New York State Court of Claims

New York State Court of Claims


State found 50% liable in wrongful death claim resulting from motorcycle accident on damaged shoulder.

Case information

UID: 2009-044-018
Claimant(s): CARMELA OLLEY, as Executrix of the Goods, Chattels and Credits of the Estate of DONALD E. OLLEY
Claimant short name: OLLEY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113591
Motion number(s):
Cross-motion number(s):
Claimant's attorney: WORBY GRONER EDELMAN, LLP
BY: Richard S. Vecchio, Esq.
BY: Joseph F. Romani, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 13, 2009
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, Executrix of the Estate of Donald Olley, filed this claim for the wrongful death and conscious pain and suffering of Donald Olley (decedent), her husband. Decedent died April 17, 2005 in a motorcycle accident on State Route 97 (Route 97) in Sullivan County, a highway owned and maintained by defendant State of New York (defendant).(1) On that date, decedent's motorcycle inexplicably left the road and traversed the shoulder (which was admittedly in a severely deteriorated condition,(2) as discussed infra), colliding with the adjacent guide rail. Trial of the matter was bifurcated, and held in the Binghamton District on April 21 and 22, 2009. The parties thereafter submitted post-trial memoranda. This decision addresses only the issue of liability.

Two people were riding with claimant on the day of the accident. One of them, Robert Mazzucca, testified at trial. Claimant and Mazzucca had been employed together for several years as officers with the New York City Police Department (NYPD) assigned to ride motor scooters. Mazzucca was an officer from 1968 to 1981, thereafter retiring on disability. He said claimant came to his precinct as an officer about a year after Mazzucca did. During Mazzucca's tenure as a police officer, he and claimant also rode motorcycles recreationally with a group on a regular basis. Mazzucca said that claimant later became a motorcycle officer with NYPD, and underwent the training for that position. Mazzucca said he stopped riding motorcycles for a time when he had an accident in the mid-1970's.

Mazzucca emotionally described claimant as his best friend. He said that he and claimant began riding recreationally again in about 2003. He said claimant would ride every day if he could, depending on the weather, and that they would ride together approximately one to two days per week. He said claimant always had suggestions on riding techniques, and how to ride more safely.

On the date of the accident, they were riding with Ralph Martucci. Mazzucca described the route they took after meeting at a diner on Interstate Highway 84 for breakfast. It was a sunny day, a little bit cool in the morning. They did not ingest any alcohol or drugs. After going to a motorcycle shop in northern Pennsylvania, they decided to go to Route 97, where they would ride to Port Jervis, New York, and Mazzucca would then go home. Mazzucca said claimant and Martucci planned to continue on to Connecticut. They turned onto Route 97 at about 3 p.m., heading south. Mazzucca said he had ridden on Route 97 many times prior to that date. He thought they were on Route 97 for at least 10 minutes before the accident occurred.

He described their riding formation as the typically staggered formation employed by experienced motorcyclists. He said that he was riding in front, on the left side of the traveling lane (where the left tires of a car would travel), claimant was on the right (where the right tires of a car would travel), two to three car lengths behind him, and Martucci was on the left side, two to three car lengths behind claimant.

In the area of the accident, Mazzucca recalled a large puddle on the left side of the road, with barrels or cones around the puddle. He did not recall any signs regarding the condition of the shoulder on the right side of the road prior to the site of the accident. He said that as they passed the scene where the accident (which he did not witness) occurred, the road curved to the left. He did notice, as he rode by, that the shoulder was in bad condition. He said he thought to himself that if someone "went into that, it would kill them."(3) Approximately one quarter of a mile later, he noticed that claimant and Martucci were no longer behind him, and he could not see their headlights. He pulled over and waited a few minutes, and then turned around and went back. Right after he turned around, he saw an oncoming car which flashed its lights at him.

When Mazzucca arrived at the scene of the accident, he saw claimant's motorcycle lying by the side of the road, and claimant lying in the middle of the southbound lane. Mazzucca parked his motorcycle and ran over to claimant. Shortly thereafter, State Troopers and emergency services personnel arrived on the scene, and claimant was taken to the hospital in an ambulance. He was later declared deceased.

While Mazzucca was standing in the area of the accident, he more closely observed the condition of the road and shoulder. He said he saw a skid mark that he thought was made by claimant's tire. At the start of the skid mark, he saw a "V-shaped" crack in the road, "just the right size to grab [a] tire." He described the shoulder as having "big bowl [shaped depressions] . . . like salad bowls . . . probably two . . . or three feet in diameter." He said he mentioned the crack to a trooper on the scene.

Martucci's deposition transcript was introduced into evidence,(4) although he did not testify at trial. He said he had known claimant for about two years, and they had ridden their motorcycles together weekly during that time. Martucci said claimant was an experienced rider who focused on safety, and rode "like an NYPD motorcycle officer would."(5) Martucci stated that he had ridden the stretch of Route 97 where the accident occurred with claimant and Mazzucca twice.

Martucci said he was less familiar with the roads in the area than claimant and Mazzucca, so he always followed them. Prior to the accident, he was not aware that Route 97 had been damaged or closed, nor did he observe any signs or barrels while they were riding that day.

Martucci said they were traveling at about 35 to 45 miles per hour at the time of the accident.(6) He thought he was 2 to 2 car lengths behind claimant. He did not see claimant leave the travel lane and go onto the shoulder. Martucci first realized there was a problem when he "saw [claimant] engaged with the . . . guardrail . . . He was in contact with the guardrail when I saw him . . . He was riding in contact with the guardrail. The bike was gyrating up and down . . . As I was passing him or just before I passed him, the bike somersaulted."(7) Martucci did not know what caused claimant to go onto the shoulder, and he did not know whether claimant had been pulling over to stop.

Martucci said that he realized how bad the condition of the shoulder was after the accident. He said that when he stopped his motorcycle and was going to park it on the shoulder, he saw that the pavement had heaved. He did not believe his motorcycle would have stayed upright on its kickstand if he had parked it on the shoulder. When asked whether he observed any defects or problems in the road that might have caused claimant's motorcycle to leave the roadway, Martucci responded that in the area of the accident there was "some separation between where the travel part of the highway ends and the asphalt begins."(8)

The deposition of a passing motorist, William Koehler, was also introduced into evidence,(9) as well as photographs taken by him at the scene.(10) He was driving north on Route 97 and witnessed the accident from a distance, and was not able to discern why claimant left the travel lane of the road. He only observed one warning barrel by the side of the road in that area, and stated that claimant left the road approximately 150 to 200 feet north of the barrel.(11) Koehler said claimant's motorcycle finally ended up resting against the barrel, "moving it slightly."(12)

State Police Sergeant Rushanski, a supervisor with training, certification and extensive experience in accident reconstruction, testified at trial on claimant's behalf. He said that no formal accident reconstruction investigation was performed for this incident, and that he made that decision. He said there was no need to perform such an investigation, because no one else was involved in the accident, and there was "no apparent unknown cause." He stated that he went to the accident scene because the trooper (Trooper Josef Ehrets) conducting the investigation had never before been the primary investigator on a fatal accident.

Rushanski took photographs(13) and measurements at the scene to assist Ehrets. Rushanski said he observed a skid mark on the shoulder and damage to the guide rail, both of which corresponded to the wrecked motorcycle. He said he inspected the road carefully, and there were no gouges, cracks or pavement defects in the roadway itself, nor were there any skid marks in the roadway. However, he acknowledged there was a crack in the fog line which lined up directly with the skid mark on the shoulder. He described the condition of the shoulder as being "wavy, bumpy, not smooth."

Rushanski stated that, in his opinion, claimant drove straight off the road into the guide rail. He had no explanation why claimant might have left the driving lane, other than operator inattention. He said claimant hit the brake at the last second to avoid hitting the guide rail. Speed was not a factor in the accident. He said that the condition of the shoulder might have contributed to the bike "going down," but that claimant would have hit the guide rail regardless of the condition of the shoulder, once he left the road. However, he said that the bumpy condition of the road would have made braking less effective. He also admitted that there were no barrels, cones or warnings of the crack on the fog line. When asked whether the crack in the fog line contributed to claimant losing control of the motorcycle, he was evasive, but acknowledged that it "line[d] up" directly with the path of the motorcycle and the skid mark. Rushanski said he did not prepare any report regarding his findings, because Trooper Ehrets was designated as the primary investigator of the accident.

Trooper Ehrets also testified. He stated that at the time of the accident in question, he had received no formal training in accident reconstruction, nor has he received any since that time.

Ehrets stated it was his understanding that, after the flooding in early April 2005, the State Department of Transportation (DOT) placed barrels where there was damage to the shoulder. He further stated that where there were no barrels, his assumption was that the shoulder was in good condition, and that there was no damage in that area. Ehrets described the condition of the shoulder pavement at the accident site as being "cracked, heaved, broken in spots." Ehrets did not find speed to be a contributing factor to the crash, and he did not know why claimant left the road. However, in the Incident Report(14) he prepared, Ehrets indicated, with regard to the cause of the accident, "[m]ajor contributing factors [sic] being the cracked and heaved pavement shoulder."(15) Ehrets stated he was aware that Route 97 was a popular route for motorcycle riders due to the scenic views.

Paul Brockner, a retired DOT employee, also testified. In 2005 he was a Highway Maintenance Supervisor II, whose responsibilities included supervising the maintenance of Route 97 in the vicinity of the accident. Brockner described the condition of Route 97 after the flooding in early April 2005. He said that the damage to the shoulders of the road was sporadic, with serious damage in some locations, and no damage in others. He stated that his supervisors, Glenn Sanders and Dean Smith, made the determination to close the road during and after the flood for several days. He also discussed the cleanup of the road while the road was closed. Prior to DOT reopening the road on April 5, 2005, he said it was completely inspected by himself, Sanders and Smith. Any portions of the road that were damaged were inspected by walking the road.

Brockner stated that two variable message signs(16) were placed ahead of the damaged area, indicating that damaged areas were present for a certain number of miles. One was placed just north of the Orange County line, warning northbound traffic, and the other was placed at the other end of the damaged area, to warn southbound travelers. Based on the route described by Mazzucca at trial, claimant and the riders would have passed the sign warning the southbound travelers that there was "No Shoulder - Next 15 Miles."(17) Two "No Shoulder" signs were also placed, one at each end of the damaged area. Brockner said it was probably Dean Smith who determined where the signs were placed.

Barrels were placed in areas where there was damage to the shoulder. In areas where there was no damage, no barrels were placed. Brockner said he was told to place the barrels depending on the extent of the damage to the location. He said "if it was severe damage, we'd put [the barrels] 30 feet apart; if it was not too severe, it could possibly be 50 feet apart." Brockner stated he went to the scene the day after the accident. He acknowledged that there was damage to the shoulder of the road. He also insisted that there were barrels on the southbound shoulder when he went to the scene. However, when he reviewed photographs of the area(18) taken by Glenn Sanders and Dean Smith a few days after the accident, he acknowledged that the pictures showed only two such barrels. He also insisted that multiple barrels were placed in the area, on the shoulder, prior to the reopening of the road.

Glenn Sanders, who was DOT's acting Resident Engineer for Sullivan County at the time of the accident, also testified at trial. He described the damage to Route 97 as a result of the flood, with some portions of the shoulder being completely washed out, some areas damaged, and some areas completely untouched. He agreed that DOT officials decided to place barrels and/or signs in areas where the shoulder was damaged, prior to reopening the road. When the road was reopened, DOT's intent was that the shoulder be closed only in the areas where the barrels were placed. He said DOT did not want to close 15 miles of shoulder along this road.

Sanders said that DOT crews were told to place the barrels, at 50-foot intervals, at any location evidencing shoulder damage, any breaks in the joints between the travel lane and the shoulder (which would be along the fog line), any drop-off on the shoulder, or any heaved or uneven pavement. Sanders stated that barrels and/or signs were placed in all of these damaged locations before the roadway was reopened. He said that he and Dean Smith determined that the shoulder was safe and usable in the locations where it was not damaged.

When shown some of the photographs taken by Sergeant Rushanski at the scene of the accident,(19) Sanders confirmed that the cracked joint between the travel lane and the shoulder was a condition that would require the placement of barrels. He acknowledged that the pictures showed only two barrels at the scene: the orange and white barrel against which the wrecked motorcycle was resting, and the yellow, orange and white barrel in the center of the road next to the emergency vehicles,(20) and that the photos also showed no barrels along the shoulder north of the skid mark on the shoulder made by claimant's motorcycle. Sanders stated unequivocally that barrels should have been placed in this specific location. He also agreed that the photos taken by himself and Dean Smith a few days after the accident(21) showed no barrels north of the accident location.(22) Sanders insisted that barrels had originally been placed in the area. However, he conceded that there was nothing which would document where the barrels were placed.

Sanders said that the variable message sign which stated "No Shoulder - Next 15 Miles" was placed approximately 12 miles north of the accident, and that the only other sign for southbound traffic indicating any problem with the shoulder was a smaller, diamond-shaped sign stating "No Shoulder," located at mile marker 1022 (approximately four tenths of a mile north of the accident). Sanders said that neither the variable message sign nor the "No Shoulder" sign was meant to indicate that the entire shoulder was not usable. He agreed that if a driver saw no barrels in a particular location, the driver could reasonably assume that the shoulder was safe and usable.

Dean Smith, who was at the time of the accident the Assistant Resident Engineer for DOT in Sullivan County, also testified. Smith agreed that the condition of the shoulder and the crack at the shoulder joint where claimant left the travel lane of the roadway required warning. Smith was adamant that multiple barrels had been placed at approximately 50-foot intervals in the area of the accident prior to DOT reopening the road. He said this spacing was based upon a review of the Manual of Uniform Traffic Control Devices (MUTCD) and the Manual of Construction Standards and Specifications. He also said he inspected the roadway for a few days after the road was reopened to make sure that the barrels and signs were properly placed. He did not know when the road had last been inspected, prior to the accident, to ensure that the barrels and signs were still properly placed.

Smith reluctantly admitted that the photographs taken at the time of the accident, as well as those taken by him and Sanders shortly thereafter, showed only one or two barrels at the scene, one of which was the barrel the motorcycle rested against after the accident.(23) He agreed that Defendant's Exhibit D6, taken in Smith's presence, showed approximately 300 feet of southbound roadway between the photographer and the barrel against which the motorcycle came to a rest. He admitted that the picture showed no barrels placed in that length of road. He also agreed that Defendant's Exhibit D11 was taken in approximately the same place as Exhibit D6, but showed between 700 and 800 feet of road north of that point, and that there were no barrels in that stretch of road either. Finally, he acknowledged that this meant that at least 20 barrels would have had to have been removed from this area of the road subsequent to DOT placing them there less than two weeks earlier. He also stated that DOT would not have removed the barrels.

John Serth, Jr., P.E., testified as claimant's expert. Serth opined that the state of the shoulder in the area of the accident was unquestionably a hazardous condition. Accordingly, he said, defendant should have taken more precautions to adequately warn the traveling public of the hazardous condition. He opined that more supplemental signs (like the "No Shoulder" sign four tenths of a mile from the accident scene) should have been placed, in addition to the variable message sign located approximately 12 miles from the accident scene. He noted that the photographs showed numerous locations along the 12-mile stretch of road where barrels were placed closer than 50 feet apart. However, the photographs taken at the scene of the accident showed only one or two barrels, and both of them appeared to be "after" (or south of) the area where the shoulder was damaged, rather than ahead of it, which was not adequate warning according to MUTCD (which states that warning devices should be placed in advance of the hazardous condition). He opined that barrels should have been placed at the accident location at 50-foot intervals, in accordance with the plan developed by DOT (as testified to by Dean Smith and Glenn Sanders). He further noted that, although various DOT employees testified that barrels had originally been placed at this location when the road was reopened, the photographs showed that there were still no warning barrels there several days after the accident. Finally, Serth stated that DOT could have done nothing more to warn of the condition other than placing the barrels in this location and placing additional signs along the road.

On cross-examination, Serth acknowledged that there is a greater risk factor involved in riding motorcycles, and that a rider has a corresponding obligation to be highly aware of his surroundings. He said that he understood that claimant was an experienced rider, and would have expected him to be highly aware of the condition "given the opportunity." He emphasized that it is foreseeable that travelers will drive on the shoulder of the road.

Serth admitted that the skid mark made by claimant's motorcycle was directed straight into the guide rail. He also acknowledged that there did not appear to be any reason why claimant would have left the driving lane, such as a defect in the road. However, he indicated that driver inattention is also a foreseeable reason why a vehicle might travel on the shoulder.

On both direct examination and redirect, Serth noted that the "No Shoulder" sign four tenths of a mile north of the accident scene gave no indication of the distance the shoulder was closed. He stated that, according to MUTCD, signs should have been placed every 1,000 feet,(24) and signs should also have been placed after intersecting roads.(25) He said that barrels were placed in the vicinity of the "No Shoulder" sign, and that the shoulder was in good repair, with no barrels, between that sign and the accident site. Accordingly, he stated, that sign did not provide adequate warning of the hazardous condition present at the scene of the accident.

Claimant rested its case at the end of Serth's testimony. Defendant then made a motion to dismiss the claim on the ground that claimant failed to state a prima facie case because it failed to prove that defendant's alleged negligence was a proximate cause of the accident. The Court reserved on the motion.

Werner Engelhardt, a DOT Highway Maintenance Supervisor in the region at the time of the accident, testified on defendant's behalf. His immediate superior was Paul Brockner. He said he recalled placing warning devices in the area of the accident. He said DOT placed barrels along Route 97 wherever the flooding had caused damage, and that this was one of the most severely damaged locations. He did not know how many barrels had been placed along this stretch of roadway, nor how many were later retrieved. However, he did believe that far fewer barrels were picked up than were originally placed there. He said he drove Route 97 two to three times per week during the course of his employment in the days between April 5, 2005 (when the road was reopened) and April 17, 2005 (when the accident occurred). He said that when he drove the road, he would check to make certain that the barrels and signs were all in place, and that none of them had been taken or overturned. He said he would have reported it if he had noticed any barrels missing. He did not recall reporting barrels missing either in this location or at any point along Route 97.

Trooper King testified for defendant as well. He was the first State Trooper to arrive at the scene of the accident. He said he did not see anything in the travel lane of the roadway which would have caused the accident. He also stated that the only barrel he remembered at the scene was the one the motorcycle was lying against. He said he walked along the road from the accident scene approximately 200 feet north, and did not recall any barrels placed in that distance.

Lieutenant Keith Hocker of the State Police, based out of the Liberty Barracks in Sullivan County, also testified. He recalled this incident, although he was not present at the accident scene. He clearly remembered the flood damage to the road and shoulder at the time, as he lived in the area, and specifically drove Route 97 after it reopened to look at the condition of the road. He recalled that barrels were placed at intervals where the road was damaged. He said "the devastation of the shoulders was obvious. Whether there was a barrel there or not, you couldn't help but see it. It was heaved and broken - looked like the surface of the moon - craters."

Daniel Paddick, P.E., a retired DOT employee, testified as defendant's expert. Paddick noted that the hazardous section of the shoulder in the vicinity of the accident appeared to be approximately 150 feet long. In his opinion, adequate warning regarding this "relatively short section" of shoulder was provided by the two barrels present at the accident site,(26) depending on their location at the time of the accident. He qualified this statement by opining that two barrels constituted the absolute minimum warning that would be required under the circumstances, and that "having a couple more barrels probably would have been better."(27) ,(28) Paddick did believe, however, that the number of barrels and signs over the course of the 15 miles of intermittent damage was sufficient to make motorists aware that there was damage to the shoulder.

In Paddick's opinion, the cause of the accident, to a reasonable degree of engineering certainty, was driver distraction.(29) However, Paddick also stated that once claimant left the roadway, the condition of the shoulder was a factor in causing him to lose control of his motorcycle.

Defendant rested its case at the close of Paddick's testimony. At that time, it renewed its motion to dismiss, upon which the Court again reserved decision.

The State clearly has a nondelegable duty to maintain its roadways in a reasonably safe condition (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Where the State undertakes to provide a paved shoulder adjacent to the road, that duty then extends to maintain the shoulder in a reasonably safe condition for foreseeable uses, including situations arising from either a driver's negligence or an emergency (Bottalico v State of New York, 59 NY2d 302, 304 [1983]). However, it must be noted that the State is not an insurer of the safety of the roads, and the occurrence of an accident thereon does not automatically impose liability on the State (see e.g. Tomassi v Town of Union, supra).

Claimant has the burden of establishing that the State was negligent and that such negligence was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Marchetto v State of New York, 179 AD2d 947 [1992], lv denied 80 NY2d 751 [1992]; Demesmin v Town of Islip, 147 AD2d 519 [1989]).(30) Liability will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to either correct the condition (see Harris v Village of E. Hills, 41 NY2d 446, 450 [1977]; D'Alessio v State of New York, 147 AD2d 791 [1989]; Brooks v New York State Thruway Auth., 73 AD2d 767 [1979], affd 51 NY2d 892 [1980]; Rinaldi v State of New York, 49 AD2d 361, 363 [1975]), or to adequately provide warning for such condition (Bailey v State of New York, 161 AD2d 912 [1990]; Freund v State of New York, 137 AD2d 908 [1988], lv denied 72 NY2d 802 [1988]).

There appears to be no dispute about numerous issues in this case, based on both the testimony and the documentary evidence submitted in this case. First, the shoulder was undisputedly severely heaved and cracked. Second, this condition (the crack at the shoulder joint and the heaved shoulder) was sufficiently severe to pose a hazard to the traveling public.(31) Third, defendant had actual notice of this hazardous condition. Fourth, the path of claimant's motorcycle clearly intersected with the crack in the fog line between the travel lane and the shoulder, and then traversed the heaved and bumpy portion of the shoulder. Fifth, it is completely unknown what caused claimant to leave the travel portion of the roadway, and whether it was an emergency or not, but it is clear that there was no defect or condition in the traveling lane that would have required claimant to leave that lane. However, it is well settled that liability on the part of the State ensues when a driver negligently drives off the roadway onto a shoulder maintained in a hazardous condition (Bottalico v State of New York, supra).

Accordingly, the only questions remaining for this Court to resolve are whether defendant provided adequate warning of the hazardous condition, and whether the alleged deficiency of its warning, when combined with the hazardous condition, was a proximate cause of the accident. Finally, if the answers to the previous questions are "no" and "yes" respectively, the Court must determine whether claimant's actions were negligent and contributed to the causation of the accident.

