New York State Court of Claims

New York State Court of Claims
PATTON v. STATE OF NEW YORK, # 2010-018-133, Claim No. 106817

Synopsis

Case information

UID: 2010-018-133
Claimant(s): TIFFANY MICHELLE PATTON
Claimant short name: PATTON
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 106817
Motion number(s):
Cross-motion number(s):
Judge: DIANE L. FITZPATRICK
Claimant's attorney: SIDNEY P. COMINSKY, P.C.
By: Sidney P. Cominsky, Esquire
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Roger B. Williams, Esquire
Maureen A. MacPherson, Esquire
Assistant Attorneys General
Third-party defendant's attorney:
Signature date: September 15, 2010
City: Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This claim arises from an automobile accident which occurred on December 30, 1999, on Route 370, also known as Onondaga Lake Parkway (Parkway) in the Town of Salina. The trial addressed both liability and damages.(1)

Motion

Initially, the Court must address Defendant's motion to dismiss (M-73368) that was adjourned for decision after trial. The claim failed to set forth the total sum claimed. After the Court of Appeals Decision in Kolnacki v State of New York, 8 NY3d 277 [2007], the Defendant made a motion to dismiss the claim for lack of subject matter jurisdiction based upon Claimant's failure to set forth the total sum claimed as required by Court of Claims Act 11 (b). After the motion was brought, Court of Claims Act 11 (b) was amended (L 2007, ch 606) to provide that in a personal injury, medical, dental, or podiatric malpractice or wrongful death action, the statement of a sum certain is no longer a jurisdictional requirement for claims pending at the time of the amendment. Accordingly, Defendant's motion to dismiss the claim for failure to set forth a sum certain is denied.

Liability Determination

On December 30, 1999, Claimant was on her way home from work at the Carousel Center at approximately 5:00 p.m. She was traveling northwest on the Parkway and was driving a 1995 Mitsubishi Mirage with 13-inch tires. The road was clear and dry, and she was very familiar with the roadway. The Parkway runs along the north side of Onondaga Lake in a northwest-southeast direction and has two lanes of traffic in each direction. During trial, it was agreed that the directions north or west would mean heading toward the Village of Liverpool with the lake being on a driver's left. Conversely, the use of either south or east would mean the lake would be on a driver's right side. The speed limit on the Parkway at that time was 55 miles per hour (mph).

Upon entering the Parkway from Park Street, Claimant was initially in the right driving lane, heading northwest. She moved into the passing lane, driving about 50 mph until another vehicle pulled into the same lane directly in front of her. This vehicle was so close, Claimant braked and steered to her right causing her vehicle to leave the roadway at a graveled area at the south end of a pond across from the lake. Claimant did not attempt to stop her vehicle but tried to reenter the roadway. In fact, Claimant testified it never occurred to her to stop her vehicle, she was focused on getting back onto the road. Turning her steering wheel to the left, Claimant encountered some resistance. She felt a bump then found herself crossing both northwest lanes of traffic into oncoming southeast traffic. A van collided with the driver's side of her vehicle causing injuries to the Claimant.

It was only a matter of seconds from the time she was cut off until the collision. Claimant said she watched the van approach and did not think she would survive. Her next recollection was being in an ambulance strapped to a board with her neck immobilized. She suffered a "hangman's fracture" at the C-2/C-3 level.

Claimant testified about the injuries she suffered from the accident and the effect those injuries have had on her daily life. She moved to Onondaga County at age 21 and began working temporary jobs. She became a receptionist for the Pyramid Companies and worked her way up to manager before being hired by CXtec . At the time she left Pyramid, she earned $35,000 per year. She currently earns $70,000 per year at CXtec. Claimant described having an active lifestyle before the accident, including going to the gym three times per week, rollerblading, and participating in the Chase Corporate Challenge Run each year. Despite suffering from depression, she was active and was, generally, in good health.

At trial, the area where Claimant left the roadway was referred to as an unofficial pull-off or recovery area. It is approximately 300 feet in length, along the right side of the Parkway, proceeding northwest toward Liverpool and is used by vehicles as a place to leave the travel lane and shoulder if necessary.

In 1996, the State contracted with Jana-Rock Construction to resurface the Parkway. The proposal sought 1.9 miles of asphalt concrete resurfacing of the Parkway between Road Marker 1156 minus 100 feet to Road Marker 1175 plus 388 feet.(2) The proposal reflects that the contract began at the north and proceeded southeast to the Interstate 81 Interchange, accordingly, reference to the right side of the roadway is the lakeside unless otherwise specified.(3) Part of the work to be performed included 3,000 linear feet of trimming and reshaping of existing shoulders between Road Marker 1163 and Road Marker 1171 plus 250 feet, and 2,900 linear feet of shoulder backup, "required only when the final drop off is greater than or equal to two [inches] ADBE(4) [as directed by engineer]." The areas where this work was performed were modified by field conditions identified by the engineer as set forth in the Engineer's Project Diary,(5) the Inspector's Notes,(6) correspondence,(7) and Asphalt and Fuel Adjustment Workup.(8) There were an additional 788 linear feet of shoulder trimming and reshaping and 2,280 linear feet of shoulder backup performed.(9)

Jerome Thomas, a professional engineer,(10) having been previously employed for 33 years with the New York State Department of Transportation (DOT) testified on Claimant's behalf. He explained that the 1996 asphalt resurfacing included the median, travel lanes, and shoulders. The shoulders were not paved separately but together with the travel lanes making the surface a cohesive whole, or as Mr. Thomas said, "it's monolithic."(11) In 2001, he went to the location of the accident, as described by Claimant in her deposition, to inspect it and take measurements.

