Opinion
No. 118699.
09-25-2015
William J. LAKE, v. The STATE of New York.
Law Office of James A. Fauci, PLLC, By: Law Offices of Steven P. Shultz, By: Steven P. Shultz, Esq., By: Hinman, Howard & Kattell, LLP, By: Linda B. Johnson, Esq., for Claimant's. Eric T. Schneiderman, NYS Attorney General, By: Joan Matalavage, Assistant Attorney General, Of Counsel, for Defendant's.
Law Office of James A. Fauci, PLLC, By: Law Offices of Steven P. Shultz, By: Steven P. Shultz, Esq., By: Hinman, Howard & Kattell, LLP, By: Linda B. Johnson, Esq., for Claimant's.
Eric T. Schneiderman, NYS Attorney General, By: Joan Matalavage, Assistant Attorney General, Of Counsel, for Defendant's.
JUDITH A. HARD, J.
Claimant, William J. Lake, commenced this action for the intentional and/or negligent construction, repair, maintenance and design of New York State Alternate Route 7 (Alternate Route 7) in the Town of Colonie in Albany County, New York. Claimant argues that defendant is liable for the negligent highway design of Alternate Route 7, and that the study defendant conducted to determine whether an increase to 65 mph on Alternate Route 7, was inadequate. Claimant also argues that defendant failed to monitor its decision to raise the speed limit. Sovereign and governmental immunity, as well as comparative negligence, were included among defendant's many alleged affirmative defenses. In addition, defendant moved to amend its answer during trial to include an affirmative defense that this claim is covered by General Obligations Law section 15–108. The Court granted that motion at trial (T: 153). For the reasons set forth below, the Court concludes that defendant is immune from liability for the design of Alternate Route 7 and for the study to raise the speed limit to 65 mph, under the broad governmental immunity common law of Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960). The Court further concludes that while defendant failed to monitor the safety effects of the speed limit increase on Alternate Route 7 after its implementation, there can be no liability for the same because claimant failed to prove that such failure was the proximate cause of the accident.
Although the claim sets forth a cause of action for a vague intentional tort, the same was not argued at the trial of this matter or in the briefs submitted thereafter. As such, the Court deems it abandoned.
FACTS
On Friday, May 28, 2010, at approximately 8:30 a.m., claimant was riding his 2009 Harley Street Glide motorcycle to work westbound on Alternate Route 7. Westbound Alternate Route 7 is a three lane highway with two traffic lanes and a climbing lane (T: 114). Alternate Route 7 runs approximately 3.5 miles from State Route 787(787) to the Northway. Claimant intended to take Alternate Route 7 to the Northway toward Saratoga County. Claimant maintains that he had been riding on a motorcycle since he was eight years old. He testified that he has traveled all over the country by motorcycle.
He testified that at age eight he started with motocross when he rode on a designated track and was taught how to ride a motorcycle (T: 46–47). Upon cross-examination, however, claimant testified that he obtained his motorcycle license in 2004, at the age of 48.
Once on Alternate Route 7, claimant eventually made his way to the right-hand lane where he was proceeding at a speed between 55–65 mph. As a normal practice he tried to keep two seconds of distance, or two hundred feet, between his motorcycle and the vehicle in front of him. When he moved to the right-hand lane, a white Ford pickup truck was in front of him, which decreased claimant's view of the lane. Suddenly, the driver of the white Ford pickup truck slammed on his brakes and the rear end of the truck lifted off the ground. Then the white Ford pickup truck moved immediately into the middle lane. Claimant was aware that a guardrail was to his right and that a black vehicle was now to his left, behind the white Ford pickup truck. The white Ford pickup truck cut off the black vehicle causing the black vehicle to move toward claimant in the right lane. This chain reaction caused claimant to move to the right side of his lane and he "throttled up", or sped up, because the car on his left would have hit him and he wanted to avoid the white truck that had slammed on its brakes (T: 43, 56). He noticed at this point that a Mercury Sports Utility Vehicle (Mariner) was stopped on the right shoulder and part of that vehicle protruded into the right lane. He downshifted and grabbed his brakes. His options at that point were: getting hit by the vehicle in the middle lane that was moving towards his lane; drive into the guardrail; lay the bike down and slide into the vehicle in front of him; or shoot for a three foot space that he perceived to the left of the Mariner stopped in front of him on the shoulder. He chose the latter option but, unfortunately, he missed the perceived space and struck the left back of the Mariner near mile post marker 1.6 (Exhibits 1, 2, 5, E). He estimated that three-quarters of the Mercury SUV, which was eight feet wide, was in the right lane. He claimed that it did not have its flashers engaged.
Defendant subpoenaed Jean Clukey, the driver of the Mariner stopped on Alternate Route 7 in front of claimant. Ms. Clukey testified that on the morning of May 28, 2010, she left her home in Watervliet and headed to 787 where she exited onto Alternate Route 7, intending to take that highway to the Northway. She remained in the right-hand lane on Alternate Route 7, driving 55 mph. She recalled that there was a sign on the highway that indicated slower traffic should keep right (Exhibit J). As she proceeded up the hill in the right-hand lane, her vehicle suddenly lost power, her battery light came on, and she coasted to the shoulder of the road, such that her vehicle was between six to eight inches from the guardrail. She put her flashers on. There was a grassy wooded area to the right of the guardrail. Because she left her cell phone at home, she exited her vehicle to wave down cars for assistance. A woman stopped her vehicle approximately 100 feet in front of Ms. Clukey's vehicle. Ms. Clukey walked up the hill toward the other vehicle and spoke with the woman who had called the police. While Ms. Clukey was heading back to her vehicle, she noticed that her flashers were still engaged. Claimant's collision with her vehicle occurred as she proceeded back to her vehicle.
Mark Kennedy is the current Region 1 Traffic Engineer at DOT. Although he was not involved in the study that led to the increased speed limit on Alternate Route 7, he provided background. Specifically, he testified that Alternate Route 7 has five 12–foot wide lanes, two travel lanes eastbound going downhill, two travel lanes westbound going uphill, along with a westbound right-hand lane for slow moving vehicles (climbing lane) (Exhibit 43, p. 38). There are two sources of information that tell a motorist the right-hand lane is for slow moving vehicles: two skip lines adjacent to one another (Exhibits K, L) and a couple of signs that warn for slow-moving vehicles (Exhibit J). The right-hand lane was designed for slow moving vehicles (Exhibit 43, p. 40). He noted that there is a place along the climbing lane where the paving markings change from a double skip line, indicating that it is a climbing lane, to a solid line or a solid line with a skip line adjacent to it, which indicates that it is an exit lane only. There is an overhead sign that indicates that it is an exit lane only, too (Exhibit 43, p. 83). When Alternate Route 7 was designed, the standard width for a shoulder next to a climbing lane was four feet (Exhibit 43, p. 43). The standard width for a shoulder built in 2003 was eight feet (Exhibit 43, p. 76). The standards for the design and construction of climbing lanes and shoulders are contained within the New York State Highway Design Manual (HDM) which generally follows the American Association of State Highway and Transportation Officials Standards (AASHTO). In Mr. Kennedy's experience, the typical time to consider widening a shoulder is when repairs are completed on the highway, although it would require a significant capital investment (Exhibit 43, p. 48). Between the opening of Alternate Route 7 and 2004, there were repairs to the concrete pavement (Exhibit 43, pp. 47–48). Mr. Kennedy testified that once a speed limit is raised, it is not typical to analyze whether an increase in accidents or fatalities had occurred (Exhibit 43, p. 67).
Claimant introduced the examinations before trial of four employees of the DOT: Michael Doody, David Woodin, Mark Kennedy, Reed Sholtes and William Logan. Although certain portions were read into the record by claimant's counsels, the entire Exhibits were admitted into the record and reviewed by the Court (Exhibits 42–46). Although Michael Doody and Mark Kennedy did not testify at trial, David Woodin, Reed Sholtes and William Logan did so.
In addition, Mr. Kennedy testified that the sound barrier noise wall on the right-hand side on westbound Alternate 7 was part of the original construction. While it is located on land owned by New York State, Mr. Kennedy had no knowledge how the exact location of the barrier was determined or how far north of the barrier that land is owned by the State. He noted two facts that could prohibit the widening of the shoulder: (1) there is a concrete gutter behind the guide rail; and (2) the noise wall needs to be outside the deflection distance of the guide rail.
When an errant vehicle leaves the roadway, the guide rail is intended to guide the vehicle back in to the roadway. It deflects a certain distance before it develops strength to redirect the vehicle (Exhibit 43, p. 71).
Bruce Smith was the Director of Traffic and Safety Division at DOT, and his office developed the "65 MPH Speed Limit Candidate Worksheet". Although he did not testify at trial, Exhibit 18, a memorandum he wrote to all Regional Traffic Engineers, was received into evidence. It stated:
"In some cases, you may find that the suggested corridor does not meet the criteria, especially for accident rates. Rather than say it does not qualify, analyze it again using a different begin and/or end point. For example, you may find that eliminating the last mile of a segment would yield accident rates that are within the acceptable range." (Exhibit 18).
David Woodin, the Director of Traffic Operation at DOT, testified that when the speed limit study was undertaken for Alternate Route 7, the size of the shoulder was only indirectly considered because the highway was built to interstate standards. He was not aware of any consideration to the width of the shoulder when the speed limit increase was considered. Although he was not a design engineer, he created the candidate worksheet with input from his superiors. He testified that after the speed limit was raised, accident data was collected and analyzed, and for a time there was a consideration to lower the speed limit (Exhibit 45, pp. 31–33).
Reed Sholtes is a licensed professional engineer in New York and has worked at the New York State Department of Transportation for 25 years. He is presently the Supervisor of Traffic Operations Section for Region 1. Part of his responsibilities is to conduct speed limit studies. He testified that Alternate Route 7 was built in the early 1980's and a contract for its rehabilitation was entered into in 2002. In 2003, his section was asked to participate in a study designed to raise the speed limit on Alternate Route 7 from 55 mph to 65 mph. A few other highways were being considered for such increase, including two highways that Alternate Route 7 connects, 787 and the Northway.
He explained the difference between a reconstruction contract and a rehabilitation contract. The latter involves more in depth work regarding shoulders, guide rails, pavement and highway signing. Rehabilitation work is the resurfacing of a highway (T: 398). Mr. Logan later testified that a restoration contract, a term used infrequently at trial, is another name for a rehabilitation contract (T: 478).
Mr. Sholtes testified that DOT's main office provided his group with a "65 MPH Speed Limit Candidate Worksheet" (Candidate Worksheet) (Exhibit 48) that coincides with a document entitled "65 MPH Speed Limit Criteria as of August 2003" (Criteria) (Exhibit 47). The Criteria lists nine criterion which are divided into two categories: a category of "shall" which contains two items; and a category of "should" which contains seven items.
Mr. Sholtes prepared the responses on the Candidate Worksheet as they related to Alternate Route 7. He responded that the first "shall", which requests that it be a freeway with a minimum of four lanes and a design speed of at least 65 mph, was met because Alternate Route 7 is a freeway. The second "shall", which states that pedestrians, animals, and non-motorized vehicles are prohibited, was not addressed on the Candidate Worksheet nor discussed with him at trial.
A freeway is a divided highway with limited exit and entrance points.
The first "should" criteria requests that the design and construction be in accordance with interstate standards. Mr. Sholtes testified that interstate standards would have a higher design speed generally at 70 mph and that Alternate Route 7 therefore satisfied the first criteria. The second criteria asks whether it is located in a rural or suburban area. The worksheet is marked "urban" but no response was entered to the follow up question which inquires whether the volume and operational characteristics are similar to adjoining traffic that is in non-urban sections. Although he was charged with responding, Mr. Sholtes had no recollection as to why the second part of that question was left blank. The third criteria states that there be a maximum AADT of 50,000 for four lanes, and an additional 12,500 for each additional lane. Mr. Sholtes responded that Alternate Route 7 has five lanes, two eastbound and three westbound, which included the climbing lane for slower moving traffic. He testified that "AADT", which stands for average annual daily traffic or traffic volume, was 60,000, which includes the climbing lane. The fourth criteria states that the total accident rate should not exceed 2.0 accidents/MVM. The answer on the worksheet was "0.90 acc/mvm", thereby satisfying said criteria. The fifth criteria states that the fatal accident rate should not exceed "1.0 accidents/100MVM". Mr. Sholtes responded on the form that the accidents/100MVM was zero, thereby satisfying said criteria.
The sixth "should" criteria, stated that there should be no PILs or there should be a plan to mitigate them. Mr. Sholtes testified that a PIL is a "priority incident location" which is identified through DOT's safety information management system (SIMS), a software that tracks accidents on the highway system. He further testified that the Federal Highway Administration wants DOT to review 20 percent of the PILs per year. Mike Doody, the safety evaluation engineer, filled out the answer to this criterion, stating that there were five PILs between certain reference markers. However, at his examination before trial, he testified that there was one PIL and three specialty PILs. The one PIL was between reference markers 1143–1145. He did not know what it concerned as he only removed the information from the SIMS. The three specialty PILs were run-off-the-road struck fixed object type of accidents. He assumed they involved hitting guide rails (Exhibit 44, pp. 13–14). Mr. Sholtes wrote at the bottom of that section "NO PLANS TO MITIGATE AT THIS TIME". The seventh criteria states that there should be a minimum length of 5 miles for any 65 mph section of highway, Mr. Sholtes responded that Alternate Route 7 had 3.5 miles.
In addition to the worksheet requirements, Mr. Sholtes' group performed an 85th percentile study, which represents the speed at which 85 percent of traffic is traveling at or less than that speed (Exhibit 19, p. 26). The result of that test was 65–66 mph. The Manual on Uniform Traffic Control Devices (MUTCD), that is developed by the Federal Highway Administration, recommends that speed limits should be set at the 85th percentile speed. Mr. Sholtes reviewed all the findings on the worksheet with Mr. William Logan who was at the time the Regional Traffic Engineer for Region 1. Mr. Sholtes testified that when Alternate Route 7 was designed in the 1970s, a four foot wide shoulder was deemed adequate. Ultimately, Alternate Route 7 was recommended for a speed increase to 65 mph.
Regarding the 85th percentile test, upon cross-examination Mr. Sholtes testified that the data was from May and June 2002 even though the worksheet defined the criteria as of August 2003 (Exhibit 19). Further, there was no way to discern from which lanes the information was obtained and it was only collected at one location, specifically, at reference marker 1152. He admitted that after the study was conducted, only the speed limit on Alternate Route 7 was raised to 65 mph, but not the speed limit on the two roads it connects, the Northway and 787. He admitted that other climbing lanes that he was familiar with, were in rural areas of the State. That Alternate Route 7 had a climbing lane was not a factor in their analysis for the speed increase. No speed data was collected about the use of the climbing lane on a daily basis. In 2003, he knew that the climbing lane was being used for regular travel. The climbing lane was included in the response regarding the 60,000 vehicles per day using the road. He testified that the .90 accident rate (accidents per million vehicle miles) was determined by Michael Doody, the Regional Safety Evaluations Engineer (see Exhibit 44, p. 17) and was based on data from 1998–2001. Mr. Doody, in his examination before trial, testified that he never studied safety problems after the implementation of the speed limit increase on Alternate Route 7 (Exhibit 44, pp. 19–20). Mr. Sholtes never considered moving the guide rail to provide for a wider shoulder nor did he collect any data regarding the use of the four foot shoulder by disabled drivers. After the speed limit was increased in 2004, he did not study whether there had been a change in the accident rate (T: 448). He ultimately recommended Alternate Route 7 for the increase and the main office concurred.
At his deposition he testified, "Although it is a climbing lane, all traffic can still use it. It is not exclusively used or to be used by trucks as a climbing lane" (T: 121).
William Logan, the Region 1 Traffic Engineer at the time of the study, testified that a one to two year time lag is not unusual because the information comes from police accident reports that are filed in the New York State Department of Motor Vehicles (T: 511).
William Logan, who was the Region 1 Traffic Engineer at the time of the study and is now retired, testified at trial on behalf of defendant. He testified that Alternate Route 7 was constructed in 1983 and there was one restoration contract to resurface it in 2002. Exhibit L depicts Alternate Route 7 in the westbound direction at mile point marker 1.6. It shows a double skip line, separating the climbing lane and the travel lane. The double skip line is in conformity with the MUTCD. The shoulder next to the climbing lane is a paved shoulder that is 4 feet wide, as specified in the original plans pursuant to the standard from the New York State Department of Transportation's Highway Design Manual (HDM) and the AASHTO guidelines (T: 483/ Exhibit 25, p. H–2). Mr. Logan testified that the purpose for a climbing lane is to provide "a lane for primarily trucks that are approaching and then encountering, or driving along a hill, and they cannot get up to the regular travel speed that the rest of the traffic is ... so this provides them space to move over and get out of the 50, 60 mile-per-hour, or whatever it is, traffic ..." (T: 488). Alternate Route 7 was originally designed for 70 mph, for all five lanes of traffic, but back when it was constructed the speed limit was 55 mph. There is an emergency pull-off area about half a mile east of the accident site. The "Slower Traffic Keep Right" sign on the right side of that road is further east on westbound Alternate Route 7 (Exhibit J). Alternate Route 7 was resurfaced pursuant to a 2002 contract which was not a reconstruction contract (T: 477, 492). PIL locations come from an evaluation of the accident record compiled by the Department of Motor Vehicles (DMV). DMV identifies locations that it feels should be investigated to see if there is a problem (Exhibit 42, p. 29). HELP trucks also collect accident data (T: 566).
Claimant objects to Mr. Logan being accepted by the Court as an expert witness because Mr. Logan was not offered or received as an expert at trial. Posttrial, the Court reviewed defendant's pretrial disclosure of Mr. Logan as a fact/expert witness to claimant. He received a bachelor of science degree in civil engineering from the University of Maine and worked as a professional engineer for thirty-five years. Ordinarily, the Court would receive him as an expert in traffic engineering (see Matott v. Ward, 48 N.Y.2d 455 [1979] ). Here, however, Mr. Logan was so intricately entwined in the decision at issue in this case, the Court receives him only as a fact witness. Any expert testimony that could be attributed to him would be tainted by his recommendation to raise the speed limit to 65 mph. The other DOT witnesses who testified at trial or through examinations before trial are accepted as fact witnesses for the same reason.
Exhibit 24, the Final Environmental Impact Statement for Alternate Route 7, provides that the right shoulders shall be ten feet wide (Exhibit 24, p. 63, Table VIII). It also provides that the roadway shall have two lanes in either direction, "and the westbound travel way will have an auxiliary climbing lane for slower moving vehicles." (Exhibit 24, p. 61). Exhibit 27, the 1977 HDM, allows for six to ten feet for shoulders.
Exhibit F is the record plan for the original construction of Alternate Route 7. The plan was approved by: the regional design engineer, the regional director, the regional construction engineer, the regional highway maintenance engineer and the regional traffic engineer. The plans present cable guide rails and a foot away from the cable guide rail is a concrete drainage gutter. There is also a noise barrier, a wooden wall beyond the gutter by seven to eight feet, that runs along a significant portion of Alternate Route 7. The distance between the guide rail and the noise wall is 12 feet, a sufficient distance away from the noise wall in order to deflect vehicles that may hit the guide rail. The deflection of a cable guide rail is 11 feet. Mr. Logan testified that the guide rail is there because the wall is a fixed object that could cause damage to a vehicle. The cable guide rail was placed at the edge of the four foot shoulder, thereby creating enough space to deflect vehicles from the wall. He testified that a steep grade or ledge is beyond the noise wall, but he was not sure if defendant owned the steep ledge. There are homes on that side of the noise wall and he remembered a controversy about the traffic noise when Alternate Route 7 was built (T: 496).
Exhibit 25, p. H–2, the Environmental Impact Statement, contains the design plans for Alternate Route 7, too. The four foot shoulder and the 12 foot travel lanes are depicted therein.
Regarding the speed study, Mr. Logan clarified that the subpart to the third criteria was not answered because there were no adjoining non-urban sections to Alternate Route 7. He looked at the PILs with Reed Sholtes and Mike Doody and concluded that "there was nothing happening out there in a repetitive nature that needed to be addressed" (T: 515). Regarding post speed limit increase accident studies, he testified at trial that traffic accidents are reviewed annually and investigated, so any accident would be reported on an annual basis (T: 563–564). However, at his examination before trial he equivocally testified "I can't talk about in this one in particular (Alternate Route 7) but at most locations where we did speed limit changes, we also monitored the accident rates on an annual basis. I mean these were monitored, too." (Exhibit 42, p. 55). He did not recall any consideration to reducing the speed limit after the increase.
Upon cross-examination, Mr. Logan testified that when he was analyzing Alternate Route 7 for a speed increase in 2003, he did not consider the design criteria applicable at that time. However, he noted that the locations of the guide rail, gutter and noise wall were studied in the late 1960's and 1970's before Alternate Route 7 was built in 1983. Mr. Logan acknowledged that vehicles used the climbing lane as a travel lane. He maintained that there are no restrictions that a climbing lane be only used by slow speed vehicles (T: 537–538). He admitted that without including the volume of traffic from the climbing lane, the criteria of a highway having a volume of at least 50,000 would not have been met. He was not concerned that the length of Alternate Route 7 was not the minimum length because that was a "should" condition on the worksheet. When asked whether his team studied the impact of the increased speed on rush hour traffic, he testified that it was taken into consideration. In a memorandum written to the main office at DOT, with the subject of "65 MPH CANDIDATE HIGHWAYS" Mr. Logan wrote: "I am submitting my recommendations for the pre-selected routes in Region 1. Please note that these are just my gut feelings based on my familiarity with these highways ...". Alternate Route 7 made the list.
Lawrence Levine testified as an engineering and accident reconstructionist expert for claimant. He opined that the cause of the accident was the narrow four foot shoulder on Alternate Route 7 that triggered a chain reaction. In his opinion, the inadequacy of the shoulder caused the Clukey vehicle to be in the climbing lane. The white truck in front of claimant was faced with an emergency situation, so it veered to the left which caused a chain reaction for the vehicle on claimant's immediate left to pull to the right into claimant's lane. Once the white truck veers to the left, claimant had nowhere to go as the Clukey vehicle was in his lane and on the shoulder. In a surprise situation like this case, he testified that claimant had three-quarters of a second to take action. He further opined that the placement of the guide rail caused the inadequate shoulder width. Six feet of shoulder was in the "plans" but the placement of a guide rail on the shoulder reduced the amount of useable shoulder for vehicles.
Mr. Levine has a bachelor of engineering degree from Michigan State University and a master's degree in transportation and civil engineering from Rensselaer Polytechnic Institute. He has worked extensively in his field in the private and government sectors and is presently a consultant. He has been doing accident reconstruction since 1983 and has taken many courses in motorcycles and in traffic safety (T: 268–269). He is a professional engineer in New York and New Jersey. The Court received him as an expert in engineering and accident reconstruction (T: 269).
Mr. Levine noted the 2002 plans (Exhibit G) for this point but the Court did not see this reference on such plans, but did see it on the record plans from 1983 that show a 6 foot shoulder with a guide rail running through it and a four foot concrete gutter on the opposite side of the guide rail (Exhibit F, p. 4). The Court also notes that Exhibit 24, the Environmental Impact Statement, Volume 1, p. 63 lists as part of the design standards, ten foot shoulders on the right.
Mr. Levine believed that the westbound climbing lane actually functioned as an acceleration lane for vehicles exiting 787, a deceleration lane for vehicles that wanted to slow down before getting onto the Northway, and a climbing lane. He testified that portions of the right-hand lane were marked as a climbing lane. Exhibit 24 is the Environmental Impact Statement for Alternate Route 7, which was submitted as the design report. Therein, Table VIII on page 63 provides the design standards as 12 feet for lane width and the right shoulders as ten feet and the left shoulders as 6 feet. The minimum width for a climbing lane was four feet according to New York standards in 1982. According to Mr. Levine, a normal climbing lane has a beginning and an end. He believed that there was no end to this climbing lane as it ran the entire length of Alternate Route 7. Here, the four foot shoulder is paved with a guide rail in place and two feet of unpaved shoulder is on the other side of the guide rail. The guide rail was placed there because of the noise barrier wall. He believed that a guide rail requiring a shorter deflection distance could have been installed by placing the guide rail posts closer together. The standards for a travel lane is an eight to ten foot shoulder, which is what it is on the eastbound side of Alternate Route 7. It was his belief that the 1994 version [sic] of the HDM, requiring six foot shoulders for climbing lanes should have been looked at when the speed limit was changed because that was the policy of the State at the time (Exhibit 28). His reasoning for this opinion is the wording on the top of the worksheet that states: "65 MPH Speed Limit Criteria as of August 2003 " (emphasis added) (Exhibit 47).
Exhibit 28 is actually the 1998 version of the HDM but the climbing lane section was revised as of 7/11/94. It appears to the Court that Mr. Levine referred to it as the 1994 version because the policy was established that year.
It was Mr. Levine's opinion that the study was incomplete and inadequate for various reasons. The 1998 Design Manual required a 6 foot shoulder for a climbing lane, which would trump the AASHTO standard that would have allowed a four foot shoulder, because no federal money was used in the project (Exhibit 28). According to Mr. Levine, AASHTO allowed the four foot shoulder only when no other option was available or if the highway was not in a congested area. Moreover, the volume of 60,000 vehicles per day indicates that Alternate Route 7 is a major roadway and all three of the lanes on the westbound side are needed to carry that volume. Further, Mr. Levine wanted more information regarding the PILS, particularly as to why they were happening. Additionally, he noted that the length of the roadway was only 3.5 miles and did not meet the "should" requirement of 5 miles. There was no mention of the climbing lane in the study nor was it mentioned on the worksheet.
Upon cross-examination, he acknowledged that the record plans for the construction of Alternate Route 7 were recommended by the Regional Design Engineer, the Regional Construction Engineer, the Regional Highway Maintenance Engineer, the Regional Traffic Engineer, and the Regional Director in 1983 and that the record plans for the 2002 contract were primarily for concrete pavement repair and were approved by employees of DOT with the same titles (Exhibits F, G). The contract was not for a full reconstruction of Alternate Route 7. The pull-off area in Exhibit H was before the reference marker where the accident occurred and it existed at the time of the accident. He took issue with the fact that no adequate or reasonable study was conducted after the speed limit was increased. He was aware that the police report indicated that claimant was following too closely and he was reacting to an uninvolved vehicle. Although claimant maintained that the climbing lane had no beginning or end which was required under the HDM, Mr. Levine never clearly testified to that point nor cited any authority for such proposition (T:176)
The Court allowed claimant to recall Mr. Levine as a rebuttal witness to Mr. Logan's testimony about the steep ledge beyond the noise wall and as to the ownership of the land beyond the noise barrier wall. Mr. Levine testified that he went back to the scene and located where the 1.6 mile marker post was located on the backside of the noise wall. He testified that behind the noise barrier wall, there is a level area that extends six to seven feet. He did not find a ledge with a steep drop-off, as Mr. Logan had testified on direct examination (T: 628). Exhibit 51, p. 2 is the State's plan with a diagram showing how the construction of the berm under the noise wall is to be constructed (T: 631). The State built a filled slope (Exhibit 51, p. 2; Exhibit 52). Exhibits 53, 53–A and 53–B show the berm and the housing development next to it. Exhibit 53–B was marked by Mr. Levine to show where a right-of-way cyclone fence is located at the base of the berm. The right-of-way is designated on Exhibit 51, at p. 4, 200 N.Y.S.2d 409, 167 N.E.2d 63 (the record plans for Alternate Route 7) and appears to be where Mr. Levine indicated as the location of the fence.
There was strenuous objection to the photographs Mr. Levine took of this area after the commencement of trial. While the Court admitted these photographs at trial, it does not attribute any weight to them, but relies instead upon Mr. Levine's rebuttal testimony.
The Court allowed defendant to recall Mr. Logan as a surrebuttal witness. He testified that the theory for placing the noise barrier wall in the center of the berm is for drainage purposes and for structural purposes in that you get the maximum amount of strength from each side of the berm. He also noted that 70% of the climbing lane on Alternate Route 7 does not have a sound barrier wall and the shoulder is still four foot wide.
The Court strikes Mr. Logan's testimony as a surrebuttal witness from pp. 687–716 of the transcript as it was outside the scope of the rebuttal by Mr. Levine. Exhibits N, N–1, P and P–1, which the Court previously reserved upon, are not admitted into evidence. The Court overrules claimant's objections on T: 681.
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 fiscal practicality ( Friedman v. State of New York, 67 N.Y.2d 271 [1986] ; Gutelle v. City of New York, 55 N.Y.2d 794 [1981] ; Tomassi v. Town of Union, 46 N.Y.2d 91 [1978] ; Weiss v. Fote, 7 N.Y.2d 579 [1960] ). 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 N.Y.2d 91[1978] ; Brooks v. New York State Thruway Auth., 73 A.D.2d 767, 423 N.Y.S.2d 543 [3d Dept 1979], affd 51 N.Y.2d 892 [1980] ). Claimant has the burden of establishing that the State was negligent and that its negligence was a substantial factor in causing claimant's accident and injuries (see Kampff v. Ulster Sanitation, 280 A.D.2d 797, 720 N.Y.S.2d 288 [3d Dept 2001] ).
The State 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 N.Y.2d 553 [2001] ; Friedman v. State of New York, 67 N.Y.2d 271, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; Alexander v. Eldred, 63 N.Y.2d 460 [1984] ; Weiss v. Fote, 7 N.Y.2d at 586, 589, 200 N.Y.S.2d 409, 167 N.E.2d 63 ). "Even with design planning issues, liability may exist where the municipality does not adequately analyze the condition or if there is no reasonable basis for its plan" ( Evans v. State of New York, 130 A.D.3d 1352, 14 N.Y.S.3d 226 [3d Dept 2015] ; citing Friedman v. State of New York, 67 N.Y.2d at 284, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; Winney v. County of Saratoga, 8 A.D.3d 944, 945, 779 N.Y.S.2d 605 [3d Dept 2004] ). Relying upon the latest available data from the Department of Motor Vehicles' accident history files has been found to be sufficient to support a finding of non-liability, along with other studies performed by defendant ( Pensabene v. State of New York, 26 A.D.3d 626, 809 N.Y.S.2d 620 [3d Dept 2006] ).
Additionally, a municipality "is under a continuing duty to review its plan in the light of its actual operation" ( Turturro v. City of New York, 127 A.D.3d 732, 5 N.Y.S.3d 306 [citations omitted] ). Even where a plan is carefully drawn with adequate study and has a rational basis, the State still has the duty to review its plan, because "[h]uman shortcomings being what they are, all problems cannot be reasonably anticipated or foreseen." ( Sanford v. State of New York, 94 A.D.2d 857, 859, 463 N.Y.S.2d 595 ).
"In maintaining older highways, the State is not obliged to undertake expensive reconstruction simply because highway safety design standards have changed since the original construction" ( Van De Bogart v. State of New York, 133 A.D.2d 974, 976, 521 N.Y.S.2d 125 [3d Dept 1987] [citation omitted] ). "[U]pgrades are necessary only when a roadway has a history of accidents or undergoes significant repairs or reconstruction" ( Hubbard v. County of Madison, 93 A.D.3d 939, 943, 939 N.Y.S.2d 619 [3d Dept 2012], citing Madden v. Town of Greene, 64 A.D.3d 1117, 1119, 883 N.Y.S.2d 392 [3d Dept 2009] ; Hay v. State of New York, 60 A.D.3d 1190, 1191, 875 N.Y.S.2d 313 [3d Dept 2009] ; Cave v. Town of Galen, 23 A.D.3d 1108, 1108–1109, 804 N.Y.S.2d 219 [4th Dept 2005] ; Preston v. State of New York, 6 A.D.3d 835, 835–836, 775 N.Y.S.2d 115 [3d Dept 2004], lv denied 3 N.Y.3d 601 [2004] ). Repaving the road surface does not constitute significant repair or reconstruction to require compliance with modern highway design standards ( Fan Guan v. State of New York, 55 A.D.3d 782, 784–785, 866 N.Y.S.2d 697 [2d Dept 2008] ).
In order to prove a prima facie case, claimant must generally show that the defendant's negligence was a substantial cause of the events that caused the injury ( Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308 [1980] ; Rosenbaum v. Camps Rov Tov, 285 A.D.2d 894, 727 N.Y.S.2d 553 [3d Dept 2001] ).
DISCUSSION
I. Defendant Was Not Required To Incorporate the 2002 Standards
It is clear from the record and even admitted by claimant's expert that the record plans for the 2002 contract reflect primarily concrete pavement repair and were not for the full reconstruction of Alternate Route 7. The overwhelming case law is that older highways need not be upgraded to new design standards unless the roadway has a history of accidents or undergoes significant repairs or reconstruction ( Van De Bogart v. State of New York, 133 A.D.2d 974, 521 N.Y.S.2d 125 ; Hubbard v. County of Madison, 93 A.D.3d 939, 939 N.Y.S.2d 619 ; Madden v. Town of Greene, 64 A.D.3d 1117, 883 N.Y.S.2d 392 ; Hay v. State of New York, 60 A.D.3d 1190, 875 N.Y.S.2d 313 ; Cave v. Town of Galen, 23 A.D.3d 1108, 804 N.Y.S.2d 219 ; Preston v. State of New York, 6 A.D.3d 835, 775 N.Y.S.2d 115 ). Therefore, claimant's arguments that the shoulder should have been widened at the time the roadway was repaved, which is not considered a reconstruction of the roadway, is without merit.
Claimant's argument that the interpretation of the words "65 MPH Speed Limit Criteria as of 2003" on Exhibit 47 as incorporating the design standards in the place at that time, is also misplaced. "[A]s of August 2003" modifies the word "criteria", meaning that the elements listed on that Exhibit were the elements of that list as of 2003. It did not state that the roadway must meet the highway standards as of 2003. Further, the first "should" criteria states that it [the road] was designed and constructed to interstate standards. The verbs in that sentence are in the past tense, implying that the road was not recently constructed, indicating the road must have been built to applicable standards of the past.
II. Immunity
Without doubt, the Court of Appeals has bestowed broad immunity to defendant in the area of highway design ( Weiss v. Fote, 7 N.Y.2d 579 [1960] ). When Alternate Route 7 was built, it was done so as an interstate highway with a design speed of 70 mph. Claimant maintains that defendant is not immune from liability on various grounds, the first of which is that the original traffic plan for Alternate Route 7 lacked a reasonable basis. Claimant does not challenge the fact that the HDM in effect at the time Alternate Route 7 was built required 10 foot shoulders unless a climbing lane existed which then required a four foot shoulder. Claimant argues that the right-hand lane was not a climbing lane because there was no beginning or end as required under the HDM. Although claimant references Mr. Levine's testimony for this supposition (T: 176), Mr. Levine did not provide any citation to any authority in support. Further, Mr. Kennedy testified that the lane was properly marked with a double skip line indicating a climbing lane on Route 7, as well as a road sign that it is for slower moving vehicles. At some point the double skip line changes to either a solid line or a solid line with a double skip line adjacent to it, to indicate that the lane is now an exit lane. There is also an overhead sign indicating that it is an exit lane. Hence, there is a beginning and an end to the climbing lane, contrary to claimant's assertion. The Court notes that many engineers gave approval to the record plans, which included the location of the noise wall (Exhibits F and G). Given these facts, the Court disagrees with claimant that the original plans lacked a reasonable basis that would qualify as an exception to the governmental immunity rule.
The 4–3 majority in Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960) states in its decision that the legislative history of the waiver within Court of Claims Act § 8 does not indicate that the waiver was meant to override "the well-defined and carefully reasoned body of law" governing highway design, which limited government liability in such cases. This Court reviewed the legislative history of Chapter 860 of the Laws of 1939 and notes the instructive letter debate in the bill jacket between Mr. Julius Applebaum and Mr. Leonard Saxe regarding the scope of the waiver contained therein. While Mr. Saxe, who wrote two letters to the Governor, may have been eventually induced to support Mr. Applebaum's view that the waiver of governmental immunity was not made broader than prior law, his arguments within the letters do not suggest such a conclusion. Indeed, his comments provide points to ponder therein, for example, he notes that there is the lack of a general savings clause in the legislation that the statute shall not be deemed to create any liability not already existing in law.
Claimant also maintains that defendant is not immune from liability because the 65 mph speed limit study was inadequate. Although the Bruce Smith memorandum indicates that the engineers in the field could manipulate some of the data by looking at only certain segments of the road, there was no solid evidence that they did indeed do so. Even though Mr. Logan wrote that based on his "gut feelings" (Exhibit 20) the speed limit should be raised, the Court believes that he made the decision to raise the speed limit after reviewing the facts as presented to him. In addition, no evidence was presented that the criterion DOT studied were in and of themselves inadequate. Assuming they were adequate, the relevant "shall" criterion that Alternate Route 7 be designed as a freeway, was met. After a review of the "should" categories, the Court determines that three of the "should' answers are inadequate, but that the same does not discredit the entire study. These three criterion include using the climbing lane volume numbers in the overall count for Alternate Route 7 so it met the AADT requirement of 50,000, counting the climbing lane portion of the right lane as a travel lane, and the length of the roadway was not at least 5 miles. The Court finds that six of the nine answers to the criterion were sufficient on the worksheet, which on balance weigh in favor of the defendant, and support its position that the study was adequate and immune from liability.
The second "shall" appears to be irrelevant to Alternate Route 7.
--------
Based upon the foregoing and the fact that decisions of DOT employees related to the physical design and traffic design of the highway immune from liability pursuant to Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63, and its progeny, the Court concludes that defendant is immune from liability for the design of Alternate Route 7 and for the study to raise the speed limit to 65 mph.
The Court, however, agrees with claimant that defendant failed to monitor the safety effects of the speed limit increase after its implementation. Mr. Kennedy and Mr. Sholtes testified that after the speed limit was increased, the effects of such increase were not studied. Mr. Doody also testified that he never studied the safety problems after the speed limit was increased. Mr. Logan's testimonies, at his examination before trial and his trial testimony, were contradictory. At trial he testified that traffic accident are reviewed annually and investigated. However, at his examination before trial he testified that he was unsure if it was done for Alternate Route 7. Mr. Woodin testified that after the increase, accident data was collected and for a time there was consideration to lowering the speed limit, but Mr. Logan did not recall a time when they considered lowering the speed limit. The Court weighs this conflicting testimony in favor of claimant. It credits the testimony of Mr. Kennedy, the current DOT Region 1 Traffic Safety Engineer and Mr. Sholtes, who is responsible for doing speed limit studies, that it is not typical to analyze whether an increase in fatalities had occurred once a speed limit is raised. Mr. Doody's testimony also supports this conclusion. The Court does not credit the conflicting testimonies of Mr. Logan, who appeared to be a responsible civil servant, but he had a vested interest in the outcome of this litigation as he was the Region 1 Traffic Engineer at the time of the increase to the speed limit.
Assuming without determining, that the monitoring of the speed limit after the implementation of the increase was not part of traffic design, and therefore not subject to governmental immunity, the Court would not be able to find in favor of claimant, because claimant has failed to establish that defendant's negligence was the proximate cause of the subject accident, as explained herein below.
III. Proximate Cause
Claimant has failed to prove that the failure to monitor the accident rates after the increase to the speed limit was the substantial cause of claimant's accident. Specifically, claimant failed to prove that if defendant had studied the accident rates after the implementation of the increase to the speed limit, it would have found that the accident rates had increased. Although most of the DOT employees testified that a specific analysis was not done, claimant could have obtained accident data from SIMS or, perhaps the Department of Motor Vehicles which feeds information into the SIMS system, for potential post speed increase accident rates. Mr. Levine's testimony, often a circumlocution, that the increased speed limit caused this accident, was insufficient.
CONCLUSION
The events of the morning of May 28, 2010 were, quite understandably, traumatic to claimant. From a review of the claim, he allegedly endured horrific injuries. He served this country as an Army Ranger and presented himself to the Court as a credible witness. However, upon consideration of all the evidence, including a review of the Exhibits and listening to the witnesses and observing their demeanor, and applying the applicable law, the Court finds that claimant has failed to prove his case by a preponderance of the credible evidence. The Court dismisses the claim. All motions upon which the Court reserved decision are denied.
Let judgment be entered accordingly.