New York State Court of Claims

New York State Court of Claims
SCHROEDER v. THE STATE OF NEW YORK, # 2009-044-573, Claim No. 106792, Motion No. M-76693


Court denied defendant's motion for summary judgment in personal injury claim, finding that defendant was not entitled to qualified immunity defense as a matter of law, as questions of fact remained to be determined.

Case information

UID: 2009-044-573
Claimant(s): MARK SCHROEDER and JANIS SCHROEDER, his wife
Claimant short name: SCHROEDER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 106792
Motion number(s): M-76693
Cross-motion number(s):
Claimant's attorney: MARK LEWIS SCHULMAN, ESQ.
BY: Joseph F. Romani, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 24, 2009
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant Mark Schroeder, in his capacity as a Volunteer Ambulance Corp. member, was riding in an ambulance which collided with a stone wall (the Stone Wall) located in the right-of-way on the shoulder of State Route 17B in the Town of Delaware, Sullivan County. Claimants(1) filed this claim, alleging that defendant State of New York (defendant) was negligent in its design, construction, and maintenance of Route 17B based upon, among other things, allowing a dangerous condition - the Stone Wall - to exist in the roadway. Defendant answered and asserted several affirmative defenses. Defendant now moves for summary judgment. Claimants oppose the motion.

Defendant argues that it conducted numerous evaluations of the accident site, and Department of Transportation (DOT) officials determined that the Stone Wall presented no danger to the traveling public using the roadway. Defendant contends that because it based its determination not to take any corrective action upon thorough safety evaluations, it is entitled to qualified immunity. Defendant alternatively asserts that moving the Stone Wall farther away from the roadway would be cost-prohibitive.

Conversely, claimants argue that defendant knew the existence of the Stone Wall within the roadway shoulder was a dangerous condition. Claimants further note that an accident analysis conducted seven years prior to claimant's accident recommended that the Stone Wall be made as crashworthy as possible by including installation of some type of guide rail protection, and assert that there was no reasonable basis for defendant's failure to install such guide rail.

Defendant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).

It is well settled that the State owes to the traveling public a nondelegable duty to design, construct, and maintain its roadways in a reasonably safe condition under the circumstances (Friedman v State of New York, 67 NY2d 271, 283 [1986]). This duty includes an obligation to provide adequate and proper traffic barriers, such as guide rails (McDonald v State of New York, 307 AD2d 687 [2003]; Lattanzi v State of New York, 74 AD2d 378 [1980], affd 53 NY2d 1045 [1981]; see generally Bottalico v State of New York, 59 NY2d 302 [1983]). Nevertheless, the State is not an insurer, and the mere happening of an accident does not permit an inference of negligence (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Boulos v State of New York, 82 AD2d 930, 931 [1981], affd 56 NY2d 714 [1982]). Any roadway can be made safer but the State's duty has generally been met when users of the highway exercising due care can travel over the roadway safely when exercising due care (Tomassi v Town of Union, supra).

In order to recover, a claimant has the burden to show that defendant was negligent and that its negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020; 1021-1022 [1987]; Hamilton v State of New York, 277 AD2d 982 [2000], lv denied 96 NY2d 704 [2001]; 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]). To establish defendant's negligence, the claimant must show that defendant either created a dangerous condition, or had actual or constructive notice of it and failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767 [1979], affd 51 NY2d 892 [1980]; Rinaldi v State of New York, 49 AD2d 361 [1975]). However, the State has qualified immunity from liability with respect to discretionary decisions made in the course of planning and designing a highway, such that liability cannot be imposed unless those decisions were based on a study that was plainly inadequate and/or the plan or design itself lacked a reasonable basis (Weiss v Fote, 7 NY2d 579, 589 [1960]; Friedman v State of New York, supra). This prevents the finder of fact from "second-guessing the planning decisions of governmental bodies regarding such operations as traffic control and regulation" (Deringer v Rossi, 260 AD2d 305, 306 [1999]). Therefore, as a general rule, where experts have differing opinions about whether a planning decision was proper, that difference of opinion is sufficient to establish that the decision was reasonable (Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [1983], affd 61 NY2d 955 [1984]).

In support of this motion, defendant provides the expert affidavit of Daniel Paddick, a professional engineer with 40 years of experience who was formerly employed by DOT. Paddick has personally examined the accident site (Route Marker [RM] 17B 9601 1022), and states that Route 17B in that area is a narrow, winding, rural, two lane roadway, bordered on the south by the East Branch of the Callicoon Creek and on the north by both flat areas as well as steep hillsides. He indicates that the "curve" warning sign was properly located on the roadway prior to the accident site, and was the proper type and size. He also states that although the roadway had been resurfaced on several occasions, and had some culvert/slope repairs performed, there has apparently not been any major roadway reconstruction at the accident site since 1910. Paddick indicates that in connection with a culvert replacement project near the accident site (Culvert Program PIN 9803.18.101), an accident analysis memorandum was prepared in 1993 for the area between RM 17B 9601 1018 and RM 17B 9601 1027 for the three years between October 1, 1989 and September 30, 1992 (the First Accident Analysis).(2) He notes that the Stone Wall was studied to determine if it needed to be improved as part of the project, but states that it was found to be crashworthy and that improvements were neither needed nor made.

Paddick also states that in addition to the site-specific studies, DOT maintains a Priority Investigation Location (PIL) list to monitor accident prone locations, i.e. locations where the accident rate exceeds the statewide average accident rate for similar locations. He indicates that no area of Route 17B - for at least one-half mile on either side of the accident site - appeared on a PIL list for the periods January 1, 1994 through December 31, 1998, September 1, 1997 through August 31, 1999, January 1, 1999 through December 31, 2000, and June 1, 2000 through May 31, 2002. Paddick states that DOT investigated all complaints and answered all questions about the area, and indicates that the Stone Wall was not the subject of any complaint until after claimant's accident. Paddick opines that "the accident was a flat angle at a relatively slow speed collision with the [S]tone [W]all . . . [and] [a]ny injuries received by [claimant] were exacerbated by the fact that he was not wearing a safety restraint."(3) Moreover, none of the previous collisions with the Stone Wall resulted in personal injuries. He further opines that the Stone Wall is relatively crashworthy, as the face of it was fairly smooth and slightly beveled away from the road. Additionally, the lack of offset between the roadway and the Stone Wall reduced the impact angle of collisions, as "[a]ccident severity generally increases with an increase of the impact angle of the collision."(4)

Defendant also submits an affidavit from Dean Smith, a DOT Assistant Resident Engineer. Smith, who has been employed by DOT since 1981, also personally examined the location of the accident. He states that in his position as Assistant Resident Engineer, he would receive complaints concerning unsafe conditions of State roadways, and denies having received any type of complaint regarding the Stone Wall and its proximity to the roadway. He indicates that any attempt to remove the Stone Wall would entail considerable expense, time, equipment and manpower, as DOT would need to excavate back from the roadway, create a slight ditch, then excavate the slope up and back to a safe/stable grade. Because a private driveway would have to be removed, it would more likely than not also require an appropriation of private property. Smith opines that defendant does not have the manpower or equipment necessary to improve the Stone Wall, and the project would have to be performed by contractors, and thus would be prioritized according to the risk posed to the public. Based upon his examination of the Stone Wall, Smith opines that it would not appear to be a high-priority improvement project. He further states that any major improvement to the Stone Wall would require DOT to design the entire area to comply with current highway design standards, presumably entailing additional expense.

A review of the First Accident Analysis reveals that two of the ten accidents which occurred in that area involved the Stone Wall.(5) Contrary to Paddick's statement that the First Accident Analysis found the Stone Wall to be crashworthy and not in need of improvement, the Regional Traffic Engineer who performed this analysis, Robert A. MacMonigle, stated that "[it] would be beneficial to make [the Stone Wall] as crashworthy as possible (end sections, guiderail protection, etc.). If [it] can be done within the scope of the project, it should be considered."(6) It is apparent that the suggested corrective work was never performed.

