Opinion
# 2017-040-052 Claim No. 118721
05-09-2017
CLAYTON A. GRIBNEAU, III, Individually and as Administrator of the Estate of LAURA J. GRIBNEAU v. THE STATE OF NEW YORK
PETER M. HOBAICA, LLC By: Peter M. Hobaica, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq., AAG
Synopsis
Highway Accident at Intersection. Alleged sight distance issues. Qualified Immunity applies. Even if no qualified immunity, Claimant failed to establish State was negligent.
Case information
| UID: | 2017-040-052 |
| Claimant(s): | CLAYTON A. GRIBNEAU, III, Individually and as Administrator of the Estate of LAURA J. GRIBNEAU |
| Claimant short name: | GRIBNEAU |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118721 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | PETER M. HOBAICA, LLC By: Peter M. Hobaica, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 9, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) | 2017-040-053 |
Decision
For the reasons set forth below, the Court finds that the State is immune from liability under the doctrine of qualified immunity in connection with the traffic condition that is the subject of these Claims. The Court further determines that, even if the doctrine did not apply, Claimants failed to establish, by a preponderance of the credible evidence, that the State of New York was negligent in connection with these Claims.
A bifurcated trial, addressing liability issues only, was held on May 3, 2016 at the Court of Claims in Utica, New York. The Claim of Clayton A. Gribneau, III, individually and as Administrator of the Estate of Laura J. Gribneau (hereinafter, the "Gribneau Claim"), and the Claim of Kelli M. Barcomb (hereinafter, the "Barcomb Claim"), were joined for trial, although they were not consolidated and remain separate claims (hereinafter, Mr. Gribneau and Ms. Barcomb sometimes collectively are referred to as the "Claimants," and the Gribneau Claim and the Barcomb Claim sometimes collectively are referred to as the "Claims"). There were three witnesses: Rudolf A. Norman (Claimants' expert); Paul Obernesser (Defendant's expert); and Neil A. Palmer, an accident investigation safety engineer for the New York State Department of Transportation (hereinafter, "DOT"), who worked for DOT from 1974 to 2010, and who investigated the accident.
In addition, separate examinations before trial (each, an "EBT") were admitted into evidence for: John R. Williams (DOT's regional director of transportation in Binghamton in 2008, and in Utica since 2012, in which capacity he supervised a number of program areas, including traffic and safety), conducted on September 3, 2013 (Ex. 8); James J. Papaleo (a DOT employee since 1985), conducted on October 17, 2013 (Ex. 9); Robert L. White (who worked for the State from 1966 to 2007, and was, at the time of his retirement, a regional traffic engineer for DOT), conducted on October 17, 2013 (Ex. 10); Francis A. Maggiolino (who worked for the State from 1973 to 2007, and was, at the time of his retirement, a senior civil engineer/assistant traffic engineer for DOT), conducted on October 17, 2013 (Ex. 11); Neil A. Palmer, conducted on October 31, 2013 (Ex. 12); Carl J. Barcomb, conducted on March 15, 2011 (Ex. 14 & Ex. L); Clayton Gribneau, conducted on March 15, 2011 (Ex. M); Kelli M. Barcomb, conducted on February 26, 2009 (Ex. N); and another EBT of Ms. Barcomb, conducted on March 15, 2011 (Ex. O). Thereafter, the parties were granted additional time to order a transcript and then submit post-trial memoranda.EXPERTS
Mr. Norman became a New York-licensed professional engineer in 1954 and licensed land surveyor in 1955 (Ex. 19). At trial, he indicated that he also had been licensed in Tennessee and Florida, but that he voluntarily allowed all of those licenses to lapse within the last 10 years. Nevertheless, he stated his familiarity with New York highway safety and design standards as they existed in 2008. Mr. Norman has worked for DOT and other municipalities as a highway design and safety engineer. He has performed and directed accident studies to identify and correct perceived safety and roadway deficiencies. Mr. Norman reviewed the Claims and Claimants' Bills of Particulars, police and sheriff's department accident reports, the accident history for the intersection in Steuben Corners where the accident occurred, various depositions, site maps, and photographs. He visited the accident site on June 24, 2010 to inspect the roadway conditions, although the building at the southwest corner of the intersection (hereinafter, "the Old Grange Hall") had been removed prior to his visit. Mr. Norman spent a couple of hours at the site and drove through the intersection from different directions, but he did not take any measurements during his visit, other than recording mileage in his rented sedan, because he deemed the calculations made by the sheriff to be "very reliable" (Tr., p. 114). He did not review the "as-built" plans for Route 274 in establishing his measurements. Mr. Norman offered a number of opinions within a reasonable degree of certainty as a professional engineer.
Mr. Obernesser worked for DOT from 1977 to 2010, became a New York-licensed professional engineer in 1982, and has held several titles in the regional office that includes Steuben Corners. He is familiar with the intersection at Steuben Corners and, in 2008, became aware of the accident that is the subject of these Claims. Mr. Obernesser reviewed: the accident reconstruction and investigation by the Oneida County Sheriff's Department; the EBTs of the DOT employees; Mr. Barcomb's EBT, as well as court transcripts and documents from his criminal proceeding relating to this accident; traffic studies conducted as part of the chronology of this accident; photo logs and pictures taken at the crash scene; the "as-built" plans for Route 274 made in 1922; records of any surface treatments, since the highway has never been rebuilt; and ownership records relating to the Old Grange Hall. He visited the intersection several times, most recently in the week before the trial. Mr. Obernesser expressed a number of opinions to a reasonable degree of engineering certainty.
THE ACCIDENT
There was an automobile accident at 12:25 a.m. on August 3, 2008, at the intersection of New York State Route 274 (hereinafter, "Route 274"), a two-lane divided highway that runs generally east-west, and Oneida County Route 53 (hereinafter, "Soule Road"), a two-lane rural road that runs generally north-south, in Steuben Corners, Town of Steuben, Oneida County. Carl J. Barcomb was the owner-operator of a four-door 2006 Dodge pickup truck (hereinafter, the "Barcomb Vehicle"). Beside him in the front passenger seat was his brother-in-law, Clayton A. Gribneau, III. Behind them sat their wives, Kelli M. Barcomb and Laura J. Gribneau, respectively. The party was returning home after visiting the father of Mr. Gribneau and Ms. Barcomb, who first was in a hospital in Utica, and then was transferred to a hospital in Syracuse.
Mr. Barcomb testified that he was not too familiar with the intersection in Steuben Corners, but he had not encountered any difficulty on the couple of past occasions when he had traversed it proceeding southbound on Soule Road (i.e., from the opposite direction). Mr. Gribneau was familiar with the intersection and had crossed it about 20 times in the past. Although he said that a large building (i.e., the Old Grange Hall) made it hard to see there, he never had an accident.
The Barcomb Vehicle was proceeding northbound on Soule Road as it approached the intersection with Route 274. The intersection on Soule Road was controlled both by a two-way stop sign, as well as a white pavement stop bar. Mr. Barcomb said that he came to a full stop at the stop bar and looked both ways several times (Ex. 14, pp. 22-23, 26, 49-50). When he looked to his left (i.e., to the west), however, the only thing he remembered seeing was "a huge building in the way" (i.e., the Old Grange Hall), which obstructed his vision in that direction (Ex. 14, pp. 23-24, 50-53). He said that the Old Grange Hall was right next to the intersection and that he did not think there was any shoulder between the roadway and the building.