With regard to the issue of whether the warning devices were sufficient to adequately warn travelers of this particular hazardous condition on the shoulder of the roadway, the Court finds that they were not. Even the most cursory review of the numerous pictures taken of the shoulder in the area of the accident would reveal that the condition of the shoulder was highly dangerous, particularly to a two-wheeled vehicle such as a motorcycle. The substantial crack at the joint between the travel lane and the shoulder only exacerbated an already highly hazardous situation. Unquestionably, some sort of warning device should have been placed in advance of this severe condition. The Court credits Mr. Koehler's testimony that the motorcycle went off the road 150 to 200 feet prior to encountering the first barrel located at the scene, and further notes that he stated that the motorcycle moved this barrel only "slightly."

The Court is cognizant of the fact that such warning devices may occasionally "disappear." However, it is apparent that more than a few barrels would have had to disappear (or have been moved) at this location, if DOT had complied with its own warning plan of putting barrels no more than 50 feet apart at spots where the shoulder was hazardous, and closer together if the situation was particularly dangerous, while still putting them far enough in advance of the danger to give motorists time to observe them and to react accordingly. In this case, DOT employee Engelhardt stated that this was one of the most severely damaged locations, bad enough that Lieutenant Hocker described it as looking like "the surface of the moon." While various DOT employees testified that they "watched" for missing barrels when they drove by, none could state with any certainty when they did so, and there do not seem to have been any additional barrels placed along the road to replace those which "disappeared."(32)

Further, the "No Shoulder" sign four tenths of a mile north of the accident scene was clearly insufficient under the provisions of MUTCD,(33) which DOT officials said were followed. The interval of safe shoulder, in good condition, between that sign and the accident scene would unquestionably lead a motorist to believe that the condition about which the sign was warning had passed, and that the shoulder was now safe for travel. Based on the foregoing, the Court finds that the warning devices in the area were not adequate to warn of the dangerous condition in advance of it being encountered (Bailey v State of New York, supra).

The Court further finds that the failure to warn claimant of the hazardous condition was a substantial factor in the cause of the accident. While claimant was clearly negligent (see infra), he was driving at a reasonable speed (at least 10 miles per hour less than the posted limit), and there is no testimony that he was driving recklessly. Under these circumstances, and given claimant's extensive experience and training on motorcycles, the Court can only conclude that the accident would not have occurred if the warning signs and devices had been properly placed, giving claimant an opportunity to see them and to react (Wood v State of New York, 112 AD2d 612 [1985]).

On the other hand, however, the Court can also only conclude that claimant was substantially negligent during the course of this unfortunate fatal ride. There was a variable message sign (albeit 12 miles in advance of the site) which indicated that there was no shoulder for the ensuing 15 miles. There were repeated incidences of barrels along the shoulder. At the location of the accident, the shoulder was in observably bad condition (although the Court would note that the condition became severe at the precise point where claimant's motorcycle left the travel lane), and, as previously noted, claimant had extensive experience and training on motorcycles.

Accordingly, the Court apportions liability 50% to the State and 50% to claimant. Any motions not previously determined, including defendant's motions to dismiss, are hereby denied. The Clerk of the Court is directed to enter interlocutory judgment against defendant State of New York on the issue of liability in the proportions set forth above. A trial on the issue of damages will be scheduled as soon as practicable.

Let interlocutory judgment be entered accordingly.

October 13, 2009

Binghamton, New York


Judge of the Court of Claims

1. There was no evidence adduced at trial that defendant New York State Thruway Authority had any responsibility for or control over that portion of Route 97 where the accident occurred. Further, the Court notes that State Route 97 is not part of the State Thruway System. Accordingly, the claim is dismissed with respect to defendant New York State Thruway Authority.

2. Route 97 had been closed for several days at the beginning of April 2005, shortly prior to the accident, as the result of a severe flood. During the flood, the Delaware River rose and actually covered portions of the highway in Sullivan County, damaging the shoulder in some locations, including the location where decedent left the road on his motorcycle.

3. All quotes herein have been taken from the Court's recording of the proceedings.

4. Claimant's Exhibit 16.

5. Id. at 7.

6. The State Police's Incident Report (Claimant's Exhibit 7) indicates that the speed limit in the area was 55 miles per hour.

7. Claimant's Exhibit 16 at 20, 21-22.

8. Id. at 31.

9. Claimant's Exhibit 17.

10. Claimant's Exhibits 4A through 4H, and 5A through 5J.

11. In other words, claimant left the road prior to encountering the barrel.

12. Claimant's Exhibit 17 at 52.

13. Exhibits 3A through 3P, submitted into evidence at trial, were photographs taken at the scene by Sergeant Rushanski.

14. Claimant's Exhibit 7.

15. The Incident Report (Claimant's Exhibit 7) further notes that inspection of claimant's motorcycle did not reveal any mechanical malfunction. Defendant did not contend that any such malfunction contributed to the accident.

16. Variable message signs are large, lighted signs that can be programmed with a specific message.

17. The sign alternated between flashing "No Shoulder" and "Next 15 Miles."

18. Claimant's Exhibits 2O and 2Q.

19. Claimant's Exhibits 3A through 3D.

20. Interestingly, a photo log taken by DOT employees on April 24, 2005 of the roadway at and in the vicinity of the scene of the accident (introduced into evidence at trial as Claimant's Exhibits 6A through 6BB) reveals that the yellow, orange and white barrel shown in Rushanski's photographs in the center of the road immediately adjacent to the fire truck is the only barrel (of numerous barrels shown) with that color pattern in the lengthy section of road depicted therein.

21. Claimant's Exhibits 2O and 2Q.

22. Sanders and Smith took a series of photographs at that time which showed the road from mile marker 1016 north to mile marker 1023 (Claimant's Exhibits 2A through 2R). This accident occurred between mile markers 1018 and 1019.

23. The other barrel was the yellow, orange and white barrel previously referenced in note 19, supra.

24. MUTCD 234.10 (a) (2) (Claimant's Exhibit 19A at 9).

25. MUTCD 234.10 (b) (2).

26. As set forth supra, the photographs taken by Rushanski at the time of the accident showed that the motorcycle was resting against one barrel, and the other barrel was in the middle of the road, presumably for traffic control during emergency services' presence at the accident scene.

27. The Court discounted Paddick's testimony that there "may" not have been enough barrels available to mark the hazardous condition, in light of Dean Smith's testimony that there were enough barrels available to reopen the road.

28. Paddick's speculative statement that "there could have been four barrels" marking the hazardous shoulder condition is completely contradicted by the photographic evidence taken at the time of the accident, and was also disregarded by the Court.

29. Paddick surprisingly stated that, in his opinion, there was no meaningful distinction between a "reasonable assumption" and a "reasonable degree of engineering certainty."

30. Claimant contends that the Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76 [1948]) is applicable to reduce her burden of proof. The Court disagrees. The Noseworthy doctrine permits the finder of fact greater latitude in considering circumstantial evidence of negligence in a case where the person in the best position to describe what happened has died, potentially as a result of the defendant's wrongdoing (id.; Holiday v Huntington Hosp., 164 AD2d 424, 428 [1990]). The purpose of the rule is to prevent a tortfeasor with knowledge of the facts from being insulated from liability merely by standing mute (Orloski v McCarthy, 274 AD2d 633 [2000], lv denied 95 NY2d 767 [2000]; Holiday v Huntington Hosp., supra). However, this rule does not apply where, as here, claimant and defendant have equal access to the facts surrounding the accident (Orloski v McCarthy, supra; Lynn v Lynn, 216 AD2d 194 [1995]).

31. Every witness who testified concurred on this issue, including defendant's expert.

32. Even more disturbing, from the Court's perspective, is the fact that the photo log of the roadway (Claimant's Exhibits 6A through 6BB) apparently taken by DOT employees on April 24, 2005, one week after this fatal accident, reveals that there were still no barrels at the appropriate locations in advance of and around this particular danger.

33. MUTCD 234.10; Claimant's Exhibit 19A at 9.