The photos of the car show no damage to the front bumper, undercarriage, or tires. Mr. Fries testified that the purpose of the jersey barrier was to take the momentum of the vehicle and redirect it back onto the roadway with minimal damage. In order for the barrier to work properly there has to be contact with the barrier, and there was no evidence, according to Mr. Fries, that Mr. Gardner’s vehicle ever made contact with the jersey barrier. Mr. Fries examined the approach angle and speed of Mr. Gardner’s vehicle when it came into contact with the left median barrier, and he determined it was effective at a high momentum or force, as Mr. Gardner’s vehicle struck that barrier initially at approximately 55 mph and near a 30-degree angle, yet the vehicle was redirected onto the roadway. It was Mr. Fries’ opinion that plowing snow so that it accumulated to a level over the jersey barrier, effectively defeated the purpose of the right concrete parapet. Mr. Fries opined that after Mr. Rhoades’ accident, the priority should have been to eliminate the danger on the roadway; the roadway should have been closed down and the snow removed from in front of the barriers as it was after Mr. Gardner’s accident.

Mr. Fries calculated that Mr. Gardner’s vehicle departed the right fascia barrier at a 25- degree angle, in opposition to Officer Bulinski’s finding based upon the tire marks that he left on the highway at a 45-degree angle. Mr. Fries explained, that unlike Officer Bulinski, his calculation measured the momentum trajectory, the path or center of gravity of the vehicle, without the rotation of the vehicle. The way the vehicle rotates doesn’t matter; according to Mr. Fries, the barrier is supposed to deflect it regardless of what component of the vehicle, as it rotates, hits the barrier.

Mr. Fries was of the opinion that a temporary sign warning of an icy pavement zone on the Park Street Bridge should have been placed prior to the accidents but especially after they occurred. He felt a variable message sign placed 100 feet before the bridge was necessary to get drivers’ attention that there was a “unique, special hazard with this over-pass,”[0] and they should slow down, unless the snow accumulation in front of the barriers was removed. He also felt that a speed reduction sign should have also been installed after Mr. Rhoades’ accident. Flashing beacons should have also been used to draw motorists’ attention to the sign.

Mr. Fries acknowledged, on cross-examination, that Mr. Gardner should have been traveling slower that morning, as a driver has a duty to maintain control of his or her vehicle. From the pictures in evidence, he agreed that although the other lanes appeared clear, the lane in which Mr. Gardner was traveling that morning was still covered with some snow. Again, from the pictures in evidence, it appeared that before Mr. Gardner struck the left side median barrier he was braking for approximately 33 feet to 35 feet, and after striking the barrier, the vehicle proceeded 375 feet before striking the right fascia barrier. With continuous braking, Mr. Fries agreed that over 400 feet should be sufficient to stop a vehicle, although very little deceleration would occur on ice.

Although Mr. Fries opined that a variable message sign was necessary to warn drivers of the hazards on this roadway, he did not know where such a sign could be located and he acknowledged that placement of the sign itself could be a hazard.

The State called Mr. Duane Amsler, an expert witness. Mr. Amsler has a two-year associate’s degree in engineering from Hudson Valley Community College. At the time of this trial, he was retired from DOT after 34 years. At the time of his retirement, he was the Manager of the System Operation Section of the Highway Maintenance Division and was specifically responsible for the snow and ice control program, maintenance training program, and maintenance communications program. Prior to that position, he was the program engineer for snow and ice control from 1987 through 1994, and was involved with snow and ice control research during this time. Since then he has worked with the National Cooperative Highway Research Program which does research for the American Association of State Highway Traffic Officials (AASHTO). Mr. Amsler also provides training to supervisors regarding the theory and practice of snow and ice control - proper materials, proper plowing, and safety issues.

In 1990, Mr. Amsler was involved with the creation of new Snow and Ice Control Guidelines for DOT. He worked with a committee of 16 DOT employees from around the State who had a particular interest and experience in snow and ice removal to develop the official Snow and Ice Control Guidelines adopted by the DOT in 1993.[0] These Guidelines were intended to provide guidance for snow and ice control with local interpretation and discretion. Mr. Amsler has drafted similar Guidelines for the New York State Thruway Authority and the States of Arizona, Connecticut, and Washington.

In describing Route 81 north at the location of the Park Street Bridge, Mr. Amsler noted there is a passing lane, center lane, and driving lane, with a fourth lane that starts as an on-ramp from Hiawatha Boulevard and becomes a driving lane. Each driving lane is 12 feet wide. The left shoulder at this location is 8 feet 9 inches, and the width of the right-hand shoulder is 10 feet. The roadway has a designed cross slope, which means that from the small crown at the point between the driving lane and the center lane, the road slopes to the right on the right side and to the left on the left side. Mr. Amsler opined, to a reasonable degree of engineering certainty, that this design is good for purposes of snow and ice control. Plowing of the roadway involves moving snow from the passing lane to the left-hand or median side of the highway, and the snow in the center and driving lanes is plowed to the right side of the highway.

Mr. Amsler testified that at the time he was working on developing the Guidelines for the DOT in the 1990’s, he was aware of a federal report which indicated that the plowing of snow up against bridge railings caused or contributed to traffic accidents. Mr. Amsler felt there was a lack of supportive data in the federal report. Mr. Amsler inquired into any State accidents involving snow plowed against a bridge barrier at the time and was made aware of two accidents. One, on the New York State Thruway, which involved a vehicle striking the piled up snow at the end of a bridge and being redirected onto the highway on its roof (Gomez v New York State Thruway Auth., [Ct Cl, McMahon, J., December 30, 1986, Cl. No. 69823]; affd 135 AD2d 1043, affd 73 NY2d 724), and the other accident, in Delaware County, involved a vehicle going over a median barrier. Given the rarity of these accidents, at the time, the committee drafting the Guidelines did not feel that it would be worth the enormous investment to try to clear the 4,000 miles of barriers and 7,800 bridge decks around the State after each snowstorm. DOT simply lacked the resources to engage in such an effort.

The goal of the Guidelines was to “provide a highway that is passable and reasonably safe for vehicular traffic as much of the time as is possible within the limitations imposed by climatological conditions and the availability of equipment, material and personnel resources.”[0] The Guidelines,[0] at § 5.3307 (B), “Removal of Snow from Special Areas,” provides, “When possible, accumulated snow should be removed from locations that could melt during the day, drain across the deck, and freeze at night. Bridge drainage features should be cleared to facilitate the designed discharge of water. Also, bridges having features to prevent plowed snow from leaving the bridge should have the accumulated snow removed to make room for the next storm.” Subsection A of § 5.3307 provides that “[a]fter the storm is over...the removal of snow from special areas should commence.”3[1]

Mr. Amsler explained that as long as the plowed snow did not impact the driving lanes, i.e., was not melting across the travel lanes with the potential to refreeze, and as long as there was sufficient storage room on the shoulder for any additional snow in the event of another snowstorm, removal of the snow was not necessary. The determination of whether there was sufficient room for snow storage for the next snow event was a discretionary, local determination typically made by the HMS-2 on duty. The committee felt that removal of the snow itself posed a dangerous operation. As a result, if the snow had to be removed, the operation should be performed at an off-peak traffic time, either weekends or nights. Removal efforts could only be undertaken when no additional bad weather was expected.

In preparation for his testimony in this case, Mr. Amsler requested the same vaulting- accident data he had obtained from the State DOT in the 1990’s while developing the Snow and Ice Removal Guidelines. Based upon his survey of the resident engineers from the various locations across the State, 17 vaulting type accidents were identified from 1984 through 2007. In Mr. Amsler’s experience, the critical component in the vaulting cases was not the snow and ice buildup but the impact angle of the vehicle to the barrier. The barriers were, according to Mr. Amsler, designed to deflect vehicles back onto the highway when the strike angle was 15 degrees or less, and most of the vaulting cases involve substantially higher angles of contact.

In reviewing the weather conditions and the plowed snow accumulations at the location of the Park Street Bridge for the period from January 22 through January 25, 2004, Mr. Amsler opined that the Guidelines did not recommend removal of the snow from in front of the parapet walls because drainage of water and snow off of the highway was good, and there was still plenty of storage room for additional snow. The accumulation of snow beyond the height of the concrete barrier would not have been a factor in Mr. Amsler’s decision. The height of the snowbank makes no difference and does not effect the performance of the barrier. Moreover, Mr. Amsler felt that there was an ongoing snow event starting on January 22, and continuing into the early morning hours of January 25, which required DOT efforts to be directed at keeping the main roadways relatively safe. In his opinion, there were no breaks in the snow of sufficient duration to permit removal of the snow from in front of the parapet walls.

Removal of the snow would require either physical loading and placing of the snow on trucks or echelon plowing. With echelon plowing, closure of at least one lane of travel closest to the removal efforts would be necessary. Additional vehicles are also necessary for “maintenance protections of traffic” or to provide appropriate signage and lighting behind the operation to alert motorists of the upcoming lane restriction. These vehicles would also need rear impact attenuators. The State Police would be involved to assist with traffic management.

The Guidelines also have a specific section for Ice Control.[0] It is recognized in the Guidelines that it is impossible to provide a bare or wet pavement surface at all times due to the many variables that exist. The goal is to prevent an ice pavement bond and to do this, according to Mr. Amsler, DOT tries to get an application of salt on the road immediately at the beginning of a storm for “just in time anti-icing.” The deicing material used includes rock salt, sometimes used in conjunction with liquid calcium chloride, which enhances the deicing capabilities of the salt. They also use abrasives or sand. Sand is used with the salt when the temperature is very low, because salt become less effective or ineffective when the temperature falls to between 12° to 15°F. The salt will still work, at least until the temperatures reach -6°F, if a greater quantity is used; however, the application of a greater quantity of salt means a truck would not have enough to treat its complete “beat” and that would result in a dramatic change in conditions between the roadway that has been treated and the remainder that was not. That situation would not be good for drivers. Below -6°F, salt does not work at all. The Guidelines provide recommendations for the timing and rate of application of the specific deicing agents, taking into consideration pavement temperatures and the character of the event. On January 23 through 25, a sand/salt mixture was being applied to Route 81, which, according to Mr. Amsler, was the appropriate mixture. Mr. Amsler opined that the snow and ice control efforts of the Onondaga East Residency during January 23 through January 25, 2004, were in compliance and appropriate within the DOT Guidelines and were based upon sound engineering judgment. During that time frame, the Onondaga East Residency had no options other than to leave the snow plowed in front of the right jersey barrier on the Park Street Bridge.

The State also called Arthur Yannotti, a licensed civil engineer in the State of New York with 32 years experience in bridge design and construction. He is also a member of the American Association of State Highway and Transportation Officials (AASHTO), Bridges and Structures Subcommittee. Mr. Yannotti reviewed the as-built record plans for the Park Street Bridge on Route 81 north from 1981. He testified that the accident happened on Span No. 3 of the bridge and the vehicle exited the bridge near the beginning of the end of Span No. 4. Design standards for bridges are governed by AASHTO design codes which are usually adopted, with some minor variations, by DOT. This bridge also complied with the Federal Highway Administration Standards.

Mr. Yannotti testified regarding research that was conducted by the Transportation Research Board (TRB) in reports published under the National Cooperative Highway Research Program (NCHRP) in an effort to develop better bridge rails and barriers. The first reports (NCHRP 230) were published in the 1980’s, and the information was utilized in the design of the Park Street Bridge. The NCHRP 230 set forth the standards and protocols for bridge barrier and rail crash tests. Three vehicles were used in the crash tests: an 1,800-pound vehicle, a 2,250- pound vehicle and a 4,500-pound vehicle. The smaller vehicles were impacted with a barrier at 60 mph at a 15-degree angle. The larger vehicle was impacted with the barrier at 60 mph at a 25-degree angle. Barriers are less effective as the angle of impact increases, resulting in greater likelihood of penetrating the barrier, vaulting the barrier, or causing a rollover of the vehicle. The barrier successfully used in the crash tests was 34 inches high - 2 inches shorter than the barrier DOT used on the Park Street Bridge. In fact, the barriers on the Park Street Bridge conform to current level requirements which exceed the testing level requirements for new construction. These tests, however, were not done with snow in front of the barrier.

For the winter of 2004-2005, DOT developed new written policies and procedures for snow and ice removal. Under these new policies and procedures, bridges became a higher priority for snow and ice removal. An effort is made to remove the snow in front of concrete parapet walls whenever there is a break from snow falling in the driving lanes.
The Law
The State has a nondelegable duty to maintain its roadways in a reasonably safe condition under the prevailing circumstances for the traveling public (Friedman v State of New York, 67 NY2d 271, 283; Weiss v Fote, 7 NY2d 579). This obligation extends to provide and maintain adequate and proper barriers along its highways (Gomez, 73 NY2d at 724, 725; Lattanzi v State of New York, 74 AD2d 378, affd 53 NY2d 1045). The State, however, is not an insurer, and an accident, even one horrifically tragic, does not permit the Court to infer the State’s negligence (see Tomassi v Town of Union, 46 NY2d 91, 97; Boulos v State of New York, 82 AD2d 930, affd 56 NY2d 714). It is Claimants’ burden to prove the State was negligent, with evidence showing that a dangerous condition existed which the State either created or of which it had actual or constructive notice, yet failed to timely take reasonable measures to correct (Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892; Rinaldi v State of New York, 49 AD2d 361, 363).

Where the alleged negligence arises from a highway planning decision, the State is accorded a qualified immunity, unless the evidence shows the design plan evolved without adequate study or lacked a reasonable basis (Friedman, 67 NY2d at 271; Weiss, 7 NY2d at 589). Yet, even a well-studied, reasonable highway plan will not shield the State from liability where evidence shows a dangerous condition existed after the plan was implemented (Friedman, 67 NY2d at 284). The State’s duty is a continuing one, to review and evaluate its highway designs and undertake to study and correct dangerous traffic conditions that materialize after a plan is executed (id.)

Claimants, in this case, do not attack the adequacy of the State’s 1993 Highway Maintenance Guidelines for Snow and Ice Control.3[3] Rather, the heart of Claimants’ case is that on the morning of January 25, 2004, black ice was present on the Park Street Bridge of Route 81 north which caused Mr. Gardner to lose control of his vehicle; this precipitating dangerous condition caused Mr. Gardner’s vehicle to come in to contact with the snowbank in front of the right fascia barrier which exceeded the height of the barrier. The hard-packed snow prevented the vehicle from contacting the barrier, instead, allowing the vehicle to ramp up and over the barrier. Claimants argue that the State was placed on notice of these dangerous conditions when roughly 36 hours earlier, Jason Rhoades’ vehicle slid across the same icy snow-covered bridge, rode up the snow, plowed in front of the right fascia barrier and went over it, falling to his death around 100 feet north from where Mr. Gardner encountered the same fate. Claimants argue that following Mr. Rhoades’ accident, the State failed to take any action to alleviate or warn of the danger.

The State defends by arguing that preceding Mr. Gardner’s accident, the State was involved in ongoing snow and ice removal operations leaving insufficient manpower or equipment to address the accumulation of snow in front of the barriers on the Route 81 Park Street Bridge. The State further contends that there is no duty to warn of the normal dangers associated with winter driving in this area and there was no appropriate or safe means to place warning devices.

(A) The Icy Roadway
At the time of Mr. Gardner’s accident, the Park Street Bridge on Route 81 north was icy and slippery. The passing lane in which Mr. Gardner was traveling, at the time he initially lost control of his vehicle, was snow-covered. The other lanes, although appearing mostly clear, looked wet in the evidentiary photographs. With the excessively cold temperatures, around -9°F, on the morning of January 25, at the time of the accident, and the well-established fact that deicing compounds such as salt are virtually ineffective at such temperatures, any melting would have readily refrozen into a thin layer of ice, as Dr. Joseph Sobel, a meteorologist called by Claimant, described. The conditions on the Park Street Bridge were not unique to this location that morning. There was no evidence of complaints or notice of specific icing conditions at this location or prior accidents that morning. The conditions that morning were different than the completely snow-covered roadway Mr. Rhoades encountered the previous Friday evening, and there were other factors affecting the Rhoades’ vehicle that did not exist for Mr. Gardner. There were no other accidents at this location based upon the information in the location file for this area of the road. The Court does not find that the State had notice of a recurring dangerous icy condition in the travel lanes at this location (see Lyons v Cold Brook Cr. Realty Corp., 268 AD2d 659; cf. Weisenthal v Pickman, 153 AD2d 849).

The DOT was attentive to the road conditions that weekend, giving Route 81 the highest priority for snow and ice removal. A sand and salt mixture was applied, which all agreed was the most appropriate treatment for the prevailing conditions. There was round-the-clock coverage of the roadway with repeat runs occurring every 2½ - 3 hours. Both the “A” and “B” shifts were working overtime to provide 24-hour snow and ice removal.

From the evidence, the Court finds DOT’s snow and ice removal efforts were in compliance with the Highway Maintenance Guidelines and reasonable given the conditions on the morning of the accident.

Claimants argue that given the slippery conditions, and the risk of vaulting that existed on the Park Street Bridge at the time of Mr. Rhoades’ accident, the State should have warned motorists of the icy conditions before Mr. Gardner’s accident. Mr. Fries suggested several warning devices that could or should have been employed following Mr. Rhoades’ accident, specifically a variable message sign, an “icy pavement zone” sign with flashing beacons, and a reduction of speed sign. The State does have a duty to warn of hazards existing on its highways and signs should be erected whenever necessary and to be reasonably adequate for the intended purposes (Williams v City of New York, 214 NY 259).

Encountering icy conditions on a bridge in upstate New York, in January, when the temperature is below zero, is a possibility even with diligent snow and ice control measures by DOT. Warning signs are necessary where the State has notice of an inherently different condition than those types of winter weather conditions ordinarily found in a given location (see Williams, 214 NY at 263-264; Freund v State of New York, 137 AD2d 908, 909; Arnold v State of New York, Ct Cl, Lebous, J., May 5, 2004, Cl. No. 105458 [UID #2004-019-002]; Farrell v State of New York, 46 AD2d 697, 698; Citta v State of New York, 35 AD2d 288, 293, JJ. DelVecchio and Witmer, dissenting). The MUTCD provides that the icy pavement warning sign should only be used to warn of unusual or unexpected pavement icing not associated with normal wintertime storm related snow or ice conditions (see MUTCD § 234.9). Here, there was no evidence of a variant icing condition at this location or of a recurrent icing problem which would have warranted an “icy pavement zone” sign or variable messaging warning of an icy condition. As for the reduction in speed sign, the evidence did not support a finding that a reduced speed sign was feasible or necessary under the MUTCD, given the 36-plus hour time frame between these accidents. The foundation, authority, and means supporting the use of these signs and a reduced speed limit was not sufficiently established.
(B) Accumulated Snow in Front of the Fascia Barrier
Based upon the 1993 Snow and Ice Control Guidelines, snow storage in front of the bridge barriers was only required to be removed when it impacted the safety of the travel lanes either through melting runoff or encroaching snow in the event of another snowstorm. Neither of these two conditions existed and the plowing of the snow in front of these bridge barriers was in compliance with the existing Guidelines.

In this case, however, the accumulated snow was 42 inches high - 6 inches higher than the barrier itself. The snow extended out 5 feet from the base of the barrier onto the 10-foot- wide shoulder, forming a 35-degree angle from the shoulder over the barrier. It was hard and compacted as described by the independent testimony. This snow formed a ramp, preventing Mr. Gardner’s vehicle from making contact with the barrier. Although Mr. Amsler testified that the design parameters for the safety features of the barrier involve impact angles of 15 degrees or less, and there is an inverse relationship between the impact angles and the effectiveness of the barrier, his testimony circumvented the issue here that the depth, height, and consistency of the snowbank prevented any contact with the barrier. The Court finds, under this circumstance, the accumulated snow was a dangerous condition. The extent of accumulated snow far exceeded the snow stored in front of the barriers in Tuchrello v State of New York, 190 Misc 2d 664. Nor was there evidence here, as in Vislosky, that the State had made a determination not to remove the snow. Based upon the evidence, in light of the severity of winter conditions that month, DOT by rote and in compliance with the Guidelines, continued to plow the snow in front of the concrete barriers.

Compliance with the Guidelines at the time of the Tuchrello and Vislosky cases afforded the State the implied immunity described in Weiss v Fote (7 NY2d, supra) as both cases arose within roughly a year of the adoption of the Guidelines. Mr. Rhoades’ and Mr. Gardner’s accidents occurred roughly 11 years after implementation of the Guidelines. Based upon Mr. Amsler’s testimony, 15 additional accidents occurred since his prior inquiry regarding vaulting accidents while developing the Guidelines. These 15 accidents are in addition to the existing acknowledgment of the small risk for vaulting at the time the Guidelines were being drafted. A small risk that materialized in 2 vaulting accidents between 1984 and 1993 had increased to 15 accidents in the ensuing 14 years.3[4]

The number of similar types of vaulting accidents, coupled with Mr Rhoades’ accident on the Friday preceding William Gardner’s accident, approximately 100 feet from where Mr. Gardner’s vehicle vaulted the barrier, should have alerted DOT to the risk for vaulting on this bridge.

The question becomes whether the State had sufficient time to remove the accumulated snow after Mr. Rhoades’ accident and before Mr. Gardner’s accident. After reviewing all of the testimony and evidence, the Court is constrained to answer that question in the negative.

The climatological data for the month3[5] reflects measurable snowfall for 19 of the days before January 25. Over 33 inches of snow fell during the 9 days preceding Mr. Gardner’s accident. The snow, however, doesn’t tell the whole story as it was windy and every day was below average in temperature. The weather wasn’t an “ongoing storm” but rather an unusual weather pattern which demanded ongoing efforts at snow and ice removal on the roadways. Following Mr. Rhoades’ accident, the snow, blowing snow, and extremely cold temperatures required 24-hour diligence. The State argued extensively that it lacked the resources and manpower to remove the snowbank in front of the barrier before Mr. Gardner’s accident. There was no evidence of idle plows or manpower. Rather, the evidence reflected round-the-clock efforts to address the exigent weather and resultant roadway conditions. In fact, on January 24, all but 5 of the 48 employees worked either the “A” or “B” shift, and most worked 12-hour shifts.3[6] For the “A” shift on January 25, 17 out of a total of 25 employees worked at least 12 hours.3[7] Undisputedly, removal of the accumulated snow required significant dedication of resources to one section of roadway. Despite Claimants’ suggestions to the contrary, the State does not have the authority to order a roadway closed, and shoulder snow removal requires a fleet of plows and assistance from the police. Such an extensive effort can only be accomplished when continual plowing and ice treatment are not necessary. Here, wind, some light snow, and the well-below freezing temperatures provided no adequate break to permit DOT an opportunity to remove the accumulated snow. The law requires an assessment of Defendant’s conduct in light of what is reasonable under the circumstances. Based upon the weather conditions, DOT’s 24-hour snow and ice removal efforts, and the available resources and manpower required to accomplish the removal of the accumulated snow, the Court finds that the State could not have reasonably removed the accumulated snow before Mr. Gardner’s accident.

The Court has struggled with its decision in this case, but is obliged to set aside emotion despite the tragic nature of this accident and apply the law. To that end, the Court finds the claim must be DISMISSED.

All motions heretofore not previously decided are denied.


October 2, 2009
Syracuse, New York

Judge of the Court of Claims

[1].The claim asserts the State failed to design, construct or provide proper drainage facilities or drainage on the Park Street Bridge; however, no evidence was presented on this issue.
  1. [0]
    Trial Transcript April 26, 2007, pages 4-5, line 4.
  2. [0]
    Exhibit 3.
  3. [0]
    Exhibit 197.
  4. [0]
    Trial Transcript, April 24, 2007, pages 73-76 through line 7.
  5. [0]
    Exhibit 197, page 2.
  6. [0]
    Trial Transcript of April 24, 2007, page 29, lines 3-7.
  7. [0]
    Exhibit 197, page 2; Trial Transcript April 24, 2007, page 34.
  8. [0]
    Exhibit 195.
  9. [0]
    Exhibits 197 and 195.
  10. [0]
    Exhibit 195.
  11. [0]
    Exhibits 91 and KKK.
  12. Exhibit KKK and 91, and testimony of Mr. Falconer, Amended Trial Transcript, April 26, 2007, page 62, lines 10-22.
  13. [0]
    See Exhibits 91, KKK, PPP, Amended Trial Transcript April 26, 2007, page 71, lines 1-9.
  14. [0]
    See Exhibit KKKK and HHHH. (The name of WIXT has since been changed to 9WSYR).
  15. [0]
    See Exhibit DDDD.
1[7].See Exhibit DDDD.
  1. [0]
    Exhibit A.
  2. [0]
    Gore areas are the areas between the main route and a ramp (Trial Transcript, June 25, 2007, page 136, lines 11-20).
  3. [0]
    Amended Trial Transcript, April 26, 2007, page 170, lines 1-15 and page 186 lines 3-24.
  4. Trial Transcript, April 24, 2007, page 172, lines 1-17.
  5. The 85th percentile speed is the speed exceeded by 15% of the traffic. It requires a radar speed check of at least 100 vehicles in order to calculate that speed (Trial Transcript, June 26, 2007, page 37, lines 13-25).
2[3].Effective September 13, 2008, this is now known as the National Manual on Uniform Traffic Control Devices for Streets and Highways (17B NYCRR Chapter V). Cites however are to the MUTCD as it existed at the time of this accident.
2[4].Vislosky v State of New York, Ct Cl, Patti, J., Cl. No. 93075, filed May 6, 2003, [UID #2003-013-503].
  1. Trial Transcript of June 26, 2007, page 49, lines 14-25 through page 50, lines 1-22.
  2. Trial Transcript of June 26, 2007, page 54, lines 18-25 through page 55, lines 1-5.
  3. Trial Transcript June 25, 2007, page 44, lines 7-15.
  4. [0]
    Exhibit A.
  5. Exhibit A page 1, § 5.0110.
  6. Exhibit A..
3[1].Exhibit A.
  1. Exhibit A, page 14, § 5.4000.
[3]3.The Court notes that these are guidelines, not mandates and consideration of the surrounding circumstances is necessary (Skehan v State of New York, Ct Cl, NeMoyer, J., Cl. No. 72827, filed August 15, 1996).
3[4].Mr. Amsler’s testimony reflected a total of 17 vaulting accidents between 1984 and 2007, including three years after Mr. Gardner’s accident. The specifics of these accidents were not elicited.
3[5].Exhibit 91.
3[6].Exhibit YY.
3[7].Exhibit ZZ.