Further, an accident data and analysis report was also conducted as part of a Shoulder, Slope, and Guide Rail Replacement project on Routes 17B, 52 and 52A (PIN 9803.76) (the Second Accident Analysis).(7) The Second Accident Analysis included the area between RM 17B 9601 1013 and RM 17B 9601 1051 for the period between September 1, 1996 and August 31, 1999, and revealed "[o]ne identifiable accident cluster . . . located at RM 17B 9601 1022 [the site of claimant's accident],"(8) which had six accidents, all involving fixed objects. Although four of the accidents concerned collisions with the guide rail located across the roadway from the Stone Wall, one accident involved the Stone Wall itself. The Second Accident Analysis specifically noted that "[t]he . . .  fixed object accidents . . .  includ[ing] . . .  [the Stone Wall] hit . . . might be an indication of unprotected hazards that should be addressed."(9)

Defendant clearly had knowledge that several accidents involving the Stone Wall had taken place during the 10-year period from 1989 through 1999, and was therefore on notice that a dangerous condition might exist on its roadway. In light of the recommendation contained in the First Accident Analysis, it could be inferred that defendant's failure to install an end section or length of guide rail at the Stone Wall was negligent. Moreover, defendant has not provided the Court with any evidence that it considered the recommendation, and based upon "a deliberative decision-making process," chose not to take any corrective action at that time (Appelbaum v County of Sullivan, 222 AD2d 987, 989 [1995]). Accordingly, defendant is not entitled to the defense of qualified immunity as a matter of law on this motion for summary judgment.(10) Defendant has not met its burden of setting forth a prima facie entitlement to judgment as a matter of law, and its motion for summary judgment is therefore denied.(11)

December 24, 2009

Binghamton, New York


Judge of the Court of Claims

The following papers were read on defendant's motion:

1) Notice of Motion filed on May 14, 2009; Affirmation in Support of Joseph F. Romani, Assistant Attorney General, dated May 12, 2009, and attached exhibits; Memorandum of Law dated May 12, 2009, and attached exhibits.

2) Affirmation in Opposition of Mark Lewis Schulman, Esq., dated September 7, 2009; Memorandum of Law dated September 7, 2009, and attached exhibits.

Filed papers: Claim filed on October 15, 2002; Verified Answer filed on November 25, 2002.

1. Claimant Janis Schroeder's claim is derivative in nature and, unless otherwise indicated or required by context, the term "claimant" shall refer to Mark Schroeder.

2. A copy of the First Accident Analysis is attached as Exhibit D to Defendant's Motion for Summary Judgment.

3. Affidavit of Daniel Paddick, sworn to May 5, 2009 (Defendant's Motion for Summary Judgment, Exhibit 1), 14-15.

4. Id. at 16.

5. Apparently, those accidents consisted of property damage only.

6. Defendant's Motion for Summary Judgment, Exhibit D at 2.

7. Development of PIN 9803.76 was in process at the time of claimant's accident. A copy of the Second Accident Analysis (dated October 30, 2000) is contained in Exhibit H to Defendant's Motion for Summary Judgment.

8. The Second Accident Analysis at 6.

9. Id.

10. However, defendant will have the opportunity at trial to submit evidence pertaining to its decision-making process, and may ultimately be entitled to qualified immunity for its discretionary determination not to install such guide rail protection.

11. Defendant has seemingly set forth sufficient evidence to support a finding that its determination to leave the Stone Wall in its current location (rather than move it farther from the roadway) based upon the potential for increased severity of accidents due to a greater angle of impact, is entitled to qualified immunity. However, that analysis is irrelevant to defendant's decision not to erect a guide rail in light of the recommendation contained in the First Accident Analysis.