Mr. Thomas took the 1998 DOT photo log with him on this inspection.(12) The photo log records the highway condition by taking a picture approximately every 50 feet. The photos show a small crescent-shaped gravel pull-off area at the south side of a small pond at light pole #20 and by Road Marker 1173. He said that since the photo log was taken, there have been some changes: the light pole was changed, a weeping willow tree north of this pull-off area near the "wedding bridge" was removed, and a "bicycle" sign south of the pull-off was also removed. Mr. Thomas also reviewed the DOT road history card for the roadway and noted there was no work performed on this section of roadway between the 1996 resurfacing and his inspection of this location in 2001.

The photo log shows a white edge line on the road depicting the outer right edge of the travel lanes which are the same height as the adjoining asphalt shoulder. Beyond the shoulder, the pavement drops off to a dirt and gravel surface. Mr. Thomas went on to define the term, "drop-off," as the distance from the top of the pavement to the shoulder, or in this case, from the top of the shoulder to the roadside.(13) Drop-offs are a concern for DOT, he said, for two reasons. From a structural viewpoint, the edge of the pavement is unsupported and it creates wear; and for safety reasons, if a vehicle goes off the pavement, it is difficult for the driver to get back on the road because the tire will ride along the edge of the pavement, also known as "scrubbing,"(14) until the driver turns the wheel and the tire catches. At that point, the vehicle will pivot onto the highway and will be catapulted across it, as he believed happened to Claimant. Scrubbing is of particular concern where the pavement edge has a vertical face.

Mr. Thomas explained drop-offs as rated by DOT in the Highway Maintenance Guidelines(15) table. The table(16) shows drop-off types: vertical, rounded, and beveled or angled, and the safety level of each as they relate to the height of the drop-off. The Guidelines also define the safety categories. These Guidelines, according to Mr. Thomas, give engineers guidance and set a standard for what is expected although engineering judgment is usually involved in most decision-making.

Mr. Thomas took photos and measurements of the drop-off along the shoulder of the pull-off area. Over the approximately 300 feet of pavement edge along the pull-off, Mr. Thomas found mostly a vertical face with a height differential of 4 - 5 inches, and in some places almost 8 inches. There were no areas that he measured with less than a 4-inch drop-off.

According to the Guidelines table, a vertical face with a 4 - 5 inch drop-off falls into the questionably safe category, over 5 inches is considered unsafe. Based upon the definitions in the Guidelines with a vertical face drop-off of 4 - 5 inches, a high number of drivers would have significant difficulty with scrubbing and remaining within the adjacent travel lane. Under these circumstances, a driver could lose control of their vehicle. Any vertical face drop-off, 5 inches or greater, under the Guidelines is unsafe, causing almost all drivers great difficulty in returning to the adjoining travel lane likely causing a loss of control.

Mr. Thomas reviewed the Jana-Rock documents related to the 1996 resurfacing and noted that there were letters written about the need to backup the shoulders along the Parkway. Mr. Thomas explained backing up the shoulders means adding material, usually at a 45 angle,(17) creating an edge, shown as "Shape C" in the Guidelines,(18) to eliminate the height differential and the shape of the pavement edge. In a letter dated November 6, 1996, sent to Thomas Beaulieu, DOT Engineer-in-Charge, by Jana-Rock, the contractor, told the State that there was 3,000 - 4,000 feet of shoulder along the Parkway with 2 inches or more of a drop-off. Another letter to the State dated November 15, 1996, requested final approval of the project despite there being 3,000 linear feet of shoulder edge with 2 inches or greater drop-off. Only some of these shoulder areas were backed-up. Shoulder backup work was performed between Road Markers 1173 - 1174, proceeding southeast on the lakeside of the Parkway. No records were produced showing shoulder backup was performed between the relevant road markers on the pond side of the Parkway. Mr. Thomas opined that the drop-off should have been addressed in 1996, and that the drop-off in the pull-off area at the time of this accident was hazardous to drivers.

On cross-examination, Mr. Thomas noted that the roadway was flat and straight and the pavement was in good shape. The State right-of-way for this roadway extends 30 feet from the center line, which includes everything to the edge of the paved shoulder. However, Mr. Thomas stated that the State was responsible for the pavement edge even if it is beyond the right-of-way. Most of the State employees agreed. Mr. Thomas also said that based upon maintenance records he reviewed, DOT mowed the grass alongside the Parkway.

Mr. Thomas agreed with defense counsel that this pull-off area would provide a vehicle leaving the roadway a place to stop and that there were no conditions existing that would prevent a driver from coming to a safe stop at this pull-off.

Eugene Camerota, a Consulting Engineer and Professor of Engineering Science at Onondaga County Community College, also testified as an expert for Claimant. Based upon Claimant's description of the accident and information obtained by Mr. Thomas, Mr. Camerota opined that Claimant's tire rubbed against the vertical face of the pavement in a scrubbing action.

Scrubbing, according to Mr. Camerota, creates resistance to a vehicle regaining the roadway.

Mr. Camerota indicated that a driver typically has a tendency to return to the road and will use more and more effort to do so to the point of oversteering. Claimant's vehicle had relatively small tires which exacerbate the difficulty to return to the highway. Once the scrubbing resistance is overcome, the oversteering results in the vehicle moving across the road into oncoming traffic. According to Mr. Camerota, a driver's reaction time when traveling 40 - 45 mph is one second, and at that speed a vehicle can travel 60 - 70 feet per second. Before the driver even fully realizes what has happened, Mr. Camerota testified, he or she is in the lane of oncoming traffic.

In Mr. Camerota's opinion, the cause of Claimant's accident was the elevation difference between the roadway and the gravel area which caused the scrubbing and ultimately the crossover into oncoming traffic.

Mr. Camerota acknowledged that in an emergency situation, instead of trying to return to the travel lane, a vehicle could safely stop in the pullover area provided there was enough room. The slope away from this road was traversable and he agreed that a driver could leave the roadway and get back on in a safer manner. If the effort to reenter is more perpendicular to the road edge, it is easier to get over the vertical edge. However, he reiterated, that typically a driver's tendency is to regain access to the roadway immediately.

Claimant entered numerous depositions of DOT personnel into evidence.(19) Virtually all of the DOT employees acknowledged that a 5-inch drop-off could be hazardous(20) and those that were asked agreed that such a drop-off would be addressed by the State. Many of the employees testified that the State has an obligation to inspect the roadway edge periodically, which seemed to mean once or twice a year. The State does drive-by inspections or "windshield inspections"(21) at or about the speed limit to check for hazards or needed repairs, however, no one testified that the pavement edge or drop-off was, in fact, inspected beyond the drive-by.

The Defendant called Carl Ford to testify. Mr. Ford, a licensed, professional engineer has worked for DOT since 1983. At the time of trial, he was the Director of Region III which includes six counties and encompasses Onondaga Lake Parkway as part of its 3,200 lane miles. He testified that the Parkway is maintained by the Transportation Maintenance Group in the Onondaga East Residency.

Mr. Ford was shown the DOT photo log(22) taken in September 1998, and testified that from viewing those logs, he felt the Parkway appeared to be reasonably safe. He described the maintenance work done regularly by DOT, and confirmed the windshield inspections of the roadway. In the winter months, November - April, snow and ice removal is the highest priority. Maintenance of roadways in the summer months includes numerous activities.

Mr. Ford was aware of the 1996 project regarding paving and the issue about backing up the shoulders at that time, but even after reviewing the Daily Report,(23) he was unable to confirm where on the Parkway shoulder backup was completed. Mr. Ford had no personal input into the 1996 repaving project and did not become the head of Region III until 2004.

Mr. Ford acknowledged that it is the State's responsibility to maintain the pavement edge and that the drop-off can be a concern. He agreed that the greater the drop-off, the greater the hazard. Other than Claimant's accident, he was unaware of any other accidents there as a result of leaving/reentering the roadway.

Law

Undisputedly, the State owes the traveling public a nondelegable duty to maintain its roadways in a reasonably safe condition under the circumstances (Friedman v State of New York, 67 NY2d 271, 283). This duty applies to the road surface, road shoulders, and conditions adjacent to the highway which could reasonably be expected to cause injury to the persons using the highway (Chalk v State of New York, 147 AD2d 810, 811; Rinaldi v State of New York, 49 AD2d 361, 363). Yet, the State is not an insurer, and the occurrence of an accident does not permit an inference of negligence (see Tomassi v Town of Union, 46 NY2d 91, 97; Boulos v State of New York, 82 AD2d 930, 931, affd 56 NY2d 714). Any roadway can be made safer but the State's duty has been met when users of the highway exercising due care can travel over the roadway safely (id.). In order for the State to be found liable, it must have actual or constructive notice of a dangerous condition and then fail to take reasonable measures to correct the condition (Rinaldi, 49 AD2d at 361).

Discussion

Claimant seeks to impose liability on the State for creating an unsafe difference in elevation along the pavement edge of this first pull-off area. Claimant argues, the addition of a layer of new pavement in 1996, and the failure to add concrete millings to the shoulder edge, at that time, has resulted in a vertical pavement edge with a difference in elevation from the adjoining ground that is a hazardous condition to almost any driver who pulls off and attempts to regain access to the travel lane.

Although there were no identified witnesses to Claimant's vehicle leaving Route 370 on December 30, 1999, Claimant has consistently and credibly testified that this was the location where her vehicle left and attempted to regain access to the roadway and the Court accepts her testimony. The reason Claimant's vehicle left the roadway does not impact the State's duty because whether the actions that led to her presence in the area adjacent to the shoulder were careless or reasonable, the State owes the same duty (see Penzell v State of New York, 120 Misc 2d 600, 604; see also Bottalico v State of New York, 59 NY2d 302, 306). The testimony established that this location is known as an area for vehicles to pull off from the roadway.

Although the State argues the county is responsible for the adjacent land along Route 370, and the general area of this pull-off, it is the State that bears the responsibility for the condition of the pavement edge geometry and drop-off to the immediately adjacent ground at this location.

Defendant's arguments that its obligation stops at the edge of the pavement are contradicted by the testimony of DOT employees during depositions. It is also contradicted by the contract proposal(24) for the 1996 repaving project for this roadway which required that any shoulder drop-off greater than 2 inches needed to be backed up.

At the time of Mr. Thomas' inspection of this area in June 2001, he measured along the entire 300 feet of this pull-off area and found a 4- to-5-inch height differential between the pavement edge and the adjoining ground with some locations as high as an 8-inch difference. Mr. Thomas opined that the edge geometry along this pull-off was primarily vertical. Mr. DeFazio,(25) relying on his memory from when he worked on Onondaga Lake Parkway and pictures, also testified that the pavement edge was "Shape B,"(26) as identified in the Highway Maintenance Guidelines. The Court accepts Mr. Thomas' opinion as to the edge geometry, as he was the only witness who actually went out and inspected the area.

Using the June 2001 measurements, both Mr. Thomas and Mr. Camerota opined that the height differential at this location was a hazard to drivers attempting to reenter the adjacent travel lane especially drivers of small vehicles like Claimant's - with small tires. The Highway Maintenance Guidelines indicate the identified drop-offs create, at best, a marginally safe condition and at worst an unsafe condition. Marginally safe means a small number of drivers would have difficulty in overcoming the height differential and remaining in the adjacent lane. As the height differential increases to 5 inches or more, it becomes unsafe and almost all drivers would experience "great difficulty" returning from the pavement edge to the adjacent travel lane. Such height differentials have been found to be dangerous conditions in many cases (see Steuer v Town of Amherst, 300 AD2d 1104 [1 to 3-inch differential]; Gray v State of New York, 163 AD2d 650 [7-inch drop-off]; Sevilla v State of New York, 111 AD2d 1046 [drop-off between road and gravel shoulder was between 4 and 8 inches]; Penzell v State of New York, 120 Misc 2d 600 [drop-off of 3 inches]; Protzman v State of New York, 80 AD2d 719 [3 to 4-inch drop-off]). Thus, it is not difficult for the Court to conclude in this case that height differentials of between 4 to 8 inches with a vertical edge present a hazardous condition to drivers attempting to traverse this pavement edge. There remain, however, three critical questions. What was the condition of the pavement edge on December 30, 1999? If significant height differentials existed at the time of Claimant's accident, did the State create the condition or have timely actual or constructive notice of this condition before December 30, 1999? Did the height differential proximally cause Claimant's accident?

Starting at the key moment in time, has Claimant established the condition of the roadway on December 30, 1999? The Court answers that question affirmatively.

Mr. Thomas testified, without contradiction, that the height differentials he measured in June 2001 would not have significantly changed from the conditions 18 months earlier - on December 30, 1999. He based his opinion on the fact, acknowledged and supported by DOT employees and records, that no paving or other work other than general maintenance was performed at this location between 1996 and 2001. No changes were made during that time frame to the level of the pavement or the adjacent ground. Relying on his experience, Mr. Thomas testified that a drop-off between 4 and 5 inches would not have occurred in 18 months. That amount of wear, according to Mr. Thomas, would take "years of traffic,"(27) because for many months each year in this climate the ground is frozen or covered with snow. Mr. Thomas also relied upon the photo log prepared by DOT on September 1, 1998, 16 months before Claimant's accident, which he testified shows a drop-off at that time. However, because of the angle of the photograph, he could not testify to the depth of the drop-off.

A couple of the DOT employees who testified during depositions agreed, generally, that significant differences in elevation between the pavement edge and the adjoining granular surface would not occur in 18 months. Mr. Ricky Gervel, Regional Construction Engineer with DOT, noted gravel does not generally erode 6 to 8 inches in 1 years. Most of the DOT employees also testified that crushed stone and gravel do erode some over time and as a result, require periodic maintenance as determined during regular inspections. Mr. Alexander Ryan testified that he has seen a change in the elevation of the gravel along a shoulder edge of "an inch or so."(28) Mr. Ryan also testified that, generally, the elevation difference at this location has stayed the same over the past years - he has not noticed any difference.(29) Claimant has generally established that the gravel material adjacent to the pavement edge at this location would not have changed significantly during the 18 months before Mr. Thomas' inspection. The next question is whether the State created this condition or had timely actual or constructive notice of it.

Claimant's primary argument is the State created these dangerous elevation differentials when it added 1 inches of new pavement on top of the existing pavement and failed to properly backup the shoulder edge to the adjacent ground. Claimant points to the requirement in the contract proposal (Contract Proposal Item No. 15203.22) for 3,000 linear feet of trimming and reshaping existing shoulders,(30) and 2,900 linear feet of shoulder backup. Additional shoulder backup was identified in the contract to be determined by the engineer.

Shoulder trimming, according to the Engineer Project Diary (Exhibit 49), was performed on August 8, 9, 10 and 13. The Inspector's Report(31) from August 12, 1996, reflects that a total of 3,788 linear feet of shoulder was trimmed. The road markers where the work was performed are identified in the report and included shoulder trimming and reshaping work beginning on the left (pond) side from Road Marker 1173. No ending road marker is noted but only 220 linear feet were completed. Despite the contractual requirement that trimming and reshaping the shoulders was to be done the entire length of the project, it was not.(32)

The Engineer's Project Diary indicates shoulder backup areas were laid out on September 27, 1996. On October 17, 1996, the Project Diary indicates water holes were filled in the shoulder trim areas, as directed by the engineer. From October 27 to November 1, the Onondaga East Residency sought additional shoulder backup at Road Markers 1173 to 1174, on the lake side of the road. The Engineer's Project Diary contains the back and forth discussion with the contractor regarding this additional shoulder backup which continued through November 19, 1996. The requested additional shoulder backup was performed on November 20, 1996.

The Inspector's Report from October 11, 1996, shows 1,898 linear feet of shoulder backup was completed in the morning on the right shoulder of the westbound lane at specific areas marked by the engineer. That afternoon, the eastbound shoulder backup was performed. On October 14, 1996, the Inspector's Report reflects that the "crew worked to correct areas where shoulder back-up material failed to meet existing ground."(33) Additional shoulder backup was performed on November 20, 1996, as noted in the Inspector's Report from that day, with 50 linear feet of westbound shoulder backed up. The Inspector's Daily Report dated February 25, 1997 indicates a cost of $2,043.33 for additional shoulder backup as directed by the engineer on the westbound side of the project.

The letter dated November 15, 1996, from Jana-Rock Construction, Inc., to the Engineer-in-Charge of the 1996 repaving project, Thomas Beaulieu, noted that in addition to the areas the Onondaga East Residency identified for additional shoulder backup, approximately 3,000 linear feet of shoulder on this roadway had a drop-off of 2 inches or greater.(34) Jana-Rock sought a letter from DOT accepting these areas that were not in contractual compliance. No such letter or formal specific acknowledgment was introduced into evidence, although the contract work was accepted as noted in a Memorandum dated December 12, 1996 to Deputy Chief Engineer (Construction) from Regional Director, Region 3, as of November 20, 1996.(35) No other evidence of this matter was provided, and Defendant did not dispute the accident area was left with a 2-inch or greater drop-off in 1996.

Claimant argues that the burden to produce evidence that the shoulders between Road Markers 1173 and 1174 on the northwestbound side were not included in the 3,000 linear feet shifted to Defendant, after Mr. Thomas testified that based on his review of the project records "the concerns by the contractor [regarding out of compliance shoulder drop-off] was both sides"(36) of the road. Mr. Thomas also testified that the records from the 1996 resurfacing project did not indicate any shoulder backup was performed between the relevant mile markers. Claimant argues, that based upon the State's failure to refute Mr. Thomas' assertions, an adverse inference should be drawn against the State.

For the Court to draw an adverse inference for the failure to call a witness or produce a document certain conditions must be met. First, no inference exists until the party who bears the burden has made out a prima facie case. Secondly, the party seeking the inference must show:

1) for a witness - that the witness' testimony would be material; that the witness would be expected to give non-cumulative testimony favorable to the Defendant; and the witness is available to testify (1A NY PJI 1:75); or 2) for documents - that a document in Defendant's possession exists and no reasonable explanation has been made for the failure to produce it (1A NY PJI 1:77).

Here, Claimant has failed to establish the necessary prerequisites to support the Court applying an adverse inference that Defendant failed to call a necessary witness. Although there were several DOT employees involved in the 1996 repaving project who were not deposed or called to testify at trial, Claimant has not shown that any of these participants would have provided favorable, material, non-cumulative testimony and that they were available. However, the finding must be different for the documents. At trial, Mr. Ford testified he could not confirm that the shoulder at this location had been backed-up but he "would assume that the Force Account Records would verify the location."(37) The Inspector's Report and the Engineer's Daily Project Diary both reference the Force Account records. Claimant demanded in "Claimant's Supplementary Letter-Notice to Produce" from March 24, 2006, all documents relative to the 1996 resurfacing project. No Force Account Records were provided. Claimant has established that the records exist and were in Defendant's possession, and Defendant provided no explanation for the failure to produce these records which Defendant's employees surmise could verify the location for backup work. Therefore, in the absence of any direct proof that backup was placed at this pull-off location and Defendant's failure to produce the Force Account Records to show whether this area was backed up, the Court will find it was never backed up during the 1996 repaving project (cf. Bermudez v City of New York, 21 AD3d 258). Nor did Defendant dispute that this area was included as part of the 3,000 linear feet left with a 2-inch or greater drop-off at the conclusion of the 1996 repaving project. It is important to note that if these shoulders had been backed-up, and the edge shape changed from vertical to a 45angle, described as "Shape C" in the Guidelines, then even with the same height differential, the edge would be reasonably safe.

Adding 1 inches of new pavement on top of the existing pavement in 1996 created a vertical height differential which was exacerbated by the erosion of the gravel material at this pull-off location. Because the shoulders at this location were never backed up in 1996 to eliminate a contractually unacceptable drop-off at that time, the excessive drop-offs at this location, evident from the pictures in evidence(38) taken in June 2001, expose the layers of both the prior pavement and the 1996 repavement course and make the unsafe height differential readily apparent. The 2-inch or greater drop-offs in 1996, with some gradual wearing of the adjacent material during the following years, combined with a failure to backup the shoulders and change the vertical edge, resulted in this hazardous drop-off that existed for a sufficient period of time before Claimant's accident to permit DOT employees to observe the condition during a regular inspection and timely address it.

On a high-speed commuter roadway where contractually unacceptable drop-offs remained after the completion of the 1996 repaving project, a location where vehicles are known to regularly exit and reenter the roadway should have been a prime area for inspecting the pavement edges. Even an annual inspection - which according to the DOT employees deposed - is the minimum expected - would have revealed these drop-offs. The DOT employees testified that the inspections of the roadway were done by driving along it at the speed limit. A resident engineer who observed or was notified of drop-offs between 4 and 5 inches would be expected to minimize those elevation differences, and generally speaking, Mr. George Doucette, Director of Operations for DOT in Syracuse, indicated such a repair could be handled by the residency without contractual work.

The evidence supports the finding that it was the height difference between the vertical pavement edge and adjoining ground that was a proximate cause of Claimant's crossover collision. The degree of drop-off caused Claimant to encounter scrubbing and ultimately be projected into the oncoming lane of traffic.

Claimant too, however, contributed to her accident. Despite good weather, and her familiarity with the roadway and this pull-off area, Claimant chose to attempt to reenter the travel lane before regaining complete control of her vehicle. Claimant argues that she is not comparatively negligent because she was responding to an emergency situation - attempting to avoid a collision. Yet, if the Court accepts that this situation presented an emergency, Claimant's actions in avoiding the collision with the vehicle that abruptly cut in front of her did not cause her accident. Rather it was Claimant's decision and actions to immediately attempt reentry onto the roadway which contributed to her accident. Under the circumstances, Claimant's actions were not reasonable given the more prudent and available option of stopping her vehicle. Accordingly, based upon the foregoing, the Court finds the State 60% responsible for Claimant's damages, and Claimant 40% responsible.

Damages

Claimant was taken to the State University of New York University Medical Center (University Hospital) by ambulance from the accident scene. At the hospital, she spent hours getting diagnostic tests and her neck was immobilized. She was admitted with her neck still braced. The following day, Dr. Kenneth Yonemura, a neurosurgeon at University Hospital, told her she had fractured her C-2 vertebra and she would need a halo brace; Claimant described it as a hard plastic vest from her upper chest down to her waist, connected to a metal circle halo around her head with four metal rods, two in front and two in back. The metal circle was screwed into her skull in four places. She had to wear this brace for three months and still has scars and indentations in her skull from it.

After spending a couple of days in the hospital, Claimant returned home but initially could not take care of herself. After she left the hospital, she needed a hospital bed to assist her rising from bed because the vest was so heavy. She did not sleep well because the brace was uncomfortable and she had to sleep in a different position than usual. Claimant needed assistance so she had friends stay with her. Two weeks later, she started back to work because she did not want to be alone all day. Claimant said she was afraid something would happen to her when she was home alone.

Before the accident, Claimant said she took pride in her appearance, her job required dealing with the public. With the halo brace, she could not shower and she worried about odor. Her clothes did not fit properly over the vest so she was forced to purchase extra-large shirts and blouses. The vest prevented Claimant from completely covering herself with a coat so she was cold in the winter weather. Her mobility was limited because of the weight of the vest and her inability to bend over. She tried to cook but could not stand for a long period of time. Claimant could not drive with the brace and had to rely on others for transportation. At work, she had to delegate some assignments and mostly worked at her desk.

When the brace was removed, Claimant found her abilities had changed. Her neck was so weak she had to turn her head with her hands for approximately one week. She still has constant pain and can no longer participate in the physical activities she enjoyed prior to the accident. Her employer has numerous physical activities, and social and work-related events available to employees, in which Claimant cannot participate. She said she has to consider the physical and pain repercussions of everything she does. After activity, including things such as cleaning the house, it takes time for the pain to subside. In addition, she worries now about such things as falling in the winter.

Claimant testified that she has neck and upper back pain that never subsides and has become worse over time. She also has headaches and numbness in her hands. To treat this, Claimant has had pain medication, massage therapy, and other pain management treatments. The neurosurgeon, Dr. Yonemura, who initially treated Claimant referred her to John F. Finkenstadt, M.D., for pain management. She has treated with him for five or six years and the most effective treatment, prolotherapy, has been discontinued because it is no longer covered by insurance. Currently, she receives trigger point therapy which gives temporary relief.

The hospital records(39) confirm a C-2 fracture. She was admitted to the hospital on December 30, 1999 as a result and was placed in a halo vest on January 2, 2000. Before that placement, she wore a Philadelphia collar for stabilization in her neck and was given pain medication for a few days. There was no surgical intervention. Claimant was discharged on January 3, 2000, with pain medication and home health nursing.

Dr. Yonemura saw Claimant for a few follow-up visits. The first follow-up was February 8, 2000, while Claimant still was in the halo vest. The pins were tightened which alleviated her concerns of movement and discomfort at the pin sites. She complained of some numbness in her left thigh which Dr. Yonemura attributed to the use of the vest. There was good alignment of the fracture.

On March 21, 2000, the halo vest was removed and Claimant could flex and extend her neck without trouble. The x-rays showed consolidation of the fracture line and no instability was noted. At her next visit on April 18, 2000, Claimant complained of tingling in her legs and hands. An MRI and x-rays were normal with a stable alignment of the fracture. Dr. Yonemura found no structural abnormality to account for the tingling and opined that it would resolve spontaneously. She was released to resume her normal exercise routine.

Claimant saw Dr. Yonemura on February 23, 2001, at which time Claimant was diagnosed with post-traumatic thoracic outlet syndrome for which Dr. Yonemura prescribed a course of physical therapy. Claimant did not see Dr. Yonemura again until April 3, 2002. His note(40) indicated Claimant was unable to obtain physical therapy for insurance reasons. Claimant complained of numbness in her right hand and arm with pain. This did not appear to be related to neck movement. She had a decrease in her right-hand grip strength and a positive elevated arm stress test on that side. She was again diagnosed with thoracic outlet syndrome and prescribed physical therapy and Darvocet. Dr. Yonemura referred Claimant to Dr. Finkenstadt for musculoskeletal evaluation.

Dr. John F. Finkenstadt testified as one of Claimant's treating physicians. His background is in family practice, in which he is board certified, but he has made a career in pain management. He testified at length about his education and training which included osteopathy courses in Canada and certifications in acupuncture, pain management, sports medicine, and orthopedic medicine. These certifications, he acknowledged are not the same as 'board certifications' and are received from various groups or agencies.

Claimant first saw Dr. Finkenstadt on May 15, 2002, with complaints of neck, shoulder, upper back pain, and headaches. On the intake pain diagram,(41) Claimant also indicated numbness down her right forearm into her hand. The only treatment noted by Claimant was massage therapy and pain medication, no physical therapy had been attempted.

At the first visit, some restriction in her neck movement was noted with possible loss of grip strength on the right side. Also, there was some dysfunction of her thoracic spine. The diagnosis is cervical thoracic strain/dysfunction. Dr. Finkenstadt recommended prolotherapy which at trial he said was an effort to tighten ligaments and tendons by injecting a mild irritant into the area causing an inflammatory reaction. He said it is a recognized therapy practiced all over the world. Claimant began prolotherapy on June 11, 2002, with injections of a dextrose and lidocaine solution. Each treatment can be 50 - 100 injections so Claimant was medicated in advance. She needed someone to drive her home from those appointments.

On July 1, 2002, Dr. Finkenstadt noted that she was possibly improving. This visit was shortly after Claimant fell off a guardrail dislocating her right elbow. There was no noted effect on her symptoms from this fall.

Claimant had additional prolotherapy treatments on July 17, 2002, August 22, 2002, October 3, 2002, November 13, 2002, January 8, 2003, April 8, 2003, July 29, 2003, and November 10, 2003. Dr. Finkenstadt testified that the first three treatments are done at approximately six-week intervals. If there is no improvement they are discontinued, but if they help, then the treatments are given at longer intervals. In his office notes, Dr. Finkenstadt indicated Claimant was improving during this therapy. However, after nine treatments, Claimant's insurance company refused to cover any further injections of this nature and the therapy was stopped.

On June 10, 2004, Dr. Finkenstadt began treating Claimant with trigger point therapy which also requires Claimant to be medicated. This treatment, he said, is aimed at treating muscle pathology by normalizing the tension or muscle spasm. Dr. Finkenstadt's notes reflect that Claimant's pain can be as high as a 9 or 10 on a 0-10 scale.

On January 11, 2005, Dr. Finkenstadt noted that Claimant had some relief with trigger point therapy but did better with prolotherapy. She noted the same results at her next appointment and indicated that her average pain was a level 9. As of September 13, 2005, Dr. Finkenstadt increased Claimant's pain medications.

Dr. Finkenstadt testified that, in his opinion, Claimant will experience continuing pain, headaches, hand numbness and migraines as a result of this motor vehicle accident. Although Claimant had migraines before the accident, Dr. Finkenstadt believes they have increased as a result of the accident. Claimant is limited in her physical activities and her pain can affect her ability to concentrate.

On cross-examination, Dr. Finkenstadt said he had not referred Claimant for any other testing or treatment until November 20, 2008, when he recommended another MRI and a possible consult with a spinal injection specialist for other treatments.

The Court allowed Claimant to call three lay witnesses to testify about their observations of Claimant over the State's objections. Barbara Ashkin and Karen Schroeder knew Claimant before her accident, but Lynn Hidy did not. They all observed Claimant at work or home evidencing pain, being physically limited, and occasionally requiring more time than before her accident to complete a task. By all accounts, Claimant is an excellent employee and has missed a minimal amount of work as a result of the accident. She does not participate in physical activities that are available at her place of employment. Claimant testified that she does use Wii Fit for exercise.

The Claimant called Dr. Patrick Hughes, a neurologist. He saw Claimant at the request of Medsource in April 2003, unrelated to this action. His report was received(42) into evidence. At that time, Claimant complained of neck and upper back pain which was moderate to severe. She reported intermittent numbness in her right forearm and pain over her right breast.

Dr. Hughes examined Claimant and reviewed her medical records. He concluded she suffers from chronic pain resulting from the motor vehicle accident. He also opined that additional massage or injection therapies were not necessary but that Claimant would need ongoing pain medications. He described prolotherapy as experimental and stated that inflammation typically causes pain, seeming to question the effectiveness of the induced inflammatory reaction.

Dr. Daniel G. DiChristina testified for the Defendant. He is Board Certified in orthopedics and teaches at SUNY Upstate. His surgical interest is in the extremities but he treats cervical spine injuries in his general orthopedic practice. He examined Claimant on behalf of the State.

Dr. DiChristina was initially asked about Dr. Finkenstadt's treatment methods. He had never heard of prolotherapy before meeting with the Assistant Attorney General on this case, nor had he heard of Gunn's method of trigger therapy. He reviewed Dr. Finkenstadt's records and found that there was no nerve study or EMG study conducted on Claimant. No additional x-rays, MRI films, or CT scans had been ordered. No referrals were made to any other specialists for six or seven years.

As part of his physical examination of Claimant, Dr. DiChristina measured her neck rotation. Initially, Claimant's range of motion test results were 49on the right and 50on the left. When using a distraction technique, Claimant turned to 75 in both directions, 80 is normal.

Claimant had bilateral pain in her trapezius muscles, and her shoulder range of motion was 2/3 normal. In a resisted forward flexion strength test, Claimant was at 100% for her size, age, and gender. This is subjective and no distraction technique was used. Her raised abduction strength was 90%, internal rotation was normal and external rotation was 90%. Dr. DiChristina said Claimant's biceps/triceps strength was 100%, as were her wrists exterior/flexion.

A dynamometer was used to test her grip strength. Dr. DiChristina explained that the dynamometer has five stages to it. When Claimant squeezed it, there is a device registering the strength. The results should be a bell curve despite the strength of the tester. Claimant's right-hand readings were close to a bell curve but her left-hand readings were "all over the board." Any medical interpretations about this were not permitted because it was outside the scope of disclosure.

With other testing, Dr. DiChristina concluded that Claimant had normal sensation in her hands. There was no loss of muscle mass in her hands indicating normal function. She showed no signs of carpal tunnel but had an equivocal result on her left wrist when checked for numbness. Except for pain in her cervical and lumbar spine areas, all other tests performed on Claimant were normal.

In his review of Dr. Finkenstadt's records, Dr. DiChristina found no neurological nor any evidence of hand symptoms. Dr. Yonemura's records indicate no impingement of Claimant's spinal cord.

Dr. DiChristina concluded that Claimant's cervical fracture healed without loss of structural integrity. He finds there is a 5 - 8% impairment of the whole person.(43) No future care is indicated and Claimant should be able to perform daily activities almost as well now as she had before the accident.

On cross-examination, Dr. DiChristina acknowledged that Claimant had tingling in her lower extremities per Dr. Yonemura's note of April 18, 2000. He also felt that when Claimant was making sincere efforts during his examination he found the results to be 100%. Dr. Yonemura's reports also noted tingling and numbness in her right arm in 2001 and 2002 that is associated with pain. Dr. DiChristina agreed that pain can interfere with concentration, sleep, and that the effects of sprains or strains occurring in conjunction with a hangman's fracture can be permanent. Neck pain is associated with these types of injuries.

Claimant, by her demeanor at trial and certainly her actions after this accident, reflect someone who is determined, independent, and tolerant. Within three weeks of this accident, Claimant was back at work full-time. The Court accepts her testimony regarding the difficulties she encountered after the accident and the ongoing pain and numbness she endures. The Court commends Claimant's sedulousness in the context of her physical disabilities and pain.

The Court finds, based upon the evidence, that Claimant has recovered well from the C-2 fracture, but still suffers some reduction in her range of motion. Despite a good physical recovery Claimant is not comfortable participating in many of the activities she previously enjoyed and is limited by pain. Claimant was 28 years old at the time of the accident and will likely suffer a lifetime of some pain with a life expectancy of 52.4 years from 1999 (1 NY PJI 3d, Life Expectancy Tables, p. 1729).

It is always difficult to assess a dollar amount intended to compensate for pain and suffering as injuries and resultant pain are difficult to quantify. Nonetheless, the amount of

damages to be awarded is primarily a question of fact based upon consideration of the injuries incurred (see Taylor v Martorella, 35 AD3d, 722, 724; Wallace v Stonehenge Group Ltd., 33 AD3d 789, 790). The Court has made a review of other damage awards in order to determine reasonable compensation (see Kihl v Pfeffer, 47 AD3d 154; Acton v Nalley, 38 AD3d 973; Schmidt v Bartolotta, 17 AD3d 1162, 1163; Borowiak v Kwitzer, 261 AD2d 916, 916-917; Ruso v Osowiecky, 256 AD2d 839; Duff v Mariani, 248 AD2d 905).

Based upon the foregoing, the Court awards Claimant THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000.00) past pain and suffering, and TWO HUNDRED-TWENTY-FIVE THOUSAND DOLLARS ($225,000.00) future pain and suffering. Adjusted for comparative fault, Claimant is awarded TWO HUNDRED TEN THOUSAND DOLLARS ($210,000.00) past pain and suffering, and ONE HUNDRED THIRTY-FIVE THOUSAND DOLLARS ($135,000.00) future pain and suffering, for a total award of THREE HUNDRED FORTY-FIVE THOUSAND DOLLARS ($345,000.00).

To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act 11-a(2).

LET JUDGMENT BE ENTERED ACCORDINGLY.

September 15, 2010

Syracuse, New York

DIANE L. FITZPATRICK

Judge of the Court of Claims


1. The claim was originally bifurcated but by an Order dated January 24, 2008 scheduling the trial, the Court ordered that both liability and damages would be tried together.

2. Exhibit 47 is an unpaginated document from DOT, Office of Engineering. The proposal was approved by the Regional Director on February 6, 1996, and others on December 12, 1995.

3. Exhibit 47, Table of Driveways, Transcript Vol. I, page 61.

4. Exhibit 47, p. 148, note 3, page 151.

5. Exhibit 49.

6. Exhibit 51.

7. Exhibit 50.

8. Exhibit 48.

9. Exhibit 48.

10. Curriculum Vitae, Exhibit 44.

11. All quotes are from the trial transcript unless otherwise noted.

12. Exhibits 25 - 30.

13. A diagram of a "drop-off" is depicted, circled in orange, on Exhibit 90.

14. Trial transcript, Vol. I, pp. 38-39.

15. Exhibit 52.

16. Exhibit 52, 2.110, figure 14, see also Exhibit 91.

17. See Exhibit 4.

18. Exhibit 52, 2.110.

19. Exhibits 92 - 97, and 99 - 101.

20. Exhibit 92, p. 17, Jeffrey Church, Assistant Resident Engineer at the Onondaga East Residency agreed a 4-inch drop-off could be a hazard.

21. Trial Transcript, Vol. IV, p. 504.

22. Exhibits 25 - 33.

23. Exhibit 49.

24. Exhibit 47, p. 186.

25. Exhibit 93, p. 34.

26. Even accepting his position that the pavement edge was a "Shape B" with a 4-inch drop off, the edge is still only marginally safe under the Guidelines.

27. Trial Transcript, Vol. I, pp. 63-64.

28. Exhibit 99, page 25.

29. Moreover, even if the drop-off on December 31, 1999, was an inch less than when Mr. Thomas measured a three-inch vertical drop off, it is still considered only "marginally safe" under the Highway Maintenance Guidelines.

30. The areas where such work was identified at the time of the contract are set forth on stamped page 151, red tag #2, of Exhibit 47.

31. Exhibit 51.

32. Exhibit 50, red tab 24.

33. Exhibit 51, October 14, 1996.

34. Exhibit 50.

35. Exhibit 50, red tab #23.

36. Trial Transcript, Vol. I, pp. 100-101.

37. Trial Transcript, Vol. IV, p. 522.

38. Exhibits 1, 2-4, 6-10, 13 and 14.

39. Exhibit 87.

40. Exhibit 107.

41. Exhibit 104, p. 1.

42. Exhibit 105.

43. Exhibit P.