Mr. Barcomb pulled forward a short distance, 10 feet or less, so that the Old Grange Hall no longer blocked his view (Ex. 14, pp. 53-54, 58). He said that he then could see to his left (i.e., to the west) perhaps 50 feet down Route 274, noting "I could see if there was lights coming, I would have been able to see them. I didn't see any lights" (Ex. 14, p. 67). Instead, he saw only darkness and so, without coming to a second complete stop, he proceeded through the intersection at about 20 miles per hour (hereinafter, "mph") (Ex. 14, pp. 52-55, 58-63). When his vehicle was partway across, Mr. Barcomb said the driver's-side back door and rear tire area of his truck was hit, without warning, by another vehicle. The other vehicle was a pickup truck driven by Brandon Razzano, who was traveling eastbound on Route 274 (hereinafter, the "Razzano Vehicle"). Mr. Norman agreed that the front bumper of the Razzano Vehicle struck the rear driver's-side quarter panel of the Barcomb Vehicle, with the point of impact just slightly north and east of the center line of the intersection. Mr. Obernesser said that, based on the skid marks, it appeared that the Razzano Vehicle was two to three feet over the center line of Route 274 (see Ex. 15).
Mr. Barcomb first agreed that he came to a second complete stop, but then testified that, in reality, it was a rolling stop.
Mr. Barcomb never saw the Razzano Vehicle prior to impact. He saw no lights, heard no horn, and did not recall hearing any breaking sounds from the other vehicle (Ex. 14, pp. 55, 59-60). Mr. Gribneau, likewise, did not remember seeing the Razzano Vehicle before the crash, but related that, when the Barcomb Vehicle pulled into the intersection, "[t]here was a flash of light and we were struck" (Ex. M, pp. 18-20; see p. 61). Ms. Barcomb, by contrast, stated that her husband had told her that both he and Mr. Gribneau "looked both ways … They both said it was clear and proceeded into the intersection. By the time they saw the headlights of the oncoming vehicle it was too late. He hit the gas to try and get out of the way, but it was too late" (Ex. N, p. 22). Ms. Barcomb has no independent recollection of the accident (Ex. N, p. 14; Ex. O, p.54).
Mr. Barcomb and Mr. Gribneau were wearing seatbelts at the time of the accident. Ms. Barcomb and Ms. Gribneau were not, although there were belts in working order for their rear seats (Ex. M, p. 62; Ex. N, pp. 20-21; Ex. O, pp. 14-15). Mr. Gribneau's only injury was a small scratch on his left side. Mr. Barcomb reported a severe concussion and lacerations from his seatbelt. Ms. Gribneau died from injuries sustained in the accident. Ms. Barcomb was ejected from the truck, discovered in a field some 50-80 feet away, and suffered extensive injuries.
Mr. Barcomb consumed marijuana twice in the hours before the accident. The first time was on the afternoon of August 2, 2008 in Oneida, New York, when he smoked a joint with a friend during a stopover on his way to Syracuse from Utica (Ex. 14, pp. 28-32). The second time was about 45 to 60 minutes prior to the accident, when he took two puffs on a marijuana pipe that Mr. Gribneau had filled and lit, while they were driving on the return journey home, somewhere between Verona and Rome, New York (Ex.14, pp. 31-32, 48, 63-64; Ex. M, pp. 25, 27, 53). Mr. Gribneau also smoked from the marijuana pipe (Ex. 14, p. 64; Ex. M, p. 25). Mr. Barcomb became a "little bit" high as a result, although he denied being high at the time of the accident, stating "I wouldn't consider it high" (Ex. 14, p. 47; see pp. 33, 66). Asked if he had a "buzz on," Mr. Barcomb responded, "[a]ctually, I was really tired" (Ex. 14, p. 48). Mr. Gribneau, similarly, did not believe that either man was under the influence of marijuana at the time of the accident (Ex. M, pp. 53-54). As a result of the accident, however, Mr. Barcomb subsequently pleaded guilty to a felony, criminally negligent homicide, and a misdemeanor, driving while intoxicated, in Oneida County Court on August 17, 2010, and was sentenced to five years probation (Ex. 14, pp. 33-34, 66-67; Ex. J [Record of Conviction]). At the sentencing, Oneida County Court Judge Barry M. Donalty said "[t]here's no question in my mind that [Mr. Barcomb's] use of marijuana in some small way at least contributed to the accident" (Ex. Q, p. 3 [Sentencing Minutes]).
TWO SIGHT DISTANCE OBSTRUCTIONS AT STEUBEN CORNERS
The parties agreed that the Old Grange Hall obstructed drivers' sight distance at the southwest corner of the intersection. In August 1989, the Town of Steuben wrote to DOT with complaints about the intersection (Ex. 1). In response, a DOT study concluded in October 1989 that "[t]his location is one of those where the sight distance is so poor that everyone is extremely cautious" (Ex. 3). Mr. Obernesser thought that assessment was "spot on" (Tr., p. 183). Mr. Palmer agreed that the Old Grange Hall, which was still standing during his site visits soon after the accident, restricted the sight line distance at that corner (Ex. 12, p. 10). Mr. Maggiolino, commenting on a December 2004 investigation, said that "it was obvious that if you really wanted to improve the sight distance to the intersection, the [Old Grange Hall] should be removed" (Ex. 11, p. 14). Mr. Norman thought that the Old Grange Hall created sight distance restrictions for drivers on Soule Road, as well as Route 274 (Tr., p. 102).
The parties further agreed that there was a grade issue, a dip in the roadway, on Route 274, west of the intersection at Steuben Corners (Ex. 12, pp. 17-18; Tr., p. 146 [Mr. Palmer]; Tr., p. 101 [Mr. Norman]). Mr. Norman said that the dip on Route 274 created a sight distance issue both for drivers going northbound on Soule Road and for drivers going eastbound on Route 274 (Tr., p. 101). For a vehicle on Soule Road, he said that, at some point, the vehicle on Route 274 would become partially or totally obscured from sight as it traveled through the dip (Tr., p. 101). As for the vehicle on Route 274, Mr. Norman said that the driver would not have a clear view of the entire intersection as he/she went through the dip (Tr., p. 101).
In Mr. Obernesser's opinion, neither the Old Grange Hall, individually, nor in combination with the dip in Route 274, constituted a dangerous intersection based upon the accident history (Tr., pp. 198, 203-204). While the Old Grange Hall obstructed the sight line of drivers headed northbound on Soule Road, Mr. Obernesser opined that, based upon his field observations and measurements, adequate sight distance existed for a reasonably prudent driver who pulled forward until it was possible to see around the Old Grange Hall, to the west, and, thus, the obstruction was not an appreciable or proximate cause of this accident (Tr., pp. 174-175, 199). He further noted that Mr. Barcomb said that he pulled forward so that he had a clear view of Route 274 to the west. Thus, "the building was not in play anymore" (Tr., p. 184).FACTORS DOT USES TO ASSESS SIGHT DISTANCE OBSTRUCTIONS
The cumulative testimony of the State employees was in broad agreement concerning the factors DOT considers in determining whether or not, and if so how, to address sight distance obstructions.
The first, and most significant, factor is any accident history at the location that is attributable to the obstruction, with the most recent three-year period typically most scrutinized, although longer periods might be reviewed at an intersection where traffic volume is very low and accidents are few (Ex. 9, p. 16 [Mr. Papaleo]; Ex. 11, pp. 10, 13 [Mr. Maggiolino]; Ex. 12, pp. 16-17 [Mr. Palmer]). Mr. Norman agreed (Tr., p. 98). For that very reason, Mr. Palmer said that a longer period was examined in this instance (Tr., p. 137; Ex. 12, p. 26).
In addition, DOT typically compares the accident history at a given intersection against the Statewide average for similar types of intersections based upon: traffic volume; nature of the accident; terrain; curvature, grade, or geometry, of the roadway; and other conditions, in assessing ways to alleviate or reduce the potential for accidents (Ex. 8, p. 12 [Mr. Williams]; Ex. 10, p. 19 [Mr. White]; Ex. 12, pp. 17, 28 [Mr. Palmer]). Mr. Palmer explained that a DOT computer program in Albany evaluates Statewide accident records to generate a list of "high accident locations" (or, "HALs"), but that the intersection at Steuben Corners was not on the list, apparently because the history of personal injuries or fatalities there was insufficient for designation as a HAL (Tr., pp. 140-145, 152; see Ex. A [Mr. Palmer's Investigation Report, dated September 5, 2008: "No HALs found for this location"]; Tr., pp. 188-190 [Mr. Obernesser provided a similar explanation for how HALs are generated]).
After accident history, DOT also considers sight distance, severity of the obstruction, roadway signage, complaints from elected officials and the public, and, to some extent, cost of remediation. Mr. Papaleo agreed that an obstruction could be so dangerous as to require its elimination, even in the absence of sufficient accident history (Ex. 9, pp. 16-17), although Mr. Maggiolino could not recall such an instance when severity of the condition outweighed accident history (Ex. 11, p. 13).ACCIDENT HISTORY AT STEUBEN CORNERS
The October 1989 DOT review found no history of accidents at the intersection (Ex. 3). A December 2004 DOT review revealed two accidents there during the preceding three years; one was "non-reportable" as it involved damage less than $1,000; and the second was attributable to driver error in that the operator failed to yield the right of way (Ex. 4).
The Court concludes that an October 2001 DOT study of speed limits on North Steuben Road and Latleiman Road is not relevant because it concerned a portion of Soule Road north of Route 274, and thus, does not relate to the southwest corner of the intersection which is implicated in these Claims (see Ex. B, unnumbered p. 3-14; see also Ex.10, pp. 21-22).
The intersection at Steuben Corners never came to Mr. Palmer's attention prior to the accident, although he visited it two or three times after the accident, the first time on September 5, 2008, about one month after the accident (Tr., pp. 139-140). He also reviewed a compilation of reports of six accidents at the intersection dating to 1993 (not including the subject accident), only three of which involved the same traffic configuration as in these Claims, namely a northbound vehicle on Soule Road and an eastbound vehicle on Route 274 so that the driver on Soule Road would have been looking at the Old Grange Hall prior to his/her attempt to cross Route 274 (see Tr., pp. 83, 136; Ex. 6).
The first was in 1993 and Mr. Palmer agreed that the 1993 accident might have involved a sight distance issue (Ex. 12, pp. 29-32). The 1993 accident took place at 6:00 p.m. on a July afternoon so that the driver stopped on Soule Road noted poor visibility owing, not only to the Old Grange Hall, but also to "a bright sun glare" (Ex. 6, unnumbered p. 1).
The next incident was a near miss that occurred one morning in July 2006 (Ex. 6, unnumbered p. 4). In that instance, the driver of the vehicle on Route 274 swerved to avoid a collision and ran into a ditch. The driver of the vehicle on Soule Road failed to yield the right of way and stated that "the building at the corner" (i.e., the Old Grange Hall) obstructed his view.
There was some confusion about the location where this accident occurred because the report refers to County Route 74, even though Soule Road is designated as County Route 53 at Steuben Corners (see Ex.12, pp. 34-35). However, the report also clearly states that the accident occurred in Oneida County, Town of Steuben, at the intersection of Route 274 and Soule Road (see Ex. 6, unnumbered p. 4). The Court further takes judicial notice of several maps available on the internet which indicate that Soule Road is variously designated as County Route 53 and County Route 74 at different locations in that area (see also Ex. I [map filed with 2008 Oneida County Clerk's record of transfer of property including the Old Grange Hall] refers to Soule Road as "County Route #74").
The third accident took place at 11:16 a.m. on June 19, 2008, about six weeks before Claimants' accident, in which the driver on Soule Road reported that "her view was obstructed by a large building" (i.e., the Old Grange Hall [Ex. 6, unnumbered p. 6]). Mr. Palmer thought that the foregoing history constituted "a very low volume and very low number of accidents" (Ex. 12, p. 38). Mr. Obernesser stated that, based upon the accident history at the intersection, it would not have been listed as a HAL (Tr., p. 188).SIGHT DISTANCE
Mr. Palmer explained that adequate sight distance is the distance at which one vehicle must be visible to a second vehicle at a crossroad so that the second vehicle can determine if it is safe to traverse the intersection. An equation is used to calculate, for any given highway speed, the sight distance required (Ex. 12, pp. 18-19).
With respect to the 1989 study, Mr. Williams said that such investigations typically would include sight distances measurements (Ex. 8, p. 11). Mr. Norman was asked to assume that DOT prepared a map on October 3, 1989, based upon its site visit, which indicated that the sight distance for drivers traveling northbound on Soule Road at its intersection with Route 274, looking to the west, was 150 feet, while the sight distance looking to the east was 1,000 feet (Tr., p. 96; see Ex. 2). Mr. Obernesser agreed that, if the sight distance to the west was only 150 feet, that would change his conclusions about where vehicles may have been located, and how much time would be needed in order for them to take certain actions (Tr., p. 205). In that case, a vehicle traveling at 55 mph on Route 274 would cover 150 feet in just under 2 seconds (Tr., p. 205). Mr. Obernesser noted, and Claimant's counsel agreed, however, that it is not clear from the map where the measurement was taken, and specifically whether or not it was taken at the stop bar on Soule Road (Tr., pp. 201, 205; see Ex. 2).
The Court, independently, was able to confirm a number of Mr. Obernesser's calculations, which will be cited in footnotes. In this instance, for example, 150 feet /80.67 feet per second ([55 mph X 5,280 feet/mile =] 290,400 feet per hour / 3,600 seconds per hour [60 minutes per hour X 60 seconds per minute] = 80.67 feet per second) =1.9 seconds.
