Opinion
# 2013-032-003 Claim No. 115103
06-11-2013
BARBARA GRAFF, as Executor of the Estate of GARY MYERS, deceased v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2013-032-003 Claimant(s): BARBARA GRAFF, as Executor of the Estate of GARY MYERS, deceased Claimant short name: MYERS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115103 Motion number(s): Cross-motion number(s): Judge: JUDITH A. HARD Wilkie & Graff, LLC Claimant's attorney: By: Sharon Graff, Esq. Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Glenn C. King, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: June 11, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Gary Myers, commenced the instant claim seeking damages for injuries sustained subsequent to a motor vehicle accident on April 13, 2006, at the intersection of DeWitt Mills Road and State Route 32 in Rosendale, New York. For the reasons discussed below, the claim is dismissed for claimant's failure to prove either that defendant was negligent or that defendant's alleged negligence was the proximate cause of this accident.
Claimant was very ill at the time of trial and did not testify. His January 24, 2011 deposition testimony was admitted into evidence. Certain excerpts from his September 8, 2006 50-h hearing testimony from a separate but related action, were received into the record, as stipulated to by Counsels (Exhibits 1 and 19). The remaining pages of the 50-h testimony are inadmissible. After trial, Myers died from causes unrelated to his injuries sustained in the accident. Barbara Graff, his widow, received Letters Testamentary from Surrogates Court, Ulster County appointing her the Executrix of the Estate of Gary Myers, and she was substituted for claimant in this claim. All references to "claimant" within this decision refer to Gary Myers.
FACTS
At approximately 4:30 P.M. on April 13, 2006, claimant was driving his Honda motorcycle, east on DeWitt Mills Road in Rosendale, New York when he stopped at a stop sign upon arrival at the intersection with State Route 32 (Route 32). His wife, Barbara, was a passenger on the motorcycle. Claimant proceeded across the southbound lane of Route 32 in order to turn left and travel northbound on Route 32 when his motorcycle was struck by a Honda sedan, driven by Kevin Mayes, that was traveling southbound on Route 32. According to the police report, claimant received a traffic ticket for failure to yield the right of way (Exhibit 27).
DeWitt Mills Road is also County Route 28.
The ticket was later dismissed by a town court for reasons not addressed before this Court.
At its intersection with Route 32, the eastbound lane of DeWitt Mills Road is controlled by stop signs. There is no stop sign for traffic on Route 32. Near the northwest corner of the intersection, there is rock outcrop on the side of the road along Route 32 which claimant alleges blocked his view of the southbound traffic on Route 32 (Exhibits 21 and 21A). Claimant alleges that the inadequate sight distance created by such was the proximate cause of the collision with Mayes' vehicle.
Claimant testified that prior to the accident, he had been riding his motorcycle for about one hour (Exhibit 19, p 6). He was familiar with the intersection of DeWitt Mills Road and Route 32, having traveled through it approximately six times in the three to four years prior to the date of the accident, and he knew there was a stop sign on DeWitt Mills Road as he approached Route 32 (Exhibit 19, pp 17-18). Claimant planned to make a left turn and travel northbound on Route 32, although he usually would not do so because of the visibility issue with the intersection (Exhibit 19, p 20). After he initially stopped at the stop sign and placed his feet on the ground, he inched his motorcycle forward toward the intersection to get a better view to the left, and then he came to a second complete stop (Exhibit 19, p 21). The front wheel of his motorcycle was almost on Route 32 (Exhibit 19, p 22). At the 50-h hearing, Myers testified that the motorcycle's front wheel was four to five feet away from the travel portion of Route 32 (Exhibit 1, p 15).
He looked both ways to wait for traffic to clear. His last look was north, on his left, and he did not see any vehicles traveling south on Route 32 (Exhibit 19, p 24). He applied the gas to the motorcycle, lifted his feet off the ground, and began to move forward into the intersection (Exhibit 19, p 24). Claimant was in the middle of the southbound lane of Route 32 when his motorcycle was struck in the middle of its left side by Mayes' Honda sedan (Exhibit 19, p 25). Claimant maintained that he did not see Mayes' vehicle as he was pulling into the intersection and he first saw the vehicle when he was lying in the middle of the highway (Exhibit 19, p 25, 27). The Police Accident Report (MV-104A), that was completed after the accident, includes the following description of the accident. "V1 (motorcycle) started from stop on DeWit [sic] Mills Road and entered onto SR 32 (easterly) into the path of V2. . ." (Exhibit 27).
Myers' motorcycle is incorrectly identified as "V1," and Mayes' vehicle is likewise incorrectly identified as "V2," in the "Accident Description/Officer's notes" section of the Police report.
Barbara Graff testified that she had known claimant for 10-12 years and was a frequent passenger on his motorcycle (T: 9-12). With regard to the accident, she testified that she and Myers approached Route 32 while traveling east along DeWitt Mills Road when he stopped at the stop sign, put his legs down, looked to the left, then right, and then left again. He then moved forward a little further, put both legs down again, looked both ways again, and started a left turn onto Route 32. Graff testified that they were stopped for only a few seconds and that claimant made a smooth turn and did not stop or hesitate once he started the turn (T: 14-17).
Kevin Mayes, who the Court found to be sincere and forthright, testified he was driving his Honda sedan south on Route 32 at a speed of approximately 40 MPH to 45 MPH as he approached the intersection with DeWitt Mills Road (T: 169-170). He first observed Myers's motorcycle stopped on DeWitt Mills Road on the right hand side when he was approximately 150-200 feet up the hill from the intersection (T: 174-175). He estimated that the motorcycle entered the intersection when his vehicle was about 75 feet away (T: 171). Mayes observed the motorcycle for 5 to 10 seconds before it started to move into the intersection (T: 178-179). When Mayes saw the motorcycle enter the intersection, he applied his brakes, attempted to stop, and turned to the right to try to avoid the collision (T: 180-181). His vehicle hit the motorcycle and stopped 10 to 15 feet beyond the point of impact, which he described as the middle of the intersection (T: 171).
In reviewing the evidence presented at trial, it appears that the subject intersection was a matter of concern for a number of years before claimant's accident. Since the early 1990s, the New York State Department of Transportation (DOT) received and responded to multiple complaints about the intersection (Exhibits 2-16). In April of 1990, Albert Bauman, Regional Director for the DOT, wrote to Senator Charles D. Cook acknowledging the Senator's concerns about traffic conditions at the intersection, as well as similar concerns from other citizens in the town of Rosendale, and notifying the Senator that an investigation had been scheduled (Exhibit 2).
In September 1994, M.D. Morano, a Civil Engineer for the DOT, responded to Supervisor Beatrice Havranek from the Town of Rosendale notifying her that a formal investigation determined that the present 55 MPH speed limit was appropriate and that a reduction in the speed limit would be ineffective because "[t]he majority of motorists drive at a speed which they perceive as reasonable and prudent for existing conditions. [and] [a]n unreasonably low speed limit [would] have little or no affect [sic] on the actual travel speeds chosen by most motorists." (Exhibit 5).
In a letter dated February 13, 1995 to Mr. William Loughlin of Kingston, New York, however, he acknowledged the rock embankment limited sight distance for southbound motorists on Route 32 and motorists egressing DeWitt Mills Road (Exhibit 7). Morano also stated that "in a continuing effort to improve conditions, we will install a flashing beacon assembly on southbound Route 32 north of the intersection. The beacons will supplement an intersection warning/35 mph sign. Their purpose is to emphasize the warning sign for southbound Route 32 motorists." (Exhibit 7). In addition, Morano wrote that DOT was still actively investigating means of improving sight distance, and that cutting the rock embankment would be a capital construction project and that a land acquisition would be required (Exhibit 7).
In March of 1995, DOT responded to a written request from Assemblyman John J. Guerin that the installation of an advisory speed sign and flashing beacons were scheduled for installation in 1995 and that "[DOT] will continue to explore the possibility of improving the sight distance at this location." (Exhibit 9).
In February of 1998, P. Charles Schaller, Chairman of the Ulster County Traffic Safety Board, wrote to Morano and the DOT requesting an investigation and review of the intersection because the intersection had a sight distance problem and there had been numerous personal injury motor vehicle collisions (Exhibit 13).
On March 28, 2000, M.D. Morano wrote a memorandum to the DOT's files stating that another review of the intersection had been completed, the sight distance in the north section needed to be improved, and it could be accomplished by "cutting back the existing rock embankment located in the northwest quadrant of the intersection." (Exhibit 10). He also noted that such a project would need to be addressed by the DOT's Capital Construction program, but should be scheduled as soon as possible (Exhibit 10). On the same day, Morano received an internal DOT e-mail from Thomas Weiner that funding for this project was in a program for the fiscal year 2006-2007 (Exhibit 11).
R. Peters, Regional Planning and Program Management Manager for the DOT, sent a memo to P. Crocker, Regional Design Engineer, in February of 2003 authorizing preliminary engineering tasks necessary for proposed safety requirements projects for several roadway intersection projects, which included cutting back the rock outcrop at the intersection of Route 32 and DeWitt Mills Road as the third most urgent project (Exhibit 16).
Lance Robson testified at trial as the claimant's expert witness. Robson is a licensed professional engineer in the State of New York (T: 31). In preparing for his testimony, Robson reviewed the police and accident reports, information and correspondence from the DOT regarding safety reviews of the intersection, the motor vehicle accident history reports for the intersection for 8 of the 10 years prior to April 13, 2006, Myers' deposition, 50-h transcripts, Exhibits, and the deposition transcripts of certain DOT personnel (T: 33-34). Robson also conducted a site inspection of the intersection (T: 34).
He had been qualified as an expert in the fields of highway design and accident reconstruction in other courts prior to this trial (T: 29). The Court accepted Mr. Robson as a professional engineer and an expert in the fields of accident reconstruction and highway safety and design (T: 31-32).
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Robson testified that Route 32 and DeWitt Mills Road is a four-way intersection (T: 35; Exhibits 23, 24 and 25). Route 32 has one southbound and two northbound traffic lanes. DeWitt Mills Road intersects from the west and has one westbound and one eastbound traffic lane. The speed limit on Route 32 is 55 MPH. For southbound traffic, there is an intersection warning sign posted north of the intersection with DeWitt Mills Road with two flashing beacons on Route 32 and an advisory speed limit of 35 MPH (T: 35). Double center lines bisect DeWitt Mills Road that end 60 feet from the traveled way of Route 32 (T: 35). The stop bar for eastbound DeWitt Mills Road is on the road at the end of the center line and there are stop signs on the right and left sides of DeWitt Mills Road (T: 35). The left stop sign is 32 feet from the traveled way of Route 32 (T: 71).
Robson testified to a reasonable degree of professional certainty that there was a left corner sight distance problem at the intersection (T: 36). The left corner sight distance was limited by a rock outcrop in the northwest corner of the intersection (T: 37-38, 65). He testified that he measured the available left corner sight distance to be 365 feet (T: 58). According to Chapter 5 of the New York State Highway Design Manual dated July 9, 2004 and Appendix 5C dated June 25, 2004, and Robson's testimony based thereon, the minimum available sight distance for a roadway with a 55 MPH speed limit (Route 32) is 620 feet (T: 42; Exhibit 26). Robson testified that the difference of 255 feet for the left corner sight distance was grossly substandard and a substantial factor in causing the collision (T: 61, 64). The 255 feet of missing sight distance was equivalent to three seconds of travel time for a vehicle traveling at 55 MPH, which also eliminates claimant's ability to see vehicles on Route 32 for those additional three seconds (T: 63). Robson did not offer any testimony for claimant's sight distance for a vehicle traveling on Route 32 at the advised 35 MPH for that intersection or for a vehicle traveling 40 MPH or 45 MPH on Route 32, the speed at which Mayes estimated he traveled just before he reached the intersection. Robson testified only that a vehicle traveling at 45 MPH would travel at 66 feet per second (T: 154).
Robson opined that, in general, the consequence of a substandard corner sight distance is "angle collisions", or motorists pulling out and being hit by traffic on the main road (T: 61). Robson testified he reviewed the accident history for the intersection at DeWitt Mills Road and Route 32 from 1996 through 1999 and 2003 through the date of the accident, and found that there was an average of two angle collisions per year reported at the intersection (T: 88; Exhibits 17 and 18). The Court's review of Exhibits 17 and 18, however, revealed only three post-1995 angle accidents at the intersection, including claimant's accident, where the collision involved one vehicle traveling south on Route 32 and one vehicle making a left turn to proceed north on Route 32.
Based on claimant's testimony and his site inspection, Robson testified that claimant's motorcycle had to travel 18 feet from his last stopped position to the point of impact (T: 148). Assuming that claimant accelerated into the intersection normally at 9 MPH, Robson calculated that it took three seconds to travel to the point of impact (T: 150). Robson stated that Myers needed an additional three-tenths of a second to cover an additional four feet in order to clear the Mayes' vehicle (T: 158-159). Robson was unable to ascertain how far away Mayes' vehicle should have been when Myers' motorcycle could have been visible in Route 32 (T: 151). He testified that he never spoke to Myers, Graff, Mayes, the police officers who responded to the accident, or anyone with firsthand knowledge of the accident (T: 120 and 126).
Upon cross-examination, Robson conceded that Myers could see southbound traffic on Route 32 that was approaching him, but only the vehicles that were within the available sight distance which he previously noted as 365 feet (T: 58, 124). Robson also conceded that there are hundreds of intersections within the DOT's Region 8 that have limited sight distances (T: 131-132). Robson was unaware of the dates for the construction of Route 32 or its intersection with DeWitt Mills Road (T: 118).
LAW
"It is well-settled that the State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 286 [1986]; Bottalico v State of New York, 59 NY2d 302, 305 [1983]; Campbell v City of Glen Cove, 19 AD3d 632, 634 [2d Dept 2005], lv denied 8 NY3d 814 [2007]). 'This includes the duty to design, install, operate, and maintain traffic control devices, to regulate, warn and guide vehicular traffic at intersections under the State's ownership and control' (Daub v State of New York, 17 Misc 3d 1121[A] [2007])." (Steenbuck v State of New York, UID No. 2012-039-296 [Ct Cl, Ferreira, J., March 30, 2012]). "The design, construction and maintenance of public highways is entrusted to the sound discretion of municipal authorities and so long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied" (Lee v State of New York, UID No. 2013-039-370 [Ct Cl, Ferreira, J., April 30, 2013]), citing Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; see Ciasullo v Town of Greenville, 275 AD2d 338 [2d Dept 2000], lv denied 96 NY2d 707 [2001]). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). "Under the doctrine of qualified immunity, 'a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan' " (Marrow v State of New York, 105 AD3d 1371 [4th Dept 2013], citing Friedman v State of New York, 67 NY2d 271, 284 [1986]; Weiss v Fote, 7 NY2d 579, 589 [1960]).
Further, "While a municipality is under a duty to construct and maintain its highways in a reasonably safe condition, it need not comply with design standards adopted after the construction of a highway unless it undertakes 'significant repair or reconstruction' that would allow compliance with the new standards" (Hay v State of New York, 60 AD3d 1190 [3d Dept 2009], [citations omitted]). Moreover, "the violation of a rule of an administrative agency. . . lacking the force and effect of a substantive legislative enactment, is 'merely some evidence which the [Court] may consider on the question of defendant's negligence' " (Long v Forest-Fehlhaber, 55 NY2d 154, 160 [1982]).
Additionally, Claimant must show that the State either created a dangerous condition, or had actual or constructive notice of it, and failed to take reasonable measures to correct it (Lee v State of New York, UID No. 2013-039-370, citing Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]). " ' To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [defendant] to discover and remedy it' " (Lee v State of New York, UID No. 2013-039-370, citing Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798, 799 [2d Dept 2005], quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; accord Cantwell v Rondout Sav. Bank, 55 AD3d 1031, 1032 [3d Dept 2008]).
" 'A driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic is in violation of Vehicle and Traffic Law § 1142 (a) and is negligent as a matter of law (Gergis v Miccio, 39 AD3d 468, 468 [2d Dept 2007]; see Friedberg v Citiwide Auto Leasing, Inc., 22 AD3d 522, 523 [2d Dept 2005]; see also Perez v Paljevic, 31 AD3d 520 [2d Dept 2006]' " (Exime v Williams, 45 AD3d 633 [2d Dept 2007]); "Vehicle and Traffic Law § 1172 (a) requires a driver at an intersection controlled by a stop sign to stop 'at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering the intersection' " (Olsen v Baker, 112 AD2d 510 [3d Dept 1985]; see also Weiser v Dalbo, 184 AD2d 935 [3d Dept 1992]). Such driver is required to continue to exercise care and "to see what by the proper use of [his] senses [he] might have seen" (Olsen, 112 AD2d at 511; citing Weigand v United Traction Co., 221 NY 39, 42 [1917]).
No liability will attach unless the alleged negligence of the State is a proximate cause of the accident (Johnson v State of New York, 27 AD3d 1061, 1062 [4th Dept 2006], lv denied 7 NY3d 711 [2006]; Ring v State of New York, 270 AD2d 788, 789 [3d Dept 2000]; Travalino v State of New York, 203 AD2d 276, 277 [2d Dept 1994]). " ' " Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, [claimant] cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury" ' " (Lee v State of New York, UID No. 2013-039-370; citing Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987], quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; see Lopez v Adams, 69 AD3d 1162, 1165 [3d Dept 2010];White v State of New York, 41 AD3d 1071, 1073 [3d Dept 2007]).
ANALYSIS
Claimant failed to prove by a preponderance of the credible evidence, that the steps taken by defendant, in response to complaints by citizens and governmental officials, were unreasonable or inadequate, and therefore, not covered by qualified immunity (Friedman v State of New York, 67 NY2d 271, 284 [1986]; Weiss v Fote, 7 NY2d 579, 589 [1960]). Although a review of Exhibits 2-16 indicate that the DOT clearly had constructive notice that a problem existed at that intersection during the sixteen years prior to claimant's accident, defendant undertook several studies of the area (Exhibits 2, 7, 9). In 1995, the DOT installed a flashing beacon and intersection warning/35 MPH sign, to alleviate the possibility of accidents at the intersection of Route 32 and DeWitt Mills Road. These measures, which warn motorists and slow traffic down on approach to the intersection, made the State highway reasonably safe for people who obey the rules of the road (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). As discussed below, the Court finds that claimant failed to yield the right of way under Vehicle & Traffic Law § 1142 (a).
The Court finds Robson's testimony, that an average of two angle accidents occurred at this intersection annually, as invalid and misleading because the Court's review found only three similar accidents occurring there over the time periods provided in Exhibits 17 and 18. Moreover, the majority of Robson's calculations regarding adequate distance were for a roadway with a 55 MPH speed limit, without considering the advisory 35 MPH speed limit or the testimony of Mayes that he was traveling at 45 MPH. Further, Robson used the 2004 Highway Design Manual, for his calculations regarding an adequate sight distance at that intersection. Claimant failed to establish that such manual was applicable to the intersection of Route 32 and DeWitt Mills Road. No evidence was offered as to when Route 32 was built. Robson admitted that he was unaware of the construction date of Route 32 or its intersection with DeWitt Mills Road.
Even if the removal of the rock outcrop was a safeguard that defendant should have taken when it first learned of problems at the intersection, the claim fails because claimant did not prove by a preponderance of the credible evidence that the rock outcrop was the proximate cause of this accident. The facts indicate that there were two possible causes of this accident: the rock embankment blocked claimant's view or claimant could have seen the Mayes' vehicle but pulled out in front of it. The Court credits Mayes' testimony that he first saw claimant when he was 150-200 feet away, that claimant pulled into the intersection when the Mayes' vehicle was 75 feet away, and that he observed claimant for 5-10 seconds before claimant moved into the intersection. Claimant's expert admitted on cross-examination that claimant could see southbound traffic on Route 32 which was within the 365 feet of available sight distance. Using the data from Mr. Robson's testimony, if a vehicle moving 45 MPH travels 66 feet per second and claimant traveled 3 seconds until impact, then the Mayes' vehicle was approximately 198 feet away at the time claimant accelerated into the intersection. Clearly, 198 feet is within the 365 feet of available sight distance. Based upon the foregoing, the Court concludes that claimant should have seen the Mayes' vehicle before pulling out into the intersection. Claimant failed to yield the right of way under Vehicle and Traffic Law § 1142 (a). It is more likely than not that the accident would have happened regardless of the rock outcrop. Claimant simply failed to see what he could have seen (Olsen v Baker, 112 AD2d 510 [3d Dept 1985], citing Weigand v United Traction Co., 221 NY 39, 42 [1917]).
Upon review of all the evidence, including the observation of the witnesses and an assessment of their demeanor, the Court finds that claimant failed to establish his case by a preponderance of the credible evidence. All motions upon which the Court reserved decision are denied. All objections upon which the Court reserved determination at trial are now overruled. The claim is in all respects dismissed.
Let judgment be entered accordingly.
June 11, 2013
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims