On October 4, 1991, at approximately 7:00 p.m., claimant was driving her
Nissan Sentra northbound on the New York State Thruway near milemarker 11.6, a
construction zone where work was being performed by Morano Construction
Corporation ("Morano") pursuant to contract D253700 with defendants. The State
hired the engineering firm of Gibbons, Esposito and Boyce ("Gibbons") to inspect
and monitor the project. Claimant concedes that she was driving in excess of
the 55 mph posted speed limit when her tire got caught in a lip or drop-off
between the road and the center median. Claimant lost control of her car and
collided with a signpost located in the center median. The car split in two
pieces and claimant's front seat passenger, Nathaniel Weldon, died in the
accident. Claimant has no memory of the accident and the parties have
stipulated that claimant has amnesia with regard to the accident and is
therefore entitled to a lesser burden of proof (see Schechter v
Klanfer, 28 NY2d 228, 233; Noseworthy v City of New York, 298 NY 76,
80). The trial of this claim was bifurcated and this Decision pertains solely
to the issue of liability.
Claimant seeks damages for the injuries she sustained on the grounds that
defendants failed to effectively supervise
construction work in permitting a
drop-off to exist and failing to properly shield the signpost. Defendants
contend that claimant's excessive speed without her headlights on was the sole
cause of the accident and that it superceded any negligence attributable to
At approximately 7:30 p.m., New York City Police Sergeant Thomas Lenihan was
driving home. It was dusk and the road surface was smooth and dry. He
proceeded northbound on the Thruway and was in the left lane directly behind
claimant for several miles as he approached the area where the Thruway merges
with Interstate 287. Lenihan testified that both he and claimant were traveling
with the flow of traffic at a speed between 60 and 65 mph.
Lenihan observed claimant gradually move to the left and the left front tire
caught a lip or drop-off between the road and the center median. Claimant tried
to gain control and swerved back and forth several times. After the last swerve
to the left, the car turned sideways into the median, where it hit gravel and
dust flew. Lenihan could not see anything through the dust, but he heard a
crash. When the dust cleared, Lenihan observed that the car had crashed into a
Lenihan did not notice the lip prior to claimant's tire getting caught in it.
He explained, "[n]o, I didn't notice it. I wouldn't have - you wouldn't notice
it unless your attention was drawn to it" (Ex. 20, p. 99). Lenihan testified
that, as he slowed down, he could see a difference in the height between the
newly paved road surface and the median. He estimated that the road was three
and a half inches higher than the median and described the angle of the drop-off
as a right angle, straight up and down. There were no markings or delineation
at the edge of the pavement nor any barrels or cones placed along the edge of
the road. There were no signs or lights warning of the drop-off. In the center
median, there were barrels between the northbound and southbound lanes. There
were no guiderails in the center median.
Robert Salierno was traveling northbound on the Thruway, en route to a wake,
when he observed claimant's accident several hundred feet ahead of him. There
was one car between his and claimant's. Salierno estimated that both he and the
middle car were traveling at a speed of 60 to 65 mph. Salierno testified that
claimant had her lights on, "I know that" (Ex. 21, p. 500). He also testified
that he saw her taillights disappear into the dust (Id.).
Salierno stated that the road appeared to be under construction and had been
resurfaced. He could see a new asphalt edge. In the middle of the median,
there were orange barrels but no guiderail. Later that evening, Salierno
stopped his vehicle as he passed the accident location. He observed a height
difference of three and a half inches where old and new asphalt met. Salierno
recalled that there were barrels in the median and, based upon where they were
located, he characterized the lip as a danger.
Edward Wagner testified that he was a friend of Nathaniel Weldon and also knew
claimant. Wagner visited the accident scene on Monday, October 7, 1991. He
observed a drop-off that he estimated to be seven inches between the newly
surfaced road and an area that had not been filled.
Claimant's sister, Caryl Erickson, testified that three days after the
accident, she drove slowly past the scene several times. She observed a
drop-off of eight inches at a 90 degree angle. Erickson, who was trained in
landscape architecture, has designed bicycle paths and roadways.
Westchester County Police Officer Michael Susi and Westchester County Police
Sergeant Matthew Seman responded to the scene on the night of the accident.
They took measurements of the marks on the road. Don Monchino, a representative
from the New York State Thruway Authority, was dispatched to take photographs.
Monchino prepared a report in which he indicated the presence of 240 feet long
skid marks leading to the pole. There are no photographs depicting the height
of the drop-off.
Eugene Marra testified that in 1991, he was employed by Gibbons as the
resident engineer-in-charge of inspection on a fast track paving job covering
two miles on Interstate 87 and eight miles on Interstate 287. He explained that
the State gave Gibbons a set of plans and that he was hired as a construction
engineer to monitor the performance of the work by the contractor, Morano.
Marra was required to be at the construction site daily and typically worked
during both the day and night shifts. He supervised inspections and the
inspection team. The State also had an engineer-in-charge, Brian Wells, on the
job and the Thruway Authority had a liaison for the Interstate 87 section.
Marra initially defined an edge drop-off as greater than four inches;
thereafter he conceded that it could be fewer than four inches. He was not sure
whether or not the Thruway had a rule prohibiting drop-offs.
Marra testified that before the construction project began, there had been a
corrugated beam guiderail that ran the length of the median. The contract
provided for new guiderail along Interstate 87. In the vicinity of the
accident, the old guiderail was removed on September 30, October 1 and October
2, 1991. Marra testified that there was a sign pole at milemarker 11.6. The
contract did not provide for any protection of the pole during the time period
when the old guiderail was removed and the new guiderail was being
For areas with pavement edge drop-offs, the contract provided that orange
barrels with reflective strips be placed at 50 foot intervals for delineation
purposes (Ex. 27). Marra testified that either he or his chief inspector were
responsible for making sure that the barrels were in place. If the barrels were
not in place, Morano would be advised. When asked who would advise Morano,
Marra replied, "[t]hat's my job or thruway authority or the state, whoever would
have picked up the condition if it was like that, would have notified me and I
would have notified the contractor to take care of it immediately" (Exs. 19
& FF, p. 648).
New York State Police Investigator Brodie Mack testified that he was assigned
to investigate the accident. He prepared the MV-104-A, the standard New York
State Police Accident Report. From his observation of the damage to the car,
the measurements of the skid mark, the point of impact versus where claimant
left the road, and interviewing witnesses, Mack estimated that claimant was
traveling at a speed of 65 to 70 mph.
Fred Hanscom, who has been a Highway Safety Research Engineer for 32 years,
provided expert testimony on behalf of claimant. Hanscom was part of the
commission that developed the Manual of Uniform Traffic Control Devices
("Manual") and he currently contributes to its updates. He has had experience
designing roads and signing construction sites. Hanscom reviewed the applicable
standards and specifications, and the contract between the State and Morano. He
noted that the State's engineer had the authority to stop any work which
affected the safety of the public. The contract also provided that all traffic
control devices must be in compliance with the standards set forth in the Manual
and that it was the engineer's responsibility to ensure compliance with the
plans (Ex. 23). The engineer had the right to make necessary changes at any
time during the course of the project (Ex. 25). Upon the contractor's receipt
of notification from the engineer, the State police, or the Thruway Authority,
that there were any hazardous construction practices which violated Thruway
regulations or the provision of the contact, all work in the area would cease
until remedial action was taken (Ex. 24).
The contract indicated that there were special provisions applicable to the
Thruway because it was a limited access, high speed highway. Specifically, as
discussed in the preconstruction meeting attended by representatives from the
New York State Department of Transportation ("DOT"), Morano, the Thruway and
Gibbons, the "Thruway does not allow any drop offs" (Ex.7; see, Ex. 9).
Brian Wells, the DOT engineer-in-charge, reiterated this prohibition in a letter
to Morano dated April 3, 1991 (Ex. 8).
Hanscom defined drop-off as any difference in elevation between the shoulder
and the travel lane which is created where paving is added. He stated that a
drop-off constitutes an illusive hazard because it is hidden and unexpected. He
explained that it creates a propensity for a driver to lose control because when
a tire drops into the lip, the driver tries to steer away, which causes the
front tire to scrub along the drop-off and energy builds as the motorist goes
forward. The vehicle then lifts up over the drop-off in the opposite direction.
As the car remounts the road's surface, energy is released and the car shoots
across the road. Typically, the vehicle will go back and forth out of
Hanscom maintained that studies have established criteria for tolerable
drop-offs depending upon the angle of the drop-off and the posted speed. A three
inch drop-off is intolerable at 55 mph, the posted speed on the Thruway.
Hanscom testified that Marra's interpretation of a drop-off as a differential of
more than three or four inches was inaccurate and could result in a drop-off not
Hanscom noted that the Traffic Control Plan, incorporated in the contract,
provided for a warning scheme during pavement repairs where shoulder drop-offs
exist (Ex. 1). A warning sign, with flashing lights, cones, and barrels at the
edge of the drop-off should have been used (Ex. 26). Here, there were no signs
or cones and, barrels were placed in the center of the 20 foot median rather
than at the edge of the pavement (Ex. 27). The location of the barrels had the
adverse effect of leading a driver to believe the lane was ten feet left of
where it actually was. According to Hanscom, Marra, who was in charge of the
inspection team, was not discharging his responsibilities in accordance with
highway safety standards and the contract. Hanscom testified that, had the
barrels been placed properly, the edge would have been well defined and
claimant, like most drivers, would have stayed a minimum of one and a half feet
from the barrels. Thus, claimant would have avoided the drop-off and the
accident would not have occurred.
Hanscom further testified that the unprotected sign structure steel pole in
the median was contrary to accepted safety highway standards. According to
Hanscom any hazard, within a clear zone of 30 feet, must have a barrier. The
existing metal corrugated metal post guiderails were removed before new
guiderails were installed and there was no provision in the contract to protect
the pole in the interim (Ex. 10). Hanscom opined that either the pole could
have been removed before the guiderail replacement was undertaken or small
sections of jersey barrier could have been placed in a flared pattern to
redirect any errant vehicles while the guiderail replacement was undertaken.
The jersey barrier would have dissipated energy. Jersey barriers had been
purchased by the project and were available. Hanscom concluded that the failure
to protect the pole was a substantial factor in causing claimant's
Hanscom noted that the accident occurred at approximately 7:00 p.m. on a day
that the sunset was recorded as 6:33 p.m. Statistics indicate that most
accidents occur at this time.
The defendants did not present a traffic safety expert to refute Hanscom's
opinions. Rather, they challenged Hanscom's theories on cross-examination and
maintained that claimant's manner of driving was the sole cause of the accident.
Defendants presented the expert testimony of Robert Genna to establish that
claimant was traveling at a speed of 75 mph at the beginning of the skid marks.
Genna is the Assistant Director of the Suffolk County Crime Laboratory and is
trained in accident investigation and reconstruction. Using accepted formulas,
based upon the concept of kinetic energy, he took measured distances that the
car had traveled, applied the relevant drag factor, and then arrived at
claimant's speed. Genna divided claimant's course into four sections: the
slide on the pavement, the slide on the median, the collision with the pole and
the slide of the two segments of the split car.
Genna concluded that claimant's speed was the cause of the accident and, had
she been traveling at the posted speed limit of 55 mph, she would not have
collided with the pole. He explained that his calculation of claimant's speed
of 75 mph was based on objective evidence at the scene rather than the
subjective observations of witnesses Lenihan and Salierno. Genna also used a
computer program to plot the path that claimant's vehicle had traveled (Ex.
On direct examination, Genna indicated that claimant's speed at the point of
impact with the pole was probably 50 mph. When challenged on cross-examination,
however, Genna testified that he assigned a speed of only 20 mph to claimant's
vehicle at the point of impact with the pole, rather than the greater speed of
50 mph. He stated that he used the lesser speed because once he calculated
claimant's initial speed to be 75 mph, he felt it was high enough. Genna
further stated that had he used a speed of 40 mph at the point of impact, then
claimant's initial speed would have been 90 mph.
In rebuttal, claimant offered the testimony of accident reconstructionist
William Houston, who has investigated over 4000 collisions. Houston disagreed
with Genna's assumption that claimant's tires were locked at the beginning of
the tire marks. He explained that claimant's vehicle had standard brakes and
that, when brakes are applied, the tires stop turning. When a car slides, it
creates friction which leads to a smear as the asphalt melts and stones rip the
tire. Skid marks typically start light and get darker. Looking at a photograph
taken at the scene of the accident, Houston pointed out that the tire marks near
the pole were light (Ex. 4). Additionally, the tire marks were in an arc,
indicating that the wheels were rotating in a yaw. Houston also maintained that
the measurements taken by Susi and Monchino documented a cross over which has to
be an arc. This evidence was also consistent with Lenihan's testimony that he
had observed the car swerve.
Assuming that claimant had not braked, Houston calculated claimant's speed at
the point of impact with the pole, necessary to split the car, was 50 mph and
that claimant's initial speed, at the beginning of the marks, was 67 mph. This,
he stated, was consistent with the eyewitnesses' account. Houston further
opined that, even if claimant had been traveling at 55 mph at the beginning of
the tire marks, the vehicle still would have collided with the pole.
Houston opined that claimant's lack of braking was a reasonable driving
maneuver given the total event. When the car dropped to the left, claimant
could have believed it was a blowout and it was a normal reaction to steer away
from a hazard. Her oversteering to the right in an effort to bring the vehicle
back under control, was also within the range of normal driving. Moreover,
Houston maintained, hard braking could have thrown her across several lanes of
traffic or resulted in the car overturning. Houston conceded that, if claimant
had been traveling at 55 mph and had applied her brakes, she would have stopped
before the pole.
It is well settled that defendants have a nondelegable duty to adequately
design, construct and maintain its roadways in a reasonably safe condition
(see Gomez v New York State Thruway Auth., 73 NY2d 724;
Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d
579; Zalewski v State of New York, 53 AD2d 781). Defendants, however,
are not the insurer of the safety of its roadways and the mere happening of an
accident on a State roadway does not render defendants liable (see
Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway
Auth., 73 AD2d 767, affd 51 NY2d 892). Claimant has the burden of
establishing that defendants were negligent and that such negligence was a
proximate cause of the accident (see Bernstein v City of New York,
69 NY2d 1020, 1021-22; Marchetto v State of New York, 179 AD2d 947;
Demesmin v Town of Islip, 147 AD2d 519).
Upon consideration of all the evidence, including listening to the witnesses
as they testified and observing their demeanor as they did so, the Court finds
that the credible evidence established that each party's negligence was a
proximate cause of the accident. "It was only through claimant's negligence
that she was placed in a position to be harmed by the negligence of the State"
(see Clark v State of New York, 124 AD2d 879, 881 ["(w)ithout the
confluence of the State's negligence and claimant's negligence in operating her
vehicle while intoxicated and failing to negotiate a curve at a speed sufficient
to carry her car 200 feet along the shoulder and an additional 150 feet after
impact with the guiderail until it came in contact with a bridge abutment, the
accident and claimant's unfortunate injuries would not have occurred"]).
Claimant, who was concededly traveling in excess of the posted 55 mph speed
limit, was negligent in her manner of driving (see Haughey v
Noone, 262 AD2d 284 [claimant was negligent where he was traveling at a
speed in excess of the posted speed limit]). Claimant was obligated to operate
her vehicle at a rate of speed and in such a manner of control as to avoid an
accident (see Oberman v Alexander's Rent-A-Car, 56 AD2d 814,
The Court rejects defendants' argument, however, that claimant's speed was so
excessive that it constituted a superceding cause severing the link to any
negligence attributable to defendants. The Court finds the testimony of the two
eyewitnesses, Lenihan and Salierno, to be forthright and credible regarding
claimant's speed. The Court did not find the testimony of defendants' expert,
Robert Genna, to be persuasive regarding claimant's speed, especially in light
of his testimony on cross-examination regarding the speed he assigned to
claimant's vehicle at the point of impact.
The Court further finds that the drop-off represented a dangerous condition of
which defendants should have been aware and addressed. While there were no
photographs depicting the drop-off, the testimony established that its height
was three and one half inches to eight inches. Significantly, at the
preconstruction meeting, attended by representatives from DOT, Morano, the
Thruway and Gibbons, it was made clear that the "Thruway does not allow
any drop offs" (emphasis added)(Ex.7; see, Ex. 9). The drop-off
posed a hidden and unexpected danger to claimant and was a proximate cause of
the accident (see Sevilla v State of New York, 111 AD2d 1046 [four
to eight inch drop-off was excessive and represented a dangerous condition
which was a proximate cause of claimant's accident]; Bottalico v State of New
York, 87 AD2d 807, affd 59 NY2d 302 [four to six inch drop-off was a
substantial hazard]); Coss v State of New York, 11 Misc 2d 856,
affd 8 AD2d 682 [three eighths of an inch to two inch difference in
elevation between edge of the original road and the two foot strip added thereto
presented a dangerous condition which caused motorcyclist to lose control of his
Additionally, the Court finds that the evidence established that defendants
were negligent in their failure to effectively supervise the contractor's work
and monitor its compliance with the contract and the applicable safety
standards. Specifically, defendants were negligent in permitting a drop-off of
significant height to exist without any warning to motorists and in failing to
provide for effective shielding of the pole during the guiderail replacement and
the pole's exposure.
Accordingly, the Court apportions liability 60 percent to claimant and 40
percent to defendants. A trial on the issue of damages will be scheduled as
soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.