On cross-examination, Mr. Norman agreed that the driver of the Razzano Vehicle stated that he was driving at 55 mph, the posted speed limit on Route 274. Claimants did not dispute that the intersection/advisory speed sign is located about 600 feet (0.12 miles) before the intersection and Mr. Norman calculated that a vehicle traveling at 55 mph would need approximately 10 seconds in order to come to a stop in 600 feet (Tr., pp. 117-119, 130-131). Mr. Norman further said that the dip in Route 274 was closer to the intersection (i.e., to the east of the sign), with the crest of the dip being 125 feet from the center of the intersection (Tr., pp. 119-120, 130-131).
In fact, by the Court's calculation, Mr. Norman overstated the required stopping time by 2.6 seconds (i.e., 600 feet / 80.67 feet per second= 7.4 seconds).
As noted, Mr. Norman did not make his own measurements when he visited the intersection, and he did not identify where he obtained the 125 feet figure, other than from "pictures and the information from the Sheriff's people … [and] the mountain of paper [he] read" (Tr., pp. 119-120). The Court notes that a vehicle traveling at 55 mph would cover that distance in 1.5 seconds (i.e., 125 feet /80.67 feet per second = 1.5 seconds).
Mr. Palmer said that the dip on Route 274 was measured during his site visits (Ex. 12, p. 18). He agreed that if a vehicle on Route 274 was in the dip, then a vehicle on Soule Road "probably would not see the headlights" (Ex. 12, pp. 41-42). He also stated, however, that a vehicle at the crest of the roadway as it came out of that dip was "almost at the proper sight distance" for a vehicle traveling Route 274 at 55 mph (Ex. 12, p. 18). He thought, but was not certain, that he made the sight distance calculation for the intersection at Steuben Corners (Ex. 12, p. 19). Mr. Palmer reckoned that a vehicle traveling on Route 274 at the crest of the dip would have been visible to a northbound vehicle at the intersection on Soule Road, but such visibility would have been short of the proper sight distance by less than 100 feet, the equivalent of a couple of car lengths. He did not think that difference was significant, although he acknowledged it was a judgment call (Ex. 12, pp. 19-20).
During Mr. Obernesser's site visit to Steuben Corners just before the trial, he verified that the driver of a vehicle on Soule Road could see past the Old Grange Hall if he or she pulled forward to the fog line on Route 274 (Tr., p. 159). He took measurements using two pickup trucks that approximated the size and dimensions of the Barcomb Vehicle and the Razzano Vehicle, respectively (Tr., p. 160). He visited the site during the daytime (Tr., p. 218). Measurements for the truck on Soule Road were taken at a distance of eight feet behind the front bumper (where the driver sat) and at a height of five feet above the ground in order to approximate the height of the driver's eye and, thus, his or her line of sight (Tr., p. 159). He also noted that, because the driver of a pickup truck sits higher than the driver of a sedan, his or her sight distance at the intersection is superior to that of the driver of a sedan (Tr., pp. 196-197). In order to account for the, by then, demolished Old Grange Hall, stakes were placed in the ground to denote the front corners of the building, roughly parallel to Route 274 (Tr., p. 159). While not a solid building like the Old Grange Hall, Mr. Obernesser believed it was a fair representation, explaining that the driver could confirm that his/her eyes were looking only in the area in front of the stakes (i.e., beyond where the front of the Old Grange Hall would have been), and the field measurements largely confirmed the results Mr. Obernesser obtained by plotting the building on the highway record plan (Tr., pp. 163-164, 219-220).
Mr. Obernesser said that the eye height of his driver actually was in excess of five feet, but the lower figure of five feet was chosen because Mr. Obernesser did not know Mr. Barcomb's height (Tr., p. 159).
Mr. Obernesser said that the eye height for the driver of a sedan is 42 inches, or 18 inches lower than for the driver of a pickup truck (Tr., p. 197).
Mr. Obernesser determined that, if a pickup truck pulled forward on Soule Road so that its front bumper was at the fog line of Route 274, a driver sitting eight feet behind the bumper could see around the Old Grange Hall (as Mr. Barcomb said he did), and observe the oncoming headlights of a pickup truck proceeding eastbound on Route 274 (which were measured to be about three feet above the ground) at a distance of 310 feet (Tr., pp. 159-161, 166, 220).
Likewise, the headlights of a pickup truck are higher than those on a sedan, which are positioned at 30 inches, or six inches lower than on a pickup truck (Tr., p. 197).
During the site visit, Mr. Obernesser also measured the crown of the rise in Route 274 (Tr., p. 161). He consulted the work history for the State highway to confirm that the roadway never has been rebuilt since it was completed in 1922. Thus, he believed that measurements contained in the "as-built" plans, as well as the notations of the vertical curvature and elevations of the roadway it contains, remain valid for Route 274. Using those plans, Mr. Obernesser calculated that a pickup truck at the stop bar on Soule Road would be able to see the headlights of a pickup truck at the crest of Route 274 at a distance of 472 feet (Tr., pp. 161-164). Field measurements yielded a substantially similar result, approximately 470-480 feet (Tr., p. 163). Relying upon the conclusion in the Sheriff's report that the Razzano Vehicle was traveling at 55.2 mph, or approximately 81 feet per second, Mr. Obernesser determined that it would have taken 5.85 seconds from the time the Razzano Vehicle crested the hill on Route 274, until it reached the intersection (Tr., pp. 162-164; see Ex. G, p. 2 [Sheriff's report]).
(i.e., 472 feet/80.67 feet per second = 5.85 seconds).
At trial, Mr. Obernesser also explained that DOT maintains photo logs for every State highway in order to assist the work of its engineers (Tr., pp. 171-172). Every two or three years, a DOT van travels each road, taking 100 photographs per mile (Tr., pp. 171-172). Mr. Obernesser reviewed the DOT photo log for Route 274 eastbound as it approaches the intersection with Soule Road (Tr., p. 172; see Ex. D). He said that the intersection/advisory speed sign is visible at a point where Route 274 is rising at a 5.5% grade, about 100 feet from the crest of the hill (Tr., p. 173). Mr. Obernesser said that the headlights of an eastbound vehicle would become visible to a vehicle at the intersection at a point just beyond the sign, nearer to the crest in the hill and to the intersection (Tr., p. 173; see Ex. D, unnumbered p. 3). The Court notes that the pictures in the photo log clearly show that an eastbound driver on Route 274 approaches and descends into a dip, then climbs back out of that dip, with the crest of the hill situated just beyond the intersection/advisory speed sign, and then proceeds to the intersection with Soule Road without encountering any further depressions in the roadway of Route 274 (see Ex. D).
Mr. Obernesser also stood at the side of the road and observed seven vehicles come to a complete halt at the stop bar on Soule Road (with the Old Grange Hall no longer standing) before crossing Route 274, and each of them completely cleared the intersection in under four seconds (Tr., pp. 164-165).
Mr. Obernesser noted that Mr. Barcomb said that he saw nothing when he looked to his left (i.e., west) before starting across the intersection, and that the Barcomb Vehicle was traveling at about 20 mph when it was hit, which, assuming a linear acceleration from a complete stop, Mr. Obernesser said would mean an average speed of 10 mph, or about 14.7 feet per second. That being the case, Mr. Obernesser calculated that, starting from the fog line on Route 274, the Barcomb Vehicle should have been able to clear the intersection "in something under three seconds," in line with Mr. Obernesser's actual observation of vehicles clearing the intersection from a complete halt from almost 10 feet farther back, at the stop bar, in less than four seconds (Tr., pp. 165-166). In fact, however, and as noted above, the Barcomb Vehicle was only a little more than halfway across Route 274 when it was struck by the Razzano Vehicle. At the fog line, where the sight distance was 310 feet, the Barcomb Vehicle should have had enough time to clear the intersection. Mr. Obernesser explained that, at that distance, a vehicle traveling at 55 mph would need 3.84 seconds to reach the point of impact (Tr., p. 166). SEVERITY
(i.e., [10 mph X 5,280 feet per mile = ] 52,800 feet per hour / 3,600 seconds per hour [60 minutes per hour X 60 seconds per minute] = 14.7 feet per second). The Court further notes, however, that Mr. Barcomb stated that he did not come to a complete stop at the fog line, but rather, only came to a rolling stop and then proceeded across the intersection at 20 mph when he did not see any oncoming headlights. Thus, his actual average speed may have been faster than the 14.7 feet per second calculated by Mr. Obernesser.
By that calculation, the width of the intersection would be a little less than 44.1 feet (i.e., 14.7 feet per second X 3 seconds = 44.1 feet). That figure comports with the map that is included in Exhibit I, which states that Route 274 is 49.5 feet wide, but which also includes within the highway boundary portions of the ROW that are beyond the edge of the roadway pavement. But see Exhibit G [Oneida County Sheriff's Office Supplementary/Investigative Report], unnumbered p. 3 [map of intersection], which indicates that the roadway of Route 274 is only between 20-24 feet wide. In that case, traveling at 14.7 feet per second, it would have taken the Barcomb Vehicle less than two seconds to travel across the intersection.
(i.e., 310 feet/80.67 feet per second = 3.84 seconds).
Mr. Norman opined that the sight distance restrictions posed by the Old Grange Hall created a dangerous condition both for northbound vehicles on Soule Road attempting to cross the intersection, as well as for eastbound vehicles on Route 274 that were approaching the intersection from the west (Tr., pp. 102, 106-107). He also opined that the dip on Route 274, likewise, created a dangerous condition for vehicles both on Soule Road and Route 274 (Tr., pp. 103, 112). In fact, it was Mr. Norman's opinion that the existence of the Old Grange Hall and the dip in Route 274, in combination, exacerbated the severity posed by either dangerous condition separately (Tr., pp. 107-108).
Asked if it was his opinion that the history of seven accidents at the intersection over a 15 year period represented a significant accident history, Mr. Norman said that even one bad accident was significant owing to the severity of the dangerous condition posed by the Old Grange Hall and the dip in Route 274 (Tr., pp. 99, 130, 132). Mr. Norman opined that the State needed to remediate the dangers created both by the Old Grange Hall and the dip in Route 274, first and foremost, by removing the Old Grange Hall, and, second, by attempting to level the dip in the State highway (Tr., pp. 107-108). He said that none of the studies by the State that he reviewed considered the severity of the condition at the intersection, including the dip in Route 274 (Tr., p. 133). Mr. Obernesser agreed that the 1989 and 2004 DOT letters (see Ex. 3; Ex. 4) only discuss the accident history and do not address the severity of the condition at the intersection. He disagreed, however, that the Old Grange Hall and the dip in Route 274 were so severe as to constitute dangerous conditions because there was insufficient history of accidents at the intersection to require action by the State (Tr., p. 203).DOT DID NOT REMOVE THE OLD GRANGE HALL
As noted below, however, the reports do discuss the sight line restriction posed by the Old Grange Hall.
In 1989, the Town of Steuben indicated that the Old Grange Hall appeared to be within the right-of-way (hereinafter, "ROW") of both Route 274 and Soule Road (Ex. 1). Mr. White, however, thought that the building was only partly within the ROW. Exhibit I appears to confirm that view. Mr. White further explained that the only way the State could have removed the Old Grange Hall was if it was funded and undertaken as part of a DOT capital project to redesign/reconstruct the intersection. It would not occur in conjunction with more routine work, like resurfacing the roadway pavement (Ex. 10, pp. 13-14, 22-24). Mr. Palmer, likewise, testified that the Old Grange Hall was not under DOT's control so that it would not have been normal procedure for DOT to remove it (Tr., p. 138). As far as he knew, no consideration was given to doing so during his tenure at DOT and, in any event, he did not know if it would have been "a viable option" (Ex. 12, pp. 26-27, 38). Mr. Norman said that he was unfamiliar with DOT's capital acquisition process (Tr., p. 121).
In 1989, DOT did indicate to the Town of Steuben that it gladly would issue a permit to another municipality, should one wish to remove the Old Grange Hall (Ex. 3). Mr. Obernesser agreed that, in 2008, the Town did obtain title from a private party (not the State) and became the record owner of the property about six weeks before the accident (Tr., pp. 183-184; see Ex. I [parcel transferred in June 2008]). Mr. Obernesser believed that the Town intended to contract to have the building removed (Tr., p. 184).
Mr. Norman did not review the title records and did not know the identity of the title owner of the Old Grange Hall, as well as the land upon which it stood, at the time of the accident (Tr., p. 121). He agreed that his opinion would change as to whether the State should have removed the Old Grange Hall, if those records showed that the State never possessed title to the building and that the Town acquired ownership earlier in 2008, before the accident, from a private party (Tr., pp. 121-122). Nevertheless, Mr. Norman later appeared to opine that the State's interest in the ROW was sufficient to require that it act concerning the Old Grange Hall (Tr., pp. 122-123, 132).
Given the low traffic volume and low number of accidents at the intersection, however, Mr. Obernesser opined that DOT was not obliged to undertake a capital project to remove the Old Grange Hall (Tr., p. 192).
DOT DID NOT LEVEL THE DIP IN ROUTE 274
With respect to reconfiguring Route 274 to alleviate the dip, Mr. Norman said that he did some work with the cities of Oswego and Syracuse within the past 20 years and estimated that the necessary leveling and repaving could be done for about $20,000 (Tr., p. 120). Mr. Norman and Mr. Obernesser each agreed, however, that any such excavation and leveling of the dip in Route 274 would be undertaken only as part of a DOT capital project (Tr., pp. 121 [Mr. Norman], 180 [Mr. Obernesser]). While Mr. Norman was unfamiliar with DOT's capital project allocation process, Mr. Obernesser explained that a detailed review would be required in order to establish the scope of any such project, as well as design reports and environmental reviews to justify the project, and analyses of the accident history and traffic volume at the site, before DOT could decide to pursue such a project (Tr., pp. 121, 180). Mr. Obernesser noted that Route 274 is a "very, very low volume roadway," traveled by some 500 cars per day, making it unlikely that a capital project would be undertaken to level the dip, given the competing demands on the State to fund projects at higher volume, and higher accident, locations (Tr., pp. 181). In fact, Mr. Obernesser said that, since Route 274 was built in 1922, it has been the subject of only one capital project, in 1964. All other work done there has been of a more routine nature. Mr. Obernesser further opined that those determinations reflected a reasonable allocation of limited financial resources by DOT (Tr., pp. 181, 191-192; see Ex. A, unnumbered p. 10; Ex. H). Given the low traffic volume and low number of accidents at the intersection, Mr. Obernesser opined that DOT was not obliged to level the dip in Route 274 (Tr., p. 192).
