Opinion
# 2012-018-324 Claim No. 114454
09-11-2012
JUSTIN A. BURCHARD v. STATE OF NEW YORK
Synopsis
The claim is dismissed. There have been no similar accidents at this location attributable the alleged dangerous conditions for 33 years. The Court also finds the proximate cause of Claimant's accident was another individual pulling into Claimant's lane and stopping, and Claimant traveling too fast and failing to heed the visible warning of the upcoming intersection. Case information
UID: 2012-018-324 Claimant(s): JUSTIN A. BURCHARD Claimant short name: BURCHARD Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114454 Motion number(s): Cross-motion number(s): Judge: DIANE L. FITZPATRICK THE RABIN LAW FIRM, LLC Claimant's attorney: By: Benjamin C. Rabin, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Edward F. McArdle, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: September 11, 2012 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant was injured when the motorcycle he was riding collided with a truck turning left from Berger Road onto State Route 38 in Cayuga County on August 25, 2007. The matter was bifurcated and this decision relates solely to liability.
Route 38 is a two-lane road that runs north and south with one lane in each direction. The New York State Department of Transportation (DOT) performed work on a five-mile stretch of Route 38.No other work was performed on this section of roadway other than general maintenance since 1974.The 1974 project ran from the Village of Port Byron north and included widening the travel lanes, repairing or replacing guiderails, establishing clear zones off the roadway, and adding or widening the shoulders, among other things. This project encompassed the Berger Road intersection where the accident occurred.
Exhibit 14.
Exhibit 21.
Just north of the Port Byron Village line, Berger Road intersects Route 38 from the west, forming a "T" intersection. Between 300 and 350 feet north of the Berger Road intersection, there is the crest of a hill on Route 38. The speed limit on Route 38 is 55 mph, but in the Village it is 30 mph. Approximately a tenth of a mile south from Berger Road is where the 55 mph speed limit drops to 30 mph.
On August 25, 2007, Claimant and his cousin, Christopher Crofoot, took a long motorcycle ride together. Claimant only had his motorcycle permit for a few months, and Mr. Crofoot was his supervising driver.They were heading home, traveling southbound on Route 38 toward the Village of Port Byron. Mr Crofoot was riding ahead of Claimant and out of sight at the time of the accident. Claimant recalled the day as being warm and sunny with no visibility concerns. He was driving between 50 and 55 mph, staying within the speed limit. Just before reaching Port Byron, Claimant crested the hill north of Berger Road and saw something blocking the southbound travel lane. He could not avoid a collision. His next recollection was waking up in the hospital after being in a coma. He has no memory of what occurred before the impact. He also does not recall seeing the intersection warning sign as he approached the hill. Some time later, he learned a truck had pulled out from Berger Road in front of him resulting in an accident. Jaysen Wilcox was the driver of the 2000 Chevrolet Silverado pickup truck that pulled out from Berger Road in front of Claimant. His deposition testimonywas received in evidence. He recalled that he had been returning from grocery shopping when a friend of his, David Cuipylo, had a minor accident with his motorcycle. He offered to transport Mr. Cuipylo's motorcycle and give him a ride home. Since Mr. Wilcox's house on Berger Road was closer than Mr. Cuipylo's home, they stopped at Mr. Wilcox's house first to drop off the groceries.
Exhibit 32.
Mr. Wilcox testified that Berger Road, at the intersection with Route 38, is steep which makes it difficult to exit. He also said the road had poor visibility for vehicles heading south on Route 38 until they crest the hill which he estimated is less than 50 feet away. After dropping off the groceries, he drove back toward Route 38. Mr. Wilcox said he saw a motorcycle pass the intersection. He stopped at the stop sign, looked both ways, and seeing no traffic began to pull out to turn left at about 8 mph. His front wheels were near the center double yellow line and his rear wheels were near the western white edge line when he saw Claimant crest the hill. The pickup was blocking the entire southbound lane in which Claimant was traveling. Both Mr. Wilcox and Mr. Cuipylo said Claimant appeared to be braking as he came down the hill toward them, evidenced by the motorcycle's front tire moving to the driver's left. Mr. Wilcox's reaction was to stop and continue blocking the entire lane in which Claimant was traveling. As Claimant came closer, he fell off his motorcycle and hit the running board of the pickup truck. The motorcycle hit the driver's side corner of the front bumper and landed in the ditch on the east side of Route 38. The whole event took less than one second, according to Mr. Wilcox. Mr. Wilcox was issued a ticket for the accident but he testified it was dismissed.
James Napoleon, a licensed Transportation Engineer, testified on behalf of Claimant. He reviewed numerous documents and manuals including the New York State Highway Design Manual (Design Manual), the Manual for Uniform Traffic Control Devices (MUTCD), and American Association of State Highway Officials (AASHTO) manuals for previous years in preparation for his testimony. He also submitted a written report.
Exhibit 24.
In his report, Mr. Napoleon described Route 38 as a two-lane, two-way paved highway. The pavement is 29 feet wide, with 11 feet wide travel lanes and a 4 feet wide shoulder northbound and a 3 feet wide shoulder southbound. There are two signs facing southbound drivers north of Berger Road, a "School Bus Stop Ahead" sign located 967 feet north of Berger Road, and a "T Intersection Ahead" sign 631 feet north of the subject Berger Road intersection. There are also two smaller route marker signs before Berger Road. Between 300 and 350 feet north of Berger Road, there is the crest of the hill.
The 1974 work performed on this section of Route 38 was a major project which changed the highway. The record plansshow that the travel lanes were widened from 8 feet each with no shoulders, to lanes of 11 feet with 3-to-4 feet shoulders. Bridge work and guiderail work was also done. In addition, clear zones were established. These changes, Mr. Napoleon felt, would make traveling 55 mph or higher easier on this stretch of road and should have been considered by the highway designers. Sign placement and speed limits in the context of the roadway changes should have also been considered. The State also failed to consider the excessive grade on Berger Road up to the stop sign, and the limited sight distance for entering Route 38 or for drivers on Route 38 to stop in relation to speed limit reductions and warning sign placement.
Exhibit 14.
Mr. Napoleon measured the uphill grade on Berger Rd at 14 percent and noted that the 1973 Design Manualdirects that grades at intersections should not exceed 6 percent. The 1974 plans do not address this inconsistency with the manual, and Mr. Napoleon opined that DOT either overlooked or ignored this problem.
Exhibit 40.
The Design Manual references the AASHTO policy on Geometric Design for determining sight distances.The AASHTO policyfor the design of rural highways, Mr. Napoleon called the "Blue Book,"and he used the original "Blue Book" from 1965and measurements at this intersection for his report. Mr. Napoleon measured the sight distance for a driver on Route 38 to stop before Berger Road, and the sight distance for a driver stopped on Berger Road trying to turn left. The "Blue Book" says drivers should be given 2.25 seconds for perception and reaction for stopping distance. Here, because of the downward grade as a southbound driver approaches Berger Road, the time required to stop would increase. With the steep uphill grade to the stop sign on Berger Road, Mr. Napoleon opined that especially for drivers turning left (north), greater acceleration would be necessary which would also increase the stopping sight distance.
Exhibit 40, pp. 5-31.
Exhibit 20.
Transcript, pp. 52-53.
Exhibit 20.
Using the AASHTO formula and the measurements from the scene, Mr. Napoleon calculated the sight stopping distance to be 687 feet. Mr. Napoleon opined, based upon his visit to the site, that you cannot see Berger Road far enough from the intersection in time to stop before it. Between a stopped vehicle on Berger Road and a southbound vehicle, the sight distance he calculated to be 383 feet. This is far less than the required sight stopping distance.
In addition to the sight distance problem, Mr. Napoleon opined that the placement of the "Intersection Ahead" warning sign was in violation of the MUTCD. Two signs were involved here, the "T Intersection Ahead" sign and the "School Bus Stop Ahead" sign, and according to Mr. Napoleon, the MUTCD places both in the same category. The posting distance for each sign in a 55 mph speed zone, per the MUTCD, is 830 feet before the Berger Road intersection. However, the signs must be a minimum of 200 feet apart so only one sign could be placed at the 830 feet spot. It was Mr. Napoleon's opinion that the intersection ahead sign should have been placed 830 feet before Berger Road, because given its height and lights, a school bus can be seen from a greater distance than a normal vehicle. The school bus stop sign was actually placed 967 feet north of Berger Road and the intersection ahead sign was 336 feet further south or 631 feet from the intersection. Since the safe sight stopping distance calculated by Mr. Napoleon was 687 feet, even from the sign there was no time to stop before the intersection. The photos in evidenceshow that there are no obstructions on the west side of Route 38 which would prevent placing these signs in accordance with the MUTCD.
Exhibits 2-13 and Exhibit B.
Mr. Napoleon also opined that the speed limit of 55 mph is problematic, especially in conjunction with the other issues previously discussed. Mr. Napoleon opined that the State should have done the 85 percentile speed calculations to determine the appropriate speed limit. The 85 percentile speed is the speed at which 85 percent of drivers are driving at or below. There was no evidence that a speed study was done for this portion of Route 38. The State did not produce any evidence of an 85 percentile study from 1974, although, a demand was made. Defendant's expert, a former DOT employee testified that after 10 years, files are purged at DOT. Since a tenth of a mile beyond Berger Road, as you proceed south, the speed limits drops to 30 mph, Mr. Napoleon opined that if the State had lowered the speed limit more gradually, such as reducing it from 55 to 45 mph as one approached Berger Road, drivers would slow down in that area.
Mr. Napoleon indicated another option would be to place a reduced speed ahead sign. This, too, would allow drivers more time to slow their vehicles in anticipation of a lower speed limit. There was no notification for southbound drivers approaching the Village that the speed limit would be reduced before the 30 mph sign.
The State questioned Mr. Napoleon about his description of the 1974 project. The road historyreferences the contract for the work that was performed and then reads, "GM on balance." GM, it was agreed stands for general maintenance. Mr. Napoleon disagreed with that note, he felt the general maintenance was in addition to the 1974 project.
Exhibit 21.
As to the signage, Mr. Napoleon agreed the problem was not that signs were missing but the placement of the two warning signs. He did not feel the location of the signs was the result of engineering judgment, as there was no evidence of any study being done determining sight distances in the 1974 project. Mr. Napoleon indicated the MUTCD required a study with results from which engineering judgment could be utilized. Since no study was evident, and the intersection sign was placed closer to the actual intersection than usual, Mr. Napoleon believes this was unsafe. Engineering judgment is used when there are safe choices from which to choose.
The State brought out that there were no other similar accidents for this intersection. Mr. Napoleon also agreed that Mr. Wilcox stopping his vehicle or hesitating in the southbound lane of Route 38 may have contributed to this accident.
William Logan, a licensed Professional Engineer, was called by the Defendant. He is retired from DOT having worked from 1970 to 2005. He now works on a part-time basis with a private engineering firm. In preparation for his testimony, he reviewed depositions, photos, DOT records, and went to the accident scene twice.
It was Mr. Logan's opinion that the State was not required to address the sight distance restrictions caused by the vertical curve (hill) on Route 38. He reasoned that because the 1974 contract did not change either the vertical or horizontal curvature on the highway, DOT is not required to bring the entire highway up to the standards in place at that time. Also, there may be socioeconomic or environmental reasons why some DOT standards cannot be met, although none of DOT's plans or records reflected such considerations.
Mr. Logan opined that although the road widening is not considered general maintenance, the rest of the work done, such as clearing of the slopes, guiderail work, and paving are general maintenance. Therefore, the "GM, on balance" indicates most of the 1974 contract was general maintenance.
In addressing the sight distance restrictions, Mr. Logan said they were properly addressed by the State by placing the intersection ahead warning sign which was located in accordance with the MUTCD. Such a warning sign is placed when the intersection sight distance, as here, does not meet the value in the MUTCD. The State meets its obligations regarding critically limited sight distances by placing a warning sign according to Mr. Logan. He also noted that the warning sign posted on Route 38 was larger than normal for emphasis. That sign could be seen for 1,050 feet and the sign was placed 636 feet northof the intersection. A motorist had notice of the upcoming intersection for 1,686 feet.
There was a five feet difference between Mr. Napoleon's and Mr. Logan's measurements of the location of the intersection warning sign.
--------
Another area of disagreement between the experts was the speed limit modification. Mr. Logan agreed that speed limits are set using roadside characteristics and the 85 percentile speed. He testified he measured the 85 percentile speeds using a stopwatch when he was at the scene in August and September 2011, and he concluded that a 55 mph speed limit was appropriate. He also reviewed the 10-year accident history as noted by Mr. Napoleon, there were no other relevant accidents at the Berger Road intersection. This supports Mr. Logan's assessment that a 55 mph was the correct speed limit.
Mr. Logan opined that Claimant's speed between 50 and 55 mph as he crested the hill after passing a clearly visible warning sign over 1,000 feet before could have contributed to the accident as well as his inattention to the posted warning sign. He also felt Mr. Wilcox's failure to pull across Route 38 to the northbound lane was also a contributing factor according to Mr. Logan.
DISCUSSION
The State owes a nondelegable duty to persons who use its roadways to design, construct, and maintain these roadways in a reasonably safe condition under the circumstances (Friedman v State of New York, 67 NY2d 271 [1986]). The State is not an insurer, however, and negligence must be proven (Tomassi v Town of Union, 46 NY2d 91 [1978]). Where issues of the design and construction of the highway are raised, Defendant is afforded a qualified immunity from liability unless it is shown that its traffic design was based upon a plainly inadequate study or there was no reasonable basis for the plan (Weiss v Fote, 7 NY2d 579 [1960]; Friedman, 67 NY2d at 284).
Claimant asserts that the State had the duty to comply with the design standards in place at the time it performed the 1974 roadway project, because the project involved reconstruction as opposed to mere maintenance (see Van De Bogart v State of New York, 133 AD2d 974 [3d Dept 1987]). Claimant argues that the State failed to comply with the Manual, the 1974 MUTCD, and the 1965 AASHTO standards in effect by failing to reduce the grade on Berger Road at the stop sign, failing to reduce the speed limit, or failing to properly warn of the inadequate sight distance due to improper placement of the "Intersection Ahead" sign.
Although the Court agrees with Claimant that the 1974 roadway project involved more than mere maintenance for the roadway, the widening of this roadway did not demand complete reconstruction of all components of the highway (see Kerns v State of New York, 226 AD2d 1046 [4th Dept 1996] appeal dismissed 91 NY2d 829 [1997]; Van De Bogart, 133 AD2d at 976). The State's action must be measured by reasonableness and the absence of any similar accident history supports a finding that placement of warning signs and maintaining the grade of Berger Road were reasonably safe for attentive drivers (Kerns, 226 AD2d at 1047). However, even if the State was obligated to address sight distances when it was widening the roadway, Claimant has failed to establish that the State's design lacked a reasonable basis.
Mr. Logan explained that if sight distances are not in conformance with the standards and reconfiguration to address the noncompliance is not done or cannot be done, the State has a duty to warn of the conditions, in this case, by an intersection warning sign. Here, the intersection warning sign was not as far back from the intersection as required by the MUTCD because of the placement of the sign warning of a school bus stop. Mr. Napoleon opined that both signs, although admittedly required to be 200 feet apart, could have been placed in reverse order with the intersection ahead sign placed at the proper distance. This evidence is insufficient because more than a difference in the opinion of two experts must be presented to establish that the State's highway design and planning lacked a reasonable basis (Weiss, 7 NY2d at 589). The experts also disagreed on whether a reduction in the speed limit before this intersection was necessary or whether placement of a sign warning of the upcoming reduction in speed to 30 mph in the Village of Port Byron was necessary.
Even if the Court found that the State was not protected by qualified immunity, Claimant still bears the burden of establishing the State's negligence (Brown v State of New York, 79 AD3d 1579 [4th Dept 2010]). This requires Claimant to establish that the State breached its duty by failing to correct a dangerous condition of which it had actual or constructive notice, and this condition proximately caused Claimant's injuries or damage (Slate v Town of Antwerp, 278 AD2d 857 [4th Dept 2000]; Rinaldi v State of New York, 49 AD2d 361 [3d Dept 1975]). Claimant has not established the State's negligence.
The conditions Claimant asserts are dangerous inadequate sight distance and stopping distance, inappropriate speed limit, and excessive grade at the intersection on Berger Road have been in existence since 1974. For 33 years there have been no other similar accidents at this location attributable to these alleged dangerous conditions. The absence of similar accidents is some proof that the condition in question is not dangerous (Light v State of New York, 250 AD2d 988 [3d Dept 1998] lv denied 92 NY2d 807 [1998]; see also Gillooly v County of Onondaga, 168 AD2d 921 [4th Dept 1990]).
Here, the Court also finds the proximate cause of Claimant's unfortunate accident is not any alleged breach of the State's duty, but the actions of Mr. Wilcox by pulling out into Claimant's lane of travel and stopping, effectively blocking Claimant's ability to avoid the accident. Claimant, a new motorcycle driver, was also proceeding too fast, although within the speed limit, to timely react to an unexpected event such as Mr. Wilcox's stopped vehicle. Claimant also failed to heed the visible warning of the upcoming intersection. The Court finds these factors proximately caused this accident. Although undoubtedly this road could have been made safer, the Court does not find the State breached its duty to Claimant or was a cause of Claimant's injuries (Tomassi, 46 NY2d at 98). The claim is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
September 11, 2012
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims