Gardner v. STATE OF NEW YORK, #2009-018-047, Claim No. 109520
The law requires an assessment of Defendant’s conduct in light of what is
reasonable under the circumstances. Based upon weather conditions, DOT’s
24-hour snow and ice removal efforts, and available resources and manpower
required to remove the accumulated snow, the Court finds that the State could
not have reasonably removed the accumulated snow before Decedent’s
Brandon William Gardner, Individually and as Administrator with Will Annexed of the Estate of William G. Gardner, Cynthia Ann Gardner and Ryan J. Gardner
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DIANE L. FITZPATRICK
ANTHONY F. ENDIEVERI, ESQUIRE
ANDREW M. CUOMO
Attorney General of the State of
By: Roger B. Williams, Esquire
Michele M. Walls,
EsquireAssistant Attorneys General
October 2, 2009
See also (multicaptioned
Claimants bring a claim for the wrongful death of William G. Gardner as a
result of a one-car accident on an elevated portion of New York State Route 81
northbound over Park Street in the City of Syracuse. Mr. Gardner lost control
of his rental vehicle in the farthest left passing lane, struck the left
concrete median barrier and proceeded to cross all lanes of traffic, riding up
and vaulting over the snow-covered concrete barrier on the far right side of the
highway. Mr. Gardner’s vehicle fell approximately 49 feet, landing on its
roof on Park Street. The claim asserts the State’s failure to properly
the Park Street Bridge location on
Route 81 northbound for proper snow and ice removal, failure to properly warn of
the dangerous icy condition on the Park Street Bridge, or the propensity of the
bridge to become icy or the risk of vaulting. It also asserts that the State
had notice of the dangerous condition of the bridge for ice and snow buildup and
the potential for vaulting, yet, failed to take any reasonable measures to warn,
close the highway, or remedy the problem, even after a prior fatal vaulting
accident on the bridge on January 23, 2004. This Decision addresses only the
issue of the State’s liability.
William Gardner was born on December 19, 1953, in Lyons, New York. At the time
of the accident, Mr. Gardner was a resident of California and worked as the
Director of Space Technology at the Jet Propulsion Laboratory with NASA in Los
Angeles. On January 20, 2004, Mr. Gardner rented a Kia Sportage, a sport
utility vehicle (SUV) in Philadelphia, Pennsylvania. On January 25, 2004, he
was driving the Kia on Route 81 northbound from Vestal (near Binghamton), New
York; the Kia was scheduled to be returned to Syracuse Hancock International
Airport that day.
On that Sunday morning at approximately 8:54 a.m., Mr. Gardner lost control of
his vehicle. Daniel Manns and his passengers, Lori and Michael Kennedy,
witnessed Mr. Gardner’s vehicle in the left passing lane hit the snowbank
alongside the median jersey barrier, cross the three lanes of traffic and the
Hiawatha Boulevard on-ramp lane, and go over the far right jersey barrier. Mr.
Manns testified that as he was driving 47 miles per hour (mph), Mr.
Gardner’s vehicle had passed him earlier, and he estimated that Mr.
Gardner was traveling at 55 mph. When Mr. Manns witnessed Mr. Gardner’s
vehicle lose control, he placed the Kia 10 car lengths in front of him. Mr.
Gardner’s brake lights blinked on and off, and the tires on each side of
the vehicle successively came up off the road as the vehicle slid northbound
almost perpendicular to the jersey barrier. Mr. Manns testified that he could
see the vehicle’s front wheels turning to the left and then to the right
and then to the left again. The Kia was, according to Mr. Manns, perpendicular
to the right jersey barrier when it went over, falling onto Park Street. Mr.
Gardner was pronounced dead at the scene. He died as a result of the multiple
blunt force injuries he incurred from the
Mr. Manns testified that when he got out of his vehicle the roadway was
slippery. He also testified that he saw another SUV lose control in the same
area. It struck the right side jersey barrier and traveled up the snowbank a
little but did not go over.
The Syracuse City Police Department was called to the scene of Mr.
Gardner’s accident and conducted an investigation. Upon arrival on Park
Street, Officer Gary N. Bulinski observed that the overturned Kia was facing
southbound in the northbound left-turn-only lane. Mr. Gardner was seatbelted
and the sole occupant of the vehicle. Officer Bulinski, who testified and
prepared the accident report,
to the Route 81 northbound Park Street Bridge area. He described the road as a
concrete surface comprising four northbound lanes. The driving lanes were each
12 feet wide with 10-foot-wide shoulders. Officer Bulinski found the roadway
was icy, as the temperature at that time was -9°F. Concrete barriers on
the left divide the north and southbound lanes of Route 81 (the median barrier)
and also run along the right side of the roadway (the fascia barrier). These
barriers, referred to as jersey or concrete barriers, or parapet walls during
the trial are 3 feet high, made of concrete, and are wider at the bottom than
at the top. The barrier design is intended to redirect errant vehicles back
onto the highway.
On the Park Street Bridge, Officer Bulinski observed tire marks in the snowbank
along the median barrier; the tire marks led to the top of the barrier then
continued back into the driving lanes in a northeasterly direction. Strictly
measuring the distance from the point the vehicle re-entered the left driving
lane until it entered the right snowbank, it was approximately 304.3
All four tires made tracks in the snow
indicating the vehicle moved up the compressed snowbank and proceeded over the
top of the barrier. The vehicle then fell 48.8 feet vertically and 62 feet
horizontally onto its roof in the northbound left-turn-only lane on Park Street.
The vehicle struck the compressed snow on the right side of the roadway at a
Officer Bulinski concluded, after investigating the accident scene, that road
conditions and speed initially caused Mr. Gardner to lose control of the
vehicle, although Mr. Gardner was not speeding, his speed was not prudent for
the road conditions at the time.
It was Officer Bulinski’s opinion that Mr. Gardner never regained control
of the vehicle after it struck the median barrier. Using the “minimum
initial velocity formula,”
Bulinski calculated that the vehicle was traveling at approximately 38 mph when
it struck the snowbank in front of the median concrete barrier and 33 mph when
it exited that snowbank. The vehicle traveled at 26 mph as it slid up the
snowbank in front of the right fascia barrier. Officer Bulinski testified that
the snowbank, at the location where the vehicle exited Route 81, was hard and
compressed, “almost like concrete”
and it formed a 35-degree angle, which he found caused the vehicle to ramp or
vault over the barrier. The compressed snowbank in front of the right fascia
barrier had a 5-foot base and a hypotenuse of 6 feet. The accumulated snow was
the cause of the vehicle exiting the highway according to Officer Bulinski. The
snow was 6 inches higher than the top of the barrier.
Officer Bulinski calculated that Mr. Gardner was traveling at 24 mph when his
vehicle left the highway using the “Fall
Officer Bulinski opined that if the snowbank in front of the right fascia
barrier had been below the top of the barrier, the barrier would have redirected
the vehicle onto the highway. The actual speed of Mr. Gardner’s vehicle
may have been faster than calculated, as the coefficient of friction Officer
Bulinski used reflected a very slippery consistent surface. Officer Bulinski
also assumed Mr. Gardner was continually braking during the skid, although Mr.
Manns testified the vehicle’s brake lights came on and off, suggesting Mr.
Gardner may have been pumping his brakes. The Kia was equipped with antilock
brakes, which, for proper usage, required constant pressure on the brake pedal.
Bruce Clark, the leader of the automotive mechanic crew for the Syracuse Police
Department, inspected the Gardner vehicle and testified that the vehicle would
have met New York State safety standards for purposes of passing a New York
Almost 37 hours before Mr. Gardner’s accident, Jason M. Rhoades was
traveling northbound on Route 81 at approximately 8:05 p.m. on Friday evening,
January 23, 2004, when he lost control of his vehicle, a 2002 GMC Envoy with a
trailer and snowmobile in tow. Christopher Cassoni was also driving the same
route on his way home that evening. Mr. Cassoni passed Mr. Rhoades and saw,
from his rearview mirror, Mr. Rhoades’ vehicle and the trailer cross all
three lanes of traffic, swaying with brake lights flashing. Mr. Rhoades’
vehicle moved toward the right shoulder, rode up a compressed snowbank and went
over the fascia barrier. Mr. Rhoades’ vehicle fell 36.3 feet into a
Mr. Rhoades was pronounced
dead at the scene. The trailer which he had been towing broke off from the
vehicle and came to rest 22 feet north of where his vehicle went over the
Officer Bulinski also took measurements for Mr. Rhoades’ accident and
testified that Mr. Rhoades’ vehicle went over the right concrete barrier
approximately 100 yards from where Mr. Gardner’s vehicle left the roadway.
The two police reports, in evidence for each accident, reflect identical
reference point information for the location of the accidents: .10 miles north
of the intersection with Hiawatha Boulevard, by mile marker
The compressed snow along the
fascia barrier at the time of Mr. Rhoades’ accident measured the exact
same height, depth, and grade as the snowbank at the time of Mr.
Officer Lonnie Dotson, Jr., investigated Mr. Rhoades’ accident that night
and testified that tire marks led directly to the snowbank in front of the right
barrier, and then the tire tracks could be seen at the top of the snowbank where
Mr. Rhoades’ vehicle left the roadway. Officer Dotson calculated that Mr.
Rhoades was traveling 25 mph when his vehicle left the roadway. At the time,
the roadway was icy and snow-covered. It was lightly snowing that night and the
temperature was 10°F.
After a complete investigation of Mr. Rhoades’ accident, Officer Dotson
filed a report on February 2, 2004.
Officer Dotson found several factors involving Mr. Rhoades’ vehicle
contributed to the accident, but he also found that a direct cause was the
vehicle riding up the compressed snowbank and falling into the ravine below.
Minutes after Mr. Rhoades’ accident that Friday evening on Route 81
northbound, another driver, Mr. Diem Nguyen, lost control of his vehicle, which
slid to the right and hit the concrete barrier at about a foot from the top.
His vehicle became stuck in the snow and had to be towed. The tow truck driver,
Charles Campbell, testified that his tow truck started to slip sideways as he
tried to pull out the Nguyen vehicle with a winch. Mr. Campbell recalled it was
very cold, icy, and snowing the night of Mr. Rhoades’ accident.
The weather at the time of Mr. Gardner’s accident was clear and sunny,
although it was exceptionally cold at -9°F. The weather had been
particularly harsh for the month; records for the past 83 years showed that
January 2004 in Syracuse was, on the whole, the fourth snowiest and sixth
coldest month. By January 25, 47.9 inches of snow had fallen with an average
snow depth on the ground of 19 inches.
Starting on January 22, 5.8 inches of snow fell with freezing fog and blowing
snow with winds averaging 19.5 mph. On January 23, 5.6 inches of snow fell with
freezing fog, mist, and blowing snow with wind speeds averaging 14.4 mph. On
January 24, 1.9 inches of snow fell with freezing fog, mist, and blowing snow
with wind speeds averaging 7.9 mph, with gusts as high as 23 mph. On the day of
the accident there had been .2 inches of snow but it had stopped snowing by 2:43
a.m. There was some mist that day but the winds had died down considerably with
the average wind speed on January 25 being 2.8 mph. A low record temperature
was set for that day of -15°F.
Although the majority of weather data in evidence originates primarily from
Hancock International Airport, which is 4 miles northeast of the accident site,
there is no evidence to suggest the data was not representative of the weather
at the site of the accident.
“Accuweather” forecast and the forecast from WIXT
are provided to the local Onondaga East
Residency of the New York State Department of Transportation (hereinafter DOT)
and accurately predicted the actual weather for Friday, January 23, 2004,
through Sunday January 25, 2004.
DOT Ice and Snow Procedures
Maintenance of the Route 81 Park Street Bridge at the site of the accident was
the responsibility of the Onondaga East Residency of DOT. The Onondaga East
Residency is in DOT Region 3 and includes Route 11 or Interstate Route 81 at its
western border, to Oswego County as the northern border, Cortland County to the
south, and Madison County to the east. Douglas Hill was the Resident Engineer
there at the time of this accident. There were two assistant resident engineers
under him, two level two supervisors (HMS-2 positions), and six level one
supervisors (HMS-1 positions). The residency for the winter of 2004 had
approximately 70-80 employees basically working two shifts: the A-shift, from
midnight until 8:30 a.m., if there wasn’t any snow, and until noon if
there was snow; the B-shift from noon until 8:30 p.m. if there wasn’t any
snow, and until midnight otherwise. Each of the two shifts would usually have
an HMS-2 supervisor and two HMS-1 supervisors patrolling the roads, checking
conditions and resources. The priority in the winter months is snow and ice
removal with all other work secondary - only to replacement of regulatory signs.
Interstate highways, including Route 81, are given the highest priority for
wintertime maintenance. This is because Route 81 northbound in the vicinity of
the Park Street Bridge exceeds 70,000 vehicles passing on the roadway per day.
Within the area covered by a residency, each maintenance truck is responsible
for a particular “beat” or route within the area. There are 15
beats within the Onondaga East Residency and 9 of those beats involve Interstate
Five of those 9 beats cover the Park
Street Bridge roadway northbound.1
priority for Route 81 means that each truck travels less lane miles than trucks
on lesser class highways, and the result is a shorter cycle time between repeat
runs of each beat. In 2004, the residency followed the December 1993 New York
State DOT Highway Maintenance Guidelines Snow and Ice Control (hereinafter
In conducting its plowing
priorities during a snow event, the Onondaga East Residency would first clear
all of the travel lanes. Once snow has slowed or stopped falling, snow removal
would continue for all crossovers and “gore”
The snow and ice directory for DOT Region 3 specifically notes that DOT does
not have the authority under the Highway Law to close any highways. If a
roadway is impassible, the information must be relayed to the news and media
outlets that no travel is advised. Only police agencies have the authority to
close highways. Mr. Hill testified that he was called by the dispatcher of the
residency on the day of the Gardner accident at approximately 9:30-9:45 a.m.
He went to the accident site with the HMS-2 supervisor, Randy Durate, although
the Syracuse Police prevented their access to the accident scene. By the time
of their arrival, all traffic had been diverted off of Route 81 northbound by
the police. Mr. Hill estimated the distance between the location where Mr.
Gardner’s vehicle had displaced the snow on the left-hand side of the
roadway to where his vehicle went over the barrier on the right to be 360 feet,
based upon his knowledge of the distance between the roadway markings.
According to Mr. Hill, the roadway markings and the edge stripes on both sides
of the roadway were visible at the time he was there. Mr. Hill also testified
that he stepped onto the snowbank approximately 10 to 15 feet south of the
location where Mr. Gardner’s vehicle made contact, and his foot went into
the snow up to his knee. He stepped into the snowbank at another location with
the same result.
Mr. Hill was advised of Mr. Rhoades’ accident and death on Friday night
by Alexander Ryan, the HMS2 Onondaga East Residency Supervisor on duty that
night, who went to the scene of the accident. Mr. Hill did not go to the scene.
He testified DOT did not investigate Mr. Rhoades’ accident that night, nor
was any effort made to remove the snow from in front of the parapet walls on the
Park Street Bridge or post warning signs. Mr. Hill, as the Resident Engineer,
in conjunction with the shift supervisor, would normally have the ultimate
responsibility for determining when the snow on the shoulder of a roadway must
In this case, after Mr. Gardner’s accident, the Syracuse Police
Department closed Route 81 and directed all of the snow be removed from in front
of the parapet walls before the road would be reopened. Normally “echelon
would be required to remove
the snow from the median side of the roadway to the right shoulder. Several
plows would be staggered from left to right moving the snow across the roadway.
This usually requires police assistance to slow traffic. Often echelon plowing
leaves some snow in the road, to which deicing material is applied. On this
occasion, because of the road closing, a few plows were used to move the snow
over the roadway with each pass. Once the snow was moved over to the right-hand
shoulder, a large snowblower was used to blow the snow to the ground below the
The Onondaga East Residency did not have a snowblower large enough for this
task, so it borrowed a snowblower from another residency. The region has a
total of five large snowblowers which are mostly concentrated in Oswego County.
The large snowblower is a self-contained unit that travels slowly, requires two
operators, and must be transported on a flatbed truck to the location
where it will be used. If the snow cannot be blown safely off the roadway, DOT
would contract for the use of dump trucks. Snow would be blown into the dump
trucks and trucked off site. The snow removal process on January 25, 2004, took
approximately six hours to accomplish with the highway closed. After the snow
was removed from in front of the parapet walls, the Syracuse Police Department
reopened the roadway.
Mr. Hill testified that except for construction and maintenance activities, the
engineers and staff of the Onondaga East Residency would not have placed warning
signs or modified the speed limit; authorization for such actions would have had
to come from the Traffic Engineering and Safety Group. After Mr. Rhoades’
accident, the Onondaga East Residency continued with regular snow and ice
The day after Mr. Rhoades’ accident, and the day before Mr.
Gardner’s accident on January 24, Carl Ford, the DOT Regional
Transportation Maintenance Engineer for Region 3, responsible for snow and ice
management and highway and bridge maintenance for the entire region, drove to
the scene of Mr. Rhoades’ accident at 4:00 a.m. to take a “look at
Mr. Ford drove over the
bridge but never stopped or exited his vehicle. He then spoke to Mr. Randy
Durate, the Onondaga East Residency Supervisor on duty that day about the
accident. Mr. Ford learned that Mr. Rhoades’ accident was a fatality and
that the residency was continuing snow and ice removal operations as there was
still precipitation in the travel lanes. In response to a question about why
the snow was not removed from in front of the concrete barrier on the Park
Street Bridge after Mr. Rhoades’ accident, Mr. Ford testified that the
residency lacked the resources because the plow truck operators were engaged in
ongoing snow and ice removal operations.
After Mr. Gardner’s accident, again on January 25, 2004, Mr. Ford went
to the scene. He testified that he did not find the snowbank in front of the
right barrier to be “like concrete,” as others had said. Mr. Ford
maintained his opinion that following Mr. Rhoades’ accident, there was no
opportunity or ability for the residency to remove the snow along these parapet
walls because of the lack of resources, as ongoing snow and ice removal
operations were engaged prior to Mr. Gardner’s accident. Mr. Ford
acknowledged that accumulated snow in front of concrete barriers can create a
ramping situation which would render the barriers ineffective.
Raymond McDougall was the Assistant Regional Traffic Engineer in the Traffic
Engineering and Safety Group at the time of these accidents. His department was
responsible for all of the traffic engineering devices (i.e., signs, signals,
markings) for the 1,500 miles of State Highways in Region 3. Traffic
engineering studies are conducted by this office. His office also maintained a
“location file,” which is a folder containing any studies,
complaints, or other information about a particular segment of the highway
system. Records are maintained in the location file for at least 10 years. Mr.
McDougall reviewed the location file for the Park Street Bridge location of
Route 81 north and found no complaints regarding this section of highway, and
the only accidents referenced were that of Mr. Rhoades on January 23, 2004, and
Mr. Gardner’s accident on January 25, 2004.
Mr. McDougall’s department determines the appropriate speed limit on any
stretch of highway within the region. Only one roadway in the region has a
temporary speed limit change, a seasonal reduction, implemented after two
studies of the roadway were conducted. Although studies are not required to
make a speed limit change on an interstate highway, a study would be required to
make a temporary speed limit reduction, and that would typically take at least a
month to complete. A temporary or seasonal change in the speed limit takes into
account developments along the roadway, characteristics of the roadway, and
usually a study of the 85th percentile speed
traveled - which, in Mr. McDougall’s
estimation, is the best indicator of what the speed limit should be at a
particular location. Any proposed reduction would also have to be approved by
Mr. McDougall or his supervisor, and his office is not staffed on weekends.
Mr. McDougall testified that, in his opinion, based upon the regulations in the
Manual of Uniform Traffic Control Devices
(17B NYCRR § 212.2), it was
not appropriate to temporarily change the speed limit at the Park Street Bridge
location after Mr. Rhoades’ accident - a history of accidents would be
required. Mr. McDougall was aware of a prior vaulting accident during the
winter of 1994 by Mrs. Anne Vislosky.2
Vislosky testified that she vaulted over the Route 81 southbound right fascia
barrier with plowed snow in front of it and, fortunately, survived but with
Portable variable message signs also fall under Mr. McDougall’s
department’s jurisdiction. Such signs are large message boards which must
be towed to the site and are limited to three lines of eight letters per line.
The use of these signs is discretionary under the MUTCD (17B NYCRR §
201.3). Mr. McDougall testified that the signs are difficult to place in an
urban setting and they can be a potential hazard to the traveling public. The
signs are typically used to notify the public of major events, i.e., graduation
at Syracuse University, the New York State Fair, or to introduce a new signal
device. In Mr. McDougall’s opinion, a variable message sign would not
have been appropriate after Mr. Rhoades’ accident to advise additional
caution on the bridge or to warn of the winter driving conditions. Mr.
McDougall’s department would not have investigated Mr. Rhoades’
accident unless requested, but the police investigation reports of accidents are
reviewed for purposes of traffic safety. In this case, Mr. McDougall’s
office did not receive copies of the police reports until two weeks after the
Mr. McDougall also did not feel that a warning sign was appropriate for this
location after Mr. Rhoades’ accident. First, placement of a warning sign
under the applicable regulations for a 55 mph speed zone would require placement
830 feet before the Park Street Bridge
(17B NYCRR table 230-1 and 230-2). The “icy pavement zone” sign
(17B NYCRR § 234.9) would not be appropriate, as the sign is not intended
to warn motorists of typical winter driving conditions. An advisory speed limit
sign is not intended as a use-alone sign but is intended to be used with another
warning advisory sign like the “curve ahead” sign (17B NYCRR §
239.1). According to Mr. McDougall, flashing beacons or warning flags on a
warning sign are used only as a secondary attention signal if a warning sign
alone does not get the desired result. Reducing the number of lanes at the Park
Street Bridge location of Route 81 north also would not have been appropriate,
according to Mr. McDougall, and he was unfamiliar with any such option being
utilized during his 40 years with DOT.
The Onondaga East Residency is responsible for addressing the highway
situation, such as what developed over the weekend of January 23-25, 2004,
because there would be insufficient time for Mr. McDougall’s department to
conduct a study of the situation. It was Mr. McDougall’s opinion that a
warning sign was not necessary, and flashing beacons, which he opined could not
be used alone, could not be used after Mr. Rhoades’ accident to give
guidance to the traveling public of the risk of vaulting or ramping over the
parapets. Mr. McDougall indicated the cause of Mr. Rhoades’ accident was
“the fault of the driver.”
Although Mr. McDougall agreed that snow and ice plowed over the top of the
concrete barrier presents a hazard, or as he defined it, a condition which could
cause an accident to other drivers.
The Claimants called Thomas Fries, a mechanical engineer with specialities in
Automotive and Structural Engineering licensed in Oregon, Washington, and Idaho.
Mr. Fries also has his master’s degree in business administration. He is
an accredited traffic accident reconstructionist from the Accreditation
Commission for Traffic Accident Reconstruction (ACTAR). He estimated that he
had handled approximately 3,000 accident reconstruction cases during his career.
He maintains an office in Portland, Oregon.
Based upon the information Mr. Fries reviewed in this case, he arrived at
several opinions within a reasonable degree of engineering certainty:
Mr. Gardner lost control of the Kia while traveling at about 55 mph because of
the black ice. The Kia then vaulted over the barrier, either never contacting
it or making minimal contact with it, at approximately 18 mph.
Mr. Fries based his opinions on the photos in evidence showing the displaced
snow in front of the concrete barrier and roadway. The photos of the car show
no damage to the front bumper, undercarriage, or tires. Mr. Fries testified
that the purpose of the jersey barrier was to take the momentum of the vehicle
and redirect it back onto the roadway with minimal damage. In order for the
barrier to work properly there has to be contact with the barrier, and there was
no evidence, according to Mr. Fries, that Mr. Gardner’s vehicle ever made
contact with the jersey barrier. Mr. Fries examined the approach angle and
speed of Mr. Gardner’s vehicle when it came into contact with the left
median barrier, and he determined it was effective at a high momentum or force,
as Mr. Gardner’s vehicle struck that barrier initially at approximately 55
mph and near a 30-degree angle, yet the vehicle was redirected onto the roadway.
It was Mr. Fries’ opinion that plowing snow so that it accumulated to a
level over the jersey barrier, effectively defeated the purpose of the right
concrete parapet. Mr. Fries opined that after Mr. Rhoades’ accident, the
priority should have been to eliminate the danger on the roadway; the roadway
should have been closed down and the snow removed from in front of the barriers
as it was after Mr. Gardner’s accident.
Mr. Fries calculated that Mr. Gardner’s vehicle departed the right
fascia barrier at a 25- degree angle, in opposition to Officer Bulinski’s
finding based upon the tire marks that he left on the highway at a 45-degree
angle. Mr. Fries explained, that unlike Officer Bulinski, his calculation
measured the momentum trajectory, the path or center of gravity of the vehicle,
without the rotation of the vehicle. The way the vehicle rotates doesn’t
matter; according to Mr. Fries, the barrier is supposed to deflect it regardless
of what component of the vehicle, as it rotates, hits the barrier.
Mr. Fries was of the opinion that a temporary sign warning of an icy pavement
zone on the Park Street Bridge should have been placed prior to the accidents
but especially after they occurred. He felt a variable message sign placed 100
feet before the bridge was necessary to get drivers’ attention that there
was a “unique, special hazard with this
and they should slow down,
unless the snow accumulation in front of the barriers was removed. He also felt
that a speed reduction sign should have also been installed after Mr.
Rhoades’ accident. Flashing beacons should have also been used to draw
motorists’ attention to the sign.
Mr. Fries acknowledged, on cross-examination, that Mr. Gardner should have been
traveling slower that morning, as a driver has a duty to maintain control of his
or her vehicle. From the pictures in evidence, he agreed that although the
other lanes appeared clear, the lane in which Mr. Gardner was traveling that
morning was still covered with some snow. Again, from the pictures in evidence,
it appeared that before Mr. Gardner struck the left side median barrier he was
braking for approximately 33 feet to 35 feet, and after striking the barrier,
the vehicle proceeded 375 feet before striking the right fascia barrier. With
continuous braking, Mr. Fries agreed that over 400 feet should be sufficient to
stop a vehicle, although very little deceleration would occur on ice.
Although Mr. Fries opined that a variable message sign was necessary to warn
drivers of the hazards on this roadway, he did not know where such a sign could
be located and he acknowledged that placement of the sign itself could be a
The State called Mr. Duane Amsler, an expert witness. Mr. Amsler has a
two-year associate’s degree in engineering from Hudson Valley Community
College. At the time of this trial, he was retired from DOT after 34 years. At
the time of his retirement, he was the Manager of the System Operation Section
of the Highway Maintenance Division and was specifically responsible for the
snow and ice control program, maintenance training program, and maintenance
communications program. Prior to that position, he was the program engineer for
snow and ice control from 1987 through 1994, and was involved with snow and ice
control research during this time. Since then he has worked with the National
Cooperative Highway Research Program which does research for the American
Association of State Highway Traffic Officials (AASHTO). Mr. Amsler also
provides training to supervisors regarding the theory and practice of snow and
ice control - proper materials, proper plowing, and safety issues.
In 1990, Mr. Amsler was involved with the creation of new Snow and Ice Control
Guidelines for DOT. He worked with a committee of 16 DOT employees from around
the State who had a particular interest and experience in snow and ice removal
to develop the official Snow and Ice Control Guidelines adopted by the DOT in
These Guidelines were intended to
provide guidance for snow and ice control with local interpretation and
discretion. Mr. Amsler has drafted similar Guidelines for the New York State
Thruway Authority and the States of Arizona, Connecticut, and Washington.
In describing Route 81 north at the location of the Park Street Bridge, Mr.
Amsler noted there is a passing lane, center lane, and driving lane, with a
fourth lane that starts as an on-ramp from Hiawatha Boulevard and becomes a
driving lane. Each driving lane is 12 feet wide. The left shoulder at this
location is 8 feet 9 inches, and the width of the right-hand shoulder is 10
feet. The roadway has a designed cross slope, which means that from the small
crown at the point between the driving lane and the center lane, the road slopes
to the right on the right side and to the left on the left side. Mr. Amsler
opined, to a reasonable degree of engineering certainty, that this design is
good for purposes of snow and ice control. Plowing of the roadway involves
moving snow from the passing lane to the left-hand or median side of the
highway, and the snow in the center and driving lanes is plowed to the right
side of the highway.
Mr. Amsler testified that at the time he was working on developing the
Guidelines for the DOT in the 1990’s, he was aware of a federal report
which indicated that the plowing of snow up against bridge railings caused or
contributed to traffic accidents. Mr. Amsler felt there was a lack of
supportive data in the federal report. Mr. Amsler inquired into any State
accidents involving snow plowed against a bridge barrier at the time and was
made aware of two accidents. One, on the New York State Thruway, which involved
a vehicle striking the piled up snow at the end of a bridge and being redirected
onto the highway on its roof (Gomez v New York State Thruway Auth., [Ct
Cl, McMahon, J., December 30, 1986, Cl. No. 69823]; affd 135 AD2d 1043,
affd 73 NY2d 724), and the other accident, in Delaware County, involved a
vehicle going over a median barrier. Given the rarity of these accidents, at
the time, the committee drafting the Guidelines did not feel that it would be
worth the enormous investment to try to clear the 4,000 miles of barriers and
7,800 bridge decks around the State after each snowstorm. DOT simply lacked the
resources to engage in such an effort.
The goal of the Guidelines was to “provide a highway that is passable and
reasonably safe for vehicular traffic as much of the time as is possible within
the limitations imposed by climatological conditions and the availability of
equipment, material and personnel
at § 5.3307 (B),
“Removal of Snow from Special Areas,” provides, “When
possible, accumulated snow should be removed from locations that could melt
during the day, drain across the deck, and freeze at night. Bridge drainage
features should be cleared to facilitate the designed discharge of water. Also,
bridges having features to prevent plowed snow from leaving the bridge should
have the accumulated snow removed to make room for the next storm.”
Subsection A of § 5.3307 provides that “[a]fter the storm is
over...the removal of snow from special areas should
Mr. Amsler explained that as long as the plowed snow did not impact the driving
lanes, i.e., was not melting across the travel lanes with the potential to
refreeze, and as long as there was sufficient storage room on the shoulder for
any additional snow in the event of another snowstorm, removal of the snow was
not necessary. The determination of whether there was sufficient room for snow
storage for the next snow event was a discretionary, local determination
typically made by the HMS-2 on duty. The committee felt that removal of the
snow itself posed a dangerous operation. As a result, if the snow had to be
removed, the operation should be performed at an off-peak traffic time, either
weekends or nights. Removal efforts could only be undertaken when no additional
bad weather was expected.
In preparation for his testimony in this case, Mr. Amsler requested the same
vaulting- accident data he had obtained from the State DOT in the 1990’s
while developing the Snow and Ice Removal Guidelines. Based upon his survey of
the resident engineers from the various locations across the State, 17 vaulting
type accidents were identified from 1984 through 2007. In Mr. Amsler’s
experience, the critical component in the vaulting cases was not the snow and
ice buildup but the impact angle of the vehicle to the barrier. The barriers
were, according to Mr. Amsler, designed to deflect vehicles back onto the
highway when the strike angle was 15 degrees or less, and most of the vaulting
cases involve substantially higher angles of contact.
In reviewing the weather conditions and the plowed snow accumulations at the
location of the Park Street Bridge for the period from January 22 through
January 25, 2004, Mr. Amsler opined that the Guidelines did not recommend
removal of the snow from in front of the parapet walls because drainage of water
and snow off of the highway was good, and there was still plenty of storage room
for additional snow. The accumulation of snow beyond the height of the concrete
barrier would not have been a factor in Mr. Amsler’s decision. The height
of the snowbank makes no difference and does not effect the performance of the
barrier. Moreover, Mr. Amsler felt that there was an ongoing snow event
starting on January 22, and continuing into the early morning hours of January
25, which required DOT efforts to be directed at keeping the main roadways
relatively safe. In his opinion, there were no breaks in the snow of
sufficient duration to permit removal of the snow from in front of the parapet
Removal of the snow would require either physical loading and placing of the
snow on trucks or echelon plowing. With echelon plowing, closure of at least
one lane of travel closest to the removal efforts would be necessary.
Additional vehicles are also necessary for “maintenance protections of
traffic” or to provide appropriate signage and lighting behind the
operation to alert motorists of the upcoming lane restriction. These vehicles
would also need rear impact attenuators. The State Police would be involved to
assist with traffic management.
The Guidelines also have a specific section for Ice
It is recognized in the
Guidelines that it is impossible to provide a bare or wet pavement surface at
all times due to the many variables that exist. The goal is to prevent an ice
pavement bond and to do this, according to Mr. Amsler, DOT tries to get an
application of salt on the road immediately at the beginning of a storm for
“just in time anti-icing.” The deicing material used includes rock
salt, sometimes used in conjunction with liquid calcium chloride, which enhances
the deicing capabilities of the salt. They also use abrasives or sand. Sand is
used with the salt when the temperature is very low, because salt become less
effective or ineffective when the temperature falls to between 12° to
15°F. The salt will still work, at least until the temperatures reach
-6°F, if a greater quantity is used; however, the application of a greater
quantity of salt means a truck would not have enough to treat its complete
“beat” and that would result in a dramatic change in conditions
between the roadway that has been treated and the remainder that was not. That
situation would not be good for drivers. Below -6°F, salt does not work
at all. The Guidelines provide recommendations for the timing and rate of
application of the specific deicing agents, taking into consideration pavement
temperatures and the character of the event. On January 23 through 25, a
sand/salt mixture was being applied to Route 81, which, according to Mr. Amsler,
was the appropriate mixture. Mr. Amsler opined that the snow and ice control
efforts of the Onondaga East Residency during January 23 through January 25,
2004, were in compliance and appropriate within the DOT Guidelines and were
based upon sound engineering judgment. During that time frame, the Onondaga
East Residency had no options other than to leave the snow plowed in front of
the right jersey barrier on the Park Street Bridge.
The State also called Arthur Yannotti, a licensed civil engineer in the State
of New York with 32 years experience in bridge design and construction. He is
also a member of the American Association of State Highway and Transportation
Officials (AASHTO), Bridges and Structures Subcommittee. Mr. Yannotti reviewed
the as-built record plans for the Park Street Bridge on Route 81 north from
1981. He testified that the accident happened on Span No. 3 of the bridge and
the vehicle exited the bridge near the beginning of the end of Span No. 4.
Design standards for bridges are governed by AASHTO design codes which are
usually adopted, with some minor variations, by DOT. This bridge also complied
with the Federal Highway Administration Standards.
Mr. Yannotti testified regarding research that was conducted by the
Transportation Research Board (TRB) in reports published under the National
Cooperative Highway Research Program (NCHRP) in an effort to develop better
bridge rails and barriers. The first reports (NCHRP 230) were published in the
1980’s, and the information was utilized in the design of the Park Street
Bridge. The NCHRP 230 set forth the standards and protocols for bridge barrier
and rail crash tests. Three vehicles were used in the crash tests: an
1,800-pound vehicle, a 2,250- pound vehicle and a 4,500-pound vehicle. The
smaller vehicles were impacted with a barrier at 60 mph at a 15-degree angle.
The larger vehicle was impacted with the barrier at 60 mph at a 25-degree angle.
Barriers are less effective as the angle of impact increases, resulting in
greater likelihood of penetrating the barrier, vaulting the barrier, or causing
a rollover of the vehicle. The barrier successfully used in the crash tests
was 34 inches high - 2 inches shorter than the barrier DOT used on the Park
Street Bridge. In fact, the barriers on the Park Street Bridge conform to
current level requirements which exceed the testing level requirements for new
construction. These tests, however, were not done with snow in front of the
For the winter of 2004-2005, DOT developed new written policies and procedures
for snow and ice removal. Under these new policies and procedures, bridges
became a higher priority for snow and ice removal. An effort is made to remove
the snow in front of concrete parapet walls whenever there is a break from snow
falling in the driving lanes.
The State has a nondelegable duty to maintain its roadways in a reasonably safe
condition under the prevailing circumstances for the traveling public
(Friedman v State of New York, 67 NY2d 271, 283; Weiss v Fote, 7
NY2d 579). This obligation extends to provide and maintain adequate and proper
barriers along its highways (Gomez, 73 NY2d at 724, 725; Lattanzi v
State of New York, 74 AD2d 378, affd 53 NY2d 1045). The
State, however, is not an insurer, and an accident, even one horrifically
tragic, does not permit the Court to infer the State’s negligence (see
Tomassi v Town of Union, 46 NY2d 91, 97; Boulos v State of New York,
82 AD2d 930, affd 56 NY2d 714). It is Claimants’ burden to
prove the State was negligent, with evidence showing that a dangerous condition
existed which the State either created or of which it had actual or constructive
notice, yet failed to timely take reasonable measures to correct (Brooks v
New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892;
Rinaldi v State of New York, 49 AD2d 361, 363).
Where the alleged negligence arises from a highway planning decision, the State
is accorded a qualified immunity, unless the evidence shows the design plan
evolved without adequate study or lacked a reasonable basis (Friedman, 67
NY2d at 271; Weiss, 7 NY2d at 589). Yet, even a well-studied, reasonable
highway plan will not shield the State from liability where evidence shows a
dangerous condition existed after the plan was implemented (Friedman, 67
NY2d at 284). The State’s duty is a continuing one, to review and
evaluate its highway designs and undertake to study and correct dangerous
traffic conditions that materialize after a plan is executed (id.)
Claimants, in this case, do not attack the adequacy of the State’s 1993
Highway Maintenance Guidelines for Snow and Ice
Rather, the heart of
Claimants’ case is that on the morning of January 25, 2004, black ice was
present on the Park Street Bridge of Route 81 north which caused Mr. Gardner to
lose control of his vehicle; this precipitating dangerous condition caused Mr.
Gardner’s vehicle to come in to contact with the snowbank in front of the
right fascia barrier which exceeded the height of the barrier. The hard-packed
snow prevented the vehicle from contacting the barrier, instead, allowing the
vehicle to ramp up and over the barrier. Claimants argue that the State was
placed on notice of these dangerous conditions when roughly 36 hours earlier,
Jason Rhoades’ vehicle slid across the same icy snow-covered bridge, rode
up the snow, plowed in front of the right fascia barrier and went over it,
falling to his death around 100 feet north from where Mr. Gardner encountered
the same fate. Claimants argue that following Mr. Rhoades’ accident, the
State failed to take any action to alleviate or warn of the danger.
The State defends by arguing that preceding Mr. Gardner’s accident, the
State was involved in ongoing snow and ice removal operations leaving
insufficient manpower or equipment to address the accumulation of snow in front
of the barriers on the Route 81 Park Street Bridge. The State further contends
that there is no duty to warn of the normal dangers associated with winter
driving in this area and there was no appropriate or safe means to place warning
At the time of Mr. Gardner’s accident, the Park Street Bridge on Route 81
north was icy and slippery. The passing lane in which Mr. Gardner was
traveling, at the time he initially lost control of his vehicle, was
snow-covered. The other lanes, although appearing mostly clear, looked wet in
the evidentiary photographs. With the excessively cold temperatures, around
-9°F, on the morning of January 25, at the time of the accident, and the
well-established fact that deicing compounds such as salt are virtually
ineffective at such temperatures, any melting would have readily refrozen into a
thin layer of ice, as Dr. Joseph Sobel, a meteorologist called by Claimant,
described. The conditions on the Park Street Bridge were not unique to this
location that morning. There was no evidence of complaints or notice of
specific icing conditions at this location or prior accidents that morning. The
conditions that morning were different than the completely snow-covered roadway
Mr. Rhoades encountered the previous Friday evening, and there were other
factors affecting the Rhoades’ vehicle that did not exist for Mr. Gardner.
There were no other accidents at this location based upon the information in the
location file for this area of the road. The Court does not find that the State
had notice of a recurring dangerous icy condition in the travel lanes at this
location (see Lyons v Cold Brook Cr. Realty Corp., 268 AD2d 659; cf.
Weisenthal v Pickman, 153 AD2d 849).
The DOT was attentive to the road conditions that weekend, giving Route 81 the
highest priority for snow and ice removal. A sand and salt mixture was applied,
which all agreed was the most appropriate treatment for the prevailing
conditions. There was round-the-clock coverage of the roadway with repeat runs
occurring every 2½ - 3 hours. Both the “A” and “B”
shifts were working overtime to provide 24-hour snow and ice removal.
From the evidence, the Court finds DOT’s snow and ice removal efforts
were in compliance with the Highway Maintenance Guidelines and reasonable given
the conditions on the morning of the accident.
Claimants argue that given the slippery conditions, and the risk of vaulting
that existed on the Park Street Bridge at the time of Mr. Rhoades’
accident, the State should have warned motorists of the icy conditions before
Mr. Gardner’s accident. Mr. Fries suggested several warning devices that
could or should have been employed following Mr. Rhoades’ accident,
specifically a variable message sign, an “icy pavement zone” sign
with flashing beacons, and a reduction of speed sign. The State does have a
duty to warn of hazards existing on its highways and signs should be erected
whenever necessary and to be reasonably adequate for the intended purposes
(Williams v City of New York, 214 NY 259).
Encountering icy conditions on a bridge in upstate New York, in January, when
the temperature is below zero, is a possibility even with diligent snow and ice
control measures by DOT. Warning signs are necessary where the State has notice
of an inherently different condition than those types of winter weather
conditions ordinarily found in a given location (see Williams, 214 NY at
263-264; Freund v State of New York, 137 AD2d 908, 909; Arnold v State
of New York, Ct Cl, Lebous, J., May 5, 2004, Cl. No. 105458 [UID
#2004-019-002]; Farrell v State of New York, 46 AD2d 697, 698; Citta v
State of New York, 35 AD2d 288, 293, JJ. DelVecchio and Witmer, dissenting).
The MUTCD provides that the icy pavement warning sign should only be used to
warn of unusual or unexpected pavement icing not associated with normal
wintertime storm related snow or ice conditions (see MUTCD § 234.9).
Here, there was no evidence of a variant icing condition at this location or of
a recurrent icing problem which would have warranted an “icy pavement
zone” sign or variable messaging warning of an icy condition. As for the
reduction in speed sign, the evidence did not support a finding that a reduced
speed sign was feasible or necessary under the MUTCD, given the 36-plus hour
time frame between these accidents. The foundation, authority, and means
supporting the use of these signs and a reduced speed limit was not sufficiently
(B) Accumulated Snow in Front of the Fascia Barrier
Based upon the 1993 Snow and Ice Control Guidelines, snow storage in front of
the bridge barriers was only required to be removed when it impacted the safety
of the travel lanes either through melting runoff or encroaching snow in the
event of another snowstorm. Neither of these two conditions existed and the
plowing of the snow in front of these bridge barriers was in compliance with the
In this case, however, the accumulated snow was 42 inches high - 6 inches
higher than the barrier itself. The snow extended out 5 feet from the base of
the barrier onto the 10-foot- wide shoulder, forming a 35-degree angle from the
shoulder over the barrier. It was hard and compacted as described by the
independent testimony. This snow formed a ramp, preventing Mr. Gardner’s
vehicle from making contact with the barrier. Although Mr. Amsler testified
that the design parameters for the safety features of the barrier involve impact
angles of 15 degrees or less, and there is an inverse relationship between the
impact angles and the effectiveness of the barrier, his testimony circumvented
the issue here that the depth, height, and consistency of the snowbank prevented
any contact with the barrier. The Court finds, under this circumstance, the
accumulated snow was a dangerous condition. The extent of accumulated snow far
exceeded the snow stored in front of the barriers in Tuchrello v State of New
York, 190 Misc 2d 664. Nor was there evidence here, as in Vislosky,
that the State had made a determination not to remove the snow. Based upon the
evidence, in light of the severity of winter conditions that month, DOT by rote
and in compliance with the Guidelines, continued to plow the snow in front of
the concrete barriers.
Compliance with the Guidelines at the time of the Tuchrello
cases afforded the State the implied immunity described in
Weiss v Fote
(7 NY2d, supra
as both cases arose within
roughly a year of the adoption of the Guidelines. Mr. Rhoades’ and Mr.
Gardner’s accidents occurred roughly 11 years after implementation of the
Guidelines. Based upon Mr. Amsler’s testimony, 15 additional accidents
occurred since his prior inquiry regarding vaulting accidents while developing
the Guidelines. These 15 accidents are in addition to the existing
acknowledgment of the small risk for vaulting at the time the Guidelines were
being drafted. A small risk that materialized in 2 vaulting accidents between
1984 and 1993 had increased to 15 accidents in the ensuing 14
The number of similar types of vaulting accidents, coupled with Mr
Rhoades’ accident on the Friday preceding William Gardner’s
accident, approximately 100 feet from where Mr. Gardner’s vehicle vaulted
the barrier, should have alerted DOT to the risk for vaulting on this
The question becomes whether the State had sufficient time to remove the
accumulated snow after Mr. Rhoades’ accident and before Mr.
Gardner’s accident. After reviewing all of the testimony and evidence,
the Court is constrained to answer that question in the negative.
The climatological data for the month3
reflects measurable snowfall for 19 of the days before January 25. Over 33
inches of snow fell during the 9 days preceding Mr. Gardner’s accident.
The snow, however, doesn’t tell the whole story as it was windy and every
day was below average in temperature. The weather wasn’t an
“ongoing storm” but rather an unusual weather pattern which demanded
ongoing efforts at snow and ice removal on the roadways. Following Mr.
Rhoades’ accident, the snow, blowing snow, and extremely cold temperatures
required 24-hour diligence. The State argued extensively that it lacked the
resources and manpower to remove the snowbank in front of the barrier before Mr.
Gardner’s accident. There was no evidence of idle plows or manpower.
Rather, the evidence reflected round-the-clock efforts to address the exigent
weather and resultant roadway conditions. In fact, on January 24, all but 5 of
the 48 employees worked either the “A” or “B” shift, and
most worked 12-hour shifts.3
“A” shift on January 25, 17 out of a total of 25 employees worked at
least 12 hours.3
Undisputedly, removal of
the accumulated snow required significant dedication of resources to one section
of roadway. Despite Claimants’ suggestions to the contrary, the State
does not have the authority to order a roadway closed, and shoulder snow removal
requires a fleet of plows and assistance from the police. Such an extensive
effort can only be accomplished when continual plowing and ice treatment are not
necessary. Here, wind, some light snow, and the well-below freezing
temperatures provided no adequate break to permit DOT an opportunity to remove
the accumulated snow. The law requires an assessment of Defendant’s
conduct in light of what is reasonable under the circumstances. Based upon the
weather conditions, DOT’s 24-hour snow and ice removal efforts, and the
available resources and manpower required to accomplish the removal of the
accumulated snow, the Court finds that the State could not have reasonably
removed the accumulated snow before Mr. Gardner’s accident.
The Court has struggled with its decision in this case, but is obliged to set
aside emotion despite the tragic nature of this accident and apply the law. To
that end, the Court finds the claim must be DISMISSED.
All motions heretofore not previously decided are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
October 2, 2009
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
.The claim asserts the State failed to design,
construct or provide proper drainage facilities or drainage on the Park Street
Bridge; however, no evidence was presented on this issue.
Trial Transcript April 26, 2007, pages 4-5, line 4.
Trial Transcript, April 24, 2007, pages 73-76 through line 7.
Exhibit 197, page 2.
Trial Transcript of April 24, 2007, page 29, lines 3-7.
Exhibit 197, page 2; Trial Transcript April 24, 2007, page 34.
Exhibits 197 and 195.
Exhibits 91 and KKK.
Exhibit KKK and 91, and testimony of Mr. Falconer, Amended Trial Transcript,
April 26, 2007, page 62, lines 10-22.
See Exhibits 91, KKK, PPP, Amended Trial Transcript April 26, 2007, page 71,
See Exhibit KKKK and HHHH. (The name of WIXT has since been changed to
See Exhibit DDDD.
Gore areas are the areas between the main route and a ramp (Trial Transcript,
June 25, 2007, page 136, lines 11-20).
Amended Trial Transcript, April 26, 2007, page 170, lines 1-15 and page 186
Trial Transcript, April 24, 2007, page 172, lines 1-17.
The 85th percentile speed is the speed exceeded by 15% of the traffic. It
requires a radar speed check of at least 100 vehicles in order to calculate that
speed (Trial Transcript, June 26, 2007, page 37, lines
.Effective September 13, 2008, this is now
known as the National Manual on Uniform Traffic Control Devices for Streets and
Highways (17B NYCRR Chapter V). Cites however are to the MUTCD as it existed at
the time of this accident.
.Vislosky v State of New York,
Cl, Patti, J., Cl. No. 93075, filed May 6, 2003, [UID #2003-013-503].
Trial Transcript of June 26, 2007, page 49, lines 14-25 through page 50, lines
Trial Transcript of June 26, 2007, page 54, lines 18-25 through page 55, lines
Trial Transcript June 25, 2007, page 44, lines 7-15.
Exhibit A page 1, § 5.0110.
Exhibit A, page 14, § 5.4000.
3.The Court notes that these are guidelines,
not mandates and consideration of the surrounding circumstances is necessary
(Skehan v State of New York,
Ct Cl, NeMoyer, J., Cl. No. 72827, filed
August 15, 1996).
.Mr. Amsler’s testimony reflected a
total of 17 vaulting accidents between 1984 and 2007, including three years
after Mr. Gardner’s accident. The specifics of these accidents were not