ROADWAY SIGNAGE DOT's October 1989 field review found that all necessary signs were in place and that there was good sight distance to the stop signs on Soule Road, although DOT did recommend that a "speed plate" be added to the existing warning sign on eastbound Route 274 (Ex. 3). Mr. Williams said that one could assume from the lack of an accident history and the warning signs, that "the mitigating factors at this intersection [were] effective" (Ex. 8, pp. 13-14).
In December 2004, Mr. White and Mr. Maggiolino visited the intersection at Steuben Corners after complaints were forwarded by an Oneida County Legislator (Ex. 4; Ex. 10, p. 7). They drove through the intersection from all four directions in order to determine if the existing traffic control devices (i.e., stop signs) were appropriate in light of the Old Grange Hall's location (Ex. 10, pp. 7-9, 11-12; Ex. 11, p. 8). That field study again found all necessary signs in place, including "STOP AHEAD" warning signs, with good sight distance to the stop signs on the Soule Road approaches (Ex. 4). Moreover, DOT noted that intersection warning signs with 25 mph advisory speed limits were posted on the Route 274 approaches to the intersection (Ex. 4).
The only problem identified in 2004 was that trucks parked in front of the Town of Steuben's garage blocked the view of the stop sign for drivers on Soule Road approaching the intersection from the south (Ex. 4). DOT's typical remedy of adding a second stop sign on the left side of Soule Road was not possible in this instance because of the proximity of the Old Grange Hall. Thus, DOT suggested, instead, that the Town consider not parking large vehicles in front of the garage, especially at night (Ex. 4). In any event, in this accident, Mr. Barcomb saw and complied with the stop sign.
DOT concluded in 2004 that the history of two recorded accidents at the intersection during the preceding three years did not support changing the existing two-way traffic control at the intersection (Ex. 4). In fact, as far as Mr. Palmer knew, during his tenure at DOT, no consideration was given to placing other traffic control devices at the intersection at Steuben Corners (Ex. 12, pp. 26-27). Moreover, he thought the accident history he reviewed after the collision constituted "a very small number of accidents to consider changing from a stop sign" such that even a four-way traffic control device probably would not have been recommended given that, "in all the history that I know of State highways and placing stop signs on the State highway, again, it's a very low volume and very low number of accidents" (Ex. 12, pp. 37-38). Similarly, Mr. White said that DOT always looks to see if safety can be enhanced, but changes typically are incremental, so that a significant accident history would be required before moving from stop signs to any type of signal, such as two-way flashers, or a three-way signal (Ex. 10, pp. 12-13).
Mr. Obernesser noted several indications that an intersection was ahead for a motorist traveling eastbound on Route 274, including: the intersection warning sign placed by DOT; the 25 mph advisory speed limit also placed by DOT below the intersection sign; and a single light pole at the edge of the roadway, which he said is a common indicator of an intersection in that rural area (Tr., pp. 168-170). Mr. Obernesser stated that the advisory speed sign served to emphasize that drivers needed to be careful as they approached the intersection (Tr., p. 171).
Mr. Norman noted that the advisory speed sign was not a mandatory speed limit, and that the particular sign in question did not advise drivers as to the specific danger to be encountered ahead (Tr., pp. 105-106; p. 150 [Mr. Palmer agreed]). If the State was not going to remove the Old Grange Hall and level the dip in the State highway, Mr. Norman said that more robust signage was required, and that the State did not meet the standard of care imposed on it, and deviated from usual and customary practice, by failing to consider the placement of a four-way stop sign at the intersection (Tr., pp. 107-110). Mr. Obernesser disagreed. Given the low traffic volume and low number of accidents at the intersection, he opined that DOT was not obligated to remove the Old Grange Hall, undertake a capital project, level the dip in Route 274, reduce the speed limit in the area, or install a four-way stop sign (Tr., p. 192).
Mr. Norman further opined that neither the stop signs on Soule Road, nor the 25 mph advisory speed sign on Route 274, ameliorated the dangerous conditions posed by the Old Grange Hall and the dip in the State highway (Tr., pp. 104-106). Mr. Palmer agreed that the stop signs at the intersection did not remedy or ameliorate the sight distance problem at the intersection (Tr., p. 148). Mr. Norman opined that the State's failure to take remedial action at the intersection was a substantial factor in causing the accident that is the subject of these Claims (Tr., p. 110).
Mr. Obernesser agreed that, if there had been a four-way stop sign or a traffic light at the intersection, and if both drivers had obeyed those traffic control devices, the accident probably would not have happened (Tr., p. 215). He also noted, however, that four-way stop signs are "very, very rare" on the New York State highway system such that he could not think of a single instance in Oneida County where the intersection of a State highway and a county route is controlled by a four-way stop sign (Tr., p. 193).
OTHER FACTORS
In addition, Mr. Obernesser agreed that various other factors can contribute to the cause of an accident, including: weather; animals; and environment, none of which he believed were factors in this accident (Tr., p. 173). Speed is always a consideration, but Mr. Obernesser opined that speed was not a factor in this instance because the Razzano Vehicle was traveling at about the speed limit (Tr., pp. 173-174).
Finally, Mr. Obernesser said that human error can be a factor and thought that Mr. Barcomb's guilty plea to the charge of criminally negligent homicide was indicative of human error in this case (Tr., p. 175). Again, based upon his measurements, Mr. Obernesser stated that, if Mr. Barcomb had looked to his left after he pulled forward past the Old Grange Hall to the fog line, as he said he did, he would have seen the headlights of the oncoming Razzano Vehicle, which would have been visible for between three and six seconds before it reached the intersection (Tr., pp. 176-178).
LAW
The State of New York has an absolute, nondelegable duty to those using its roadways to design, construct, and maintain them in a reasonably safe condition, taking into account such factors as existing traffic conditions, terrain and physical practicality (Friedman v State of New York, 67 NY2d 271, 283 [1986]; Gutelle v City of New York, 55 NY2d 794[1981]; Weiss v Fote, 7 NY2d 579, 584 [1960]), which includes DOT's "duty to install, operate and maintain traffic control devices at the intersections of State highways" (Wood v State of New York, 112 AD2d 612, 614 [3d Dept 1985]; Daub v State of New York, 17 Misc 3d 1121[A], *3 [Ct Cl 2007]; Vehicle and Traffic Law [hereinafter, "VTL"] § 1681). The State, however, is not an insurer of the safety of its roadways and the mere occurrence of an accident does not create liability (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]). Claimants have the burden of establishing that the State was negligent and that its negligence was a substantial factor in causing Claimants' accident and injuries (see Kampff v Ulster Sanitation, 280 AD2d 797 [3d Dept 2001]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, supra; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
"Where the facts proven show that there are several possible causes of an injury, for one or more of which [Defendant] was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, [Claimants] cannot have a recovery since [they] failed to prove that the negligence of [the State] caused the injury" (Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; see Bernstein v City of New York, 69 NY2d 1020, 1021 [1987]).
Moreover, where the alleged negligence arises out of the State's study of a traffic condition that requires expert judgment or the exercise of discretion, it is entitled to a qualified immunity from liability unless the proof establishes that the decision evolved without adequate study, was plainly inadequate or there was no reasonable basis for the plan (see Affleck v Buckley, 96 NY2d 553, 556 [2001]; Friedman v State of New York, supra at 283-284; Alexander v Eldred, 63 NY2d 460, 466 [1984]; Weiss v Fote, supra at 586, 589).
It is Defendant's burden to establish that the qualified immunity defense applies (Evans v State of New York, 130 AD3d 1352, 1354 [3d Dept 2015], lv denied 26 NY3d 910 [2015]). "There are 'strong policy considerations' behind this doctrine, and it should therefore not be 'lightly discounted' " (Smith v State of New York, 191 Misc 2d 553, 567 [Ct Cl 2002], quoting Friedman v State of New York, supra at 285). In order to successfully challenge such decisions "something more than a mere choice between conflicting opinions of experts is required" (Weiss v Fote, supra at 588). "This rule enunciated in Weiss requires proof beyond that necessary to establish ordinary negligence … to place liability on the State for a decision by a planning body[. T]he Court of Appeals in Weiss required proof, not only that a reasonable [person] would have acted otherwise, but that the State used no reason at all" (Matter of Hall v State of New York, 106 Misc 2d 860, 862-863 [Ct Cl 1981]; see Affleck v Buckley, supra at 557). It applies whenever a governmental planning body "has entertained and passed on the very same question of risk as would ordinarily go to the jury'" (Weiss v Fote, supra at 588; see Turturro v City of New York, 77 AD3d 732, 735 [2d Dept 2010]).
VTL § 1172 (a) requires a driver approaching a stop sign to stop at a clearly marked stop line, or at the point nearest the intersecting roadway where such driver has a view of the approaching traffic, before proceeding into the intersection, and is "required to continue to exercise care and 'to see what by the proper use of [his or] her senses [he or] she might have seen' " (Olsen v Baker, 112 AD2d 510, 511 [3d Dept 1985], appeal denied 66 NY2d 604 [1985], quoting Weigand v United Traction Co., 221 NY 39, 42 [1917]). "A driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic is in violation of [VTL] § 1142 (a) and is negligent as a matter of law … [Such] driver is required to see that which through [the] proper use of [his or her] senses [he or she] should have seen … and a driver who has the right-of-way is entitled to anticipate that the other motorist will obey the traffic law requiring him or her to yield" (Gergis v Miccio, 39 AD3d 468, 468 [2d Dept 2007] [internal quotation marks and citations omitted]).
A person is guilty of criminally negligent homicide when, with criminal negligence, he or she causes the death of another person (Penal Law § 125.10). A person acts with criminal negligence when that person engages in conduct which creates or contributes to a substantial and unjustifiable risk that a result will occur or a circumstance defined by statute exists, and when that person fails to perceive that risk in a situation where the offender has a legal duty of awareness and, such failure to perceive the risk constitutes a gross deviation from the standard that a reasonable person would observe in the situation (Penal Law § 125.00, Hon. William C. Donnino, Practice Commentary: Criminally Negligent Homicide; see Penal Law § 15.05 [4]). Moreover, no person shall operate a motor vehicle while his or her ability to drive is impaired by drugs (VTL §§ 114-a, 1192 [4]; Public Health Law § 3306 [Schedule I], [d], [13] [marijuana]). DISCUSSION
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the State is immune from liability in these Claims under the doctrine of qualified immunity. It further finds that, even if the doctrine did not apply, Claimants failed to meet their respective burdens, and did not establish, by a preponderance of the credible evidence, that the State was negligent in connection with these Claims. Witness Credibility
Each of the three witnesses who testified at trial provided generally sincere and forthright testimony. The two experts were knowledgeable, although they were not equally persuasive. The Court found the testimony of Mr. Obernesser to be more persuasive and worthy of credit than that of Mr. Norman. The Court found Mr. Obernesser's testimony to be comprehensive, supported by thorough calculations (which the Court was able to replicate and verify), and which he explained in detail. Mr. Norman's testimony, by contrast, was less detailed. He did not make any of his own calculations and was not always able to explain, to the Court's satisfaction, some of the figures upon which he relied. In a few instances, his testimony was muddled.
The Court was not able to assess, of course, the demeanor of witnesses whose EBTs were introduced into evidence and who did not appear to testify at trial. Nevertheless, the Court found portions of Mr. Barcomb's testimony to be implausible, inconsistent, contradicted by other portions of the record and, to that extent, less than creditworthy. Qualified Immunity
As to the merits of the defense, the Court concludes that the qualified immunity doctrine applies to these Claims. The Court rejects Mr. Norman's suggestion that DOT took no action with respect to this intersection. To the contrary, DOT studied the intersection twice, in 1989 and again in 2004, including evaluations of the traffic volume and accident history there. In 1989, DOT noted that sight distance was poor at the intersection. It concluded, however, that the sparse accident history at Steuben Corners did not justify removal of the Old Grange Hall by DOT. It did, however, offer to cooperate with any municipality that was prepared to remove the building. It also determined that an advisory speed sign should be added to the existing intersection warning on Route 274, which was done. In 2004, DOT determined that the few accidents there did not support a change to the existing traffic control devices (i.e., the two-way stop signs on Soule Road). It did recommend that the Town of Steuben refrain from parking large trucks near the intersection. Thus, the Court concludes that Defendant met its prima facie burden of showing that the qualified immunity defense applies. By contrast, the Court finds that Claimants failed to prove, by a preponderance of the credible evidence, that those steps were inadequate or unreasonable so as to vitiate the defense.
DOT considers a number of factors in assessing a sight obstruction, including accident history, sight distance, severity of the obstruction, roadway signage, complaints from elected officials and the public, and, to some extent, cost of remediation. For ease of analysis and presentation, the Court has addressed many of those factors separately. Nothing in the record suggests, however, that DOT was obliged to consider each item separately, or what weight, if any, it should assign to each particular factor. Rather, DOT described an assessment process in which accident history was the paramount factor considered and that evaluation could and did inform DOT's review of other factors. It is true that Mr. Papaleo thought that a severe condition, in theory, could require action in the absence of a significant accident history, but, in practice, Mr. Maggiolino could not recall it ever happening.
Claimants failed to establish that the steps DOT took were inadequate or unreasonable concerning this lightly traveled highway, which had never been reconstructed since it was built in 1922, was the subject of only one capital project in 1964, and where only three similar accidents were recorded at the intersection in the preceding 20 years. The Court cannot say that it was unreasonable for DOT to allocate its resources elsewhere and not propose a capital project to remove the Old Grange Hall, especially since no evidence was proffered to suggest, no less establish, that the State ever owned the building, and which, moreover, was only partially within the State's ROW. On this point, Mr. Norman appeared confused about the status of the building, and admitted that he did not know about the State's capital project process. As for Claimants' assertion that the dip in Route 274 should have been leveled, the Court notes that none of the reports of accidents at the intersection, including Claimants', mentions the dip in Route 274, or cites it as a factor in those collisions (see Ex. 6). Given Mr. Norman's admitted unfamiliarity with DOT's capital project process, the Court lacks confidence in his claim that such a project could be accomplished on the cheap, for about $20,000. Likewise, Claimants failed to show that DOT's decisions about the road signs at the intersection violated the VTL, DOT's own regulations, or were inadequate or unreasonable under these circumstances. The Court is persuaded by Defendant's arguments that a four-way stop sign, or other traffic control device, would be extraordinary and was unwarranted on this stretch of rural highway.
Much of Mr. Norman's testimony simply amounted to how, in his opinion, he would have addressed conditions at the intersection at Steuben Corners better than DOT did, but "something more than a mere choice between conflicting opinions of experts is required" before qualified immunity may be stripped from the State and liability imposed upon Defendant for its decisions concerning traffic conditions (Weiss v Fote, supra at 588; see Affleck v Buckley, supra at 557). Like a jury's verdict, the views of Mr. Norman, no matter how highly they might be regarded, are "neither sacrosanct nor preferable to the judgment of" State officials regarding the traffic condition (Weiss v Fote, supra at 588-589; see Redcross v State of New York, 241 AD2d 787, 790 [3d Dept 1997], lv denied 91 NY2d 801 [1997]). Here, DOT studied the intersection twice and determined that it was not necessary for it to remove the Old Grange Hall, and that the advisory speed sign it added was appropriate, the very questions of risk that Claimants ask this Court to determine (Affleck v Buckley, supra at 557; Weiss v Fote, supra at 588 ). No Negligence
Assuming, arguendo, that the State was not entitled to qualified immunity with respect to its decisions in connection with this traffic condition, the Court finds that Claimants failed to establish, by a preponderance of the credible evidence, that the State was negligent in connection with their Claims.
The Court concludes that neither the Old Grange Hall, nor the dip in Route 274, considered separately or together, were dangerous conditions under the circumstances of these Claims. The State agreed that the sight distance was poor at the intersection on account of the building. Nevertheless, there were few accidents. Moreover, the Old Grange Hall was an open and obvious condition. Mr. Barcomb saw it and recognized that it obstructed his view to the west. That is why he pulled forward to the fog line on Route 274. The Court is persuaded by Mr. Obernesser's calculations that there was adequate sight distance at the fog line so that the Old Grange Hall did not constitute a dangerous condition to a reasonably prudent driver. Neither party at trial explained how the 150 feet figure found in Exhibit 2 was calculated, or, perhaps more importantly, where the measurement was taken. Accordingly, the Court has no confidence in the significance of that figure. By contrast, Mr. Obernesser provided a clear and thorough explanation as to how he determined that the sight distance to the west, at the fog line, was 310 feet, and how that figure takes into account the driver's line of sight in the cab of a pickup truck, as well as the, by then demolished, Old Grange Hall. The Court adopts that figure. Claimants' attempts to cast doubt on those calculations were, to the Court's mind, unavailing. Thus, the Court concludes that the Old Grange Hall was not a dangerous condition in these Claims.
The Court, likewise, adopts Mr. Obernesser's determination that the crest of the dip in Route 274 was 472 feet from the intersection where the accident occurred. Moreover, DOT's photo log supports Mr. Obernesser's calculations (see Ex. D). The photo log also indicates, and the Court so concludes, that the dip itself was west of the intersection/advisory speed sign (i.e., farther from the intersection), not to the east, as Mr. Norman contended. The uncontradicted statement at trial was that the sign is 600 feet from the intersection and Mr. Obernesser said that the crest of the dip is about 100 feet farther to the east (i.e., closer to the intersection), which is very near to the 472 feet obtained by Mr. Obernesser's calculations and confirmed by his field observations. By contrast, the Court rejects Mr. Norman's assertion that the crest of the dip in Route 274 was only 125 feet from the center of the intersection, a distance which essentially was unexplained and unsupported. That being the case, the Court also adopts Mr. Obernesser's conclusions that it would have taken 5.85 seconds from the time the Razzano Vehicle crested the dip in Route 274 until it reached the intersection.
That moots Claimants' argument that Mr. Barcomb might not have seen the Razzano Vehicle in time because it was hidden in the dip. Mr. Palmer agreed that a vehicle in the dip might, indeed, be lost from sight to a vehicle stopped at Soule Road. However, since the dip was to the west of the crest in the State highway, it also means that it would take any vehicle in that dip more than 5.85 seconds to reach the intersection. Thus, it cannot account for Mr. Barcomb's inability to see the Razzano Vehicle at all (as he said at his EBT), or until it was too late (as he told Ms. Barcomb). It, likewise, in no way diminishes the 310 feet sight distance available to him at the fog line, or the 3.84 seconds that would have afforded him to cross Route 274 before the Razzano Vehicle reached the intersection. For the foregoing reasons, the Court concludes that the obstruction posed by the dip in Route 274 was not a dangerous condition in the context of these Claims.
The Court further determines that neither the Old Grange Hall, nor the dip in Route 274, were substantial factors in causing the grievous injuries that resulted from this accident. Mr. Barcomb pulled forward until the building no longer obstructed his view, at which point the sight distance was 310 feet. Given the speed of the Razzano Vehicle, and the distance from the crest of the dip in Route 274 to the intersection with Soule Road, Mr. Barcomb had more than enough time to traverse the intersection safely. The paucity of accidents at Steuben Corners attests that it could be done. Rather, the Court concludes that it was Mr. Barcomb's failure to see what was there to be seen and to yield the right of way that was the substantial factor in this accident. Perhaps he was distracted and inattentive, despite his assertions to the contrary. He, likewise, denied being high from smoking marijuana, yet pleaded guilty to driving while his ability was impaired by the drug. He also pleaded guilty to criminally negligent homicide, failing to perceive that his conduct created or contributed to a substantial and unjustifiable risk of death to another person. Perhaps he was, as he testified, "really tired." Whatever the combination of reasons might have been, this much is clear, Mr. Barcomb said that he saw only darkness as he entered the intersection. He failed to see headlights of the Razzano Vehicle despite having adequate sight distance and time to do so. He also did not hear the squeal of the braking tires which left the skid marks made by the Razzano Vehicle. Yet, Mr. Barcomb testified that the Razzano Vehicle appeared to come out of nowhere. The Court concludes that Mr. Barcomb did not see what, by the proper use of his senses, was there to be seen, so that he failed to yield the right of way to the Razzano Vehicle, as he was obliged to do, and did not see the other vehicle until it was too late, if he saw it at all. Finally, the Court concludes that these failures by Mr. Barcomb were the most substantial factors that account for this accident (see Andrews v State of New York, 168 AD2d 474 [2d Dept 1990]).
CONCLUSION
Based on all the foregoing, the Court finds that the State is entitled to qualified immunity in this action and that Claimants failed to establish their cases by a preponderance of the credible evidence, and the Claims are, hereby, dismissed.
All motions upon which the Court reserved decision at trial are hereby denied.
All objections upon which the Court reserved determination at trial are now overruled.
The Chief Clerk is directed to enter judgments accordingly.
May 9, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims