Opinion
107055.
Decided April 18, 2007.
Levene, Gouldin Thompson, LLP, BY: John L. Perticone, Esq., of counsel, for Claimants.
Hon. Andrew M. Cuomo, Attorney General, BY: Joseph F. Romani, Assistant Attorney General, for Defendant.
Claimant Justin Canfield seeks damages for serious injuries incurred when the vehicle in which he was a passenger left a State highway, struck a guide rail, and overturned. Claimant alleges negligence on behalf of defendant State of New York (defendant) in the construction, design and/or placement of the guide rail. Defendant argues the accident occurred solely as the result of claimant attempting to take control of the vehicle in a possibly alcohol-impaired state (Defendant's Exhibit O, pp 32-34), and further contends that defendant is entitled to qualified immunity arising out of highway planning decisions. Claimant counters that defendant's negligence substantially contributed to his injuries.
The claim of David Canfield is derivative in nature and, unless otherwise indicated or required by context, the term "claimant" shall refer to Justin Canfield.
A bifurcated trial on the liability portion of the claim was held on November 2-3, 2006, in the Binghamton District of the Court of Claims. Thereafter, the parties submitted post-trial memorandums. This decision addresses the issue of liability only.
In the early-morning hours of November 24, 2001, claimant was a front-seat passenger in a vehicle being driven by Jacqueline Begley (Begley) on Interstate Route 88 East (I-88) in the Town of Fenton, Broome County, New York. Claimant had been at Begley's apartment, where they had a disagreement, and she was taking him to his father's house in the Town of Colesville, also in Broome County. Begley had spent the evening with her family, and had consumed three beers earlier in the evening, finishing the last one approximately 1½ hours prior to the accident. The toxicology test of her blood taken after the accident apparently indicated only a very negligible presence of alcohol in her bloodstream (Defendant's Exhibit O, p 62).
Begley was driving her 1989 Chevrolet Beretta eastbound on I-88 at approximately 65 miles per hour immediately prior to the accident. The weather was overcast and dry, and the highway was not lit in the area of the accident. In both her voluntary statement to the police at the scene of the accident and at her deposition, Begley stated that claimant apparently decided he wanted to exit the highway at the upcoming Port Crane Exit (Exit 3), and unexpectedly grabbed the steering wheel out of her hands and jerked it to the right. Begley did not recall applying her brakes. The vehicle left the road, struck the guide rail, and became airborne. According to the State Police Accident Report (the Report) (Claimant's Exhibit 16), the vehicle then rotated in the air 180 degrees, landing on the right-side top of the vehicle. The Report further states that the vehicle traveled on its roof 40 feet along the ground, then dug into the ground, flipped end to end, and continued to roll over until coming to rest on its wheels. At some point during the accident, claimant was ejected from the vehicle.
In the location where the vehicle left the road, I-88 East is approximately 24 feet wide, with an additional 11 feet of shoulder on the right (south) side. The road proceeds in a northeasterly direction, and is both straight and flat at the accident location. Adjacent to the right shoulder is a corrugated guide rail approximately 226 feet in length. Beyond the guide rail, the terrain continues down a grass embankment into a slight ditch before leveling off into a large field. Behind the guide rail is a large sign indicating the upcoming exit from the highway, as well as a steel box designed to contain a traffic-counting device, although testimony indicated that it was empty. The Report states that there were no visual obstructions that would have caused the collision, nor was there any other traffic "indicated" on the road that could have caused the accident.
The only witnesses at trial were the experts offered by the parties. Lawrence Levine, a licensed professional engineer, with experience in the field of accident investigation and reconstruction, testified on behalf of claimant. Lyman Hale, III, a professional engineer employed as Senior Civil Engineer in the Highway Design Manual Section of the New York State Department of Transportation (DOT) testified for defendant. Hale indicated his primary responsibility is for the "roadside design, guide rail, and appurtenances" section of the Manual.
Claimant had no recollection of the accident, and did not testify by stipulation of the parties.
All quotes are taken from the Court's recording of the proceedings, unless indicated otherwise.
I-88 in the area of the accident had been the subject of a reconstruction project by DOT under contract number D256626 (the Project) a few years prior to the accident. Although planning and design had commenced several years earlier, the actual construction work in the area of the accident was undertaken and completed by defendant in 1996. Levine testified that it was his opinion that defendant was negligent during the course of the Project, in that: 1) the installation of any guide rail at this location was negligent as defendant's own standards did not require a guide rail at this location; 2) the guide rail when installed was changed from a "box-beam" system to a "weak-post corrugated w-beam" system with a turned-down terminal, which Levine stated was not safe, and that defendant was aware that this was an unsafe condition; 3) when the corrugated rail was constructed at this site during the Project, Levine opined, defendant's agents did not place the guide rail terminal at the proper height, which caused the vehicle to "ramp" and become airborne; and 4) if defendant's guidelines did require a guide rail, it should have been 26 feet shorter under those very standards. Levine opined that all of these instances of defendant's negligence were contrary to the Project objectives, defendant's own standards, and good engineering practice.
Case Law and Precedent
A brief discussion of relevant case law concerning proximate cause is appropriate at this point, prior to an analysis of potential liability. Defendant's contention in its post-trial memorandum that claimant's actions (yanking the wheel to the side causing the vehicle to leave the road) are the intervening superceding cause of the accident, thus absolving defendant of liability, must be rejected.
Under existing case law, it is not necessary for claimant to establish that the accident was proximately caused by defendant's negligence. Rather, in the case of Gutelle v. City of New York ( 55 NY2d 794), the Court of Appeals held that the fact that the State's negligence "did not cause plaintiff's vehicle to leave the roadway in the first instance is of no moment. As long as it can be demonstrated that the [State's negligence] was a substantial factor in aggravating plaintiff's injuries, a cause of action may be upheld" ( id. at 796). The Court of Appeals has further stated that the State's failure to provide and maintain adequate barriers along its highways may result in liability if that failure is a substantial factor in causing or aggravating a claimant's injuries ( Gomez v New York State Thruway Auth., 73 NY2d 724, 725).
As claimant points out, the distinction between defendant's argument regarding proximate cause and claimant's is that defendant contends that it was not a proximate cause of the accident itself, which the claimant does not appear to contest. Rather, the issue is whether defendant's negligence was a substantial factor in the aggravation of claimant's injuries. In other words, if defendant had not been negligent (i.e.: the guide rail had not been there, or had it been properly designed, constructed and/or located), claimant's contention is that his injuries would not have been as severe, if indeed he had been injured at all. Under the Court of Appeals' holdings in Gutelle v City of New York ( supra) and Gomez v New York State Thruway Auth. ( supra), defendant's argument that its negligence was not the proximate cause of the accident must fail.
Defendant's reliance on the cases of People v Garris ( 159 AD2d 744) and Good v MacDonell ( 149 Misc 2d 315) is misplaced. In Garris ( 159 AD2d 744, supra), an intoxicated passenger grabbed the steering wheel and jerked it downwards, causing the vehicle to leave the road, striking and killing a pedestrian. The Court held that despite his failure to notice the pedestrian, the passenger's conduct constituted criminal negligence. Whether the claimant in this case could have been convicted of criminal charges is not relevant to the issue of defendant's liability. In Good ( 149 Misc 2d 315, supra), the plaintiff driver sought to recover against the vehicle's owner for injuries the driver sustained while operating the vehicle, when an intoxicated passenger yanked the steering wheel and directed the car into pedestrians. The Court held that the action of the intoxicated passenger was an unforeseeable superceding event and absolved the owner of liability. In this case, the vehicle leaving the roadway and colliding with the guide rail — for whatever reason — was not unforeseeable, and thus Good ( id.) is not applicable to the issue at hand.
The State is under a duty to design, construct and maintain its roadways, as well as roadside barriers such as guide rail ( see McDonald v State of New York, 307 AD2d 687; Lattanzi v State of New York, 74 AD2d 378, affd on op below 53 NY2d 1045; see generally Bottalico v State of New York, 59 NY2d 302). Accordingly, the State owes a duty to travelers on the highways to maintain those barriers in a safe condition ( McDonald v State of New York, supra). While claimant's negligent conduct was a cause in fact of the collision with the guide rail and is relevant to determining his culpable conduct and apportioning liability, it is of "no moment" in determining defendant's negligence as a substantial factor in the aggravation of claimant's injuries ( see Gutelle v City of New York, supra; Clark v State of New York, 124 AD2d 879, 880-881).
Installation of a Guide Rail System at This Location
Again, the State has a nondelegable duty to adequately design, construct and maintain its highways in a reasonably safe condition ( see Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). However, the State has qualified immunity from liability with respect to discretionary decisions made in the course of planning and designing a highway, which means that liability cannot be imposed unless those decisions were based on a study that was plainly inadequate and/or the plan or design itself lacked a reasonable basis ( Weiss v Fote, supra at 589). This prevents the finder of fact from "second-guessing the planning decisions of governmental bodies regarding such operations as traffic control and regulation" ( Deringer v Rossi, 260 AD2d 305, 306). Therefore, as a general rule, where experts have differing opinions about whether a planning decision was proper, that difference of opinion is sufficient to establish that the decision was reasonable ( Schwartz v New York State Thruway Auth., 95 AD2d 928, 929, affd 61 NY2d 955).
Claimant's initial contention is that no guide rail of any type should have been installed in the vicinity of the accident, as guide rails are in themselves hazardous, and defendant's standards do not warrant installation of a guide rail at that location. Claimant points out that one of the stated objectives of the Project was to "improve the safety of the roadway by eliminating roadside hazards" (Claimant's Exhibit 89, p 6). Both parties' experts testified that a guide rail is in itself a roadside hazard, but that its purpose is to protect motorists from other, more dangerous roadside hazards which cannot otherwise be eliminated. The New York State Highway Design Manual states: "Because guide rails are themselves a roadside hazard, the designer should review all proposed installations with the intention of eliminating, if feasible, the factors that warrant the installation of any rail system" (Claimant's Exhibit 90, p 10-4). The Project Proposal (Claimant's Exhibit 89), in referencing existing problems with the area of the highway in which the accident occurred, specifically states that the "existing guiderail [sic] is non-standard" and further states: "[t]he existing guiderail [sic] will be upgraded to conform to present day standards (and/or where possible to eliminate guiderail [sic] by slope flattening)."
At trial, claimant attempted to show inconsistencies in defendant's plans for the Project, with the intimation that defendant's study of the conditions, which led to the decision to install the guide rail, was either inadequate or nonexistent, and further had no reasonable basis.In support of this contention, claimant submitted into evidence numerous design plan sheets prepared by DOT and showing different aspects of the Project. Claimant made much of the fact that design plan sheet P-6 (Claimant's Exhibit 95) called only for the removal of the existing box-beam guide rail in the vicinity of the accident location, and does not indicate installation of a new guide rail, whereas another sheet — GDP-6 (Claimant's Exhibit 101) — indicated that a new box-beam guide rail was to be installed.
The Court did not find that to be an inconsistency, however. A note on design plan sheet P-6 states: "These drawings [P-1 through P-13] represent existing conditions including the highway boundary. Guide rail removal locations and proposed row fencing are indicated on these drawings." A note on the guide rail table sheet, GRT-1 (Claimant's Exhibit 96), states: "1. Existing guiderail [sic] locations are shown on drawing Nos. P-1 through P-13. 2. New guiderail [sic] locations are shown on drawing Nos. PC-1 through PC-13." Evidently, sheet P-6 was not intended to indicate installation of a new guide rail, as that would have been shown on sheet PC-6, which was not submitted into evidence. These exhibits offer no support for a theory that defendant's plan regarding the installation of a guide rail system at that location was inadequate.
The fact that sheet P-6 is entitled "as-built revisions," and indicates that no as-built revisions were made, does not change the Court's conclusion. The sheet clearly designates that the guide rail designated on the sheet was to be removed, and the testimony indicates that it was removed.
The Court will address the issue of planning for the type and length of the installed guide rail system later in this decision.
Claimant further attempted to show that defendant's decision to install the guide rail violated its own standards, as there was nothing beyond the guide rail which would warrant installation of a rail system. At trial, defendant's expert, Hale, testified that three different roadside hazards existed in this particular location, any one of which could have justified the installation of the guide rail: the presence of the exit sign, the steepness of the slope, and the existence of the traffic-counter box. Claimant attempted to show that none of these hazards would justify installation of the guide rail under defendant's standards. Specifically, claimant's expert testified that his measurements of the slope indicate that it was not steep enough to require a guide rail, that the sign was designed to be slip-impact, thus also not requiring the rail, and that the traffic-counter box was not part of the original design and thus had no bearing on the determination.
Although the sign was designated on the plans as slip-impact, no hinge assembly was installed during construction, as would have been required. While this may indicate negligence on the part of defendant's agents who constructed the sign, the vehicle did not collide with the sign, and that apparent negligence neither causally contributed to the accident nor was it a factor in aggravating claimant's injuries.
However, Hale testified that this sign was particularly large and heavy, and moreover its location on a slope would call into question the efficacy of the slip-impact base in preventing injuries in case of an impact. In fact, defendant's standards specifically state: "Heavy signs within clear area that cannot be changed will require guide rail protection and/or impact attenuators" (Claimant's Exhibit 90, p 10-8). Defendant's expert's credible opinion that a guide rail was justified at this location is sufficient to establish that the determination to place a guide rail in this vicinity was reasonable and was based on a study of the conditions ( see Schwartz v New York State Thruway Auth., supra). Analyzing this determination in hindsight is the type of substitution of judgment prohibited by the Weiss v Fote ( supra) standard.
Moreover, among the documents received into evidence is a comprehensive document containing the Expanded Project Proposal, which includes a compilation of accident data, pavement conditions, safety analyses, nonstandard features, signage, comments from the Federal Highway Administration (FHWA) and DOT's proposed resolutions, and more. The Proposal further demonstrates that the study done for the Project was adequate ( see Martin v State of New York, 305 AD2d 784, lv denied 100 NY2d 512), thus providing qualified immunity for defendant's decision to install the guide rail.
Box-beam Rail Versus Corrugated Rail, With Turned-Down Terminal
Claimant's next contention relates to the determination in the field to change the box-beam rail designated in the design to a w-beam rail (corrugated) system. The plans indicate that initially 202 feet of box-beam rail was to be installed at this location. However, on sheet GRT-1, which shows final quantities and locations of guide rail, that line designating the installation of a box-beam rail at that location is crossed out.
Interestingly, there is no entry in the As-Built Guide Rail Table that indicates that corrugated guide rail was installed at this location.
The engineer's daily project diary contains the following entry pertaining to this particular section of guide rail: "Construction Sup[ervisor] Sam Juriga was out to discuss guiderail [sic] locations along eastbound. He suggested we talk to traffic safety about eliminating box beam rail [at this location] since exit guide sign is on slip impacts and slope is 1:2 — 1:3. Questionable 1:2 slope can be flatten [sic] w[ith] excess material" (Claimant's Exhibit 109). However, the project diary from two days later (Claimant's Exhibit 110) contains the following entry: "Tom Smith, traffic and safety, called concerning [the rail at this location]. Region wants rail to remain as per plan as well as extended 200 ft. east. Questioned about type of rail (boxbeam or corrugated) to be placed. Tom felt it was up to [the Engineer-in-Charge] to determine. I will discuss with [Engineer-in-Charge] Flynn tomorrow." To reiterate, 226 feet of corrugated guide rail was eventually installed at this location.
This is another indication that the installation of the guide rail system was intentional and the result of study.
Claimant's argument is that the determination in the field to change from a box-beam system to a corrugated system was negligent, particularly given the unsafe aspects of the turned-down terminal associated with corrugated systems.
The weak-post corrugated-beam guide rail system used in this instance was anchored at each end with a concrete block buried in the ground. The section of the rail system from the block to the third post is designated as the "terminal" of the system. Unlike the guide rail, which is supposed to function to redirect vehicles back toward the road, the terminal's sole purpose is to anchor the system, and is crucial to the proper function of the guide rail, according to Hale.In the last 25 feet of the terminal, the rail drops from a height of 24 inches to ground level, and is rotated over this distance from a position perpendicular to the ground to parallel to the ground, where it attaches to the concrete block. This is known as a "turned down end section" (Defendant's Exhibits B, C, D and F). According to an FHWA memorandum issued in 1990 (Claimant's Exhibit 119), a turned-down corrugated end section can cause a vehicle to vault and/or roll over, particularly on high-speed roadways. Claimant contends that defendant was negligent in using a corrugated guide rail with a turned-down end section at this location, given its knowledge that this type of guide rail terminal could be hazardous.
As FHWA noted, there is a wide variance in the design details of this turned down w-beam terminal, including the degree of flare or no flare, whether the end section is rotated or not, the use of weak or strong posts, and the length of the turned-down beam (Claimant's Exhibit 119).
A discussion of the history and development of the federal regulations concerning turned-down terminals is necessary to an understanding of the status of these regulations as applicable to New York Interstate Highways at the time of the accident. In 1990, FHWA advised the states that it was adopting the 1989 American Association of State Highway Officials (AASHTO) Roadside Design Guide (the Guide) as a "guide or reference" for development of standards for roadside safety in each state on highway projects funded with federal aid, effective July 25, 1990. The Guide noted the above-mentioned hazards associated with the turned-down terminal systems on corrugated guide rails, although the Guide did not have the binding effect of a standard or regulation.
Almost immediately thereafter, however, FHWA issued a memorandum prohibiting turndowns on heavy post terminals. New York State's DOT immediately noted its concern with this prohibition. A substantial volume of memorandums and correspondence ensued (Claimant's Exhibits 119 — 137, among others), in which DOT reviewed its concerns with the safety and crash test results of various alternative designs cited as potential replacements for the turned-down terminals, as well as DOT's disagreement with FHWA's assessment of the turned-down terminals as inherently unsafe on high-speed, high-volume roadways.
The guide rail in this instance was a weak-post system, rather than a heavy-post system.
Subsequently, by memorandum dated October 19, 1994, FHWA requested comments from DOT regarding its proposal to extend the prohibition of installation of turned-down end sections to include weak-post systems, in addition to the heavy-post systems, effective September 29, 1995 (Claimant's Exhibit 131). Although DOT once again registered its disagreement with this proposal (Claimant's Exhibit 132), in an April 24, 1995 memorandum, FHWA ordered DOT to submit a proposal for the migration away from turned-down end sections on weak-post systems (Claimant's Exhibit 134). In fact, as late as September 27, 1995, an FHWA memorandum indicates that the parties were still in disagreement over the proposed prohibition, and discussions were continuing (Defendant's Exhibit G). The record indicates that DOT and FHWA were still working on implementing an approach to replacement of the weak-post turned-down end sections at the time this Project was under construction in 1996.
Defendant observes, without contradiction, that the only regulatory prohibition on these systems was established through the Federal Register in 1993, and that there was a 5-year time period (until 1998) within which to comply (Defendant's Exhibit BB; 58 Fed Reg 38297 [1993]).
Claimant's counsel initially intimated (in his pre-trial memorandum) that the box-beam system "does not feature a turned down end section, and is flared away from the roadway." Because FHWA's objection to any turned-down terminal is primarily that it causes vehicle ramping and turnovers (as in this accident), defendant's change without discussion from a box-beam system (presumably without a turned-down end) to a corrugated system (with a turned-down end) might have been potentially significant in this matter.
However, at trial defendant introduced DOT's standard sheet for box-beam terminal systems (Claimant's Exhibit 103), which shows that a turned-down terminal was the New York standard for box-beam systems as well as w-beam systems. Moreover, Defendant's expert testified that FHWA was trying to prohibit all turned-down terminals, whether on a box-beam system or a w-beam system. Hale testified that only two states (New York and Wyoming) routinely use a box-beam system, which would explain why much of the FHWA documentation regarding the turned-down terminals references their use with w-beam guide rails. Hale testified, and the documentation and correspondence confirm, that turned-down terminals have risks associated with rollovers regardless of the type of guide rail system to which they are attached, and that FHWA's goal was to prohibit these turned-down terminals on all high-volume, high-speed highways, regardless of the type of the guide rail system.
Claimant contends that defendant was aware of the risks associated with the turned-down end section, due to the years-long correspondence between FHWA and DOT. However, the documentation also contains significant discussion of other terminal types, and the various risks associated with the use of these different terminals (Claimant's Exhibits 126, 129, 132, 134 and 137; Defendant's Exhibits B and E). It is apparent that there are varying risks and benefits associated with all types of terminals, and the safety of any particular terminal will be affected by a nearly infinite number of factors, such as the angle at which the vehicle impacts the guide rail, the angle at which the vehicle leaves the road, and the height, weight and speed of the vehicle. Moreover, there are many other issues which also weigh into a determination of what type of terminal to use, such as cost, maintenance, complexity of installation and location.
Different terminal types include, among others, blunt-end terminals, Breakaway Cable Terminals, the Eccentric Loader Terminal, and the Modified Eccentric Loader Terminal (Defendant's Exhibit E and Claimant's Exhibit 126).
In any event, the record indicates that the use of the turned-down terminal was in compliance with the applicable standards. "When highway design comports to the standard applicable at the time of construction or reconstruction, [defendant] has met its duty unless there is some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it" ( Cipriano v State of New York, 171 AD2d 169, 173, lv denied 79 NY2d 756). Contrary to claimant's assertions, the documentation clearly indicates substantial and extensive study on the part of DOT regarding the relative safety of the various types of terminals in use at that time, which provided a reasonable basis for its determination to use a rail system with turned-down terminals at this particular location, thus entitling defendant to qualified immunity for this highway planning decision.
With regard to the change from a box-beam system to a w-beam system, both of which would have had a turned-down terminal, either was permissible under the regulatory requirements in effect at the time. Strikingly, claimant's own expert testified that, assuming the w-beam rail had been at the proper height at the time of the accident, it would have redirected the vehicle back toward the roadway and claimant would not have incurred his injuries. Consequently, according to claimant's own expert, the change from the box-beam to the w-beam system did not constitute negligence.
Levine's "Scenario B," depicted in Claimant's Exhibits 140 and 147.
Improper Installation
Claimant's third contention concerning defendant's negligence is that the terminal portion of the guide rail was installed incorrectly, in that the last two posts did not have bolts installed, as specified in the standards, which would have kept the rail at the correct height. Levine testified that, in his opinion, if the rail had been at the proper height, the vehicle's bumper would have connected with the rail and the vehicle would have been redirected toward the road, with no consequent injuries to claimant.
Levine based his opinions on his calculations using the standard dimensions, weight and bumper height of the type of vehicle involved in the accident.
Levine based his opinion that the guide rail was incorrectly installed on his several inspections of the scene, which commenced shortly after the accident (which occurred in November 2001). At that time, he noticed that the rail was not bolted to either the first or the second post in the terminal section. He testified that, in his opinion, bolts had never been installed at those posts, which would have been necessary to keep the rail at a safe height. He said these terminal sections are designed so that as much of the twisted section of the rail as possible is flat, to prevent the ramping effect on vehicles caused by the twist, and that the height of the rail was crucial to keeping the terminal section as safe as possible. The ground for his assertion that the bolts were never installed is that he could not see a mark on the rail indicating that the requisite square washer had been present behind the bolt screwing the rail to the post.
He further testified that the material under the front bumpers on Chevrolet Berettas, the vehicle in this instance, consists of black plastic. He observed that the marks on the guide rail from the collision were only on the top of the rail, which indicated to him that the bumper passed over the rail and engaged the post behind it, which fell down, bringing the rail down with it. He opined that the rail then formed a ramp, which caused the vehicle to vault and roll over, leading to claimant's injuries.
Levine further testified that he walked along the guide rail with a magnifying glass during his inspection, looking for washers and bolts, and found none. He conceded on cross-examination that this search was done on a snowy day some time after the accident — and a considerable amount of time after the installation of the rail — and that the washers and bolts could well have been retrieved in the cleanup after the accident. However, he argued that if bolts had been present, they would have left rust marks and the washers would have left gouges in the rail. Conversely, defendant's expert testified that he saw marks on the rail at the location of the first post, indicating that the bolt was present and holding the rail to the post, presumably at the correct elevation.
The Court did not find Levine's testimony on this point sufficiently persuasive to hold that defendant's installation of the guide rail was negligent, leaving the rail at a lower height than specifications required and thus causally contributing to an aggravation of claimant's injuries. As Levine admitted on cross-examination, the bolts are designed to shear and separate from the posts upon collision. Obviously, the bolts could have broken in this accident, or in another previous accident. Claimant's expert's conclusion that he could not see marks of washers on the rail some six years after installation, and after at least one impact, is not adequate to support a finding of liability, particularly given defendant's expert's conflicting opinion.
The Length of the Guide Rail
Claimant's final contention is that the guide rail was 26 feet too long under defendant's own standards. The record indicates that the vehicle in which claimant was a passenger struck the rail approximately 30 inches west of the first post, or approximately 22½ feet east from the end of the rail. Claimant's argument, therefore, is that had defendant complied with its standards on where to commence the rail — thus constructing a rail that would have commenced 26 feet farther east — there would have been no guide rail at the accident site, and claimant's injuries would not have been as severe.
Numerous studies have been performed over the years in order to develop a method for determining a starting point for a guide rail which would balance the need for protecting the traveling public from collision with a fixed object on the one hand, with the hazard inherent in the guide rail itself on the other. This location is denominated the "point of need." New York's Highway Design Manual (Claimant's Exhibit 90, p. 10-13) states in pertinent part:
For a fixed object of limited dimensions, an angle of 15º from the line of guide rail to the back of the object is an accepted way to determine the start of a run of guide rail (see Standard Sheet — Guide Rail Protection for Overhead Sign Structures). The terminal section of the rail is in addition upstream from this point. This procedure is to be followed for both ends of rail for two-way roadways.
Guiderail III (Claimant's Exhibit 158), a training guide providing references to DOT policies and standards, contains a diagram which demonstrates how to find the point of need for a proposed guide rail. This document also calls for a 15-degree angle from the commencement of the guide rail to the fixed object being shielded. Finally, DOT's standard sheet 645-14R2 (Claimant's Exhibit 105) clearly requires an angle of 15 degrees from the commencement of the rail system (excluding the terminal) to the object being shielded.
Claimant's expert testified, without contradiction, that his calculations indicated that if the guide rail had been constructed to shield the sign using this 15-degree point-of-need standard as set forth in DOT's documentation, it would have commenced approximately 26 feet farther east. Levine acknowledged that the point of need is to be determined by the engineers in the field. However, he indicated that this is because the actual positioning of a sign can vary somewhat, due to field conditions, from what has been set forth on the design, and that therefore the actual point of need must be based on the field conditions.
Claimant's expert testified convincingly that extending the guide rail farther than necessary without justification was negligent, contrary to defendant's standards, contrary to good engineering practices, and posed a significant hazard in the case of a collision between a vehicle and the terminal section. Again, it must be noted that defendant's own documentation acknowledges that guide rails are a serious hazard, to be eliminated where feasible. It must also be noted that the original plans called for 202 feet of guide rail at this location, rather than the 226 feet that was actually installed. It is thus readily apparent that the installation of the extra guide rail was not the product of a discretionary decision made during the course of planning and design of the Project, which might have been accorded qualified immunity.
Defendant's expert's testimony regarding this issue, on the other hand, was simply not credible. Despite his own testimony admitting that guide rails are hazardous and should not be installed unless required to protect against a hazard greater than the guide rail itself, he stated that the 15-degree specification set forth in DOT's own documents was arbitrary and open to debate, and that it was a gray area in the field of design. However, he could not point to any documentation which provided for any other method of determining where a guide rail should commence. He stated that a 7-degree angle would be an acceptable method for determining the point of need, but that a 20-degree angle would not, although he could not provide any basis for this contention either. When asked about the impact of the extra length of the guide rail resulting from a 7-degree angle, he responded that it would only be "wasteful," apparently referring to the additional expense required. This testimony clearly conflicted with his previous credible testimony that guide rails constitute a hazard which should not be constructed without the need to protect a more hazardous fixed object.
The Court is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination. The Court may reject an expert's opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion. Put another way, the Court when faced with conflicting expert testimony is entitled to accept the theory that, in its view, best explains the point in issue and is supported by the evidence ( see Shaw v Binghamton Lodge No. 852, B.P.O. Elks Home, 155 AD2d 805, 806).
In this case, after listening to the testimony, reviewing the evidence and observing the witnesses' demeanor, the Court finds that claimant has proved by a preponderance of the evidence that defendant was negligent in establishing the point of need where it did, and thus constructing a guide rail at this location. The Court further finds that such negligence was a substantial factor in aggravating claimant's injuries.
Claimant's expert testified in a somewhat conclusory manner, but without contradiction, that absent the guide rail, claimant's injuries would have not been as severe. While his testimony is sufficient for the purpose of establishing a cause of action and liability ( see generally Gutelle v City of New York, supra), it will be necessary in the damages trial for claimant to establish the precise amount of damages allocable to the "aggravation" of his injuries, i.e., the difference between the injuries he actually received and the injuries he would have received if the guide rail had not been installed at that location ( id.).
On the other hand, although claimant's injuries are quite grievous and unfortunate, claimant must bear a great deal of responsibility for his conduct in creating the situation.
Notwithstanding that collision with a guide rail is certainly a foreseeable result of the installation of a guide rail, claimant's actions were undoubtedly the principle cause of this accident. The Court accordingly apportions liability in the amount of 85 percent to the claimant, and 15 percent to defendant.
The Clerk of the Court is directed to enter judgment on the issue of liability in the proportions set forth above. A trial on the issue of damages will be scheduled as soon as practicable.
Let interlocutory judgment be entered accordingly.