Oscar M. Sittner, IV (“Claimant”) filed claim number 108840 on
January 29, 2004, alleging that the absence of a second STOP sign at the
intersection of New York State Route 30 (“Route 30") and New York State
Route 161 (“Route 161") caused the motor vehicle accident in which he was
seriously injured. I held a trial on the issue of liability only on June 9, 10,
11 and 12, 2008 in Utica, New York. The parties submitted post-trial memoranda
and letters, which I have considered in reaching this decision.
This motor vehicle accident occurred on November 30, 2003 at approximately 4:25
p.m. on Route 30 at the intersection of Route 161 in the Town of Florida,
Montgomery County, New York (Exhibit 10). At the time, Claimant was driving a
1987 Volkswagen Scirocco and his friend, Aaron Rulison, was riding in the front
passenger seat. The other vehicle involved in the accident, a 1996 Ford
Contour, was operated by Michael W. Hawsey. Mr. Hawsey, of Albany, was
traveling with his wife, Danielle, and their two children. At the time of the
accident, the Hawsey vehicle was traveling north on Route 161, and
Claimant’s vehicle was traveling south on Route
Although the intersection was controlled
by a STOP sign for vehicles traveling on Route 161, Mr. Hawsey drove his vehicle
into the intersection without stopping and collided with Claimant’s
vehicle (Exhibit 10).
New York State Trooper Timothy N. Barnes was dispatched to the accident scene
to investigate. Trooper Barnes traveled to the site driving northbound on Route
161. He testified that, although it was “dusk,” he could see
clearly without his headlights. As he approached the intersection, he observed
two vehicles, “smashed and smoking,” but slightly separated, in the
southbound lane of Route 30. Trooper Barnes spoke with the adult occupants of
each vehicle. It appeared to him that Claimant was badly injured. Claimant and
his passenger were taken to Albany Medical Center by “Med Flight”
and the Hawseys were taken to St. Mary’s Hospital by ambulance (Exhibit
11). As to the cause of the accident, Trooper Barnes determined that Mr. Hawsey
had failed to yield the right of way and had failed to observe a STOP sign
(Exhibit 11). Trooper Barnes assigned no responsibility for the collision to
Claimant. His testimony at trial was that Mr. and Mrs. Hawsey were lost and,
thus, distracted, which was the primary cause of the accident.
There are two STOP signs at this intersection. The first sign, or
“primary” sign as Trooper Barnes described it, is located to the
right of the northbound lane on Route 161 at the “V” of the
intersection, just 20 feet after the Route 30 North/South signs (Exhibit A).
Another STOP sign, or supplemental sign, was located on the left side of the
intersection as you travel north, across the road from the entrance to a garage.
The supplemental STOP sign, however, was face down on the ground at the time of
the accident (Exhibit 8-A). Trooper Barnes did not mention this sign in his
report (Exhibit 10) nor was it noted in the accident file (Exhibit 12).
Mr. Hawsey testified that he and his family had gone for a drive that afternoon
to look at properties. Although he was unfamiliar with this area, he did not
use a map and did not know the route they were on. However, as they were not in
a hurry, he decided they would just drive, knowing he would come upon the New
York State Thruway (“Thruway”) eventually. He was looking for the
blue Thruway signs as he drove. Just before the accident, he observed
headlights coming towards him and assumed that the car would just drive by him
in the southbound lane; Mr. Hawsey did not see any road going to the right or
left of him. He watched as the headlights turned in front of him, less than a
100 yards away. He observed no STOP signs. He observed the vehicle as it
continued on to the right of him. A second later, he saw headlights in front of
him and then felt a hard impact. Mr. Hawsey was forthright and honest in his
testimony, admitting that he “wasn’t paying attention” so he
missed not only the STOP sign, but the other traffic control devices as well
(see Exhibit A).
Mrs. Hawsey testified that she believed they were lost and that they were
looking for Thruway signs, trying to get home. They were unfamiliar with this
part of New York and with Route 161. She recalled talking to her husband when
she saw a “quick light” and heard a “loud bang.” The
next thing she recalled was waking up to her husband calling her name.
At the time of the collision, Claimant was a 19-year-old high school graduate
living with his parents on Highway 107 in Amsterdam, New York. His passenger,
Mr. Rulison, lived approximately 25 minutes from Claimant. They were good
friends, often at each other’s houses working on cars and/or snowmobiles
and frequently sharing rides. Claimant testified that it was approaching dusk
that afternoon as he traveled south on Route 30 at a rate of 50 to 55 miles per
hour. He had his headlights on. He was familiar with the intersection of
Routes 161 and 30 so, as he approached the intersection, he knew there was a
STOP sign controlling traffic for vehicles on Route 161. He observed the Hawsey
car traveling north on Route 161. He testified that it looked like Mr. Hawsey
was actually stopped, so he continued to drive through the intersection. By the
time he realized Mr. Hawsey did not stop at the STOP sign, he had no time to
react. He testified that, in a fraction of a second, he realized there would be
Mr. Rulison lived near the town of Florida, New York, south of the intersection
in question. He was familiar with the intersection and knew there were two STOP
signs and that cars typically stopped and let the traffic on Route 30 pass. Mr.
Rulison also saw the Hawsey car approach the intersection and appear to stop.
As Claimant proceeded through the intersection, it became apparent rather
quickly that the Hawsey car was still moving and they were going to collide.
Mr. Rulison identified Exhibit 43 as being most like the condition of the
intersection on the day of the accident. Mr. Rulison noted that the second STOP
sign to the left of the intersection was missing on Exhibit 43. Exhibit 31,
however, shows the intersection with that second STOP sign in place.
There was one witness to the accident, Denise Krohn, a technology teacher in
the Greater Amsterdam School District. She resides in the Town of Florida, New
York, on Route 30 about three miles south of the intersection with Route 161.
She testified that she was familiar with this intersection and knew there was a
STOP sign for cars traveling north on Route 161. She was driving north on Route
30 the evening of the accident when she noticed a car going “fast”
northbound on 161. She happened to notice the car across the open field between
Routes 161 and 30 as the two roads converge. She explained that by describing
the car’s rate of speed as fast, she really meant that it was not
decelerating and gave her the impression that it was not going to stop at the
STOP sign she knew controlled the intersection. Ms. Krohn pulled into the
garage driveway on her right to avoid a collision. Claimant and Mr. Hawsey
collided about 20 feet from her. Ms. Krohn called “911" and then went to
each of the cars. She sheltered the Hawsey children in her van when asked by
the Florida Fire Department to do so. She also gave a statement to the police
Ms. Krohn described that Section of Route 30 as “curvy.” She also
testified that Route 161 gives the illusion that you can drive straight through
the junction as you travel north on Route 161. Ms. Krohn testified she
habitually turns on her left-hand signal as she approaches the intersection on
Route 30 north, even though she would have the right-of-way.
The garage driveway that Ms. Krohn pulled into is owned and operated by
Guillermo Reyniche. He has been in business at this intersection since 1984.
His car repair business and his home are at this location. They can be seen on
Exhibit A to the right of the notation “POI.” He observed the scene
after impact and saw Claimant and Mr. Rulison trapped in the “little
Mr. Reyniche testified that he placed a sign on the side of one of his
buildings that reads “Slow down, dangerous curve.” It is a homemade
sign designed to warn motorists because cars going north “just don’t
stop.” He testified that he has seen five or six “big”
accidents at this intersection over the last 24 years.
None of the testimony given by Ms. Krohn, Mr. Reyniche, Mr. Rulison and
Claimant mentioned the secondary STOP sign that Trooper Barnes observed lying
face down on the west side of Route 30 near the point of impact on the day of
the accident. It appears that particular sign had been knocked down six days
earlier on November 24, 2003.
David H. Owens was a lieutenant with the Montgomery County Sheriff’s
Office in November 2003. He supervised the Sheriff’s communications
department which involved overseeing the dispatchers and call-takers. He
received a call on November 24, 2003 at 6:05 p.m. from Vern’s Auto
Body Shop (“Vern’s”) concerning a white tractor-trailer that
had knocked over mailboxes while making a u-turn, then left the scene (Exhibit
40). Claudia Collins, a civilian employee in Mr. Owens’ office,
dispatched a car to the scene at 6:10 p.m. (Exhibits 40, 45). Officer Chad J.
Alukonis arrived at Vern’s at 6:24 p.m. where he determined that three
mailboxes and a STOP sign were down in front of Vern’s and that the
tractor-trailer, described as white with “Jackson” written on it,
had knocked them down while making a U-turn and then had driven off towards the
town of Amsterdam. Officer Alukonis noted in his report that the “owners
of mailboxes [were] notified.” He also noted that the “State [was]
notified of stop sign” (Exhibits 40, 45). Mr. Owens found no written
confirmation in his record search that the State was, indeed, notified of the
downed STOP sign, however, he did recall hearing someone tell him the
notification had been made (Exhibit 40). It appears, however, that the New York
State Department of Transportation (“DOT”) was not notified.
Edward Roy Goodspeed, a 30-year DOT employee, is currently a DOT Highway
Maintenance Supervisor II and held that position in November 2003 as well. His
duties in DOT’s Fulton Montgomery County Residency included planning and
scheduling work as well as checking the roads for problems. He testified that,
generally, all DOT equipment operators look for signs that are down and, if they
observe one knocked down, they report it to their supervisor. Traffic
regulatory signs, such as STOP signs, are put back up immediately. He noted
that anyone can call and report a sign down and that Sheriff’s Deputies
and State Troopers often call and report them. Mr. Goodspeed was shown Exhibit
40, the incident report indicating that the State was notified that the STOP
sign was down. Mr. Goodspeed testified that he never received that call nor was
he aware that the sign was down until after Claimant’s accident.
He testified that DOT received a call about the accident on November 30, 2003
but, because it was a weekend, DOT’s answering service took the call. The
answering service sends a written confirmation of the call via facsimile
(Exhibit 24), and also calls a DOT employee. Mr. Goodspeed knows the answering
service called him after the accident, but he had stepped out, so the next
person on the DOT call list was Mr. Norman Duell. Mr. Duell responded to the
call and Mr. Goodspeed followed up by going to the intersection to meet Mr.
When Mr. Goodspeed arrived at the intersection, he noted that the STOP sign on
the right side of Route 161 north was in its proper place. Up until that time,
that particular STOP sign was the only one he was aware of at that intersection.
He testified that he did not know that there were two STOP signs at this
intersection but, while he waited for Mr. Duell to arrive, he saw the secondary
STOP sign depicted in Exhibit 8-A. He put the sign back up in the same place,
on the left side of the intersection as you approach going north on Route
Norman Duell is a Highway Maintenance Supervisor III at Hamilton County DOT.
In November 2003, he worked for Mr. Goodspeed at DOT and he testified that he
was called into work on November 30, 2003 because of Claimant’s accident.
Mr. Duell did not recall a discussion about a STOP sign being down. He
recollected that he put ice melt down at the intersection and then talked with
Mr. Goodspeed at the side of the road and it was then that they noticed the left
STOP sign that was down. He and Mr. Goodspeed put it back up.
Neil Palmer, a Civil Engineer II in DOT’s Traffic and Safety Division,
was asked to analyze the accident history at this intersection. He collected
accident information from the New York State Department of Motor Vehicles
database, which covers accident data as far back as 1987 (Exhibit 15). He
conducted a computer search for accidents similar to Claimant’s November
30, 2003 accident in DOT’s computerized “Safety Information
Management System” and the result was a report generated on August 13,
2004 that listed nine incidents. Mr. Palmer explained that not all of those
incidents corresponded to the facts of Claimant’s accident. Mr. Palmer
opined that only two of the nine incidents were sufficiently similar. They
occurred on August 17, 1987 and August 20, 1988 (Exhibit 28).
Mr. Palmer was also knowledgeable about a prior traffic study conducted in 1988
and initiated by a New York State Assemblyman for the area at the behest of a
constituent who owned a “store on [the] corner” of the intersection
(Exhibit 14). This study showed the August 17, 1987 accident Mr. Palmer had
found, as well as two others occurring on January 14, 1986 and August 17, 1986
in the same general location in the intersection. The supplemental or left side
STOP sign was installed in late 1988 as a result of this study. In addition,
the primary STOP sign was replaced with a larger STOP sign (Exhibit 14). It
appears that the recommendation was not based on the number of accidents as much
as the fact that the “geometry of the intersection combined with the route
marker and D-sign [directional] arrows, can give the illusion that the main road
is straight through and the intersecting road is at a ‘T’.
Apparently, many strangers northbound on Route 161 do not realize they must
stop” (Exhibit 14, November 2, 1988 memo from McGilvray to English). Mr.
James M. Jordan, the principal investigator who signed off on the recommendation
in November 1988, denominated this change at the intersection as
“maintenance improvement” as opposed to a “traffic control
improvement.” Mr. Palmer explained the distinction on
A maintenance improvement occurs when existing road conditions are somehow
changed, for example, addition or eradication of vegetation or altering an
existing sign. A traffic control improvement is the addition of something new,
for example, a sign, striping or a traffic light. Mr. Palmer opined that Mr.
Jordan correctly labeled the DOT’s actions here as a maintenance
improvement, since they enlarged the STOP sign. The issue of adding the second
STOP sign was more fully explored on redirect examination with follow-up on
cross-examination, which leads me to the conclusion that someone other than Mr.
Jordan decided to add the second STOP sign on the left side of the road. Mr.
Palmer called the addition a traffic improvement.
Claimant’s last witness was his expert, Paul F. Cooney, a professional
civil engineer. A former long-term DOT employee, Mr. Cooney has consulted in
the area of traffic safety and design since 1992. He is familiar with, and has
worked with, DOT’s Manual of Uniform Traffic Control Devices
(“MUTCD”), referring to it as New York State’s
“guideline for the practice of traffic engineering.” The MUTCD
contains information related to the following types of road signs:
Mr. Cooney looked at Exhibit 43 and identified the types of signs present. He
described the junction signs for Routes 161 and 30 and the green destination
signs as “guide signs.” The STOP sign he called a regulatory sign
and the yellow sign with the black arrow, a warning sign. Mr. Cooney drove
north on Route 161 to view the scene as Mr. Hawsey had when approaching the
intersection. In his opinion, when driving north on Route 161 toward the
intersection with Route 30, it appeared that the road was straight and that he
would have the right-of-way. Even though a driver approaching the intersection
would have the yellow arrow sign in his field of vision, it did not apply to him
and would most likely confuse the driver, especially given the fact that the
right side STOP sign was also in the driver’s field of vision. According
to Mr. Cooney, the STOP sign for Route 161 looks like it could be meant for
traffic on Route 30. In Mr. Cooney’s opinion, this was a dangerous
intersection and the left side STOP sign would have made it safer. It was also
his opinion that a STOP AHEAD sign would have been the greatest aid, but in any
event, he asserted that the lack of the left side STOP sign was a substantial
factor in causing this accident. Further, he opined that the DOT employees who
failed to observe and repair the downed sign, as well as the State trooper who
forgot to call DOT about the downed sign, also make the State culpable for this
On cross-examination, Mr. Cooney was asked to comment on the significance of
the guide signs on Route 161. The first sign was the JCT 30 sign that was 552
feet before the STOP sign. This was followed by END 161 sign at 441 feet before
the junction (Exhibit A). Even taken together, in Mr. Cooney’s opinion, a
reasonably prudent driver would not assume an intersection was ahead, only that
there was a “junction of some kind.” However, he did agree that the
green geographical sign with arrows indicating a right turn to reach Minaville
and Schoharie, as well as the Route 30 north and south signs with directional
arrows, clarified the presence of an intersection, specifically a right-hand
Commenting on MUTCD § 232.4a.2 and the placement of a STOP AHEAD sign, he
agreed that, if the regulation used the word “should,” it meant that
the placement of a sign was not mandatory, only that it was a very good idea to
do so. In this particular provision, the STOP AHEAD sign should be used
when the STOP sign is obscured. The regulation uses the word “may,”
meaning, again, not a mandatory placement but that it’s a good idea to use
a STOP sign on the left side of the road (or one hanging overhead) to supplement
a STOP sign at the standard location on the right at “Y”
Later, on redirect, Mr. Cooney elaborated on the use of STOP AHEAD signs,
acknowledging that, although this STOP sign is visible, if drivers have
difficulty obeying and actually stopping, such a sign should be used
The State called Mr. Paul Obernesser, DOT Region 2 Director of Operations, to
discuss DOT’s operations, expectations of their employees and his
knowledge of this particular intersection. Mr. Obernesser is a former Madison
County Resident Engineer. Later in his career, he supervised six county
resident engineers, establishing a familiarity with DOT Residencies. Each
Residency has a sign crew consisting of a supervisor and approximately two
people responsible for maintaining and erecting signs. Occasionally, Highway
Maintenance Supervisor (“HMS”) I’s and II’s also patrol
roads looking for problems. This effort is supplemented by the County Engineers
and their assistants, as well.
Mr. Obernesser opined that while, ideally, each road would be inspected every
week, practically, this is impossible to do, given the crush of other duties.
His experience was that a residency could inspect 70 to 80 percent of their
roads every two weeks, at most. He believed that this particular residency had
745 miles of road in its jurisdiction. On cross-examination, Mr. Obernesser
pointed out that more than one individual in the Residency would have
responsibility for surveying the roads. Here, it would be the Resident Engineer
and the three HMS II’s (Mr. Goodspeed and Mr. Duell were two of the three
in this Residency at the time) and, occasionally, the worksite foremen as they
drive back and forth to their worksites.
Mr. Obernesser also testified that it was unreasonable to expect plow drivers
to identify and report downed signs while plowing their beats. The primary
responsibility is to plow, spread salt, and make second passes for shoulders and
special areas, as well as operating the blades, the spreader and the radio.
Drivers must also execute paperwork in between runs. While a driver might
happen to notice and report an obvious problem, reporting by operators was
Further, given the size of most residencies, only one or two employees may
actually know where every sign is located. When a complaint comes into the
residency, a service request or complaint form is processed and an employee is
sent to the location to determine if the complaint is valid. Complaints from
legislators are handled in the same manner. Mr. Obernesser testified that Mr.
Jordan’s handling of the complaint concerning this intersection was
“standard operating procedure.” He affirmed the options written by
Mr. Jordan in Exhibit 14 and concurred with the result, erecting a larger right
side STOP sign and adding a supplementary left side STOP sign. He rejected the
STOP AHEAD sign as suggested by Claimant’s expert, because the MUTCD
requires that such a sign be used only when the primary STOP sign is obscured
for some reason. He also opined that a driver, even if unfamiliar with the
road, had several warnings that an intersection was ahead because of the JCT 30,
END 161 and green destination sign with arrows. Mr. Obernesser also observed
the pavement marking beyond the STOP sign, or “stop bar,” which also
indicates that a driver must stop. Less obvious, but meaningful, was the fact
that Route 161 had solid double yellow lines coming into the intersection.
In 2003, Mr. Obernesser was the Regional Construction Engineer responsible for
administering capital projects and managing 100 employees. He was familiar with
the accident location and testified that no major road reconstruction had been
done in this area since it was originally built some time in the early 1900s.
The road configuration has not changed since it was built. He recalls that
parts of the area had been resurfaced from time to time and that, whenever
resurfacing is contemplated, DOT does a “safety screening.” As
safety screening consists of reviewing the accident record and identifying
opportunities to “soften” the roadside by extending culverts,
replacing old posts with breakaway posts and mitigating deep ditches, he knows
some of these things were done in this area. However, when the intersection was
analyzed in DOT’s “3 Rs” program (resurfacing, rehabilitation
and restoration), it was found to have met the requisite standards. In
particular, it was noted that this intersection did not have a high volume of
accidents and it had a low volume of traffic.
The State’s expert witness was James E. Bryden, PE, another former
long-term DOT employee who has been offering consulting services on highway
safety issues since 1982. He also is trained in accident reconstruction. He
assisted the State in producing Exhibit A to show the distance between the
various signs and the point of impact. Mr. Bryden testified regarding the
relationship between the sizes of the signs, the amount of road traveled and the
approximate rate of speed of the vehicles. He explained how this information
helped him develop an opinion on sight distances, the safety of this
intersection and the cause of this accident.
Mr. Bryden defined the concept of “conspicuity” as the ability of a
device to attract a driver’s attention. He discussed the 1988 STOP sign
change from the “size C” sign that was 30 inches across with 10 inch
high letters to the larger “size D” sign that was 36 inches across
with 12 inch high letters. The original size C sign would have been legible
from 420 feet while the replacement size D sign would have been legible from 600
feet. The size D sign was easier to see, and therefore, had better conspicuity.
Just beyond the STOP sign was a “transverse white marking” or
“stop bar” indicating a driver must stop. Also, in the
intersection, the center line becomes a line of short dashes, indicating merging
or diverging lanes and where those lanes are located.
Mr. Bryden also discussed the significance of the four signs prior to the STOP
sign on Route 161 North. He did not disagree with Mr. Cooney’s
definitions and descriptions. However, unlike Mr. Cooney, he opined that the
cumulative effect was to indicate that a driver was coming to an intersection,
particularly the JCT 30 sign that specifically signifies an intersection. The
JCT 30 sign was 552 feet before the STOP sign (Exhibit A).
Mr. Bryden then determined sight distances. He figured that Mr. Hawsey had
uninterrupted sight distance on Route 161 for four tenths of a mile as he
approached the intersection, compared to two tenths of a mile for a driver
approaching the intersection on Route 30. The supplemental left side STOP sign
was visible only for approximately one tenth to two tenths of a mile because
other signage on the left side of the road blocked the view until that point in
the approach to the intersection. Mr. Bryden tested his statements by driving
through the intersection in two different cars to observe what Mr. Hawsey should
have seen as he approached the intersection northbound on Route 161. Mr. Bryden
took photographs to reconstruct the views of the intersection at various points
on the approach from 161 (Exhibit D). He also parked near the intersection and
observed traffic. He testified that traffic at this location was
“light” to “moderate,” with more vehicles traveling on
Route 30 than Route 161. He personally observed vehicles as they approached the
STOP sign; approximately half came to a full stop while the other half
“rolled through.” He did not observe any vehicle ignore the STOP
Mr. Bryden also expressed an opinion on the meaning of the words
“shall,” “should” and “may” as contained in
the MUTCD. His explanation differed slightly from Mr. Cooney’s in that
Mr. Bryden felt that the use of the word “should” meant that, while
it was a “normal advisory practice” to do what should be done per
the MUTCD, the DOT could deviate from that practice for a “good
reason” as long as it was documented. “May,” however, did not
require any documentation if a traffic engineer decided to deviate from the
Regarding the left side STOP sign, Mr. Bryden testified a left side STOP sign
could be helpful at “wide-throated” intersections, or where multiple
lanes approach a single intersection or at “one way” roadways.
These situations are addressed in the MUTCD at § 211.3.7b.2 but, even so,
the MUTCD uses the word “may.” He also disagreed with Mr. Cooney on
the appropriateness of a STOP AHEAD sign at this intersection because Mr. Bryden
believed that being able to see the STOP sign from four tenths of a mile was
sufficient distance, thus, MUTCD § 232.4a.2 was not applicable. He was
also of the opinion that MUTCD § 232.4a.3 (using a STOP AHEAD sign when
drivers have difficulty obeying and actually stopping) did not apply as
suggested by Mr. Cooney. Mr. Bryden opined that “rolling stops”
were not the equivalent of failure to obey a STOP sign and that even with a STOP
AHEAD sign, drivers will continue to “roll through.” The dearth of
accidents related to failing to stop in addition to the site distances indicate
that a STOP AHEAD sign was not required at this intersection.
The State called Investigator Michael J. Macintosh, a New York State Trooper
with 18 years of collision reconstruction experience. He has been employed by
the New York State Police for 20 years. He stated that he has responded to over
5,000 collisions; he has reconstructed over 600. He is personally familiar with
this collision because he was called as a responder/reconstructionist by the
person who initially went to the scene and believed there might be a fatality.
When he arrived and discovered there were no fatal injuries, he did not perform
a complete accident reconstruction investigation. Instead, he only marked and
photographed the scene (Exhibit R).
Investigator Macintosh was on the scene with Sergeant Daniel S. Bates, the
co-author of their written report (Exhibit R). He and Sergeant Bates concluded
that the STOP sign facing the Hawsey vehicle going northbound on Route 161 was
“plainly visible”; the STOP sign on the left was knocked down;
speeding was not an issue; and that the Hawsey vehicle failed to stop at the
STOP sign and failed to yield the right-of-way (Exhibit R). Investigator
Macintosh also testified that he ruled out any weather related or vehicle
equipment failure issues as potential causes of the crash. He opined that the
missing left side STOP sign would have had “zero”chance of
preventing this accident, given the fact that Mr. Hawsey was looking to his
right before the impact and he missed the road signs leading up to the point of
impact that announced an upcoming intersection (Exhibits A, D).
It is well settled that the State has a nondelegable duty to adequately design,
construct and maintain its roadways in a reasonably safe condition (see
Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579,
584). The State, however, is not an insurer of the safety of its roadways and
the mere happening of an accident does not render the State liable (see
Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway
Auth., 73 AD2d 767, affd 51 NY2d 892; Carlo v State of New
York, 51 AD3d 618).
For liability to attach, it is the Claimant’s burden to establish that
the State either created or had notice of a dangerous condition and then failed
to take reasonable measures to remedy that condition (Fowle v State of New
York, 187 AD2d 698). Having shown that there was a breach of duty by
Defendant’s failure to remedy the dangerous condition, a claimant must
establish that the breach proximately caused the accident and the resulting
injuries (Donaghy v Bilotti, 159 AD2d 478, lv denied, 76 NY2d 702;
see also Shaw v State of New York, 196 Misc 792).
The first consideration for the Court is to determine if Claimant has
demonstrated the existence of a dangerous condition. I find that, although a
very close call, Claimant has failed in this regard. Although Claimant
maintained that the geometry of the intersection created confusion concerning
whether or not Route 161 continued straight, and confusion as well as to what
kind of intersection it was, there was no confusion that this was an
intersection of some type and that it was controlled by a very visible oversized
STOP sign which required northbound traffic on Route 161 to stop. Claimant can
demonstrate no violation of the MUTCD in either the design, construction or
signing of the intersection. The traffic study conducted by Mr. Jordan did
result in the addition of the left side, secondary STOP sign. However, it was
not required. Any road can be made safer and the State’s effort to make
this intersection as safe as possible by adding the left side STOP sign did not
change the required minimum standards contained in the MUTCD.
Further, although there were previous accidents at this intersection and
anecdotal evidence from local residents concerning their experiences, there was
no evidence indicating that the accident history was significant (see e.g.
Sanchez v State of New York, Ct Cl, December 24, 2008 [Claim No. 113018],
Lack, J., UID No. 2008-033-593) (two accidents at intersection per year for 10
years not significant).
Assuming, arguendo, that the geometry of the intersection did constitute a
dangerous condition, I find that Claimant has failed to demonstrate liability
for other reasons as well.
In the field of traffic design engineering, the State is accorded a qualified
immunity from liability arising out of a highway planning decision unless the
study upon which the decision is based was plainly inadequate or there was no
reasonable basis for the plan (see Friedman v State of New York, 67 NY2d
271, supra; Weiss v Fote, 7 NY2d 579, supra; Levi v
Kratovac, 35 AD3d 548).
DOT employee James M. Jordan, Regional Safety Evaluation Engineer, did conduct
a field study of the intersection on October 31, 1988. In November of 1988, he
authored an Investigation Report concerning his findings (Exhibit 14). He
recognized that the “problem seems to be one of northbound people on Route
161 not realizing they must stop . . .” He recommended that DOT install a
larger STOP sign on the right and maybe a left STOP and/or maybe a
STOP AHEAD. He clearly determined that the signs on northbound Route 161 as you
approach the intersection “tell you there is an intersection,” but
he concluded that they imply a “T-type” intersection, especially
given “the visual illusion of 161 going straight.” Indeed, heading
northbound on Route 161, it looks like the road is straight (Exhibits 43, D).
Mr. Jordan’s diagrams of the intersection and notes are also contained in
Exhibit 14. To the extent that DOT was made aware of a design flaw, it was
studied and reasonably rectified. The State, therefore, is entitled to
qualified immunity on the issue of the design of the intersection.
Accordingly, if the State did not create the alleged dangerous condition, it is
Claimant’s burden to demonstrate that it had notice, either actual or
constructive that the dangerous condition existed. The conditions must be of
such a nature and degree so as to put the State on notice to make closer
inspection (see e.g. Edwards v State of New York, 269 AD2d 863, 864). In
this regard, I find that the State did not have constructive notice of the
alleged dangerous condition because I do not believe the missing sign was
“visible and apparent,” given the weather conditions and the fact
that it was a supplemental or secondary sign (Matter of Schleider v State of
New York, 5 AD3d 1052, 1053).
As far as actual notice, the record indicates that the DOT did not have actual
notice of the alleged dangerous condition prior to Claimant’s accident.
Trooper Barnes testified that he learned the day before Claimant’s
accident that the secondary STOP sign was down. Claimant adequately
demonstrated that Trooper Barnes had an obligation to report this fact (Exhibit
30). Generally, however, unless a special relationship between a claimant and
the police has been established, liability does not attach to the negligent
actions of police when involved in a traditionally governmentally activity
(Cuffy v City of New York, 69 NY2d 255, 258).
Although Claimant argues that Trooper Barnes’ duty to report the downed
signed was proprietary as opposed to governmental, “traffic regulation is
a classic example of a governmental function undertaken for the protection and
safety of the public pursuant to the general police powers” (see Balsam
v Delma Eng’g Corp., 90 NY2d 966, 968). Courts have uniformly held
that police conduct in warning motorists of roadway hazards and removing hazards
from roadways are governmental functions entitled to this rule of immunity
(see Eckert v State of New York, 3 AD3d 470 [failing to replace
extinguished road flares or otherwise warn motorists of accident scene];
DiFlorio v Worden, 303 AD2d 924 [failing to remove a disabled vehicle and
safeguard oncoming traffic]; Rogers v State of New York, 288 AD2d 926
[failure to remove deer carcass from roadway after a 911 call alerted State
Police to the hazard]; Horeth v State of New York, Ct Cl, September 28,
2007 [Claim No. 112731, Motion Nos. M-73431, CM-73665], Minarik, J., UID No.
2007-031-050 [alleged negligence in failing to find and remove or warn of manure
spill in roadway]).
I find that the alleged failure of Trooper Barnes to promptly report the downed
STOP sign falls squarely within the reasoning set forth in this line of cases.
To the extent that the case of White v State of New York (18 Misc 2d 441,
447), cited by Claimant’s counsel, disagrees with this determination, I
note that White is a lower court decision decided almost 50 years ago and
that it significantly predates Cuffy and its progeny.
Finally, I find that the lack of a secondary left side STOP sign was not the
proximate cause of Claimant’s accident. Every motorist is bound to use
his senses to see what is before him (Robinson v State of New York, 38
Misc 2d 229, 234, affd 19 AD2d 946, lv denied 14 NY2d 484).
Mr. Hawsey (a tractor-trailer driver by occupation) admitted he was distracted.
He admitted that, had he been focused on the road, the signs leading up to the
intersection would have alerted him that an intersection was approaching
(Exhibit A). Mr. Hawsey was looking to his right for Thruway signs. He missed
the oversized primary STOP sign. He missed the white “stop bar”
painted on the roadway. He missed the JCT 30 and the END161 signs. I find it
speculative to assume that, despite missing all of these indicators, he would
have seen the secondary STOP sign on the left side of the intersection.
Accordingly, for the reasons set forth above, claim 108840 is dismissed.
All other motions on which the Court may have previously reserved or which were
not previously determined are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.