New York State Court of Claims

New York State Court of Claims

SITTNER v. THE STATE OF NEW YORK, #2009-031-502, Claim No. 108840


Synopsis


Claimant failed to demonstrate dangerous condition, that State had notice of such condition or that such condition was proximate cause of Claimant’s injuries. Claim dismissed.

Case Information

UID:
2009-031-502
Claimant(s):
OSCAR M. SITTNER, IV
Claimant short name:
SITTNER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108840
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
McMAHON & COSEO, P.C.BY: PETER L. COSEO, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 26, 2009
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 30.[1] 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 a collision.

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 (Exhibit 12).

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 car.”

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. Duell.

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 161.

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 cross-examination.

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:
  1. “Guide signs”: signs that guide a driver to or from an area or in a certain direction.
  2. “Warning”: signs that advise driver diligence, often seen at curves or intersections. These are typically yellow and black.
  3. “Regulatory”: signs mandated by law requiring a traffic study prior to placement, generally causing a driver to stop or yield or directing the appropriate speed.
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 accident.

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 turn.

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” intersections (211.3b.2).

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 (232.4a.3).

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 unusual.

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 sign.

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 standard.

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.

March 26, 2009
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims




[1].Although Route 161 has an “East-West” designation, its true direction is primarily north-south at its intersection with Route 30.